— ^ ---^ .«*^ ^ _? «--_ i^ ^,^ -. «v i.>wi ii-ife? jifSss* «r«iB^ 0«>-''c^ C^ LIBRARY University of California. MRS. MARTHA E. HALLIDIE. Class 5!^- 'i. -.K^-" ■' ./->— k-rf ^W4 ^ntm 'AioX-- i5>f.- t Digitized by the Internet Archive in 2008 with funding from IVIicrosoft Corporation http://www.archive.org/details/constitutionofenOOIolmrich THE CONSTITUTION OF ENGLAND Printed by S. Hamilton, Weybridge. I.I^.BE I.OI.3JE JPhifitAeJ ^lu^iut xo. A»«», br». i*A-J.liotHiwn^tUtfiu>ttet-J(.a^ . THE CONSTITUTION OF ENGLAND; OR, AN ACCOUNT OP THE ENGLISH GOVERNMENT; IN WHICH IT IS COMPARED BOTH WITH THE REPUBLICAN FORM OF GOVERNMENT, AND THE OTHER MONARCHIES IN EUROPE, kV-"" OFTME ^y\ *- BY L18^ UNIVERSITY j jfjj;jy^ LOLME. A NEW EDITION', WITH SUPPXEMENTAL NOTES, AND A PREFACE BIOGRAPHICAL AND CRITICAL. Ponderibus librata suis OVID. Met. Lib. i. v. is. LONDON.- PRINTED FOR G. WILKIE & J.ROBINSON; J. WALKER; G. ROBIN- SON, J. 8TOCKDALE; LONGMAN, HURST, REES, & ORME; CADELL & DAVIES; LACKINGTON, ALLEN, & CO; R. PHENEY; R. SCHOLEY; J. HARDING; J. BOOKER; & J. JOHNSON & CO. . 1810 ^ ^^ A v-Xa'" TO THE KING. SIRE, X HE approbation with which the public have been pleased to favour this Work, together with the nature of the subject^ embolden me to lay the present fourth^ and enlarged edition of the ^ame at your Majesty's feet, both as an ho- mage and an expression of the desire I enter- tain, that the book may for a few minutes en- gage the attention of a person of your deep and extensive knowledge. Your Majesty's reign has, for many years past, afforded proofs, in more respects than one, that, though human wisdom may not al- ways be able to anticipate difficulties, yet, as- sisted by fortitude, it can succeed in terminat- ing them in a more favourable manner than it seemed at first possible to be expected, or even in bringing them to a happy issue. According to the common course of nature, your Majesty yi DEDICATION. has only yet seen the less considerable part of the years of which your reign is to be com- posed : that the part which now opens before your Majesty may be attended with a degree of satisfaction proportionate to your Majesty's public and private virtues, to your disinter- ested government, and religious regard for your royal engagements, is the fond hope of Your Majesty's Most humble and most devoted Servant, And, these many Years, Subject by Choice, J. L. DE LOLME. May, 1781.. ADVERTISEMENT. 1 HE Book on the English Constitution, of which a new edition is here offered to the public, was first written in French, and published in Holland*. Several persons have asked me the question, How I came to think of treating of such a subject? One of the first things in this country, that engage the attention of a stranger who is in the habit of observing the objects before him, is the peculiarit)' of its government : I had moreover been lately a witness of the broils which had for some time prevailed in the republic in which I was born, and of the revolution by which they were tenni- nated. Scenes of that kind, in a state which, though small, is independent, and contains within itself the principles of its motions, had naturally given me some competent insight into the first real principles of go- vernments : owing to this circumstance, and perhaps also to some moderate share of natural abilities, I was enabled to perform- the task I had undertaken with * In one of the notes to this work, the author says that it was first published in France. The fact seems to have been, that it made its fint apjjearance in Holland j whence it was sent to France, Edit. Vm ADVERTISEMENT. tolerable success. I was twenty-seven years old whett I came to this country: after having been in it only a year, I began to write my work, which I published about nine months afterwards ; and have since been surprised to find that I had committed so few errors of a certain kind : I certauily was fortunate in avoiding to enter deeply into those articles with which I was not sufficiently acquainted. The book met with rather a favourable reception on the continent; several successive editions having beea made of it. And it also met here with approbation, even from men of opposite parties ; which, in this country, was no small luck for a book on systematical politics. Allowing that the arguments had some connection and clearness, as well as novelty, I think the work was of peculiar utility, if the epoch at which it was published is considered ; which was, though without any design from me, at the time when the disputes with the colonies were beginning to take a serious turn, both here and in America. A work which contained a specious, if not thoroughly true, confutation of those political notions, by the help of which a disunion of the empire was endeavoured to be promoted (which con- futation was moreover noticed by men in the highest places), should have procured to the author some sort of real encouragement; at least the publication of it should not have drawn him into any inconvenient situation. When my enlarged English edition was ready for the press, had I acquainted ministers that I was preparing to boil my tea-kettle with it, for want of being able conveniently to afford the expense of print- ADVERTISEMENT. IX ing it, I do not pretend to say what their answer would have been ; but I am firmly of opinion, that, had the like arguments in favour of the existing government of this country, against republican principles, been shown to Charles the First, or his ministers, at a certain period of his reign, they would have very willingly defrayed the expenses of the publication. In defect of encourage- ment from great men (and even from booksellers) I had recourse to a subscription ; and my having expected any success from such a plan, shows that my knowledge of this country was at that time very incomplete*. * In regard to two subscribers in particular, I was, I confess, disappointed. — Thougli all the booksellers in London had at first refused to have any thing to do with my English edition (notwithstanding the French work was extremely well known), yet, soon after I had thought of the expedient of a subscription, I found that two of them, who are both living, had begun a translation, on the recommendation, as they told me, of a noble lord, whom they named, who had, till a few years before, filled one of the highest offices under the crown. I paid them ten pounds, in order to engage them to drop their undertaking, about whlck I understood they already had fceen at some expense. Had the noble lord in question favoured me with his subscription, I would have celebrated the generosity and munificence of my patron ; but, as he did not think proper so to do, I shall only observe, that his recommending my work to a bookseller cost me ten pounds. At the time the above subscription for my English edition was advertising, a copy of the French work was asked of me for a noble earl*, then invested with a high office in the state; none being at that time to be found at any bookseller's in London. I gave the only copy I had (the consequence was, that I was obliged to borrow one, to make my English edition from) : and I added, that I hoped his lordship would honour me with his subscription. However, my hopes were here again confounded. As a gentleman who continues to fill an important office under the crown, accidentally informed me about a year afterwards, that the noble lord liere alluded to had lent hiaa * M. de Lohne seems- heie to iJlude to the esqrl of Rocybrd.«-£Drr. X ADVERTISEMENT* After mentioning the advantages with which my work has not been favoured, it is, however, just that I should give an account of those by which it has been attended. In tlie first place, as is above said, men of high rank have condescended to give their approbation to it ; and I take this opportunity of returning them my most humble acknowledgements. In the second place, after the difficulties, by which the publication of the book had been attended and followed, were overcome, i began to share with booksellers in the profit arising from the sale of it. These profits I indeed thought to be but scanty and slow : but then I considered this was no more than the common complaint made by every trader in regard to his gain, as well as by every great man in regard to his emoluments and his pensions. After a course of some years, the net balance, formed by the profits in question, amounted to a certain sum, propor- my French work, I had no doubt left, that the copy I liad deUvered had reached his lordship's hand ; I therefore presumed to remind him, by a letter, that the book in question had never been paid for; at the same time apologising for such liberty from the circumstances in which my late English edition had been published, which did not allow me to lose one copy. I must do his lordship (who is moreover a knight of the garter) the justice to acknowledge, that, no later than a week afterwards, he sent two half-crowns for me to a bookseller's in Fleet-street. A lady brought them in a coach, who took a receipt. As she was, by the bookseller's account, a fine lady, though not a peeress, it gave me much concern that I was not present to deliver the receipt to her myself. At the same time I mention the noble carl's great punctuality, I think I may be allowed to say a word of my own merits. I waited, before I presumed to trouble his lordship, till I was informed that a pension of four thousand pounds was settled upon him (I could have wished much my own creditors had, about that time, shown the like tenderness to me) j and I moreover gave him time to receive the first quarter. ADVERTISEMENT. «» tioned to the size of the performance. And, in fine, I must add to the account of the many favours I have received, that I was allowed to carry on the above business of selling my book, without any objection being formed against me from my not having served a regular apprenticeship, and without being molested by the inquisition. Several authors have chosen to relate, in writings published after death, the personal advantages by which their performances had been fol- lowed : as for me, I have thought otherwise ; and, fearing that during the latter part of my life I may be other^vise engaged, I have preferred to write now the account of my successes in this country, and to see it printed while I am yet living. I shall add to the above narrative (whatever the reader may be pleased to think of it) a few observations of rather a more serious kind, for the sake of those persons who, judging themselves to be possessed of abilities, find they are neglected by such as have it in their povi^er to do them occasional services, and suffer themselves to be mortified by it. To hope that men will in earnest assist in setting forth the mental qua- lifications of others, is an expectation which, generally speaking, must needs be disappointed. To procure one's notions and opmions to be attended to, and ap- proved by the circles of one's acquaintance, is the Universal wish of mankind. To diffuse these notions farther, to numerous parts of the public, by means of the press or by others, becomes an object of real ambition ; nor is this ambition always proportioned to XU ADVERTUEMENT. the real abilities of those who feel it : very far from it. When the approbation of mankind is in question, all persons, whatever their different ranks may be, con- sider themselves as being engaged in the same career ; they look upon themselves as being candidates for the very same kind of advantage : high and low, all are in that respect in a state of primaeval equality ; nor are those who are likely to obtain some prize, to expect much favour from the others. This desire of having their ideas communicated to, and approved by, the public, was very prevalent among the great men of the Roman commonwealdi, and after- wards with the Roman emperors; however imperfect the means of obtaining those ends might be in those days, compared with those which are used in ours. The same desire has been equally remarkable among modern European kings, not to speak of other parts of the world ; and a long catalogue of royal authors may be produced. Ministers, especially after having lost their places, have shown no less inclination than their masters, to convince mankind of the reality of their knowledge. Noble persons, of all denominations, have increased the catalogue. And, to speak of the country in which we are, there is, it seems, no good reason to make any exception in regard to it ; and great men in it, or in general those who are at the head of the people, are, we find, sufficiently anxious about the success of their speeches, or of the printed per- formances which they sometimes condescend to lay before the public; nor has it been every great man ADVERTISEMENT. WH wishii^ that a compliment may be paid to his personal knowledge, that has ventiued to give such lasting spe-. cimens. Several additions were made to this work at the time I gave the first English edition of it. Besides a more accurate division of the chapters, several new notes and paragraphs were inserted in it; for instance, in the 11th chapter of the 2d book : and three new chapters, the 15th, l6th, and 17th, amounting to about ninety pages, were added to the same book. These three additional chapters, never having been written by me in French, were inserted in the third edition made at Amsterdam, translated by a person whom the Dutch, bookseller employed for that purpose : as I never had an opportunity to peruse a copy of that edition, I can- not say how well the translator performed his task. Having now parted with the copy-right of the book, I have farther added four new chapters to it (10, 11, B. I. 19, 20, B. II.) by way of taking a final leave of it ; and in order the more completely to effect this, I may perhaps give, in a few months, a French edition of the same (which I cannot tell why I have not done sooner), in which all the above-mentioned additions, translated by myself, shall be inserted. In one of the former additional chapters (the 17th, B. II.) mention is made of a peculiar circumstance attending the English government, considered as a. monarchy, which is the solidity of the power of the XIV ADVERTISEMENT. crown. As one proof of this peculiar solidity, it is remarked, in that chapter, that all the monarchs who ever existed, in any part of the world, were never able to maintain their ground against certain powerful subjects (or a combination of them) without the assistance of regular forces at their constant command ; whereas it is evident that the power of the crown, in England, is not at this day supported by such means ; nor even had the English kings a guard of more than a few scores of men, when their power, and the exertions they at times made of it, were equal to what has ever been related of the most absolute Roman emperors. The cause of this peculiarity in the English govern- ment, is said, in the same chapter, to lie in the circum- stance of the great or powerful men, in England, being divided into two distinct assemblies, and, at the same time, in the principles on which such a division is formed. To attempt to give a demonstration of this assertion otherwise than by facts (as is done in the chapter here alluded to) would lead into difficulties which the reader is little aware of. In general, the science of politics, considered as an exact science, — that is to say, as a science capable of actual de- monstration, — is infinitely deeper than the reader sus- pects. The knowledge of man, on which such a science, with its preliminary axioms and definitions, is to be grounded, has hitherto remained surprisingly im- perfect: as one instance how little man is known to himself, it might be mentioned that no tolerable explanation of that continual hmnan phsenomenon. ADVERTISEMENT. ^ XV laughter, has been yet given ; and the powerful com- plicate sensation which each sex produces in the other, still remains an equally inexplicable mystery. To conclude the above digression (which may do very well for a preface), I shall only add, that those speculators who will amuse themselves in seeking for the demonstration of the political theorem above expressed, will thereby be led through a field of observations, which they will at first little expect ; and in their way towards attaining such demonstration, will find the science, commonly called metaphysics, to be at best but a very superficial one, and that the mathe- matics, or at least the mathematical reasonings hitherto used by men, are not so completely free from error as has been thought^. . Out of the four chapters added to the present edition, two (the 10th, and 11th, B. I.) contain, among other things, a few strictures on the Courts of Equity; in which I wish it may be found I have not been mis- taken : of the two others, one (IQth, B. II.) contains a few observations on the attempts that may, in different circumstances, be made, to set new limits to the au- thority of the crown ; and, in the 20th, a few general thoughts are introduced on the right of taxation, and on the claim of the American colonies in that respect. * Certain errors that are not discovered, are, in several cases, compensated by otliers, which are equally unpen eived. Continuing to avail myself of the indulgence an author has a right to claim in a preface, I shall mention, as a farther explanation of the peculiarity in the English government above alluded to, and which is again touched upon in the postscript to this advertisement, that a government may be considered as a great ballet or dance, in which, as in other ballets, every l3ainj5 depends on the disposition of the figures. '*ri ADVERTISEMENT. Any farther observations I may make on the English government, such as comparing it with the other go- vernments of Europe, and examining what difference in the manners of the inhabitants of this country may have resulted from it, must come in a new work, if I ever undertake to treat these subjects. In regard to the American disputes, what I may hereafter write on that account will be introduced in a work which I may at. some future time publish, under the title of Histoire de George Trois, Roi d'ArigleterrCy or, perhaps, of Histoire d^Angleterre, depuis VAnnee 1765 (that in which the American stamp-duty was laid) jusques a fAnnte 178 — , meaning that in which an end shall h^ put to the present contest*. 'Nov, 1781. POSTSCRIPT. Notwithstanding the intention above expressed, of making no additions to the present work, I have found it necessary, in this new edition, to render somewhat more complete the xviith chapter, book II. On the peculiar foundations of the English monarch^/ as a monarch^/ ; as I found its tendency not to be very well understood ; and, in fact, that chapter contained little more than hints on the subject mentioned in it : the task, in the course of writing, has increased beyond my expectation, and has swelled the chapter to about sixty pages above what it was in the former edition, so 09 * A certain book, written in French, on the subject of the American di«.- putes, was, I have been told, lately attributed to me, in which I had no share. ABVERTISEMENT. XVll almost to make it a kind of separate book by itself* The reader will now find, that, in ] several remarkable new instances, it proves the fact of the peculiar stability of the executive power of the British crown, and exhibits a much more complete delineation of the advantages that result from that stability in favour of public liberty. These advantages may be enumerated in the follow- ing order : 1 . The numerous restraints the governing authority is able to bear, and the extensive freedom it can afford to allow the subject, at its own expense : II. The liberty of speaking and writing, carried to the great extent it is in England : III. The unbounded freedom of the debates in the legislature: IV. The power to bear the constant union of all orders of sub- jects against its prerogatives : V. The freedom al- lowed to all individuals to take an active part in govern- ment concerns : VI. The strict impartiality with which justice is dealt to all subjects, without any re- spect whatever of persons : VII. The lenity of the cri- minal law, both in regard to the mildness of punish- ments, and the frequent remission of them : VIII. The strict compliance of the governing authority with the letter of the law : IX. The needlessness of an armed force to support itself by, and, as a consequence, the singular subjection of the military to the civil power. The above-mentioned advantages are peculiar to the English government. To attempt to imitate them, or transfer them to other countries, with that degree of extent to which they are carried in England, without at the same time transferring the whole order and con- junction of circumstances in the English government, b XVlll ADVERTISEMENT, would prove unsuccessful attempts. Several articles of English liberty already appear impracticable to be pre- served in the new American commonwealths. The Irish nation have of late succeeded in imitating several very important regulations in the English government, and are very desirous to render the assimilation com- plete ; yet, it is possible, they will find many inconveni- ences arise from their endeavours, which do not take place in England, notwithstanding the very great ge- neral similarity of circumstances in the two kingdoms in many respects ; and even also, we might add, not- withstanding the respectable power and weight the crown derives from its British dominions, both for de- fending its prerogative in Ireland, and preventing anar-^ chy: I say, the similarity in many resyecU betw'een the two kingdoms ; for this resemblance may perhaps fail in regard to some important points : however, this is a subject about which I shall not attempt to say any Uiing, not having the necessary information. The last chapter in the work, concerning the nature of the divisions that take place in this country, I have left in evei7 English edition as I wrote it at first in French. With respect to the exact manner of the de- bates in parliament, mentioned in that chapter, I can- not well say more at present than I did at that time, as I never had an opportunity to hear the debates in either house. In regard to the divisions in general to which the spirit of party gives rise, I did perhaps the bulk of the people somewhat more honour than they really deserve, when I represented them as being free from any violent dispositions in that respect: I have since found, that, like the bulk of mankind in all countiies, ADVERTISEMENT. tlK they suffer themselves to be influenced by vehement prepossessions for this or that side of public questions, commonly in proportion as their knowledge of the sub- ject is imperfect. It is, however, a fact, that political prepossessions and party spirit are not productive, in this country, of those dangerous consequences M'hich might be feared from the warmth with which they are sometimes manifested. But this subject, or in gene- ral the subjects of the political quarrels and divisions in this countr)^, is not an article one may venture to meddle with in a single chapter ; I have therefore let this subsist, without touching it. I shall however observe, before I conclude, that an accidental circumstance in the English government pre- vents the party spirit, by which the public are usually influenced, from producing those lasting and rancorous divisions in the community which have pestered so many other free states, making of the same nation, as it were, two distinct people, in a kind of constant warfare with each other. The circumstance I mean is, the frequent reconciliations (commonly to quarrel again afterward) that take place between the leaders of parties, by which the most violent and ignorant class of their partisans are bewildered, and made to lose the scent. By the frequent coalitions between whig and tory leaders, even that party distinction, the most famous in the English histor}', has now become useless: the meaning of the words has thereby been rendered so perplexed that no- body can any longer give a tolerable definition of them ; and those persons who now and then aim at gaining popularity by claiming the merit of belonging to either party, are scarcely understood. The late coalition be- b2 XX ADVERTISEMENT, tween two certain leaders has done away, and prevented from settling, that violent party spirit to which the ad- ministration of lord Bute had given rise, and which the American disputes had carried still farther. Though this coalition has met with much obloquy, I take the liberty to rank myself in the number of its advocates, so far as the circumstance here mentioned. May, 1784. ;Sf=^; THE EDITOR'S PREFACE. It was long a prevailing opinion, not only on the Continent, but even in Great-Britain, that the best his- tory of England was written by a foreigner : but that persuasion, certainly not very honorable to this country, was at length exploded by the display of British genius ; and the popular work of M. Rapin de Thoyras was superseded by the efforts of native historians. Another opinion, equally general, was, that the most rational and enlightened survey of our constitution was also the work of a foreigner : and even the labors of professor Millar, and other British writers who have treated of this subject, do not appear to me to discredit or falsify the assertion. The performance to which I allude is now re-published, with illustrative notes, that the demand for a work of extraordinary merit (which has been long, in the booksellers' phrase, out of print), may be effectually and amply gratified. When I undertook the editorial task on this occasion, it was not generally known whether the author still lived, or had paid the debt of nature. He had left England many years before; and no intelligence of his move- ments, or of his place of abode, had reached those who had formerly been honored with his acquaintance. It is xxii THE editor's preface. now ascertained, however, that he lately died on the continent. Of his life I have been unable to procure any ac- count, except a few meagre hints. In imitation of some pretended biographers, I might eke out my scanty stock of materials (or rather supply the deficiency of ma- terials), by inventing anecdotes, discussing fictitious points, and drawing conclusions from imaginary inci- dents and circumstances; but sober truth would dis- dain such figments, and execrate such idle impertinence. John Louis de Lolme was bom at Geneva, of respectable parents, in the year 1745, or perhaps at an earlier period. He received a liberal education, and embraced the profession of the law; but he did not long practise as an advocate before he formed the reso- lution of quitting his coimtry, that he might display his lively talents and his literary attainments on a more con- spicuous theatre of action, and might personally ob- serve the constitutions and customs of more powerful states and more dignified communities. The English government, in particular, excited his curiosity ; and he resolved to study its nature, and examine its principles, with particular care and attention. He even endea- voured, in the first work which he published after his arrival in England, to lead his readers into an opinion that he was a native of this favored country. It was written in our language, and appeared in 1772, with the followmg title: "A Parallel between the English " Constitution and the former Government of Sweden ; *' containing some Observations on the late Revolution *' in that Kingdom, and an Examination of the Causes ** that secure us against both Aristocracy and absolute XXUl " Monarchy." Many of our countrymen were ap- prehensive, that our constitution might be subverted like that of Sweden ; but the learned doctor (for M. de Lolme had previously taken the degree of LL. D.), by contrasting with the polity of England the government which Gustavus III. had overturned, plausibly argued that such fears were ill-founded. He soon after commenced that work which «ow re-appears in print, and which established his literary and political fame. It was applauded, on its appear- ance in the French language, as a very ingenious and spirited performance, combining originality of thought with justness of remark and perspicuity of expression. A translation of it being earnestly desired, the author enlarged and improved it, and published the first Eng- lish edition of it in June, 1775*. In the Monthly Review, which, although some of the writers employed in it have been both illiterate and illiberal, may be considered as the best of our periodical vehicles of criticism, the following character was given of M. de Lolme's production. '* Upon a careful review of this work, we can venture " to pronounce, that it is an admirable performance. *' The view given of the English constitution is exact * It is supposed by many readers, that M. de Lolme was the translator of his own work from the French j and his great knowledge of our language has been the subject of high encomium. But, if the general style of the work be compared with that of the dedication, which, in every sentence, bears marks of a foreign pen, it will readily be concluded, that the body of tlie publication was chiefly translated by an Englishman, under the author'« eye. tallV THE EDITOR S PREFACE. *^ and perspicuous ; and the peculiar advantages of it arc ^' pointed out with uncommon sagacity and penetra- ^' tion. The writer hath derived benefit, in this respect, *' not merely from his own excellent understanding, but '' from the circumstance of his being a foreigner. It is *' hence that he hath been enabled to behold some pe- *' culiarities of the British government in a stronger *' light than the natives of this country, who are not so '^ powerfully stricken by objects which are continually '* before their eyes." The reviewer adds, that he en- tirely coincides in opinion with Junius, who had praised the work as " deep, solid, and ingenious :" yet he pro^ perly observes, that it is " not totally without defect," as the author seems " to refine too much in his compari- '' sons between England and other states," and to be '' far too sanguine in his expectations of the stability " and durableness of the English constitution." It might have been expected, that, instead of merely introducing into this work occasional remarks on the polity of Geneva, he would have composed a separate history- of that republic, or have given a distinct survey of its constitution, particularly as he had some share in the government, being a member of the council of two hundred. For such a work he was well qualified ; and his abilities would have rendered it both pleasing and in- structive. It can scarcely be alleged, that he thought it too insignificant for his pen, as he amused himself with writing upon some of the taxes imposed during the administration of Mr, Pitt. Being an enemy to superstition, he ridiculed its glarr« jng absurdities in a volume which appeared in 1793^ THE EDITOR'S PREFACE. ^^^ • Entitled, "The History of the Flagellants; or, Memo- " rials of Human Superstition;" partly borrowed from the abbe Boileau. A bigot might conclude, or pre- tend, that the author of such a performance had no sense of religion or piety : but it is as unreasonable to impute a profane or impious spirit to the opposer of those superstitions which corrupt true religion, as to ac- cuse the adversary of a pernicious minister of being an enemy to all government. He who merely censures the abuse of an institution, cannot justly be said to argue against the use of it. Our author's attention being called to the subject of the legislative union between England and Scotland, by an intended re-publication of De-Foe's history of that memorable transaction, he wrote, in 1787, a judicious essay, calculated for an introduction to that work. In the following year, he published observations relative to the tax upon window-lights, the shop-tax, and the im- post upon hawkers and pedlers. He condemned the first as absurd and unjustifiable, being a tax on the light of day, and not on property, but on the absence of pro- perty — on apertures, holes, vacuities, emptiness. He reprobated the second as a tax upon the very reverse of property ; upon a debt, — that is, on the rent payable for the house to \Ahich the shop belonged; and tlie .third he disapproved, as injurious an(J oppressive. The momentous question of the regency could not be expected to escape his notice, or elude his inquiries. He therefore, in 1789, presented to the public some " Observations upon the National Embarrassment, and *' the Proceedings in Parliament relative to the same.'* Jle denied that the king's political situation was- suffi- XXVI THE EDITOR S PREFACE. eiently analogous to any of the cases stated by the lead- ing members of the two houses ; and affirmed that it bore a greater resemblance, in effect, to the case of Don Sebastian, king of Portugal, who after he had been de- feated by the Moors, was " a captive* in an unknown " land, in unknown hands ; an access to his person being " deemed impossible, and even not to be thought of." He proceeded to argue, that the act of the sovereign, M^hen he originally convoked the existing parliament, amounted to the delegation of a general trust to govern the realm in his name ; that the meeting of the lords and com- mons implied an acceptance of such ti'ust ; and there- fore, that the royal authority resided, upon the king's in- capacity, in a convention of the two houses. This fair and legitimate conclusion met with the concurrence of the majority of the nation. I have now mentioned all the works of M. de Lolme, of which I could either procure a copy, or meet with an account. Like many other literary men, he did not so far profit by his labors as to secure himself against the evils of povert}\ He certainly deserved a greater degree of patronage than he appears to have received ; and, if a pension had been conferred upon him for his able elucidation of the principles of the English govern- ment, it would have been better bestowed than those do- natives usually are. : the giver and the receiver would have been equally honored. How long M. de Lolme remained in England after the commencement of the French revolution, I cannot inform the reader. What opinion, however, he enter- * It is more probable ihat this prince was slain in th« conflict. XXVll tairied of that event, we may judge from his known re- gard for social order and well-regulated liberty. He must have perceived, that the original projectors, if their intentions were just or patriotic, were precipitate and violent in their reforms; and that their successors, aiming at inordinate power, had no sense of humanity or of justice, — ^no regard for the true honor of their country, or the welfare and happiness of the people. He died in the spring of the yeai* 1807, leaving a name (if not of the first celebrity, yet) of considerable eminence in the annals of literature. His perception was acute, and his mind vigorous. Not content with a hasty or superficial observation of the characters of men and the affairs of states, he examined them with a philo- sophic spirit and a discerning eye. He could ably spe- culate on the different modes of government, develope the disguised views of princes and ministers, and detect the arts and intrigues of demagogues and pseudo-patriots. He could perceive the defects of the boasted constitu- tions of the ancient republics, and the advantages of a limited monarchy, like that of G root-Britain . He could appreciate the blessings of regular government, free, on the one hand, from despotism, and, on the other, from licentiousn(3SS ; and he was as sensible of the value of true liberty, as of the necessity of legal restraint and subordination. He had the art of pleasing in conversation, though the graces did not appear in his manners or deportment. He had a turn for pleasantly and humor ; and has been compared with Burke for the variety of his allusions, xmd the felicity of his illustrations. His general tern- XXVlll per has been praised ; but his spirit was considered by many as too high for his fortune : yet, in one respect, his mind assimilated to the occasional penury under which he labored ; for, in his mode of living he could imitate the temperance and self-denial of a philoso- pher. CONTENTS. Pa» O" Introdikjtion «... BOOK L A SURVEY OF THE VARIOUS POWERS INCLUDED IN THE ENGLISH CONSTITUTION, AND OF THE LAWS BOTH IN CIVIL AND CRIMINAL CASES. ^fflf II J' I ^e^y ^^^ libertvy..ihe..Enflish I Nation, -/Reasons of the Difference between i /the. Government of England^ mi. iML.^ "^n^T^In England, the great Power of tEe Crown, under the first Norman Kings, created an Union between the Nobility and the people - ■ ■'^*^-'-''^ ''"■■'-^""' ''"^■■■'^'''' "■'•'^'"^'^'^•-^-'^w.s^^^. 6 kl. A second Advantage England had over \ |_ FraM s^;.m!f»U4&f^m€d-on& undimd^fS^e. ...r . 24 III. The Subject continued - - - 41 IV. Of the Legislative Power - - 60 V. Of the Executive Power - - 70 VI. The Boundaries which the Constitution has set to the Royal Prerogative - - 74 VII. The Same Subject continued - - 78 VIII. New Restrictions - - - 84 IX. Of private Liberty, or the Liberty of Indi- viduals - - - - - 99 X. On the Law that is observed in England in / regard to Civil Matters - -- - 11^ XXX CONTENTS. Page Xr. The Subject continued. — The Courts of E qui- ty - - - - - 135 XII. Of CriminalJusiice - - - 154 XIII. The Subject ceniinued - - 169 XIV. The Subject concluded, — Laws relative to ' Jjnprisomnent - - - '-1881^ BOOK II. A VIEW OF THE ADVANTAGES OF THE ENGLISH GOVERNMENT, AND OF THE RIGHTS AND LI- BERTIES OF THE PEOPLE ; AND A CONFIRMA- TION, BY REFERENCE TO FACTS, OF THE PRIN- CIPLES STATED IN THE WORK. Chap. I. Some Advantages peculiar to the Eng- lish Constitution, 1. The Unity of the Ex^ ecutive Poxver - - - - 195 II. The Subject concluded. — The Executive Pow- er is more easily confined when it e> on e - 215 III. A Second Peculiarity — The Division of the Legislative Power - - - 218 IV. A third Advantage peculiar to the English Government, The Business of proposing Laws, lodged in the hands of the People - - 229 V. In which an Inquiry is made, whether it would be an Advantage to public Liberty, that the Laws should be efiacted by the Votes of the People at large - - - - 240 IV. Advantages that accrue to the People from appohtting Representatives - - 256 VII. The Subject continued, — The Advantages that accrue to the People from their appointing CONTENTS. XXJkl Page *o^ Representatives are very inconsiderable, unless they also entirely timst their Legislative Jii- thority to them - - - - 259 VIII. The Subject concluded. — Effects that have resulted, in the English Government, from the People's Poiver being completely delegated to their Representatives - - - 265 IX. A farther Disadvantage of Republican Go- vernnients. — The People are necessarily be^ frayed by those in whom they ti^ust - 271 X. Fundamental Difference between the English Governynent ajid the Governments Just de- scribed. — I?i England, all Executive Autho- rity is placed out of the Hands of those in whom the People trust. — Usefulness of the Power of the Crown - _ - 280 XI. The Powers which the People themselves exercise. — The Election of Members of Par- liament - ~ - - - 287 XII. The Subject continued. — Liberty of the Press ----- 290 XIII. The Subject continued - - 304 XIV. Right of Resistance - - - 313 XV. Proofs, drawn from Facts, of the Truth of the Principles laid down in the present Work, — 1. The peculiar Manner in which Revolu- tions have always been concluded in England 323 XVI. Second Difference. — The Manner after which the Laws for the Liberty of the Subject are executed in England - - - 34 1 XVII. A jnore intimate Fiew of the English Go- XXX U ■■ CONTENTS. Page vernment than has hitherto been offered to the Header in the Course of this work. — Veri/ essential Differences between the English Mon- archy^ as a Monarchy y and all those with which we are acquainted - - - 382 Second Part of the same Chapter - - 415 XVIII. How far the Examples of Nations who have lost their Liberty are applicable to Eng- land - - - - - 468 XIX. A few Additional Thoughts on the At- tempts that may at particular Times be made to abridge the Power of the Crown, and some of the Dangers by which such Attempts may be attended - - - - 494 XX. A few additional Observations on the Right of Taxation, which is lodged in the Hands of the Representatives of the People. — What Kind of Danger this Right may he expesed to - 508 XXI. Conclusion — A few Words on the Nature of the Divisions that take place in England - 524 THfe CONSTITUTION OF ENGLAND. INTRODUCTION. X HE spirit of philosophy which peculiarly di- stinguishes the present age, after having cor- rected a number of errors fatal to society, seems now to be directed towards the principles of society itself; and we see prejudices vanish which are difficult to overcome in proportion as it is dangerous to attack them^. This rising * As every popular notion which may contribute to the support of an arbitrary government is at all times vigilantly protected by the whole strength of it, political prejudices are last of all, if ever, shaken off by a na- tion subjected to such a government. A great change in this respect, however, has of late taken place in B % THE CONSTITUTION freedom of sentiment, the necessary fore-run- ner of political freedom, led me to imagine that it would not be unacceptable to the public to be made acquainted with the principles of a constitution on which the eye of curiosity seems now to be universally turned, and which, though celebrated as a model of perfection, is yet but little known to its admirers. I am aware that it will be deemed presump- tuous in a man, who has passed the greatest part of his life out of England, to attempt a de- lineation of the English government; a system which is supposed to be so complicated as no£ to be understood or developed, but by those who have been initiated in the mysteries of it from their infancy. France, where this book was first published ; and opi- nions are now discussed there, and tenets avowed, which,, in the time of Louis the Fourteenth, would have ap- peared downright blasphemy ; it is to this an allusion is made above. [Like other observing men, M. dc Lolme readily no- ticed that change of opinion in France, which preceded the revolution of the yeftt i7S9 1 but he did not foresee that the impatient spirit of the French, exulting in the decline of prejudices which had prevailed for ages, would h)9e the opportunity of tetnperate reform, precipitate the nation into horrible convulsion, and diffuse terror and calamity over Europe. — Edit.] OF ENGLAND. 