Page:History of England (Macaulay) Vol 1.djvu/45

 everywhere been drawn with accuracy and distinctness. There was, therefore, near the border some debatable ground on which incursions and reprisals continued to take place, till, after ages of strife, plain and durable landmarks were at length set up. It may be instructive to note in what way, and to what extent, our ancient sovereigns were in the habit of violating the three great principles by which the liberties of the nation were protected.

No English King has ever laid claim to the general legislative power. The most violent and imperious Plantagenet never fancied himself competent to enact, without the consent of his great council, that a jury should consist of ten persons instead of twelve, that a widow's dower should be a fourth part instead of a third, that perjury should be a felony, or that the custom of gavelkind should be introduced into Yorkshire. But the King had the power of pardoning offenders; and there is one point at which the power of pardoning and the power of legislating seem to fade into each other, and may easily, at least in a simple age, be confounded. A penal statute is virtually annulled if the penalties which it imposes are regularly remitted as often as they are incurred. The sovereign was undoubtedly competent to remit penalties without limit. He was therefore competent to annul virtually a penal statute. It might seem that there could be no serious objection to his doing formally what he might do virtually. Thus, with the help of subtle and courtly lawyers, grew up, on the doubtful frontier which separates executive from legislative functions, that great anomaly known as the dispensing power.

That the King could not impose taxes without the consent of Parliament is admitted to have been, from time immemorial, a fundamental law of England. It was among the articles which John was compelled by the Barons to sign. Edward the First ventured to break through the rule: but, able, powerful, and popular as he was, he encountered an opposition to which he found it expedient to yield. He covenanted accordingly