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There are certain Principles of Civil Liberty, which at the end of the fifteenth century protected the Individual from the arbitrary action of the government.
They had been established in England in the Common Law, that is, in private rather than public law, but in America were made parts of the Constitution. Hallam in his Constitutional History of England calls attention to them with the words:
‘‘No man could be committed to prison but by a legal warrant specifying his offence and by a usage nearly tantamount to Constitutional Right, he must be speedily brought to trial by means of regular session of goal delivery. The fact of guilt or innocence on a criminal charge was determined in a public court, and in the County where the offence was alleged to have occurred, by a jury of twelve men, from whose unanimous verdict no appeal could then be made’’.
Civil Rights, so far as they depended on the question of fact, were subject to the same decision. The officers and servants of the Crown, violating the personal Liberty or other Right of the Subject, might be such in an action for damages to be assessed by a jury, or in some cases, were liable to criminal process nor could they plead any warrant or command in their justification, nor even the direct order from the king.
The historian Bishop Stubbs commenting in the 19th century says:
‘’It is true that neither in the vague promises of Henry IV nor in the definite recommendations of Chief Justice Sir John Fortescue are to be found enunciations of the clear Principles or details of the practice of the English Constitution.
But the Constitution did not now require definitions. The discipline of the fourteenth century, culminating in the grand lesson of Revolution, had left the Nation in no ignorance of its Rights and Wrongs’’.
The great Law of Custom written in the hearts and lives and memories of Englishmen, had been so far developed as to include everything material that had been won in the direction of popular Liberties and even of Parliamentary Freedom.
The Nation knew that the king was not an arbitrary despot, but a Sovereign bound by Oaths, Laws, Polices, and necessities, over which they had some control.
They knew that he could not break his Oath without God’s curse; he could not alter the Laws or impose a Tax without their consent given through their Representatives chosen in the County Courts.
They knew how, when, and where these Courts were held, and that the mass of the Nation had the Right and Privilege of attending them; and they were jealously on the watch against royal interference in their elections.
And so far there was nothing very complex about Constitutional practice: there was little danger of dispute between Lords and Commons: the privilege of members needed only to be asserted and to be admitted: there was no restriction on the declaration of gravamina, or on the Impeachment of Ministers or others who were suspected of exercising a malign influence on government.
When the king promised to observe their Liberties, men in general knew what he meant, and watched how he kept his promise….
Today the House of Lords may still legally try persons Impeached by the House of Commons for any crime or Political misdemeanor, but the last such trial was of Lord Melville in 1806.
The possibility of Impeachment proceeding being taken by the House of Commons of the countless Ministers of the Crown who over the last 40 years have ignored their Oath of office to HM the Queen will be the subject of intense interest of many historians in the future. All we can hope for today is a greater awareness of the People to the dangers to their Constitution and Freedom.
* * * * Words of a great Prime Minister, William Ewart Gladstone, are much to the point:
‘’The finance of any country is ultimately associated with the liberties of the
country. It is a powerful leverage by which English liberty has been gradually
acquired. If the House of Commons by any possibility loses the control of the
grants of public money, depend upon it, your very liberty will be worth very
little in comparison. That powerful leverage has been what is commonly known as
the power of the purse – the control of the House of Commons over public expenditure’’ (1891) * Brought forward from MAY/07 * |