power of the king or his
heirs, or against the estate of the crown, should be void and of no
avail or force whatsoever; but the matters to be established for the
estate of the king and of his heirs, and for the estate of the realm and
of the people, should be treated, accorded, and established in
parliament by the king, and by the assent of the prelates, earls, and
barons, and the commonalty of the realm, according as had been before
accustomed. This proceeding, therefore, declared the legislative
authority to reside only in the king, with the assent of the prelates,
earls, and barons, and commons assembled in parliament; and that every
legislative act not done by that authority should be deemed void and of
no effect. By whatever violence this statute may have been obtained, it
declared the constitutional law of the realm on this important subject."
(p. 282.) The violence, if resistance to the usurpation of a subject is
to be called such, was on the part of the king, who had just sent the
earl of Lancaster to the scaffold, and the present enactment was
levelled at the ordinances which had been forced upon the crown by his
faction. The lords ordainers, nevertheless, had been appointed with
consent of the commons, as has been mentioned in the text; so that this
provision in 15 Edward II. seems rather to limit than to enhance the
supreme power of parliament, if it were meant to prohibit any future
enactment of the same kind by its sole authority. But the statute is
declaratory in its nature; nor can we any more doubt that the
legislative authority was reposed in the king, lords, and commons before
this era than that it was so ever afterwards. Unsteady as the
constitutional usage had been through the reign of Edward I., and
willing as both he and his son may have been to prevent its complete
establishment, the necessity of parliamentary consent both for levying
money and enacting laws must have become an article of the public creed
before his death. If it be true that even after this declaratory statute
laws were made without the assent or presence of the commons, as the
Lords' committee incline to hold (p. 285, 286, 287), it was undeniably
an irregular and unconstitutional proceeding; but this can only show
that we ought to be very slow in presuming earlier proceedings of the
same nature to have been more conformable to the spirit of the existing
constitution. The Lords' committee too often reason from the fact to the
right