firCSIflu Iffi tk MIS 11 Affl S^. H i : iti ili UNIVlLRSiTY AT LO F CALIFORNIA NGELES \'.'-' V <-,[ i' V ; FOUR LETTERS ON itbt ^mli^fi ^omtitntiotu I. ON DIFFERENT OPINIONS CONCERNING THE ENGLISH CONSTITUTION. II. ON ITS PRINCIPLES. in. ON ITS DEFECTS. IV. ON THE BEST MEANS OF PROMOTING ITS FUNDAMENTAL PRINCIPLES. BY G.DYER, A. B. rOKMERLr OP EMM&NDEI. COUEGE, CAKBRIDGB. Ce xt'est point a. moi a examiner si les Anglois jouissent aetuellement de ette liberte, ou non. II me suffit de dire qu'elle est etablie j>ar leurs loijc, et je n'en cherclie pas d'avantage. Montesquieu de Ii'Esprit des Loix. It is not mm business to examine, whftlur the English actually enjoy this libertv, or not. it is sufficient for me to say, that it is establliKed by their laws, and I in- .quiro no farther. Mo^itesquieu's Spirit 0^ Laws. Nam non nisi optimis legibus populum regere licet, etiam ut dicit Philoso- phiis; Natura deprecatur optima Non sunt liaec tantis celata mysteriis, ut dc- liberatione egeant inpenti. Fortescue de Laudibus Lepum An;fli!e, cap. vii. For a people should not be governed, but by the best iMves, even as the philosopher saith, Nature seeheththe things which are best. These things are not concealed in so ureal mysteries, as to require sreat deliberation. Fortescue on the Praises ^ifthe Laws oj" England, ch. vii. THIRD EDITION, WITH ADJDlTlONfi. ILontron : PRINTED FOR LONGMAN, HURST, REES, ORMR, AND BROWN, PATER NOSTER-ROW; HUNTER, ST. PAUL'S CHURCH-YARD; SHERWOOD, NEELY, AND JONES, PATERNOSTER-ROW; RIDGWAY, PICCA- DILLY; ARCH, CORNHILL; ANIJ CONDER, ST. PAUL'S CIUJ&CH. YARD- y 8 2 6 1817, 1AK!)Ano AND rAELET, '^'^.icin- */r!, Anifc.'i- Preface TO THE EDITION OF 1812. ^ J. IIESE Essays were first published in a ^ Miscellany, as Letters : they were repub- ^ Jished, because they needed some correc- c tions; and because the writer thought, that, in some material points, they were suscep- tible of improvfinent. It was suggested, indeed, that the times were favourable to the publication ; though he was not sanguine on that head. Tem- porary questions have a chance of becoming popular by local pleas, or by accidental cir- cumstances. But there is nothing in the aspect of the times so auspicious to politi- cal discussions ; and these Letters proceed oh the most general principles, addressing all Englishmen, and applicable to all times: gand as for any purpose of a popular elec- tion (being first printed just after one) they came too late ; so for men asleep over poli- a2 301098 2 VI PREFACE. circumstances in the state of society : and although men of the best Enghsh feehngs may even deem the removal of sundry diffi- culties to be remote, yet it is something, to know where any of our maladies are lodged, and to perceive the legitimate re- medy. As to the present writer, he can hold out no new light, not having discovered any- new truth : but he professes to have em- ployed some industry in ascertaining the claims of the different parties in this coun- try, and in examining their justice. Lectis non illis tantum, as Grotius says on another subject, sed et Judaeorum pro Judaica vetere, et Christianorum pro Christiana religione scriptis, nti voluisse meo quali- cunque judicio. Each party brings its particular claim. Do not, then, all their particular claims, if just, imply a general claim ? For who are we, and whence our privileged pretensions ? The writer has endeavoured to select each particular claim, and to make of them one general claim ; a wreath composed of seve- ral flowers, each having its peculiar colour, and appropriate character. And happy PREFACE. Vll will it be for us as a nation, when we en- deavour to forget ourselves as privileged citizens, and opinionative sects ! But no; this will not do. We think only of ourselves. We think all the world must consult our interests. We throw difficul- ties in the way of the public estimation, in regard to others. While urging our own pleas, we throw out false insinuations, illi- beral conceits, odious oppressive names against people, as good and as wise as, per- haps, wiser and better than, ourselves. We forget the politics of all times, and all coun- tries; and, shall we make our claims on the English Constitution ? Shall we be cla- morous about civil and religious liberty ? a civil and religious liberty, in which we allow not our fellow-citizens to share ? Whence arise our principal errors in politics ? Not from indifference to musty charters, to political folios, to our ancient manuscripts, and ecclesiastical laws! No. Justly obsolete, as many of them are, and happily unknown, let them sleep ! Do they not spring from our immoderate seli-love ? Do we not aspire after undue ascendancies 4 Vlll PREFACE. and influence ? Do we not all " seek gain from our own quarter T Whence arise these our principal politi- cal errors ? Not from the holding of parti- cular speculations on theology in private, conscientious reverence, but in our thrust- ing them into our civil code ; not from pro- moting our religious tenets by our public professions, or social discussions, but by countenancing in our practice, some religi- ous ascendancies* in the state; not by a self-consecration to some favourite form of worship, but by conceiving ourselves more rightl}^ set apart for public confidence and trust, than our fellow-citizens ; saying to these out-door citizens^ " stand by your- selves, for we are holier f than you ;" not * The reader is referred for the more comprehensive meaning- of this word to an excellent passage in the Posthumous Works of Mr. Burke, as quoted in the Morning- Chronicle, October 28, 1812. 1 1 use the word merely in the sense of more rightly set apart, which is as applicable to political, as religious purposes. There is a judicious exposition of this word in Mons. Saurin's Sermon on the Holiness of God. Kadash in certum usum (generaliter) praeparari et desti- nari. Robertson's Thesaurus. PREI^ACE. IX bj the making of laws and credenda for churches and congregations, but by illiberal- izing, and dictating to, the civil power. In using the word ascendancy in the pre- ceding paragraph, the writer does not al- lude, exclusively, to the claims of any par- ticular sect, nor to a particular question, lately agitated*; but to all religious ascen- dancies, to every orthodox, and heterodox self-exaltation to the injury of our fellow- citizens. Catholic, Protestant-Episcopalian, and Presbyterian, has each had ascendancy in his turn, and each been intolerant. And so far they should be called rather factions * It may be observed (p. 110 of these Letterf) that language sufficiently respectful was used towards a great personage, when the writer spake on a particular ques- tion. There is a period in our Constitution, at which, though the executive power has the ensigns of majesty, it is, for a season, without its authorities and dignities. It is a season favourable to the revisal of state-measures, when the maladies of a nation should be healed, and its defects supplied. That period is, probably, not far off: when it arrives, may government be directed by wisdom, and the supreme magistrate know his true interest and pro- per obligations! If experience were our rule, we ought by this time to have got a little wisdom. X PREFACE. than religions, at least, if ChillingswortVs* maxim be received, that where " Persecu- tion begins, Rehgion ends/' The pious Cranmer must burn heretics, notwithstand- ing the remonstrances, and tears, of good young Edward t : Cardinal Pole, all ^/zeeA:- ness and mildness, (so he is described by his biographers), must write cruel and bit- ter reproaches in a Letter ;|: to the devoted Cranmer, who is to be burnt in his turn ; and, during the long Parliament, a Presby- terian (Presbyterians had cried out against the intolerancy of prelates) must write truly against Toleration^, And hence some have inferred, it is to be hoped somewhat too hastily, that all sects would, in their turn, * Religion of Protestants. t Burnet's Hist, of Reformation, Part 2d. :j: This Letter is not mentioned by Ludovico Beeca- telli, the author of Cardinal Pole's Life, but is printed by Quirini, who had sufficient zeal in favour of Cardi- nal Pole. See Pye's Notes to Beccatelli's Translation of Cardinal Pole's Life. Reasons, &c. by Thomas Edwards, London, 1641. See also a Serra. May, 1703, Edinburgh, by Mr. Mel- drum: reprinted in London, 1705, against Toleration; Meldrum was Moderator of the General Assembly, PREPACE. XI be intolerant, if they were placed in power. But the true national politics would be to let no sect have power, or ascendancies : and can we help wishing that governments, at least, would set them a better example? That they would teach private Christians, and private citizens, a feeling at once ge- nerous and natural; a tone of language mild and insinuating ; a conduct liberal and properly civilized ; in a word, that they would set them the example, to love one another* f In addition to the reason, already alluded to, for republishing these Essays, one or two others may be mentioned. The writer wished a few persons to consider them as a pledge, that, however employed, he is not likely to take a course, incompatible with the principles of civil and religious liberty: he also allowed himself to believe, they * It is well said by Sir John Fortescue, to Prince Edward, (son of Ilenrj VI.) Qualiter si fecerint llectores orbis, mundus iste ampliori, quani jam est, justitia rcgeretur, quibus, si tu, lit jam hortor, facias, cxemplum non minimum ministrabis. De Laudibus LI. Anglise, cap. 6. XU PREPACK. would not be unacceptable to a few friends^ engaged in similar studies, or interested in the obiect of them, the advancement of the rights of mankind : but most he wished them to be a memento to himself; from the pic- ture painted in his own mind he was de- sirous of forming an exemplar to his own conduct. Hoc illud est pra^cipue in cogni- tione rerum salubre ac frugiferum, omnis te exempli documenta, in illustri posita mo- numento, intueri : inde tibi tuaeq; reipub- lic, quod imitere, capias ; inde fajdum inceptu, faedum exitu, quod vites.* He must beg leave to subjoin one more Avord, viz. That it is desirable in all in- quiries to gain any thing on antiquity ; this is said in allusion to what is observed by some moderns, as more largely unfolded in the following pages, on the word Consti- tutions. Its sense in ancient authors is there given, and it is used in a similar sense by our old English writers. Our lawyers understand by it, statutes,f which * Livii Hist, sub init. t Statuta, quae et Constitutiones appellantiir. Fortescue de Laud. LI. Ang. cap. 15. PREFACE. XUl does not come up to its more comprehen- sive modern acceptation. This remark is introduced here for the pm'posc of adding what was omitted in its proper place; That for the words which seemed to speak his meaning most happily, he is indebted to a Jewish writer*, though a direction somewhat new is given the words in the applying of them to. Political Constitutions. * Maimonides calls his own Expositiones, Constitu- tiones, as Vorstius translates the word Halechoth; the Fundamentals of the Law, Fundamenta Legis; the great Fundamental of all, Fundamentum Fundamento- rum, the Fundamental of Fundamentals. Maimon. de Fund. Le^. cap. 1. TO THE THIRD EDITION. As the few following pages can lay no claim to the public notice, from any testi- mony, so far as the Author knows, to the former Editions, in the existing periodical pubUcations, or commendatory quotations in newspapers, it may not be improper to state the reasons, which have occasioned the following republication. Public praise, to those, whose ears are accustomed to it, is the earnest of fame ; and love of fame, like a poetical charm, is a stimulus to new endeavours. Das aliquid famae, quae carmine gratior aurem, Occupat humanani ? HOR. And where writers are sure of praise, they may calculate, without any danger of a XVI PREFACE TO THE mistake, on the success of their new edi- tions. The Author, however, is possessed of some testimonies, which are encouraging, ample enough for the fondness of a parent's hopes, that his httle offspring does not al- together deserve to die. A man's own conscience, the only proper Avitness of his motives, or assiduity, can have no force with any one but himself; but the judgment of men of upright intentions, and thoroughly conversant in the subjects treated of, may be allowed to have some force with others : for though the self-love of authors is pro- verbial, and there is no class of men, of whom it may with more propriety be said, " they stand too near to see themselves,'' yet the views of men of superior learning, eminent in their profession, and particu- larly distinguished, as their valuable publi- cations sufficiently testify, for their know- ledge in our Laws and Constitutional His- tory, the views of such men are made at a distance, and may be expected to be taken without partiality and without hypocrisy. The approbation, therefore, of such meni, THIRD EDITION. XVll expressed as it has been, with much Avarmth, either by Letter, or personal in- terviews, could not fail to be grateful and animating; though, where no authority was given to mention persons, it would not be justifiable to do so, nor as they might not assent to every particular opinion stated here, would it be proper. The writer, how- ever, does think himself justified in avail- ing himself of their authority so far, as to hope, that what could, in general, approve itself to men of such discernment and knowledge, may contain a few hints that will not be unacceptable to some other readers. These considerations, further en- forced by the solicitations of several per- sons to possess copies of these Letters the former edition being out of print are the reasons, which he has for venturing on a new edition. Another inducement was found in the pursuits, which at present principally en- gage him. The foimcr edition of these Letters Avas proffered as a pledge, that, however occupied, he was not likely to b XVlll PREFACE TO THE shew hostility to the EngUsh Constitution, nor to play at cross purposes with the prin- ciples of civil and religious liberty. That pledge, it is hoped, has been redeemed: and this republication is offered as a similar pledge, that in the further prosecution of a work, m which he has been for several years engaged, he may be expected to keep the same course; and, by shewing a decent respect to eminent men of all parties, to follow the line of what he conceives to be the true English character. " Perhaps there was a reason stronger, than even these. Our political hemisphere is at present overspread with an awful cloud, arising, in part, from a long war; in part from present distress, and the re- straints of power. The circumstances of the war, and public distress, would offer too much matter for present consideration ; the restraints of government is the only topic which belongs to this place. It may be thought, and undoubtedly is, by some, that restraints, in the present state of things, became necessary; by THIRD EDITION. XIX others, that they were only intended to be temporary ; and by others, that what is unnatural and violent cannot last long, con- cluding with Tacitus, nunquam fidam esse potentiam, quae nimia est; a truth more generally seen, where that power has been openly seized and wantonly exercised by a single person. For an overgrown tyrant, may suddenly burst asunder by his own grossness, and is often dispatched in des- potic governments, without much either of violence or tumult, by a private hand; while all around, having perceived and felt the oppressor, congratulate the deliverer, and triumph at the downfall of the tyrant. " He, who smote the people in wrath, with a continual stroke; he that ruled the na- tions in anger, is persecuted and none hindereth. The whole earth is at rest, and is quiet ; they break forth into singing. Yea, the fir trees rejoice at thee, and the cedars of Lebanon, saying, since thou art laid down, no feller is come up against us/' Isas. xiv. 6, 7, 8. But experience shews, that the conclusion is too peremptory and h9. XX PREFACE TO THE precarious, when applied to laws : for laws, however made, become precedents to those in authority, and to the people a rule of obedience. If hastily made, they may not be so hastily repealed ; if obtained only with one view, and under one pretence, openly avowed^ they may be pervaded by a secret spirit, different from that in which they were ostensibly set forth, and directed to an object different from what they were originally intended : and, though even procured surreptitiously at first, they may obtain veneration from time, and sacredness from custom. The evils introduced by one race of statesmen may require a new race to remove : ages may thus roll on, centuries of oppression following a few years of corruption and bad legislation. For a new race of states- men may not suddenly spring up, like the armed men from the teeth, sown in the earth, of the serpent destroyed by Cad- mus : Mox humeri, pectusq. onerataq. brachia telis, Existunt; crescitq. seges cljpeata Virorum. Ovid Mdamorph. I. iii. 1. THIRD EDITION. XXI It is humiliating to contemplate what has often been the course of events in such a state of things, wherein a few plausible maxims have been mixed up with many depraved principles ; how love of ease, under a plea of prudence, insensibly re- conciled itself to the yoke of oppression ; how self-interest, pleading state-expedi- ency, took the cameleon hue of every plant on which it was accustomed to feed ; how simplicity and love of truth, taught the fruitlessness of opposition, were lost amid the glitter of distinctions, and ac- commodations to fashion ; how state- policy, mistaking its own shifts and tricks for wisdom, dehvered out its ca- bala for oracles; singularity became a crime, intolerance a virtue ; genius and eloquence, from too much modesty, or too little principle, became advocates for imbecility of talent, and palpable contra- dictions ; while piety, too credulous, made a duty of subjection ; and hypocrisy, growing less scrupulous, did not think it necessary even to wear a mask. 3 XXn PREFACE TO THE This is sometimes the effect of bad laws ; and has been so even in our own country ; may it not be of our own times ! and could a spirit of prophecy influence future events, it most certainly would not be. But should such laws fix their baleful roots in British soil, and that question now at issue, between a Parliamentary Reform and a strong military* govern- * The evils of a large standing army, in time of peace, are; it demoralizes and uncitizens a great number of men, who might be usefully employed in agriculture and manufactures ; it is a serious expense to the nation ; and it endangers the public liberty : and, as not being often, if ever, necessary/, from our in- sular situation, were our fleet kept in good order, and a national militia regulated and well disciplined. It may be considered an evil too, which may, like a gangrene, spread, till it ends in a mortification. From the time the Romans left this island to that of Richard II. we were much of a fighting people in Britain. He raised 4000 archers ; but he was dethroned in the is- sue. The authors of the Historj/ of a Standing Army in England, published in 1697, are said to have been not quite correct in all their statements : but there was at least liitle or no standing army in England from Richard II. till the reign of Charles II. lie bad THIRD EDITION. XXlll ment, terminate in favour of the latter, we must then know our own place; we an establishment, in England and Ireland, horse and foot, of only 14,750 men, and every one knows what use he made of it. In King William's time his army in England and Ireland was increased to 49,630 ; and in Scotland he had 4769 : and no one attempts to ac- cuse the aforesaid authors of a mistatement in those particulars. At present (May 1817) we have a stand- ing army of, in all, here and abroad, horse and foot, 142,000. What are then the advantages of a standing army in England ? for advantages it is said to possess. Perhaps in a splendid government like that of Eng- land, a small corps de guard may be considered, like other paraphanalia of office, as a comely appendage to the state of the supreme magistrate perhaps, is added to this seeming concession, from a recollection of the dangers which often attach to precedents ; and of a memorable reply of Queen Elizabeth (whose reign has been called, by eminence, the splendid reign of the Virgin Queen) to a foreigner, who once asked her, ** Where are your Majesty's guards ?" Turning to the people, as thy passed, she answered, " These are my guards;" recollecting too a fact, not to be overlooked, that, as the authors of the History of Standing Armies in England observes, guards were unknown to our constitution till the time of Charles the Second. " PerhapSf as other Christian states now keep large XXIV PREFACE TO THE shall have little left us but silent obedi- ence, except reasonings, which may not " standings armies, and in times of peace, it may be " expedient and necessary that England also should " not be without one." Here man is considered as a fighting animal, thriving and even living, by a sort of necessity of nature, like other animals that feed on their fellow-creatures; and, that while one Christian state may be prepared to devour us, we should be prepared to devour them; and that, an overgrowing popula- tion being thus mowed down, room is left for a new race. This appears to be a frightful picture of man ; and others, for the present, are left to determine, whe- ther it is true. In the mean time, a caution is added also to these seeming concessions; for England de- fended itself without a standing army, when other Christian states possessed one : Christianity, too, de- nounces war altogether ; and whether a nation, avow- ing so pure a form of religion, should follow the practice of Christendom betbre the precepts of Chris- tianity n:t)y deserve some people's Christian considera- tion. An island might be pointed to, where the in- hai-itUiits were living in peace and friendship, till they were taught by Christians the use of arms. They are n'.vv cutting one another's throats. They were living loo as a free state, yet, under the government of a king ; we shall soon hear, that one party has en- sUrcid the other. A standing army, in short, can at no time serve the cause of liberty much, so far as the iiiteriuil police of a nation is concerned. It is in the nature of a great mill- THIRD EDITION. XXV be heard, and oppositions which, perhaps, may be dangerous. tary force to perpetuate a despotic government; but to be a bad judge, in the cause of freedom : thus a de- spotism continues for ages, though many governing despots, in the interim, are destroyed by their own soldiers. On the other hand, the army, which ruled during the Civil Wars, and professed the cause of liberty, could not settle a government on its princi- ples. It changed the form no less than ten times*; and after all, General Monk, who had been on the side of the Parliament, terminated the whole by bringing in a tyrant. Behold then the nature and principle of a military government ! The fact is, that a government by force, and a free government, are extremes, and absolute contradictions. The Author of Reflections on the Short Ilistory of Standing Armies^ and the Author of a Repli/ to the said Short History^ have enumerated the reasons for the continuance of a large standing army, under King William. These reasons, at least, do not now exist : " h\xiolhers do:'" perhapa there may, and greater. " England, it may be said, is not capable of defend- " ing herself from foes without, and from the dis- " affected within, without a large standing army." Yet Enijland defended herself without a standinir army for nearly a thousand years. Perhaps she might be able to do so still. Here some readers may naturally enough call to '* Ilobbes's JJihcmoth. XXVI PREFACE TO THE Perhaps, may he. For it does not follow, though tumultuous meetings may be mind the ancient division of the English nation into hundreds and tithings ; and how admirably our free general militia^ acting by a well-regulated rotation, was formed, for the purpose both of national defence against foreign enemies, and of a domestic police, in aid of the civil magistrate. Without going into the particulars of this incomparable discipline, so agree- able to the ancient common law, and therefore so con- genial to the Constitution of England, it may be suffi- cient to refer readers to Mr. Granville Sharp's very able Tracts on this important subject. " This state of things no longer exists." But do not the same means, and the same powers exist ? And as the same common law exists, might not there be given to the same means and the same pow- ers, and even without difficulty, a true, constitution- al effect ? Supposing the old system, however excellent, not to be revived, still we have a militia; and there is no danger in believing that according to the present atti- tude of Europe, England will never be without, at least, a small standing army. In this case, if we choose to call our militia, in its present condition, a raw, undisciplined body of men, will it follow, that they need continue so? The militia regiments might be so trained by officers of the regular army, as to be madp every way effective, as well for the purpose of opposing invasion, as of domestic police and security. THIRD EDITION. XXVll suppressed, that the means of petitioning for a Reform in Parliament, which is so essentially required, may be easily effect- ed : they may still remain ; and perhaps If it be said, that the people are not to be trusted with arms, it must be supposed that a good under- standing does not subsist between the Government and the people : and on this ground it is that the ex- pediency of a Reform in Parliament is urged ; for un- less a good understanding should be made to exist between Constituents and Representatives, mutual confidence will be destroyed ; and the interest of the governors and governed not being the same, a nation cannot be happy : it will be governed against its own will, by force; and whether a government by force is free or a despotic government, shall be left for other people to reflect on. The subject of a standing army will be considered, more generalli/^ in the proper place. In the mean time, readers will please to take notice that what has been hitherto said is spoken more particular h/f in re- ference to governing a nation in time of peace by an army, to prevent a Reform in Parliament ; and that " the present militia" is the constitutional security, *' which our lazes have provided for the public peace, " and for protecting the realm against foreign or do- '* raestic violence *." * Blackstone. XXVUi PREFACE TO THE such means may be devised as no magis- trates can overrule, no legislature could either attempt, or even wish, to suppress, and as the people, with the most perfect safety might pursue; such as might be promoted throughout the United King- dom, and legally, without three persons meeting in any part of it ; such, too, as by moderation, yet with firmness, with good order, yet with perseverance, might suc- ceed, better than tumultuous assembling, or any violence of opposition. But under the worst state of things, " the mind (of every honest man) would be its own place/' Sedition bills, and Attorney Generals cannot enter there. His thought will be free, and his own conscience must be his altar of gold, ^* the altar of gold for the incense before the ark of the testi- mony :" and as we may behold v/hat is good, when not able to attain it, so we may feel what is right, though obliged to yield to what is wrong : it is both useful, too, and salutary; for such feeling may not only be delectable in itself, but, by be- THIRD EDITION. XXIX coming a principle and a passion, be