3 But, though a foreigner in England, yet, as a native of a free country, I am no stranger to those circumstances which constitute or charac- terise liberty. Even the great disproportion be- tween the republic of which I am a member (and in which I formed my principles) and the British empire, has perhaps only contributed to facilitate my political inquiries. As the mathematician, the better to discover the proportions he investigates, begins with fi'eeing his equation from coefficients, or such other quantities as only perplex without pro- perly constituting it; so it may be advantage- ous, to the inquirer after the causes that produce the equilibrium of a government, to have previously studied them, disengaged from the apparatus of fleets, armies, foreign trade, distant and extensive dominions ; in a word, from all those brilliant circumstances which so greatly affect the external appearance of a pow- erful society, but have no essential connexion with the real principles of it. It is upon the passions of mankind, that is, apon causes which are unalterable, that the action of the various parts of a state depends. The machine may vary as to its dimensions; but its movement and acting springs still re- main intrinsically the same; and that time B 2 4 THE CONSTITUTION cannot be considered as lost, which has been spent in seeing them act and move in a nar- rower circle. One other consideration I will suggest, which is, that the very circumstance of being a fo- reigner may of itself be attended, in this case, with a degree of advantage. The English themselves (the observation cannot give them any offence) having tlieir eyes open, as I may say, upon their liberty, from their first entrance into life, are perhaps too much familiarised with its enjoyment, to inquire, with real con- cern, into its causes. Having acquired practi- cal notions of their government long before they have meditated on it, and these notions being slowly and gradually imbibed, they at length behold it without any high degree of sensibility; and they seem to me, in this re- spect, to be like the recluse inhabitant of a palace, who is perhaps in the worst situation for attaining a complete idea of the whole, and never experienced the striking effect of its ex- ternal structure and elevation ; or, if you please, like a man who, having always had a beautiful and, extensive scene before his eyes, continues for ever to view it with indifference. But a stranger, — beholding at once the vari- ous parts of a constitution displayed before him, OF ENGLAND. 5 whieh, at the same time that it carries liberty to its height, has guarded against inconveni- ences seemingly inevitable; beholding, in short, those things carried into execution which he had ever regarded as more desirable than possible, — is struck with a kind of admiration ; and it is necessary to be thus strongly affected by objects, to be enabled to reach the general principle which governs them. Not that I mean to insinuate that I have penetrated with more acuteness into the con- stitution of England than others ; my only de- sign, in the above observations, was to obviate an unfavourable, though natural preposses- sion ; and if, either in treating of the causes which originally produced the English liberty, or of those by which it continues to be maintained, my observations should be found new or sin- gular, I hope the English reader will not con- demn them, but where they shall be found in- consistent with history, or with daily experience. Of readers in general 1 also request, that they will not judge of the principles I shall lay down, but from their relation to those of human na- ture ; a consideration which is almost the only one essential, and has been hitherto too much neglected by the writers on the subject of gQ-» vernment. ^^ THE CONSTITUTION BOOK I. A SURVEY OF THE VARIOUS POWERS INCLUDED IN THE ENGLISH CONSTITUTION, AND OF THE LAWS BOTH IN CIVIL AND CRIMINAL CASES, CHAPTER I. Causes of the Liberty of the English Nation. Rea- sons of the Difference between the Government of England and that of France. In England^ the great Power of the Crown, under the Norman Kings, created the Union between the Nobility and the People. When the Romans, attacked on all sides by the barbarians, were reduced to the neces- sity of defending the centre of their empire, they abandoned Great Britain, as well as se- veral other of their distant provinces. The island, thus left to itself, became a prey to the nations inhabiting the shores of the Baltic ; who, having first destroyed the ancient inhabitants, and for a long time reciprocally annoyed each OF ENGj:.ANO. 7 Other, established several sovereignties in the southern part of the island, afterwards called England, which at length were united, under Egbert, into one kingdom. The successors of this prince, denominated the Anglo-Saxon princes, among w^hom Alfred the Great and Edward the Confessor are parti- cularly celebrated, reigned for about two hun- dred years : but, though our knowledge of the principal events of this early period of the En- glish history is in some degree exact, yet we have but vague and uncertain accounts of the nature of the government which those nations introduced. It appears to have had little more affinity with the present constitution, than the general relation, common indeed to all the governments established by the northern nations,— that of having a king and a body of nobility ; and the ancient Saxon government is " left us in story " (to use the expressions of Sir WiUiam Temple "on the subject) but like so many antique, *' broken, or defaced pictures, which may still "represent something of the customs and fa- " shions of those ages, though little of the true " lines, proportions, or resemblance*." See bis Introduction to the History of England. ^ THE CONSTITUTION It is at the aera of the conquest that we are to look for the real foundation of the English constitution. From that period, says Spelman, novus seclorum nascitur orda^. William of Normandy, having defeated Harold, and made * See Spelman, Of Parliaments. — It has been a fa.- vourite thesis with many writers, to pretend that the Saxon government was, at the time of the conquest, by no means subverted ; — that William of Normandy legally acceded to the throne, and, consequently, to the en- gagements of the Saxon kings: and much argument has in particular been employed with regard to the word con- quest, which, it has been said, in the feudal sense, only meant acquisition. These opinions have been particularly insisted upon in times of popular opposition: and, indeed, there was a far greater probability of success, in raising among the people the notions (familiar to them) of legal claims and long-established customs, than in arguing with them from the no less rational, but less determinate, and somewhat dangerous doctrines, concerning the original rights of mankind, and the lawfulness of at all times op- posing force to an oppressive government. But if we consider that the manner in which the public power is formed in a state 'is so very essential a part of its government, and that a thorough change in this respect was introduced into England by the conquest, we shall not scruple to allow that a new government was esta- blished. Nay, as almost the whole landed property in the kingdom was at that time transferred to other hands, a new system of criminal justice introduced, and the Ian- OF ENGLAND, '9 himself master of the crown, subverted the an- cient fabric of the Saxon legislation : he e^- terminated, or expelled, the former occupiers of lands, in order to distribute their possessions among his followers ; and established the feudal system of government, as better adapted to his guage of the law moreover altered, the revolution may be said to have been such as is not perhaps to be paral- leled in the history of any other country. Some Saxon laws, favourable to the liberty of the people, were indeed again established under the success- ors of William: but the introduction of some new modes of proceeding in the courts of justice, and of a few par- ticular laws, cannot, so long as the ruling power in the state remains the same, be said to be the introduction of a new government; and as, when the laws in question were again established, the public power in England con- tinued in the same channel where the conquest had placed it, they were more properly new modifications of the Anglo-Norman constitution than they were the abolition of it ; or, since they were again adopted from the Saxon legislation, they were rather imitations of that legislation, than the restoration of the Saxon government. Contented, however, with the "two authorities I have above quoted, I shall dwell no longer on a discussion of the precise identity, or difference, of two governments, that is, of two ideal systems, which only exist in the con- ceptions of men. Nor do I wish to explode a doctrine, which, in the opinion of some persons, giving an addi- tional sanction and dignity to the English government, 10 THE CONSTITUTION situation, and indeed the only one of which be possessed a competent idea. This sort of government prevailed also in almost all the other parts of Europe. But, in- stead of being established by dint of arms, and all at once, as in England, it had only beep contributes to increase their love and respect for it. It will be sufficient for my purpose, if the reader shall be pleased to grant that a material change was, at the time of the conquest, effected in the government then existing, and is accordingly disposed to admit the proofs that will presently be laid before him, of such change having pre- pared the establishment of the present English constitu- tion. [In some parts of this note, the author's meaning is awkwardly and inconsistently expressed: yet it is evident that he refers the constitution to a Norman rather than a Saxon origin, and attributes to the success of William all the revolutionary effects of a conquest. Important changes were undoubtedly introduced by that imperious monarch; but, instead of subverting the Saxon consti- tution, while he introduced many of the laws of Nor- mandy, he seems to have retained a considerable propor- tion of those which had been established in England; though it ought perhaps to be added, that, even after he had ostensibly and repeatedly confirmed the laws of £dward the Confessor, he neglected the strict perform- ance of his solemn engageraents.-^EDiT.] OF ENGLAND. 1! established or) the continent, and particularly in France, through a long series of slow succes- sive events : — a difference of circumstances this, from which consequences were in time to arise as important as they were at first difficult to be foreseen. The German nations who passed the Rhine to conquer Gaul were in a great degree inde- pendent; their princes had no other title to their power, but their own valour and the free election of the people; and, as the latter had acquired in their forests but contracted notions of sovereign authority, they followed a chief less in quality of subjects, than as com- panions in conquest. Besides, this conquest was not the irruption of a foreign army, which only takes posses- sion of fortified towns; — it was the general in- vasion of a whole people in search of new habi- tations ; and, as the number of the conquerors bore a great proportion to that of the conquered, who were at the same time enervated by long peace, the expedition was no sooner completed than all danger was at an end, and of course their union also. After dividing among them- selves what lands they thought proper to occupy, they separated; and though their tenure was at first only precarious, yet, in this particular, they l!^ THE CONSTITUTION depended not on the king, but On tlie general assembly of the nation*. Under the kin^s of the first race, tlie fiefs, by the mutual connivance of the leaders, at first became annual; afterwards, held for life. Un- der the descendants of Charlemagne, they be- came hereditary f. And when at length Hugh Capet effected his own election, to the pre- judice of Charles of Lorrain, intending to render the crown, which in fact was a fief, hereditary in his own family X, he established the hereditari- ship of fiefs as a general principle; and from this epoch authors date the complete establish- ment of the feudal system in France. On the other hand, the lords who gave their suffrages to Hugh Capet forgot not the interest of their own ambition. They completed the * The fiefs were originally called terrcB jure beneficii concessce; and it was not till under Charles le Gros that the term ^ef began to be in use. See Beneficium, Gloss. Du Cange. f Jpud Francos vera, sensim pedetentimquej jure haere- ditario ad hceredes suhinde transierunt feuda; quod labente seculu nono incepit. See Feudum, Du Cange. I Hotoman has proved beyond a doubt, in his Franco- Gallia, that, under the first two races of kings, the crown of France was elective. The princes of the reigning fa- mily had nothing more in their favour than the custom of choosing one of that house. OV ENGLAND. 15 breach of those feeble ties which subjected them to the royal authority, and became every-where independent. They left the king no j urisdiction, either over themselves, or their vassals; they re- served the right of waging war with each other; they even assumed the same privilege, in certain cases, witli regard to the king himself^ ; so that if Hugh Capet, by rendering the crown here- ditary, laid the foundation of the greatness of his family, and of the crown itself, yet he add- ed little to his own authority, and acquired scarcely any thing more than a nominal supe- riority over the number of sovereigns who then swarmed in France f. * The principal of these cases was, when the king re- fused to appoint judges to decide a difference between himself and one of his first barons; the latter had then a right to take up arms against the king; and the sub- ordinate vassals were so dependent on their immediate lords, that they were obliged to follow^ them against the lord paramount. St. Louis, though the power of the crown was in his time much increased, was obliged to confirm both this privilege of the first barons, and this obligation of their vassals. t " The grandees of the kingdom,*' says Mezeray, " thought that Hugh Capet ought to put up with all " their insults, because they had placed the crown on *' his head: nay, so great was their licentiousness, that, " on his writing to Audebert, viscount of Perigueux, or- 14 THE CONSTITUTION But the establishment of the feudal system in England was an immediate and sudden conse- quence of that conquest which introduced it. Besides, this conquest was made by a prince who kept the greater part of his army in his own pay, and who was placed at the head of a people over whom he was an hereditary sovereign, — circumstances which gave a totally different turn to the government of that kingdom. Surrounded by a warlike, though a conquered nation, William kept on foot part of his army. The English, and after them the Normans themselves, having revolted, he crushed both; and the new king of England, at the head of victorious troops, having to do with two nations lying under a reciprocal check from the enmity they bore to each other, and, moreover, equally subdued by a sense of their unfortunate attempts of resistance, found himself in the most favour- able circumstances for becoming an absolute monarch; and his laws, thus promulgated in the midst, as it were, of thunder and lightning. •* dering him to raise the siege he had laid to Tours, and '* asking him, by way of reproach, who had made him " a viscount? that nobleman haughtily answered, Noi ** youy but those ttiho made you a king, [Cc n'est pas vous, " mais ce«x qui vous ont fait roi]" OF ENGLAND. IS imposed the yoke of despotism both on the vic- tors and the vanquished*. He divided England into sixty thousand two hundred and fifteen military fiefs, all held of the crown; the possessors of which were, on pain of forfeiture, to take up arms, and repair to his standard on the first signal : he subjected not only the common people, but even the ba- rons, to all the rigours of the feudal govern- ment: he even imposed on them his tyrannical forest laws f. . He assumed the prerogative of imposing taxes. He invested himself with the whole executive power of government. But what was of the greatest consequence, he arrogated to himself the most extensive judicial power by the * Professor Millar is unwilling to allow, that the victors were despotically ruled by William : but, though he was partial to his countrymen, he certainly did not suffer them to elude his powerful grasp, or escape the effects of his tyranny. — Edit. t He reserved to himself an exclusive privilege of killing game throughout England, and enacted the se- verest penalties on all who should attempt it without his permission. The suppression, or rather mitigation, of these penalties, was one of the articles of the Charta de Foresia, which the barons afterwards obtained by force of arms. Nultus de ccetero amittat litam, vel membra^ pro venationt nostra. Ch. de Forest. Art. 10. 16 THE CONSTITUTION establishment of the court which was called jiiila Regis, — a formidable tribunal, which re-* ceived appeals from all the courts of the barons, and decided, in the last resort, on the estates, honour, and lives, of the barons themselves ; and which, being wholly composed of the great officers of the crown, removable at the king's pleasure, and having the king himself for pre- sident, kept the first nobleman in the kingdom under the same control as the meanest sub- ject. Thus, while the kingdom of France, in con- sequence of the slow and gradual formation of the feudal government, found itself, in the issue, composed of a number of parts simply placed by each other, and without any reciprocal ad- herence, the kingdom of England on the con- trary, from the sudden and violent introduction of the same system, became a compound of parts united by the strongest ties ; and the regal authority, by the pressure of its immense weiglit, consolidated the whole into one compact indis- soluble body. To this difference in the original constitution of France and England, that is, in the original power of their kings, we are to attribute the difference, so little analogous to its original cause, of their present constitutions. This OF ENGLAND. 17 furnishes the solution of a problem which, I must confess, for a long time perplexed me, and explains the reason why, of two neighbour- ing nations, situated almost under the same climate, and having one common origin, the one has attained the summit of liberty, the other has gradually sunk under an absolute monarchy* In France, the royal authority was indeed inconsiderable; but this circumstance was by no means favourable to the general liberty. The lords were every thing; and the bulk of the nation were accounted nothing. All those wars which were made on the king had not li- berty for their object; for of this the chiefs al- ready enjoyed too great a share : they were the mere effect of private ambition or caprice. The people did not engage in them as asso- ciates in the support of a cause common to all ; they were dragged, blindfold, and like slaves, to the standard of their leaders. In the mean time, as the laws, by virtue of which their ma- sters were considered as vassals, had no rela- tion to those by which they were themselves bound as subjects, the resistance, of which they were made the instruments, never pro- duced any advantageous consequence in tlieir c 18 th£ constitution fa\x)ur, nor did it establish any f>Hftdple of freedom that ^vas applicable to them. ~ The inferior nobles, who shared in the in- tiependence of the superior nobility, added the effects of their own insolence to the despotism ^f so many sovereigns ; and the people, weari- ed out by sufferings, and rendered desperate by oppression, at times attempted to revolt. But, being parceled out into so many different states, they could never perfectly agree either in the nature or the times of their complaints. The insurrections, which ought to have been general, were only successive and particular. In the mean time, the lords, ever uniting to avenge their common cause as masters, fell with irresistible advantage (Hi men who were divided: the people were thus separately, and by force, brought back to their former yoke; and liberty, that precious offspring, which requires so many favourable circumstances to foster it, was every- where stifled in its birth*. * It may be seen in Mezeray, how the Flemings, at the time of the great revolt which was caused, as he says, ^ by the inveterate hatred of the nobles (les gentils- "** hommes) against the people of Ghent," were crushed iby the "union of almost all the nobility of France. See Mezeray J Eeign (f Charles VI. OF ENGLAND. 19 At length, when by conquests, by escheats, or by treaties, the several provinces came to be re-united^ to the extensive and continually in- creasing dominions of the monarch, they be- came subject to their new master, already train- ed to obedience. The few privileges which the cities had been able to preserve were little re- spected by a sovereign who had himself entered into no engagement for that purpose; and, as the re-unions were made at different times, the king was always in a condition to overwhelm every new province that accrued to him, with the weight of all those he already possessed. As a farther consequence of these differences between the times of the re-unions, the several parts of the kingdom entertained no views of assisting each other. When some reclaimed their privileges, the others, long since reduced to subjection, had already forgotten theirs. Be- * The word re-union expresses in the French law, or history, the reduction of a province to an immediate de- pendence on the crown. [Tlie points and circumstances, introduced by M. de Lolme in continuation of this note from the history of France, may be omitted without the least injury to the work, being neither usefully illustrative nor supplementally necessaj-y. — Edtt.] C 2 20 THE CONSTITUTION sides, these privileges, by reason of the differences of the governments under which the provinces had formerly been held, were also almost every- where different: the circumstances which hap- pened in one place thus bore little affinity to those which fell out in another; the spirit of union was lost, or rather had never existed; each province, restrained within its particular bounds, only served to ensure the general sub- mission; and the same causes which had redu- ced that spirited nation to a yoke of subjection, concun-ed also to keep them under it. Thus liberty perished in France, because it wanted a favourable culture and proper situa- tion. Planted, if I may so express myself, but just beneath the surface, it presently expanded, and sent forth some large shoots; but, having taken no root, it was soon plucked up. In England, on the contrary, the seed, lying at a great depth, and being covered with an enor- mous weight, seemed at first to be smothered; but it vegetated with the greater force; it im- bibed a more rich and abundant nourishment; its sap and juice became better assimilated, and it penetrated and filled up with its roots the p whole body of the soil. It was the excessive power of the king which made England free, because it was this very excess that gave rise OF ENGLAND. 21 to the spirit of union, and of concerted resist- ance. Possessed of extensive demesnes, the king found himself independent: invested with the most formidable prerogatives, he crushed at pleasure the most powerful barons in the realm. It was only by close and numerous confederacies, therefore, that these could re- sist his tyranny; they even were compelled to associate the people in them, and make them partners of public liberty. Assembled with their vassals in their great halls, where they dispensed their hospitality, deprived of the amusements of more polished nations; naturally inclined, besides, freely to expatiate on objects of which their hearts were full; their conversation naturally turned on the injustice of the public impositions, on the ty- ranny of the judicial proceedings, and, above all, on the detested forest laws. Destitute of an opportunity of caviling about the meaning of laws, the terms of which were precise, or rather disdaining the resource of sophistry, they were naturally led to exa- mine the first principles of society; they in- quired into the foundations of human authority, and became convinced, that power, when its object is not the good of those who are subject to it, is nothing more than the right of this 22 THE CONSTITUTION^ strongest, and may be repressed by the exer- tion of a similar right. The different orders of the feudal government, as established in England, being connected by tenures exactly similar, the same maxims which were laid down as true against the lord para- mount, in behalf of the lord of an upper fief, were likewise to be admitted. against the latter, in be- half of the owner of an inferior fief The same maxims were also to be applied to the possessor of a still lower fief: they farther descended to the freeman, and to the peasant: and the spirit of liberty, after having circulated through the different branches of the feudal subordination, thus continued to flow through successive ho- mogeneous channels; it forced a passage into the remotest ramifications; and the principle of primeval equality became every where diffused and established. A sacred principle, which neither injustice nor ambition can erase; which exists in every breast, and, to exert itself, re- quires only to be awakened among the numerous and oppressed classes of mankind ! But when the barons, whom their personal consequence had at first caused to be treated with caution and regard by the sovereign, be- gan to be no longer so, — when the tyrannical laws of the Conqueror became still more tyran- OF ENGLAND. 23 nically executed, — the confederacy, for which the general oppression had paved the way, in- stantly took place. The lord, the vassal, the inferior vassal, all united. They even implored the assistance of the peasants and cottagers; and the haughty aversion with which on the continent the nobility repaid the industrious hands that fed them, was, in England, com- pelled to yield to the pressing necessity of setting bounds to the royal authority. The people, on the other hand, knew that the cause they were called upon to defend was a cause common to all; and they were sensible, besides, that they were the necessary supporters of it. Instructed by the example of their lead- ers, they spoke and stipulated conditions for themselves: they insisted that, for the future, every individual should be entitled to the prO' tection of the law; and thus did those right3 with which the lords had strengthened them- selves, in order to oppose the tyranny of the crown, become a bulwark which was in time to restrain their own. -^ THE CONSTITUTlOIf i CHAPTER II. A second Advantage England had over France : — rt formed one undivided State, It was in the reign of Henry the First, about forty years after the conquest, that we see the above causes begin to operate. This prince, having ascended the throne to the exclusion of his elder brother, was sensible that he had no other means to maintain his power than by gaining the affection of his subjects; but at the same time he perceived that it must be the af- fection of the whole nation: he, therefore, not only mitigated the rigour of the feudal laws in favour of the lords, but also annexed as a condition to the charter he granted, that the lords should allow the same freedom to their respective vassals. Care was even taken to abolish those laws of the Conqueror which lay heaviest on the lower classes of the people'^. * Amongst others, the law of the Curfeu. — It might te matter of curious discussion to inquire what the Anglo- Saxon government would in process of time have become, and of course the government of England be at the pre- sent time, if the event of the conquest had never taken place; which, by conferring an immense as well as un- OF ENGLAKD. ^5 Under Henry the Second, liberty took a farther stride; and the ancient trial by jury ^ a mode of procedure which is at present one of the most valuable parts of the English law, made again, though imperfectly, its appear^ ance*. But these causes, which had worked but gilently and slowly under the two Henries, who were princes in some degree just, and of great usual power on the head of the feudal system, compelled the nobility to contract a lasting and sincere union with the people. It is very probable that the English goveru- inent would at this day be the same as that which long prevailed in Scotland (where the king and nobles en- grossed, jointly or by turns, the whole power of th« state) ; the same as in Sweden, the same as in Denmark,— countries whence the Anglo-Saxons came. [It seems more probable, from the enterprising com- mercial spirit of the English, and their courage and firm- ness, that, even if William had not been successful in his invasion, the commons would have gradually risen into consequence, and have counterpoised with considerable effect, the power of the higher orders. — Edit.] * The trial by jury appears to have prevailed (though pot precisely with the same regulations) amongst most of the nations of Gothic descent. In England, it was pro- bably in use long before the time of Alfred: but he ren- dered it more general, though it declined in the subse- ijueht convulsions of the kingdom. — Edit, f(5 THE CONSTITUTION capacity, manifested themselves at once under the despotic reign of king John. The royal prerogative, and the forest laws, having been exerted by this prince to a degree of excessive severity, he soon beheld a general confederacy formed against him : — and here we must observe another circumstance, highly advantageous, as well as peculiar, to England. England was not, like France, an aggrega- tion of a number of different sovereignties : it formed but one state, and acknowledged but one master, one general title. The same laws, the same kind of dependence, consequently the same notions, the same interests, prevailed throughout the whole. The extremities of the kingdom could, at all times, unite to give a check to the exertions of an unjust power. From the river Tweed to Portsmouth, from Yarmouth to the Land's-End, all was in motion : the agitation increased from the distance, like the rolling weaves of an extensive sea ; and the monarch, left to himself^ and destitute of re- sources, saw himself attacked on all sides by an universal combination of his subjects. No sooner was the standard set up against John, than his very courtiers forsook him. In this situation, finding no part of his kingdom less irritated against him than another, having OF ENGLAND. Tl no detached province which he could engage in his defence by promises of pardon or of pe- culiar concessions, the trivial though never-fail- ing resources of government, he was compelled, with seven of his attendants, all that remained with him, to submit himself to the disposal of his subjects, — and he signed at Runing-Mead* the charter of the Forest, together with that fa- mous charter, which, from its superior and extensive importance, is denominated Magna Charta, By the former the most tyrannical parts of the forest laws were abolished ; and by the lat- ter, the rigour of the feudal laws was greatly mitigated in favour of the lords. But this charter did not stop there ; conditions were also stipulated in favour of the numerous body of the people who had concurred to obtain it, and who claimed, with sword in hand, a share in that security it was meant to establish. It was hence instituted by the Great Charter, that the same services which were remitted in favour of the barons should be in like manner remitted in favour of their vassals. This charter more- over established an equality of weiglits and mea- sures throughout England; it exempted the * Anno 1215. •58 THE COK^STITUTION merchants from arbitrary imposts, and gave them liberty to enter and depart the kingdom at pleasure : it even extended to the lowest or- ders of the state, since it enacted, that the villain, or bondman, should not be subject to the for- feiture of his implements of tillage. Lastly, by the thirty-ninth article of the same charter, it was enacted, that no subject should be exiled, or in any shape whatever molested, either in his person or effects, otherwise than by judgement of his peers, and according to the law of the land*;— - an article so important, that it may be said to comprehend the whole end and design of political societies : — and from that moment the English would have been a free people, if there w^ere not an immense distance between the making of law s, and the observing of them. But though this charter wanted most of those supports which were necessary to ensure re- spect to it, — though it did not secure to the poor * " Nullus liber homo capiatur, vel imprisonetur, vel ** dissesiatur de libero tenemento suo, vel libertatibus, vel " liberis consuetudinibus suis ; aut utlagetur, aut exuleT *' tur, autaliquo mode destruatur; nee super eumibimus, ** pec super eum mittemus, nisi per legale judicium ** parium suorum, vel per legem terrae. Nulli vendemus, *| nulli negabimus, aut differemus, jusljtiam vel rectum.'" Magna Chart, cap. xxxix. xl. OF ENGLAND. 29 and friendless any certain and legal methods of obtaining the execution of it (provisions which numberless transgressions alone could, in pro- cess of time, point out) ;— yet it was a prodigious advance towards the establishment of public li- berty. Instead of the general maxims respect- ing the rights of the people and the duties of the prince (maxims against which ambition perpe- tually contends, and which it sometimes even openly and absolutely denies), here was substi- tuted a written law, that is, a truth admitted by all parties, which no longer required the sup- port of argument. The rights and privileges of the individual, as well in his person as in his property, became settled axioms. The Great Charter, at first enacted with so much solemnity, and afterwards confirmed at the beginning of every succeeding reign, became like a general banner perpetually set up for the union of all classes of the people ; and the foundation was laid on which those equitable laws were to rise, which offer the same assistance to the poor and weak, as to the rich and powerful. * The reader, to be more fully convinced of the reality of the causes to which the liberty of England has been here ascribed, as well as of the truth of the observations made at the same time on the situation of the people of France, needs only to compare the Great Charter, su 90 THE CONSTITUTION^ Under the long reign of Henry the Third, the differences which arose between the king and the nobles rendered England a scene of confusion. Amidst the vicissitudes which the fortune of war produced in their mutual con- flicts, the people became still more and more sensible of their importance, and so did, in con- sequence, both the king and the barons also. Alternately courted by both parties, they ob- tained a confirmation of the Great Charter, and even the addition of new privileges, by the sta- tutes of Merton and of Marlebridcre. But I hasten to reach the grand epoch of the reign of Edward the First, — a prince who, from his nu- merous and prudent laws, has been denomi- nated the English Justinian. Possessed of great natural talents, and suc- ceeding a prince whose weakness and injustice txtensive in its provisions, and in which the barons stipu- lated in favour even of the bondman, with the treaty concluded at St. Maur, October 29, 1455, between Louis XI. and several of the princes and peers of France. In this treaty, which was made in order to terminate a war that was called the war for the public good Cpro bona publico), no provision was made but concerning the par- ticular power of a few lords : not a word was inserted in favour of the people. It may be seen at large in the pieces justificatives annexed to the Memoir es de Philippe de Comines, OF ENGLAND. 31 had rendered his reign unhappy, Edward was sensible that nothing but a strict administration of justice could, on the one side, curb a nobility whom the troubles of the preceding reign had rendered turbulent, and, on the other, appease and conciliate the people, by securing the pro- perty of individuals. To this end, he made juris- prudence the principal object of his attention ; and so much did it improve under his care, that the mode of process became fixed and settled ; Judge Hale going even so far as to affirm, that the English laws arrived at once, et quasi per saltum, at perfection, and that there was more improvement made in them during tlie first thirteen years of the reign of Edward, than in all the ages since his time. But what renders this aera particularly inter- i^sting, is, that it affords the first instance of the admission of the deputies of towns and boroughs into parliaments^'. Edward, continually engaged in wars, either against Scotland or on the continent, seeing moreover his demesnes considerably diminished, was frequently reduced to the most pressing ne- cessities. But, though, in consequence of the * I mean their legal origin ; for the earl of Leicester, who had usurped the power during part of the preceding reign, had called such deputies up to parliament before. 