To these Bills the Royal assent was pronounced by the Clerk of the Parliament in these words, viz.: La Reyne le Veult. Lord Plunket's Indemnity Act 1880. To this Bill the Royal assent was pronounced by the Clerk of the Parliament in these words, viz. : 'Soit fait comme il est desiré.' In 1876 a question was raised as to the validity of a royal assent given by commission while the Queen was on the continent. A statute of the 2nd William and Mary had given efficacy to 'acts of royal power' done by the King during his absence from the realm; and it was not considered necessary to create Lords Justices with delegated powers or to legislate afresh upon the subject 1. CHAPTER IX. THE EXECUTIVE AND LEGISLATURE IN CONFLICT. I HAVE described the constitution of our Parliament, and its action in Legislation. I wish now to consider the various ways in which one of the three parts of this legislative body has tried to act independently of the other two in respect of legislation, or to control or influence the others so as to get legislation practically into its own hands. I do not reckon among influences of this sort the greater power which the House of Commons of the present day exercises in proportion to the other two branches of the legislature. This power is due to natural causes, to the fact that the House of Commons represents large numbers, and keen political interests or vivid wants. I propose to deal with infringements by one part of the legislature of the rights of another either by direct invasion or assumption of those rights, or by indirect influence obtained over those who ought to have maintained them. The period over which the conflict extends must be taken to commence after the settlement of the respective rights of Crown, Lords, and Commons in Legislation, as described in Chapter VII of this book. The direct assault by the Crown upon the concurrent law-making and taxing powers of Parliament lasted through the sixteenth and seventeenth centuries; the indirect influences brought to bear by the executive on the legislature, and specially on the House of Commons, are mostly matters of eighteenth-century history. The Crown, as being at once the executive and a branch of the legislature, is also that branch of the legislature which has most often and in the greatest variety of ways endeavoured to assume to itself legislative power or to subordinate to itself the other branches of the legislature. And it is possible to distinguish and classify the forms which have been assumed by these endeavours of the Crown. The Crown has tried to legislate independently of Parliament: it has tried to nullify legislation effected in the entire Parliament by dispensing with the operation of statutes in individual cases, or by suspending their operation altogether; it has tried to raise money without parliamentary grant; it has tried, personally or through its ministers, to influence the legislature by the corruption of members or the corruption of constituencies. Or one may summarise the forms assumed by these attempts of the Crown thus :— 1. Claim to be independent of Parliament in legislation. § 1. Royal Proclamations. The efforts of the Crown to assume to itself independent legislative powers found some colour in the identity, in early times, of the executive and the legislature, of the King in Council and the King in Parliament. The King in Council had once legislated, and, as we have seen, continued to legis- Ante, P. 227. nance, late by way of Ordinance for some time after Parliament had Legislation acquired legislative power, and this often took place with the by ordisanction and approval of Parliament. Of the legislative character of the ordinance as distinguished from statute I have already spoken, and also of the jealousy which this practice of independent legislation by the Crown in Council created. This jealousy was awakened as the confusion between the Executive and the Legislature cleared away, and as Parliament, and especially the Commons, realised the importance of insisting upon the fulfilment of the terms of the Statute of Edward II, whereby the consent of prelates, earls, barons, and the commonalty of the realm was required to matters which were to be established for the estate of the king, the realm, and the people.' Legislation by ordinance, which had been denounced at the end of the fourteenth century and which had disappeared revived in during the fifteenth, revived in the sixteenth in the form of tion. legislation by Royal Proclamation. Proclama Statute of tions. 31 Hen. VIII, c. 8. The modern form of Proclamation has already been set forth in an earlier part of this book, but the Proclamations of the Tudor sovereigns were a great deal more than ministerial acts summoning or proroguing Parliaments, or exercising powers conferred upon the Crown by Statute. They made new laws, new offences, new punishments, and the offences were tried and the punishments inflicted by the Court of Star Chamber. Henry VIII, who was skilful in extending the discretionary prerogative by legal means, and in obtaining from Parliament an increase of powers which it was the duty of Parliaments to control, procured in 1539 the passing of the Statute of Proclamations. The ostensible object of this statute was to enable the executive, when Parliament was not sitting, to act promptly as occasion might require. It professed to guard the laws and customs of the realm and the person and property of the individual. Nevertheless it enacted that Proclamations made by the king, with the advice of his honourable council, or of a majority of his council, 'should be observed and kept as though they were made by an Act of Parliament,' and permitted the enforcement of such proclamations by such pains and penalties as the King and Council should see requisite. Such an Act was, as Dr. Stubbs describes it, 'a virtual resignation of the essential character of Parliament as a legislative body; the legislative power won for the Parliament from the king was used to authorise the king to legislate without a Parliament 1. 1 Stubbs, Const. Hist. ii. 588. tions under VI. The Statute of Proclamations endured but for a short time; Proclamait was repealed by 1 Edward VI, c. 12, s. 4, but the practice Edward continued, and though royal proclamations had no longer by statute the force of law, they were used to introduce ecclesiastical changes and social and economic regulations; they were enforced by penalties of fine, imprisonment, and even slave labour on the galleys1. In the reign of Mary the validity of Mary. such proclamations was called in question, and the judges did not hesitate to assign to them their proper legal character as statements of existing law, and not sources of new law. The king, it is said, may make a proclamation quo ad terrorem populi to put them in fear of his displeasure, but not to impose any fine, forfeiture or imprisonment; for no proclamation can make a new law, but only confirm and ratify an ancient one 2.' Nevertheless the Tudor queens continued to legislate by way of proclamation more freely than the kings of the fourteenth century had ever ventured to do by ordinance. Impositions were laid upon imported goods, sumptuary rules Elizabeth. were made as to the building of houses, and the quality of apparel; trade regulations were enforced by punishments in excess of those which the common law would have inflicted. James I used this method of legislation quite as freely. James I. In the proclamation by which he summoned his first Parliament he tried to limit the choice of the electors by describing the quality of the candidates to be elected, and the discretion and duties of the sheriff by a charge that writs were not to be sent to ancient or depopulated towns. He levied impositions by the same process; a matter which is better considered when I come to deal with the king's claim to levy money without the consent of Parliament. He interfered in various ways with personal liberty and freedom of trade 3, bidding country gentlemen to leave London and go and 1 Hallam, Hist. of England, i. 38. 2 Ibid. i. 337 For specimens of such proclamations, see Rymer; Old edition, xvii. 417, 607; Hague edition, vol. vii. part 4, pp. 16, 143. |
