Front Page Titles (by Subject) SECTION V.: EVEN IN AMERICA, THE CROWN HAD NO RIGHT TO LEGISLATE WITHOUT PARLIAMENT. - The Works of Jeremy Bentham, vol. 4
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
SECTION V.: EVEN IN AMERICA, THE CROWN HAD NO RIGHT TO LEGISLATE WITHOUT PARLIAMENT. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 4 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 4.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
EVEN IN AMERICA, THE CROWN HAD NO RIGHT TO LEGISLATE WITHOUT PARLIAMENT.
Relinquished, as it has been, no otherwise than tacitly, if at all (for the point is not worth arguing,) if the power had been declared illegal, and abolished by express words, it would not have been so disposed of without very sufficient grounds. That over English subjects in England, or anywhere else, the king should, by himself or by others, exercise legislative power, without the concurrence of parliament, was repugnant to the constitution, was repugnant to Magna Charta.
True it is, for aught I know, that till the reign of George the Second, till the year 1740 at least, as above, it never had been disputed or doubted of: and the train of precedents by which it has been exercised, commences with what appears as the first charter given to the first colony, in the reign of James the First,* in 1606, or thereabouts.
But, in the days in which the practice thus originated, the exclusive right of parliament to legislative power was far from being defined as now. Even within the territory of England—on this, and that, and other ground—the king by his proclamations would be legislating without parliament, and even in spite of parliament. Whatever parliament would endure to see him do, this and more he was sure to do without parliament. By monopolies, by ship-money, by dispensations of penal statutes, on one pretence or another, he was even levying money without parliament. The very existence of parliament was a matter of perpetual contingency. At all times it depended upon the king’s pleasure whether there should ever be another. And so long as he could contrive to go on with existing powers, and upon existing funds, he had everything to lose and nothing to gain, by calling to his aid any such troublesome assistance.
Even in Lord Cohe’s time, had this mode of legislating without parliament been questioned in the King’s Bench, it would not have stood its ground: at least if Lord Coke had at that time been in disgrace, and the decision had depended on Lord Coke.
“King Edward the Sixth did incorporate” (says he† ) “the town of St. Alban’s, and granted to make ordinances, &c. They made an ordinance upon pain of imprisonment, and it was judged to be against this statute of Magna Charta. So it is if such an ordinance had been contained in the patent itself.” Thus far Lord Coke. The train of reasoning is evident. It was by the glaring illegality in the case last mentioned (which is the feigned case,) that light was thrown on the covert illegality in the former case, which was the real case. It was a case actually decided, decided in the Common Pleas, and reported by Lord Coke himself.* The decision was given in the 38th year of Elizabeth, and even Elizabeth submitted to it.†
Had the first charter that was ever granted for the foundation of an English colony (say the charter, granted in 1606, for the colonization of the tract of land then comprised under the denomination of Virginia by James the First,)‡ —had this first charter been questioned as illegal—as contrary to the decision in the St. Alban’s case, in vain would it have been to have said,—“This case is different: that applies to Englishmen wishing to legislate in England: this applies to Englishmen wishing to legislate in a distant, and as yet unplanted region.” To warrant any such distinction, there was neither principle nor precedent. Not principle: because, as to hardship, if Englishmen are to be legislated upon otherwise than by parliament, how was the hardship lessened by their being in the then wilderness of America? in a quarter of the globe, so far out of the reach of the protecting hand of parliament? Not precedent: for, of an attempt to subject them to legislation in this mode, the instance in question is, by the very supposition, the first instance.
The right of thus granting away the powers of parliament passed (it is true) unquestioned. Why? because nobody ever started up, to whom it had happened to conceive himself as being concerned in interest to question it. For, if a man went from England to live there, it was because he found it more agreeable to him to live there under those laws, than to live in England under English laws: and if at any time a man preferred English laws, England was at all times open to receive him. Whatever was the cause, such at least was the effect: the right remained unquestioned; and, remaining unquestioned, usurpation had time to clothe itself in the garb of law.
Admitting, that on any one mass of territory, having English owners, and not being, or having passed, under the dominion of any foreign power, the concurrence of the three estates is necessary to legislation, no reason can be given why, on any principle either of utility or analogy, it should be less necessary on any other spot so circumstanced. By remoteness from the natal soil—from the seat of connexion and protection—the hardship of whatever is looked upon as tyranny is not lessened but enhanced. The sense of liberty (of what is meant by liberty in one of its thousand senses) has not been found to evaporate by expatriation in English men, as the sense of smell has been said to do in English dogs. Of Englishmen surely it may be said, if of any men, Cælum, non animum mutant, qui trans mare currunt.
For whom, or what, was it that the protection afforded by Magna Charta was intended? For the inhabitants of the land, or for the soil only?—for the flesh and blood, or only for the stocks and stones?
A lawyer, who should attempt to get rid of the application, of the case of the charter given to certain inhabitants of St. Alban’s, to the case of a charter granted to certain inhabitants of other places in England, must answer boldly—“Only for the stocks and stones. Englishmen, the moment they get out of sight of the stocks and stones of England, for whom alone Magna Charta was designed, are neither worth protecting nor worth governing.” But, unless it be on a spot, which being under foreign owners, affords a protection and a governance of its own, in what book will he find a colour for saying, that Englishmen, by being out of sight of English ground, are either out of the protection or out of the governance of an English parliament? Limited as the power of an English king is over Englishmen in England, in what book will he find that it is absolute over them everywhere else?