89 THE CONSTITUTION spirit of the times, he frequently indulged him-^ self in particular acts of injustice, yet lie per* ceived that it was impossible to extend a general oppression over a body of nobles, and a people, who so well knew how to unite in a common cause. In order to raise subsidies, therefore, he was obliged to employ a new method, and to endeavour to obtain, through the consent of the people, what his predecessors had hitherto expected from their own power. The sheriffs were ordered* to invite the towns and boroughs of the different counties to send deputies to par- liament ; — and it is from this aera that we are to date the origin of the house of commons |, ♦ Anno 1295. t It is certain that no writs, for summoning represdnta^ tives of cities and boroughs to parliament, before the 4.9th year of Henry III. (when the earl of Leicester had the chief sway), can at this time be found : but there are writs extant, by which knights of shires were summoned under king John ; and the annotator upon the work of M. de la Croix (entitled *' A Review of the Constitutions of the principal States of Europe and of the United States of America"), from this and other circumstances-, particularly from the claim of a prescriptive right of re- presentation, asserted in tlie reign of Edward II. by the corporation of St. Alban, plausibly contends for the ap- pearance of burgesses in parliament, at least as early as the reign of Henry II. — Edit. ^ > ■ ■ \ i OF ENGLAND* S3 It must be confessed, however, that these deputies of the people were not, at first, pos- sessed of any considerable authority. They were far from enjoying those extensive privi- leges which, in these days, constitute the house of commons a collateral part of the government : they were in those times called up only to pro- vide for the wants of the king, and approve the resolutions taken by him and the assembly of the lords*. But it was nevertheless a great point gained, to have obtained the right of ut- tering their complaints, assembled in a body and in a legal way — to have acquired, instead of a dangerous resource of insurrections, a law- ful and regular mean of influencing the motions ^f the government, and thenceforth to have be- f-j ■ * The end ipentioned in the summons sent to the lords, was de arduis negotiis regni tractatur et consilium impen- suri: the requisition sent to the commons was, ad facien- dum et consentiendum. The power enjoyed by the latter was even inferior to what they might have expected from the summons sent to them. '* In most of the ancient " statutes they are not so much as named; and in several, " even when they are mentioned, they are distinguished " as petitioners merely, the assent of the lords being ex- ** pressed in contradistinction to the request of the com- '* raons." — See on this subject the preface to the Collec- tion of the Statutes at large, by Ruffhead, and the au-r tij<4ities quoted therein. 54 kuZ CONSTITUTION come a part of it. Whatever disadvantage might attend the station at first allotted to the representatives of the people, it was soon to be compensated by the preponderance the people necessarily acquire, when they are enabled to act and move with method, and especially with concert*. And indeed this privilege of naming repre- sentatives, insignificant as it might then appear, presently manifested itself by the most con- siderable effects. In spite of his reluctance^ and after many evasions unworthy of so great a king, Edward was obliged to confirm the Great Charter ; he even confirmed it eleven times in the course of his reign. It was moreover en- acted, that whatever should be done conti'ary to it, should be null and void; that it should * France had indeed also her assemblies of the general estates of the kingdom, in the same manner as England had her parliament ; but then it was only the deputies of the towns within the particular domain of the crown, that is, for a very small part of the nation^ who, under the name of the third estate, were admitted in those estates; and it is easy to conceive that they acquire no great in- fluence in an assembly of sovereigns who gave the law to their lord paramount. Hence, when these disappeared, the maxim became immediately established, The will of the king is the will of the law: — in old French, Que vcitt h ro7/jC€ veut la lot/. OF ENGLAND. 35 be read twice a year in all cathedrals ; and that the penalty of excommunication should be de- nounced against any one who should presume tO' violate it*. . At length he converted into an established law a privilege of which the English had hitherto had only a precarious enjoyment; and, in the statute de tallagio non concedendo, he decreed,- that no tax should be laid, nor impost levied, without the joint consent of the lords and com- mons'f'. A most important statute this, which,' in conjunction with Magna Charta, forms the basis of the English constitution. If from the latter the English are to date the origin of their liberty, from the former they are to date the establishment of it ; and as the Great Charter was the bulwark that protected the freedom of individuals, so was the statute in question the engine which protected the charter itself, and by the help of which the people were thence- forth to make legal conquests over the authority of the crown. * Gonfirmationes Chartarum, cap. 2, 3, 4. >'f were the last in which the three orders met^ " that is, the grandees, the ecclesiastics, and the depu- " ties of the towns." See the History of Spain, by Ferreras. * The kingdom of France, as it stood under Hugh Capet and his next successors, may, with a great degree of exactness, be compared with the German empire: but the imperial crown of Germany having, through a con- junction of circumstances, continued elective, the em- perors, though vested with more high-sounding preroga- tives than even the kings of France, laboured under very essential disadvantages : they could not pursue a plan of aggrandisement with the same steadiness as a line of he- reditary sovereigns usually do ; and the right to elect them, enjoyed by the greater princes of Germany, pro- cured a sufficient power to these, to protect themselves, as well as the inferior lords, against the power of the crown. 4*0 THE COKSTITUTION of distant advantages, the present calamities it caused ; nor was it to Leave behind it, as it dis- appeared, any thing but a more regular kind of despotism. But in England, the same feudal system, aft- er having suddenly broken in like a flood, had deposited, and still continued to deposit, the noble seeds of the spirit of liberty, union, and sober resistance. So early as the time of Ed- ward the tide was seen gradually to subside : tiie laws which protect the person and pro- perty of the individual began to make their ap- pearance ; that admirable constitution, the re- sult of a threefold power, insensibly arose* ; and the eye might even then discover the ver- dant summits of that fortunate region that was destined to be the seat of philosophy and liberty, which are inseparable companions. * " Now, in my opinion/' says Philippe de Comines, irt times not much posterior to those of Edward the First, and with the simplicity of the language of his times, ** among all the sovereignties I know in the world, that " in which the public good is best attended to, and the " least violence exercised on the people, is that of Engr ^* land." Memoires de Comines, livre v. chap, xviii. OF ENGLAND, 41 CHAPTER HI. The Subject continued. The representatives of the nation, and of the whole nation, were now admitted into parlia- ment: the great point therefore was gained, that was one day to procure them the great influence which they at present possess ; and the subsequent reigns afford continual instances of its successive growth. Under Edward the Second, the commons be- gan to annex petitions to the bills by which they granted subsidies : this was the dawn of their le- gislative authority. Under Edward the Third, they declared they would not in future acknowledge any law to which they had not expressly assented. Soon after this, they exerted a privilege, in which consists, at this time, one of the great balances of the constitution: they impeached, and pro- cured to be condemned, some of the first mi- nisters of state*. Under Henry the Fourth, * In the rolls of parliament, there is no formal record ©f any impeachment by the commons, prior to the 50th 4S THE CONSTITUTION they refused to grant subsidies before an an- swer had been given to their petitions. In a word, every event of any consequence was at- tended with an increase of the power of the commons; — increases indeed but slow and gra- dual, but which were peaceably and legally ef- fected, and were the more fit to engage the attention of the people, and coalesce with tlie ancient principles of the constitution. Under Henry the Fifth, the nation was en» tirely taken up with its wars against France; and in the reign of Henry the Sixth began the fatal contests between the houses of York and Lancaster. The noise of arms alone was now year of the reign of this monarch. Lord Latimer was then impeached; and being, after a regular process in the house of lords, convicted of raal-ad ministration, he was dismissed by tlie king from all ministerial employment. Lord Neville was also accused by the commons, and banished from court ; and Alice Ferrers, the king*s mis- tress, was involved in similar disgrace. The inquisitorial power, thus exercised by the democratic branch of our constitution, eminently contributes to the preservation of public liberty. The increasing influence of the lower house (for it was about this time that the peers and the commons began to deliberate in different halls or apartments), was far- ther evinced in the following reign, by the irregular and arbitrary attempts of Richard II. and his ministers to influ- «nce the elections.— Edit. OF ENGLAND.' 43 to be heard : during the silence of the laws al- ready in being, no thought was had of enacting new ones: and for thirty years together Eng- land presents a wide scene of slaughter and desolation. At length, under Henry the Seventh, who, by his intermarriage with the house of York, united the pretensions of the two families, a general peace was re-established, and the pro- spect of happier days seemed to open on the nation. But the long and violent agitation under which it had laboured was to be fol- lowed by a long and painful recovery. Henry, mounting the throne with sword in hand, and in great measure as a conqueror, had promises to fulfil, as well as injuries to avenge. In the mean time, the people, wearied out by the ca- lamities they had undergone, and longing only for repoBe, abhorred even the idea of resistance; so that the remains of an almost exterminated nobility beheld themselves left defenceless, and abandoned to the mercy of the sovereign. The commons, on the other hand, accustom- ed to act only a second part in public affairs, and finding themselves bereft of those who had hitherto been their leaders, w^ere more than ever afi'aid to form, of themselves, an opposition. Placed immediately, as well as the lords, under 44 THE CONSTITUTION the eye of the king, they beheld themselves ex- posed to the same dangers. Like them, there- fore, they purchased their personal security at the expense of public liberty; and in reading the history of the first two kings of the house of Tudor, we imagine ourselves reading the rela- tion given by Tacitus of Tiberius and the Ro- man senate "^^ The time, therefore, seemed to be arrived, at which England must submit, in its turn, to the fate of the other nations of Europe. All those barriers which it had raised for the de- fence of its liberty seemed to have only been able to postpone the inevitable effects of power. But the remembrance of their ancient laws, of that great charter so often and so solemnly confirmed, was too deeply impressed on the minds of the English to be effaced by transitory evils. Like a deep and extensive ocean, which preserves an equability of temperature amidst all the vicissitudes of seasons, England still re- tained those principles of liberty which were so universally diffused through all orders of the people; and they required only a proper oppor- tunity to manifest themselves. England, besides, still continued to possess * Huaiito quh Ulustriorj tunlo magis falsi ac fcstinantcs. , OF ENGLAND. 45 the immense advantage of being one undivided state. Had it been, like France, divided into several distinct dominions, it would also have had se- veral national assemblies. These assemblies, being convened at different times and places, for this and other reasons, never could have acted in concert; and the power of withhold- ing subsidies, a power so important when it is that of disabling the sovereign, and binding him down to inaction, would then have only been the destructive privilege of irritating a master who would have easily found means to obtain supplies from other quarters. The different parliaments, or assemblies of these several states, having thenceforth no means of recommending themselves to their sovereign, but their forwardness in complying with his demands, would have vied with each other in granting what it would not only have been fruitless, but even highly dangerous, to re- fuse. The king would not have failed soon to demand, as a tribute, a gift he must have been confident to obtain; and tlie outward forms of consent would have been left to the people only as additional means of oppressing them \^ ithout danger. But the kin^ of England continued, even in 46 THK CONSTITUTION the time of*the Tudors, to have but one assem- bly before which he could lay his wants and apply for relief. How great soever the increase of his power was, a single parliament alone could furnish him with the means of exercising it; and whether it was that the members of this parliament entertained a deep sense of their ad- vantages, or whether private interest exerted itself in aid of patriotism, they at all times vin- dicated tlie right of granting, or rather refus- ing subsidies ; and amidst the general wreck of every thing they ought to have held dear, they at least clung obstinately to the plank which was destined to prove the instrument of their preservation. Under Edward the Sixth, the absurd tyran- nical laws against high-treason (instituted under Henry the Eighth) were abolished. But this young and virtuous prince having soon passed away, the blood-thirsty Mary astonislied the world ^vith cruelties, which nothing but the fanaticism of a part of her subjects could have enabled her to execute. Under the long and brilliant reign of Eliza- beth, England began to breathe anew; and the protestant religion, being seated once more on the throne, brought with it some more free- dom and toleration. OF ENGLAND. 47 The Star-chamber, that effectual instrument af the tyranny of the two Henries, yet continued to subsist: the inquisitorial tribunal of the high commission was even instituted; and the yoke of arbitrary power lay still heavy on the subject. But the general affection of the people for a queen, whose former misfortunes had created such a general concern, the imminent dangers which England escaped, and the extreme glory attending that reign, lessened the sense of such exertions of authority as w^ould, in these days, appear the height of tyranny, and served at that time to justify, as they still do to excuse, a princess whose great talents, though not her principles of government, render her worthy of being ranked among the greatest sovereigns. Under the sway of the Stuarts, the nation be- gan to recover from its long lethargy. James the First, a prince rather impmdent than tyran- nical, drew back the veil which had hitherto disguised so many usurpations, and made an ostentatious display of what his predecessors had been contented to enjoy. ' He was incessantly asserting, that the author- ity of kings was not to be controlled any more than that of God himself Like Him, they were omnipotent; and those privileges to which the people so clamorously laid claim as their 4S^ THK CONSTITUTION inheritance and birth-right, were no more thart an effect of the grace and toleration of his royal ancestors *. Those principles, hitherto only silently adopt- ed in the cabinet, and in the courts of justice, had maintained their ground in consequence of this very obscurity. Being now announced from the throne, and resounded from the pulpit, they spread an universal alarm. Commerce, besides, with its attendant arts, and, above all, that of printing, diffused more salutary notions through- out all orders of the people ; a new light began to rise upon the nation; and the spirit of opposi- tion frequently displayed itself in this reign, to which the p],nglish monarchs had not, for a long time past, been accustomed. But the storm, which was only gathering in clouds during the reign of James, began to mutter under Charles the First; and the scene which opened to view, on the accession of that prince, presented the most formidable aspect. The notions of religion, by a singular con- cun-ence, united with the love of liberty : the same spirit which had made an attack on the * See his declarations made in parliament, in the years. 1610 and I62U OF ENGLAND* 49 established faith, now directed itself to politics : the royal prerogatives were brought under the same examination as the doctrines of the church of Rome had been submitted to; and as a su- perstitious religion had proved unable to sup- port the test, so neither could an authority^ pre- tended to be unlimited, be expected to bear The commons, on the other hand, were re- covering from the astonishment into which the extinction of the power of the nobles had, at first, thrown them. Taking a view of the state of the nation, and of their own, they became sensible of their whole strength: they deter- mined to make use of it, and to repress a power which seemed, for so long a time, to have level- ed every barrier. Finding among themselves men of the greatest capacity, they undertook that important task with method and by consti- tutional means; and thus had Charles to cope with a whole nation put in motion and directed by an assembly of statesmen. And here we must observe how different were the effects produced in England, by the annihilation of the power of the nobility, from those which the same event had produced in France. In France, where, in consequence of the di- 50 THE CONSTITUTION^ vision of the people, and of the exorbitant pow- er of the nobles, the people were accounted no- thing — when the nobles themselves were sup- pressed, the work was completed. In England, on the contrary, where the no- bles had ever vindicated the rights of the people equally with their own, — in England, where the people had successively acquired most ef- fectual means of influencing the motions of the government, and above all were undivided, — when the nobles themselves were cast to the ground, the body of the people stood firm, and maintained the public liberty. The unfortunate Charles, however, was to- tally ignorant of the dangers which surrounded him. Seduced by the example of the other sovereigns of Europe, he was not aware how diff ferent, in reality, his situation was from theirs; he had the nnprudence to exert with rigour an authority which he had no ultimate resources to support : an union was at last effected in the nation; and he saw his enervated prerogatives dissipated with a breath*. By the famous act, * It might here be objected, that when, under Charles the First, the regal power was obliged to submit to the power of the people, the king possessed other dominions besides England, viz. Scotland and Ireland, and therefore spemed to enjoy the same advantage as the kings of GP ENGLAND. 51 called the Petition of Right, and a posterior act, to both which he assented, the compulsory loans and taxes, disguised under the name of 6e- nevolences, were declared to be contrary to law ; arbitrary imprisonments, and the exercise of martial law, were abolished ; the court of high commission, and the star-chamber, were sup- pressed*; and the constitution, freed from the France, that of reigning over a divided empire or nation. But, to this it is to be answered, that, at the time we men- tion, Ireland, scarcely civilised, only increased the ne- cessities, and consequently the dependence, of the king; while Scotland, through the conjunction of peculiar cir- cumstances, had thrown off her obedience. And though those two states, even at present, bear no proportion to the compact body of the kingdom of England, and seem never to have been able, by their union with it, to pro- cure to the king any dangerous resources, yet the circum- stances which took place in both at the time of the Revo- lution, or since, sufficiently prove that it was no unfavour- able circumstance to English liberty, that the great crisis of the reign of Charles the First, and the advance which the constitution was to make at that time, should precede the period at which the king of England might have been able to call in the assistance of two other king- doms. * The star-chamber differed from all the other courts of law in this: the latter were governed only by the com- mon law, or immemorial customs, and acts of parliament ; whereas the former often admitted for law the proclama- £2 52 THE CONSTITUTION apparatus of despotic powers with which the Tudors had obscured it, was restored to its ancient lustre. Happy had been the people, if their leaders, after having executed so noble a work, had contented themselves with the glory of being the benefactors of their country. Happy had been the king, if, obliged at last to submit, his submisssion had been sincere, and; if he had become sufficiently sensible that the only resource he had left was the affection of his subjects. But Charles knew not how to survive the loss of a power he had conceived to be indisputable : he could not reconcile himself to limitations and restraints so injurious, according to his notions, to sovereign authority. His discourse and con- duct betrayed his secret designs; distrust took possession of the nation ; certain ambitious per- sons availed themselves of it to promote their own views; and the storm, which seemed to have blown over, burst forth anew. The con- tending fanaticism of persecuting sects joined in the conflict between regal haughtiness and the ambition of individuals; the tempest blew tions of thF ENGLAND. I8t Moreover, as the most fatal conseqiiehces might ensue, if laws which might most materially affect public liberty, could be enacted in parlia- ments abruptly and imperfectly summoned, it h^s been established that the writs for assem- bling a parliament must be issued forty days at least before the first meeting of it. Upon the same principle it has also been enacted, that the king cannot abridge the term he has once fixed for a prorogation, except in the two following cases, viz. of a rebellion, or of imminent danger of a foreign invasion ; in both which cases a four- teen-days' notice must be given*. Again, the king is the head of the church; but he can neither alter the established religion, or call individuals to an account for their reli- gious opinionsf. He cannot even profess the religion which the legislature has particularly forbidden ; and the prince who should profess it * Stat. 30 Geo. II. ch. 25. t The convocation, or assembly of the clergy, of which the" king is the head, can only regulate such affairs as are merely ecclesiastical ; they cannot touch the laws, customs, juid statutes, of the kingdom.— Stat. 25 Hen. VIII. C. 1^. [A convocation is still summoned with every new par- liament ; but it only assembles jt7roybr;« a, and is considered as a mere nullity. Edit.] S8 THE CONSTITUTION is declared incapable of inheriting, possessing, or enjoying, the crown of' these kingdoms^. The king is the first magistrate ; but he can make no change in the maxims and forms con- secrated by law or custom : he cannot even in* fluence, in any case whatever, the decision of causes between subject and subject ; and James the First, assisting at the trial of a cause, was reminded by the judge, that he could deliver no opinion'!'. Lastly, though crimes are prosecuted in his name, he cannot refuse to lend it to any particular persons who have complaints to prefer. The king has the privilege of coining money ; but he cannot alter the standard. The king has the power of pardoning offend- ers ; but he cannot exempt them from making a compensation to the parties injured. It is even established by law, that, in a case of murder^ * 1 Will, and M. stat. 2. c. 2. f These principles have since been made an express ar- ticle of an act of parliament ; the same which abolished the star-chamber. " Be it likewise declared and enacted, by " the authority of this present parliament, that neither his " majesty, nor his privy-council, have, or ought to have, " any jurisdiction, power, or authority, to examine or " draw into question, determine, or dispose of, the lands, " tenements, goods, or chattels, of any of the subjects of " this kingdom." Stat. l6. Ch. I. cap. 10. § 10. OF ENGLAND. 89 the widow, or next heir, shall have a right to prosecute the murderer ; and the king's pardon, whether it preceded the sentence passed in con- sequence of such prosecution, or whether it be granted after it, cannot have any effect''^. The king has the military power; but still, with respect to this, he is not absolute. It is true, in regard to the sea-forces, as there is in them this very great advantage, that they cannot be turned against the liberty of the nation, at the same time that they are the surest bulwark of the island, the king may keep them as he thinks pro- per; and in this respect he lies only under the general restraint of applying to parliament for obtaining the means of doing it. But in regard to land-forces, as they may become an immedi- ate weapon in the hands of power, for throwing down all the barriers of public liberty, the king cannot raise them without the consent of parlia- ment. The guards of Charles the Second were declared anti-constitutional; and James's army was one of the causes of his being dethroned f. * The method of prosecution mentioned here, is called an appeal: it must be sued within a year and a day after the commission of the crime. t A new sanction was given to the above restriction in the sixth article of the Bill of Rights : " A standing army, ^' without the consent of parliament, is against law." go THE CONSTITUTION In these times, however, when it is become a custom with princes to keep those numerous armies, which serve as a pretext and means of oppressing the people, a state that would main- tain its independence is obliged, in a great mea- sure, to do the same. The parliament has there- fore thought proper to establish a standing body of troops (amounting to about thirty thousand men), of which the king has the command. But this army is only established for one year; at the end of that term, it is (unless re-establish- ed) to be ipso facto disbanded ; and as the ques- tion, w hich then lies before parliament, is not, whether the army shall be dissolved^ but whether it shall be established aneaj^ as if it had never ex- isted, any one of the three branches of the legis- lature may, by its dissent, hinder its continu- ance. Besides, the funds for the paytnent of these troops are to be paid by taxes that are not esta- blished for more than one year* : and it becomes likewise necessary, at the end of this term, again * The land-tax and malt-tax. [It was ordained in 1798, that the land-tax should be made perpetual ; subject to complete redemption and pur- chase, by the transfer of stock. Edit.] OF ENGLAND. 91 to establish them ^. In a word, this instrument of defence, which the circumstances of modern times have caused to be judged necessary, being capable, on the other hand, of being applied to the most dangerous purposes, has been joined to the state by only a slender thread, the knot of which may be slipped, on the first appearance of danger f. * It is also necessary that the parliament, when it re- news the act against mutiny, should authorise the different courts- martial to punish military offences and desertion. It can therefore refuse the king even the necessary power of military discipline. t To these laws, or rather conventions, between king and people, I will add the oath which the king takes at his coronation ; a compact which, if it cannot have the same precision as the laws above mentioned, yet, in a manner, comprehends them all, and has the farther advantage of being declared with more solemnity. The archbishop or bishop shall say, *' Will you solemnly " promise and swear to govern the people of this kingdom " ofEngland, and the dominions thereto belonging, accord- *' ing to the statutes of parliament agreed on, and the laws ** and customs of the same V* — The king or queen shall say^ *' I solemnly promise so to do." Archbishop or bishop, — " Will you, to your power, cause ** law and justice, in mercy, to be executed in all your " judgements ?" — King or queen, " I will." Archbishop or bishop — '' Will you, to the utmost of your " power, maintain th« laws of God, the true profession oi 92 THE CONSTITUTION But these laws, which limit the king's autho rity, would not, of themselves, have been suf- ficient. As they are, after all, only intellectual barriers, which the king might not at all times respect; as the check which the commons have on his proceedings, by a refusal of subsidies, affects too much the whole state to be exerted on every particular abuse of his power; and lastly, as even this check might in some degree be eluded, either by breaking the promises which have procured subsidies, or by applying them to uses different from those for which they were ap- pointed ; the constitution has besides supplied the commons with the means of immediate oppo- sition to the misconduct of government, by giving them a right to impeach the ministers. It is true, the king himself cannot be a;rraign- ed before judges; because if there were any that could pass sentence upon him, it would be they, " the gospel, and the protestant reformed religion esta- " blished by the law ? And will you preserve unto the " bishops and clergy of this realm, and to the churches ** committed to their charge, all such rights and privileges " as by law do or shall appertain unto them, or any of " them ?" — King or queen. " All this I promise to do.'' After this, the king or queen, laying his or her hand upon the holy gospels, shall say, " The things which I have here " before promised I will perform and keep : So help me ** God!'' and tlien shall kiss the book. OK ENGLAND. ^ and not he, who must finally possess the execu- tive power; but, on the other hand, the king cannot act without ministers ; it is therefore those ministers, — that is, those indispensable instru- ments, — whom they attack, •jnjf, for example, the public money has been employed in a manner contrary to the declared intention of those who granted it, an impeach- ment may be brought against those who had the management of it. If any abuse of power is com- mitted, or in general any thing done contrary to the public weal, they prosecute those who have been either the instruments or the advisers of the measure*. But who shall be the judges to decide in such a cause? What tribunal will flatter itself that it can give an impartial decision, when it shall see, appearing at its bar, the government itself as the accused, and the representatives of the people as the accusers? It is before the house of peers that the law has directed the commons to carry their accusation ; that is, before judges, whose dignity, on the one hand, renders them independent, and who, on * It was upon these principles that the commons, in the beginning of the eighteenth century, impeached the earl of Orford, who had advised the treaty of partition, and the lord chancellor Somers, who had affixed the great seal to it. 94 THE CONSTITUTION the other, have a great honour to support in that awful function, where they have all the nation for spectators of their conduct. When the impeachment is brought to the lords, they commonly order the person accused to be imprisoned. On the day appointed, the depu- ties of the house of commons, with the p>erson im- peaelied, make their appeai'ance: the impeach- ment is read in his presence; counsel are allowed him, as well as time to prepare for his defence; and, at the expiration of this term, the trial goes on from day to day, with open doors, and every thing is communicated in print to the public. But whatever advantage the law grants to the person impeached for his justification, it is from the intrinsic merits of his conduct that he must draw his arguments and proofs. It would be of no service to him, in order to justify a criminal conduct, to allege the commands of the sove- reign; or, pleading guilty with respect to the measures imputed to him, to produce the royal pardon'^. It is against the administration itself * This point, in ancient times, was far from being clearly settled. In the year l678, the commons having impeached the earl of Danby, he pleaded the king's pardon in bar to that impeachment; great altercations ensued, which were terminated by the dissolution of that parllanoent. It was •afterwards enacted (Stat. 12 ajid 13 W.. III. C 2.), " that OF ENGLANI>. ^ that the impeachment is carried on; it should tlierefore by no means interfere : the king cam neither stop nor suspend its course, but is forced to behold, as an inactive spectator, the discovery of the share which he may himself have had in " no pardon under the great seal should be pleaded in bar " to an impeachment by the house of commons/' I once asked a gentleman, very learned in the laws of this country, if the king could remit the punishment of a man condemned in consequence of an impeachment of the house of commons : he answered me, The tories will tell you the king can, and the whigs, he cannot. [There is no reason to doubt the king's power in this respect, though the policy of such a measure mat/ well be disputed. Edit.] But it is not perhaps very material that the question should be decided: the great public ends are attained when a corrupt minister is removed with disgrace, and the whole system of his pro- ceedings unveiled to the public eye. [Another disputed point was, whether an impeachment was so far affected by a dissolution, as to render it neces- sary for the commons to institute de nono a similar inquiry, rf they earnestly wished to bring a delinquent to justice. — This point was fully debated in 1790, in the case of Mr. Hastings ; and the majority of the commons, influenced by the arguments of the ablest speakers of both parties, de- cided for the continuance of an impeachment from one par- liament to another, not as an innovation but as an ancient point of constitutional practice, calculated to prevent the undue interference of.the crown in favour of an aiccusedin* dividual, or a guilty minister. Edit.] g6 THE CONSTITUTION the illegal proceedings of his servants, and to hear his own sentence in the condemnation of his ministers. V An admirable expedient ! which, by removing and punishing corrupt ministers, affords an im- mediate remedy for the evils of the state, and strongly marks out the bounds within which power ought to be confined : which takes away the scandal of guilt and authority united, and calms the people by a great and awful act of justice : an expedient, in this respect especially, so highly useful, that it is to the want of the like that Machiavel attributes the ruin of his re- public. But all these general precautions to secure the rights of the parliament, that is, those of the na- tion itself, against the efforts of the executive power, would be vain, if the members them- selves remained personally exposed to them. Being unable openly to attack, w ith any safety to itself, the two legislative bodies, and by a for- cible exertion of its prerogatives, to make, as it were, a general assault, the executive power might, by subdividing the same prerogatives, gain an entrance, and, sometimes by interest, and at others by fear, guide the general will, by influencing that of individuals. But the laws which so effectually provide for OF ENGLAND. ^7 the safety of the people, provide no less for that of the members, whether of the house of peer^, or that of the commons. There are not known in England either commissaries who are always ready to find those guilty whom the wantonness of ambition points out, or those secret imprison- ments which are, in other countries, the usual expedients of government. As the forms and maxims of the courts of justice are strictly pre- scribed, and every individual has an invariable right to be judged according to law, he may £)bey without fear the dictates of public virtue. Lastly, what crowns all these precautions, is its being a fundamental maxim, " That the free- ^' dom of speech, and debates and proceedings ^' in parliament, ought not to be impeached or ** questioned in any court or place out of par- ^' liament*." The legislators, on the other hand, have npt forgotten that interest, as well as fear, may im- pose silence on duty. To prevent its effects, it has been enacted, that all persons concerned in the management of any taxes created since 1 69% commissioners of prize, navy, victualling-office, &c. comptrollers of the army accounts, agents fpr regiments, the clerks in the different offices * Bill of Right*, Art. 9- ^r- H 58 THE CONSTITUriON" of the revenue, persons holding any new office tinder the cl'own (created since 1705), or hav- ing a pension under the crown during pleasure, or for any term of years, are incapable of being elected members. Besides, if any member ac- cepts an office under the crown, except it be an officer in the army or navy accepting a new commission, his seat becomes void ; though such member is capable of being re-elected. Such are the precautions hitherto taken by the legislators, for preventing the undue influence of the great prerogative of disposing of rewards and places; precautions which have been successively taken, according as circumstances have shown them to be necessary ; and w hich, we may thence suppose, are owing to causes powerful enough to produce the establishment of new ones, when- ever circumstances shall point out the necessity of them*. * Nothing can be a better proof of tlie efficacy of the causes that produce the liberty of the English, than those Victories which the parliament from time to time gains over itself, and in which the members, forgetting all views of private ambition, only think of their interest as subjects. , Since this was first written, an excellent regulation has been made for the decision of controverted elections. For- nierely the house decided them in a very summary manner, and the witnesses w^re not examined upon oath. But, by an act passed a few years ago [in 177 Oy wider the auspicet of OF ENGLAND. 