Lapas attēli
PDF
ePub

our cities and towns; therefore we ordain and command that on such great occasions the Cortes shall be assembled, and counsel shall be taken of the three estates of our kingdom, as the kings, our forefathers have been used to do.” When James, son of Peter III., succeeded to the throne of Aragon, he, with a view of making peace with France, took upon him to ratify a renunciation of Sicily, in favour of Charles II. of Anjou, King of Naples (A.D. 1295). But the spirit of the inhabitants revolted against being assigned over like a flock of sheep, by virtue of a slip of parchment; they renounced their allegiance to the King of Aragon, and placed the crown upon the head of his brother Frederick; and, after five years' fighting, maintained their right to do so. Amongst other instances of the interference of the Cortes in such matters, may be mentioned the conduct of the Cortes of Ocana, who, in 1469, remonstrated with Henry IV. for allying himself with England instead of with France, and averred that

according to the laws of your kingdom, when the kings have anything of great importance in hand, they ought not to undertake it without the advice and knowledge of the chief towns and cities of your kingdom." The following case possesses a peculiar interest at the present day, when the succession to the Crown of Spain is again a matter in dispute. By the Treaty of Utrecht, between the Bourbon King, Philip V. of Spain, and Victor Amadeus, Duke of Savoy (who claimed descent from Katherine, daughter of Philip II., through her union with Charles Emmanuel, Duke of Savoy), it was stipulated that the succession to the throne of Spain, on the extinction of the line of the former, should devolve to the latter and his family; and Totze states that “this arrangement, having been previously agreed to by the States of the Kingdom, is justly accounted amongst the

fundamental laws of Spain.”

In Portugal the prerogative was in early times limited by the States, consisting of clergy, nobility, and cities—the relative powers of the Crown and States being occasionally fluctuating. “In the beginning of the reign of John IV. (1640-1656),” according to Totze they (the States) had great weight, both in foreign and domestic affairs; and everything

s of any moment relative to war, peace, and taxes, went through their hands. But under John V. (1706-1750), their consideration totally declined, and no Diet has been held since "—the king's power becoming despotic—"except in determining the succession, and an arbitrary imposition of taxes." Such was the state of things towards the close of the last century.

EARLY PRACTICE IN ENGLAND.

TURNING our attention now to what concerns our own country, it is to be remarked, that not one of the earlier authorities on constitutional law, as Glanville, Fleta, Bracton, Britton, Littleton, Fortescue, Fitzherbert, Coke, etc., when treating of the king's rights and prerogatives, make any mention of matters of peace and war as being included in them. On the contrary, many of them have passages to a contrary effect. For instance, Sir John Fortescue, who was Chancellor under Henry VI., in his 'De Laudibus Legum Angliæ,' a work addressed to the Prince of Wales, says of the king, that “he is appointed to protect his subjects, in their lives, properties, and laws; and for this very end and purpose, he has delegation of power from the people; and he has no claim to any other power than this." And Blackstone, who wrote three centuries later, revives the theory of a delegated authority, as applied to matters of state policy. He says that, “with regard to foreign concerns, the king is the delegate, or representative of his people. And, after quoting Grotius, he goes on to show that a Declaration of War, coming from the Sovereign power, is "not so much that the enemy may be put upon his guard, but that it may be certainly clear that the war is not undertaken by private parties, but by the will of the whole community.The very idea of a “delegate ” acting “by the will” of others, implies the necessity for a recognized method by which the will of the principals may be declared and communicated to the former; and that method in constitutional states is through the duly-elected representatives of the people. Coke, speaking of the functions of Parliament, and quoting the words of the writ to the effect that they are "touching the king, the state of the Kingdom of England, and the defence of the kingdom, etc.,” remarks that these words, “the state and defence of the kingdomare large words, and include the rest."

[ocr errors]
[ocr errors]

A careful examination of the rolls of Parliament, from the time of the Conquest down to the accession of the Stuarts, will show that during the whole of that long space of five centuries and more, the constant practice was to consult with, and take the authority of Parliament upon all questions of peace and war, and other matters of international policy. We will cite a few facts in confirmation of our position, selected from a mass of cases which would fill volumes.

To begin-we find that William the Conqueror, when meditating the invasion of England, “consulted his barons and great men of Normandy, and with their advice undertook the expedition.” The peace which William Rufus made with his brother Robert was

sworn by twelve barons of each nation,” and the same ceremony was gone through in regard to the peace between Henry I. and the same Robert. Under Stephen a similar case might be cited. Henry II., to whose arbitration some differences between the Kings of Castile and Navarre were referred, "did not think fit to make any determination upon this point but in his High Court of Parliament, when he ordered the ambassadors to deliver what they had to say," after which,

, “the earls and barons of the Royal Court of England adjudged plenary satisfaction to be made, etc.”

On the other hand, Henry III. called several Parliaments together for the purpose of getting supplies, with which to make war with France, but he repeatedly met with refusals couched in no very courteous terms. On one occasion, when he had engaged in war of his own authority, and afterwards applied to Parliament for aid, the barons told him that “he had undertaken it unadvisedly; and that his Parliament wondered he could undertake so difficult and dangerous a business without their advice and assent.'

The Edwards did not fall under the ridicule which their tyrannical predecessor had justly brought upon himself. They habitually referred to Parliament on

. all matters of state policy. Edward I. obtained the assent of Parliament before making war upon Llewellyn, Prince of Wales, and after slaying the latter and his brother Dayid, again had recourse to a Parliament at Rutland (May 22, 1282); "and it was there resolved that Wales should be inseparably united to the Crown of England.” In the 28th year of the reign of this prince a Parliament was assembled in London, in which a very important matter of state policy was transacted. “The first thing that was done at their meeting," we are told, "was to read before them the Pope's instrument of award between the two kings of France and England, who had agreed to make him as a private person only, under the name of Benedict Cajetan, the amicable composer and arbiter of all wars, controversies, differences, and causes whatever between them.” This award is there given at length, "to which, when it was read in Parliament, all the clergy and laity gave their consent.”

Edward III., in the course of his long reign, called together no less than sixteen parliaments, to

« iepriekšējāTurpināt »