Will the portion of consent, of popular consent, given in the first instance to these charters, or the consent given in succeeding times to the laws made in America, in the several colonies, in consequence of these charters—will any such sanction be urged in proof of the original validity of a purely royal act, thus attempting to legislate over Englishmen without parliament?
Alas! what a cloud of illusions is involved in that little word consent, employed, as it is but too common for it to be employed! But, without plunging into any such discussions, it is sufficient to say here, that no such unparliamentary consent had any weight in the St. Alban’s case. There never could have been applied, to the law of any American assembly of succeeding times, the actual consent of so great a proportion of individuals to be governed by it, as there probably was in the St. Alban’s case. But this did not hinder the attempt made in that case (the attempt on the part of the king, in conjunction with a portion of the inhabitants of that one town, to legislate, on pain of imprisonment, over the rest) from being disallowed: disallowed on the ground of its being an invasion of the rights of parliament.
What is the consent required by the constitution to give validity to a law? The consent—not of a part surely, but of the whole. It is not the consent of that part of the king’s subjects for whose exclusive advantage the law is made, that is sufficient to give validity to a law, by which others, not sharing in the benefit, are attempted to be bound: if it were, there would never be any want of consent to the worst law. Neither then, nor since, has the consent necessary to give validity to any English law, been either more or less than the consent of the two sets of trustees for the whole body of the king’s subjects—the two other estates of Parliament.
The question is, whether the king, with the assent of a few persons named by himself, had it in his power to repeal, pro tanto, the statute called Magna Charta? The answer is given by the judges in the St. Alban’s case: “L’assent ne poet alter la ley in tiel case.” If this be not the very best of French, better English at least cannot be desired.
To supply what is thus in contemplation of law wanting in point of consent, will any such topic as that of abstract utility be resorted to? Will it be urged, in the view of giving validity to the illegal mass of pretended law, that the benefit of all parties followed from it? This benefit, admitting it in its full extent, this benefit, destined to be reaped in after ages, will it give retro-active validity to an act void from the very first instant? If so, at what point of time was it that, on a sudden, and without any efficient cause, an illegal act was thus converted into a legal one?
Legality, it must be remembered, not expediency, not abstract utility, is the question here: to confound the two ideas would be to tear all law up by the roots. Admitted in the fullest extent, the alleged expediency would prove no more than this, viz. that, had James the First obtained, by a law of parliament, authority for the foundation of his first colony—authority for the powers conveyed by the charters, in virtue of which this colony was founded—had the king so done—a law to that effect, if passed, would have been a good law: and so in regard to the several other real colonies, real charters, and correspondent ideal laws. But, the expediency of all these ideal laws, does it prove them real ones? does it prove that any such acts of parliament were actually passed?
When a practice is repugnant to acknowledged principles, the case of general warrants is sufficient to show how little force there is in mere official precedents, however numerous the train of them, and however ancient the commencement of it. For the purpose of that case, a list of general warrants (a list of the cases in which authorities of that description had been issued by the servants of the crown) was published at the time.* It begins with the Restoration; not surely because there were none of any earlier date (for such there must have been in numbers,) but because it was not conceived that authorities of that kind, issued at any less constitutional period, could possess any tolerable chance of being looked upon as good precedents.
Prior to the issuing of the first general warrant, there was no direct judicial decision against general warrants, as there was against legislative power exercised by the crown without parliament, in the case just mentioned: yet general warrants, spite of the number of precedents and length of the practice, could not stand their ground. Against general warrants there was nothing but principle. Against colonization charters there is the principle, and a direct judgment grounded on it. And who is there that will deny that, in the scale of common law, a thousand unjudicial official precedents are not equal to one judicial one?
[* ]See Lind’s Remarks on the acts of the 13th parliament relative to the colonies, 1775.
[† ]2d Inst. 54.
[* ]Coke’s Reports, part 5, p. 64. Case of the corporation of St. Alban’s, called by him Clark’s Case.
[† ]There was something more in this than in ordinary cases. A snake was seen, or thought to be seen, in the grass. Even in that age of general abjection and judicial dependence, the judges spied it out, and took fire at it. What little constitutional blood a man could at that time find in his veins, it called up in their cheeks. More is meant (say they) than meets the ear. This is an attack upon Magna Charta: that peculiar and inestimable security of Englishmen, which (so often has it been broken into) has more than thirty times been confirmed. “C’est ordinance est encounter le statute de Magna Charta, cap. 29. Nullus liber homo imprisonetur. Quel act ad estre confirm, et estably oustre 30 foits, et lassent le plaintiff ne poit alter la ley in tiel case.”
[‡ ]See Lind on the Colonies, p. 94, 1775.
[* ]The documents printed in that list would not be found all of them to come within this description: but of one sort or other there are 136. The title of the book in my possession is—“Copies taken from the Records of the King’s Bench, of Warrants by Secretaries of State,” &c. 4to, 1763. No bookseller’s name.