99 CHAPTER IX. Of private Libertij, or the Liberty of Individuals, We have hitherto treated only of general li- berty, that is, of the rights of the nation as a na- tion, and of its share in the government. It now remains that we should treat particularly of a thing without which this general liberty, being absolutely frustrated in its object, would be only a matter of ostentation, and even could not long subsist, — I mean the liberty of individuals. Private liberty, according to the division of the English lawyers, consists, first, of the right oi property, that is, of the right of enjoying ex- clusively the gifts of fortune, and all the various Mr. Grenvillcj whose son, lord Grenville, has since improved it —Edit.], the decision is left to a jury, orcommittce, of fif- teen members, formed in the following manner. Out of the members present, who must not be less than one hundred, forty-nine are drawn by lots : out of these, each candidate strikes off one alternately, till there remain only thirteen, who, with two others, named out of the whole house (one by each candidate), are to form the committee. In order to secure the necessary number of a hundred members, all other business in the house is to be suspended, till the above operations are completed, H 2 100 THE CONSTITUTION fruits of one's industry ; secondly, of the right of personal security ; thirdly, of the loco-mot we fa- culty^ taking the word liberty in its more con- fined sense. Eachi of these rights, say again the English lawyers, is inherent in the person of every Eng- lishman ; they are to him as an inheritance, and he cannot be deprived of them, but by virtue of a sentence passed according to the laws of the land. And, indeed, as this right of inheritance is expressed in English by one word ( birth-right )>, the same as that which expresses the king's title to the crown, it has, in times of oppression, been often opposed to him as a right, doubtless of less L extent, but of a sanction equal to that of his own. One of the principal effects of the right of property is, that the king can take from his sub- jects no part of what they possess ; he must wait till they themselves grant it to him : and this right, which, as we have seen before, is, by its conse- quences, the bulwark that protects all the others, has moreover the immediate effect of preventing one of the chief causes of oppression. In regard to the attempts to which the right of property might be exposed from one indi- vidual to another, I believe I shall have said every thing, when I have observed, that there is no man in England who can oppose the irre* OF ENGLAND. 101 sistible power of the laws ; — that, as the judges cannot be deprived of their employments but on an accusation by parliament, the effect of inter- est with the sovereign, or with those who apr proach his person, can scarcely influence their decisions ; — that, as the judges themselves have no power to pass sentence till the matter of fact has been settled by men nominated, we may almost say, at the common choice of the par- ties*", all private views, and consequently all respect of persons, are banished from the courts of justice. However, that nothing may be want^ ing which may help to throw light on the sub-r ject I have undertaken to treat, I shall relate, in general, what is the law in civil matters, that has taken place in England. When the Pandects were found at Amalphi, the clergy, who were then the only men that were able to understand them, did not neglect that opportunity of increasing the influence they had already obtained, and caused them to be re- ceived in the greater part of Europe. England, which was destined to have a constitution so different from that of other states, was to b^ * From the extensive right of challenging jurymen, which is allowed to every person brought to his trial, thou^ not very frequently useplaycd surprising nicety, refinement, accuracy, and . OF ENGLAND. 125 Modern civilians have been at uncommon pains to find out and produce the ancient ybr* muloe we mention ; in which they really have had great success. Old comic writers, such as Plau* tus and Terence, have supplied them with se* veral; the settled words, for instance, used to claim the property of a slave, frequently occur in their works*. strictness. The English lawyers have not bestowed so much pains on the objects of woZww^art/ jurisdiction, nor any thing like it. * The words addressed to the plaintiff, by the person sued, when the latter made his appearance on the day for which he had been compelled to give sureties, were as follov/, and are alluded to by Plaut. CurcuL I. 3. v. 5. ** Where art thou who hast obliged me to give sureties ? '* Where art thou who summonedst me ? Here I stand " before thee: do thyself stand before me." To which the plaintiff made answer, '* Here I am." The defendant replied, " What dost thou say ?" The plaintiff answer- ed, "I say (Aiof — and then followed the form of words by which he chose to express his action. Uhi tu es, qui me vadatus es ? Uhi tu es, qui me citdsli ? Ecce ego metibisisto; tu contra et te mihi siste, 8iC. If the action, for instance, was brought on account of goods stolen, the settled penalty (or damages) for which was the restitution of twice the value, the words to be used were, AIO decern aureos mihi fur to tuo abesse, teqv£ eo nomine viginti aureos mihi dare oportere. For work done, such as cleaning of clothes, &:c. Aio tf mihi tritici modinm, de quo V26 THE CONSTITUTION Extremely like the above actiones legis are the wrils used in the Enorlish courts of law. Those writs are framed for, and adapted to, every branch or denomination of actions, such as de- tinue, trespass, action upon the case, accompt, and covenant, &c. the same strictness obtains in regard to them as did in regard to the Roman inter nos conveait oh polita vestimenta tua, dare oportere. Foe recovering the value of the slave killed by another citizen : Aio te hominem vieuni occidisse, teque jhikl quantum ille hoc anno plurimi fuit dare oportere. For damages done by a vicious animal, Aio hovem Ma;vii servum meum, Stichum, cornu petiisse et occidisse, eoque nomine McBvium, aut servi cestimationem prwstarej aut bovem mihinoxm dare, oportere; or, Aio ursum Mcevii mihi vulnus intulisse, et Mceviiim quan- tum aquius melius mihi dare oportere, 5fc. It may be observed, that the particular kind of remedy which was provided by the law for the case before the court was expressly pointed out in the formula, used by a plain- tiff; and in regard to this no mistake was to be made. — Thus, in the last-quoted formula, the words quantum aquius melius, show that the praetor was to appoint inferior judges, both to ascertain the damage done, and determine finally upon the case, according to the direction he previously gave them ; these words being exclusively appropriated to the kind of actions called arbitrarue, from the above-men- tioned judges or arbitrators. In actions brought to require the execution of conventions that had no name, the con- vention itself was expressed in the formula : such is that which is recited above, relating to work done by the plain- tiff, &c. OF ENGLAND. 127 formula above-mentioned : there is the same danger in misapplying them, or in failing in any part of them : and, to use the words of an En- glish law-writer on the subject, " Writs must " be rightly directed, or they will be nought : — '^ In all writs, care must be had that they be laid " and formed according to their case, and so " pursued in the process thereof*." The same formality likewise prevails in the English pleadings and conduct of the process as obtained in the old Roman law proceedings ; and in the same manner as the Roman juriscon- sults hdid their actionispostulationes et editiones^ their inficiationeSy exceptioneSy sponsioneSy repli" cationesy duplicutioneSy 8(c, so the English law- yers have their countSy bars, replications, rejoin^ dersysur 'rejoinders, rebutters, sur -rebutters, Sec. A scrupulous accuracy, in observing certain rules, is moreover necessary in the management of those pleadings : the following are the words of an English law-writer on the subject : '^Though *^ the art of pleading was in its nature and design *^ only to render the fact plain and intelligible, '' and to bring the matter to judgment with con- " venient certainty, it began to degenerate from *' its primitive simplicity. Pleaders, yea and * Jacob's Law Dictionary. See H'riL 128 THE CONSTITUTION "judges, having become too curious in that re* " spect, pleadings at length ended in a piece of " nicety and curiosity, by which the miscarriage *' of many a cause, upon small trivial objections. " has been occasioned*." There is, however, a difference between the Roman actiones legis, and the English writs, which is, that the former might be framed when new ones were necessary, by the praetor or judge of the court, or, in some cases by the body of the jurisconsults themselves, — whereas writs, when wanted for such new cases as may offer, can only be devised by a distinct judge or court, exclusively invested with such powers, viz. the High Court of Chancery. The issuing of writs already existing, for the different cases to which they belong, is also expressly reserved to this court ; and so important has its office on those two points been deemed by lawyers, that it has been called, by way of eminence, the manu- factory oi justice fqfflcinajusdti^ J, Original writs, besides, when once framed, are not at any time to be altered^ except by parliamentary authority f. * Cunningham's Law Dictionary. See Pleadings. t Writs, legally issued, are also necessary for executing the different incidental proceedings that may take place in OF ENGLAND. 129 Of SO much weight in the English law are these original delineations of cases, that no cause is suffered to be proceeded upon, unless they first appear as legal introductors to it. However important or interesting the case, the judge, till he sees the writ he is used to, or at least a writ issued from the right manufactory, is both deaf and dumb. He is without eyes to see, or ears to hear. And, when a case of a new kind offers, for which there is yet no writ in being, should the lord chancellor and masters in chan- cery disagree in creating one, or prove unequal to the arduous task, the great national council, that is, parliament itself, is, in such emergencyj expressly applied to: by means of its collected the course of a law-suit, such, as producing \vitne.ssQg, &c. Then^iiics given to tlje ditFercnt kinds.pf vvrits are.i^^Vially derived from the first Latin words by which they began when they were written in Latin, or at least from some re- markable word in them, which gives rise to expressions suf- ficiently uncouth and unintelligible. Thus a pone is a w'rit issued to oblige a person in certain cases to give sureties (pone per vadium, and sahos pkgios), A writ oisubpana is to oblige witnesses, and sometimes other classes of persons, to appear before a court. An action of qui tarn is that which is brought to Sue for a proportional share of a fine established by some penal statute, by the person who laid an information ; the words in the writ being, Swi tam pro domino rege, quam pro seipso in hac parte sequiturj &c. 150 THE CONSTITUTION wisdom, the right mystical words are brought together ; the judge is restored to the free use of his organs of hearing and of speech ; and, by the creation of a new xvrit^ a new province is added to the empire of the courts of law. M In fine, those precious writs, those valuable briefs (brecia) as they are also called by way of eminence, which are the elixir and quintessence of the law, have been committed to the special care of officers appointed for that purpose, whose offices derive their names from the pecu- liar instruments they respectively use for the preservation of the deposit with which they are intrusted ; the one being called the office of the Hanaper^ and the other, of the Small Bag^\ To say the truth, however, the creating of a new^ writ, upon any new given case, is matter of greater difficulty than the generality of readers kre aware of. The very importance which is thought to be in those professional forms of words, renders them really important. As every thing, without them, is illegal in a court of com- mon law^, so with them every thing becomes le- * Hanaperiuni et Parva Baga^ the Hanaper Office, and the Petty-Bag Office. The first an,? last of these Latin words, it may be observed, do not occur in Tully's works. To the care of the Petty-Bag Office those writs are trusted in which the king's business is concerned; and to the Ha- naper Office those which relate t9 the subject. gal; that is to sd-jr, they empower the court legally to determine upon every kind of suit to which they are made to serve as introductors'. The creating of a new writ, therefore, amounts, in its consequences, to the framing of a neW law, and a law of a general nature too : noit the cteiting of such a law, on the fitst apt)ear- atice of a new case, which law is afterwards to be applied to all such cases as may be similai' to the first, is really matter of difficulty ; especi- ally, when men are yet in the dark as to the best kind of provision to be made for the case in ques- tion, or even when it is not, perhaps, yet known Whether it be proper to make any provision at all. The framing of a new writ, under such circumstances, is a measure on which lawyers or judges will not very willingly either venture of themselves, or apply to the legislature for that purpose. From the above-mentioned real difficulty in creating new writs on one hand, and the abso- lute necessity of such writs in the courts of comnion law on the other, many new species of claims and cases (the arising of which is, froiq time to time, the unavoidable consequence of the progress of trade and civilisation) are left unprovided for, and remain like so many vacant spaces in the law, or rather like io tnany iriaiC- K ^ 132 THE CONSTITUTION cessible spots, which the laws in being cannot reach : now this is a great imperfection in the distribution of justice, which should be open to every individual, and provide remedies for every kind of claim which men may set up against each other. To remedy the above inconvenience, or rather in some degree to palliate it, law fictions have been resorted to, in the English law, by which writs, being warped from their actual meaning, are made to extend to cases to which they in no shape belong. Law fictions of the kind we mention were not unknown to the old Roman jurisconsults ; and, as an instance of their ingenuity in that respect, may be mentioned that kind of action, in which a daughter was called a son"^. Several instances might also be quoted of the fictitious use of writs in the English courts of common law. A very * From the above instance li 'might be co'iicluded that the Roman jurisconsults possessed still greater power than the English parliament,; for it is a fundamental principle with the English lawyers, that parliament can do every thing, exctpt making a woman a man, or a man a woman. '4. [This is a ludicrous reference to that political maxim which asserts the oinnipotence of parliament ; a figure of speech which sir William Blackstone has justly termed ra- ther too bold. Edit.] OF ENGLAND. 133 remarkable expedient of that sort occurs in the method generally used to sue for the payment of certain kinds of debt, before the Court of Com- mon Pleas ; such (if I mistake not) as a salary » for work done, indemnity for fulfilling orders re- ceived, &c. The writ issued in these cases is > grounded on the supposition, that the person sued has trespassed on the ground of the plain- tiff, and broken by force of arms, through his fences and inclosures; and, under this predi- cament, the defendant is brought before the court : this species of writ, which lawyers have found of most convenient use, to introduce be- fore a court of common law the kinds of claim we mention, is called in technical language a dausumf regit. In order to bring a person be- fore the Court of King's Bench, to answer de- mands of much the same nature with those above, a writ, called a latitat, is issued, in which it is taken for granted that the defendant insidiously conceals himself, and is lurking in some county, different from that in which the court is sitting ; the expressions used in the writ being, that " he runs up and down and secretes himself:" though no such fact is seriously meant to be advanced either by the attorney or the party. The same principle of strict adherence to cer- tain forms long since established, has also caused 134 THE CONSTITUTION lawyers to introduce into their proceedings ficti- tious names of persons, \yho are supposed to discharge the office of sureties ; and in certain cases, it seems, the n^-me of a fictitious person is introduced in a writ with that of the principal defendant, as being joined in a common cause \yith him. Another instance of the same high regard of lawyers, and judges too, for certain old forms, which makes them more unwilling to de- p?irt from §uch forms than from the truth itself of facts, occurs in the above-mentioned expe- dient used to bring ordinary causes before the Court of Exchequer, in order to be tried there 4t common law ; which is, by making a declara- tion that the plaintiff is a king's debtor, though neither the court, nor the plantifF s attorney, lay any serious stress on the assertion*. > * Another instance of the strict adherence of the English lawyers to their old established forms, in preference even to t|ie truth of facts, occurs in the manner of executing the very act mentioned in this chapter, passed in the reign of George I. for preventing personal arrfst for debts undvr fprty shillings. If the defendant, ^fter being personally served with a copy of the process, docs not appear on ^he appointed days, the method is to suppose that he has ac- tually made his appearance, and the cause is proceeded upon according to this supposition : fictitious names of l>^ils ^rp also r^soyt^id tp,. OF ENGLAND. 135 CHAPTER XI. ^'it^^The Subject continued. The courts of Equity. However, there are limits to these fictions and subtilties ; and the remedies of the law can- not by their means be extended to all cases that may arise, unless too many absurdities are suf- fered to be accumulated ; nay, there have been instances in which the improper application of writs, in the courts of law, has been checked by authority. In order therefore to remedy the in- conveniences we mention — that is, in order to extend the administration of distributive justice to all possible cases, by freeing it fi'om the pro- fessional difficulties that have gradually grown up in its way — a new kind of courts has been insti- tuted in England, called Courts of Equity. The generality of people, misled by the w ord equity, have conceived false notions of the office of these courts; and it seems to be generally thought, that the judges who sit in them are only to follow the rules of natural equity; by which people seem to understand, that, in a court of equity, the judge may follow the dictates of his own private feelings, and ground his decisions, 136 THE CONSTITUTION as he thinks proper, on the peculiar circum- stances and situation of those persons who make their appearance before him. Nay, doctor Johnson (in his abridged dictionary) gives the following definition of the power of the Court of Chancery, considered as a court of equity ; " The chancellor hath power to moderate and ** temper the written law, and subjecteth him- ** self only to the law of nature and conscience :" for which definition, dean Swift, and Cowell, who was a lawyer, are quoted as authorities. Other instances might be produced of lawyers who have been inaccurate in their definitions of the true offices of the judges of equity. And the above- named doctor himself is on no subject a despi- cable authority. "^ - Certainly the power of the judges of equity cannot be to alter, by their own private powder, the written law, that is, acts of parliament, and thus to control the legislature. Their office only consists, as w ill be proved in the sequel, in pro- viding remedies for those cases for which the public good requires that remedies should be provided, and in regard to which the courts of common law, shackled by their original forms and institutions, cannot procure any : — or, in other words, the courts of equity have a power to administer justice to individuals, unrestrained OF ENGLAND. 137 (not by the law, but) by the professional law difficulties which lawyers have from time to time contrived in the courts of common law, and to which the judges of those courts have given their sanction*. An office of the kind here mentioned was soon found necessary in Rome, for reasons of the same nature with those above delineated. For, it is remarkable enough, that the body of English lawyers, by refusing admittance to the code of Roman laws, as it existed in the later times of the empire, have only subjected them- selves to the same difficulties under which the old Roman jurisconsults laboured, during the time they were raising the structure of those same laws. And it may also be observed, that the English lawyers, or judges, have fallen upon much the same expedients as those which the Roman jurisconsults and praetors had adopted; This office of a judge oi equity, was, in time, assumed by the proetor in Rome, in addition to * This is a proper distinction; but it hath not ahvays been strictly observed ; for, even so late as the seventeenth century, the chancellors frequently superseded positive law by the dictates of their conscience and private opinion. Hence Selden was induced to remark, that " equity was " according to the conscience of him that was chancellor." Edit. 13S THE CONSTITUTION the judicial power he before po$sessed*. At the beginning of the year for which he had been ^le<:ted, the praetor made a declaration of those r^ift^dies for new difficult cases, which he had determined to afford during the time of his ma- gistracy ; in the choice of which he was no doubt directed, either by his own observations (while out of office) on the propriety of such remedies, or by the suggestions of experienced lawyers on the subject. This declaration (edictum) the preptor produced in albo, as the expression was. Modem civilians have made many conjectures on the real meaning of the above words ; one of their suppositions, which is as likely to be true as any other, is, that the heads of new law re- medies devised by the proetor, were written on a :!^bitened wall by the side of his tribunal f. c^ Among the provisions made by the Roman prsBtor^ ip their capacity of judges of equity, o^ay be mentioned those which they introduced in favour of emancipated sons, and of relatives by the women's side (cognati), in regard to the right of inheriting. Emancipated sons were sup- posed, by the laws of the Twelve Tables, to have * The praetor thus possessed two distinct branches of judicial authority, in the same n^anner as the Court of Exchequer does in England, ^yhich occasionally sits as a court of common law, and a court of equity. ^ They were written on a white tablet. Edit. ceased to be the children of their father, and, as a consequence, a legal claim was denied tliism on the paternal inheritance : of the relatives by the woman's side no notice was taken, in that article of the same laws which treated of the right of succession, mention being only madq of relatives by the men's side (agnati). The former the praetor admitted, by the edict und^ liberi, to share their father's (or grandfather's) inheritance with their brothers ; and the lattei? he put in possession of the patrimony of a king-» man deceased, by means of the edict unde cog^ nati, when there were no relatives by the men's side. These two kinds of inheritance were not, however, galled h^ereditas, but only honor urn possessiq; these words being very accurately distinguished, though the effect was in the issue exactly the ssme^. * As the power of fathers, at Homo, was unbounded, and lasted as long as their life, the oraancipating of sonn was a case that occurred frequently enough, either for the security or satisfaction of those who engaged in any under-* taking with them. The power of fathers had been carried so far by the laws of Romulus, confirmed afterwards by those of the Twelve Tables, that they might sell their sont for slaves as often as three times, if, after thfe first or second sale, they happened to acquire their liberty : it was only after being sold for the third time, and then becoming again frcc» that sons could be entirely released from the 140 THE CONSTITUTION In the same manner, the laws of the Twelve Tables had provided relief only for cases of theft; and no mention was made, in them, of cases of goods taken away by force (a deed which w as not looked upon in so odious a light at Rome as theft, which was considered as the peculiar guilt of slaves). In process of time the praetor pro- mised relief to such persons as might have their goods taken from them by open force, and gave them an action for the recovery of four times the value, against those w^ho had committed the fact with an evil intention. Si cui dolo mah bona rapt a esse dicentur, et in quadruplum ju- dicium DABO, Again, neither the laws of the Tw-elve Tables, nor the laws made afterwards in the assemblies of the people, had provided remedies except for very few cases of fraud. Here the proetor like- paternal authority. On this law-doctrine was founded the peculiar formality of emancipating sons. A pair of scales and some copper coin, were first brought; without the presence of these ingredients, the whole business would have been void ; and the father then made a formal sale of his son to a person appointed to buy him, who was imme- diately to 7nany,p^Jtov free him : these sales and manumis- sions were repc^^d three times. Five witnesses were to be present, besides a man to hold the scales (lihripens), and another (antestatus) occasionally to remind the witnesses to be attentive to the business before them. OF ENGLAND. 141 wise interfered in his capacity of judge of equity, though so very late as the time of Cicero ; and promised relief to defrauded persons, in those cases in which the laws in being afforded no action. Qua dob malo facta esse dicentury si de his I'ebus alia actio non erit, et justa causa esse videbitur, judicium dabo'^. By edicts of the same nature, praetors in process of time gave relief in certain cases to married women, and likewise to minors (jninoribus xxv aiinis succur^ rit prator^ ^ccf) * At the same time that the prastor proffered anew edict, he also made public those peculiar formulae by which the execution of the same was afterwards to be required froiij him. The name of that prastor who first produced the edict abovementioned was Aquilius, as we are informed by Cicero, in that elegant story well known to scholars,,Jn which he relates the kind of fraud that was put upon Ca- nius, a Roman kuight, when he purchased a pleasure-house and gardens, near Syracuse in Sicily. This account Cicero concludes, with observing, that Canius was left without re- medy, " as Aquilius, his colleague and friend, had not yet published his formulse concerning fraud."" — Quid enimfa- ceret? nondum enim Aquilius, collega et familiaris mens, protulerat de dolo malo formulas. Off. III. 14. f The law collection, or system that was formed by the series of edicts published at different times by praetors, was called jus pratorium, and aho jus honorarium (not strictly binding). The laws of the Twelve Tables, together with if;- \'4Q TH£ COlCSTltUllON The courts of equity established ih Englatid have in lik^ manner provided remedies for a very great number of cases, or species of de- mand, for Avhich the courts of common law, cramped by their forms and peculiar law tenets, can afford none. Thus, the courts of equity may, in certain cases, give actions for and against infants notwithstanding their minority, — and for and against married women, notwithstandiilg their coverture. Married w omen may even, in certain cases, sue their husbands before a court of equity. Executors may be made to pay in- terest for money that lies long in their hands. Courts of equity may appoint commissioners to hear the evidence of absent witnesses. When all such other laws as had at any time been passed in the assembly of the people, were called, by waty of ^:niinelice, jus civile. The distinction was exactly of tlie sinle' nutttfh as that which takes place in England between the cdrara6ti and statute laws, and the law or practice of the courts of equity. The two branches of the praetor's judicial' o'^6t were very accurately distinguished; and there was, besicfe^i this capital difference between the remedies or actiorii which he gave in his capacity of judge of civrl Ik\y,'^iT(l those in hiiT cajiaeity of judge of equity, that the forriifeH being grounded on th^ jus civile^ were perpetual, arid were called actiones civiles, or actiones perpetucB ; the latter were obliged to be preferred within the year, and were accord* ingly calkd actiones annua or aciioTies pra^oricr. OF englandJ"^ 143 other proofs fail, they may impose an oath on either of the parties ; or, in the like case of a failure of proofs, they may compel a trader to produce his books of trade. They may alsb comfirm a title to land, though one has lost his writings, &c. The power of the courts of equity in Eng- land, of which the Court of Chancery is the principal one, no doubt owes its origin to the power possessed by the latter, both of creating and issuing writs. When new complicated cases offered, for which a new kind of writ was want- ed, the judges of Chancery, finding that it was necessary that justice should be done, and at the same time being unwilling to make general and perpetual provisions on the cases before! them by creating new writs, commanded the ap- pearance of both parties, in order to procure as complete information as possible in regard to the circumstances attending the case; and then they gave a decree upon the same by way of experiment. To beginnings and circumstances like these, the English courts of equity, it is not to be doubted, owe their present existence. In our days, when such strict notions are entertained concerning the power of magistrates and judges, it can scarcely be supposed that those courts, 144 THE CONSTITUTION however useful, could gain admittance. Nor indeed, even in the times when they were insti- tuted, were their proceedings free from opposi- tion ; and afterwards so late as the reign of queen Elizabeth, it was adjudged, in the case of Colleston and Gardner, that the killing a se- questrator from the Court of Chancery, in the discharge of his business, was no murder ; which judgement could only be awarded on the ground that the sequestrators commission, and conse- quently the power of his employers, were ille- gal*. However, the authority of the courts of equity has in process of time become settled ; one of the constituent branches of the legisla- ture even receives at present appeals from the decrees passed in those courts ; and I have no doubt that several acts of the whole legislature might be produced, in which the office of the courts of equity is openly acknowledged, ^j, Xhp kind of process that has in time been to vaf^ vd/^rn^i^ Jiii noqw ^m-y^h ' * When sir Edward Coke was lord chief justice of the King's Bench, and lord EUcsmere lord chancellor,- during the reign of James I., a very serious quarrel also took placp between the courts of la^V, and those of equity, which is mentioned in the fourth chapter of the third book of judge Blackstone's Commentaries : a work in which, more might reasonably have been said op tl^Q 3U(>^pC^of. thp. peculiar to the English natioD, is admirably adapted to the nature of a free state. OF ENGLAND. W7 to the artfully varied questions of men, whose, intentions he shall at least mistrust ; and in which^ his spirits, broken down by solitude, shall re- ceive no support, either from the counsels oft his friends, or the looks of those who may offer up vows for his deliverance. . ^.y The security of the individual, and the con*- sciousness of that security, being then equally, essential to the enjoyment of liberty, and ne . cessary for the preservation of it, these two. points must never be left out of sight, in the establishment of a judicial power; and I con-, ceive that they necessarily lead to the following maxims. In the first place I shall remind the rcader of what has been laid down above, that the judi- cial authority ought never to reside in an inde- pendent body ; still less in him who is already the trustee of the executive power. Secondly, the party accused ought to be pro- vided with all possible means of defence. Above all things, the whole proceedings ought to be public. The courts, and their different forms, must be such as to inspire respect, but never terror : and the cases ought to be so accurately ascertained, the limits so clearly marked, that neither the executive • power, nor the judges. 168 THE CONSTITUTION may ever hope to transgress them with impu- / In fine, since we must absolutely pay a price for the advantage of living in society, not only by relinquishing some share of our natural liberty (a surrender which, in a wisely-framed govern- ment, a wise man will make without reluctance), but even also by resigning part of our personal security, — in a word, since all judicial power is an evil, though a necessary one, no care should be omitted to reduce as far as possible the dangers of it. As there is, however, a period at which the prudence of man must stop, at which the safety of the individual must be given up, and the law is to resign him to the judgement of a few per^ sons, that is (to speak plainly), to a decision in some sense arbitrary, it is necessary that the law should narrow as far as possible this sphere of peril, and so order matters, that M^hen the sub- ject shall happen to be summoned to the deci.- sion of his fate by the fallible conscience of a few of his fellow-creatures, he may always fine} \ in them advocates, and never adversaries, OF ENGLAND.. l69 CHAPTER XIIL The Subject continued. After having offered to the reader, in the preceding chapter, such general considerations as I thought necessary, in order to convey a more just idea of the spirit of the criminal judi- cature in England, and of the advantages pecu- liar to it, I now proceed to exhibit the particu- lars. When a person is charged with a crime, the magistrate, who is called in England a justice of the peace, issues a warrant to apprehend him ; but this warrant can be no more than an order for bringing the party before him : he must then hear him, and take doAvn in writing his answers, together with the different informations. If it appears, on this examination, either that the crime laid to the charge of the person who is brought before the justice was not committed, or that there is no just ground to suspect him of it, he ijiust be set absolutely at liberty ; if the contrary results from the examination, the party accused must give bail for his appearance to an- swer to the charge, unless in capital cases ; for 170 THE CONSTITUTION then M must, for safer custody, be really com- mitted to prison, in order to take his trial at the next sessions. But this precaution, of requiring the exami- nation of an accused person, previous to his imprisonment, is not the only care which the law has taken in his behalf; it has farther or- dained, that the accusation against him should be again discussed, before he can be exposed to the danger of a trial. At every session the sheritF appoints what is called the grand jury. This assembly must be composed of more than twelve men, and less than twenty-four ; and is always formed out of the most considerable per- sons in the county. Its function is to examine the evidence that has been given in support of every charge : if twelve of those persons do not concur in the opinion that an accusation is well grounded, the party is immediately discharged ; if, on the contrary, twelve of the grand jury find the proofs sufficient, the prisoner is said to be indicted, and is detained in order to go through the remaining process. On the day appointed for his trial, the prison- er is brought to the bar of the court, w^here the judge, after causing the bill of indictment to be read in his presence, must ask him how he would ,be tried ; to which the prisoner answers, By God OF ENGLAND. 171 and my country ; by which he is understood to claim to be tried by a jury, and to have all the judicial means of defence to which the law en- titles him. The sheriff then appoints what is called the petit jury : this must be composed of twelve men, chosen out of the county where the crime was committed, and possessed of a landed income of ten pounds a year ; their declaration finally decides on the truth or falsehood of the accusation. As the fate of the prisoner thus entirely de- pends on the men who compose this jury, jus- tice requires that he should have a share in the choice of them ; and this he has through the extensive right which the law has granted him, of challenging, or objecting to, such of them as he may think exceptionable. These challenges are of two kinds. One, which is called the challenge to the array, has for its object to have the whole pannel set aside : it is proposed by the prisoner when he thinks that the sheriff who formed the pannel is not indifferent in the cause ; for instance, if he thinks he has an interest in the prosecution, that he is Yelated to the prosecutor, or in general to the party who pretends to be injured. The other challenges are called, to the polls (in capita) : they are exceptions proposed 172 THE CONSTITUTION against the jurors, severally, and are reduced to four heads by sh' Edward Coke. — That which he calls propter honoris respectum, may be pro- posed against a lord empanneled on a jury ; or he might challenge himself. That propter de- fectum takes place when a juror is legally inca- pable of serving that office, as, if he is an alien ; if he has not an estate sufficient to qualify him, &c. That propter delictum has for its object to set aside any juror convicted of such crime or misdemeanor as renders him infamous, as fe- lony, perjury, &c. That propter affectum is proposed against a juror who has an interest in the conviction of the prisoner : one, for instance, who has an action depending between him and the prisoner; one who is of kin to the prose- cutor, or his counsel, attorney, or of the same society or corporation with him, &c.* In fine, in order to relieve even the imagina- tion of the prisoner, the law allows him, inde- pendently of the several challenges above-men- tioned, to challenge peremptorily, that is to say, without showing any cause, twenty jurors sue- cessivelyf. * When a prisoner is an alien, one half of the jurors must also be aliens: a jury thus formed is called a jury de medietate linguae. + When these several challenges reduce too much the OF ENGLAND. 173 When at length the jury is formed, and they have taken their oath, the indictment is opened, and the prosecutor produces the proofs of his accusation. But, unlike to the rules of the civil law, the witnesses deliver their evidence in the presence of the prisoner : the latter may put questions to them ; he may also produce wit- nesses in his behalf, and have them examined upon oath. Lastly, he is allowed to have a counsel to assist him, not only in the discussion of any point of law which may be complicated with the fact, but also in the investigation of the fact itself, and who points out to him the ques- tions he ought to ask, or even asks them for him''^. Such are the precautions which the law has devised for cases of common prosecutions ; but in those for high treason, and for misprision of treason, that is to say, for a conspiracy against the life of the king, or agaiqst the state, and for a concealment of it f, — accusations which sup- number of the jurors on the pannel, which is forty-eight, new ones are named on a writ of the judge, who are named the taleSf from those words of the writ, decern or octo tales. * This last article, however, is not established by law, except in cases of treason ; it is done only through custom and the indulgence of the judges. t The penalty of a misprision of treason is, the forfeiture of all goods, and imprisonment for life. ', m THE CONSTITUTION pose a heat of party and powerful accusers, — the law has provided for the accused party far- ther safeguards. First, no person can be questioned for any trea- son, except a direct attempt on the life of the king, after three years elapsed since the offence. 