ren- dered favourable to virtue of character, and sentiment^ of honour ; and, as a con- sequence, influential on private happiness ; for there may be a sunshine of the soul, when all without is clouds and darkness ; and there is an elegant observation of the French Protestant Reformer, John Claude, to this purport, that in fine weather the bees fly at large, and collect their stores from a variety of sweet flowers ; but when it is stormy, they keep close together in their cells, and feed on their honey. With some such feelings as these, a new edition of the Four Letters on the English Constitution is put forth. Should the Se- dition Bills, further enforced by the Sus- pension of the Habeas Corpus Act, and a strong military force, not have a totally deleterious effect, in effacing from us the remembrance of good principles, they may have a narcotic influence, in creating a slumber over them, and, at length, an in- difference to them. This indiffbrence, how- ever, can never become general among Englishmen. Many will still be found XXX PREFACE TO THE who will continue to make a conscience of their principles : they will not, they can- not " bow the knee to Baal/^ On all pro- per occasions, they will be advocates for a reform; they will keep their foot unshaken on that sacred spot, of faithful testimony and honourable dissent. They will always consider a strong military force in time of peace as a badge of slavery, as incompati- ble with the commerce of a country, as it is with its liberties; an innovation totally irreconcileable with the theory of their constitution, and the practice of their an- cestors. The present pamphlet, it is hoped, will have its proper force in such breasts. In England it may be reasonably hoped, that the principles of liberty will never be wholly unpopular ; but should they be- come so, they will not therefore be the less just and true: and there will always be a cloud of witnesses gone before, to whom it may be well for those to look who come after. Such pei'sons, as the author has now more immediately in his thoughts, will have to contemplate friends and parents. THIRD EDITION. XXXI who were persons of real worth, and they need only aspire to be as blameless in their lives as they were; who, however differ- ently they might think on any speculative points of religion, had but one rallying point in politics, and that was liberty and they will have to recollect, that they are followers not of men who sacrificed their principles to vanity, ambition, or a desire to obtain greatness and affluence for themselves or their families, but of those who were willing to forego and to deny themselves much, to preserve a good con- science, and who thought it " noble to stand upright when the world dechned."" ESSAY I. ON OPINIONS RESPECTING THE ENGLISH CONSTITUTION. XN some sort of connection with the Essay on the Defects and Abuses of Public Charities*, it will be allowed me, perhaps, to consider the De- fects of our Political Constitution. But I mean to take no stoical, or misanthropical, view of the subject. If I shall point out the defects of our system, I shall first state its principles ; and if I shall mark its secret or open corruptions, I shall willingly dwell on its superior pretensions, and acknowledged advantages. After all said on public charities, experience forbids us to speak of them as a good criterion of public or private virtue. A constitution and go- vernment might, indeed, be so happily disposed, This Letter, in No. I. of the Reflector, does not appear in this series. ON OPINIONS KESPECTING as that knowledge might be more widely circu- lated, and motives to industry more happily in- duced ; while, at the same time, so much na- tural feeling, so much salutary conviction, so much moral principle, so much of an honourable spirit of independence, might be promoted through a country, that public charities would be less necessary. A state of society, perhaps, might not only be conceived, but even described, in which public charities would be considered al- most as an evil and disgrace. But, when we speak of an existing state of society, it may be prudent to keep sometimes out of the world of possibilities. In the removal of a positive grievance under a present system, we may do real good, though it may be small, it may become greater in happier times, and under more auspicious circumstances. It is most pleas- ing to take, occasionally, a poetical flight to Utopia; but we must descend and dwell with the people, amidst whom we are born, or among whom we are destined to live. When speaking, then, of political forms, let us leave others to talk of perfect models ; let us renounce theories and appeal to facts; let us feel for substance, and per- mit the insane, and the selfish, to talk of aerial forms, and vanishing points. It should at first seem, that the question, THE ENGLISH CONSTITUTION. 3 What is the political constitution of a country ? is of all questions the most easy of sohition ; a constitution of principles, forms and laws, being the most prominent feature in its policy, to be seen and felt, we should suppose, in every day's experience, as we perceive our own powers in the movement and regimen of our natural bodies. Yet in governments do circumstances often arise, by which the question is perplexed, and what ought to be visible and clear, is thrown in the back ground, or kept wholly out of sight. One might think, that the question, as it re- lates to a country in which we live, could still less be liable to ambiguity or uncertainty. Yet cir- cumstances have arisen in our history, which have rendered it peculiarly so with us. Hence some of our historians have been called constitutional, others unconstitutional, writers. From such books, as Nicholsons Historical Library, and such collections of papers, as those made by Sir Robert Cotton, Archbishop Parker, and others, and the Reports lately made of the Public Re- cords of the Kingdom, one might conclude, there is no country, that possesses so many con- stitutional writings as England ; perhaps, we should think justly ; and yet do Rushwortlis Collections, by exhibiting the eloquence and rea- sonings of the most able men in the country, b2 4 ON OPINIONS RESPECTING shew, how, in critical points, and trying periods, they reasoned very differently on constitutional principles. And Andrew Home, the author of the Mirroir des Justices, one of our oldest writers on the Law, shews, in his chapter de Abu- tion, that in the earliest times, the common law was liable to be abused ; and, that as Magna Charta yet had some faults, so also had it in some points been misconceived and abused. We have at present three predominant parties in the country (if I may be permitted to use a word without any invidious meaning'), I mean, classes of politicians, who cannot be induced to make their particular interests and claims one common stock. Yet they all talk of rallying round the Constitution, like different religious sects, who all appeal to the same code. Will it be said, that in the eye of all the three, the principles of the English Constitution are the same ? that the dispute wholly turns on the moderation or excess of its government? on the qualities, good or bad, of the administration? Or, shall we say, it is effected by the selfishness, the pride, or ambition of either party, or of all the parties at once ? If there were three hundred parties in England, what is the presumption, that they would not all rally about the English Constitution ? THE ENGLISH CONSTITUTION. 6 The question, What are the principles of the "English Constitution ? is receiving an answer, true or false, in the practice of every day; in the symbols and forms of executive power ; in the modes, and principles, of debate in both houses of parliament ; in the language of our courts of law ; and in the silent homage, either hypocritical or sincere, at least, the obedience of private life ; it will be, perhaps, then, safe to admit, that the dif- ficulties, the principal difficulties, in the way of this question, are, some latent faults in the Con- stitution, which few are willing to admit, or in abuse and corruption, which no one is willing to abandon. Over and above the answer of every day, there arise periods, when the question returns with pe- culiar force ; when all parties are set on the alert; when the press labours ; when every public meet- ing, every private club, every company, every fa- mily, resounds with the question proposed, and answered. In our own time we have had three such pe- riods; one, when we were setting on foot the war with America ; another, when we engaged in the present war with France; and a third, at the [)re- sent moment, when, alas ! we seem at war among ourselves. Prior to the period of their war with this conn- 6 ON OPINIONS RESPECTING trj, the Americans spake favourably of English liberty. The political constitutions of their se- veral states were much framed after the English model ; their arrangement of the three po\A ers, in their political body, was regulated somewhat after the English form; their trial by jury, and their system of representation, were English : our best political writers, Milton, Harrington, Sidney, and Locke, were their great favourites ; Penn, and Lord Baltimore, the founder of Maryland, were both Englishmen ; and the former, in some re- spects, the best of political writers, spake the high language, and breathed the purest spirit, of Eng- lish liberty. In one worri, with the exception of our limited toleration, against which Penn pleaded so ardently in England, of the expences of our government, of our hereditary claims and privi- leged orders, with these exceptions, the Ameri- cans spake highly of the English Constitution. When we proceeded to tax the Americans without their consent, and to make a monopoly of their trade, they made a stand, and altered their tone. This they execrated as an encroach- ment on their liberty, and inconsistent with the principles of the English Constitution ; and some writers in our own country, particularly Dr. Price, in his Observations on Civil Liberty *, examined Part II. Sect. 2. THE ENGLISH CONSTITUTION. 7 the American war by the same rule. Now it was, that the boldest of the American writers, the author of Common Sense, advanced a step higher, he spake the language of contempt on our Constitution, as a house divided against itself: still he expressed himself of its distinction in a constitutional sense, (by which he meant the Constitution of the people, or the republican part of the Constitution,) and of its constitutional errors; and the Americans, he considered, as having a prejudice in favour of the English CoU" stitution. A second period, when the question concerning the English Constitution became much agitated, commenced with the Revolution of France. That event gave an unusual interest to the question. A new epoch seemed to be forming. Long ha- bituated to contemplate the constitutions of the American states, and then of Poland and France, as visible and tangible masses, generated, as it were, on the spot, and shaped within a limited period, the writer alluded to was not satisfied with abuse ; he went farther ; he roundly asserted in his Rights of Man, th^t we had no Constitution at all. A third period we venture to pronounce this, in which we now move. The Whigs and Tories, 8 ON OPINIONS RESPECTING as they are called, and the third class, who will allow themselves to be called neither Whigs nor Tories, are in the constant habit of using- the same or similar language^ In the act of exercis- ing, certainly, a great power, the House of Com- mons talked as-being under constitutional protec- tion (I allude to the case of Sir Francis Burdett), and Sir Francis pleaded, in vindication of his re- sistance, the violation of the principles of the Constitution. A House of Commons, they all allowed, was a true form of English polity, that it must possess privileges ; but we saw them dif- fering in their opinion on the extent of those pri- vileges. Those, however, the most determined against Reform, in both houses, were for rallying round the Constitution ; and Sir Francis Burdett, so ardent for Reform, spake nothing so loudly, a that he and his friends required nothing but the Constitution, There are other periods, which are frequently recurring, when this question is wont to be agi- tated, viz. When men choose their representa- tives ip parliament. These periods, indeed, are peculiarly favourable to the discussion, except, perhaps, that a knowledge of the principles of the Constitution ought, in the natural course of things, to take precedency of the exercise of the THE ENGLISH CONSTITUTION. 9 elective franchise. However, such periods natu- rally excite the public attention to this important and interesting- question. As we have had these several periods, when the question became peculiarly interesting, we may be said to have several classes of writers, who have taken somewhat different measures in discussing" it. The first is of those, who, in pleading against the advocates of arbitrary power, have adopted a mode at once direct, and insinuating ; direct, be- cause they appeaji to first principles, and reason- ings, from analogies in nature, the best and most philosophical way of examining the subject, though it requires too profound a turn of thinking for an ordinary genius. Of this description was Montesquieu, who, in his Spirit of Laws, pro- fessedly examines the English Constitution ; and Mr. David Williams, who, by way of comment on Montesquieu, wrote a Treatise on Political Principles. Hooker, M'hether truly or not, I do not inquire, lays the foundation of the laws of ecclesiastical polity, in reference to England, on reasonings from analogy ;* and Locke's general properties of law, in his Treatises on Government, * The eighth book (though published in an imperfect state) compared with his^r* book, *' of the Lawes of Ecchsias- tical Politic:' 10 ON OPINIONS RESPECTING have a view to the English Constitution. The mode of reasoning more insinuating, is that, which appeals to facts in our own history, as it appeals to the pride of a great nation. Of this character were Sir Robert Cotton and Sir Henry Spelman, Milton and Sidney, who as antiquaries and historians, illustrate the principles of the English Constitution. Some writers, whom I call the second class, have thought this way of reasoning too general. Advocates of the same cause, they admit the principles to be metaphysically accurate, the facts historically true. But, in their judgment, these principles cannot be so systematically arranged, nor those facts rendered so producible, consoli- dated, as it were, into any plan of premeditated contrivance, and permanent strength, as to form, what might be called, the regular features, and connected parts, of a well organized body : or, if an organized body, that, like animal bodies, it has received its nourishment, support, and compact- ness, from a variety of substances. They allow, that we have a Constitution, and that it is excel- lent ; but they speak of it as not to be traced to any particular era, nor to any systematic philoso- phical plan of principle. They trace it to an heterogeneous mixture of causes and effects, of principles and facts, of opposite powers, and THE ENGLISH CONSTITUTION. 11 biases, inclining* different ways each struggling' in its turn for victory, and reposing, at length, in peace ; in short, as rising out of jarring interests, of lucky contingencies, and auspicious alliances. Montesquieu himself talks of the English Con- stitution as formed in this manner, and Bishop Hurd follows his track, in his Dialogues on the English Government. What Montesquieu says of our Constitution in reference to a Saxon origin, the writers alluded to affirm, metaphorically, in reference to the uncertain origin, and perturbed progress, of our Constitution ; " That it was formed in the woods." Those writers have been followed by others. They perceived, that writers of opposite interests maintained the same opinions, and appealed to the same facts ; and that men, who had the same leading views, and, sometimes, the same particu- lar interests, were often divided in the application of their common principles. They triumphed : WJiere did your Constitution begin ? and, Where are the principles laid down ? They thought the country not prepared to give a clear and direct answer; and hence they inferred, as we have seen, that England had no Constitution at all. My limits will not allow me to enter on minute distinctions, nor long discussions, now. But I propose in a future paper, to state briefly what I 12 ON OPINIONS RESPECTING conceive to be the fundamental principles of the English Constitution, and to propose a plan for the readiest diffusion of its principles, an expe- dient at all times necessary, and perhaps never more so than now. I cannot, however, be sup- posed to have made any new discoveries. The subject has been discussed a thousand and a thou- sand times : and the plan being" constitutional, will possess nothing", that has not been tried at different periods before. Circumstances, how- ever, may awaken contrivance, and returning evils may incline us to inquire after our natural reme- dies. In adopting the language, What are the fundamental principles of the British Constitu- tion ? I adopt a language, which I think liable to no ambiguity, and which keeps free of the fro- wardness of party. For, though among all of us, many, I suspect, are worked up to our pitch, while we remain without feeling, or knowledge ; our length we go, but our length is not long ; we are mere hand-organs, played upon by others, who are themselves little more than automata ; or we are a piece of clock-work ; w^e move, indeed, and strike the hour, yet only as impelled by our private interests, and passions. But the terms, at least, are admitted into the vocabulary of all the parties in England. THE ENGLISH CONSTITUTION. 13 ESSAY II. ON THE PRINCIPLES OF THE ENGLISH CONSTITUTION. W HEN we contemplate a political constitu- tion, we should have in view, not a baseless fabric, floating only in the imagination of a poet, but a real structure to be brought into use and practice ; imperfect, indeed, it may be, yet, in the main, dur- able; and, though ruinous in part, yet habitable by man ; and a writer may, comparatively, even admire particular parts, without always over- bearing his reader, like a flatterer, or false friend, with the swell of language, and the pomp of praise ; may wish to do homage to the English Constitution with its proudest panegyrists, and even to a constitution, if approved by the people, of less account J convinced, that as a constitution really existing, ought to be a rule to an adminis- tration which exists, so also that an existing 14 ON THE PRINCIPLES OF people should be a light and a law, leadinpf and accommodating-, to their various succeeding ne- cessities, the Constitution itself. Many politicians ground their principles, their opinions of Constitutions, both civil and ecclesi- astical, in the institutions of Moses ; and, when they have applied what is excellent in them to the real service of particular commonwealths, so far from erring greatly, they have acted wisely ; for some excellencies there are in this code that few, if any, nations have ever reached. It has been by identifying, as it were, one nation with another, that the greatest political errors have flowed into Christian states, and deluged com- mon sense. Moses sets out, it is clear, on a claim of a divine command ; and the constitution of his government, therefore, has been called theocrati- cah But, unless men will roundly say, that they are under the same regimen, and in the same sense as Moses said the Jews were, it is by a false logic, as well as a false religion, that they arrive at a conclusion. The divine right of kings, of bishops, of priests, of tithes, and the like, are as- sumptions without any premises, proceeding rather on a principle of identification, than ac- commodation. We need not, therefore, be very curious about the arguuients of such writers : it may, however, be not improper to add, after the 4 THE ENGLISH CONSTITUTION. 15 learned Selden, that, while displaying" a pomp of words about the Jewish manners and laws, they have often exposed their ignorance of them * The basis of the Hebrew Legislature is laid in the ten commandments, Exod. xx. which are often repeated by Moses, as that basis ; and were distinctly written' by him, under that idea, on two tables; and they are often repeated by him : and in Deut. V. with this remarkable testimony added to them : These words the Lord spake unto all the ASSEMBLY in the mount, out of the midst of the fire, of the cloud, and the thick darkness, with a great voice, and he added no more. Here, then, we have the written foundation ; and our Alfred, who was both a wise and a religious prince, has prefixed them to his laws : and he has borrowed some other ideas from the Hebrew code, though, from any thing that appears, rather * Selden's remark primarily applies to the subject of his Treat- ise de Succeasionibus ad Leges Ebraorum, on which subject he shows how grossly ignorant the learned Origen himself was, cvenwhilespeakingof it very triumphantly (in Homiliaxxii. ad Numeros) ; but he adds more generally : alia sunt, de sacrA ill^ republic^, innumera, et maximi sane studiosis aestimanda, quorum latet plane Veritas: nee aliter fieri potest, dum jurisprudentia ejusdem, mores, ritas, sententiae receptae ab ejusdem magistris ad pasleros transmissae, negliguntur. Pro- legomena ad Librum de Successionibus ad Leges Ebraorum in bona De/unctorum, et in Pontijicatum. 16 ON THE PRINCIPLES OF in a way of accommodation than identifica- tion.* Pity, that certain writers, so pregnant with theocratical ideas, which may more properly center in the Hebrews, would not make room for one more, which concerns all commonwealths, which is, that this very theocracy was grounded in the consent of the people! For the assembly here mentioned is nothing less than the assembly of the people, what the Talmud calls, the synagoga magna, the great synagogue ; in short, the whole congregation of the people ; for it was when all Israel were camped before the mount that Moses addressed them. " And Moses came, and called for the elders of the people, and laid before their faces all these words which the Lord commanded him. And all the people answered together, and said. All that the Lord hath spoken we will do. And Moses returned the words of the people unto the Lord." Exod. xix. 7, 8. All this was antecedently to the delivery of the ten commandments. Ch. xx. And it is not till ch. xxiv. V. 12. that we have these remarkable words : And Jehovah said unto Moses, " Come *L1. Anglo-Saxonicae ecclesiasticae et civiles, &c. Wilkins, p. 28. And iu imitation of Alfred, probably, it was, that the author of the Mirroir des Justices began his treatise with setting down the Books of the Old aod New Testament, THE ENGLISH CONSTITUTION. 17 up to me in the mount, and be there : and I will give thee tables of stone, and the laws, and com- mandments (meaning the tencommandmentsjwhich I have written, that thou mayest teach them." Harrington knew the value of this idea, and grounds in it this great fundamental maxim, " but if all, and every one of the laws of Israel, proposed by God, were no otherwise enacted than by covenant with the people, then that only that was resolved by the people of Israel was their law ; and so the result of that commonwealth was in the people.'** Christian assemblies were originally regulated, may I say constituted ? much after the manner of the Jewish synagogues ; this, too, both as to the names of their first oflScers, (presbyters and deacons) their ordinances, or sacraments (admit- ting proselytes by baptisnif breaking of bread, and drinking wine, called the Lord's Supper) and ceremonies, (laying on of hands, Xet^orovix:) and this was all natural enough : for the first Christians had been Jews : ministers, however, very soon became masters, and the people were cyphers ; but should any one doubt whether in the first Christian assemblies their laws or regula- tions, their decrees or constitutions, call them * Oceana, first part of the Preliminary, p. 50, ed. 1700. c 18 ON THE PRINCIPLES OF what we please, were settled by common consent, let them consult the Acts of the Apostles. Yet so it was How violent did some men soon become about faith ! yet how degenerate in their practice ! Moon-struck ideots about orthodoxy ! mere beasts on the subject of liberty ! With re- spect to civil matters, however, without the sanction, the consent of the people, there can be no commonwealth, no free state, nor a proper primi- tive Church* ', nor is a state, therefore, free, be- cause it can shew a Constitution. The former position would be a contradiction in terms; the latter a mere hypothetical dog-ma. Happy that nation which knows its true inte- rest! happier still if it can will what it knows? but happiest of all, if, what it knows and wills, it by experience tries, and adapts to its particular exigency ! Yet are there any ready to affirm, that the English, through a want of precision in the time and means of the formation, and in the primary end and rule of its ordinances, are without a constitution ? Let them survey each production of nature ; let them observe, how much animal life is elicited by silent, gradual process ; what mighty organic movements are carried on by in- visiblesprings; what surprizing effects are wrought IKxXTKrTiX. THE ENGLISH CONSTITUTION. 19 by all the operations of chemistry; effects suc- cessive and slow ; but certain, substantial, and strong. Some of the g-randest productions in the universe, like those lands of Egypt, produced by the slime left from the overflowings of the Nile, have been so formed ; and so may have been, so, indeed, has been formed, be what it may, the English Constitution. But let us not then be rivetted by the charm of words ; let us not be confined by the magic circle of theories : in the regions of common sense, let us search for facts ; where they lead let us follow; where they leave us let us make our stand. It is intended to illustrate this and the preced- ing Essay, in two hereafter to follow, by occasional references to our Anglo-Saxon laws, which began with Ethelbert in 561, the oldest northern writ- ten laws, perhaps, extant, and the Anglo-Norman laws, or those of William the Conqueror ; to the laws of Hoel DDha, or the Good, the Alfred of Wales, of the 10th century ; and to the laws and acts of Parliament made by King James I. and his successors, kings of Scotland ; and to four English writers of great authority. Sir Robert Cotton, Mr. Selden, Nathaniel Bacon, and Sir Henry Spelman. Let it suffice now to collect together, though but cursorily, all that may be called, not, as before observed, without some dis- c 2 20 ON THE PRINCIPLES OF pute, the scattered parts of the British Consti- tution. It does not occur to me, that the ancient writers on government and laws, Plato, Aristotle, Cicero,* had an expression for what moderns mean by a *2ufa- lated) has a reference to the Old Covenant, and a correspon- dence with it, as including a compact between two parties : and, accordingly the famous Richard Baxter, who makes so many nice discriminations on the two Covenants, (in his Aphorisms of Justification) observes of the JNew ; " Mere laws are enacted by sovereignty ; mere covenants are entered into by equals, or persons disengaged to each other in respect of the contents of the covenants, and therefore they require mutual consent. Those, therefore, made by God, are of a mixt nature : neither mere laws, nor mere covenants, but both. He hath enacted his laws as our Sovereign Lord, without waiting for the people's consent, and will punish the breakers, whether they consent or no ; but, as it is a cove- nant, there must be a restipulation from the creature." p. 14. It is clear, at least to my judgment, that the discipline of first Christian churches proceeded on those of a covenant, the several members acting in them with mutual consent, or one mind,* as it is expressed. Their teachers were not their masters, but their ministers f or servants. They were elected with the consent of the church, or assembly of the people ; and their whole oeconomy, of praying, preaching, administer- ing of ordinances, distributing to the necessities of the poor, and appointment of ministers or teachers, was a fellowship, I a union of persons acting on the principles of a Covenant by mutual consent. See Acts, ch, i. v. 15, to the end. Ch. vi. ; Ch. XV. 22. and throughout the Acts : and the custom of choosing their own officers, with the consent of the * O uo$yy,( Jov, -( (iitotoyoi.' THE ENGLISH CONSTITUTION. 