It is therefore not surprising that those who have written, concerning the limits of prerogative and liberty in the old polity of England should generally have shown the temper, not of judges, but of angry and uncandid advocates. For they were discussing, not a speculative matter, but a matter which had a direct and practical connection with the most momentous and exciting disputes of their own day. From the commencement of the long contest between the Parliament and the Stuarts down to the time when the pretensions of the Stuarts ceased to be formidable, few questions were practically more important than the question whether the administration of that family had or had not been in accordance with the ancient constitution of the kingdom. This question could be decided only by reference to the records of preceding reigns. Bracton and Fleta, the Mirror of Justice and the Rolls of Parliament, were ransacked to find pretexts for the excesses of the Star Chamber on one side, and of the High Court of Justice on the other. During a long course of years every Whig historian was anxious to prove that the old English government was all but republican, every Tory historian to prove that it was all but despotic.
With such feelings, both parties looked into the chronicles of the middle ages. Both readily found what they sought; and both obstinately refused to see anything but what they sought. The champions of the Stuarts could easily point out instances of oppression exercised on the subject. The defenders of the Roundheads could as easily produce instances of determined and successful resistance offered to the Crown. The Tories quoted, from ancient writings, expressions almost as servile as were heard from the pulpit of Mainwaring. The Whigs discovered expressions as bold and severe as any that resounded from the judgment seat of Bradshaw. One set of writers adduced numerous instances in which Kings had extorted money without the authority of Parliament. Another set cited cases in which the Parliament had assumed to itself the power of inflicting punishment on Kings. Those who saw only one half of the evidence would have concluded that the Plantagenets were as absolute as the Sultans of Turkey: those who saw only the other half would have concluded that the Plantagenets had as little real power as the Doges of Venice; and both conclusions would have been equally remote from the truth.
The old English government was one of a class of limited monarchies which sprang up in Western Europe during the middle ages, and which, notwithstanding many diversities, bore to one another a strong family likeness. That there should have been such a likeness is not strange The countries in which those monarchies arose had been provinces of the same great civilised empire, and had been overrun and conquered, about the same time, by tribes of the same rude and warlike nation. They were members of the same great coalition against Islam. They were in communion with the same superb and ambitious Church. Their polity naturally took the same form. They had institutions derived partly from imperial Rome, partly from papal Rome, partly from the old Germany. All had Kings; and in all the kingly office became by degrees strictly hereditary. All had nobles bearing titles which had originally indicated military rank. The dignity of knighthood, the rules of heraldry, were common to all. All had richly endowed ecclesiastical establishments, municipal corporations enjoying large franchises, and senates whose consent was necessary to the validity of some public acts.
Of these kindred constitutions the English was, from an early period, justly reputed the best. The prerogatives of the sovereign were undoubtedly extensive. The spirit of religion and the spirit of chivalry concurred to exalt his dignity. The sacred oil had been poured on his head. It was no disparagement to the bravest and noblest knights to kneel at his feet. His person was inviolable. He alone was entitled to convoke the Estates of the realm: he could at his pleasure dismiss them; and his assent was necessary to all their legislative acts. He was the chief of the executive administration, the sole organ of communication with foreign powers, the captain of the military and naval forces of the state, the fountain of justice, of mercy, and of honour. He had large powers for the regulation of trade. It was by him that money was coined, that weights and measures were fixed, that marts and havens were appointed. His ecclesiastical patronage was immense. His hereditary revenues, economically administered, sufficed to meet the ordinary charges of government. His own domains were of vast extent. He was also feudal lord paramount of the whole soil of his kingdom, and, in that capacity, possessed many lucrative and many formidable rights, which enabled him to annoy and depress those who thwarted him, and to enrich and aggrandise, without any cost to himself, those who enjoyed his favour.
But his power, though ample, was limited by three great constitutional principles, so ancient that none can say when they began to exist, so potent that their natural development, continued through many generations, has produced the order of things under which we now live.
First, the King could not legislate without the consent of his Parliament. Secondly, he could impose no tax without the consent of his Parliament. Thirdly, he was bound to conduct the executive administration according to the laws of the land, and, if he broke those laws, his advisers and his agents were responsible.