2. The accused party may, independently of his other legal grounds of challenging, pejxmptorily challenge thirty-five jurors. 3. He may have two counsel to assist him through the whole course of the proceedings. 4. That his wit- nesses may not be kept away, the judges must grant him the same compulsive process to bring them in, which they issue to compel the evi- dences against him. 5. A copy of his indict- ment must be delivered to him ten days at least before the trial, in presence of two witnesses, and at the expense of five shillings ; which copy must contain all the facts laid to his charge, the names, professions,^ and abodes, of the jurors who are to be on the pannel, and of all the wit- nesses who are intended to be produced against him*. When, either in cases of high treason, or of inferior crimes, the prosecutor and the prisoner * Stat, 7 Will. III. c. 3. and 7 Anne, c. 21. The latter, was to be in force only after the death of the late Pre- tender. OF ENGLAND. 175 have closed their evidence, and the witnesses have answered to the respective questions botli of the bench, and of the jurors, one of the judges makes a speech, in which he sums up the facts which have been advanced on both sides. He points out to the jury what more precisely con- stitutes the hinge of the question before them ; and he gives them liis opinion both with regard to the evidences tliat have been given, and to the point of law which is to guide them in their deci- sion. This done, the jury withdraw into an ad* joining room, where they must remain without eating and drinking, and without fire, till they have agreed unanimously among themselves, un- less the court give a permission to the contrary. Their declaration or verdict (vere dictum) must (unless they choose to give a special verdict) pronounce expressly, eitlier that the prisoner is guilty, or that he is not guilty, of the fact laid to his charge. Lastly, the fundamental maxim of this mode of proceeding is, that the jury must be unanimous. And as the main object of the institution of the trial by jury is to guard accused persons against all decisions whatsoever from men invest- ed with any permanent official authority'*, it is not * '* Laws,'' as Junius says extremely well, " are ih- 176 " THE CONSTITUTION only a settled principle that the opinion which the judge delivers has no weight but such as the jury choose to give it ; but their verdict must be- sides comprehend the whole matter in trial, and decide as well upon the fact, as upon the point of law that may arise out of it : in other words, they must pronounce both on the commission of a certain fact, and on the reason which makes such fact to be contrary to law*. This is even so essential a point, that a bill of indictment must expressly be grounded upon those tv, o objects. Thus an indictment for trea- son must charge, that the alleged facts were committed with a treasonable intent (prodito- rie). An indictment for murder must express, that the fact has been committed with malice " tended, not to trust to what men will do, but to guard " against what they may do." * Unless they choose to give a s7)eciaZ verdict. — ** When ** the jury," says Coke, " doubt of the law, and intend to '* do that which is just, they find the special matter; and the " entry i?, Et super totd materia petunt ^discretionem justi- " ciariorum," Inst. iv. These words of Coke, we may ob- serve, confirm beyond a doubt the power of the jury to de- termine on the whole matter in trial; a power which in all constitutional views is necessary; and the more so, since a prisoner cannot in England challenge the judge, as he can under the civil law, and for the same causes as he can a witness. OF ENGLAND. 17?^ prepense, or afore-thought. An indictment for robbery must charge, that the things were taken with an intention to rob ( animo fur audi), hi^J't i)iijuries are even so uncontrollable in their ver* diet, — so apprehensive has the constitution been lest precautions to restrain them in the exercise of their functions, however specious in the be- ginning, might in the issue be converted to the very destruction of the ends of that institution, * The principle that a jury is to decide both on the fact and the criminality of it, is so well understood, that, if a verdict were so framed as only to have for its object the bare existence of the fact laid to the charge of the prison- er, no punishment could be awarded by ihe judge in con- sequence of it. Thus, in the prosecution of Woodfall, for printing Junius' Letter to the King (a supposed libel), th« jury brought in the following verdict, guilty of printing and publishing only: the consequence of which was the discharge of the prisoner. [As some of the judges, however, were unwilling to con- cede this point in the case of libels, the friends of the con- stitution brought forward a bill, in 1/92, by which it waa enacted, that, on every trial for a libel, the jury might giv^ a verdict upon the whole matter in issue, and should not be required or directed by the judge to find the defendant guilty, merely on proof of the publication of the alleged libel, and of the sense ascribed to it in the record. Edit.] N 178 THE CONSTITUTION — that it is a repeated principle that a juror, in delivering his opinion, is to have no other rule than his opinion itself, — that is to say, no other rule than the belief which results to his mind from the facts alleged on both sides, from their probability, from the credibility of the witnesses, and even from all such circumstances as he may have a private knowledge of. Lord chief-justice Hale expresses himself on this subject, in the following terms : " In this recess of the jury, they are to con- " sider the evidence, to weigh the credibility " of the witnesses, and the force and efficacy of " their testimonies ; wherein (as I have before " said) they are not precisely bound by the " rules of the civil law, viz. to have two wit- " nesses to prove every fact, unless it be in ** cases of treason, nor to reject one witness " because he is single, or always to believe two " witnesses, if the probability of the fact does " upon other circumstances reasonably encoun- " ter them ; for the trial is not here simply by " witnesses, but by jury : nay, it may so fall " out, that a jury upon their own knowledge may " know a thing to be false, that a witness swore " to be true, or may know a witness to be in- " competent or incredible, though nothing be OF ENGLAND. 179 " objected against him — and may give their ver- *' diet accordingly^." If the verdict pronounces not guilty, the pri- soner is set at liberty, and cannot, on any pre- tence, be tried again for the same offence. If the verdict declares him guilty j then, and not till then, the judge enters upon his function as a judge, and pronounces the punishment which the law appointsf. But, even in this case, he is not to judge according to his own discretion only; he must strictly adhere to the letter of the law ; no contructive extension can be admitted ; and, * History of the Common Law of England, chap. 12, sect. 11. The same principles and forms are observed in civil matters ; only peremptory challenges are not allowed. + When the party accused is one of the lords temporal, he likewise enjoys the universal privilege of being judged by his peers; though the trial then differs in several re- spects. In the first place, as to the number of the jurors: all the peers are to perform the function of such, and they must be summoned at least twenty days beforehand. 2. When the trial takes place during the session, it is said to be in the high court of parliament ; and the peers officiate at once as jurors and judges: when the parliament is not sitting, the trial is said to be in the court of the high stew' ard of England^ an office which is not usually in beings but is revived on those occasions; and the high steward performs the office of judge. 3. In either of these cases, unanimity is not required : and the majority, which must consist of twelve persons at least, is to decide. N2I fS0 THE CONSTITUTION however criminal a fact might in itself be, it would pass unpunished if it were found not to be positively comprehended in some one of the cases provided for by the law. The evil that may arise from the impunity of a crime, — that is, an evil which a new law may instantly stop, — has not by the English laws been consideried as of magnitude sufficient to be put in compari- son with the danger of breaking through a barrier on which so materially depends the safety of the individual. , To all these precautions taken by the law for the safety of the subject, one circumstance must be added, which indeed would alone justify the partiality of the English lawyers to their laws in preference to the civil law ; — I mean the ab- solute rejection they have made of torturej'. * I shall here give an instance of the scruple with which the English judges proceed upon occasions of this kind. Sir Henry Ferrers having been arrested by virtue of a war- rant, in which he was termed a knight, though he was a baronet, Nightingale, his servant, took his part, and killed the officer; but it was decided, that, as the warrant " was " an ill warrant, the killing of an officer in executing that " warrant could not be murder, because no good warrant : " wherefore he was found not guilty of the murder and ** manslaughter."— See Croke's Rep. P. 111. p. 371. t Coke says (Inst. III. p. 35.), that when John Hol- land, duke of Exeter, and William de la Pole, duke of OF ENGLAND. 181 Without repeating here what has been said on the subject by the admirable author of the trea- tise on Ci^imes and Punishments^^ I shall only observe, that the torture, in itself so horrible an expedient, woidd, more especially in a free state, be attended with the most. fatal consequences. It was absolutely necessary to preclude, by re- jecting it, all attempts to make the pursuit of guilt an instrument of vengeance against the in- nocent. Even the convicted criminal must be spared, and a practice at all rates exploded, which might so easily be made an instrument of endless vexation and persecution^. Suffolk, renewed under Henry VI. the attempts made to introduce the civil law, they exhibited the torture as a be- ginning thereof. The instrument was called the duke of Exeter's daughter. * Beccaria. t Judge Foster relates, from Whitelocke, that the bishop of London having said to Felton, who had assassinated the duke of Buckingham, " If you will not confess, you must '*" go to the rack:'' the man replied, " If it must be so, I " know not whom I may accuse in the extremity of the " torture; bishop Laud, perhaps, or any lord at this « board." " Sound sense (adds Foster) in the mouth of an enthu- " fiiast and a ruffian ."' Laud having proposed the rack, the matter was shortly debated at the board, and it ended in a reference to the judges, who unanimously resolved that the rack could not be legally used. 182 ruZ CONSTITUTIOX For the farther prevention of abuses, it is ail invariable usage that the trial be public. The prisoner neither makes his appearance, nor pleads, but in places where every body may have free entrance; and the witnesses when they give their evidence, the judge when he de- livers his opinion, the jury when they give their verdict, are all under the public eye. Lastly, the judge cannot change either the place, or the kind of punishment ordered by the law; and a sheriff who should take away the life of a man in a manner different from that which the law prescribes, would be prosecuted as guilty of murder*. In a w^ord, the constitution of England, be- ing a free constitution, demanded from that cir- cumstance alone (as I should already have but too often repeated, if so fundamental a truth could be too often urged) extraordinary precau- tions to guard against the dangers which una- voidably attend the power of inflicting punish- ments ; and it is particularly when considered in this light, that the trial by jury proves an admi- rable institution. * And if any other person but the sheriff, even the judge himself, were to cause death to be inflicted upon a nia.n, though convicted, it would be deemed homicide. See Blackstone, book iv, chap. 14. OF ENGLAND. 183 -T By means of it, the judicial authority is not only placed out of the hands of the man who is invested with the executive authority — it is even out of the hands of the j udge himself. Not only the person who is trusted with the public power cannot exert it, till he has, as it were, received the permission to that purpose, of those w ho are set apart to administer the laws ; but these latter are also restrained in a manner exactly alike, and cannot make the law speak, but when, in their turn, they have likewise received permission. And those persons to whom the law has thus exclusively delegated the prerogative of decid- ing that a punishment is to be inflicted,- — those men without whose declaration the executive and the judicial powers are both thus bound down to inaction, do not form among themselves a permanent body, who may have had time to study how their power can serve to promote their private vicMs or interest: they are men selected at once from among the people, who perhaps never were before called to the exer- cise of such a function, nor foresee that they ever shall be called to it again. As the extensive right of challenging effectu- ally baffles, on one hand, the secret practices of such as, in the face of so many discouragements, might still endeavour to make the judicial power 154 THE CONSTITUTION subservient to their own views, and on the other excludes all personal resentments, the sole affecr tion wliich remams to influence tiie integrity of those who alone iare entitled to put the public power ilito action, during the short period of their authority, is, that their own fate as subjects is essentially connected with that of the man ^hose doom they are going to decide. In fine, such is the happy nature of this in- stitution, that the judicial power, a power so formidable in itself, which is to dispose, without finding any resistance, of the property, honour, and life of individuals, and which, whatever precautions may be taken to restrain it, must in a great degree remain arbitrary, may be said, \x\ England, to exist, — to accomplish every in- tended purpose, — and to be in the hands of no- body^. 9t In all these observations on the advantages of the English criminal law, I have only con- sidered it as connected with the constitution, wdiich is a free one ; and it is in this view alone that I liave compared it with the jurisprudence * The consequence of this institution is, that no man in England ever meets the man of whom he may say, " That ^4nan has a power to decide on my death or life." If we could for a moment forget the advantages of that institU" tion, wp ought at least to admire the ingenuity of it. OF ENGLAND. 185 received in other states. Yet, abstractedly from the weighty constitutional considerations which I have suggested, I think there are still othei* interesting grounds of pre-eminence on the side of the laws of England. In the first place, they do not permit that a man should be made to run the risque of a trial, but upon the declaration of tuelve persons at least (the grand jury). Whether he be in pri- son, or on his trial, they never for an instant refuse free access to those w ho have either ad- vice or comfort to give him ; they even allow him to summon all who may have any thing to say in his favour. And lastly, what is of very great importance, the witnesses against him must deliver their testimony in his presence ; he may cross-examine them, and, by one unexpected question, confound a whole system of calumny : indulgences these, all denied by the laws of other countries. o^ Hence, though an accused person may be exposed to have his fate decided by persons (the 'petty jury) who possess not, perhaps, all that sagacity which in some delicate cases it is particularly advantageous to meet with in a judge, yet this inconvenience is amply compen- sated by the extensive means of defence with which the law, as w^e have seen, has provided him. If a juryman does not possess that ex- 186 THE CONSTITUTION pertness which is the result of long practice, yet neither does he bring to judgement that hardness of heart which is, more or less, also the conse- quence of it : and bearing about him the prin- ciples (let me say, the unimpaired instinct) of humanity, he trembles while he exercises the a^^^ul office to which lie finds himself called, and in doubtful cases always decides for mercy. It is to be farther observed, that, in the usual course of things, juries pay great regard to the opinons delivered by the judges ; that, in those cases where they are clear as to the fact, yet find themselves perplexed with regard to the degree of guilt connected with it, they leave it, as has been said before, to be ascertained by the dis- cretion of the judge, by returning what is called a special verdict 3 that, whenever circumstances seem to alleviate the guilt of a person, against whom nevertheless the proof has been positive, they temper their verdict by recommending him to the mercy of the king (which seldom fails to produce at least a mitigation ofthe punishment) : that, though a man once acquitted can never, under any pretence whatsoever, be again brought into peril for the same offence, yet a new trial would be granted if he had been found guilty upon evidence strongly suspected of being false. Last- ly, what distinguishes the laws of England from those of other countries in a very honourable OF ENGLAND. 187 manner, is, that as the torture is unknown to them, so neither do they know any more grievous pu- nishment than the simple deprivation of life*. All these circumstances have combined to in- troduce such a mildness into the exercise of cri- minal justice, that the trial by jury is that point of their liberty to which the people of England are most thoroughly and universally wedded;* and the only complaint 1 have ever heard utter- ed against it, has been by men who, more sensi- ble of the necessity of public order than alive to the feelings of humanity, think that too many of- fenders escape with impunity f. * This assertion is erroneous ; for, in cases of high trea- son, the punishment is far more grievous than simple death, the offender being half-hanged, and then subjected to ex- cruciating torments. Edit. + A writer in a Scotish review speaks contemptuously of the trial by jury, and thinks that the English pay too great a price for its presumed advantages, " in the number " of unjust verdicts which are given by ignorant, perverse, " or corrupted juries.^' He adds, that this form of trial has been rendered subservient to arbitrary power at several periods of our history. But it may be contended, that, even if the improper decisions of juries were far more nu- merous than we have found them to be, and if the influ- ence of arbitrary princes or judges has been much more frequently exerted over them than it appears to have been, the benefits of the institution strikingly preponderate over its inconveniences ; and it merits the warm praise, and claims the continued support, of a loyal and grateful na- tion. Edit. 188 THE CONSTITUTION CHAPTER XIV. Tfie Subject concluded. Laws relative to Imprison- ment. But what completes that sense of independ- ence which the laws of England procure to every individual (a sense which is the noblest advantage attending liberty), is the greatness of their precautions upon the delicate point of im- prisonment. In the first place, by allowing, in most cases, enlargement upon bail, and by prescribing, on that article, express rules for the judges to fol- low, they have removed all pretexts, which cir- cumstances might afford, for depriving a man of his liberty. But it is against the executive power that the legislature has, above all, directed its efforts : nor has it been but by slow degrees that it has been successful in wresting from it a branch of power which enabled it to deprive the people of their leaders, as well as to intimidate those who might be tempted to assume the function; and which, having thus all the efficacy of more odious means without the dangers of them, w as perhaps the OF ENGLAND. 189 most formidable weapon with which it might at- tack public liberty. t The methods origrnally pointed out by the laws of England for the enlargement of a per- son unjustly imprisoned, were the writs oi main- prise, de odio et atia, and de hojnine replegian-' do. Those writs, which could not be denied, were an order to the sheriff of the county in which a person was confined, to inquire into the causes of his confinement; and, according to the circumstances of his case, either to dis- charge him completely, or upon bail. But the most useful method, and which even, by being most general and certain, has tacitly abolished all the others, is the writ of Habeas Corpus, so called, because it begins with the words Habeas corpus ad subjiciendum. This writ being a writ of high prerogative, must issue from the Court of King's Bench : its ef- fects extend equally to every county ; and the king by it requires, or is understood to require, the person who holds one of his subjects in cus- tody, to carry him before the judge, with the date of the confinement, and the cause of it, in order to discharge him, or continue to detain him, according as the judge shall decree. But this writ, which might be a resource in cases of violent imprisonment effected by indi- 190 THE CONSTITUTION viduals, or granted at their request, was but a feeble one, or rather was no resource at all against the prerogative of the prince, especially under the sway of the Tudors, and in the be- ginning of that of the Stuarts. And even in the first years of Charles the First, the judges of the King's Bench, who, in consequence of the spirit of the times, and of their holding their places durante bene placito, were constantly de- voted to the court, declared; " that they could '* not, upon a Habeas Corpus, either bail or de- " liver a prisoner, though committed without any " cause assigned, in case he was committed by *' the special command of the king, or by the " lords of the privy council." Those principles, and the mode of procedure which resulted from them, drew the attention of parliament; and in the bill called the Petition of Right, passed in the third year of the reign of Charles the First, it was enacted, that no per- son should be kept in custody, in consequence of such imprisonments. But the judges knew how to evade the in- tention of this act: they indeed did not refuse to discharge a man imprisoned without a cause ; but they used so much delay in the examination of the causes, that they obtained the full effect of an open denial of justice. OF ENGLAND. IQl The legislature again interposed, and in the act passed in the sixteenth year of the reign of Charles the First, the same in which the Star- chamber was suppressed, it was enacted, that *^ if any person be committed by the king him- " self in person, or by his privy council, or by " any of the members thereof, he shall have " granted unto him, without delay upon any *' pretence whatsoever, a writ of Habeas Cor- " pus; and that the judge shall thereupon, " within three court-days after the return is *' made, examine and determine the legality of " such imprisonment." This act seemed to preclude every possibility of future evasion. : yet it was evaded still ; and, by the connivance of the judges, the person who detained the prisoner could, without danger, wait for a second, and a third writ, called an alias and a pluries, before he produced him. All these different artifices gave at length birth to the famous act of Habeas Corpus (passed in the thirty-first year of the reign of Charles the Second), which is considered in England as a second Great Charter, and has extinguished all the resources of oppression *. * The real title of this act is, An Act for better securing the Liberty of the Subject, and for Prevention of Imprison- ment beyond the Seas, jge THE CONSTITUTION ;The principal articles of this act are,— 1. To fix the different terms allowed for bring- ing a prisoner : those terms are proportioned to the distance : and none can in any case exceed twenty days. 2. That the officer and keeper neglecting to make due returns, or not delivering to the pri- soner, or his agent, within six hours after de- mand, a copy of the warrant of commitment, or shifting the custody of the prisoner from one to another, without sufficient reason or autho- rity (specified in the act), shall for the first of- fence forfeit one hundred pounds, and for the second two hundred, to the party aggrieved, and be disabled to hold his office. , 3. No person, once delivered by Habeas Corpus, shall be committed for the same of- fence, on penalty of five hundred pounds. 4. Every person committed for treason or fe- lony, shall, if he require it, in the first week of the next term, or the first day of the next ses- sion, be indicted in that term or se&sion, or else admitted to bail, unless it should be proved upon oath, that the king's witnesses cannot be pro- duced at that time : and if not indicted and tried in the second term or session, he shall be dis- charged of his hnprisonment for such imputed offence. OF ENGLAND. 193 * 5. Any of the twelve judges, or the lord-chan- cellor, who shall deny a writ of Habeas Corpus, on sight of the warrant, or on oath that the same is refused, shall forfeit severally to the party aggrieved five hundred pounds. 6. No inhabitant of England (except persons contracting, or convicts praying to be transport- ed) shall be sent prisoner to Scotland, Ireland, Jersey, Guernsey, or any place beyond the seas, within or without the king's dominions, — on pain, that the party committing, his advisers, aiders, and assistants, shall forfeit to the party aggrieved a sum not less than ^ye hundred pounds, to be recovered with treble costs, — shall be disabled to bear any office of trust or profit — shall incur the penalties of diprcemunire^, and be incapable of the king's pardon. * The statutes of prcemunirey thus called from the writ for their execution, which begins with the words prcemwiire (for pravionere) facias, were origipally designed to oppose the usurpations of the popes. The first was passed under the reign of Edward the First, and was followed by several others, which, even before the reformation, established such effectual provisions as to draw upon one of them the epithet oi execrahile statutum. The offences against which those statutes were framed were likewise distinguished by the appellation of prcemimire j and under that word were included all attempts to increase the power of the pope at the expense of the royal authority. The punishment O J94 THE CONSTITUTION de^re^d (9K auch cas^s, \fa$ s^lso filled s^praimunire: it has since been ext^ded tp several other kinds of offence, and amounts to imprisonment at the king's pleasure, or for life, and forfeiture of all goods and rents of lands. [It may be proper to add, that prosecutions upon a prce- mwrnrc are now entirely disused. Edit.} OF ENGLAND'. f§i BOOK n. A VIEW OF THE ADVANTAGES OF THE ENGLISH GO** VERNMENT, AND O^ THi; RIGHTS AND LIBERTIES Cf tnfi feofle; an'i^ A confirmation, by re- ^^REis^cE TO PACtsy 6f xATfi vnmcittti ftiA'it-b' yv THiE work. ;'! .'Vtiite mit n'l vru^i^tAiix^ CHAPTER I. Some Advantages peculiar to the English Constitu- tion, 1 . The Unity of the Executive Pmver. We have seen in former chapters the re- sources allotted to the diiFerent parts of the English government for balancing each other, and how their reciprocal actions and re-actions produce the freedom of the constitution, which is no more than an equilibrium between the ruling powers of the state. I now propose to show that the particular nature and functions of these same constituent parts of the government, which give it so different an appearance from that af other free states, are moreover attended 02 196 THE CONSTITUTION with peculiar and very great advantages, which have not hitherto been sufficiently observed. The first peculiarity of the English govern- ment, as a free government, is its having a king, — ^its having thrown into one place the whole mass, if I may use the expression, of the execu- tive power, and having invariably and for ever fixed it there. By this very circumstance also has tlie deposit iim of it been rendered sacred and inexpugnable ; — by making one great, very great man in the state, has an effectual check been put to the pretensions of those who other- wise would strive to become such ; and disorders have been prevented, which, in all republics, ever brought on the ruin of liberty, and, befoFe it was lost, obstructed the enjoyment of it. If we cast our eyes on all the states that ever were free, we shall see that the people ever turn- ing their jealousy, as it was natural, against the executive po\^ er, but never thinking of the means of limiting it, so happily prevalent in England *, ^ The rendering that power dependent on the people for its supplies. — See on this subject chap. vi. book I. [A late writer (in the Edinburgh Revjew) doubts the efficacy of this supposed safeguard of our constitutional rights, — the power of with-holding supplies. A refusal of granting the immense sums requisite for the service of the yO'^F ENGLAND. 197 never employed any other expedients beside the obvious one of trusting that power to magi- strates, whom they appointed annually ; which was in great measure the same as keeping the management of it to themselves : whence it re- sulted, that the people, who, whatever may be the frame of the government, always possess, after all, the reality of power, thus uniting in themselves with this reality of power the actual exercise of it, in form as well as in fact, consti- tuted the whole state. In order therefore le- gally to disturb the whole state, nothing more was requisite than to put in motion a certain number of individuals. In a state which is small and poor, an ar- rangement of this kind is not attended with aijy great inconveniences, as every individual is taken up with the care of providing for his subsistence, year, would, he thinks, " operate like the dissolution of '* civil society/' In the present critical state of affairs, such conduct might, indeed, have a very mischievous effect; and, if we had an inconsiderate and ambitious prince on the Uironc, he might so far trust to the forbearances of the commons in this respect, as to encroach on the liberties of the people ; but such is the energy of the general sys- tem, such is the-inherent spirit of the nation, and so com- jTianding is the influence of public opinion on the ruler ofa . free state, that we have no reason to dread such an inva- sion of our rights. Edit.] ?|ffl(B THE CONSTITUTION as g^:€!at objects of ambition are wiantingand a^ evils .e^nnot, in such a state, ever become mxidl^ pompiica^ed. In a state that strives for aggra«- disen^ent, tlije difficulties and danger attending the pursuit of such a plan inspire a general spi- rit of cautipn, and every individual makes 3, sp^ ber use of his rights as a citizen . . But when, at length, thos^ exterior motive^ Ixase, and the passions, and even the virtues, lyhich they ex^cit^ecj, are thus reduc Lastly, in order to effect still nearer an equi- librium, the constitution has invested the naan whom it has made the sole head of the state, with all the personal privileges, all the pomp, all the majesty, of which human dignities are capable. In the language of the law, the king is sovereign lord, and the people are his sub- jects ;-^he is universal proprietor of the king- dom ; — he bestows all the dignities and places ; and he is not to be addressed but with the ex- pressions and outward ceremony of almost east- ern humility. Besides, his person is sacred and inviolable ; and any attempt whatsoever against it is, in the eye of the law, a crime equal to that of an attack upon the w hole state. In 9. word, since, to have too exactly com- pleted the equilibrium between the power of the people, and that of the crown, would have b^en to sacrifice the end to the means, that is, to have endangered liberty with a view to strengthen the government, the deficiency whjcli ought to remain on the side of the crown, has at h^st be^n, in appearance, made »p, by con- £04 THE CONSTITUTION ferring on the king all that sort of strength that may result from the opinion and reverence of the people; and, amidst the agitations which are the unavoidable attendants of liberty, the royal power, like an anchor that resists both by its weight and the depth of its hold, ensures a salutary steadiness to the vessel of the state. :■ The greatness of the prerogative of the king, by thus procuring a great degree of stability to the state in general, has much lessened the pos- sibility of the evils we have abov^e described ; it has even, we may say, totally prevented them, by rendering it impossible for any citizen to rise to any dangerous greatness. And to begin with an advantage by which the people easily suffer themselves to be influenced, 1 mean that of birth, it is impossible for it to produce in England effects in any degree dan- gerous ; for though there are lords who, besides their wealth, mav also boast of an illustrious descent, yet that advantage, being exposed to a continual comparison with the splendor of the throne, dwindles almost to nothing ; and, in the gradation universally received of dignities and titles, that of sovereign prince and king places bim who is invested vi ith it out of all degi'ee of proportion. The ceremonial of the court of England is OF ENGLAND. 205 even formed upon that principle. Tiiose per- sons who are l*elated to the king have the title of princes of the blood, and, in that quality, an undisputed pre-eminence over all other per- sons*. Nay, the first men in the nation think it an honourable distinction to themselves, to hold the different menial offices, or titles, in his household. If we therefore were to set aside the extensive and real power of the king, as well as the numerous means he possesses of gratifying the ambition and hopes of individuals, and were to consider only the majesty of his title, and that kind of strength founded on public opinion, which results from it, we shall find that advan- tage so considerable, that to attempt to enter into a competition with it, with the bare advan- tage of high birth, which itself has no other foun- dation than public opinion, and that too in a very subordinate degree, would be an attempt com- pletely extravagant. If this difference is so great as to be tho- roughly submitted to, even by those persons whose situation might incline them to disown it, much more does it influence the minds of the people. And if, notwithstanding the value which * This, by stat. of the 31st of Hen. VIII. extends to thb sons, grandsons, brothers, uncles, and nephews, of the feigning king. 206 THE CONSTITUTION erery Englishman ought to set upon himself as sB mgtn, and a free man^ there were any whose eyes were so very tender as to be dazzled by the ap^ pearance and the arms of a lord^ they would he totally blinded when they came to turn thenfj to- wards the royal majesty. The only man, therefore, wbo^ to pei'scins unacquainted \rith the constitution of England^ might at first sight appear in a condition to put the government in danger, would be one wboy by the greatness of his abilities and puiblfic ser- rkes, might have acquired i^ a high diegree thd love of the^ people^ and obtained a great influence m the house of commons. But how great soever this enthusiasm' of the public may be, barren applause is the only fruit which the man whom they favour can expect from it. He can hope neither for a dictator- ships nor a consulship, iK)r in general for any power under the shelter of which he may at once safely unmask that ambition with which we might suppose him to be actuated, or, if we sop- pose him to have been hitherto free from any, grow insensibly corrupt. The only dKDor which the Gonstitutioii leaves open to his ambition;, of whatever kind it may be, is a place in the admi- nistiation, during the pleasure of the king. If, by the continuance of his services, and the pre- XOOF ENGLAND. 207 servation of his influence, he becomes able to aim still higher, the only door which again opens to him is that of the house of lords. But this advance of the favourite of the peo- ple towards the establishment of his greatness is at the same time a great step towards tlie loss of that power which might render him formid- able. In the first place, the people seeing that he is become much less dependent on their fe,vour, begin, from that very moment, to lesaeia their attachment to him. Seeing him moreover dis- tinguished by privileges which are tlie objecta of their jealousy, I mean their political jealousy, and member of a body whose interests are fre- quently opposite to theirs, they imrBediately conclude that this great and new digjtity cart- not have been acquired but through a secret agreemenits to betray them. Their favourite,, thus suddenly transformed, is goings they make no doubt, to adopt a conduct entirely opposite to that which has till then been the cause of his advancement and high reputation, and, in the compass of a few hours, completely to renotiinee those principles which he has so long and so loudly professed. In this, certainly the people aire mistaken ; but yet neither would they be wrong, if they feared that a zeal hitherto so 208 THE CONSTITUTION warm, so constant, I will even add, so sincere, when it concurred with their favourite's private interest, would, by being thenceforth often in opposition to it, become gradually much abated. Nor is this all; the favourite of the people does not even find in his new dignity all the in- crease of gi'eatness and eclat that might at first be imagined. Hitherto he was, it is true, only a private individual ; but then he was the object in which the whole nation interested themselves; his actions and words were^set forth in the public prints ; and he every-where met with applause and acclamation. All these tokens of public favour are, I know, sometimes acquired very lightly ; but they never last long, whatever people may say, unless real services are performed : now, the title of bene- factor to the nation, when deserved, and univer- sally bestowed, is certainly a very handsome title, and which does no-wise require the assist- ance of outward pomp to set it off. Besides, though he was only a member of the inferior body of the legislature, we must observe, he was the first ; and the word ,first is always a word of very gi'eat moment. But now that he is made a lord, all his great- ness, >v hich hitherto was indeterminate, becomes OF ENGLAND. 