23 constitution ; nor does Hooker give a definition of it, though we may easily make one for him from his excellent first book of Ecclesiastical Po- lity ; for he invariably and energetically refers the origin and right of public regimen to compo- sition and common consent:''^ even Harrington, whole Church*, continued the practice with Christians for many years. (This subject I have considered somewhat more largely in the 2d edition of, An Inquiry into the Nature of Subscription to the 39 Articles, p. 374.) And, accord- ingly, that faithful writer, Granville Sharp, considers " the Act of depriving the Clergy and People of the Right of elect- ing their own Bishops, as among i\ie first innovations of Anti- christ." See An Account of the Ancient Division of the Eng- lish Nation into Hundreds and Tithings. p. 63. The observations on Covenants and Constitutions are made primarily in the way of illustration, but, indirectly, may be used as arguments. For certain writers (Mr. Hobbes, too,t) have formed many of tlieir arguments in support of an abso- lute government, that must eventually exclnde the coasent of the people, (however it might originate J) from the writings called the Old and New Testament. * B. 1. 10. This approbation " they give by their own * St/yiuJoxtiirau-Jif waa-r,; rni ixxX>) Thetihuie church or assembly con- stilting. S. dementis, Ep. 1. ad Corinth, sect. 44. f See Hobbes de Cive. Cap. 16. 17. J Mr. Hobbes admits that the beginning of a State is in the consent of the majority ; but that the po'ji;er granted by the citizens is absolute. Ibid. Cap. 5. 6. 24 ON THE PRINCIPLES OF Sidney, and Locke, are defective here, though no men better understood the fundamental laws of society. As they accord in principle, Har- rington shall speak for all three: " The centre and basis of every government, (says this pro- found writer) is no other than the fundamental laws of the same ;*' and again, " as there is a private reason, which is the interest of a private man, so there is that reason, which is the interest of mankind, or the whole ;" and government he calls, after Hooker, " the soul of a nation :" and what he calls the mind and will of a nation is what others mean by a constitution. Machiavel comes near the truth, when he says : "then a city may be called free, and a state pro- nounce itself durable, when founded on good laws and orders at firsts and has not that necessity of good men to maintain it. Of such laws and principles many ancient commonwealths were anciently constituted ; and continued a good while." Of late years the case has been different. Sometimes the word has been used with a covert meaning, and sometimes with one of open, public import. In America and France, all manner of voice, sign, or act, and also when others do it, their name, by right at least, originally derived from ' them,' as in Parlia- ments, Counsels, and the like assemblies." Eccles. Pol. B. 1. THE ENGLISH CONSTITUTION. 25 changes were rang on the word ; all manner of experiments made with Constitutions ; and in England, so common has been the word, that what should always be connected with public feeling, has at length been drawn into the vortex of private interest; till the word has passed into a party word, if not into one of no meaning. To come then near our own time : " To con- stitute," Dr. Johnson defines, ** to give formal existence," ''to make any thing what it is :" and a Constitution he defines, " an established form of government, a system of laws and customs." According to Mr. Thomas Paine, a Constitution is a " thing antecedent to government and laws, the political bible of a state." " British civil constitution," says Mr. Robert Robinson, " is a phrase expressive, first, of a constitution of rights, native and inherent in the inhabitants of this kingdom, and in all mankind ; next, of a body of laws peculiar to this kingdom ; and lastly, of a form of making and executing those laws, by King, Lords, and Commons."* This definition describes neatly what Judge Blackstone has dis- cussed much at large ; though our lawyers are sometimes in the habit of making the body of our laws answer the purpose of a definition, as parti- cularly Lord Fortescue in a Preface to his Re- * Political Catechism. 26 ON THE PRINCIPLES OF cords; and hence among" them the observation, that onr constitution is in our statutes. Major Cartwright, in similar language, defines the British Constitution, " a form of polity, by which the nation has consented to be governed, including" a legislature of King, Lords, and Com- mons, and real representatives of the Commons, as well as trial by jury, together with those prin- ciples, on which justice and liberty depend." But the British Constitution, though, as will hereafter appear, I do not wish to concede to the Church any undue weight or influence, should be also considered in its extended sense, as a con- stitution in church and state*. The people of England and the Church of England, according- to our professed advocates for the ecclesiastical establishment. Hooker and Warburton, " are one and the same people ;'* an inaccurate idea, as afact^ though not more so than some things ad- vanced about the civil constitution : but it has given birth to another definition of the English Constitution ; according to which, " civil and ecclesiastical polity is described as a strong arch of government rising from different foundations, but bending towards each other as they rise, and meeting in the centre ;" a definition of Mr. Ro- * See the beginning of the Postscript. THE ENGLISH CONSTITUTION. 27 therham's, a writer on establishments ; and, ac- cordingly, some have represented the English Constitution consisting- of a king and three estates, under the similitude of an equilateral triangle, that is, a triangle of three equal sides, with a crown at the top. In the describing of this Constitution, the word fundamental, which occasionally will be used, is of great concern ; it must, at least be understood on all those occasions to possess a meaning signi- ficant and full. A power may be admitted into a government, which is yet not essential and funda- mental in the Constitution. Some have written, as if thinking, that the Church of England ^was an essential part of the English Constitution, ac- cording to the idea just laid down ; and from hasty opinions on the claims of an established church, they have proceeded in a way, both towards Ca- tholics, and Protestant-Dissenters, erroneous in true policy, and full of prejudices and mistakes. This, at least, we should never forget, that, if the Church of England is fundamental, because it is established, so must have been the Romish Church long beiore, the rights of which are provided for by Magna Charta. The English government should protect both alike ; it should protect all, as a shield to the weak, not as a swoid to the 28 ON THE PRINCIPLES OF strong. As to the fundamentals, or the first prin- ciples of its constitution, they existed before either the Protestant or the Catholic religion was esta- blished here ; nor is either essential to the Con- stitution, though both have been occasionally in- troduced, and though both obtained the supreme sanction of the laws. The inhabitants of this island were Papists, before they were Protestants; before they were Papists, they were Christians, and had churches ; and before they were Chris- tians, they were Britons, and had a Constitution : just as to a building something may be added, which entered not into the original composition of the fabric*. Concerning the state of things before Christianity, see Gildas de Excidio Brit, and Bede (Hist. Eccles. lib. ii.) and Spelmanni Concil. Brit. torn. i. But we have no guide in ascertaining the wars and civil distractions between the Sax- ons and Britons, but the Saxon Chronicle : in Gildas, there is little more than a doleful lamentation, in obscure style, on the depraved state of the Britons, in his time. Bede's History is the only one that is to be considered as giving any account of the Britons and Saxons, in a way of narrative, and that strangely mixt up with the idlest legends, and false miracles : the latter part is barren of every thing, and, besides, not to be reconciled to the Saxon Chronicle. " In Gilda, in Beda, frustra illorum Historia quaeritur: ita ut Chronico Saxonico debeamus, quod aliqua illorum teraponim notitia ad nostram tatem pervenerit." Prefat. ad Chron. Saxon. Gibson. The THE ENGLISH CONSTITUTION. 29 The truth on this subject is, that as we had a constitution, or fundamental rules for government, in this island before any Christian church existed among us, we should continue to have one, were no Christian church to remain. It is the pro- vince of constitutions, to be the guardians and friends of all the community alike, to be able to answer all the varying wants of place and time, such more particularly as arise from religion, in the same manner as we vary our dress, when we advance in years, or as the skin distends, and is strengthened, with the growth of our bodies. As fundamentals should be a rule to laws, so may laws be made quite contrary to fundamen- tals, and that are a violation of a constitution: as in architecture one part of a building may not harmonize with another, or as a picture may be so disposed in its parts, as to have no repose. Trial by a jury of our peers must be allowed, and is allowed by all, however, and whenever first acquired, to be a fundamental now in the Eng- lish Constitution. The privileges of either house of parliament, whatever may be said for or against subsequent Monkish writers contain little more, than what they gleaned from Bede and the Saxon Chronicle, except what they superadded of their own inventions : in these they are sometimes not unfertile, but they are of little authority. We must, therefore, be contented with seizing the general features of the characters of those times. 30 ON THE PRINCIPLES OF their existence, depend on, at least should har- monize with, the common law, or statute law. Precedents may certainly, in the question about privileges, be produced on one side i^iving sanc- tion to a claim, and on the other, destroying- that claim. This has lately been done. How, then, shall we settle the dispute ? The proper way, is, to refer it to fundamentals, as laws themselves are, according to the principle of Chap. II. of the Confirmation of the Charters of the Liberties of England and of the Forest, made in the 35th year of Edward I. " And we will, that if any judg- ment be given from henceforth contrary to the points of the charters aforesaid, it shall be undone and holden for nought." Precedents, if bad, are the cobwebs in a tem- ple, which should be svi'ept away ; laws, injurious or unmeaning, the cabala of superstitious and dark ages, the lumber of the place, over which people are liable to stumble and fall, should be repealed or set aside ; but fundamentals are the sacred fire, which should be left always burning on the altar. Fundamentals in a constitution are a rule for governments, and influential in the whole politi- cal system. Statutes, too, sanctioned, and repeat- edly confirmed, on constitutional principles, gra- dually become a part of the constitution itself. THE ENGLISH CONSTITUTION. 31 A fundamental is, in short, the sap which springs from the root, rises in the trunk, and is transfused throusfh all the ramifications of the tree ; the vital principle, which, in animal life, flows in the blood, and operates on all the humours and muscles, the solids and veins ; the basis, and buttresses, and rafters, on which the building" is raised, or from which it derives all its consistency and strength. It is on this subject I consider William Penn as having" written so well. In speaking of a human body, we say, a man is of a good or bad constitution, in reference to that temperature, wiiich has a tendency to pre- serve health, and vigour, or which inclines to feebleness, disease, and sickness ; though a good constitution may be impaired by sloth, and ruined by intemperance ; while a bad one may be im- proved by exercise, and invigorated by sobriety and good regimen : the same in a political con- stitution of a nation. To be more particular. As men, we have a natural claim to existence, to liberty, to religion, to whatever comes under the denomination of personal rights ; as members of a civil society, to frame the laws by which those rights are to be administered, and to share the power, by which those laws are made : and on these principles are grounded, as we have just now observed, our 32 ON THE PRINCIPLES OF present claims to parliaments and juries, tlie proudest and paramount claims in an Eng-lish- man's birth-rig-ht : and this is the ground taken by Mr. Locke, in his Two Treatises of Civil Government f against Sir Robert Filiner, as the foundation of government, of the English govern- ment, as settled at the Revolution. To be still more particular. There are three forms of civil polity, (of which that is the least lawful and natural, which Mr. Ilobbes and Sir Robert Filmer pronounce most so); the first, where the state is governed by one man ; the se- cond, when by a few, supposed to be the best; the third, when it is said to rest with the people. By some ancients, there was conceived a transcendent form, possessing an union of the excellencies of all, without the defects of either, or, in which all the good qualities, and all the bad, should be so intermixed, as by a sublime species of alchymy, to be transmuted into gold : with them, indeed, ideal, pleasing to talk about, like the music of the spheres, though no where to be heard; and sup- posed to be unattainable in fact, like perfection in man. Aristotle* thought a polity mixed of many was the best. * Ilf^t XloXnixuVf lib. i. cap. vi. THE ENGLISH CONSTITUTION. 33 Machiavel observes, " there never was, nor is at this day, any government in the world, by which one man has rule and dominion, but it is either a commonwealth or a monarchy y The English, and the admirers of the Eng- lish Constitution, lay claim both to the theory and reality of that wonder of antiquity, a constitution, which, they say, unites, as in the links of a chain, the power of monarchy, the wisdom of aristocracy, and the virtue of democracy : this has been called a free monarchy, and proclaimed, whether truly or not, the most excellent form of government in the world. And thus much for general obser- vation. Of the three powers or estates in the English Constitution, the first is the King : he, in a cer- tain sense, has no superior. Ipse non debet esse sub homine, says Bracton, sed sub Deo, et habet Deum tantumsuperiorem judicem. *' He ought not to be under man, but under God, and has God only for his superior judge." I introduce the above passage, for the sake of Sir Robert Cotton's exposition : " The Queen or King of England's power is absolute, in acknow- ledging no superior, nor in vassalage to Pope or Emperor. For that subjection which by King John was made to Innocentius III., after in parliament, per praeceptum Domini Papee sep- 34 ON THE PRINCIPLES OF timo Julii, cum fidelitate et homagio, relaxatur omnino*." Indeed, the Koman Church, in regard to the King of England, never could produce a deed of subjection to the Pontiff, nor could a King of England grant one without his people. So that among the kingdoms feudatory to the Pope, Eng- land was never named. Neither were the Peters- pence, nor the Rome-scot, ever considered as tri- butes of vassalage, but, as the same Sir Robert Cotton observes, they were alms from the king, eleemosyna regis. Our English Bishops, too, have done them- selves ample justice on this subject, and confuted the idle pretensions of Parsons the Jesuit, and other papists, who maintaining, in nonsensical language, that St. Peter was the first Roman Pon- tiff, have added, that he first founded the Eng- lish church, and, of course, that the English church was subject to the successor of St. Peter. In opposition to the testimonies of Parsons, and his novel authorities, they have cut the matter short, supported herein by Baronius f himself, in shewing, that Peter never was in England. * A Brief Abstract of the Case of Precedency. Cottoni Posthuma, p. 78. + Sicut in aliis multis ibi a se positis errare Metaphrastem crtum est, ita et his hallucinatum esse constat. Annal, THE ENGLISH CONSTITUTION. 35 But, though the office of king is of such high consideration, he is still liable to be called from his towering eminence ; for it is but a trust, or power deputed in behalf of the whole community. This idea alone it is which gives it a peculiar sacredness, with true Englishmen, though in arbitrary times, that sacredness has been spoken of as inherent, or as transfused into it, like holy oil from Heaven itself*. The word kynig, kyninc, kyning, kyng (for the word is spelt differently in different places), is Saxon f, and means, one endowed either with Ecdes. torn. i. anno Christi 44. Vide Episcop. Godwin, de Praesulibus Angliae, cap. 1. * It is remarkable, that as the kings of Europe have been accustomed to be anointed with oil, as though to raise them to a different order of beings from their fellow-men, some Indian chiefs have been used, at their inauguration, to have tobacco blown up their nostrils by the priest, while deliver- ing these words, " Receive the Spirit of Smoke." See JBul- lenger sur I'Origine et Progres de Despotisme. f Lye's Saxon Dictionary: Kyng, expresses quality, one eminently valiant ; for the Saxons, when in their own country, chose valiant men to lead them into foreign countries, and appointed them to govern the conquer- ed territories. Hence, Verstegan pertinently remarks, *' This being the title of the chief of all, expresseth him the most apparent in courage or valour. And certaine it is, that the kings of most nations were in the beginning elected and chosen by the people to raigne over them, in regard of the D 2 36 ON THE PRINCIPLES OF wisdom or valour. Kunnan means to know, and Itunning, experience ; and again, kun (sometimes written kyn) means stoutf or valiant. In different countries, the word has been applied to different officers. Plato and Aristotle supposed, that kings were the first sort of governors. Sometimes king means an emperor, monarch, or despot, one who gives law, or whose will is law, in whom resides the whole power of the state. Among the ancient Spartans, the supreme ma- gistrate was styled jSao-tAiu?, or king ; at Athens, the second archon was so called, though he pos- sessed but limited authority. Now, in England, though in arbitrary times the king has taken the laws into his own hands, becoming a king or monarch in the odious sense of the word, it means one who yoverns by law* ; and from the greatnesse of their courage, valour, and strength, as being best able to defend and governe them. And, as Olaus Mag- nus writeth (libro 8.), it was an ancient custome in the septen- trionall regions, that such young noblemen or gentlemen as gave greatest proofe of their singular valour, were by these country kings adopted to be their sonnes; yea, and to succeed in the crowne after them, if their own sonnes were not found to have in them such great valour as in them was expected*." * Fortescue, de Laudibus Legum Angliae, cap. 36. 37. * A TteUitut'wn of Decayed InUlligencts, Of our undent Englith Titlet of Honour, t^cp. 314. THE ENGLISH CONSTITUTION. 37 earliest times, according- to Tacitus, Caesar, and Dion, Britain was in possession of such king's, and the people were free. He differs, therefore, somewhat from Machiavel's ** one man, who has dominion or rule over another ;" or, as Bullenger still more forcibly expresses it, " a detestable Constitution, where one makes the whole ; and the whole is nothing ;" for with us, the office not only partakes of the nature of a contract, it is a contract in form, and confirmed by an oath. Thus it was in the Saxon times ; and the form of the oath may be seen in Bracton. William himself, called the Conqueror, in a council of his barons, heard the English laws repeated, and swore on the altar to conduct himself towards the English as a good king ought to do in all respects* ; as may be seen in Wilkins^s Anglo- Saxon Laws, and Laws of King William. That William perjured himself, shews only his power and want of principle, not his right Thus it continued under our most arbitrai'y princes, as may be seen in the old abridgment of the Sta- tutes set out in the reign of Harry VIII ; so it was settled when the Bill of Rights was obtain- ed under Charles II ; so it continued when the succession was altered at the Revolution and even Mr. Burke, who (in his Reflections on the * Selden's English Janus, p. 49. b. 2. c. 1. 301098 38 ON THE PRINCIPLES OF French Revolution) with so much adroitness and zeal maintains the hereditary claims of the King of England, does in fact, and full form, concede the principle here contended for And this is the period, at which some now date, like the time of a ship's peaceful arrival in port, after conflicting with many a storm, the peaceful, the settled, and the glorious epoch of the English Constitution. Writers speak of our king as the executive magistrate : and so he is. For though the people are the primary source of all power, both legisla- tive and executive, the original sovereign power, the true and only essential majesty ; yet, in the exercise of all executive power, through all the departments of the church, the law, the army, and the navy, all power flows, through so many channels, as from the fons potestatis, me- diately or immediately, from the king. He ap- points his counsellors and ministers, magistrates and ambassadors ; possesses the power of life and death, in pardoning criminals, or in sealing their doom ; in cases of common law, there lies, in the last case, an appeal to him ; he grants honours, and he obtains homage ; it is his province to re- gulate, though not alter, the coin*, to denounce * Sir R. Cotton's Posthuma, p. 285. Baron Spanheim observes of the Roman mint ; Ne enim Plures (Medaglioni) 6 THE ENGLISH CONSTITUTION. 39 war, and decree peace. When all these jura majestatis, " these rights of majesty," are consi- dered, and finally, when it is recollected that with him rests the entire power of a negative on every law, when these circumstances are all fully weighed, we must conclude, in the forcible language of Mr. Burke, " that a king of Eng- land is a real king*;" ruling, however, by Law. It has been thought that the office of chief executive magistrate in a country should be hereditary. So it is now in England, though it was not so always with our ancestorsf, the Saxons ; and so essential to our government has even the name been accounted, that a deputa- B.oinas cuderentur obstltisse videtur Senatus, cui cereae mo- netae potestas, velut antiquse libertatis umbra, relicta fuerat. Numismata Imperatorum Romanorum. He is speaking of the time of the XII Caesars. * On the French Revolution. t Sax. Chron. per Gibson, p. 148. which was, usually, from, descent through election, in the true sense of those words ; or from and through election only : but election was always implied : the ground of election was commonly laid in valour or wisdom, as before observed, as amoug the an- cient Egyptians, by whom their kings were always taken from among the soldiery or the priests ; from the former, on account of valour, from the latter, on account of wisdom. When the choice fell on a soldier, he was immediately made a priest. Plutarchi Tli^i loiSoq x(x,i Ocri^iSoq. 9. Among the Saxons, (and sometimes after the Conquest) every thing like hereditary succession was often set aside. 40 ON THE PRINCIPLES OP tion was appointed to offer the title to Cromwell himself. But though the office is now hereditary, and considered so essential, yet being only a trust, it, by its very nature, is both responsible and reverti- hle. When the compact betwixt king and peo- ple is violated, recurrence may be made to the na- tion's last resource, to fundamental principles : and the people of England have, in more instances than one, asserted their right ; they beheaded a king *, and they altered the succession. And thus much for a King of England, the first estate in our Constitution. The House of Peers is the second estate of the High Court of Parliament. Milton (in his Defence of the People of Eng- land) observes, after the author of. Modus tenendi Parliamenta, that " kings held parliaments and * Charles may justly be called a tyrant, for he assumed the right to direct and manage a Parliament at his own plea- sure, and at length to govern without one. He was not an English king; he therefore deserved to suffer, though his sen- tence was unjust, the army being no proper, legal authority. But, " How great the distemper of that government was, " which endangered so great a disease ! How great the ma- " lignity of that disease to which a Parliament was not a suf- " ficient remedy !" May's Causes and Beginnings of the Civil Wars in England, as published in Parti, of Baron Mantes^ Historical Tracts. THE ENGLISH CONSTITUTION. 41 councils with their people, even before bishops and lords were made ; and, in general, he spake truly, if by lords he understood, as he did, modern dukes, modern marquisses, viscounts, and such merely hereditary names. For anciently, dignity was connected with duty, and distinctions of name were titles of office both in France, and this country, (though the Saxons had also hereditary distinctions*.) The heretoca among the Sax- ons f, corresponding to the French duke, the dux among the Romans, was, the leader of an army. The ancient office of marquis, co-existing in the ancient duke, was to guard the marches or limits of the kingdom ; and earl, (originally from the Saxon car, termed in composition ear-elhel, abridged, eareU earle^ written by the Danes, eorle, honourable^,) or shire-man, or coMwEPECT1S IN in the main, as we have elsewhere shewn, by their old Saxon Laws ; and the above little tour has been made for the purpose of returning* with a better grace to Mr. Paine's definition, which, comprehending such only as the American Con- stitutions, led him on to proclaim aloud, to the astonishment of many, that the English have none. But Mr. Paine's declaration should be exchanged for a modification, thus : The Eng- lish have a Constitution ; the principles of which are not always either readily seen, nor generally admitted the privileges of which are frequently matter of dispute and doubt : its checks often the cause of jealousies and divisions partaking' the nature rather of irritations, sometimes salu- tary, and often pernicious, more than of regular scientific movements ; and the political liberty of which Constitution, in short, must be often nugatory, the representation of the people being evasive, ineflfective, and precarious ; a decla- ration this, which, leaving us under the impu- tation of great defect-, will be considered as humiliating ; but which still leaves room for the counter declaration, and for that reason I have run over our Jura Libertatis, that the English Constitution, after all, possesses much that is Sfood. Let us return to our defects. THE ENGLISH CONSTITUTION. 