Speech in Parliament
affirm that the parliament hath power over all arts, sciences,
mysteries and professions, practiced in the commonwealth, and may
make laws for reformation of any abuse in the practices therein.
for the parliament hath his power and authority from the common law, and not the common law from the parliament. And therefore the common law is of more force and strength than the parliament The parliament may find some defects in the common law and amend them (for what is perfect under the sun?) yet the wisest parliament that ever was could never have made such an excellent law as the common law is.
It is a rule or principle in the common law of England that the king without assent of parliament cannot alter any law, no more than he can make a law, cuius est constituere eius est abrogare [it is the legislator who can abrogate]. This hath been agreed by all the King's learned counsel, and by one of them it was upon another occasion most worthily said, that as there were some principles in divinity which could not be disputed without blasphemy, so there were some principles in government that could not be disputed without sedition, whereof he held this to be one. Seeing, therefore, the king cannot alter the law, the chief subject or object whereof is property in land and goods, determining meum et tuum [mine and thine], for no man hath property in land or goods by the law of nature (terram enim dedit filiis hominum [for he gave the earth to the sons of men]) but by the municipal law of that kingdom, wherein he liveth or was born. Seeing also in this kingdom of England, the laws of the kingdom are the inheritance not only of the king, but also of the subjects, of which the king ought not to disseise them or disinherit them. Therefore it followeth consequently and necessarily, that the king cannot alter the property of the lands or goods of any of his free subjects without their consent, for that is to disseise or disinherit them of the fruit and benefit of the law, which is all one as to disinherit them of the law itself. And this appeareth yet more plainly in the great Charter of the liberties of England, that the law is not only to protect us against the absolute power and prerogative of the king in life and member, but also in land and goods.
For I do not take Magna Charta
be a new grant or statue, but a restoring or confirming of the
ancient laws and liberties of the kingdom, which by the Conquest
before had been much impeached or obscured.
The felicity and happiness of all kingdoms, but particularly this of ours, resteth as well in the moderate and lawful freedom and liberty of the subjects as in the sovereignty of the king, but in the right composition and mixture of both (which by the common law is excellently performed). This kingdom enjoyeth the blessings and benefits of an absolute monarchy and of a free estate. Tacitus (speaking of the felicity of the Roman Empire in the time of Nerva and Traina) assigns the reason quod res olim dissociabiles miscuerint principatum et libertatem [that they reconciled those once unsociable matters sovereignty and freedom]. Therefore let no man think liberty and sovereignty incompatible, that how much is given the one is taken from the other; but rather like twins, that they have such concordance and coalescence, that the one can hardly long subsist without the other. The sovereignty of the king hath his existence principally in matter of honor or government, the liberty of the subject in matter of profit or property.
the condition of a villein, whose
lands and goods are only in the power of his lord, which doth so
abase his mind, even the lack of liberty in this point, that he is
neither fit to do service to his country in war nor peace, for the
law enables him not so much as to serve in a jury, and the wars
design him but to the galley or the gallows. So if the liberty of
the subjects be in this point impeached, that their lands and
goods be any way in the king's absolute power to be taken from
them, then they are (as hath been said) little better than the
king's bondmen, which will so discourage them and so abase and
deject their minds, that they will use little care of industry to
get that which they cannot keep and so will grow both poor and
base-minded like to the peasants in other countries, which be no
soldiers nor will be ever made any, whereas every Englishman is as
fit for a soldier as the gentleman elsewhere.
disseise = expropriate
Tacitus, Life of Agricola 3.2
[The full text of this speech can be found in Proceedings in Parliament 1610, edited by Elizabeth Read Foster, Volume II, pages 170-97]