209 defined. By granting him privileges establish- ed and fixed by known laws, that uncertainty is taken fi:*om his lustre which is of so much im- portance in those things which depend on imagin- ation ; and his value is lowered, just because it is ascertained. Besides, he is a lord ; but then there are several men who possess but small abilities, and few estimable quahfications, who also are lords ; his lot is, nevertheless, to be seated among them ; the law places him exactly on the same level with them ; and all that is real in his greatness is thus lost in a crowd of dignities, hereditary and con- ventional. Nor are these the only losses which the fa-^ vourite of the people is to suffer. Independ- ently of those great changes which he descries at a distance, he feels around him alterations no less visible, and still more painful. Seated formerly in the assembly of the repre- sentatives of the people, his talents and continual success had soon raised him above the level of his fellow-members ; and, being carried on by the vivacity and warmth of the public favour, those who might have been ^mpted to set up as his competitors were reduced to silence, or even became his supporters. Admitted now into an assembly of persoh^ lii- P r L 210 THE CONSTITUTION vested with a perpetual and hereditary title, he finds men hitherto his superiors, — men who see w ith a jealous eye the shining talents of the homo novus, and who are firmly resolved, that after having been the leading man in the house of commons, he shall not be the first in theirs. In a word, the success of the favourite of the people was brilliant, and even formidable ; but the constitution, in the very reward it prepares for him, makes him find a kind of ostracism. His advances were sudden, and his course rapid ; he was, if you please, like a torrent ready to bear down every thing before it ; but this tor- rent is compelled, by the general arrangement of things, finally to throw itself into a vast re- servoir, where it mingles, and loses its force and direction*. * This view of the progress of a popular man is not in- applicable to Mr. Pulteney, who became earl of Bath, and Mr. Pitt, afterwards earl of Chatham. Both were men of aspiring minds, extraordinary talents, and great influence; and each, in less tranquil times, and under a republican government, might have risen to exorbitant power, and have erected a temporary fabric of tyranny : but the well- poised frame of our constitution, the energy of the govern- ment, and the loyalty of the nation, discountenanced all such presumptuous views, and annihilated all ideas of en- croaching on the royal power, or rising above the level of the laws. Edit. OF ENGLAND. 211 ' i know it may be said, that, in order to avoid tlie fatal step which is to deprive him of so many advantages, the favourite of the people ought to refuse the new dignity which is ofFeicil to him, and wait for more important successes, from his eloquence in the house of commons, and his influence over the people. But those \^ ho orive him this counsel have not sufficiently examined it. Without doubt there are men in England, who, in their present pursuit of a project which they think essential to the public good, would be capable of refusing for a while a dignity which would deprive their virtue of opportunities of exerting itself, or might more or less endanger it: but woe to him who should persist in such a refusal, with any pernicious design ! and who, in a government where liberty is established on so solid and ex- tensive a basis, should endeavour to make the people believe that their fate depends on the persevering virtue of a single citizen. His am- bitious views being at last discovered (nor could it be long before they were so), his obstinate resolution to move out of the ordinary course of things would indicate aims, on his part, of such an extraordinary nature, that all men whatever, who have any regard for their country, would P 2 *2\Q THE CONSTITUTION instantly rise up from all parts to oppose him, and he must fall, overwhelmed with so much ridicule'*, that it would be better for him to fall from the Tarpeian rock|. In fine, even though we were to suppose that the new lord might, after his exaltation, have preserved all his interest with the people, or? what would be no less difficult, that any lord whatever could, by dint of his wealth and high birth, rival the splendor of the crown itself, all these advantages, how great soever we may sup- pose them, as they would not of themselves be able to confer on him the least executive autho- * Not merely ridicule, but strong censure and general indignation. Edit. f The reader will, perhaps, object, that no man in Eng- land can entertain such views as those I have suggested here : this is precisely what I intended to prove. The essential advantage of the English government above all those that have been csMed freCt and which in many respects were but apparently so, is, that no person in England can entertain so much as a thought of ever rising to the level of the power charged with the execution of the laws. All men in the state, whatever may be their rank, wealth, or influence, are thoroughly convinced that they must, in reality as well as in name, continue to be suhjects; and are thus compelled really to love, defend, and promote, those laws which secure liberty to the subject. OF ENGLAND. 213 rity, must for ever remain mere showy unsub- stantial advantages. Finding all the active pow- ers of the state concentred in that very seat of power which we suppose him inclined to attack, and there secured by formidable provisions, his influence must always evaporate in ineffectual words ; and after having advanced himself, as we suppose, to the very foot of the throne, find- ing no branch of independent power which he might so far appropriate to himself, as at last to give a reality to a political importance, he would soon see it, however great it might have at first appeared, decline and die away. God forbid, however, that I should mean that the people of England are so fatally tied down to inaction, by the nature of their government, that they cannot, in times of oppression, find means of appointing a leader! No; I only meant to say that the laws of England open no door to those accumulations of power, which have been the ruin of so many republics ; that they offer to the ambitious no means of taking advantage of the inadvertence or even the gratitude of the people, to make themselves their tyrants; and that the public power, of which the king has been made the exclusive depository, must re- main unshaken in his hands, so long as things continue in the legal order ; which, it may be 214 THE CONSTITUTION observed, is a strong inducement to him con- stantly to endeavour to maintain them in it*. * Several events, in the English history, put in a very strong light this idea of the stability which the power of the crown gives to the state. One is, the facility with which the great duke of Marl- borough, and his party at home, were removed from their employments. Hannibal, in circumstances nearly similar, had continued the war against the will of the senate of Car- thage: Cassar had done the same in Gaul: and when at last he was expressly required to deliver up his commission, he marched his army to Rome, and established a military despotism. But the duke, though surrounded, as well as the above-named generals, by a victorious army, and by allies, in conjunction with whom he had carried on such a successful war, did not even hesitate to surrender his com- mission. He knew that all his soldiers were inflexibly pre- possessed in favour of that power against which he must have revolted : he knew that the same prepossessions were deeply rooted in the minds of the whole nation, and that every thing among them concurred to sujjport the same power : he knew that the very nature of the claims he must have set up would instantly have made all his officers and captains turn themselves against him, and, in short, that, in an enterprise of this nature, the arm of the sea he bad to repass was the smallest of the obstacles he would have to encounter. The other event I shall mention here, is that of the revolution of 1689- If the long-established power of the crown had not beforehand prevented the people from ac- customing themselves to fix their eyes on some particular citizens, and in general had not prevented all men in the r OF ENGLAND. 21^ CHAPTER 11. The Subject concluded. — The Executive Power is more i^ easily confined when it is one. Another great advantage, and which one would not at first expect, in this u?iili/ of the pubhc power in England, — in this union, and, if I may so express myself, in this coacervation, of all the branches of the executive authority, — is the greater facility it affords of restraining it. In those states where the execution of the laws is intrusted to several hands, and to each with different titles and prerogatives, such divi- sion, and the changeableness of measures which must be the consequence of it, constantly hide the true cause of the evils of the state : in the endless fluctuation of things, no political princi- ples have time to fix among the people : and public misfortunes happen, without ever leaving behind them any useful lesson. At some times military tribunes, and at others state from attaining too considerable a degree of power and greatness, the expulsion of James II. might have been fol- lowed by events similar to those which took place at Rome after the death of Cajsar. 216 THE CONSTITUTION consuls, bear an absolute sway : sometimes pa- tricians usurp every thing, and at other times those who are called nobles* : at one time the people are oppressed by decemvirs, and at an- other by dictators. Tyranny, in such states, does not always beat down the fences that are set around it ; but it leaps over them. When men think it confined to one place, it starts up again in another ; — it mocks the efforts of the people, not because it is invincible, but because it is unknown ; — seized by the arm of a Hercules, it escapes with the changes of a Proteus. But the indivisibility of the public power in England has constantly kept the views and ef- forts of the people directed to one and the same object ; and the permanence of that power has also given a permanence and a regularity to the precautions they have taken to restrain it. * The capacity of being admitted to all places of public trust (at length gained by the plebeians) having rendered useless the old distinction between them and the patricians, a coalition was then effected between the great plebeians, or commoners, who got into these places, and the ancient pa- tricians. Hence a new class of men arose, who were called nohiles and nobi/itas. These are the words by which Livy, after that period, constantly distinguishes those men and families who were at the head of the state. OF ENGLAND. 217 Constantly turned towards that ancient for- tress, the royal power, they have made it for seven centuries the object of their fear ; w ith a watchful jealousy they have considered all its parts ; they have observed all its outlets ; they have even pierced the earth to explore its secret avenues and subterraneous works. United in their views by the greatness of the danger, they regularly formed their attacks. They established their works, first at a distance ; then brought them successively nearer ; and, in short, raised none but what served afterwards as a foundation or defence to others. After the Great Charter was established, forty successive confirmations strengthened it. The act called the Petition of Rights and that passed in the sixteenth year of Charles the First, then followed : some years after, the Habeas Corpus act was established ; and the ]3ill of Rights at length made its appearance. In fine, whatever the circumstances may have been, the people always had, in their efforts, that inestimable advantage of knowing with certainty the general seat of the evils they had to defend themselves against; and each calamity, each particular erup- tion, by pointing out some weak place, served to procure a new bulwark for public liberty. To conclude in a few words ; — the executive 218 THE CONSTITUTION power in England is formidable, but then it is for ever the same ; its resources are vast, but their nature is at length known ; it has been made the indivisible and inalienable attribute of one person alone, but then all other persons, of whatever rank or degree, become really inter- ested to restrain it within its proper bounds ^. CHAPTER III. A second Peculiarity. The Division of the Legisla- tive Power. 1 HE second peculiarity which England, as an individual state and a free state, exhibits in its constitution, is the division of its legislature. That the reader may be more sensible of the ad- vantages of this division, he is desired to attend to the following considerations. * This last advantage of the greatness and indivisibility of the executive power, viz. the obligation it lays upon the greatest men in the state, sincerely to unite in a common cause with the people, will be more amply discussed here- after, when a more particular comparison between the English government and the republican form shall be of- fered to the reader. ,„ ., .,. , ^ ,„ ... OF ENGLAND. 219 ' It is, without doubt, absolutely necessary, for securing the constitution of a state, to restrain the executive power ; but it is still more neces- sary to restrain the legislative. What the former can only do by successive steps (I mean subvert the laws), and through a longer or shorter train of enterprises, the latter can do in a moment. As its bare will can give being to the laws, so its bare will can alsb annihilate them ; and, if I may be permitted the expression, the legislative power can change the constitution, as God cre- ated the light. -^ In order, therefore, to ensure stability to the constitution of a state, it is indispensably neces- sary to restrain the legislative authority. But here we must observe a difference between the legislative and the executive powers. The latter may be confined, and even is the more easily so, when undivided : the legislative, on the contrary, in order to its being restrained, should absolutely be divided. For, whatever laws it may make to restrain itself, they never can be, relatively to it, any thing more than simple resolutions : as those bars which it might erect to stop its own motions must then be within it, and rest upon it, they can be no bars. In a word, the same kind of impos sibility is found, to fix the legislative power when 220 THE CONSTITUTION it is 07ie, which Archimedes objected against his moving the earth '^. Nor does such a division of the legislature only render it possible for it to be restrained, since each of those parts into which it is divided can then serve as a bar to the motions of the others, but it even makes it to be actually so restrained. If it has been divided into only two parts, it is probable that they will not in all cases unite, either for doing or undoing : — if it has been divided into three parts, the chance that no changes will be made is greatly increased. Nay more ; as a kind of point of honour will na- turally take place between these different parts of the legislature, they will therefore be led to offer to each other only such propositions as will at least be plausible ; and all very prejudicial changes will thus be prevented, as it were, be- fore their birth. If the legislative and executive powers differ so greatly with regard to the necessity of their being divided, in order to their being restrained, they differ no less with regard to the other con- sequences arising from such division. The division of the executive power neces- * He wanted a spot whereupon to fix his instruments. OF ENGLAND. 221 sarily introduces actual oppositions, even violent ones, between the different parts into which it has been divided ; and that part which in the issue succeeds so far as to absorb, and unite in itself, all the others, immediately sets itself above the laws. But those oppositions which take place, and which the public good requires should take place, between the different parts of the legislature, are never any thing more than oppositions between contrary opinions and in- tentions ; all is transacted in the regions of the understanding ; and the only contention that arises is wholly carried on with those inoffen- sive weapons, assents and dissents, ayes and noes. Besides, when one of these parts of the legis- lature is so successful as to engage the others to adopt its proposition, the result is, that a law- takes place which has in it a great probability of being good : when it happens to be defeated, and sees its proposition rejected, the w^orst that can result from it is, that a law is not made at that time ; and the loss which the state suffers thereby, reaches no farther than the temporary setting-aside of some more or less useful specu- lation. In a word, the result of a division of the ex- ecutive power is either a more or less speedy 222 THE CONSTITUTION establishment of the right of the strongest, or &;> continued state of war* : — that of a division of the legislative power, is either truth, or general tranquillity. The following maxims will therefore be ad- mitted. That the laws of a state may be per- manent, it is requisite that the legislative power should be divided ; — that they may have weight, and continue in force, it is necessary that the / executive power should be one. If the reader should conceive any doubt as to the truth of the above observations, let him cast his eyes on the history of the proceedings of the English legislature down to our times, and he will readily find a proof of them. He would be surprised to see how little variation there has been in the political laws of this country, espe- cially during the last hundred years ; though, it is most important to observe, the legislature has been as it were in a continual state of action, and * Every one knows the frequent hostilities that took place between the Roman senate and the tribunes. In Sweden there have been continual contentions between the king and the senate, in which they have overpowered each other by turns. And in England, when the executive power became double, by the king allowing the parliament to have a perpetual and independent existence, a civil war almost immediately followed. .vijur. OF ENGLAND. 223 (no dispassionate man will deny) has generally promoted the public good. Nay, if we except the act passed under AVilliam III. by |OF ENGLAND, 2153 ing lost in the crowd, cannot make their feeble voices to be heard amidst the universal noise and confusion. They have it no more in their power to stop the general motion, than a man in the midst of an army, on a march, has it in his power to avoid marching. In the mean time, the people are giving the suffrages ; a majority appears in favour of the proposal ; it is finally proclaimed as the general will of all ; and it is at bottom nothing more than the effect of the artifices of a few designing men, who are exulting among themselves^. * I might confirm all these things by numberless in- stances from ancient history ; but if I may be allowed, in this case, to draw examples from my own country, et cele- brare domestica facta, I shall relate facts which will be no less to the purpose. — In Geneva, in the year 1/07, a law was enacted, that a general assembly of the people should be held, every five years, to treat of the affairs of the re- public: but the magistrates, who dreaded those assemblies, soon obtained from the citizens themselves the repeal of the law : and the first resolution of the people, in the first of those periodical assemblies (in the year 1712), was to abo- lish them for ever. The profound secrecy with which the magistrates prepared their proposal to the citizens on that subject, and the sudden manner in which the latter, when assembled, were acquainted with it, and made to give their votes upon it, have indeed accounted but imperfectly for this strange determination of the people; and the conster- nation which seized the whole assembly when the result of 254 THE CONSTITUTION In a word, those who are acquainted with republican governments, and, in general, who the suffrages was proclaimed, has confirmed many in the opinion that some unfair means had been used. The whole transaction has been kept secret to this day ; but the com- mon opinion on this subject, which has been adopted by M. Rousseau, in his Lettres cU la, Montague, is this : The magistrates, it is said, had privately instructed the secre- taries in whose ears the citizens were to whisper their suf- frages : when a citizen said approbation^ he was understood to approve the pro^wsal of the magistrates; when he said 7'ejection, he was understood to reject the periodical assem- blies. In the year 1738, the citizens enacted at once into laws a small code of forty-four articles, by one single line of which they bound themselves for ever to elect the four syndics (the chiefs of the council of the twenty-five) out of the members of the same council ; whereas they were before free in their choice. They at that time suffered also the word approved to be slipped into th6 law mentioned in the note, p. 230, which was transcribed from a former code : the consequence of which was to render the magistrates absolute masters of the legislature. The citizens had thus been successively stripped of all xXitiY political rights, and had little more left to them than the pleasure of being called a sovereign assembly when they met (which idea, it must be confessed, preserved among them a spirit of resistance which it would have been dan- gerous for the magistrates to provoke too far), and the power of at least refusing to elect the four syndics. Upon this privilege the citizens, a few years ago (A. D. 1/65 to 1768), made their last stand: and a singular conjunc- OF ENGLAND. ^55 know the manner in which business is transacted in numerous assemblies, will not scruple to af- firm that the few who are united, who take an active part in public affairs, apd whose station makes them conspicuous, have such an advan- tage over the many who turn their eyes towards them, and are without union among themselves, that, even with a middling degree of skill, they can at all times direct, at their pleasure, the general resolutions ; that, as a consequence of | the very nature of things, there is no proposal, however absurd, to which a numerous assembly of men may not, at one time or other, be brought to assent, — and that laws would be wiser, and more likely to procure the advantage of all, if they were to be made by drawing lots, or casting dice, than by the suffi'ages of a multitude. \ tion of circumstances having happened at the same time, to raise and preserve among them, during three years, an uncommon spirit of union and perseverance, they in the issue succeeded, in a great measure, to repair the injuries which they had been made to do to themselves for two hundred years and more. (A total change has since that time been effected by foreign forces , in the government of the republic (A. D. 1/82), upon which this is not a proper place to make any observation.) (Since the year 1789, farther changes have been made in the government of Geneva ; and it is now a departement of the extensive and increasing empire of France. Edit.] ^56 THE CONSTITUTION^" \ CHxVPTER vr. Advantages that accrue to the People from appoinU ing Representatives, How then shall the people remedy the disad- vantages that necessarily attend their situation? How shall they resist the phalanx of those who have engrossed to themselves all the honours, dignities, and power in the state ? It will be by employing for their defence the same means by which their adversaries carry on their attack : — it will be by using the same wea- pons as they do, — the same order, — the same kind of discipline. They are a small number, and consequently easily united ; — a small number must therefore be opposed to them, that a like union may also be obtained. It is because they are a small number, that they can deliberate on every oc- currence, and never come to any resolutions but such as are maturely weighed : — it is be- cause they are few, that they can have forms which continually serve them for general stand- ards to resort to, approved maxims to which OF ENGLAND. 257 they invariably adhere, and plans which they never lose sight of: — here, therefore, I repeat it, oppose to them a small number, and you will obtain the like advantages. Besides, those who govern, as a farther conse- quence of their being few, have a more consi- derable share, consequently feel a deeper con- cern in the success, whatever it may be, of theii' enterprises. As they usually profess a contempt for their adversaries, and are at all times acting an offensive part against them, they impose pn themselves an obligation of conquering. They, in short, who are all alive from the most power- ful incentives, and aim at gaining new advan- tages, have to do with a multitude, who, want- ing only to preserve what they already possess, are unavoidably liable to long intervals of inac- tivity and supineness. But the people, by ap- pointing representatives, immediately gain to their cause that advantageous activity which they before stood in need of, to put them on a par with their adversaries ; and those passions become excited in their defenders, by which they themselves cannot be actuated. Exclusively charged with the care of public liberty, the representatives of the people will be animated by a sense of the greatness of the con- cerns with which they are intrusted. Distin- S i}6S THE CONSTITUTION guished from the bulk of the nation, aivi form- ing among themselves a separate assembly, they will assert the rights of which they have been made the guardians, with all that warmth which i^esprit de corps is used to inspire"*. Placed ail an elevated theatre, they will endeavour tq render themselves still more conspicuous ; ai>d the arts and ambitious activity of those who ga- tern will now be encountered by the vivacity and perseverance of opponents actuated by the love of glory. ' jjnif; Lastly, as the representatives of the people will naturally be selected from among those cir tizens who are most favoured by fortune, and will have consequently much to preseive, they will, even in the midst of quiet times, keep a watchful eye on the motions of power. As the advantages they possess will naturally create a kind of rivalship between them and those who gofvern, the jealousy which they will conceive against the latter will give them an exquisite degree of sensibility on every increase of their authority. Like those delicate instruments a^ hich discover the cqperations of nature, while they are jiIJ;j:i .'to •yu)':i ' i.^^ ' . * If it had not been for an incentive of this kind, the ^hglish commons would not have vindicated their right of "Ifib^ation with so much vigilance as they have done, against -«il)eatfirprises (often perhaps involuntary) of the lordci ' OP ENGLAND-: \ 259 yet imperceptible to our senses^ they will warn the people of those tilings which of themselves they never see but when it is too late; and their greater porportional share, whether of real riches^ or of those which lie in the opinions of men, will make them, if I may so express myself, the barometers that will discover, in its first beginning, every tendency to a change in tlie iconstitution^. CHAPTER VII, The Subject continued, — The Advantages that accrue to the People from their appointing Representatives "^'are very inconsiderable, unless they also entirely trust their Legislative Authority to them, 1 HE observations made in th^ preceding chap- ter are so obvious, that the people themselves, in popular governments, have always been sensible 9i the truth of them, and never thought it pos- 5ible to remedy, by themselves alone, the dis- * All t)ie abpve reasoning essentially require^ that the representatives of the people should be united in interests with the people. We shall soon see that this union really -prevails in the English constitution^ and may be called ibe ipjaHer-piecf of it. i:.-r S 2 260 THE CONSTITUTION advantages necessarily attending their situation. Whenever the oppressions of their rulers have forced them to resort to some uncommon exer- tion of their legal powers, they have immedi- ately put themselves under the direction of those few men who had been instrumental in inform- ing and encouraging them ; and when the nature of the circumstances has required any degree of firmness and perseverance in their conduct, they have never been able to attain the ends they proposed to themselves, except by means of the most explicit defence to those leaders whom they had thus appointed. But, as these leaders, thus hastily chosen, are easily intimidated by the continual display which is made before them of the terrors of power ; — as that unlimited confidence which the people now repose in them only takes place when pub- He liberty is in the utmost danger, and cannot be kept up otherwise than by an extraordinary conjunction of circumstances, in which those who govern seldom suffer themselves to be caught more than once ; — the people have con- stantly sought to avail themselves of the short intervals of superiority which the chance of events had given them, for rendering durable those advantages which tliey knew would, of themselves, be but transitory, and for getting OF ENGLAND. 26l some pers.ons appointed, whose peculiar office it may be to protect them, and whom the consti- tution shall thenceforward recognise. Thus it was tliat the people of Lacedcemon obtained their ephon\ and the people of Rome their tri- bunes. We grant this, will it be said ; but the Ro- man people never allowed their tribunes to co7i- clude any thing definltwely ; they, on the con- trary, reserved to themselves the right of rati- fying^' any resolutions the latter should take. This, I answer, was the very circumstance that rendered the institution of tribunes totally inef- fectual in the event. The people— thus want- ing to interfere, with their own opinions, in the resolutions of those on whom they had, in their wisdom, determined entirely to rely — and en- deavouring to settle with a hundred thousand votes things which would have been settled equally well by the votes of their advisers,— defeated in the issue every beneficial end of their former provisions ; and while they meant to pre- serve an appearance of their sovereignty (a chi- merical appearance, since it was under the di- rpction of others that they intended to vote), they fell back into all those inconveniences which we have before mentioned. * See Rousseau's Social Contract. r 262 THE CONSTITUTION The senators, the consuls, the dictators, and tW other great men in the republic, whom th^ people were prudent enough to fear, and siril^ pie enough to believe, continued still to fnik with them, and play off their political artifices. They continued to make speeches to them*, and still availed themselves of their privilege of changing at their pleasure the place and form of the public meetings. When they did not find it possible by such means to direct the re- solutions of the assemblies, they pretended that the omens were not favourable, and under this pretext, or others of the same kind, they dis- solved themf. And the tribunes, when they a *rtViierlil$ Miximus relates that the tribunes of th6 people having offered to propose some regulations in re* gard to the prince of corn, in a time of great scarcity, Scipio Nasica over-ruled the assembly merely by saying, *' Silence, Romans ! I know better than you what is ex- " pedient for the n^public. — -Which words were no soonef " heard by the people, than they showed by silence full ** of veneration, that they were more affected by his au- " thority, than by the necessity of providing for their own ** subsistence." Tacete, qvcesOj Quirites ! Plus enim ego quam vos quid reipuhlkce expediat intelligo. — Qua voce audita, tmnes, pleno venerationis silent io^ majorem ejus auctoritatis 'ffnnm alimentoYiMi sudruin turdfA e^erunt. t Quid enim mdjus est, si He jure augurum quceiimus (skys TuUy, who y*i9 hims^ll" ah augui*i and a senator also), gwdw OF ENQLANDi . 2S3 had succeeded so far as to affect an union among themselves, thus were obliged to submit to the pungent mortification of seeing those projects which they had pursued with infinite labour, and even through the greatest dangers, irreco- verably defeated by the most despicable a^ii^ fices. 'V :tl When, at other times, they saw that a confe- deracy was carrying on with uncommon warmth against them, and despaired of succeeding by employing expedients of the above kind, or were afraid of diminishing their efficacy by a too fre^ quent use of them, they betook themselves to other stratagems. They then conferred on the consuls, by the means of a short form of words for the occasion*, an absolute power over the lives of the citizens, or even appointed a dicta- tor. The people, at the sight of the state mas- querade which was displayed before them, were sure to sink into a state of consternation : and the tribunes, however clearly they might see through the artifice, also trembled in their tum, JO pvsse a summis imperils et summis potestatibus comitiacus et concilia rel instituta dimittere vel habit a rescindere? Quid graviuSf quam rem susceptam dirimi, si vnus augur alium (id est, alium diem) dixerit? Sec l)e Legib. lib. ii. § 12. -<-t {, ' Wi Vidcat consul he quid detrlmenti respubtica capiat, i £64 THE CONSTITUTION^ when they thus beheld themselves left without defenders*. At other times, they brought false accusations against the tribunes before the assembly itself; or, by privately slandering them with the peo* pie, totally deprived them of their confidence. It was through artifices of this kind, that the people were brought to behold, without con- cern, the murder of Tiberius Gracchus, the only Roman that was really virtuous — the only one who truly loved the people. It was also in the same manner that Caius, who was not de- terred by his brother's fate from pursuing the same plan of conduct, was in the end so en- tirely forsaken by the people, that nobody could be found among them who would even lend him a horse to fly from the fury of the nobles ; and he was ^t last compelled to lay violent hands upon himself, while he invoked the wrath of the gods on his inconstant fellow-citizens. At other times, they raised divisions among the people. Formidable combinations broke out suddenly on the eve of important transac- tions : and all moderate men avoided attending as^^mblies, where they saw that all was to be tumult and confusion. * " The tribunes of the people," says Livy, who was a great admirer of the aristocratical power, " and the people OF ENGLAND. 265 .: In fine, that nothing might be wanting to the insolence with which they treated tlie assemblies of the people, they sometimes falsified the decla- rations of the number of the votes ; and once they even went so far as to carry off the urns into which the citizens were to throw theh' suf- frages*. CHAPTER VIII. The Subject Concluded— -Effects that have resulted in the English Government, from the People's Potjo^ er bein^ completely delegated to their Eepresenta- 13 UT when the people have entirely ti'usted their power to a moderate number of persons, " thcmstlvcs, durst neither lift up their eyes, nor even mut- " ter, in the presence of the dictator." Ncc adversus die- tatoriam xhn, aut trihiini plebls, aut ipsa plebsy attollere ocu- las, aut hlscerc, aiidcbant See Tit. Li v. lib. vi. § iC * The reader with respect to all the above observations, may see Plutarch's Lives, particularly the Lives of the two Gracchi. 1 must add, that I have avoided drawing any instance from those assemblies in which one-half of the people were made to arm themselves against the other, f have here only alluded to those times which immediately either preceded or followed the third Punic war, as these are commonly called the best period of the republic. ^ 266 THE CONSTITUTION affairs immediately take a widely different turn. Those who govern are fiom that moment obliged to leave off all those stratagems which had hi- therto ensured their success. Instead of those assemblies which they affected to despise, and were perpetually comparing to storms, or to the current of the Euripus'^, and in regard to which they accordingly thought themselves at liberty to pass over the rules of justice, they now find that they have to deal with m^ w ho are their equals in point of education and knowledge, a.nd their inferiors only in point of rank, and form. They, in consequence, soon find it necessary to adopt quite different methods ; and, above all, become very careful not to talk to them any more about the sacred chickens, the white or black days, and the Sibylline books. — As they see their new adversaries expect to have a pro- per regard paid to them, that single circum- stance inspires them with it : — as they see theni act in a regular manner, observe constant rules, in a word, proceed with form, they come to look * Tully makes no end of his similes ort this 'Subject. Sluod enim fretumyquem Earipumf tot motns, tanias et tarn fearias habere putatis agitationes Jiuctuum, qiiantas perturba- Hones et quantos cestus habet ratio comitiorum ? See Orat. pfo Mur»na. — ConciOy says he in another place, qnci et imperitissimk constat, SfC» De Amicitia, § Q5. upon them with respect, for the very same rea- son which makes them themselves to be rever-^ enced by the people. ^^ The representatives of the people, on the other hand, do not fail soon to procure for ^femselves every advantage that may enable them effectually to use the powers with W'hich they have been intrusted, and to adopt every rule of proceeding that may make their resolu- tions to be truly the result of reflection and de^ liberation. Thus it was that the representative! of the English nation, soon after their first esta- blishment, became formed into a separate as- sembly : they afterw^ards obtained the liberty of appointing a president : — soon after, they insist- ed upon their being consulted on the last form of the acts to which they had given rise : — lastly, they insisted on thenceforth framing them them- selves. j|. In order to prevent any possibility of surprise in the course of their proceedings, it is a settled rule with them, that every proposition, or bill, must be read three times, at different prefixed days*, before it can receive a final sanction : and before each reading of the bill, as well as at * On sonlb occasions, however, a bill of urgent neces- sity has been read three times in one day. Edit. ::^8 THE CONSTITUTION its first mtroduction, an express resolution must be taken to continue it under consideration. If the bill be rejected in any one of those several operations, it must be dropped, and cannot be proposed again during the same session*. The commons have been, above all, jealous of the freedom of speech in their assembly. They have expressly stipulated, as we have mentioned above, that none of their words or speeches should be questioned in any place out of their house. In fine, in order to keep their deliberations free from every kind of influence, they have denied their president the right, to give his vote, or even his opinion : — they more- over have settled it as a rule, not only that the king could not send to them any express pro-» * It is moreover a settled rule In the house of commo-ns, that no member is to speak more than once in the same de- bate. When the number and nature of the clauses of a bill require that it should be discussed in a free manner, a com^ mittee is appointed for the purpose, who are to make their report afterwards to the house. When the subject is of im-* portance, this committee is formed of the whole house, which still continues to sit in the same place, but in a less solemn manner, and under another president, who is called the chairman of the committee. In order to form the house again, the mace is replaced on the table, and the spcsdccr goes again into his chair. OF EXDLAKD/''^ ^GQ posal about laws, or othei' subjects, but even that his name should never be, mentioned in the deliberations*. ^ '^*^'''* 'I But that circumstance wliich, of all others, constitutes the superior excellence of a govern- ment in which the people act only through their representatives, that is, by means of art assem- bly formed of a moderate number of persons, and in which it is possible for every member to propose new subjects, and to argue and to can- vass the questions that arise, — is, that such a constitution is the only one capable of the im- mense advantage (of which perhaps I did not convey an adequate idea to the reader when I mentioned it before^) of putting into the hand* of the people the moving springs of the legisla^ tive authority. In a constitution where the people at large exercise the function of enacting the laws, as it is only to those persons towards whom the citizens are accustomed to turn their eyes, that is, to the very men who govern, that the assem- bly have either time or inclination to listen, * If any person should mention in his speech, what the king zvishes should jife, icould be glad to see^ &c. he would be immediately called to order, for attempting to influence the debate, t Sec chap. iv. of this book. , • TII^ CONSTITUTION they acquire, at length, as has constantly been the case m all republics, the exclusive right of proposing, if they please, when they please, in what oianner they please. A prerogative this, offt^/oii extepl;,- tb^t it would suffice to put an assembly, formed of men of the greatest parts^ at the mercy of a few dunces, and renders com- pletely illusory the boasted power of the people; Nay more, as this prerogative is thus placed iiip the very h^nds of the adversaries of the people^ it forces the people to remain exposed to theif attacks, in a condition perpetually passive, and takes from them the only legal means by which they might effectually oppose their usurpations^, j To express the whole in a few words — A representative constitution places the remedy in the hands of those who feel the disorder : but B, popular constitution places the remedy in the hands of those who cause it : and it is necessa^- rily productive, in the event, of the misfortune — of the political calamity, of trusting the care and the means of repressing the invasions of power, to the men who have the enjoyment of I- power. ''jfood'^iHf^- -ifOOF ENGLAND. ^Kt t3 CHAPTER IX. ji farther Disadvantage of Republican Governments} —^Tke People aj^e necessarily betrayed by those in whom they trust. llOWEVER, those general assemblies of a people who were made to determine upon things which they neither understood nor examined,--^ that general confusion in which the ambitious could at all times hide their artifices, and carry on their schemes wdth safety, — were not the only evils attending the ancient commonwealths. ^ There was a more secret defect, and a defect that struck immediately at the very vitals of it, inherent in that kind of government. It was impossible for the people ever to have faithful defenders. Neither those whom they had expressly chosen, nor those whom some personal advantages enabled to govern the as- semblies (for the only use, I must repeat it, ' which the people ever make of their power, is either to give it away, or allow it to be tak^n from them), could possibly be united to them by any common feeling of the same concerns. As their influence put them, in a great mea- 272 THE GONSTITUTION" sure, upon a level with those who were invested with the executive authority, they cared little to restrain oppressions out of the reach of which they saw themselves placed. Nay, they feared they should thereby lessen a power which they knew was one day to be their own ; if they had not even already an actual share in it^\ Thus, at Rome, the only end which the tri- bunes ever pursued with any degree of sincerity and perseverance, was to procure to the peo- ple, that is, to themselves, an admission to all the different dignities in the republic. After having obtained that a law should be enacted for admitting plebeians to the consulship, they procured for them the liberty of intermatrying with the patricians. They afterwards rendered them admissible to the dictatorship, to the office of military tribune, to the censorsiiip : in a w^ord, the only use they made of the power of the peo- ple, was to increase privileges which they called the privileges of all, though they and their friends . *. IJow could it be expected that men who entertained views of being praetors,.