85 I have said, the English Constitution is defec- tive in political liberty. Then a nation enjoys political liberty", when it possesses, by a proper organization of political powers, the means of expressing the public sen- timent and will, and a controul over its officers or governors by some regular plan of respon- sibility. " One nation there is," says Montes- quieu, speaking of the English, " that has poli- tical liberty for the direct object of the Constitu- tion:" that is its excellence. If we consider that representation is the only true measure of political liberty, and acquaint ourselves with its nature and extent in this country, we shall possess the true barometer for ascertaining our quantum of political liberty, and be prepared to understand the import of Montes- quieu's philosophical, freezing pause, Ce n'est point a moi a examiner, si les Anglois jonissent ac- tuellement de cette liberte*; i. e. " It is not my business to examine, whether the English actually enjoy this liberty." Such, however, has been the aim of the author of *' Lectures on Montesquieu's Spirit of Laws," who, though admitting that the people of this country enjoy many advantages, as citizens, over other nations, yet proceeds to * De L'Espirit des Loix, 86 DEFECTS IN shew, that even they are defective in political liberty: and till this defect is remedied in a country, it would be too extemporaneous an im- pulse, an extravagant, thoughtless flight, which should hurry us away with Pope, For forms of government let fools contest. That which is best adniinister'd, is best. Monarchies, and aristocracies, in their nature, refer all political power to one or more grandees. Aristotle and Xenophon* in their systems have no political liberty for the people. Plato, in his republic, mistook the way (this is well shewn by Aristotlef), through conceits about equality in wives, children, servants, cattle, and money. He was also for banishing poetry, and all the arts which employ fiction ; and he encroached in some other instances on intellec- tual liberty. Such an equality never ought, never could be obtained. Political liberty is the only equality, at which a nation should aim. Constitutions founded on the basis of political liberty would provide for and secure, what none other can, gaudy or simple, the public happi- ness. A nation may certainly adopt what form * Ku^ naitT, Lib. I. t De Repub. Lib. IL ch. v. THE ENGLISH CONSTITUTION. 87 of government it best approves ; but without po- litical liberty it has no security for a good admini- stration of government; it is playing at random, the cast of a die, a mere movement of the wheel of fortune, in the event of which, public misery has full as great a chance to turn up as public happi- ness. In our political system, then, call it what we please, here lies our first, our radical defect, it is defective in political liberty, and therefore is not in harmony with the great principles already laid down. In the Saxon times, there was more of this ba- lance, and therefore, through the Wittena-gemots, but still more their Folk-motes, the different powers of the government, more particularly in matters of civil jurisdiction, police, and self defence, had more of their just equilibrium, than in any other period of our history. From the time of the conquest, there has been less of this balance, and the people's liberties have, in proportion, had less security. William, though bound by an oath, yet how soon did he burst that feeble restraint! How soon his successors, Wil- liam Rufus, Henry I., Stephen, and Richard ! And though John was forced to his recollections, and we got Magna Charta; yet, did not both he and his successor, Henry III., easily violate char- ters, and cancel all obligations? When there was 88 DEFECTS IN SO little political liberty, whence was there to be expected security? In all contentions, from those times to the present, when we complain that our liberties are gone, this defect, if we examine the matter to the bottom, will be found the real cause: a defect altogether irremediable, I fear, to any great extent, but by a more proper representation of the people than we have ever yet had. Johnson (I allude to his Dictionary) is often as futile in his definitions, as he is erroneous in his etymologies; and here his definition, whether bungling or artful, let others determine, leaves no provision for a grain of political liberty. Princes, circumstanced as those just mentioned, will be al- ways ready with their " lingua juravi, mentem injuratam teneo;" and the most mortifying part of the story is, that the citizens themselves are usually made the instruments of their own op- pressions: for, as Machiavel well observes," A town that has been anciently free, cannot be more easily kept in subjection than by employing its own citizens*." With *' the blessed name of liberty" in their mouths, they lose sight of the reality. But let us proceed to another article. Some of the Eastern nations addressed their monarchs with the titles of divinity, and ap- * Thi Prince, ch. 5. THE ENGLISH CONSTITUTION. 89 proached them with adoration ; and Robert Barclay, a person much attached to the Enghsh limited monarchy, as was also William Penn in the name of a religious, Voltaire calls them a philosophical sect observes, as to " that title of majesty^ usually ascribed to princes, we do not find it given to any such in the Holy Scriptures, but that it is specially and peculiarly given to God." He adds, " therefore, in all the old com- pellations used to princes in the Old Testament, it is not to be found, nor yet in the New*." He might have said, also, in the writings of the most enlightened nations of antiquity, the Greeks and Romans. Among the latter, their princes and magistrates were content in the best days of their empire with titles appropriate to their offices; in a degenerate period, they became gods ; in the same manner as in the rise, and amidst the glories of their empire, their coins were of the most exquisite workmanship, but became base, and badly executed, in its decline and fall. The title of Sacred Majesty ^ which the Quak- ers used to object to so much, might be suffered to pass, in these enlightened times, as a mere title of courtesy, and unconnected with any con- stitutional claim, had it not been much abused, * Barclay's Apology for the Quakers. 90 DEFECTS IN and not merely to the purposes of superstition, but of arbitrary power, I mean by such writers as Fihner and others, who assert for the Kings of England a dixnne right ; and, considering them as the Lord's anointed, and the vicegerents of heaven, claimed for them unlawful privileges, pernicious exemptions, and unconstitutional au- thorities. Who can help smiling to see such a man as Sir Robert Cotton (a great advocate for the Commons, in opposition to the unconstitu- tional claims of the Lords), asserting the pre- cedency of the Kings of England over those of Spain, write such a passage as this : " The Kings of England are anointed as the Kings of France, who only have their pretensions over other kingdoms derived from miracles, in the cure of the regius morbus, which they can effect only, and that of antiquity; for Edward the Confessor healed many*." Who, without a smile, can see such a man as Lord Bacon plac- ing James the First only next to Jesus Christ f, whom he would have spoken of as a deity, and * A Brief Extract of the Question of Precedency between England and Spain, in Cottoni Posthuma. t Lord Bacon's Advancement of Learning, in the Intro- duction ; and in the course of his work, he speaks of witch- craft. THE ENGLISH CONSTITUTION. 91 conceiving', or rather affecting to conceive, some- thing* occult in magic and witchcraft, because his Majesty had written a Treatise on Witchcraft ? The unconstitutional doctrine of divine right was the talisman which was to effect the dor- mant state of passive obedience; and who knows not what an abuse of our Constitution that intro- duced, by placing the King above Law, and what a struggle it occasioned to break the delu- sion ? This base language, these slavish prac- tices, breathe the spirit of Eastern governments, all tyrannies, yet all claiming to be emanations from the Divinity. But all this by the bye. In the kingly office, as exercised in the Eng- lish Constitution, are still united, diiectly or in- directly, the whole executive government, and one-third of the legislative. This was shewn in the last Essay : and to some this appears its prime excellence ; to others it may seem a radi- cal defect, or, perhaps, rather its excess. How is this, they may ask, to be reconciled to that admired maxim of our civil polity, that the executive and legislative should be distinct ? Politicians have perceived the difficulty; and they have provided, as they suppose, against it, by saying that the important negative, the essen- tial to a third estate, is seldom enforced. True ; it would be dangerous to enforce it : might not 6 92 DEFECTS IN this circumsiance create a suspicion, in some minds, that it ought not to exist? But, does not the supreme magistrate know he has a constitutional claim to this neofative ? And while perceiving' the expediency, even the neces- sity, of conceding a claim, given him by the Con- stitution, may he not be tempted to use a power Mhich the Constitution gives him not, that of controlling or of influencing the other estates of the legislature? May he not, even with some plausibility, plead conscience for using this influ- ence ? Some, perhaps, may be prepared, though unwillingly, to think, that in this power thus ex- ercised, they have a key to the solution of that well-known maxim, " that corruption is essential to the English Constitution." And those who know the nature and extent of the executive power, need not be told, how immense its re- sources are for recovering by influence what it relinquishes from prudence. We have been witnesses in our own time of two remarkable instances, in which the union of the executive and legislative power has been felt as a difficulty, almost insuperable. I allude to the suspension, through the unfortunate malady of the King, of the executive power, as it was said, but, in fact, was it not a suspension of the whole legislative power too? Could a single law be THE ENGLISH CONSTITUTION. 03 made ? The g"overnment, as one forcibly expresses it, was paralyzed : what contradictory opinions were advanced ! what vasfiie, uncertain conclu- sions drawn ! and, after all, what unconstitutional means devised to keep the machine of the Con- stitution in any sort of motion ! A man may perceive, or think he perceives, something incongruous in this system, without any thing- resembling dislike to the mixture of the three powers, even with a hearty approba- tion of the kingly office. But what bethinks not necessary for any just purpose of favour, aggran- dizement, or self-protection, may appear an ex- cess of power, and therefore a defect in a Consti- tution. I know what is accustomed to be said on this subject. I know how dextrous some are in managing the balance. Those who object to the union of the executive and legislative power in the person of the Supreme Magistrate, would have similar, if not stronger, objections to the admission of his Ministers into Parliament. They are part of the executive power. They are the channels through which corruption must flow., if it has a tendency to flow, from the Fons Potestatis, the Supreme Magis- trate : they may be responsible; but with their in- fluence responsibility will be but a name ; it com- ports not with the principle openly avowed in 94 DEFECTS IN Magna Charta, which provides, that certain offi- cers should hold no pleas of the Crown ; evi- dently, because they are supposed to be necessa- rily under influence. The supreme magistracy of the Saxons, like that of the ancient Germans *, rested, ultimately, on elective principles, though suffered often to be hereditary in practice. Thus it continued till the Conquest. Without dwelling on any particular period, suffice it to say, that the supreme magis- tracy in this country is now hereditary in a par- ticular family, but still subject to stipulations, and conducted on elective principles. The old doctrine of divine indefeasible right is gone by, to the bats and moles ; and an hereditary govern- ment, thus circumstanced, is understood to be the strength and stay of the English Government. But it has been doubted by some, whether what may be the strength and stay of the supreme magistracy, may be required in any other part of the state, either for the purpose of office or dig- nity, or for the interest and stay of particular families. Sufficient provision seems to be made for all these in office itself, in the means of distinction and favour, always in the hands of a * Principes ex nobilitate sumunt. Tacitus de Mos. Germ, The word sumo occurs in Tacitus in the sense of to choose. THE ENGLISH CONSTITUTION. 95 vast executive power, in the power of amassing property by men in offices, and in the influence which high office always affords for promoting the interests of particular families throughout the country. Great evils may perhaps be conceived by some in this hereditary part of our system. It is said, however, by others, amidst some ac- knowledged evils, to be the Corinthian capital of our political system ; and, admired as this pro- vision seems to be by the practice of all Europe, I shall, with due submission and respect, pass it; just observing, that among our Saxon ancestors, the Ealdorman and Earl, that is, the first officers in the kingdom, were liable to lose their dignity, both civil and military, and a Ceorl might arrive at it. The greater Kings or Thanes indeed, might be born so, and the title was attached to landed property ; (there were greater and lesser Thanes) but the rank of Thane was not exclu- sive; the most humble person might attain it, and the highest dignitary might lose it. The Adelings, or iEthelings*, were nobles of royal race, but even these, so high in rank, were liable to be set aside. It has been already observed, in reference to some definitions of the English Constitution, that * See Spclman. Glossar. sub Voce Adelingus. 96 BEFECTS IN the Church also is a part. The Church is inter- woven with it in all our Saxon laws ; the Councils of the Church and the Sovereign's power go hand in hand*; and, as Sir Robert Cotton has ob- served, ** there is a successive record of Councils, or Convocations, less interrupted than of Parlia- ments;" and its civil rights, thou;rh not its doc- trines, were provided for by Magna Charta. The same theory also occurs in Hywel Dda's Laws ; the Km(/, and Laics, and Scho las tics y who, as appears from another place, were Clergy, met in one place, to frame Laws or Constitutions ; the latter, the Scholastics, for the express pur- pose, '* that nothing should be established that was contrary to the Sacred Scriptures f." The same theory also occurs in the *' Lawes and Actes of Parliament maid by King James I. and his Successours Kinges of Scotland :" a':.:ording to which, not only were the Prelates to appear per- sonally in Parliament J, but the " aulde privi- leges and freedomeof Ilalie Kirk was preserved, and the Civil power and Halie Kirk united anent * See an Answer to certain Argunienls, raised from sup- posed antiquity, and urged by some Members of the Lower House of Parliament, to prove that Ecclesiastical Laws ought to be enacted by temporal men. Coltoni Posthuma. t Leges Wallicae, p. 7. \ Third Parliament, p. 52. \ First Parliament, p. 1. THE ENGLISH CONSTITUTION. 97 (against) Hereticqnes, and to support and help HalieKirk*." At the Reformation, through our separation from the Church of Rome, the union of Church and State became more close : under the Roman Pontiff, as Nathaniel Bacon or Selden expresses it, " the foundation was neither on the rock nor on g-ood ground, but by a gin screwed to the Ro- man Consistory t^" By our separation from the Roman Church, this gin was actually screwed to the state. The King became, in regard to the Church, the Seigneur Souverain ; and, if we consider the origin and progress of our Na- tional Church, it will be found to rest partly on the authority of Princes, and partly on our Par- liaments ; and that the whole Constitution of the Church may now, in fact, be considered as so many Acts of Parliaments, or rather, perhaps, as one great Act of Parliament. There are those who consider this union of Church and State as a most excellent part of our Constitution. Others consider it as one of our greatest defects. You cannot form this union, say they, without disuniting all parties : you can- not form it, without something of a spirit of per- * Second Parliament, p. 28. t Hist, and Political Discourse of the Laws and Govern- ment of England, Part I. ch, xv. H 9S EFECTS IN sedition : and the history of all Non-conformists, whether Presbyterians, Independents, Baptists, Quakers, Methodists, or Jews, they say, affords proof of it. It does not, say they, depend on the present Clergy; they may be able, generous, mild, and enlightened men : but in the Constitution, and they trace all the evils of Test-laws, exclusive privileges, and such like dividing matters, to this system. But, though this is certainly a part of our Con- stitution, it may, at least, be doubted whether it is the best part of it ; nor does it seem to be an essential in it: if the Church is a fundamental part of our Constitution, we had no right to dis- unite it from Rome : for the union with Rome made part of our Constitution before ; and a sys- tem of exclusive privileges cannot be made to harmonize with the amiable spirit of our Civil Constitution, with any thing great in Magna Charta, or that is free, and generous, and manly, in the enlightened mind of a true English- man. France, amidst the many bad lessons she had taught Europe, had taught them one that was wise, how to unite an Established Church with a complete (not Toleration in her Concordat she reprobated the word) Liberty , at least with an admission of all the citizens to the enjoyment of THE ENGLISH CONSTITUTION. 99 the common rights of citizens, yet with all due reg-ard to the true interest of an Established Church. France ffives us still the same lesson. Thus have I, amidst great admiration of what is excellent in our Constitution (and there is cer- tainly much excellence in our fundamentals and Common Law : our Parliaments and our Juries ought to be mo*f excellent) pointed out, 1 hope, with all due humility, what appear to me some of its defects. I have not gone half so far on some points as Andrew Home, the author of the " Mirrour of Justices," mentioned before. But Home has not entered on the topics that are the principal subject of this Essay. In his chap- ter " De Abusion," he enumerates one hundred fifty-five abuses of the Common Law, and sub- joins " et autres Abusions," S^c. His next chap- ter invades even our GREAT CHARTER, " Les Defautes de la Grand Charter;" to which he devotes eight or nine pages. These defaults relate to what more particularly concerned those times. But two defects in it (if we are to consi- der that as a Constitution) I shall beg leave to mention, as unnoticed by him. It makes no provision for Political Liberty, in the sense laid down in this Essay, nor for Councils (now Par- liaments), though it was given in one. In what has been here delivered, I have, on H 2 100 BEFtlCTS IN some points, spoken rather covertly, than openly; and indeed of the evils themselves, prominent enough as effects, the causes much retire : as we see the tops of a building-, while the foundation is out of sight, or the leaves of a plant, while the seed and the sap lie concealed. Still though of the evils of life, no less than of its blessings, the sources are often secret, it may be proper and useful to be aware of them, and whatever knowledge we at- tain, may be made a part of our practical philo- sophy : on the one hand, men may be guarded against misdirected, fruitless inquiries, and vio- lent conclusions, nugatory experiments, and mis- placed expectations ; wrong conclusions, and too serious disappointments * : and, on the other, (for the public good should be the rule of all governments, and the desire of all good citizens) they may be led to keep their better feelings alive, to consider their benevolent affections not merely as a private stock, to be drawn upon only by their families and friends, but as a sort, of public fund to consider that no man is so pri- * It is most seriously observed by Milton ' that if it be " a high point of wisdom in every private man, much more " is it in a nation, to know itself; rather than pufied up with " vulgar flatteries and encomiums, for want of self-knovr- " ledge, to enterprise rashly, and come olF miserably in " great undertakings." Hist, of Britain, 3d Book. THE ENGLISH CONSTITUTION. 101 vate as not to have his post of duty so independ- ent as to be beneath it, so great, as to be above it, to know the weakness of our g-overnment as well as its strength. In the above sketch, I have but glanced at many defects our representation, which has been called mwrepresentation our modes of po- pular election, called by some w/ipopular, the people having so little share in them, in some cases none at aW Rotten Boroughs (as they are called). Lords of Boroughs, and the like. These matters are alluded to merely, as observed else- where, in a general way : partly, because some are to be considered not as defects in our theory, but as evils, produced by our practice ; evils, indeed, too glaring not to be seen, too serious not to be felt ; and they are of such a nature and so extensive in their influence, that every one who thinks properly must wish to see remedied : but many of them do not properly belong to the Constitution of England : there is a more per- vading spirit, to which, if those evils were not originally created by it, they may be made sub- servient : and that, it is to be feared, does be- long to our system. That pervading spirit is called Injiuence ; which would remain, some think, to a certain extent, even if some of the 102 DEFECTS IN evils to be so lamented were removed * ; and readers may easily see, from what has already been said on the structure of our government, how influence may arise : though I am aware that some think, if our representation was cor- rect, there need be no corruption, and that there wouUl be no impnypcr influence at all. As to our Militia here, too, the defect is ra- ther in our Administration, than our Constitu- tion ; for it is certain, that it is agreeabl;^ to our ancient lavts, which have never been repealed, ** that Gentlemen, Yeomen, and Serving-men,'* should be exercised in the use of arms, for the defence of the realm. This is what has been called the power of the couuti/. Debent Uni- versi Homines Liberi, occ. Arma habere, et ilhi semper prompta conservare ad Tuitionem Reg- ni. All freemen oufjht to keep arms ^ and to pre- serve them always ready for the defence of the realm : the great advantage of such a system is, beyond that of any other which could be devised : by this every man in the country might be made efl^^ctive for the purpose of military defence, without losing his civil character, and by a Ros- ter, or Rotation, in so well-regulated a propor- tion, as to occasion no interruption to the public * Hints to Political Reformers. THE ENGLISH CONSTITUTION. 103 labours * : and from the authorities in our laws, as well as the testimony of our best lawyers* there can be no doubt that Blackstone was cor- rect in calling- it (as observed before) " the Con- stitutional Defence of the Kingdom." I have no doubt too it might be made appear (if we had time for detail) tl^at it might be accommodated to all the varieties of existing circumstances, and for every just and honourable use, which a nation could require. To judge of what a national militia might do, we should recollect what armed citizens have done. Among the Spartans (a name become synonymous almost with heroes)^ the people were kept in military exercise, from puberty, till they were capable of the highest offices in the state They held the ascendancy among the Grecian States for 500 years; and a handful of them, at Thermopylae, resisted the whole weight of the Persians f. The citizens of the other Gre- cian States, so distinguished for their love of * Granville Sharp's Tracts, and Major Cariwrighl's Eng- land's Mgis. t Xenophon de Lacedaem. Repub. Idem de Athen. It, however, must be admitted that amonjsf the Lacedaemonians, though the citizens were soldiers, the soldiers did not return to the order of citizens. The Helotrc, their slaves, culti- vated the land. I have mentioned them merely to shew what a national militia might do. 104 I>EPECTS IN liberty, were soldiers, but not kept employed beyond a limited ag-e. In America, their sol- diers are citizens. When they began their strug- gle for independence, they had no standing army ; not one ship of war * ; yet we know what they became. In France it was a body of citi- zens who destroyed the Bastile, though de- fended by 30,000 soldiers : and among ourselves, the City trained bands have given, in the great- est exigencies, the fullest proof of effect, even beyond any other armed force f. But an institution, however good, may have little or no value, if not under its proper disci- pline and legal regulations : a constitutional, national militia, is here spoken of: for as " our good may be evil-spoken of," so may it be evil- acted on ; and.it is a great defect in our present militia, that it has too much the nature of a standing army, in its discipline, and too little of it, for any grent purpose of national defence. Alfred is said to have been the founder of our national militia : nor let any arjrument be formed against its utility fiom the invasion of the Danes, * Ramsay's History of the American Revolution, Vol. I. pp. 191, 197. f Granville Sharp's Remarks concerning the Trained Bands in London. THE ENGLISH CONSTITUTION. 105 during his reign. For they obtained footing in this island long before his time, in consequence of our want of a navy *, and indeed of this ex- cellent institution. It was not till he had sub- dued, and had either settled or expelled the Danes, that he devised it ; and it was by that he suppressed the straggling troops of the Danes, which still remained, and brought the country into such excellent order; for it is well ob- served by Hume, *' that the court (of the Wa- pentake) served both for the support of miUtary discipline, and for the administration of civil justice." In the same proportion, as there may be a de- fect in our institution of a national militia, there is, as might be expected, an excess in that of our standing armies : for when war is made an en- tire profession, men must live by it, and we shall always find employment for our arms. Liberty has been often the pretence, and some- times, undoubtedly, the object, of war ; but the his- tory of standing armies and of our English wars, too clearly shew, that they have more generally been employed for other purposes ; and, that if * Milton's History of England, Book IV. It is remark- able that Milton has passed unnoticed this prominent fea- ture in Alfred's administration of government. Hume's ac- count of Alfred is the best part of his Saxon History. 