The History of England, from the Accession of James II — Volume 1. Томас Бабингтон Маколей
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never fancied himself competent to enact, without the consent of his great council, that a jury should consist of ten persons instead of twelve, that a widow's dower should be a fourth part instead of a third, that perjury should be a felony, or that the custom of gavelkind should be introduced into Yorkshire. 2 But the King had the power of pardoning offenders; and there is one point at which the power of pardoning and the power of legislating seem to fade into each other, and may easily, at least in a simple age, be confounded. A penal statute is virtually annulled if the penalties which it imposes are regularly remitted as often as they are incurred. The sovereign was undoubtedly competent to remit penalties without limit. He was therefore competent to annul virtually a penal statute. It might seem that there could be no serious objection to his doing formally what he might do virtually. Thus, with the help of subtle and courtly lawyers, grew up, on the doubtful frontier which separates executive from legislative functions, that great anomaly known as the dispensing power.
That the King could not impose taxes without the consent of Parliament is admitted to have been, from time immemorial, a fundamental law of England. It was among the articles which John was compelled by the Barons to sign. Edward the First ventured to break through the rule: but, able, powerful, and popular as he was, he encountered an opposition to which he found it expedient to yield. He covenanted accordingly in express terms, for himself and his heirs, that they would never again levy any aid without the assent and goodwill of the Estates of the realm. His powerful and victorious grandson attempted to violate this solemn compact: but the attempt was strenuously withstood. At length the Plantagenets gave up the point in despair: but, though they ceased to infringe the law openly, they occasionally contrived, by evading it, to procure an extraordinary supply for a temporary purpose. They were interdicted from taxing; but they claimed the right of begging and borrowing. They therefore sometimes begged in a tone not easily to be distinguished from that of command, and sometimes borrowed with small thought of repaying. But the fact that they thought it necessary to disguise their exactions under the names of benevolences and loans sufficiently proves that the authority of the great constitutional rule was universally recognised.
The principle that the King of England was bound to conduct the administration according to law, and that, if he did anything against law, his advisers and agents were answerable, was established at a very early period, as the severe judgments pronounced and executed on many royal favourites sufficiently prove. It is, however, certain that the rights of individuals were often violated by the Plantagenets, and that the injured parties were often unable to obtain redress. According to law no Englishman could be arrested or detained in confinement merely by the mandate of the sovereign. In fact, persons obnoxious to the government were frequently imprisoned without any other authority than a royal order. According to law, torture, the disgrace of the Roman jurisprudence, could not, in any circumstances, be inflicted on an English subject. Nevertheless, during the troubles of the fifteenth century, a rack was introduced into the Tower, and was occasionally used under the plea of political necessity. But it would be a great error to infer from such irregularities that the English monarchs were, either in theory or in practice, absolute. We live in a highly civilised society, through which intelligence is so rapidly diffused by means of the press and of the post office that any gross act of oppression committed in any part of our island is, in a few hours, discussed by millions. If the sovereign were now to immure a subject in defiance of the writ of Habeas Corpus, or to put a conspirator to the torture, the whole nation would be instantly electrified by the news. In the middle ages the state of society was widely different. Rarely and with great difficulty did the wrongs of individuals come to the knowledge of the public. A man might be illegally confined during many months in the castle of Carlisle or Norwich; and no whisper of the transaction might reach London. It is highly probable that the rack had been many years in use before the great majority of the nation had the least suspicion that it was ever employed. Nor were our ancestors by any means so much alive as we are to the importance of maintaining great general rules. We have been taught by long experience that we cannot without danger suffer any breach of the constitution to pass unnoticed. It is therefore now universally held that a government which unnecessarily exceeds its powers ought to be visited with severe parliamentary censure, and that a government which, under the pressure of a great exigency, and with pure intentions, has exceeded its powers, ought without delay to apply to Parliament for an act of indemnity. But such were not the feelings of the Englishmen of the fourteenth and fifteenth centuries. They were little disposed to contend for a principle merely as a principle, or to cry out against an irregularity which was not also felt to be a grievance. As long as the general spirit of the administration was mild and popular, they were willing to allow some latitude to their sovereign. If, for ends generally acknowledged to be good, he exerted a vigour beyond the law, they not only forgave, but applauded him, and while they enjoyed security and prosperity under his rule, were but too ready to believe that whoever had incurred his displeasure had deserved it. But to this indulgence there was a limit; nor was that King wise who presumed far on the forbearance of the English people. They might sometimes allow him to overstep the constitutional line: but they also claimed the privilege of overstepping that line themselves, whenever his encroachments were so serious as to excite alarm. If, not content with occasionally oppressing individuals, he cared to oppress great masses, his subjects promptly appealed to the laws, and, that appeal failing, appealed as promptly to the God of battles.
Our forefathers might indeed safely tolerate a king in a few excesses; for they had in reserve a check which soon brought the fiercest and proudest king to reason, the check of physical force. It is difficult for an Englishman of the nineteenth century to imagine to himself the facility and rapidity with which, four hundred years ago, this check was applied. The people have long unlearned the use of arms. The art of war has been carried to a perfection unknown to former ages; and the knowledge of that art is confined to a particular class. A hundred thousand soldiers, well disciplined and commanded, will keep down ten millions of ploughmen and artisans. A few regiments of household troops are sufficient to overawe all the discontented spirits of a large capital. In the meantime the effect of the constant progress of wealth has been to make insurrection far more terrible to thinking men than maladministration. Immense sums have been expended on works which, if a rebellion broke out, might perish in a few hours. The mass of movable wealth collected in the shops and warehouses of London alone exceeds five hundredfold that which the whole island contained in the days of the Plantagenets; and, if the government were subverted by physical force, all this movable wealth would be exposed to imminent risk of spoliation and destruction. Still greater would be the risk to public credit, on which thousands of families directly depend for subsistence, and with which the credit of the whole commercial world is inseparably connected. It is no exaggeration to say that a civil war of a week on English ground would now produce disasters which would be felt from the Hoang-ho to the Missouri, and of which the traces would be discernible at the distance of a century. In such a state of society resistance must be regarded as a cure more desperate than almost any malady which can afflict the state. In the middle ages, on the contrary, resistance was an ordinary remedy for political distempers, a remedy which was always at hand, and which, though doubtless sharp at the moment, produced no deep or lasting ill effects. If a popular chief raised his standard in a popular cause, an irregular army could be assembled in a day. Regular army there was none. Every man had a slight tincture of soldiership, and scarcely any man more than a slight tincture. The national wealth consisted chiefly in flocks and herds, in the harvest of the year, and in the simple buildings inhabited by the people. All the furniture, the stock of shops, the machinery which could be found in the realm was of less value than the property which some single parishes now contain. Manufactures were rude; credit was almost unknown. Society, therefore, recovered from the shock as soon as the actual conflict was over. The calamities of civil war were confined to the slaughter on the field of battle, and to a few subsequent executions and confiscations. In a week the peasant was driving his team and the esquire flying his hawks over the field of Towton or of Bosworth, as if no extraordinary event had interrupted the regular course of human life.
More than a hundred and sixty years have now elapsed since the English people have by force subverted a government. During the hundred and sixty years which preceded the union of the Roses, nine Kings reigned in England. Six of these nine Kings were deposed. Five lost their lives as well as their crowns. It is evident, therefore,