^ would endeavou^- tp ,^*eg^rain| the jfowcr of the prajtors, — that men who aimed at being one day consuls, would wish to limit the power of the consuls, -^that men whom their influence among the people made sure of getting into the senate, would seriously endcavo\ir to confine the authority of the senate? OF ENGLAND. 275 alone were ever likely to have the enjoyment of them. We do not find that they ever employed the power of the people in things really beneficial to the people. We do not find that they ever set bounds to the terrible power of its magi- strates, — that they ever repressed that class of citizens who knew how to make their crimes pass uncensured, — in a word, that they ever en- deavoured, on the one hand to regulate, and on the other to strengthen, the judicial power ; pre- cautions these, without which men might strug- gle to the end of time, and never attain true li- berty*, t And indeed the judicial power, that sure cri'* terion of the goodness of a government, was al- ways, at Rome, a mere instrument of tyranny. The consuls Avere at all times invested with an absolute power over the lives of the citizens. The dictators possessed the same right ; so did the prgetors, the tribunes of the people, the ju- dicial commissioners named by the senate, and so, of course, did the senate itself : and the fact of the three hundred and seventy deserters whom it commanded to be thrown at one time, as Livy re- lates, from the Tarpeian rock, sufficiently shows * Without such precautions, laws must always be, as Pope expresses it, " Still for the strong too weak, the weak too strong." T 274 THE CONSTITUTION %hat it well knew how to exert its power upoi* occasion. "It even may be said, that, at Rome, the power of life and death, or rather the right of killing, was annexed to every kind of authority whatever, even to that which results from mere influence, or wealth ; and the only consequence of the murder of the Gracchi, which was ac* companied by the slaughter of three hundred,, and afterwards of four thousand unarmed citi- zens, whom the nobles knocked on the head^ was to engage the senate to erect a temple to Con- cord, The Lex Porcia de tergo civhim, which has been so much celebrated, was attended with no other effect than that of more completely securing, against the danger of a retaliation, such consuls, praetors, quaestors, &c. as, like Verres, caused the inferior citizens of Rome to be scourged with rods, and put to death upon crosses, through mere caprice and cruelty*. * If we turn our eyes to Laeecla?mon, we shall see, from- several instances of the justice of the ephoriy that matters were little better ordered there, in regard to the admini- stration of public justice. And in Athens itself, the only one of the ancient common wealths in which the people seem to have enjoyed any degree of real liberty, we see the magistrates proceed nearly in the same manner as they now do among the Turks: and I think no other proo^ OF ENGLAND. 275 111 fine, nothing can more completely show to what degree the tribunes had forsaken the interests of the people, whom they were ap- pointed to defend, than the fact of their having allowed the senate to invest itself with the power of taxation : they even suffered it to assume to itself the power, not only of dispensing with the laws, but also of abrogating them*. needs to be given than the story of that barber in the Pi- rseus, who having spread about the town the news of the overthrow of the Athenians in Sicily, which he had heard from a stranger who had stopped at his shop, was put to the torture, by the command of the archons, because he could not tell the name of his author. — See Plut. Life of Nicias. * There are frequent instances of the consuls taking away from the Capitol the tables of the laws passed under their predecessors. Nor was this, as we might at first be tempted to believe, an act of violence which success alone could justify; it was a consequence of the acknowledged power enjoyed by the senate, cujus er at gravissimitm judicium dejure legum, as we may see in several places in Tully. Nay, the augurs themselves, as this author informs us, enjoyed the same privilege. " If laws had not been laid before th« " people in the legal form, they (the augurs) may set them " aside; as was done with respect to the Lex Tatia^ by the " decree of the college, and to the Leges Livice^ by the ad- ** vice of Philip, who was consul and augur.'' Legem, si nqn jure rogata est, tollere possunt; ut Tatiam, decreto coUegii, ut LiviaSf consiUo Philippij cofisulis et au^uris.^^Sec De Le- ^/^. lib. ii. §12, T 2 ^7Q THE CONSTITUTION In a word, as the necessary consequence of the commiinicability of power, a circumstance essentially inherent in the republican form of government, it is impossible for it ever to be restrained within certain rules. Those who are in a condition to control it, from tliat very cir- cumstance become its defenders. Though they may have risen, as we may suppose, from the humblest stations, and such as seemed totally to preclude them from all ambitious views, they have no sooner reached a certain degree of emi- nence, than they begin to aim higher. Their endeavours had at first no other object, as they professed, and perhaps with sincerity, than to see the laws impartially executed : their only view now is to set themselves above them ; and seeing themselves raised to the level of a class of men who possess all the power and enjoy all the advantages in the state, they make haste to associate themselves with them"^. * Which a\|vays proves an easy thing. It is in com- monwealths the particular care of that class of men who are at the head of the state, to keep a watchful eye over the people, in order to draw over to their own party any man who happens to acquire a considerable influence among them; and this they are (and indeed must be) the more attentive to do, in proportion as the nature of the govern- ment is more democrat] cal. The constitution of Rome had even jnade express pro- OF ENGLAND. 9.11 Personal power and independence on the laws being, in such states, the immediate consequence of the favour of the people, they are under an unavoidable necessity of being betrayed. Cor- rupting, as it were, every thing they touch, they cannot show a preference to a man, but they thereby attack his virtue ; they cannot raise him, without immediately losing him and weakening their own cause; nay, they inspire him with views directly opposite to their own, and send him to join and increase the number of their enemies. Thus, at Rome, after the feeble barrier which excluded the people from offices of power and dignity had been thrown down, the great ple- beians, whom the votes of the people began to raise to those offices, were immediately received into the senate, as has been just now observed. From that period, their families began to form, visions on that subject. Not only the censors could at once remove any citizen into what tribe they pleased, and even into the senate (and we may easily believe that they made a political use of this privilege); but it was morcr oyer a settled rule, that all persons who had been pro- moted to any public office by the people, such as the con- sulship, the aedileship, or tribunesliip, became i'pso facto, members of the senate. — See Middjeton's Dmertatim on the Roman Senate. . yy . i 278 THE CONSTITUTION in conjunction with the ancient patrician fami- lies, a new combination, or political association of persons'*^ ; and as this combination was form- ed of no particular class of citizens, but of all those who had influence enough to gain admit- tance into it, a single overgrown head was now to be seen in the republic, which, consisting of all who had either wealth or power of any kind, and disposing at will of the laws and the power of the peoplef, soon lost all regard to modera- tion and decency. Every constitution, therefore, whatever may be its form, which does not provide for incon- veniences of the kind here mentioned, is a con- stitution essentially imperfect. It is in man himself that the source of the evils to be re- medied lies ; general precautions therefore can alone prevent them. If it be a fatal error en- tirely to rely on the justice and equity of those who govern, it is an error no less dangerous to imagine, that, while virtue and moderation are * Called nobiles and nohilitas. f It was, in several respects, a misfortune for the peo- ple of Rome, whatever may have been said to the contrary by the writers on this subject, that the distinction between the patricians and the plebeians was ever abolished ; though to say the truth, this was an event which could not be pre- vented. OF ENGLAND. 279 the constant companions of those who oppose the abuses of power, all ambition, all thirst after dominion, have retired to the other party. Though wise men, led astray by the power of names, and the heat of political contentions, may sometimes lose sight of what ought to be their real aim, they nevertheless know that it is not against the Appii, the Coricncanii^ the Ce- thegi, but against all those who can influence the execution of the laws, that precautions ought to be taken ; — that it is not the consul, the pne- tor, the archon, the minister, the king, whom we ought to dread, nor the tribune, or the represen- tative of the people, on whom we ought impli- citly to rely : but that all those persons, with- out distinction, ought to be the objects of our jealousy, who, by any methods, and under any names whatsoever, have acquired the means of turnino; against each individual the collective strength of all, and have so ordered things around themselves, that whoever attempts to resist them, is sure to find himself engaged alone against a thousand. S8.Q THi^ CONSTITUTION CHAPTER X. Fundamental Difference between the English Govern- ment, and the Governments just described. — In Eng- land all Exeadive Authority is placed out of tlie Hands of those in ivhom the People trust, — Usefulness of the Power of the Crown. In what manner then has the Enghsh constitu- tion contrived to find a remedy for evils which,^ from the very nature of men and things, seem / to be in'emediable ? How has it found means to oblige those persons to whom the people have given up their power, to make them efiectual and lasting returns of gratitude? — those who enjoy an exclusive authority, to seek the ad- vantage of all ? — those who make the laws, to make only equitable ones ? — It has been by sub- jecting themselves to those laws, and for that purpose excluding them from all share in the ^ execution of them. Thus, the parliament can establish as nume- rous a standing army as it will ; but immediately another power comes forward, which takes the absolute command of it, fills all the posts in it, and directs its motion at its pleasure. The parliament may lay new taxes; but immedi- OF ENGLAND. ^81 ately another power seizes the produce of them, and alone enjoys the advantages and glory aris- ing from the disposal of it. The parliament may even, if you please, repeal the laws on which the safety of the subject is grounded ; but it is not their own caprices and arbitrary humours, it is the caprices and passions of other men, which they will have gratifi.ed, when they shall thus have overthrown the columns of public liberty. And the English constitution has not only excluded from any share in the execution of the law^s, those in whom the people trust for the enacting them, but it has also taken from them what would have had the same pernicious in- fluence on their deliberations — the hope of ever invading that executive authority, and transfer- ing it to themselves. This authority has been made in England one single, indivisible prerogative : it has been made for ever the inalienable attribute of one person, marked out and ascertained before-hand by solemn laws and long-established custom; and all the active forces in the state have beea left at his disposal. In order to secure this prerogative still farther against all possibility of invasions from indivi- duals, it has been heightened and strengthened by every thing that can attract and fix tte at- 282 THE CONSTITUTION tention and reverenceof the people. The power of conferring and withdrawing places and em- ployments has also been added to it ; and am- bition itself has thus been interested in its de- fence and service. A share in the legislative power has also been given to the man to whom this prerogative has been delegated ; a passive share indeed, and the only one that can, with safety to the state, be trusted to him, but by means of which he is enabled to defeat every attempt against his con- stitutional authority. Lastly, he is the only self-existing and per- manent power in the state. The generals, the ministers of state, are so only by the continu- ance of his pleasure. He would even dismiss the parliament itself^ if ever he saw it begin to entertain dangerous designs ; and he needs only to say one word to disperse every power in the state that may threaten his authority. For- midable prerogatives these ; but with regard to which we shall be inclined to lay aside our ap- prehensions, if on one hand, we consider the great privileges of the people by which they have been counter-balanced, and, on the other, the happy consequences that result from their^^ being thus united. From this unity, and, if I may so express OF ENGLAND. 283 myself, this total sequestration of the executive authority, this advantageous consequence in the fu'st place results — the attention of the whole nation is directed to one and the same object. The people, besides, enjoy this most essential advantage, which they would vainly endeavour to obtain under the government of many; — • they can give their confidence, without giving power over themselves, and against themselves ; they can appoint trustees, and yet not give themselves masters. Those men to whom the people have dele- gated the power of framing the laws, are there- by made sure to feel the whole pressure of them. They can increase the prerogatives of the ex- ecutive authority, but they cannot invest them- selves with it : — they have it not in their power to command its motions, they only can unbind its hands. They are made to derive their importance from (nay, they are indebted for their existence to) the need in which that power stands of their assistance ; and they know that they would no sooner have abused the trust of the people, and completed the treacherous work, than they would see themselves dissolved, spurned, like instru- ments now spent and become useless. - «f> This same disposition of things also prevents 284 , THE CONSTITUTION in England that essential defect, inherent in the government of many, which has been described in the preceding chapter. In that sort of government, the cause of tlie people, as has been observed, is continually de- serted and betrayed. The arbitrary prerogatives of the governing powers are at all times either openly or secretly favoured, not only by those in whose possession they are, — ^not only by those who have good reason to hope that they shall at some future time share in the exercise of them,-— but also by the whole crowd of those men who, in consequence of the natural dispo- sition of mankind to over-rate their own advan- tages, fondly imagine, either that they shall one day enjoy some branch of this governing autho- rity, or that they are even alrcady, in some way or other, associated to it. But as this authority has been made, in Eng- land, the indivisible, inalienable attribute of one alone, all other persons in the state, are, ipso facto, interested to confine it within its due bounds. Liberty is thus made the common cause of all; the laws that secure it are sup- ported by men of every rank and order ; and the Habeas Corpus Act, for instance, is as zealously defended by the first nobleman in the kingdom as by the meanest subject. if OF ENGLAND. 285 Even the minister himself, in consequence of this inalienability of the executive authority, is equally interested with his fellow-citizens to maintain the laws on which public liberty is founded. He knows, in the midst of his schemes for enjoying or retaining his authority, that a court-intrigue or a caprice may at every instant confound him with the multitude, and the ran- cour of a successor, long kept out, send him to linger in the same prison which his temporary passions might tempt him to prepare for others. In consequence of this disposition of things, ^reat men are made to join in a common cause with the people, for restraining the excesses of the governing powder ; and, which is no less es- sential to the public welfare, they are also, from the same cause, compelled to restrain the excess of their own private power and influence; and a general spirit of justice becomes thus diffused through all parts of the state. The wealthy commoner, the representative of the people, the potent peer, always having be- fore their eyes the view of a formidable power, — of a power, from the attempts of which they have only the shield of the laws to protect them, and which would in the issue, retaliate a hun- dred-fold upon them their acts of violence, — are compelled, both to wish only for equitable 286 THE CONSTITUTION laws, and to observe them with scrupulous ex- actness. '*^ Let then the people dread (it is necessary to the preservation of their liberty), but let them never entirely cease to love, the throne, that sole and indivisible seat of all the active powers in the state. Let them know, it is that, which, by lending an immense strength to the arm of justice, has enabled her to bring to account, as well the most powerful as the meanest offender, — which has suppressed, and, if I may so express myself, weeded out all those tyrannies, sometimes con- federated with, and sometimes adverse to, each other, which incessantly tend to grow^ up in the middle of civil societies, and are the more ter- rible in proportion as they feel themselves to be less firmly established. Let them know, it is that, which, by making all honours and places depend on the will of one man, has confined within private walls those projects, the pursuit of which, in former times, shook the foundations of whole states; — has changed into intrigues the conflicts, the outrages of ambition ; — and that those contentions which, in the present times, afford them only matter of amusement, are the volcanoes which set in flames the ancient commonwealths. I OF ENGLAND. 287 It is that, which, leaving to the rich no other security for his palace than that which the pea- sant has for his cottage, has united his cause to that of the latter; — the cause of the powerful to that of the helpless, — the cause of the man of extensive influence and connexions to that of him who is without friends. It is the throne above all, it is this jealous power, which makes the people sure that its representatives never will be any thing more than its representatives : at the same time it is the ever-subsisting Carthage, which vouches to it for the duration of their virtue. CHAPTER XI. The Power which the People themselves exercise, — The Election of Members of Parliament. 1 HE English constitution having essentially connected the fate of the men to w^hom the people trust their power with that of the people themselves, really seems, by that caution alone, to have procured the latter a complete security. However, as the vicissitude of human affairs .may, in process of time, realise events which 28S THIJ CONSTITUTION at first had appeared most improbable, it might happen that the ministers of the executive power, notwithstanding the interest they themselves have in the preservation of public liberty, and in spite of the precautions expressly taken to prevent the effect of their influence, should at length employ such efficacious means of con'uption as might brins about a surrender of some of the laws upon which this public liberty is founded. And though we should suppose that such a danger would really be chimerical, it might at last hap- pen, that conniving at a vicious administration, and being over-liberal of the produce of general labour, the representatives of the people might make them suffer many of the evils which at- tend worse forms of government. Lastly, as their duty does not consist only in preserving their constituents against the calami- ties of an arbitrary government, but moreover in procuring them the best administration possible, it might happen that they would manifest, in this respect, an indifference which would, in its con- sequences, amount to a real calamity. It was, therefore, necessary that the consti- tution should furnish a remedy for all the above cases : now, it is in the right of electing mem- bers of parliament, that this remedy lies. OF ENGLAND. 289 When the time is come at which the com- mission, given by the people to their delegates, expires, they again assemble in their several towns or counties : on these occasions they have it in their po^^er to elect again those of their representatives whose former conduct they apptove, and to reject those who have con- tributed to give rise to their complaints. A simple reiiiedy this, and which only requiring, in its application, a knowledge of matters of fact, is entirely within the reach of the abilities of the people ; but a remedy, at the same tithe, which is the most effectual that could be ap- plied; for, as the evils complained of arise merely from the peculiar dispositions of a cer- tain number of individuals, to set aside those individuals is to pluck up the evil by the roots. But I perceive, that, in order to make the reader sensible of the advantages that may ac- crue to th^ |)eople of England from their tight of election, there is another of their rights, of which it is absolutely necessary that I should first give an account. U 290 THE CONSTITUTION CHAPTER XII. The Subject continued. — Liberty of the Press. As the evils that may be complained of in a state do not always arise merely from the de- fect of the laws, but also from the non-execu- tion of them; and this non-execution of such a kind, that it is often impossible to subject it to any express punishment, or even to ascertain it by any previous definition ; men, in several states, have been led to seek for an expedient that might supply the unavoidable deficiency of legislative provisions, and begin to operate, as it were, from the point at which the latter begin to fail : I mean here to speak of the censorial power, — a power which may produce excellent effects, but the exercise of which (contrary to that of the legislative power) must be left to the people themselves. As the proposed end of legislation is not, accordingr to what has been above observed, to have the particular intentions of individuals, upon every case, known and complied with, but solely to have what is most conducive to the public good, on the occasions that arise. w OF ENGLAND. ^91 found out and established, it is not an essential requisite in legislative operations that every indi- vidual should be called upon to deliver his opi- nion; and since this expedient, which at first sight appears so natural, of seeking out by the advice of all that which concerns all, is found liable, when carried into practice, to the great- est inconveniences, we must not hesitate to lay it aside entirely. But as it is the opinion of individuals alone which constitutes the check of a censorial power, this power cannot produce its intended effect any farther than this public opinion is made known and declared : the senti- ments of the people are the only thing in ques- tion here : it is therefore necessary that the peo- ple should speak for themselves, and manifest those sentiments. A particular court of cen- sure would essentially frustrate its intended pur- pose : it is attended, besides, with very great inconveniences. As the use of such a court is to determine upon those cases which lie out of the reach of the laws, it cannot be tied down to any precise regulations. As a farther consequence of the arbitrary nature of its functions, it cannot even be subjected to any constitutional check ; and it continually presents to the eye the view of a power entirely arbitrary, and which in its dif- 292 THE CONSTITUTION ferent exertions miay affect, in the most cruel manner, the peace and happiness of individuals. It is attended, besides, with this very perni- cious consequence, that, by dictating to the peo- ple their judgements of men or measures, it takes. from them that freedom of thinking, which is the noblest privilege, as well as the firmest support of liberty*. * M. de Montesquieu, and M. Rousseau, and indeed all the writers on this subject I have met with, bestow vast en- comiums on the censorial tribunal that had been instituted at Rome: — they have not been aware that this power of censure, lodged in the hands of peculiar magistitites, with other discretionary powers annexed to it, was no other than a piece of slate-craft, like those described in the preceding chapters, artd had been contrived by the senate as an addi- tional mean of securing its authority. Sir Thomas More has also adopted similar opinions on the subject: and he is so far from allowing the people to canvass the actions of their rulers^ that,, in his System of Policy., which he calls An Accowit of tliopia (the happy region, eu and roTTo^), he makes it death for individuals to talk about the conduct of government. ' I feel a kind* of pleasure, I must confess, to observe, on this occasion, that though I have been calkd by some an advocate for power, I have carried my ideas of liberty farther than many writers who have mentioned that word with much enthusiasm. N. [The author, it must be allowed, is not an advocate for atbitrary power : he is pleased with our limitations of des- potism, and propagates rational ideas of liberty. Edit.] OF ENGLAND. > 293 We may therefore look upon it as a farther proof of the soundness of the principles on which the English constitution is founded, that it has allotted to the people themselves the province of openly canvassing and arraigning the conduct of those who are invested with any branch of public authority ; and that it has thus delivered into the hands of the people 8,t large the exei:cise of the censorial power. Every sub- ject in England has not.piily a right to present petitions to the king, or to the houses of parlia- ment, but he has a right also to lay his com- plaints and observations before the public, by means of an open press. A formidable right this, to those who rule mankind; and which, continually dispelling the cloud of majesty by which they are surrounded, brings them to a level with the rest of the people, and strikes at the very being of their authority. And indeed this privilege is that which has been obtained by the English nation with the greatest difficulty, and latest in point of time, at the expense of the executive power. Freedom was in every other respect already established, when the English were still, with regard to the public expression of their sentiments, under re- straints that may be called despotic. History abounds with instances of the severity of the 294 THE CONSTITUTION^ Court of Stav-chamber, against those who pre- sumed to write on political subjects. It had fix- ed the number of printers and printing presses, and appointed a licenser, without whose appro- bation no book could be published. Besides, as this tribunal decided matters by its own sin- gle authority, without the intervention of a jury, it was always ready to find those persons guilty whom the court was pleased to look upon as such; nor was it indeed without ground that the chief-justice Coke, whose notions of liberty were somewhat tainted with the prejudices of the times in which he lived, concluded the eulo- giums he bestow^ed on this court, with saying, that, "the right institution and orders thereof " being observed, it doth keep all England in " quiet." After the Court of Star-chamber had been abolished, the Long Parliament, whose conduct and assumed power were little better qualified to bear a scrutiny, revived the regulations against the freedom of the press. Charles the Second, and after him James the Second, pro- cured farther renewals of them. These latter acts having expired in the year 1692, were at this aera, although posterior to the Revolution, continued for two years longer ; so that it was not till the year 1694, that, in consequence of OF ENGLAXD. 295 the parliament's refusal to prolong the prohibi- tions, the freedom of the press (a privilege which the executive power could not, it seems, pre- vail upon itself to yield up to the people) was finally established. In what, then, does this liberty of the press pi'e- cisely consist ? Is it a liberty left to every one to publish any thing that comes into his head ? To calumniate, to blacken, whomsoever he pleases? No ; the same laws that protect the person and the property of the individual, do also protect his reputation ; and they decree against libels, when really so, punishments of much the same kind as are established in other countries. But, on the other hand, they do not allow, as in other states, that a man should be deemed guilty of a crime for merely publishing something in print ; and they appoint a punishment only against him who has printed things that are in their nature criminal, and who is declared guilty of so doing by twelve of his equals, appointed to determine upon his case, with the precautions we have be- fore described. The liberty of the press, as established in England, consists therefore (to define it more precisely) in this, that neither the courts of justice, nor any other judges whatever, are au- thorised to take notice of writings intended for S96 THE CONSTITUTION the press, but are confined to those which are actually printed, and must, in these cases, pro- ceed by the trial by jury. It is even this latter circumstance which more particularly constitutes the freedom of the press. If the magistrates, though confined in their pro- ceedings to cases of criminal publications, were to be the sole judges of the criminal nature of the things published, it might easily happen that, with regard to a point which, like this, so highly ^j^cites the jealousy of the governing powers, they would exert themselves with so much spirit and perseverance, that they might, aX length, suc- ceed in completely striking off all the heads of the hydra. But whether the authority of the judges be exerted at the motion of a private individual, Qr whether it be at the instance of the govern- ipent itself, their sole office is to declare the pu- nishment established by the law : — it is to the jury alone that it belongs to determine on the matter of law, as well on the matter of fact ; that is, to determine, not only whether the writ- ing which is the subject of the charge has really been composed by the man charged with having done it, and whether it be really meant of the person named in the indictment, — but also wlie- ther its contents ai'e criminal. OF ENGLAND. Q97 And though the law in England does not allow a man, prosecuted for having published a libel, to offer to support by evidence the truth of the facts contained in it* (a mode of proceed- ing which would be attended with very mischiev- ous consequences, and is every where prohibit- ed), yet, as the indictment is to express that the iacts dire false, malicioiis, &c. and the jury, at the same time, are sole masters of their verdict, — that is, may ground it upon what considera- tions they please, — it is very probable that they would acquit the accused party, if the fact, as- serted in the w riting before them, w ere matter of undoubted truth, and of a general evil tendency. They, at least, would certainly have it in their power t- And it is still more likely that this would be the case, if the conduct of the government itself w as arraigned ; because, besides this convictioq * In actions for damages between individuals, the case, if I mistake nut, is different, and the defendant is allowed to produce evidence of the facts asserted by him. [This, though doubtfully expressed, is not an ill-found- ed assertion. Edit.] f And whatever may be said of the libellous nature evei) of true remarks or assertions, every juror ought so far to distinguish between truth and falsehood, as to exercise little severity in the one case, compared with the other. — Edit. 298 THE CONSTITUTION which we suppose in the jury, of the certainty of the facts, they would also be influenced by their sense of a principle generally admitted in Eng- land, and which, in a late celebrated cause, was strongly insisted upon, viz. That, '' though to " speak ill of individuals deserved reprehension, " yet the public acts of government ought to lie ^' open to public examination, and that it was " a service done to the state to canvass them "freely*." And indeed this extreme security with which every man in England is enabled to communi- cate his sentiments to the public, and the gene- ral concern which matters relative to the go- vernment are always sure to create, have won- derfully multiplied all kinds of public papers. Besides those which, being published at the end of every year, month, or -week, present to the reader a recapitulation of every thing interesting that may have been done or said during their re- spective periods, there are several othei^, which, making their appearance every day, or every other day, communicate to the public the seve- ral measures taken by the government, as well as the different causes of any importance, whe- ther civil or criminal, that occur in the courts of * Sec Serjeant Glynn's Speech for Woodfall in the pro- secution against the latter, by the attorney-general, for publishing Junius' Letter to the King. ENGLAKD. 299 justice, and sketches from the speeches either of the advocates, or the judges, concerned in the management and decision of them. Dur- ing the time the parliament continues sitting, the votes or resolutions of the houses of com- mons are daily published by authority ; and the most interesting speeches in both houses are taken down in short-hand^, and communicated to the public in print. Lastly, the private anecdotes in the metro- polis, and the country, concur also towards filling the collection; and as the several public papers circulate, or are transcribed into others, in the different country towns, and even find their way into the villages, where every man, down to the labourer, peruses them with a sort of eagerness, every individual thus becomes ac- quainted with the state of the nation, from one end to the other ; and by these means the gene- ral intercourse is such, that the three kingdoms seem as if they were one single town. And it is this public notoriety of all things that constitutes the supplemental power, or check, which, we have above said, is so useful to remedy the unavoidable insufficiency of the * Any stranger who should presume to take down the debates in short -hand^ would be in danger of being excluded from the gallery. Reporters, therefore, chiefly trust to me- mory ; or, if they take notes, it must be done by stealth. Edit, 300 THE CONSTITUTION laws, and keep within their respective bounds all those persons who enjoy any share of public authority. As they are thereby made sensible that all their actions are exposed to public view, they dare not venture upon those acts of partiality, those secret connivances at the iniquities of particular persons, or those vexatious practices whieh the man in office is but too apt to be guilty of, when, exercising his office at a distance from the public eye, and as it were in a corner, he is satisfied, that provided he be cautious, he may dispense with being just. Whatever may be tlie kind of abuse in which persons in power may, in such a state of things, be tempted to in- dulge themselves, they are convinced that their irregularities will be immediately divulged. The juryman, for example, knows that his verdict — the judge, that his direction to the jury— will presently be laid before the public : and there is no man in office, but who thus finds himself compelled, in almost every instance, to choose between his duty, and the surrender of all his former reputation. It will, I am aware, be thought that I speak in too high terms of the effects produced by the public news-papers. I indeed confess that all the pieces contained in them are not patterns of good reasoning, or of the truest Attic wit; but, OF ENGLAND. 