100 DEFECTS IN they have been for the interest of individuals, or for the glory of this, or other g"Overnments (for it is part of this system to furnish other nations with money, as well as men), they are not, unless im- poverishment and extirpation are public bene- fits, for the interest of the people. If we should admit, from the present mili- tary fashion of civilized Europe, the expediency of a standing army for England, in order to pre- serve the due equilibrium of civilized character, for continuing us to be what we are, and to keep what we have gained, and that older troops, and a more exact discipline, may be accounted ne- cessary, than may be looked for from a mere militia, and should all this be gone into, the sub- ject would become very extensive, and open views more extensive still the different interests of different governments, the nature of our alli- ances and treaties with them the balance of power in Europe our conquests in different parts of the globe and our means of govern- ing them; matters these of too much magni- tude and intricacy to admit of inquiries in this place. But Englishmen will never overlook, " that in a land of liberty it is extremely dangerous to make a distinct order of the profession of arms ; that in free states the profession of a soldier. THE ENGLISH CONSTITUTION. 107 taken singly and merely as a profession, is justly an object of jealousy, and that the laws and constitution of these kingdoms know no such state as that of a perpetual standing soldier; that no one can provide soldiers but by act of Parliament ; that they are excrescences bred out of the distemper of the state and not any part of the permanent and perpetual laws of the kingdom: and that they are therefore ipso facto disbanded at the expiration of every year, unless continued by Parliament *." Any appearance of excesSj rather than defect in these matters, would lead to the most serious reflections : for if in a nation which has been proud of its liberty, there should be a tendency in its government to overatve it by a standing army, this would be a very alarming symptom ; this would shew, that there is no disposition to be conciliatory, little to reform its abuses r * Blackslone's Commentaries, Book I. Cb. 13. He fur- ther observes, in this admirable chapter : " Perhaps it might be still better if, by dismissing a stated number, and enlisting others at every renewal of their term, a circulatioa could be kept up between the army and the people, and the citizen and the soldier be more intimately connected toge- ther." Such an neconomy too would be of service in assist- ing and strengthening a national militia. 108 DEFECTS IN little to consult the authority of our old constitu- tional laws little to give weight and true dig- nity to their own measures, but rather to appear in the character of masters, than the representa- tives and ministers, of a free people. May all such symptoms quite disappear I But on our excesses in ivars 1 wish to leave readers the following reflections : " The Review of the Causes and Consequences of English Wars," has shewn us, that war has generally been made by the overbearing power of a few individuals in the state, for their own advantage, in contempt of the general interest ; that it is one of the most dreadful scourges of the human race ; and that we can only hope in future to be preserved from its ravages by those who are properly the people. We know of no other means of accomplishing this, but a fair representation of ths people in parliament ; and he who forwards this reform, without confusion and blood, is entitled to a place amongst the greatest benefactors of mankind*." By way of postscript to what has been offered concerning Influence and Parliaments, I take leave to drop a thought or two of this Influence * A View of the Causes and Consequences of English Wars: by Anthony Robinson. 1798. THE ENGLISH CONSTITUTION. 109 on Parliaments : for the Influence on the Legis- lative Body (particularly on the republican part of it, the House of Commons) is supposed by some writers to be, of all the defects in the Eng- lish Constitution, the greatest of all. Influence (by which some mean, particularly Mr. Hume and Dr. Paley, avowedly, Corrvp- Hon) is thought, by many writers, to be essen- tial, and necessary to our English theory. Now we all know that the King can do no wrong ; and hence all responsibility falls on his ministers. But it will not be disputed, whether ministers possess the means (it is unnecessary to state them now) of influencing Parliament : and if a parlia- ment, under that influence, legislates, it is clear the responsibility rests with them 3 in which case, responsibility becomes w'-responsibility. For who is to bring the Parliament to account? Quis custodes custodiat. This question has often been asked ; and I am aware of Mr. Locke's appeal to Heaven. But is there any well-ordered judicature at which a par- liament so influenced and corrupted, as I have supposed, can be made accountable? The question is partly asked under a recollection, that the States of Greece * had some such judica- * Amphictionium, consisting of Representatives from se vpral States. Pausfinias: Phocicis. Edit. Xylandri, p. 3*23. 110 DEFECTS IN ture ; and because I have heard the want of it considered as the grelit defect (and therefore it should not pass unnoticed) in the English *. Whether justly, h^t others determine. One g-reat defect in our Civil and Canon Law has been hinted ; the principles of our Common Law were entitled to our great respect. The questi'.n relative to the best means of pro- moting* the great fundamental principles of our Constitution, I may, perhaps, attempt to dis- cuss in a future Essay, and, I hope, in a respect- ful, constitutional manner. In the mean time, I close with Andrew Home's Summary of his Chapters on Abuses, written in Norman French, as the whole book is (Chapter V. Section the first). LES CONTENTS. Abusions de la Comon Ley, Les defauts de ia grand Charter, Les ReprelieusioHS des Statul de Merton et de Marlebridge. Le Reprehension des Statuts de Westminster le primer ; - Les Reprehensions de Circunispecte agatis. La Reprehension de novel Statnt De Marchants. * David Williams's Lect. on Montesquieu. THE ENGLISH CONSTITUTION. 1 1 1 ESSAY IV. ON THE BEST MEANS OF PROMOTING THE FUNDAMENTAL PRINCIPLES OF THE ENGLISH CONSTITUTION. HOBBES sets out, in his " Philosophical Elements concerning- a Citizen," with observing-, that " if in those matters on which we speculate for the sake of exercising- our genius, any error is introduced, no loss but of our time ensues ; but that in our meditations which relate to the purposes of life, not only from our error, but our ignorance, necessarily must arise offences, quar- rels, and violent deaths." Locke seems to have started from nearly the same point, if one may judge by the quotation from Livy, prefixed to his Treatises on Govern- ment, and was evidently much indebted to Hobbes for some principles j but they were urged on by different impulses, and took differ* (> 112 ON THE FUNDAMENTAL PRINCIPLES OF ent directions : Hobbes, as seeing' the horrors of a civil storm, thoug-ht quiet was to be found only under arbitrary power * : Locke, as seeing" a storm pasj^ed, thought pence and liberty could be seciue only under the revolution. Algernon Sidney, and Harrington, had pre- viously taken nearly the same course as Locke, though under different circumstances ; and they took a different course from Hobbes, though un- der circumstances nearly similar. It is not necessary to state any more particu- lar or private reasons for their differences : but, to speak generally, it is obvious, that political systems should be considered relatively, and, as it were, a parte ante, to their principles and ten- dencies, as well as to any present state of things ; and civil dissentions, no less than civil harmo- nies, rather be traced to causes, than explored in their consequences. The material, animal, and intellectual worlds, as wholes, and as parts, are * I infer this from wliat Hobbes says in the preface to his readers of his book de Give: " quapropter si aliqua invene- ritis aut minus certa, aut magis quam necesse erat, acriter dicta, cum non partium, sed pacis studio, et ab eo dicta sunt, cujus, propter patriae prnesentem calhir.italem, dolore justo aliquid condonari aequtira est, ea ut aequo anirao ferre dignemini, lectures, oro et postulo." Hobbes's book de Give wa %vrittea at Paris in 1G4G. THE ENGLISH CONSTITUTION. 113 necessarily, and individually, subject to certain laws, the laws of their nature. They cannot escape their influence ; they cannot exceed their limits : matter in all its forms is obedient to those laws ; and with respect to their operation, physi- cal and moral man is the same, a creature of cir- cumstances, though in different relat'ons. His actions may be modified by art, by laws, by his place in civil society ; but his organization is the work of nature, and in its minutest, as well as its grandest movements, in its most energetic, as well as its most ordinary affections, invariably subject to those laws. When philosophers assure us we cannot un- derstand causes, that we perceive only efl^ects, philosophically speaking, they say the truth : but all our actions, this is no less true, are wheels within wheels, a train of causes and effects. Though of primary causes we know nothing, yet what are but effects with respect to pheno- mena that preceded, become causes with respect to those that follow. And what is our guide in all the regular, useful pursuits of human life, but correct observations of those causes, and a right application of our knowledge for purposes of just reasoning, and daily experience? Thus when the body is diseased, we refer, as to the cause, to the taking of too much or too little I 114 ON THE FUNDAMENTAL PRINCIPLES OF food, of too much or too little exercise, to inordi- nate passions, or to other casualties and influ- ences incident to our nature : on beholding a building- in ruins, we consider the materials of which it was composed, and the purposes for which it was raised, more than the time it has lasted, or the power by which it was destroyed. So with respect to those tumults, and wars, and violent deaths in civil communities, it is not so much a question of what now is, as of what has been? " Whence come wars and rumours of wars ? The opinions, professions, and conduct of men, are as necessarily influenced by causes, as the events which take place in civil society j and we must estimate the writings of men in the same manner. Thus in the writing-s of Bacon and Hobbes, judging from the principles laid down, or the occasional concessions introduced in the writings of those philosophers, I infer, that some of their opinions took an impulse from their rela- tive situations, from the circumstances of the times, more than from the genuine impulse of their own great minds, or from following the or- der of their own systems. And tliis is the most candid account that can be given of the matter, in cases where the principles of civil liberty and of arbitrary power are intermingled, like contra- THE teNGI/ISH CONSTITUTION. 115 dictory masses amalgamated in one body, in the same system. Burke was a striking- example of this vacillat- ing- state of mind. Whether, as another person spake of himself, he could not afford to keep a conscience, and should always yield to expedi' ency, I do not inquire: but he was certainly a political engineer, full of manoeuvring powers ; taking his stand often in opposite points, moving in opposite directions, and pursuing his opera- tions by such contradictory designs, that he hardly seemed the same man ; at one time laying down natural laws and fundamental principles, pleading for liberty against power and the usur- pations of political establishments, for reforms against public abuses and unconstitutional influ- ence. Then again he rallies : behold him plead- ing for power against liberty, for the usurpations of establishments against the luws of nature ; for the continuance of corruptions in defiance of his own high demands for the independence of par- liaments; and for the support of an influence, which he had before denounced as having in- creased beyond all due bounds, and as being un- constitutional ! Such was the political progress of Mr. Burke's mind, from the American War, to that epoch in the French Revolution which he lived to witness. 12 116 ON THE FUNDAMENTAL PRINCIPLES OF Highly probable, too, it is, that the recent com- motions and changes which have taken place on the Continent, changes which were preceded by violent flashes of light, and often followed by sen- sible darkness, have occasioned, I will not say tergiversation, but rather confusiq.n, perplexity, contradiction, unmanageable points in the opi- nions of many in England at this time; that some from unexpected events have receded from opi- nions which were thought violent, because they were earnest, and from demands which were deemed clamorous, because they were popular. But examples occur, where men are rather con- founded than converted; where they may be said rather to yield to circumstances, than to abandon their principles : and they become like musical instruments, which, though not shattered and broken, are miserably out of tune, or played on by unskilful hands. Because they do not under- stand the world, they think they do not under- stand themselves : and, perhaps, in both cases they think truly. For if man has been justly called a microcosm, or little world, for the variety of his individual nature; society, from its combination of different inclinations, pursuits, interests, powers, passions, and conditions, may be called the mcga- cosm, or great world ; a machine of vast com- pass, intricate contrivances, inexplicable move- THE ENGLISH CONSTITUTION. 117 ments, and deep recesses : and in contemplating it very honest men may be mistaken, when they think themselves right ; and they may have been right where they think themselves to have been mistaken. And should any of us have trembled, as it were, for a while on that narrow neck of land, FI^A-R, which Hobbes makes the origin of society, I hope we shall never plunge into that ocean of arbitrary power, which for all the valua- ble purposes of life, would be its destruction. Nor is it improbable, that some have gone, from the same cause, the contrary way ; that, as some have been moved backward, to Fear, others may have been led forward, to Hope; that think- ing circumstances of public calamity and alarm should lead nations, no less than individuals, to serious thoughts, and permanent reformations, they have eyed more narrowly public abuses, and perceived their consequences; that, thinking cor- ruption tends to division, dissolution, and death; and that mutual sympathies, mutual confidence, and mutual protection, the great ends of civil so- ciety, can bring the dispersed interests of indi- viduals to a resting place, and by exciting the most pleasing, the most salutary feeling of co- operation, can unite and consolidate them for purposes of public utility ; they have renounced claims, which they once advocated, and advocate 118 ON THE FUNDAMENTAL PRINCIPLES OF claims which they once opposed; and that after vacillating backwards and forwards like a pen- dulum, for a long" time, they may at length, per- haps, imagine they ai*e now come to their proper point of rest; believing there is much truth in the declaration, that when " the divine judg- ments are abroad in the earth, the natio**!? should learn ru/hteouaness.^* This Essay then does not, any more than the preceding, profess to meddle with the difficult question of Reform, excej)t, as it may happen, by cursory allusions : and thts, in order niniv effec- tually to con ".'U r some advantages which all possess in comii>o. , and to awaken those s^-mpa- thies which all members of a civil community should feci with the public interest. And yet 1 yield only apparently. I rather step aside, than take the opposite course. For to perceive (ieiects, and to be indifferent about reme- dies, implies no great liberality ; to admit, and defend them, requires some ability*. Ever since * Such readers as choose to sec the particular deviations from parliamentary reprchciitatiou defended, are referred to Dr. Faley's Principi* s of Moral and Political Philosophy, Book 11. Ch. vi. Tliis bojk is referred to for the purpose of pointing out a publication, where Dr. Paley's arguments are exposed and confuted uith much acuteness. See Letters U> William Paley, M. A* on his objections to a Reform THE ENGLISH CONSTITUTION. 119 I tried to think, our Parliament has, I thought, wanted reforming, and my convictions have been ia the Representation of the Commons. Printed for John- sou, 1796. It falls in with my plan to copy from the Ap- pendix to those Letters the following passage, (" as being declaratory of the Common Law," and as saying all I would wish to say,) from Sir Thomas Smith's tract ** on the Man- ner of Govemeraent or Policie of the Realme of Englaude." ** Everie Englishman is entended to bee there in Parliament ** present, either in person, or by procuration and attornies, *' of what preheminence, state, dignitie, or qualities soever " he be, from the prince, (be he King or Queen,) to the ** lowest person of Englande ; and the consent of the Parlia- " ment is supposed to be everie man's consent." De Repub- lica Anglorum, 1583, p. 35. Sir Thomas Smith was the per- son so well known in the History of Greek Literature at Cambridge, and who was afterwards secretary to Edward and Elizabeth. Dr. Paley s Defence of our present Parliamentary Repre- sentation is evidently a system of accommodation, founded on his doctrine of expedience. In 1774, he published " A Defence of Bishop Law's Considerations, in reply to Dr. Randolph on the Propriety of requiring Subscription to the 39 Articles." There he says, " It is obvious that subscrip- ** tion to the 39 Articles might be altered, or withdrawn, "upon general principles of justice and expedience;" and in his chapter on Religious Establishments, in his Principles of Moral and Political Philosophy, Book VI. Ch. 10, the same writer defends, or at least apologizes for, subscription, by the doctrine of expedience. To such reasonable lengths may this doctrine be stretched. In another place, he calls the influence of the Crown the more successful expedient. 120 ON THE FUNDAMENTAL PRINCIPLES O every day increasing-. Bat the subject is too larg-e for my present limits, and mvolving-, as it must, the minutiae of particular deviations, does not so properly belong to this place. So, as I have already said, I have rather glanced at re- forai, than looked it full in the face. With this view weve stated in former Essays definitions and opinions of different writers, cluirchmen, dissenters, lawyers, and political writ- ers, on the British Constitution, with such reserve for pri' ate sentiment which occurred at the time, with due approbation of what seemed good in the English Constitution, but with some discrimina- tions between what was fundamental and acciden- tal principles ; between 7vhat 7vas, and what is, and, from considering the changeableness of all human institutions, 7vhat may be; recollecting" what has been so well illustrated and enforced by Algernon Sidney, " that good governments ad- mit of chariges in the superstructure, whilst the foundations remain unchangeable.*" Blackstone exjresses somewhere the change- ableness of our Constitution iu this lax, loose way: ** What our Constitution now is." Lax it is, and loose, yet truly expressed. What our Constitu- It is clear this able writer knew what was right on the above subjects. Discourses concerning Government, Ch, II, Sect, xvii. THE ENGLISH CONSTITUTION. 121 tion is, we may know ; it is before our eyes : what it may becotne, is unknowi : it depends, like our lives, on conting-encies ; it is buried, like our hopes and our fears, in the dark womb of futurity. Philosophers and pohticians have speculated on the pleasing", awful subject, some concluding, that the democratical part of our Constitution will bring" on a republic ; others, that the monarchical will bring on despotism. So thought Hume. Montesquieu, who seems to have been of the same opinion, says, " it will perish when the legislative shall be more corrupt than the exe- cutive." In speaking on the principles of civil govern- ment, it is usual to appeal (as in the present case) to philosophers and politicians. But it is not necessary to play the politician or philosopher. Those principles, which ought to govern societies of men, are deducible only from our wants, and appeal to that divine li(jht^ that liahteth every one that cometh into the worlds the primitive rea- son of man : they are not difficult to ascertain, nor difficult to be understood. Our base interests and passions, our prejudices and superstitions, may throw a mist before usj and the impostures of governments may involve us in mysteries and darkness : but let us feel our proper wants, and, 1-22 ON THE FUNDAMENTAL PRINCIPLES OP in the exercise of reason, we shall not mistake our way. And however arduous, and almost impossible, it may appear, to purify masses of society, im- mersed in the errors of government, yet, let indi- viduals but know themselves, with their relative state in society, and their duties become clear ; reason points out their duty, and their duty is supported by reason ; man should do what is right, and not be troubled about consequences, often rashly deduced by sophistry : Act well your parts, the rest belongs to Heaven. Yes! be the issue what it may, our present duty IS clear. It is our duty as men, as citizens, as Britons, to assert and propagate our natural rights and civil privileges, as being, happily for us at present, the basis of British liberty: and whatever changes our Constitution may undergo in its fu- ture course, may it still be cemented by such principles, like those English vessels, which, though composed of different timbers, derive their principal strength from the British Oak! We proceed then to consider the best means of promoting the great fundamental principles of our Constitution ; and in doing this there is no necessity for repeating those principles 3 but just THE ENGLISH CONSTITUTION. 123 to hint, that as they relate to every individual in the state, every individual in the state should feel an interest in them ; and, that though no distinc- tions, merely nominal or accidental, will fall un- der our present view (at least in the way of cri- ticism or discussion), yet that every individual under those nominal, accidental distinctions, is bound to give those fundamental principles their support. And first; as the Church has been shewn to be a part of our Constitution, it follows, that the clergy, or ministers of that church are obliged to support and promote what is so essential to the Constitution, both from interest and gratitude : from interest, because to the State (which word I use here in the sense of Constitution) they must look for the support of the church's revenues; when that support fails, their temporalities are no more*, and from gratitude, because they are * That what Mr. Burke says on the church's private pro- perty, (Reflections on the French Revolution, p. 150, 1st Edit.) and that what Bishop Warburton says on the inde- pendence of the clergy, prior to his notion of the Alliance, is incorrect, see pp. 242, 243 of the Inquiry into the Na- ture of Subscription, referred to, p. 127 of the second num- ber of the Reflector. I say this with a full recollection of what is said Cbron. Sax. 41 49; and that " na (no) man let them (the Clergy) set (lease) their landes and teindes (tithes), and wrangeously annalie (wrongfully aliene) 124 ox THE FUNDAMENTAL PRINCIPLES OF in the relation of receiver to giver: for, according- to the jyj'esent state of things, their revenues are not the private property of the church, but a do- nation from the state, or, which is the same, in this case, from the Crown; and, of course, from civil obligations they are bound to civil duties : and how can they discharge their duties to a con- stitution better, than by promoting that part which is essential and fundamental ? This obligation appeared so reasonable, so in- dispensable, to our ancestors, that it was not deemed sufficient for the prelates and clergy ori- ginally to confirm Magna Charta, (while holding lighted torches in their hands they recited a most terrible curse against the violators of it), but the clergy were even obliged to bring forward Magna Charta to the remembrance of the people, by re- citing that golden clause, as it has been called, in the church, that " no man be taken but by le- gem terrae, by common law, &c. with ana- themas against the impugners of it : the whole proceedings in which case are preserved in ancient records.* tlieir landes." The Lawes and Acles maid be King James I. &c. of Scotland. * See the Confirmation of the Charters of the Liberties of England, and of the Forest, made in the 35th year of Edw. I. the Sententiam latam super Chartas, the Sentence of the THE ENGLISH CONSTITUTION. 125 Our ancestors were not afraid of naingling wholesome constitutional politics with their theo- logy ; and accordingly, in our oldest laws, the leading moral rules of the Scripture are inter- mingled with the most prominent parts of the Common Law, as already observed. Our ances- tors seemed to have considered our fundamental principles as a rich fragrance, or sacred emblem, like the holy oil on Aaron*s garments. Under what authority the clergy have ceased to read these sacred mementos to their congrega- tions, and to give the salutary stimuli of clerical admonition, I shall not inquire ; but I cannot help remarking, that as that ancient provision illus- trates the propriety of the practice, so the learn- ing, the dignity, what some would call the sacred- ness, attached to the office, and the familiar inter- course which should subsist between the clergy and the people, ought to render the clergy pecu- liarly fitted for the office of transfusing the first principles of our Constitution. Clergy against the transgressors of the above Statute, and the Curse of the Bishops against the violators of the great CHARTER. N.B. This curse is left out of an old printed Statute-book, but inserted in one in 3 vol, A. 1557. The more solemn curse, expressed in the reign of Henry III. is also left out in some modern Statute-books, but may be seen at large, in English Liberties, or the Free-born Subject's Inheritancf., pp.31, 32, 33. 126 ON THE FUNDAMENTAL PRINCIPLES OF It cannot be denied, that the clerg-y have been, too often, the advocates for arbitn^ry power ; and that their sermons have frequently breathed a spirit very different from that of Eow-Iish liberty. This is too true; and as the station of the clerg-y g-ives them great influence in the community, cannot be too much lamented. But let us still do justice: since the Revolution, the writing's of the clergy have, many of them, caught a tone from Locke. And what friend to constitutional liberty, who has perused the works of Burnet, lloadley, Sykes, and Blackburne, has not de- rived pleasure and instruction from them ? Bishop Kurd's Dialogues on the very subject of these Essays the English Constitution, we have had occasion to refer to before, and it is an ex- cellent work, founded on true constitutional prin- ciples ; and many others, as excellent, might be pointed out. What religious doctrines, and rites, sacraments, and discipline, the established clergy may think it their duty to support, as teachers in a religious community, is totally un- connected with the present subject : what con- cerns religion becomes an affair of consciencey which only religion addresses; but what is of a nature merely civil (as what we are now treating of, is) addresses other feelings, and the duty arises from other obligations : and so to proceed. THE ENGLISH CONSTITUTION. 