92 SECTION 1. Theoretical perfection explained. Report of Rerds, p. 45. j. 5. t: p. 98. 66 I am not sure that the expression, "theoretical per fection," incorrectly used in Mr. Justice Blackstone's note, may not have led both Mr. Fox and Mr. Rose into an error; for they both seem to have understood it to mean utmost theoretical perfection, beyond which it was impossible for human wisdom to go; but that was not the meaning of the learned judge himself. He asserts, and thinks he has demon "if an Act mentions only that the King enacts, and the Lords assent, "without naming the Commons, the omission cannot be supplied by any "intendment." And Mr. Rose, in order to shew Sir Edward Coke is not correct, cites the Stat. Ed. 6, against exporting horses, which, although in it the Lords are not mentioned as assenting, yet has always been considered as a valid Act of Parliament. It runs thus," for "remedy whereof be it therefore enacted by our Sovereign Lord the "King, and by the Commons in this present Parliament assembled, "and by the Authority of the same," &c. Here is a proof that a little learning is a dangerous thing, for this Act of Parliament has no relation whatever to Sir Edward Coke's position, which is perfectly correct, and has been confirmed and settled by solemn decisions. A passage from another of Sir Edward Coke's works will explain the mistake, into which Mr. Rose bas fallen: "If" says he, "an Act of Parliament be "penned by assent of the King, and of the Lords Spiritual and Temporal, and of the Commons, or it is enacted by Authority of Parliament, "it is a good Act." So the Statute of 1 Ed. 6, above mentioned, being enacted by the Authority of Parliament, which it could not be, if the Commons had not assented; and this appearing upon the record itself, and not by intendment, it falls within the last mentioned rule, and is consistently with the original proposition of Sir Edward Coke, as quoted by Mr. Rose, a good Act of Parliament. The Statute of Quiá Emptores is a still stronger instance, for in it the King alone speaks, Dominus Rex in Parliamento suo, &c. ad instantiam Magnatum Regni sui concessit, &c. yet the words Rex in Parliamento suo, &c. it being an ancient Statute, have been held to be equivalent to Dominus Rex liamenti concessit. 66 ་ SECTION 1. Com. iv. p. 439. strated that the constitution had arrived at its full vigour, and the true balance between liberty and prerogative was happily established by law, in the reign 440 of Charles the Second; and adds, "What seems in" contestible is this, that by the law, as it then stood, (notwithstanding some invidious, nay, dangerous "branches of the prerogative have since been lopped off, and the rest more clearly defined) the people had as large a portion of real liberty, as is consistent with a state of society, and sufficient power, residing in "their own hands, to assert and preserve that liberty, "if invaded by the royal prerogative. For which I "need but appeal to the memorable catastrophe of "the next reign." The following note is subjoined. "The point of time at which I would chuse to fix "this theoretical perfection of our public law is the year 1679, after the Habeas Corpus act and that for licensing the press had expired; though the years "which immediately followed it were times of great practical oppression." The theoretical perfection mentioned in the note, is made expressly to refer to the circumstances stated in the text,; but Blackstone was aware, that it still admitted of improvement, and were at is of me alludes to certain very proper diminutions and restraints of the prerogative, which have been made since. It is observable, that out of the circumstances enumerated by the judge, Mr. Fox has selected only But not in the cont I. SECTION four, which he supposed to be of the greatest importance, and to them, has added two, which the judge had omitted to notice, yet Mr. Rose, with that precise correctness, which can be obtained only from official accuracy, has considered all six, as first adduced by the learned judge, and then adopted by Mr. Fox, and accordingly has examined each separately. Abolition of the Journ,viii. p.45, 111, 178, Whether Mr. Rose's history of wardships be correct or not, it is not necessary to inquire. And as he does not object to the statute by which they were abolished, being reckoned among those which tended to the theoretical perfection of the constitution, he might have spared the information, that it relieved the great landholders from a very oppressive burden. But the statement that, for it, a valuable consideration was paid by the grant of a perpetual excise, and that the question in favour of the commutation was carried by the friends of Government, by a majority of only two, is not correct. The original compensation intended to be settled on the King, his heirs and successors, in lieu of the profits arising to the Crown from the Court of Wards and Liveries, and tenures by Capite and by Knight's service, was 100,000l. per annum, to be charged on all lands; and a select committee had actually proceeded to fix the SECTION 186, 187. apportionment of it upon the different counties.* This compensation was afterwards changed; no specific sum was to be paid to the Crown by way of annuity, Journ. viii, p. but, in consideration of the King giving up purveyance, as well as the profits above mentioned, it was finally resolved on the 21st of November, 1660, that there should be settled on the Crown one moiety only of a perpetual excise, on certain articles, and after the previous question negatived, this motion passed without a division. An attempt was made to settle the other moiety on the King for life, as part of 1,200,000l. granted before, and negatived by the opponents of Government by a majority of two, 151 to 149, which must be the division, to which Mr. Rose has alluded. With the Journal before him how can such a mistake be accounted for? he takes the proper pains to inform himself; the entry is a short one, yet in the attempt to transfer its substance to another piece of paper, something totally dissimilar to the original is produced. rendo. Mr. Rose next observes of the Writ de Heretico tico Combu Comburendo, that it "had been a dead letter for more "than a century, and that there was not the remotest *This curious paper, which shews the relative importance of the counties to each other at that tinfe, is preserved in vol. VIII. p. 178 of the Journals, and a list of the officers of the Court of Wards and Liveries, with the value of their offices, and the compensation for the abolition of each is at p. 219, SECTION Bl. Com. iv. p. 49. Full. Ch. Hist. Com. iv. p. 49. Bill for Trienni al Rose, p. 29. "chance of its ever being revived." The first of these observations is not accurate, for it had been put in execution in 1612, the ninth of James the First, when two Arians, Bartholomew Legate, and one Wightman were burnt, the former in Smithfield, and the latter at Litchfield. The second is a matter of speculation, Mr. Rose, more than a century after this Writ was taken away, in the spirit of a tranquil philosopher, may think its removal of no consequence; but probably the prospect of a popish successor, and the violence of those times might have induced the protestants in the reign of Charles the Second, to form a different opinion of the prospect of this Writ being brought again into use. Blackstone evidently considered its abolition as an important accession to the liberty of the subject, "For in one and the same reign," says he, "our lands were "delivered from the slavery of military tenures, our "bodies from arbitrary imprisonment by the Habeas Corpus Act, and our minds from the tyranny of super"stitious bigotry, by demolishing this last badge of persecution in the English Law." 66 "was The Triennial Parliament Bill, Mr. Rose says, Parlaments. " a most extraordinary measure for exultation," and gives as a reason, that by an Act passed in the fourth year after the restoration, a law made in the Long Parliament, enacting most effectual provisions, that could not be defeated, or evaded by the crown, or its ministers, |