Page:Harvard Law Review Volume 8.djvu/261

245 SOVEREIGNTY IN ENGLISH LAW. 245 men that the King of England was not absolute, and to ascribe to Parliament at least as much authority as any Frenchman could ascribe to the King of France. It must be remembered that Sir Thomas Smith, who was the first Regius Professor of Civil Law at Cambridge, was not a common lawyer, but a civilian. He was familiar with the Roman adage Quod principi placuit legis habet vigoretn, and was determined, it seems, to show his Continental colleagues in Roman learning that we had as good a sovereign as any of theirs. He saw the importance of the point as clearly as Hobbes did seventy years later, and, using his insight with greater political wisdom, boldly put, not the King alone, but the King in Parliament, in the place of the Roman Emperor. In this he was somewhat before his age. His view is amply justified by all mod- ern constitutional writers. Blackstone expressly declares that the sovereignty of the British constitution is lodged in Parliament,^ and that it is the place where that absolute despotic power which must in all governments reside somewhere is intrusted by the con- stitution of these kingdoms; after which he almost repeats Sir Thomas Smith's language.^ But in Sir Thomas Smith's own time the sages of the Common Law would hardly have agreed with him. Their opinion seems to have been that not only the King was subject to the law, but the law was in some way above Parlia- ment. Some fundamental principles of law and justice, never defined but generically described as " common right," were sacred against the legislature, and if Parliament were to transgress them it would be the right and the duty of the judges to pay no atten- tion to such enactments. Coke enounced this opinion with his usual vehemence, and even more than his usual inaccuracy or disingenuousness in read- ing his own particular opinion into the authorities on which he professed to rely.^ He found, as will appear below, nominal fol- 1 Comm. i. 51. 2 lyd. 160, 161. ' Bonham's Case, 8 Rep. i %a : " It appears in our books that in many cases the com- mon law will control Acts of Parliament and sometimes adjudge them to be utterly void : for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void ; and therefore in 8 Ed. III. 30 . . . Herle saith some statutes are made against law and right, which those who made them perceiving, would not put them in execution." The italicized words are a mere gloss of Coke's own. What Herle did say, as reported, is, " lis sont ascuns statutes faitz que celuy mesme qui les fist ne les voleit pas mettre en fait." Plenty of modern statutes have been inoperative in prac- tice, not because the common law controlled them, but because they were in fact unworkable.