127 The same influence which the established clerg-y have over their flock, dissenting ministers have over theirs; and they are not merely to be justified in using it, to promote the fundamental principles of English liberty they seem, by the most weighty considerations, bound to do so. To these fundamental maxims they owe much, and to them they should look for more. In the exact proportion as their complaints against Corpora- tion and Test Laws, are just, should be their zeal in promoting the fundamental principles of the English Constitution : for those principles arCs favourable to their plea ; and the just operation of them would remove the grievance. I cannot forbear remarking here, that by what- ever religious tests the clergy may think proper, (agreeably to what was just now hinted) to bind themselves, yet that, in cases purely civil, it is not congenial to the spirit of our Constitution, pro- perly understood, to introduce doctrines of theo- logical import* : they make no part of Magna Charta no part in the Act of Settlement. For the introduction of doctrinal matters, as tests for the members of our universities, we are indebted * Fortescue, iu his admirable book de Laudibus LI. Angl. says nothing about doctrinal points. 128 ON THE FUNDAMENTAL PRINCIPLES OP to the authority of James I.* who made so free with our ronslitutional liberties ; and the Corporation and Test Oaths were not originally aimed against the Protestant dissenters, though afterwards applied to thtin f . And here it should be acknowledged that the dissenters have not been defective in promoting the principles of the English Constitution: their churches are often founded on principles not con- genial with intellectual or religious liberty; but, as individuals, the dissenters are generally found favourable to civil. This observation might be illustrated from the writings of the Puritans, who, from their first rise down to the Revolution, when they thought themselves aggrieved, were in the habit of appeal- ing to the principles of the English Constitution; thus Barrow, who suffered death in Queen Eliza- beth's reign, for publishing a book, called The Discovery of False Churchesy maintains in it, ^ Stat. Academiae Cantab. Literae Regiac. t See Bishop Hoadlej's Refutation of Bishop Sherlock's Arguments against a Repeal of the Corporation and Test Laws ; and, the Right of Protestant Dissenters, to a complete Toleration, Ch. 1, 2; where is given a History of the Cor- poration and Test Acts, and it is shewn, that opposition to popery was the primary end of both. THE ENGLISH CONSTITUTION. 129 that " the Hig-h Commission Court was prejudi- cial to the prerogative of the Prince, to the juris- diction of the Royal Courts, to tjhe liberty of the free subject, and to the Great Charter of Eng- land i" and, after the Revolution, more to the same purpose may be seen in Mr. Pierce's Vindi" cation, the second part of which goes exactly on Mr. Locke's principles of Civil Government. From the Revolution to the present times, the public discourses of dissenters from the pulpit, as well as their other writings, have displayed their great zeal in propagating the same principles of the English Constitution, as settled at the Revo- lution; as witness the Salter's Hall, Sermons, together with the numerous writings of Priestley, Price, and Robinson. Dr. Priestley wrote largely on the subject ; Dr. Price's Essay on Civil Li- berty was, some years ago, in almost every body's hands; and of Mr. Robinson's Political Cate- chism 1 should naturally take notice, (I have al- ready alluded to it,) did not other of his writings breathe the same spirit. As it is the duty of dissenters, in common with churchmen, to feel an interest in the fundamental liberties of their country, so, from the constitu- tion of their churches, their ministers are fitted to disseminate them in the most deliberate, effec- tual, yet constitutional, way. And those who ciill K 130 ON THE FUNDAMENTAL PRINCIPLES OF themselves Evangelical Dissenters, in opposition to others who call themselves Rational, as they have an equal reason of attachment to their civil rights, have shewn an equal zeal (and it is their duty) to propagate them. And they very lately saw the happy effect of that spirit which united them : I allude to the combination of ministers of all denominations Calvinists, Arminians, Soci- nians, and Methodists, for the purpose of main- taining one civil right, that of teaching their own doctrines according to their own pleasure. Here they united ; and, with the support of the leading men both in church and state, they carried their point*. The ministers among the Quakers do not allow themselves to allude to political matters in their public discourses. But William Penn, if I am not mistaken, was occasionally a preacher; (for among this society, though they have properly Ministers or Teachers, yet all may propheci/ one hy one), he was at least a legislator and politi- cian : and his writings aim to propagate the purest principles of English politics f. And, on considering that the Quakers enjoy some privi- * This bill was brought in by William Smith, Esq. Mem ber for Norwich. t See his Political Tracts in his Select Works. THE ENGLISH CONSTITUTION. 131 leg-es peculiar ta their own sect, and beyond what the other dissenters enjoy, they are laid under greater obligations. Let me add, that the peaceable deportment of the Quakers renders them peculiarly fitted for the propagation of the fundamental principles of our Constitution*: for those principles are opposed to oppression and slavery, in all forms; their operation would unite different interests by one common tie, and in all their directions tend to promote liberty and peace; pure perennial springs, " the streams whereof," to borrow the language of the Psalmist, " would make glad the city of God.'* Ought we, ought we, to overlook the Catholic clergy? or, while calling on them for the dis- charge of duties, should we be unprepared to do justice to their principles? The British Catholics of the present day differ as much in their politics from Bellarmine, Parsons, or Allen, the papists of former times, as the present clergy of the esta- blished church from the clergy in the reign of King James : and as the latter no longer hold the jure divino, the divine right of Kings, neither do the former, the right of the Pope to dethrone Kings, or to interfere in affairs of state. Their * Barclay, in his Apology for the Quakers, lays great stress on this argument in his Address to tlie King. k2 132 ON THE FUNDAMENTAL PRINCIPLES OF obedience to the Pope relates wholly to religious concerns. They are as hearty friends to the civil establishment of religion as the English establish- ed clergy ; and, though differing from the dis- senters as to the spiritual authority of the Pope, they agree with them in the separation of religi- ous from civil power. These doctrines, though formerly maintained by the school divines, are now disclaimed by all sober Catholics : nor do the British Catholic Clergy hold any doctrines as Catholics, which unqualify them for the propaga- tion of the fundamental principles of om* Civil Constitution, as Britons. Indeed, for promoting those principles. Ca- tholics of the United Kingdom have not only many reasons in common with others they possess some peculiar to themselves : they are in- fluenced by considerations of conscience, beyond any other part of the community. Their ances- tors bound themselves by oat)i to these principles at the Revolution : fifty thousand Catholics, with the bishops at their head, have pledged them- selves to the principles of the Revolution in l(i88 : and that revolution was grounded on those fun- damental principles, not those principles on the revolution. Dr. Alexander Geddes's political sentiments, intermingled with his biblical and theological THE ENGLISH CONSTITUTION. 133 writing's*, are those generally avowed now by the English Catholics. Mr. Plowden has more professedly unfolded those principles in his Jura Anglorumf or Rights of Englishmen ; and in his Church and State, or his Inquiry into the Ori- gin, Nature, and extent of the Ecclesiastical and Civil authority, with reference to the English Constitution f, he has discussed the whole Catho- lic controversy (he is a catholic himself) on the subject ; he has dilated on the fundamental prin- ciples of the English Constitution ; and has un- answerably proved, that the Catholics, both clergy and laity, are bound to them, both from choice and by oaths. Catholics, then, are bound to be in earnest on this subject; their exclusion from offices of trust and public utility should increase their zeal : ar- guments arise on all sides for their enforcing the claims, and for our giving them a full hearing. They have repeatedly proved themselves both capable, as they are willing, to give the state a civil test, however they may choose, by a religious one, to bind themselves to the head of their church ; for in Magna Charta, in the Act of Set- * I allude here only to the political opiaions of Dr. G. as having been a Catholic clergyman. t Book i. ch. 9. 134 ON THE FUNDAMENTAL PRINCIPLES OF tlement (this cannot be too often repeated), and in their oath to the Protestant Succession, there is nothing that can enslave (and this only is the feeling concerned in religion) their conscience. In the Catholic claims now making there is a voice which will be heard, and felt ; whatever be its immediate tendency, its ultimate end must be, to help forward the cause of civil liberty, the fundamental principle of the English Consti- tution. And here let Dr. Paley speak : " I would ob- " serve, however, that in proportion as the con- ^* nection between the civil and religious princi- " pies of the papists is dissolved, in the same pro- ** portion ought the state to mitigate the hard- <* ships, and relax the restraints, to which they *' are made subject*." The opponents to Catholic Emancipation are to be justified for speaking with horror of the faithless treaties and dreadful persecutions, in former times. The Ecclesiastical History of Africa, of Spain, of Rome, and Italy f , are full * A Defence of the Considerations on the Propriety of requiring Subscription to Articles of Faith, p. 26. t For the abundant proofs of perfidy and cruelty in these countries (as well as in others\ see Mr. Robinson's Eccle- siastical Researches, under the heads. Church of Africa Church of Spain Church of Home Church of Italy, THE ENGLISH CONSTITUTION. 135 of blood. A more perfidious act than that against the Protestants of France, the Revocation of the Edict of Nantz, by Lewis the 14th, cannot be well conceived, nor more unnatural and cruel oppression which followed it : and the excellent Mons. Claude, the advocate of the Protestants, has ably shewn what just ground his party had for a separation; and the injustice of the popish perse- cutions*. But may not the Catholics' rejoin ? Was not Charles II. faithless, in violating" the * The title of the Book alluded to, written by Monsieur Claude, who was at the head of the Protestants in France, at the time of the Revocation of the Edict of Nantz, is en- titled, the Defence of the Reformation. It is the best of Claude's Works. It Avas first published, in French, at Roan, in 1673 ; the English translation, published in 1683, had become extremely scarce, and was therefore republished in 2 volumes, 8vo. by the Rev. John Townsend, in 1815 ; and it is a work, which, though it cannot be admitted as ar- gument in our modern disputes, may be considered as a faithful and valuable history of the facts and controversies ia those periods to which it relates. f In ample proof of the other facts alluded to in the text, see Mr. Walker's Attempt towards Recovering an Account of the Numbers and Sufterings of the Clergy of the Church of England ; and on the same subject, Angliae Ruina, with Querela Cantabrigiencis ; and on the other side. Dr. Calamy's Abridgment of Mr. Baxter's History of his Life and Times, Pierce's Vindiciae Non-conformistarum, together with the Right of the Dissenters to a complete Toleration. 136 ON THE FUNDAMENTAL PRINCIPLES OF Declaration of Breda for Liberty of Conscience ? Were not the Episcopalians faithless to the Pres- byterians, in directing- acts against them, that were designed against Papists? Did the Parliament party keep faith with the Royalists ? then again, did not the Presbyterian party eject the Epis- copalians, and imprison many of their most learn- ed men ? And in return did not the Episcopa- lians eject 2000 Non-conformist ministers from their livings, and imprison many of them ? What shall we say of the penal laws against Papists ? Was there not uniformly a persecution of Papists in Queen Elizabeth's, in James I.'s, in Charles I.'s, during the interregnum, and Charles II. *s reigns ? If England has a raartyrology to pro- duce against Catholics, cannot Catholics in their turn, produce a martyrology against England* ? * I have perused such a book, though I suppose it is extremely scarce ; it of course could not be printed in this country; and I have never seen but one copy of it. It is entitled, L'llistoire de Persecution present des Catholiques en Angleterre, enrichee de plusieurs Reflexions, Morales, Politiques, et Christiennes, tant sur ce qui concerne lour guerre civile, que le religion. Par le Sieur de Marsys, With a Table de Martyrologe J040 1641 1042 1G43 1644. Let us observe too this was under the Presby- terians. THE ENGLISH CONSTITUTION. 137 In short, we should all take to ourselves shame, repentance, and confusion of face, for what has been wrong either in ourselves or our fathers, and former times be appealed to only for matter of humiliation, and motives to reformation. " We have all gone in the way of Cain, who slew his brother." The evil has originated in intermingling religion with politics, in making our creeds the badges of good citizens. Expe- rience has shewn us the injustice, the cruelty, the fruitlessness of the project. Surely it becomes Protestants to have removed from them that great objection, which was brought against the Reformation, " that it led to endless separation^ ; that it encroached on private judgment, not less than that church which claimed perpetuity and infallibility" particularly, as France itself has set the example of a more complete liberty. Ca- tholics and Protestants have alike been put in the furnace of affliction; they still feel the smart; and it is the nature of affliction to teach sorrow * This argument was enforced by the celebrated advocate of the Catholics, Bossuet, in a conference with the Claude just mentioned : and Claude's biographer and admirer ad- mits, that " the argument was urged home by the prelate, and lies unanswered to this day." Robinson's Life of Claude, prefixed to his Essay on the Composition of a Sermon, p. 38. 138 ON THE FUNDAMENTAL PRINCIPLES OF for sin, and love of justice. To come out of the furnace, with the pain without the purgation, will be to convert our afflictions into double guilt, our wholesome chastisements into permanent and dreadful judgments. As to the instances, that may accidentally fall in our way, of a persecuting spirit in Modern Papists, they can be made little use of, in a way of argument, though they may, of much just re- prehension. Ignorance of civil liberty may be found among individuals of every community ; and bigotry among those the most enlightened, humane, and free. But bodies of men are not responsible for their folly : would we keep rail- lions of people disfranchised, to punish a handful of ideots? If we might be permitted to exemplify the principles just laid down as being those of modern Catholics, by an individual example, it should be in the conduct of the venerable M. Gregoire, the constitutional Bishop of Blois ; and of him the rather, because he is a faithful and true Catholic, holding that great doctrine of the Catholics, that " out of the pale of the church there is no salvation." But what then? This is his point of faith. Let us hear him on civil matters. " I would say as a Catholic to my Protestant brother, I believe thee to be in an 5 THE ENGLISH CONSTITUTION. 139 error ; my duty is to pity thee, to implore the Father of Light, to illumine thee, and to do thee all the good in my power. As citizens our rights are equal ; and, if in the case, for instance, of election to civil offices, I prefer an illiterate and immoral Catholic to an upright and intelligent Protestant, this partiality, which would oppress merit, and betray the interests of my country, would be a crime.^' Few have been more con- sistent advocates of civil and religious liberty, in France and in England ; in France against the impetuosity of the revolutionists ; in favour of Protestants against Catholics in France ; of Ca- tholics against Protestants in England ; and in favour of true civilization and humanity over the whole globe : and, in his combining one series of arguments against the Slave Tradey and Irish emancipation, there is something of shrewdness, as well as much justice and humanity, in the title of his book, " On the Slave Trade, and on the Slavery of the Blacks and of the Whites ; hy a Friend of all Colours* ^ In regard to others, those who belong to no Christian church, I am aware, that the customs of society, even in cases which are wrong, are too * There has latel)- been published a Translation of this valuable Tract, (witfe' prefatory Observations and Notes), by Conder, 18, St. Paul's Church-yard, 140 ON THE FUNDAMENTAL PRINCIPLES OF apt to influence men as individuals. This is the reason, why Christians are apt to overlook Jews, and olhers, in appeals of this kind. But there is no just ground for such neglect. When Chris- tians are reasonino- themselves into a sense of their rights, or petitioning for them, it should be with open arms: Jiere is *' neither Jew nor Gen- tile:** it would be extremely difficult for any Christian sect, zealous in their own behalf, for civil and religious liberty, to give such an inter- pretation to this passage, " What ye would that men should do unto you, do ye so unto them;" yes! it would be extremely difficult, I say, if not impossible, to give such a passage any thing like an exclusive sense ; I mean an interpretation, which might encourage a too appropriating spirit, a spirit of ascendancy authorizing them to dis- countenance the natural, civil, and religious claims of any, whether Jew or Gentile, of their brethren of mankind *. Nor does it seem, that any greater or more ge- neral considerations can be urged on others, than on Christians, for pleading their natural rights, and for a due estimation of the advantages of a free government. The advantages of the British Justitia fruens, felix per Legefli est. Forlescue de Laud. Ang. c. 2. THE ENGLISH CONSTITUTION. 141 Constitution belong to all : they should belong equally to all ; and all equally should feel an in- terest in their support. " Am I not a man ? am I not a Briton ?" comes with as much propriety from the mouth of a Jew, as of a Christian. And Christians in this country, who pass such com- mendations on their Constitution, should not leave their enemies to sing", (I speak in reference to the privileges of free-born citizens,) The year of jubilee is come. Return, ye exil'd wanderers, home*. Neither should Jew or Gentile, residing in a free country, be indifferent to its civil advantages; and where any indifference is found in those who should instruct them in the principles of liberty, * There is a valuable (pity it is it should be scarce) pub- lication, wherein an historical survey is taken of many mis- representations and grievances under which the Jews have laboured in this country. It was written by a liberal- minded English Clergyman, and is entitled, Anglia Judaica. The subjects alluded to in this Letter do not fall under con- sideration in that work, but if properly viewed, might be added to the list of hardships, to which Jews lie exposed in this country. For all ascendancies, on a religious account, whether Catholic or Protestant, producing civil disqualifica- tions, is religious persecution. 142 ON THE FUNDAMENTAL PRINCIPLES OF there is the greater reason, that they should in- form themselves. But, after all, let us not mistake : not as Churchmen, or Dissenters, or as Quakers, or as Catholics, or Jew, or Gentile, simply considered, do men take the impulse of Civil Liberty : it is by knowing-, by feeling their just rights, as men and citizens. Some of all parties are favourable to them; many know nothing about them, or are enemies to them. Theological opinions, too, we see, divide them into parties : it is therefore well ordained, that they should have common civil interests some rallying points, round which all men should meet, and consult together for the public good. Lord Bacon observes, concerning Government, " It is a part of knowledge secret and retired, in both those respects in which things are deemed secret : for some things are secret, because they are hard to know ; and some, because not fit to utter. We see all governments are obscure and invisible; ** Totamque infusa per artus Mens agitat molem, et magiio sc corpore miscct. " Such is the description of goveroments.'* Sq THE ENGLISH CONSTITUTION. 143 asfain: "Even unto the general rules and dis- courses of polity there is due a reverent and re- served handling*." What he meant, and why he said it, is clear from the paragraph that follows. But, without discussing his meaning, the observation is not applicable to those fundamental laws, on which depend the laws, liberties, and rights of English- men: there is nothing in them naturally myste- rious, nor necessarily inscrutable; they cannot be too clearly stated, nor too generally understood. It is observable of Hobbes's book, alluded to above, that, according to him, the Natural and Moral Law, the Divine and Christian Law, are one and the same : notwithstanding, therefore, his system does not allow men to discuss the laws, and the religion of the citizen must be the reli- gion of the state, yet, if a teacher is to explain the divine law, he must necessarily, in conse- quence of this union, unfold the law of nature ; that is, according to his own ideas, the funda- mental laws of civil society. So much at variance are political theorists with themselves ! 2. Next with respect to the Nobility. The dignified station, the superior privileges, and ex- * On the Proficiency and Advancement of Learning, Book II. cli. 2. 144 ON THE FUNDAMENTAL PRINCIPLES OF tensive property of the Nobles, tie them, by a link of interest, to the laws and constitution of their country : they are called to the discharge of the hig-hest duties of public life. But as a larger circle includes the less when drawn from the same centre, so do the higher duties of life those of the lower. Nobles are only privileged citi- zens : and their zeal for the rights of citizens should be of equal celerity with that of zeal for the mere privileges of an order. Fundamental law is nearer center, than accidental advantages and nominal distinctions. The noblest feelinsfs of Nobles are, to sympathize with the people: feel- ings they are of magnanimity, not of self-degra- dation; feehngs to which Patriotism gives the im- pulse, and of which the result is Liberty : not, I own, quite in harmony with Xenophon's adage (with which Montesquieu's sentiments seem to have corresponded) " The nobles are favour- able to nobles ; the people take care of them- selves." As the Nobles compose an estate of Parliament, the House of Lords is the sphere, in which their principal exertions are seen, but not that to which only their influence extends. And how wide, and how deep, may that influence be spread, for purposes either bad, or good ! For let it be observed, though by Nellies I here mean more THE ENGLISH CONSTITUTION. 145 particularly the House of Peers, yet in that house I include such as sit there as Peers of the realm, and those who sit there as Counsellors in matters of law ; such as the Judges of the Courts of King-'s Bench and Common Pleas, with other law- officers : together with such as sit there, whether it be as Lords of Parliament, or by the courtesy of Parliament, I mean, the Bishops. And here it is not intended to notice such as have used their influence for bad purposes ; who, by encroaching on the rights of the people, have discredited their own order,andhave undermined that palladium of our liberties, which it was their duty to have supported ; but a few only of those who, in accordance with their great rank, have had great feelings ; and who, speaking from a high sphere, have given a dignity to their senti- ments. Such men are examples, and will be here introduced as motives, being philosophically, no less than politically, nobles*. Trial by a Jury of their Peers, is a right which belong to all members of the community alike, Lords as well as Commoners; in this, as in a pub- lic bank, on which all may draw, all possess an equal interest; and, while so many have conspired * Pulchrius multo, paraii, quatn crcari, Nobilem. See Seidell's Titles of Honour, p. 854. 140 ON THE FUNDAMENTAL PRINCIPLES OF to corrupt it, pleasing it is to contemplate some of high rank, who have shewn zeal to preserve its purity. For though its excellence depends not on their authority, yet the testimony of great men carries weight, in cases which are often perplexed by artifices, or over-ruled by power. The duties and powers of Jurors have been well ascertained ; their boundaries clearly marked out, by men of superior abilities, in our own times; and here and there, in different periods, we meet with noblemen, who" have, rising like flowers over a spacious meadow, given fragrant testimony in favour of this fundamental of the English Con- stitution. On this point Lord Somers distin- guished himself, both by his public professions, and occasional writings. On the same subject, "Lord Camden bore a noble testimony to that side of the question, which may be called the popu- lar, and which is certainly the true, side I mean, which determines the right of a Jury to deter- mine on matter of latv, as well asfactf and which takes-in the intention. In our own time, also, Lord Stanhope and Lord Erskine have written most ably on it, and taken the same side. Judges and Crown-Lawyers have, like Bishops and Crown-Divines, been too much accustomed to encroach on the liberties of the people; and, as the latter have converted innocent opinions into 5 THE ENGLISH CONSTITUTION. 147 heresies, the former have construed faithful testi- monies, or accidental observations, into public crimes. Making- their own pleasure, or precedents dravvn from Star-Chamber, High Commission, and the Civil Law Courts, the rules of their pro- ceeding*, they acknowledged not the spirit, or trampled on the principles of the Common Law, the law of the land. I am now speaking more particularly of public Libels. And what shall I say ? To give some colour to their own mea- sures to seem acting under the authority of a system which puts no restraint on power, they chose rather to maintain, that we received all the Law and Constitution which we have at the point of William's sword, than to admit that English- men had any fundamental rights any constitu- tional claim ; as if all our property was to be re- ceived as an act of grace from the Crown, and all justice as an act of grace from our Courts of Law*. After much written about the Conquest, whether by the friends of arbitrary power or others, all that belongs to our question lies within a small compass, and may be deduc- ed from the title to the Laws of William I. (written in Nor- man French) " Ces sont les Les & les Custumes que li Reis William grantut a tut le Peuple de Engleterre, apr^s le Conquest de la Terre: ice les meismes que le Reis Edward, son Cosin, tint devant lui :" that is. These are the Law l2 148 ON THE FUNDAMENTAL PRINCIPLES OF Under this dereliction, even persecution, of British principles, of what incalculable value has and Customs which William the King granted to all the Peo- ple of England, after the conquest of the Realm ; they are the same as King Edward, his Cousin, observed before him. Notice has been taken, in a former Essay, on the sense of the word, " Conquest," by many writers; and Sir Matthew Hale, together with Judge Blackstone, puts on it the same sense. Wilkins, in his Anglo-Saxon Laws, and Dr. Brady, understand by the word absolute Conquest. Yet, whatever may be made of that word, or inferred from it, nothing can set aside these words, " being the same as those which King Edward, his cousin, observed before him." It has been already admitted, that William did in- troduce some other laws, adapted to his new state of things. But though it has been denied, that the laws of Edward just referred to, bore any relation to the laws of William, and more particularly by Mr. Houard, a Norman advocate, in a work entitled, "Anciennes Loix des Francois conservees dans les Coutumes Angloises, recueillics par Littleton, &c. en Rouen, 1760," that his arguments are unfounded, see well proved by Mr. Kelham, in the Preliminary Discourse to the Laws of King William, subjoined to his Dictionary of the Norman, or old French, Language. He further cor- rectly observes, that the word " tint" implies, that these laws did not originate even in Edward, but were handed down to him. Further, let it be noticed, that William's are the oldest Gallo-Norraannic Laws extant, and that there are no other laws of William extant, (Gallo-Normaunic, I mean,) which he brought with him out of Normandy; that the above laws THE ENGLISH CONSTITUTION. 149 been the honourable testimony of men of high rank, and eminent in the profession of the law! In unfolding- the orig'inal and primordial qualities of our Common Law the authority' of Parlia- ments the rights of Juries; in making an ex- posure of unconstitutional statutes of the uncon- stitutional claims of Ecclesiastics and the undue influence of Crown Law who can doubt, whether the testimony of Sir John Fortescue, Sir Edward Smith, Sir Edward Coke, and Sir Matthew Hale; and, in later times,thatof Mr. Daines Harrington, and Sir Michael Foster, have had great weight, not as oracles of law, whose opinions were to be received with implicit faith, but as great, no less than learned men, to whom some deference was due, and whose suggestions were felt in their in- fluence? And who can doubt, whether the evi- dence of men of high professional rank in modern were only a manual, as indeed the Confessors were, of the Saxon Laws; that he was bound by his Coronation Oath, to rule by the Saxon Laws; and that the customs and laws all over England were collected, that the people might be governed by them: Post acquisitionem Angliaj Gulielmus concilio Baronum suorura fecit summoniri per universes An- gliae consulatus, Anglos nobiles, sapieutes, et sua lege crudi- tos, ut eorura leges, etjura, et consuetudinesy ab ipsis audi- ret. See Spelman's Glossarium, et LI. Edwardi Regis. The reader, who knows what these laws, and rights, and customs were, will make the proper inference. 150 ON THE FUNDAMENTAL PRINCIPLES OF times, on similar subjects, will produce similar effects on futurity ? just as when waters come from an eminence, they flow on rapidly, and, sparkling as they descend, are seen at a great distance. Nor should the evidence of Blackstone be omit- ted ; for though I cannot reconcile to fundamental principles what he says, on the policy of receiv- ing into our system some rules of the Imperial and Pontifical laws on our religious liberties being fully established at the Reformation- on our civil and political liberties being completely regained under Charles II on the effect of the Test and Corporation Acts on the powers and rights of Juries and on some few other points, ably illus- trated by Dr. Furneaux*; yet do his significant discriminations, and open applauses, of what is to be admired in our Constitution, carry considerable weight; and the blemishes alluded to, are perhaps rather to be referred to his professional bias, than his true British feelings. For when we fairly estimate the caution with which he often speaks, the concessions which he sometimes makes, the steps which he evidently measures back, his ex- posure of the oppressions and alterations of our laws under William the Conqueror, together with * Dr. Furneaux's Letters to Judge Blackstone. THE ENGLISH CONSTITUTION. 151 his remarks on the solid improvements introduced by Magna Charta under King John, and by King JEdward; when, further, we perceive he admits, that " the royal prerogative was strained to a ty- rannical and oppressive height under Harry VII .," even to the time of Charles II. ; and that " our civil and religious liberties were not fully acknow- ledged till the Revolution*;" when all these matters are duly estimated; and when, above all, we consider the liberal statement made by him, of natural rights of civil and religious liberties, as involved in the claims of the English Constitu- tion; when the import of such testimony from our able commentator on the laws of England is considered, we must take it as ample and full; as a well meditated eulogium on the principles of English liberty, in a more enlarged, extensive sense. With respect to the legislative functions of the two Houses of Parliament, the reader is aware it is accounted essential, that each should possess its distinct prerogatives distinct privileges distinct powers, as independent of the other; and that, as the higher house may not affect the independence of the lower in its legislative character, so, if any individual peer interrupts the purity of elections * Blackstone's Commentaries, book iv. cU. 38. lo2 ON THE FUNDAMENTAL PRINCIPLES OF by bribery and corruption, he is liable to a severe fine. Biit a nobleman can use his influence for good, that is, constitutional purposes, as well as for unconstitutional, which would be for bad. Nor have we any magical power, either in church or state, that can prevent a nobleman, truly great, from moving" in a wider circle than that of Xeno- phon's maxim " Nobles think only of nobles; the people will take care of themselves." 1 allude to a small work, written by a noble- man, the Earl of Halifax, entitled. Cautions for the Choice of Parliament-men. Its aim is to guard the elective franchise against every species of un- constitutional influence : it unites much closeness with much elegance, and is admirably calculated to promote the end for which it was written : it has accordingly been used, if I mistake not, by some members of both houses, for the most con- stitutional purpose, to preserve freedom and purity of election : I at least recollect, it was so used by one member, who printed a large edition of the work for the purpose of distribution*. But, it is manifest, that a nobleman, who could use this influence consistently, must forego that * It was reprinted in 1802. The pamphlet is extracted from Miscellanies, by the Earl of Halifax, published in 1700. THE ENGLISH CONSTITUTION. 153 power, which by the same stroke destroys the elective franchise of thousands, and carries a shock to the Honse of Commons, which is felt through the whole body. I am aware, (as I before observed) a modern writer says, " that if the saleable boroughs were annihilated, the disease of the Constitution would be scarcely affected : the Executive Power will in- fluence the Houses of Parliament, as it influences the Houses of Convocation." The writer, how- ever, does not avow that opinion as an apolog-y for saleable boroughs; nor does any thing advanced by him affect my conclusion*. 3. I proceed next to consider the Prince Re- gent as an organ for transfusing the fundamental principles of the English Constitution : for as no individual is so humble as to be below notice in this proposal, no individual should be con- sidered so high as to lie beyond it. In civil society, every individual should feel his proper weight, and discharge his proper dues. The writer last alluded to observes, " that Ma- chiavel would have a prince, who is ambitious of praise and immortality, choose for the scene of his glory a state, that is corrupt and decaying, and to rectify and restore it." He supposes this country Preparatory Studies for rolitical Reformers. 1 54 ON THE FUNDAMENTAL PRINCIPLES OF to be at present in that state, and that the influ- ence of certain proposals were intended for the mind of his Majesty, through the interposition of the Heir Apparent. He adds, " I should cer- tainly not have proposed these thoughts as leading to a plan of Reform, preferable to any requiring the interposition of the people, if I had not un- derstood, that those high personages had been lately brought into numerous, affectionate, and confidential relations, by the circumstances of the times ; and that the sentiments expressed by the Prince are most b'ecoming in respect to his Royal Parent, and most consoling to the people." The unfortunate malady of the King having interrupted this intercourse, it is unnecessary to inquire into its object, or its probable result; and knowing nothing of the subject beyond what that passage furnishes, I pass to the leading design of this Essav. It is unreasonable, it would be impertinent, to suppose, that a Prince, born to be one of the legislative organs, and the principal Executive Magistrate, of a great empire, should have been inattentive to the principles, on which its Consti- tution is founded, and by which it is to be go- verned ; and that an early bias should not have impelled his mind towards those studies from the THE ENGLISH CONSTITUTION. 155 writings of his tutor*. Who has so many in- terests, so many duties, and so many pleasures, involved in them, as the Prince of Wales? Who has possessed more opportunities for seeing the ruinous tendency of principles, opposing at once the more enlarged maxims of our English policy, and the laws of nations, than the Prince of Wales? Who more reason to lament over that spirit of commercial despotism that affectation of rule on the seas and over the continent those unfounded presumptions of our shackling, monopolizing system of trade, than the Prince of Wales ? Who to perceive the occasion of that combination of European powers against us a dark host of de- parted friends, like the Prince of Wales? Who to inquire into the failures of our best-concerted expeditions; the derangement, the entire disor- ganization, of all our financial systems bubbles floating in the air, bursting, and disappearing like the Prince of Wales? When we call that British politics, which is at variance with British principles those politi- cians, patriots, who are merely lovers of them- selves, it is only as we give things nicknames. He who should be able to unite the interests of this country with the peace and happiness of * The late Bishop of Worcester's Dialogues on the Eng- lish Constitution. 156 ox THE FUNDAMENTAL PRINCIPLES OF Europe, would be a true British Prince, qualified to foster and promote the genuine principles of libert}' through his own favoured island. England's boast is, her free Constitution. All true Britons know this; but they also know, that a government by factions is not a free govern- ment, except as a nickname. A Prince Reoent of Great Britain should not survey the country from the little Goshen of self-seeking politicians (to borrow an allusion of Locke's) surrounded with partial laws, and exclusive piivileges. He is by his station placed on an eminence, and should survey the full prospect round : he should contemplate the different sections of society, earnest for their civil rights, as urging a just claim, as warmed by an English spirit. And a prince^, instrumental in their obtaining- their due proportion of civil privileges, would, let us not say, be meiely qualifieti to promote the principles of English liberty, he would by the very act do so; for cemented as these different sections would in- stantly become by a common interest, there would flow out, in a thousand directions, a light, which would at the same time transfuse truth and ex- tinguish faction ; while the prince himself would be considered as a central point the source of original communication, and constitutional know- ledge. THE ENGLISH CONSTITUTION. 157 Measures pnisued in arbitrary times, however pleaded for on principles of civil or canon law, cannot be defended on those of the common law, the law of the land *. Alid could it even be shewn that the accidents of particular periods rendered them expedient, when that expediency ceases, the operation of those laws should cease ; and a re- flecting prince should examine those measures by the principles of the Constitution, not bring the principles of the Constitution to the standard of those measures. The restoration of long-lost rights, as being a medium of political information and political at- tachment, has, by numerous claimants, been re- peatedly urged, and is now imperiously demanded by the times : and Machiavel's rule, " for Here- ditary Princes not to transgress the examples of their predecessors," should be taken in its con- nexion with the other " to comply and frame themselves to the accidents that occur." The examples of those predecessors, who them- selves, by their personal authority, transgressed the limits of the Constitution, would be bad pre- cedents to one who is to be a Constitutional Kinc:. Besides, were those measures constitulional, a wise prince should consider, that all human things Fortescue de Laud. Aiij,'. cap. 24, 25, 158 ON THE FUNDAMENTAL PRINCIPLES OF change, and that constitutions change too, and may change for the better. With the increase of property, feudal severities have ceased, to the great improvement of civil society : but the acci- dents that have occurred, and are occurring still, speak with a loud voice, That the Political Body moves with energy and force, by due assistance of its parts; and that the limbs, which have unna- turally been dissevered, should speedily be re- united, if we desire to restore the body to form an harmonious whole. 4. As the King in a constitutional sense, never dies, his personal malady does not affect this question : he exists in his two-fold capacity as one of the estates of parliament, and as the su- preme executive magistrate. In his former capacity, the King can make no law he can alter none. Each estate is inde- pendent of the other. Their separate move- ments coalescing in one will, produce Law : a power exceeding that just movement, is uncon- stitutional, and may be called Influence that more refined species of corruption, proclaimed to be essential to the Eng-lish Constitution. But I pass it, as an excrescence no natural vital part of our body politic : I pass all the king's legisla- tive function, too, as that by which he has no right to act on the other estates of the realm. THE ENGLISH CONSTITUTION. 15^ By his executive power he may act he must act, either for good or ill ; and which ever impulse he takes, the eflPects cannot be calculated ; for as from fountains proceed all the rivers and all the lakes, that are so proudly conspicuous ; and all the rivulets, and the brooks, and the rills, which take a more secret course ; and as the reservoirs are supplied thence, administering both to the ne- cessaries and comforts of private life, so is the King, as supreme executive magistrate, the source of all executive power through the land; for he not only chooses his own counsellors and minis- ters, but all great officers of state all the high functionaries of public trust, whether civil or ec- clesiastical, or naval, or military ; and in propor- tion as inferior officers originate in, and derive all their commissions from, higher, we see at once how the power of supreme magistrate reaches all authorities, and pervades each portion of the com- munity. Nor does it rest here : for though, as one of the estates of parliament, he exercises no legislative authority in the House'of Lords, yet he is the fountain of nobility, by his prerogative in creating peers. So wide is the Royal Power! so ceaseless its operations ! so unavoidable, un- measurable its extent ! How does a King of England promote the principles of English liberty ? When, proceed- 160 ON THE FUNDAMENTAL. PllINClPLES OF ing within the limits prescribed him by the Con- stitution, he eyes its fundamental principles as the central point; not cutting- and crossing' our civil and religious liberties, but moving, as it were, in the same plane with them. Some of our kings, in arbitrary times, have given to their proclama- tions the force of laws ; have overawed pai lia- ments; and, as despots, have (/iven ///jr^, com- municating to the people, like evil spirits, delu- sions and lies: but a true English king proceeds in constitutional order ; and moving in harmony with the other legislative powers, like a guardian angel, encourages, invigorates, and recommends all that is excellent in our Constitution. That *' the king can do no wrong," in reference to the English Constitution, is proved to be un- true by the principles avowed at the Revolution; as a political or legal maxim, every one under- stands wliat it means*. In the right distribution * This, however, is a foolish maxim, and was probably derived from Eastern tyrannies. The language too, that " the King never dies," was probably derived from absolute governments. This absurd language at least reminds me of the grand prerogative of the Chitome, the high priest of Abyssinia. When he is sick tiiey knock him on the head ; when aged they strangle him ; and a high priest full of strength is immediately put in his place : and they mean by this barbarous absurdity to render the office eternal. 'J'hc Egyptians served their God, Apis, the consecrated ox, in a tHE ENGLISH CONSTITUTION. 161 of his confidence, and a judicious deleg^ation of public trusts, consists the power of the supreme mag-istrate, in his executive character, to do ex- tensive good ; for, by choosing' his counsellors and ministers according to their known regards to the religious and civil rights of the community, and by appointing such men to the higher de- partments of public offices as his representatives, he transfuses his own power of conveying, as through so many ducts, true constitutional in- struction to the people : and as he himself is, constitutionally speaking, responsible to the peo- ple, so will he, if conscientious, hold himself an- similar manner. He must never die. Accordingly, when near his latter end they drowned him in the holy river, the Nile ; and a fine hale ox was immediately placed in his room. The Mexicans had a kind of Apis, a man, whom they killed after nine days of high enjoyment: they repeated these words to the successor, " Lord, your pleasures are to be at an end in nine days." BuUenger, that ardent enemy to eastern despotisms, was as ardent a friend to kingly govern- ment, particularly to the English ; and hence his great admi- ration of Montesquieu. See Recherches sur I'Origine du Despotism. Sub, fin. Many of our forms, the title of our Prince, many privi- leges of our nobles, some peculiarities in estates and tenures, which have been altered, are, it is allowed, derived imme- diately from the Feudal System; but there is a sort of unc- tion in our language, that seems to have had an Eastern origin. M 162 ON THE FUNDAMENTAL PRINCIPLES OF swerable to his conscience, to prevent all violent derelictions of public duties to check all devia- tions from the Constitution ; for such a capacity, in numerous important instances, he possesses. Indeed, public functionaries in the higher dej)art- ments, in their ordinary course, naturally eye the ruling star, and by a sort of instinct are apt to go as that leads, whether it be in the order of the Constitution, or against it; and thus the inferior officers regard them. We should hear little of informations e.v officio (which, however approved by Blackstone, are not constitutional,) and other ungracious practices in our courts of law, to say nothing of other matters, any more than we do of the unconstitutional procedures once followed in High-Commission Courts and Star-chambers,* if the supreme magistrate pointed right, in true *It is pleasing to recollect, fliat in some of these Infor- matioDs ex ojficio, the late Attorney-General did not suc- ceed; and till he proceeds in a more constitutional way, by indictment, it is desirable that he should never succeed. It is no less pleasing to hear, that in one case (as 1 am informed) that Attorney-General received a check from the Judge on the Bench (Judge Bailey,) who suggested to him that he had better take another way ; and that no better a reply could be given by the Attorney-General, than that others before him had proceeded by information. But see Sir R. Coii>n's Posthuma, p. 221, &c. where all the law on this subject is laid down at full length. THE ENGLISH CONSTITUTION. 163 constitutional splendour. Such a kin^, by his conscientious selections by his judicious arrange- ments by his steady, well-directed conduct, mig-ht be the means of preserving in its purity, what is good in our Constitution perhaps, of correctinof its faults ; he would possess, in the hearts of his people, a silent energy, a powerful, virtuous, constitutional injluence, which would communicate more knowledge, and produce hap- pier effects, than the writings of all the royal authors, from the days of Harry the Eighth to the Revolution : he would blunt the edge of that sarcastic, but just remark, "that few kings reign;" and recall to the recollection of Englishmen, that they once possessed an Alfred. May I venture to speak on a subject of rather a delicate nature, but, at the present moment, of the greatest consequence, and connected with the object of this appeal ; involving as it does at once the nature of the Coronation Oath, and the claims of a numerous portion of the inhabitants of the United Kingdom ? Is there any thing in the Constitution of this country, which opposes the natural rights of mankind ? any thing which opposes their just rights, as citizens ? If there is, we may be sure it is wrong. Is there any thing in the Coronation Oath which opposes those claims? That oath, then, is wrong. Natural M 2 164 ON THE FUNDAMENTAL PRINCIPLES OF and religious rights are paramount to political constitutions, and, by consequence, paramount to the obligations of civil magistrates. But let us coolly weigh the matter. We have already observed, that neither is there in Magna Charta, nor in the Act of Settlement, any notice of those numerous speculative opinions, w^hich have since divided the different religious sects. The Test and Corporation Laws were introduced, it is allowed, between two periods, for the pur- pose of excluding papists, as such, from civil offices ; bvit, whatever may be said on the occa- sion of the introduction of such laws at first, the necessity for their continuance has ceased -, and we do society and individuals "an injury," "how- ever coloured with the names, and pretences, and forms of law," by continuing them ; we do bona fide " declare war on the sufferers,"* and throw men back again to Mr. Hobbes*s " state of na- ture,^' which he declares to be " a state of war," though we begin it. The modern catholics es- sentially differ from the old papists : they have proved themselves qualified to give a civil test *' for their adherence to the Protestant Succes- sion ;" we have no right, therefore, to require^ nor does the case require, a religious^ sacramental * Locke on Governuient. THE ENGLISH CONSTITUTION. 165 test : and if the King, as one estate, in union with the other branches of the legislature, would but do his proper duties, we should see, both with respect to catholics as well as other non-con- formists, the truth of what Bishop Hoadley men- tions, *' That non-conformity to a church estab- lished by human laws, cannot be in itself a certain sign to Christians of any want of a due concern for the peace of church and state."* We give them civil tests, and to them even their reUgion binds ; but by religious tests we confine the church; we divide the state; we are neither good churchmen, nor prudent politicians. Our limits do not allow us to consider the na- ture of an oath at large. In the case now alluded to, the civil magistrate binds himself by an oath, to uphold the Protestant established religion. Why ? Because it is the will of the majority. This was the doctrine acted on at the Revolution, That the will of the people was the law of the state. At the Irish Union, as in the present times, very greatly the majority of the Irish nation was catholic, and they had then a parliament of their own. They agreed to the Union, with either a direct assurance, or liberal insinuations, * See Bishop Iloadley's refutation of Bisliop Sherlock's arguments against a repeal of the Corporation and Test Laws. 166 ON THE FUNDAMENTAL PRINCIPLES OF that the claims of the majority would be attended to. This was their ready stocky before the uuioUy and the implied bargain, well understood by both parties, when the union took place. To recede, therefore from the condition, made under stipula- tions either expressed or implied, by the pretence of an oath, would be as contrary to the import of the oath originally administered, as to the stipu- lations afterwards made ; in short, contrary to the principles acted on at the Revolution. And it was, 1 apprehend, on observing- this tergiversa- tion, that some who spake zealously and admi- rably, at first, in favour of the Irish Union, did afterwards repent of their zeal, and altered their opinion, when too late. And shall we now leave the Catholics to say, at last, that we held out treacherous baits ? or do we choose to call them constitutional douceurs ? And do we wish to leave the Catholics under the imputation of civil credulity, and to take to ourselves the merit of a pious fraud ? But after all, what is the express language of this oath ? What the point towards which it is directed ? and what the construction put on it by the legislature i,tself ? The part of the Coronation Oath at the Revo- lution more particularly under consideration, is, as the question is still put by the Archbishop, and THE ENGLISH CONSTITUTION. 167 the answer returned by the King", " Will you, to the utmost, maintain the laws of God, the true profession of the Gospel, and the Protestant Re- formed religion, established by law ? And will you preserve to the bishops and clergy of this realm, and to the churches committed to their charge, all such rig-hts and privileg-es as by law do or shall appertain to them ? King. *' All this I promise to do." This approaches very near in substance to that most ancient Coronation Oath administered to a Catholic king, Edward II. by the Bishop of Winchester. Both relate to the civil establish- ment of religion : neither of them relates to doc- trinal matters, any more than Magna Charta, or the Act of Settlement. I do not mean to deny that under William the Conqueror heresy and idolatry were Crown pleas, nor tliat the act of supremacy now has religions power within the church ; but it has none without it, either from the Gospel, Me Christian code, or from any funda- mental law in civil society. What are we to understand, what can we un- derstand, by maintaining *' the Protestant Ue- formed religion, established by law" (with respect to those without the church,) than this, that the civil magistrate will give the estabhshed church his civil sanction his religious profession (for he 168 ON THE FUNDAMENTAL PRINCIPLES OF must be a Protestant ;) that he will authorize provision for the regular clerg'y, and protect the temporalities, while it continues the will of the majority ? for without this sanction, whence was onr authority for altering our church, which, before it became protestant, was catholic ? This it is to preserve what have been called, the Rights of an Established Church. When it is said, " Will you, to the utmost of your power, maintain the Gospel, &c." what can it mean ? Must it not mean all that he can constitutionally all that, as a king, he is " able to do," as the old act expresses it? Must it not be necessarily so limited ? and would we lay un- constitutional burdens on the Supreme Magistrate of the United Kingdom? Literally speaking, a king might write more religious treatises than Harry VIII. or James I. put together ; 'ikid preacli^more sermons through England, Scotland, and Ireland, than George Whitfield; and yet not do all that was within hispoiver. And what has been the interpretation put by the legislature itself on the laws, and cusiomSf and statutes^ mentioned in the Coronation Oath ? Have no laws been rej)ealed since that Corona- tion Oath was administered at the Revolution? Have not some religious points been conceded to Protestant Dissenters ? Has not non-conformitv THE ENGLISH CONSTITUTION. 169 ben declared, by statute, to he no crime ? Was not its cause, on that principle, openly maintained in the House of Lords, by an able Lawyer, Lord Mansfield ?* Has not the same cause been zea- lously advocated in the House of Commons? What then is the sense put on the Coronation Oath by the leg-islature itself? Further, King-s of England, on their accession to the throne, have sworn to maintain the settle- ment, relating to acts that affect the established religions in England and Scotland; and yet two acts of the Scotch Parliament were afterwards either altered or repealed ; and one most mate- rial alteration was made, relating to the patronage of livings, which has been called a violation of the Union, and was brought forward by the ene- mies of the Protestant Succession ^^mu^it\\e?,er\se of the people of Scotland. What was then the import of these acts ? Was it not that the altera- tion of statutes, of penal statutes, may be made, notwithstanding the Coronation Oath ? And has not the legislature itself given a sanction to this doctrine ? f * See his Speech at tlie end of Furneaux's Letters to Black- slonc. t On the Act of Patronage in Scotland : see an Enquiry ito the Principles of Ecclesiastical Patronage and Presenta- tion, p. 29. 170 ON THE FUNDAMENTAL PRINCIPLES OF It is greatly to be lamented, that Judge Black- stone should at all have spoken in favour of our penal laws, when it is evident, even to candour itself, that his better feelings flowed from a purer source. A constitutional king should distinguish, as constitutional lawyers do, a Commentator on the Laws of England looking towards the Bench. For Blackstone, when he wrote his Commentaries, was only hohimj to he a judge- and this is the true key to his inconsistencies. To guard what has been said, let it be observed, that it is not denied, it has been granted, that before, and at the time, when Magna Charta was granted, church and people formed the same people. To those times Hooker's observation well applies : " The church of England and the people of England were the same people." It is, how- ever, still true, that Magna Charta has nothing- doctrinal in it ; and no less true, that Hooker's maxim does not apply to the times since the Re- formation. Men, exercising their own faculties, and following the dictates of their consciences, have formed different opinions on doctrinal arti- cles, and cinirch government ; while philosophy, more unshackled from bigotry, has breathed some- thing of the empyrean of liberty : Experiments have proved to be true, what bigots and politicians denied. THE ENGLISH CONSTITUTION. 171 Civil and religious liberty, is the only true ce- ment of the English Constitution: penal laws are wedges driven violently into it, and keep the parts wide asunder : these were never genuine parts of it, and, wherever they appear, are sophisms inter- mingled with eternal truths. It is time that these sophisms were untwisted : we should revert to fundamentals, and distinguish what is merely le- gal from what is constitutional. As to the old Coronation Oaths, they were administered when the nation was united in one faith ; the new, when the nation was split into religious sections : and, if by maintaining the true profession of the Gospel, any thing more is meant than professing the reformed religion, and giving its teachers a civil sanction, it goes further than any civil ma- gistrate is authorized to go by that Gospel ; it is contrary to right reason, as well as to true policy, and may become a trap to a cotiscientious king, no less than an insult to those of his subjects who have any conscience left. No oath, that binds a king to the will of the majority, can authorize him to resist the will of the majority ; and no govern- ment could, constitutionally, impose such an oath on an English king. Conscience is that secret council-chamber erect- ed in the breast of man by the Great Power that formed him a mysterious vice-gereucy, that 172 ON THE FUNDAMENTAL PRINCIPLES OF brings nigh to human beings that Presence, which fills the universe. Kings, as well as subjects, are under its dominion ; and for their reli(/ious feelings and apprehensions are accountable to that tribunal alone. A king is bound by his religion, in his personal character, in foro conscieniitBy as much as a subject; a subject as much as a king. But, does a subject forego his civil rights by em- bracing religious opinions? Or can a king, in his political character, be released from his obli- gation to protect a citizen in his natural rights, and civil privileges that being the very end of political society, the only just foundation of civil government? Liberty of conscience is every man's inalienable birthright, a franchise, of which no being on earth has a right to disinherit him ; and for the peaceable enjoyment of which, he should forfeit none of the common advantages of civil society. In short, to speak without reserve, every mem- ber of a civil state is, in matters purely religious, under the great Theocracy : and shall a feeble local king, the magistrate over a few acres of ground, dethrone from his peculiar empire, the human conscience, the KING OF THE UNI- VERSE? It was lately hinted by a Prince of the blood, in the House of Lords, that the unfortunate malady THE ENGLISH CONSTITUTION. 173 of a great personage might, perhaps, be traced to the perplexities ii; which this question had placed him. What a hint to an heir apparent to have done a splendid action ! What a hint to that great personage, should he be ever restored ? 5. As to the People at large, it should seem but a principle of moderation, to say, that in a cause which concerns every individual, no individual should be wholly indifferent. For though indi- viduals may ask, what good can we do? Yet, as it is reasonable, that every man should know something of his birthrights, it will be natural for him sometimes to talk of them. Is it not also agreeable? Is notlove of liberty a natural passion? like all natural passions, is not the very feeling of it delight, and to converse about it, does it not re- fresh the spirits ? The Liberty of 'the Press is a scion of the good old tree of English liberty ; and although liable to some luxuriancy, it bears much wholesome fruit. True it is, it may be prurient, but it must not be lopped off. The art of printing itself has been the means of prop;? gating some errors, some absurdities, some i alignities; but by lead- ing to truth and philoso^ Jiy, it has been favour- able to human happiness. And the liberty of the press, though that press may occasionally be licentious, is by its general tendencies naturally 174 ON THE FUNDAMENTAL PRINCIPLES OF salutary, and more abundantly beneficial to man- kind. Thus the public papers, which may be consi- dered as kind of registers of the times, often lead mankind to much important truth ; for, though they frequently subserve people's particular inte- rests or passions, and lead far enough from liberty and truth, yet, when directed by wise and well- principled men, they conduct to much good, they bring out much political information ; and their very oppositions often produce elucidations : for as flint struck against steel elicits sparks, so do the contentions of writers, playing at cross-pur- poses with one another, often throw out a light which keeps the unprejudiced in the right way. The debates of the House of Commons, as report- ed in these papers, have the same tendency ; for though they sometimes are at'variance with the liberties of the country, and are sometimes made with more of gladiatorial prowess and violence, than of legislatorial dignity and principle, yet when men of generous, disinterested feelings bear testimony to the best principles of the Constitu- tion, their words, like seeds borne by the wind, and carried to a distant soil, are conveyed far and wide to many an unsophisticated heart; and taking deep root, they produce the most solid, evergrowing advantages. THE ENGLISH CONSTITUTION. 175 Time would fail me to notice particular per- sons, who in their private capacities have felt agreeable employment in distributing^ useful pamphlets on the principles of English Liberty, or to point out the worth of those pamphlets illus- trated by them ; but their ardour is entitled to much praise. One example I cannot forbear noticing: It is of a private gentleman, who, after travelling in foreign countries, sat down quiet and delighted in his own ; petiit placidam sub libertate quietem and who, ac^miring the best principles of the English Constitution, as unfolded in the political writings of Sidney, Milton, Marvel, and Locke, published them at his own expence. Portions of these were select- ed for a wider circulation. The complete copies were distributed among private friends, or depo- sited in various public libraries throughout Eng- land and Scotland. Nor was his zeal confined to his own country : copies of these works were conveyed, under his direction, and at his expence, to public libraries in North America, in Holland, and Switzerland. A testimony this, worthy of a true Englishman, creditable to his nation, and highly honourable to himself, beneficial to his own countrymen, and, no doubt, singularly bene- ficial to mankind at larae!* Memoirs of Thomas Hollis, Esq* 376 ON THE FUNDAMENTAL PRINCIPLES OI Societies have been formed with similar views, to convey constitutional information, more en- larged views of our representative system, and to support the liberty of the press : some composed of untitled citizens, others combining' with them members of both houses of Parliament. That effects proportioned to their wishes and plans were not produced, was owing, in part, to the in- terposition of government, in part, to other causes not so obvious to a hasty survey. Shall we say, that no good was effected? The full influ- ence of useful truths, no less than of pernicious doctrines, is not to be calculated by immediate effects. It is not the mere depositing of seed in the bosom of the earth, which can cause it to grow : that seed takes a new place, it must strike root, undergo a chemical process by means of other bodies, with which it comes into contact and depends on other influences, independent of the poweVof individuals, or societies of agriculturists; what retards its growth, may perhaps strengthen its vital principle, and prepare it for a more peaceable issue. Such may be the issue. But shall man be confident? Blasts and mildews may scatter, or wither, his rising hopes suddenly. Political societies are sometimes composed of men not united among themselves, and have to contend with other societies united against them THE ENGLISH CONSTITUTION. 177 all. Our condition, as a civil commtinity, also, is not the best calculated to admit constitutional in- formation. We are a rude mass, a loose com- bination (if those words may be used together) of different interests, of different passions, of dif- ferent religions, and different corruptions. Should government ever study the real interest of the community, as well as its own, it would unite its influence with such societies, should any such arise, for the perfection of our i-epresentative sys- tem. This once attained, we might boast of some- thing like a perfect Constitution. Understanding, perhaps, better than our Saxon ancestors, the na- ture and end of representation, we might learn much from their wisdom in realizing the plan : as, indeed, than their ancient division of England into Tithings, Hundreds, and Counties, nothing was ever more admirably devised for mutual pro- tection and confidence, mutual justice and be- nevolence ; and nothing would be better calcu- lated for the destruction of all party spirit, and the propagation of constitutional knowledge. Happy for societies of men, if from their laws and go- vernments much of that rubbish was removed, in which the primitive truth, and the most salutary maxims, lie buried and almost forgotten ! But let our spirits be erected, and let ns be assured that if ever societies are rightfully restored, it N 178 ON THE FUNDAMENTAL PRINCIPLES OI' must be by the exercise of Reason, and the im- partial administration of Political Justice*. In conclusion, it should be confessed, what must have been observed by the reader, that no attempt has been here made to delineate many of the minuter distinctions, those lighter shades of political character, which distinguish the English Constitution from every other system. In like manner, the principles, rules, and forms of distri- butive justice, whether civil or criminal, together with the customs and practice of our courts of law, are passed by. They did not properly make part of the present plan ; and the reader must be referred to systematic writers, who professedly treat of them. It should, however, be observed, that such writers are too apt to overlook the de- fects of our system, and even sometimes, to call defects excellencies f. Neither for the defects complained of has any specific remedy been proposed. But a dispas- * Those who consider how the spirit of a government per- vades every part of a nation, will see much trutli in liie ob- servations, " that of all the modes of operating on the mind, government is the most considerable ;" and again, " that it may be reasonably dotibted, wlielhor error could ever be formidable or long-lived, if goverinnent did not lend it sup- port." Godwin's Polit. Justice, Book I. Ch. 4. t This is true of Montesquieu and De Lolme. THE ENGLISH CONSTITUTION. 179 sionate and enlightened reader will not be indif- ferent to the subject, cannot be unprepared to give it a most serious examination. It is some- thing, that many of the ablest and most upright men among our legislators, in both houses, and of different parties, have set the example : including May 14th, 1770, when the Earl of Chatham moved an Address to the King-, to desire he would dissolve the present Parliament, and May 8th, 1812, when the Honourable Thomas Brand moved for leave to brine/ in a Bill to repeal the Act 31 Geo. II. c. 14, and to entitle Copyholders to vote for Knif/hts of the Shire, the question of a Reform in Parliament has been agitated fifteen times. Which of the plans was most happily conceived, which most plausibly supported, or which might be most successfully realized, I presume not to decide. Out of the several schemes, for they differ, and were sup- ported by different arguments, some able poli- tician, perhaps, might form one, which would prove the remedy for at least some of the evils complained of in these Essays. N 2 POSTSCRIPT. X HE following Postscript is added, to supply a few omissions. In proof that the English Constitution is a Constitution in Church and State, it should be recollected, that at the beginning of the Refor- mation, under Henry VIII. one great principle on which they proceeded, was, that the Kings of England had been accustomed to have authority in all Ecclesiastical matters, from very ancient time. Accordingly, Lord Cromwell, a layman, was appointed the King's Lord Vicegerent in ecclesiastical matters, and, in that character, exercised jurisdiction. This he did at first by the king's sole authority; but the title of ^m- preme Head of the Church, was, (though first opposed by the clergy, who, however, soon com- plied), obtained for the king, and finally settled by AN Act of Parliament. This was 182 POSTSCRIPT. passed 15 Feb. 1533*: and Henry was em- powered, both by the clergy in convocation, and by the legislature at large, " lo exercise all spiritual jurisdiction :" and, though the bishops and clergy have their distinct functions now, yet every one of those functions, in its origin, was a trust derived from him, even ordination itself, and in strict constitutional language, is so still. This legislatorial act, thus received and sanc- tioned by both houses of convocation, will justify, without any further illustration, it may be pre- sumed, our adopting the phrase, a Constitution m Church and State, a phrase, which, I think, is not generally received. In saying, somewhere, that a convocation is merely a civil power, I have followed the ideas of our most eminent writers on this subject. A convocation was called by the King's writ, at the time when Parliament is assembled ; a synod by the Bishops'. Should it be said, that the clergy, assembled in convocation, sometimes transacted ecclesiastical business, it should it be recollected, that though assembled by the King's writ in convocation, they may have been constituted a synod by the Bishop's writ, at the same time. The former used to be summoned w hen parlia- * Burnet's Hist, of Reformation, B. 1. POSTSCRIPT. 183 ment assembled, and accordingly, ihey were sometimes called " Parliamentary Conven- tions.**' Theories of government are delicate subjects, though not mysterious ; and become more deli- cate, in proportion as they are more mixt and intricate. But, in reading the preceding pages, readers must distinguish what is said in a way of mere statement, from what might be said in a way of censure and approbation. It may be sometimes sufficient to speak of facts in a way of statement; in which case a writer is to be charged with no responsibility, except for correctness. Whatever his private opinion may be, if there is little merit, there is at least no crime, in not setting much value on his own opinions, and in paying some deference to the public will and au- thority. Some, I am aware, are not over-fond of the way followed in these Letters, in speaking of the English theory of government, as a Constitution ; for there are those. Monarchists as well as Repub- licans, who think the English have properly no Constitution, and that every thing supposed un- der that term is, and ought to be, resolvable into * See Archbishop Wake's State of the Clergy and Church of England ; and Authority of Christian Princes, &c. 184 POSTSCRIPT. the power and will of Parliament. Such writers seem to consider the word, Constitution, as a metaphor. They will then, at least allow me to carry the metaphor a little further : the regular entrance into the more secret parts of a building' is by the door : and if we would ascertain the character of the structure, either as a whole, or in its several parts, according to the rules of science or taste, we must consider the particular order (to use architectural language) to which it refers. To speak without metaphor, all must allow, that there are some political principles, which, more than others, are agreeable to the usual practice, and genuine spirit and character of true Englishmen : and my particular zeal does not extend much further. It is the practice with professed admirers of the English Constitution, to close their eulogiums with a prayer for its perpetuity ; * Esto perpetual" But our affections, like every thing else, are sub- ject to laws : and for myself, though my submis- sion and deference are cheerfully yielded to what is established, my devotion can only be paid ac- cording to my own ideas of what is good ; and na true Englishman can wish continuity to any thing, but what comports with the true dignity of the English character. This devout ejaculation, " esto perpetual" POSTSCRIPT. 185 seems to have in view a passage in a fragment of Cicero, in which that great man says, that a state should be so constituted, that it might be eter- nal*. St. Austin f refers to this fragment : and Toland has sanctified the idea, by applying it to the commonwealth of Moses, which, though it was never perfectly acted upon even in Judea, he thinks the most perfect that was ever formed : and hence he infers, either that the author of it was God, or that Moses must be ranked among the greatest politicians J. Harrington too carries the idea into his Oceana. Whether this absolute perfection can ever be realized in any human institution, may be reason- ably doubted : but we all know that a theory of government loses its name, if it does not govern. We all know what has been thought of perpetual motion in mechanics, and what Montesquieu * Debet enira constituta sic esse civitas, ut zeterna sit. Itaq. uullus interitus est reipublicee naturalis, ut hominis, in quo mors iiou luodo necessaria est, verum etiani optanda persaepe. Civitas autem cuui toliitur, deletur, extinguitur, simile est quodammodo, ut raaguis parva conferaraus, ac si oranis hie mundus intereat, ac concidat. Cicerouis Frag- menta Philosophica, I*atricio Digesta. t De Civit. Dei lib. 22, cap. 6. X Two Problems on this subject, the Commonwealth oj Moses, at the end of his Nazarenus. 5 186 POSTSCRIPT. tboug-ht of this theory of the English Constitu- tion " It will perish ! It will perish, when the legislative is more corrupt than the executive." As to a theory of government that does not govern, it is in fact nothing ; or to say the most, if it loses its principles and character, it ceases to be what it was*, though it should even retain its form. Perhaps, however, after all, it is even danger- ous to nourish too fond ideas of inherent perfec- tion. It is certainly often found to be so in the experience of individuals. Self-love is apt to en- gender self-confidence, that rock on which virtue has often suffered shipwreck : and hence that humbling maxim, '* A haughty spirit goeth be- fore a fall." Besides, as there is no individual, that may not deiive benefit from other indivi- duals, so it would be unfortunate in a nation to consider itself so isolated by its own excellence, too often imaginary, from others, as to be incapa- ble of receiving any improvement from their ex- * Tliis was a severe reproach brought hv Cicero against the Romans of his time : nostra vcro yEtas, cum Rempubli- cam, sicut pieturam, accipisset egrcgiara, seel jam cvanes- ccntem vetustate, non modo earn coloribus iisdeni, quibus fuerat, renovare neglexit, sed ne id (juidem curavit, ut for- raam saltern ejus, et extrema tanquani linearaenta, servarit. Fragmcnla Philosophica. POSTSCRIPT. 187 perience. Even absolute governments may have in them much that is good ; and the freest governments in the world may incline to what is bad. When the Emperor of Russia was in this country, he expressed great approl)ation of those views of the English Constitution, that were held by Mr. Fox, at the same time adding, that the world was not enlio'htened enouofh to receive them. Yet Alexander is improving Russia very fast, and four or five of his provinces he has actu- ally delivered from their wretched slavery. The government, it is true, is absolute. The Emperor, and eighteen Counsellors, chosen by him, give laws to the whole empire. Yet even here, of those eighteen Counsellors, some are of the Greek Church, some are Catholics, some Protes- tants ; some are Russians, some Germans, It is at least not a government by exclusive privileges. Here Russia then might reflect light on Eng- land : and in its conduct towards the Jewisli Christians, which has been lately announced, there is much that may instruct us. Again ; we have not shewn a backwardness to receive instruction from our enemies. It is well-knovk'n, that the military tactics now fol- lowed in the English army were derived from the French. Would it be weakness to go a step further, and take a hint from their Concordat, 188 . POSTSCRIPT. and even their present Civil Code? Perhaps they were taught Toleration from us. But they now g-o beyond us, in not authorizing exckisive privileges, and in admitting men as citizens to participate in the several offices of the state. So America, which is indebted to England for its principle of representation, can repay the obligation now, by teaching England how to preserve its purity, both with respect to the elec- tors and elected. In speaking of the parliament I have only mentioned what properly constitutes it so : though formerly, the Barons of the Exchequer, the King's Privy Councillors, and learned Council, had writs, though not tenure aii{ dignitatis ra- tione : but they had no voice, and consequently no proxies. The judges continued to have writs in Edw. I. II. and Ill's, reigns*. Some writers, learned in the law, have pointed out the defects and excesses of our statutes f, under distinct heads ; and the late intelligent Lord Stanhope, it is well-known, formed the design of reducing the immense mass of them into something of an abridged, and regular order. When Englishmen shall enter into such en- * Elsynge on Pari. i, iii. t Judge Barrington on the Statutes, and an Abstract of the Penal Laws, bj CapelLofft, Esq. POSTSCRIPT. 189 lightened views, they will have rules of discri- mination, and an opportunity of surveying, by a clear and easy view, what now covers an im- mense space, a body of Constitutional Law. What relates to the Laws of England, cer- tainly should relate to its Constitution : but in the present case it became necessary to preserve limits; not even to attempt much ; and only to refer to the common law, as it concerns civil and religious liberty; to the common law in its highest, most precise, and defined sense, as it is a law of Principle, in opposition to arbi- trary decrees, unconstitutional statutes, to cases that may be vague^ and precedents that may become dangerous. Such is the English Com- mon Law : though I have been only able to glance at it, even under this view. But I feel a pride in reflecting, (such is its excellence in this point of view) that those very states, (I mean the American), who are not over-fond of some forms and principles in our constitution, do, in their courts, follow both the forms and the principles of our common law ; these being, it should seem, the most excellent of any they could devise. And now, after this attempt to ascertain and define the principles of the English Constitution, accompanied with such feelings, as they naturally inspired, should it be asked, Cui Bono P What end is it to answer? I confess I am not prepared 190 POSTSCRIPT. with a reply, beyond what is given in the pre- face. It is pleasing- to follow good principles iii their progress to perfection : but should we, as some think, in the natural order of human affairs, or as a punishment for our crimes, be doomed to see what is deemed most valuable in those principles to crumble away, it would be- come a most affecting consideration : theories would then only perplex and confound us ; and what might be matter of triumph, become onl}^ matter of humiliation. I have thought too much on the Institutions of my country, to believe every thing in them right 3 and I love my country too well to pray for the perpetuity of what is wrong. I wish it public virtue, because I wish it public happiness : and I wish, that for the following sarcastic prayer there may be no predisposing cause, and that the im- port and effect of it may never rest, among the admirers of the English Constitution. Virtutem vidcanl, intabcscantq. relief a! Persius, Sat. 3. 38. N. B. The second paragraph in this Postscript, relating to Church and State, is unnecessary. I perceive, that the pas- sage, which I thought had been omitted, is introduced in another, and a more proper, place. THE END. SARNARD AND FARLKY, SktnuKt-iUrttt, LenUmi- 9 8 2 6 UNIVERSITY OF CALIFORNIA AT LOS ANGELES THE UNIVERSITY LIBRARY This book is DUE on the last date stamped below m NOV 22 iNTRUBRARY LoANS Jhfee weeks from date at ^^^ Form L-fi l(im-.-!,'31K77.-,:) DIVERSITY OF CAUFOBWifc AT U)S ANGELES L 006 877 497 5 UC SOUTHERN REGIONAL LIBRARY FACILITY A A 000 133 049 7