301 on the other hand, it scarcely ever happens that a subject in which the law3,^. or in general the public welfare, are really concerned, fails to call forth some able writer, who, undqij^ome form or other, communicates to the public hi^ obsei-va- tions and complaints. I shall add here, that, though an upright man, labouring for a while under a strong popular prejudice, may, sup- ported by the consciousness of his innocence, endure with patience the severest imputations, the guilty man, hearing nothing in the reproaches of the public but what he knows to be true, and already upbraids himself Avith, is very far from enjoying any such comfort ; and that, when a man's own conscience takes part against him, the most despicable weapon is sufficient to wound him to the quick*. * I shall take this occasion to observe, that the liberty of the press is so far from being injurious to the reputation of individuals (as some persons have complained), that it is, on the contrary, its surest guard. When there exist no meaiis of communication with the public, everyone is ex- posed, without defence, to the secret shafts of malignity and envy. The man in office loses his reputation, the' merchant his credit, the private individual his character, without so much as knowing either who are his enemies, or which way they carry on their attacks. But when there exists a free pres^, fttt iiinotent man irft mediately brings the matter into open day, and crushes his adversattefe^ at once, 302 THE CONSTITUTION Even those persons whose greatness seems most to set them above the reach of public censure, are not those who least feel its effects. They have need of the suflfrages of that vulgar whom they affect to despise, and who are, after all, the dispensers of that glory which is the real object of their ambitious cares. Though all have not so much sincerity as Alexander, they have equal reason to exclaim, O people I zvhat toils do we not undergo, in order to gain your applause I I confess that in a state where the people dare not speak their sentiments, but with a view to please the ears of their rulers, it is possible that either the prince, or those to whom he has trusted his authority, may sometimes mistake the nature of the public sentiments ; or that, for want of that affection of which they are denied by a public challenge to lay before the public the grounds of their several imputations. [Yet innocence and guilt are so frequently confounded amidst the rage of party, the wildness of caprice, and the wantonness of scandal, that any one who forms his ideas of public characters from news-papers and pamphlets, is liable to be grossly deceived. The chief tendency of news- paper abuse, carried as it now is to a most licentious ex- cess, is to render men callous, and indifferent to general censure or praise. Edit.] Y<^J0F ENGLAND. 303 all possible marks, they may rest contented with inspiring terror, and make themselves amends in beholding the over-awed multitude smother their complaints. But when the laws give a full scope to the people for the expression of their sentiments, tliose who govern cannot conceal from them- selves the disagreeable truths which resound from all sides. They are obliged to put up even with ridicule; and the coarsest jests are not al- ways those which give them the least uneasiness. Like the lion in the fable, they must bear the blows of those enemies whom they depise the most ; and they are, at length, stopped short in their career, and compelled to give up those unjust pursuits which, they find, draw upon them, instead of that admiration which is the proposed end and reward of their labours, no- thing but mortification and disgust. In short, whoever considers what it is that constitutes the moving principle of what we call gi'eat affairs, and the invincible sensibility of man to the opinion of his fellow-creatures, will not hesitate to affirm, that if it were possible for the liberty of the press to exist in a despotic government, and (what is not less difficult) for it to exist without changing the constitution, this liberty would alone form a counterpoise tp the 304 THE CONSTITUTION power of the prince. If, for example, in an empire of the East, a place could be found, which, rendered respectable by the ancient re- ligion of the people, might ensure safety to those who should bring thither their observations of any kind, and from this sanctuary printed pa- pers should issue, which, under a certain seal, might be equally respected, and which in their daily appearance should examine and freely dis- cuss the conduct of the cadis, the pashas, the vizir, the divan, and the sultan himself, — that would immediately introduce some degree of liberty. CHAPTER XIII. llie Object continued. Another effect, and a very considerable one, of the liberty of the press, is, that it en- ables the f»eople effectually to exert those means which the constitution has bestowed on them, of influencing the motions of the government. It has been observed in a former place, how- it came to be a matter of impossibility for any large number of men, when obliged to act in a body, and upon the spot, to take any well- OF ENGLAND. 305 weighed resolution. But this inconvenience, which is the inevitable consequence of their situ- ation, does in nowise argue a personal inferior- ity in them, with respect to the few who, from some accidental advantages, are enabled to in- fluence their determinations. It is not fortune, it is nature, that has made the essential differ- ences between men ; and whatever appellation a small number of persons, who speak without sufficient reflection, may affix to the general body of their fellow-creatures, the whole differ- ence between the statesman, and many a man from among what they call the dregs of the peo- ple, often lies in the rough outside of the latter, — a disguise which may fall off* on the first op- portunity : and more than once has it happened, that from the middle of a multitude, in appear- ance contemptible, a Viriatus has been suddenly seen to rise, or a Spartacus to burst forth*. Time, and a more favourable situation^ are therefore the only things wanting to the people ; * Many of our readers may not recollect, that Viriatus was a Lusitanian shepherd, who roused his countrymen to arms, and harassed the Roman invaders for fourteen years, during, and after, the third Punic war; or that Spar- tacus was a gladiator, who, at a later period, led an army of rebel slaves into the field, and fought for a time with dis» tinguished spirit. Epjt. X 306 THE CONSTITUTION and the freedom of the press affords the remedy to these disadvantages. Through its assistance, every individual may, at his leisure and in retire* ment, inform himself of every thing that relates to the questions on which he is to take a resolu- tion. Through its assistance, a whole nation, as it were, holds a council, and deliberates, — slowly indeed (for a nation cannot be informed like an assembly of judges), but after a regular manner, and with certainty. Through its assist- ance, all matters of fact are at length made clear ; and, through the conflict of the different answers and replies, nothing at last remains but the sound part of the arguments^. [* Some may think, however, that, in these printed dis- cussions, the sound parts of the argument are occasionally so involved in a cloud of sophistry and misrepresentation, as not to be fully perceived and comprehended by the ma- jority of readers. Edit.] Thisright of publicly discussing political subjects is alone a great advantage to a people who enj<)y it; and if the citi- zens of Geneva preserved their liberty better than the peo- ple were able to do in the other commonwealths of Switzer- land, it was, I think, owing to the extensive right they pos- sessed of making public remonstrances to their magistrates. To these remonstrances the magistrates (for instance the council of twenti/'Jive, to which they were usually made) were obliged to give an answer. If this answer did not satisfy the remonstrating citizens, they took time, perhaps 'of ENGLAND. 307 Hence, though all good men may not think themselves obliged to concur implicitly in the tumultuary resolutions of a people whom their orators take pains to agitate, yet, on the other hand, when this sanje people, left to itself, per- severes in opinions which have for a long time been discussed in public writings, and from which (it is essential to add) all errors concern- ing facts have been removed, such perseverance is certainly a very respectable decision ; and then it is, though only then, that we may with safety say, — " the voice of the people is the voice of "God/' How therefore can the people of England act^ two or three weeks, to make a reply to it, which must also be answered ; and the number of citizens who went up with each new remonstrance increased, according as they were thought to have reason on their side. Thus, the remon- strances which were made on account of the sentence against Rousseau, and were delivered at first by only forty citizens, were afterwards often accompanied by about nine hundred. This circumsta^ice, together with the ceremony with which those remonstrances or representations were de- livered, rendered them a great check on the conduct of the magistrates : they were even still more useful to the citizens of Geneva, as preventives than as remedies ; and nothing was more likely to deter the magistrates from, taking a step of aiiy kind than the thought that it might give rise to a represetitatian X2 308 THE CONSTITUTION when, having formed opinions which may really be called their own, they think they have just cause to complain of the administration ? It is, as has been said above, by means of the right they have of electing their representatives ; and the same method of general intercourse that has informed them with regard to the objects of their .complaints, will likewise enable them to apply the remedy to them. Through this medium they are acquainted with the nature of the subjects that have been deliberated upon in the assembly of their re- presentatives ; — they are informed by whom the different motions were made, — by whom they were supported ; — and the manner in which the suffrages are delivered, is such, that they always can know the names of those who have voted constantly for the advancement of pernicious measures. And the people not only know the particular dispositions of every member of the house of commons, but, from the general notoriety of affairs, have also a knowledge of the political sentiments of a great number of those whom their situation in life renders fit to fill a place in that house. And availing themselves of the several vacancies that happen, and still more of the opportunity of a general election, they OF ENGLAND. 309 purify, either successively or at once, the legis- lative assembly; and thus, without any com- motion or danger to the state, they effect a ma- terial reformation in the views of the govern- ment I am aware that some persons will doubt these patriotic and systematic views, which I am here attributing to the people of England, and will object to me the disorders that some times happen at elections. But this reproach, which, by the way, comes with little propriety from writers who would have the people trans- act every thing in their own persons, — this re- proach, I say, though true to a certain degree, is not, however, so much so, as it is thought by certain persons who have taken only a superfi- cial survey of the state of things. Without doubt, in a constitution in which all important causes of uneasiness are so effectually prevented, it is impossible but that the people will have long intervals of inattention. Being then suddenly called, from this state of inacti- vity, to elect representatives, they have not exa mined before-hand the merits of those who so- licit their votes ; and the latter have not had, amidst the general tranquillity, any opportunity of making themselves known to them. 310 TH2 C0XSTITUTI0J7 The elector, pursuaded, at the same time, that the person whom he will elect will be equally interested with himself in the support of public liberty, does not enter into laborious disquisi- tions, and from which he sees he may exempt himself. Obliged, however, to give the prefer- ence to somebody, he forms his choice on mo- tives which would not be excusable, if it were not that some motives are necessary to make a choice, and that, at this instant, he is not influ- enced by any other ; and indeed it must be con- fessed, that, in the ordinary course of things, and with electors of a certain rank in life, that candidate who gives the best entertainment has a great chance to get the better of his competi- tors. But if the measures of government, and the reception of these measures in parliament, by means of a too complying house of commons, should ever be such as to spread a serious ala m among the people, the same causes which have concurred to establish public liberty would, no doubt, operate again, and likewise concur in its support. A general combination would then be formed, both of those members of pailiament who have remained true to the public cause, and of persons of every order among the people. Public meetings, in such circumstances, would OF THE "'♦; OF OF ENGLAND. 311 be appointed ; general subscriptions would be entered into, to support the expenses, whatever they might be, of such a necessary opposition ; and all private and unworthy purposes being suppressed by the sense of the national clanger, the choice of the electors would then be wholly determined by the consideration of the public spirit of the candidates, and the tokens given by them of such spirit. Thus were those parliaments formed, which suppressed arbitrary taxes and imprisonments. Thus was it, that, under Charles the Second, the people, when recovered from that enthu- siasm of affection with which they received a king so long persecuted, at last returned to him no parliaments but such as were composed of a majority of men attached to public liberty. Thus it was, that, persevering in a conduct which the circumstances of the times rendered necessary, the people baffled the arts of the government; and Charles dissolved three successive parlia- ments, without any other effect than that of . having those same men re-chose, and set again in opposition to him, of whom he hoped he had rid himself for ever. Nor was James the Second happier in his attempts than Charles had been. This prince soon experienced that his parliament was actu- 51S THE CONSTITUTION ated by the same spirit as those which had op- posed the designs of his late brother ; and hav- ing suffered himself to be led into measures of violence, instead of being better taught by the * discovery he made of the real sentiments of the people, his reign was terminated by that cata- strophe with which every one is acquainted. Indeed, if we combine the right enjoyed by the people of England, of electing their repre- sentatives, with the whole of the English go- vernment, we shall become continually more and more sensible of the excellent effects that may result from that right. All men in the state are, as has been before observed, really interested in the support of public liberty. No- thing but temporary motives, and such as are quite peculiar to themselves, can induce the members of any house of commons to connive at measures destructive of this liberty. The people, therefore, under such circumstances, need only change these members, in order ef- fectually to reform the conduct of that house ; and it may fairly be pronounced before-hand, that a house of commons, composed of a new set of persons, will, from this bare circumstance, be in the interests of the people. Hence, though the complaints of the people do not always meet with a speedy and imme- OF ENGLAND* 3li diate redress (a celerity which would be the symptom of a fatal unsteadiness in the constitu** tion, and would sooner or later bring on its ruin); yet, when we attentively consider the nature and the resources of this constitution, we shall not think it too bold an assertion to say, that it is impossible but that complaints in which the people persevere (that is, well-grounded com- plaints) will sooner or later be redressed. - CHAPTER XIV. Right of Resistance. But all those privileges of the people, con* sidered in themselves, are but feeble defences against the real strength of those who govern. All those provisions, all those reciprocal rights, necessarily suppose that things remain in their legal and settled course: what would then be the resource of the people, if ever^the prince, suddenly freeing himself from all restraint, and throwing himself as it were out of the constitu- tion, should no longer respect either the person or the property of the subject, and either should make no account of his conventions with the parliament, or attempt to force it implicitly to submit to his will? — It would be resistance. 314 THE CON'STITUTION Without entering here into the discussion of a doctrine which would lead us to inquire into the first principles of civil government, conse- quently engage us in a long disquisition, and with regard to ^\ hich, besides, persons free from prejudices agree pretty much in their opinions, I shall only observe here (and it will be suffi- cient for my purpose) that the question has been decided in favour of this doctrine by the laws of England, and that resistance is looked upon by them as the ultimate and lawful resource against the violences of power. It was resistance that gave birth to the Great Charter, that lasting foundation of English li- berty, and the excesses of a power established by force were also restrained by force*. It has been by the same means that, at different times, the people have procured the confirmation of the same charter. Lastly, it has also been the * • Lord Lyttelton says, extremely well, in his Persian Letters, " If the privileges of the people of England be " concessions from the crown, is not the power of the " crown itself a concession from the people ?" It might be said with equal truth, and somewhat more in point to the subject of this chapter, — If the privileges of the people be an encroachment on the power of kings, the power itself of kings was at first an encroachment (no matter whether effected by surprise) on the natural liberty of th^ people. OF ENGLAND. 315 resistance to a king who made no account of his own engagements, that has, in the issue, placed on the throne the family which is now in possession of it. ? This is not all ; this resource, which till then had only been an act of force opposed to other acts of force, was, at that aera, expressly recog- nised by the law itself. The lords and com- mons, solemnly assembled, declared, that "king '^ James the Second, having endeavoured to " subvert the constitution of the kingdom, by " breaking the original contract between king *' and people, and having violated the funda- " mental laws, and withdrawn himself, had ab- " dicated the government ; and that the throne "- was thereby vacant''^.'* * The Bill of Rights has since given a new sanction' to all these principles. [The doctrine of resistance is not expressly stated and inculcated in our authoritative codes of constitutional law; for such a promulgation of it might have a mischievous tendency, by encouraging a frequent recourse to those violent remedies which nothing but atrocious tyranny can justify or excuse. The law, therefore, still speaks of the absolute sovereignty and transcendent power of the mon- arch, omitting the mention of all exceptions from the general rule of submission and obedience, and leaving the question of resistance to the feelings and good sense of the public, to be decided by the emergency of the case. Edit.] 316 THE CONSTITUTION And lest those principles, to which the revo lution thus gave a sanction, should, in process of time, become mere arcana of state, exclusively appropriated, and only known to a certain class of subjects ; the same act, we have just mention- ed, expressly ensured to individuals the right of publicly preferring complaints against the abuses of government, and, moreover, of being provided with arms for their own defence. Judge Black- stone expresses himself in the following terms, in his Commentaries on the Laws of England. " To vindicate these rights, when actually " violated or attacked, the subjects of England " are entitled, in the first place, to the regular " administration and free course of justice in the *' courts of law ; next, to the right of petitioning " the king and parliament for redress of griev- " ances; and, lastly, to the right of having and " using arms for self-preservation and defence." Lastly, this right of opposing violence, in whatever shape, and from whatever quarter it may come, is so generally acknowledged, that the courts of law have sometimes grounded their judgements upon it. I shall relate on this head a fact which is somewhat remarkable. A constable, being out of his precinct, ar- rested a woman whose name was Anne Dekinsy m OF ENGLAND. 317 one Tooly took her part, and, in the heat of the fray, killed the assistant of the constable. Being prosecuted for murder, he alleged, in his defence, that the illegality of the imprison- ment was a sufficient provocation to make the homicide excusable^ and entitle him to the be- nefit of clergy. The jury, having settled the matter of fact, left the criminality of it to be de- cided by the judge, by returning a special ver- dict. The cause was adjourned to the King'* Bench, and thence again to Serjeants' Inn, for the opinion of the twelve judges. Here follows the opinion delivered by chief justice Holt, in giving judgement. " If one be imprisoned upon an unlawful au- " thority, it is a sufficient provocation to all peo- *' pie, out of compassion, much more so when ** it is done under colour of justice; and when " the liberty of the subject is invaded, it is a " provocation to all the subjects of England. A ^^ man ought to be concerned for Magna Charta ■' and the laws ; and if any one against law im- " prison a man, he is an offender against Mag- ^' na Charta." After some debate, occasioned chiefly by Tooly's appearing not to have known that the constable was out of his precinct, seven of the judges were of opinion that the prisoner 318 THE CONSTITUTION was guilty of manslaughter, and he was admit- ted to the benefit of clergy*. But it is with respect to this right of an ul- timate resistance, that the advantage of a free press appears in a most conspicuous light. As the most important rights of the people, with- out the prospect of a resistance which overawes those who should attempt to violate them, are little more than mere shadows, — so this right of resisting, itself, is but vain, when there exist no means of effecting a general union between the different parts of the people. Private individuals, unknown to each other, are forced to bear in silence injuries in which •they do not see other people take a concern. Left to their own individual strength, they trem - ble before the formidable and ever-ready power of those who govern : and as the latter well know (and are even apt to over-rate) the advantages of their own situation, they think that they may venture upon any thing. But w^hen they see that all their actions are exposed to public view, — that, in consequence of the celerity with which all things become com- municated, the whole nation forms, as it were, * See Reports of Cases argued, debated, and adjudged, in Banco Regina, in the tilne of queen Anne. OF EUfGLAND. 319 one continued irritable body, no part of which can be touched without exciting an universal tremor^— \hey become sensible that the cause of each individual is really the cause of all, and that to attack the lowest among the people is to attack the whole people. Here also we must remark the error of those who, as they make the liberty of the people con- sist in their power, so make their power consist in their action. When the people are often called to act in their own persons, it is impossible for them to acquire any exact knowledge of the state of things. The event of one day effaces the no- tions which they had begun to adopt on the preceding day ; and amidst the continual change of things, no settled principle, and, above all, no plans of union, have time to be established among them. — You wish to have the people love and defend their laws and liberty ; leave them, therefore, the necessary time to know what laws and liberty are, and to agree in their opinion concerning them; you wish an union, a coalition, which cannot be obtained but by a slow and peaceable process ; forbear therefore continually to shake the vessel. Nay farther, it is a contradiction, that the people should act^ and at the same time retain 320 THE CONSTITUTION any real power. Have they, for instance, been forced by the weight of public oppression to throw off the restraints of the law, from which they no longer- received protection? — they pre- sently find themselves suddenly become subject to the command of a few leaders, who are the more absolute in proportion as the nature of their power is less clearly ascertained: nay, perhaps, they must even submit to the toils of war, and to military discipline. If it be in tJhe common and legal course of things that the people are called to move, each individual is obliged, for the success of the mea- sures in which he is then made to take a con- cern, to join himself to some party; nor can this party be without a head. The citizens thus grow divided among themselves, and contract the pernicious habit of submitting to leaders. They are, at lengtli, no more than the clients of a certain number of patrons ; and the latter soon becoming able to command the arms of the citizens in the same manner as they at first governed their votes, make little account of a people, with one part of which they know how to curb the other. But when the moving springs of government are placed entirely out of the body of the people, their action is thereby disengaged from all that OF ENGLAND. ' 321 could render it complicated, or hide it from the eye. As the people thenceforward consider things speculatively, and are, if I may be allow- ed the expression, only spectators of the game, they acquire just notions of things ; and as these notions, amidst the general quiet, gain ground and spread themselves far and wide, they at length entertain, on the subject of their liberty, but one opinion. Forming thus, as it were, one body, the peo- ple, at every instant, have it in their power to strike the decisive blow, which is to level every thing. Like those mechanical powers, the great- est efficiency of which exists at the instant which precedes their entering into action, it has an im- mense force, just because it does not yet exert any; and in this state of stillness, but of atten- tion, consists its true momeiitiim. With regard to those who (whether from per- sonal privileges, or by virtue of a commission from the people) are intrusted with the active part of government, as they, in the mean while^ see themselves exposed to public view, and ob- served as from a distance by men free from the spirit of party, and who place in them but a conditional trust, they are afraid of exciting a commotion, which, though it might not prove the destruction of all power, yet would surely ^ts THE CONSTITUTION and immediately be the destruction of their own. And if we might suppose that, through an extraordinary conjunction of circumstances, they should resolve among themselves upon the sacrifice of those laws on which public liberty is founded, they would no sooner lift up their eyes towards that extensive assembly, which views them with a watchful attention, than they would find their public virtue return upon them, and would make haste to resume that plan of con- duct, out of the limits of which they can expect nothing but ruin and perdition. ~ In short, as the body of the people cannot act without either subjecting themselves to some power, or effecting a general destruction, the only share they can have in a government, with advantage to themselves, is not to interfere, but to influence — to be able to act, and not to act. The power of the people is not when they fetrike, but when they keep in awei it is when they can overthrow every thing, that they never need to move; and Manlius included all in four words, when he said to the people of Rome — ( Ostendite helluniy pacem hdbebitis. • liA'u i: r OF ENGLAND. 3^3 CHAPTER XV. Proofs, drawn from Facts, of the Truth of the Princi-' pies laid down in the present Work, — 1. The pecu- liar Manner in which Revolutions have always been concluded in England. It may not be sufficient to have proved by arguments the advantages of the English con- stitution ; it will perhaps be asked, whether the effects correspond to the theory ? To this ques- tion (which I confess is extremely proper) my answer is ready : it is the same which was once made, I believe, by a Lacedaemonian — Come and see. If we peruse the English history, we shall be particularly struck with one circumstance to be observed in it, and which distinguishes most advantageously the English government from all other free governments ; I mean the manner in which revolutions and public commotions have always been terminated in England. If we read with some attention the history of other free states, we shall see that the public dissensions that have taken place in them have constantly been terminated by settlements in Y 2 3£4 THE CONSTITUTION which the interests only of Sifew were really provided for, while the grievances of the mani/ were hardly, if at all, attended to. In England the very reverse has happened; and we find revolutions always to have been terminated by extensive and accurate provisions for securing the general liberty. The histories of the ancient Grecian com- monwealths, and, above all, of the Roman re- public, of which more complete accounts have been left us, afford striking proof of the former part of this observation. What was, for instance, the consequence of that great revolution by which the kings were driven from Rome, and in which the senate and patricians acted as the advisers and leaders of the people? The consequence was, as we find in Dionysius of Halicarnassus, and Livy, that the senators immediately assumed all those powers lately so much complained of by themselves, which the kings had exercised. The execution of their future decrees was intrusted to two magistrates, taken from their own body, and entirely dependent on them, whom they called consuls, and who were made to bear about them all the ensigns of power which had formerly at- tended the kings. Only, care was taken that the axes 9iii& fasces, the symbols of the power OF ENGLAND. 325 of life and death over the citizens, which the senate now claimed to itself, should not be car- ried before both consuls at once, but only before one at a time, for fear, says Livy, of doubling the terror of the people*. Nor was this all: the senators dretv over to their party those men who had the most interest at that time among the people, and admitted them as members into their own body f; which indeed was a precaution they could not pru- dently avoid taking. But the interests of the great men in the republic being thus provided for, the revolution ended. The new senators, as w^ell as the old, took care not to lessen, by making provisions for the liberty of the people, a power which was now become their own. Nay, they presently stretched this power beyond its former tone ; and the punishments which the consul inflicted, in a military manner, on a num- ber of those who still adhered to the former mode of government, and even upon his owa * " Omnia jura (regum), omnia insignia, primi con^ " sules tenuere ; id modo cautum est, ne, si ambo fasces " haberent, duplicatus terror videretur/' Tit* Liv. lib, ii. § 1. f These new senators were called conscripti : Jience the name ofpatres conscriptif afterwards indiscriminately glvcij to the whole senate. — Tit, Lav. ibid. 3Q6 THE CONSTITUTION children, taught the people what they had to ex- pect for the future, if they presumed to oppose the power of those whom they had thus unwarily made their masters. Among the oppressive laws or usages which the senate, after the expulsion of the kings, had permitted to continue, what were most com- plained of by the people, were those by which such citizens as could not pay their debts, with the interest (which at Rome was enormous), at the appointed time, became slaves to their cre- ditors, and were delivered over to them, bound with cords: hence the word nexi, by which slaves of that kind were denominated. The cruelties exercised by creditors on those unfor- tunate men, whom the private calamities, caused by the frequent wars in which Rome was en- gaged, rendered very numerous, at last roused the body of the people: they abandoned both the city and their inhuman fellow-citizens, and retreated to the other side of the river Anio. But this second revolution, like the former^ only procured the advancement of particular persons. A new office was created, called the tribuneship. Those whom the people had placed at their head w hen they left the city, w ere raised to it. Their duty, it was agreed, was, for the future, to protect the citizens: and they were OF :england. 327 invested with a certain number of prerogatives for that purpose. This institution, it must how- ever be confessed, would have, in the issuQ, proved very beneficial to the people, at least for a long course of time, if certain precautions had been taken with respect to it, which would have much lessened the future personal importance of the new tribunes^: but these precautions the latter did not think proper to suggest ; and in regard to those abuses themselves, which had at first given rise to the complaints of the peo- ple, no farther mention was made of themf. As the senate and patricians, in the early ages of the commonwealth, kept themselves closely united, the tribunes, for all their per- sonal privileges, were not able, during the first times after their creation, to gain an admittance either to the consulship, or into the senate, and thereby to separate their condition any farther from that of the people. This situation of theirs, in which it was to be wished they might * Their number, which was only ten, ought to have been much greater ; and they never ought to have ac- cepted the power left to each of them, of stopping, by his single opposition, the proceedings of all the rest. + Many other seditions were i^fterwards raised upon thig same account. 328 THE CONSTITUTION always have been kept, produced at first excel* lent effects, and caused their conduct to answer, in a great measure, the expectation of the peo- ple. The tribunes complained loudly of the exorbitancy of the powers possessed by the se- nate and consuls ; and here we must observe that the power exercised by the latter over the lives of the citizens, had never been yet sub- jected (which will probably surprise the reader) to any known laws, though sixty years had already elapsed since the expulsion of the kings. The tribunes therefore insisted that laws should be made in that respect, w hich the consuls should thenceforward be bound to follow, and that they should no longer be left, in the exer- cise of their power over the lives of the citizens, to their own caprice and w^antonness*. Equitable as these demands were, the senate and patricians opposed them with great warmth, and, either by naming dictators, or calling in the assistance of the priests, or other means, they defeated, for nine years together, all the endea- vours of the tribunes. However, as the latter were at that time in earnest, the senate was at * " Quod populus in se jus dederit, eo consulem usu- ** rum ; non ipsos libidinem ac licentiam suam pro lege " habituros."— Ti^ liv, lib. iii. § 9. OF ENGLAND. 329 length obliged to comply ; and the Lex Tertn- tilla was passed, by which it was enacted, that a general code of laws should be made. These beginnings seemed to promise great success to the cause of the people. But, unfor- tunately for them, the senate found means to have it agreed, that the office of tribune should be set aside during the whole time that the code should be framing. They, moreover, obtained that the ten men, called decemvirs, to whom the charge of composing this code was to be given, should be taken from the body of the patricians. The same causes, therefore, produced again the same effects ; and the power of the senate and consul was left in the new code, or laws of the Twelve Tables, as undefined as before. As to the laws above mentioned, concerning debtors, which never had ceased to be bitterly complained of by the people, and in regard to which some satisfaction ought, in common justice, to have been given them, they were confirmed, and a new terror added to them from the manner in which they were expressed. The true motive of the senate, when they thus trusted the framing of the new laws to a new Icind of magistrates, called decemvirs, was, that, by suspending the ancient office of consul, they might have a fair pretence for suspending also 330 THE CONSTITUTION the office of tribune, and thereby rid themselves of the people, during the time that the important business of fi'aming the code should be carrying on : they even, in order the better to secure that point, placed the whole power of the republic in the hands of those new magistrates. But the senate and patricians experienced then, in their turn, the danger of intrusting rxien with an un- controlled authority. As they themselves had formerly betrayed the trust which the people had placed in them, so did the decemvirs, on this occasion, likewise deceive them. They re- tained by their own private authority the unli- mited power that had been conferred on them, and at last exercised it on the patricians as well as the plebeians. Both parties therefore united against them, and the decemvirs were expelled from the city. The former dignities of the republic were restored, and with them the office of tribune. Those from among the people who had been most instrumental in destroying the power of the decemvirs, were, as it was natural, raised to the tribuneship ; and they entered upon their offices with a prodigious degree of popularity. The senate and the patricians were, at the same time, sunk extremely low in consequence of the long tyranny which had just expired ; and those OF ENGLAND. 331 two circumstances united, afforded the tribunes but too easy an opportunity of making the pre- sent revolution end as the former ones had done, and converting it to the advancement of their own power. They got new^ personal privileges to be added to those which they already possessed, and moreover procured a law to be enacted, by which it was ordained, that the resolutions taken by the comitia trihuta (an assembly in which the tribunes were admitted to propose new laws) should be binding upon the whole commonwealth ; — by which they at once raised to themselves an imperhim in imperio, and ac- quired, as Livy expresses it, a most active wea- pon*. From that time great commotions arose in the republic, which, like all those before them, ended in promoting the power of a few. Proposals for easing the people of their debts, for dividing with some equality amongst the citizens, the lands which were taken from the enemy, and for low- ering the rate of the interest of money, were fre- quently made by the tribunes. And indeed all these were excellent regulations to propose ; but, unfortunately for the people, the proposals of them were only pretences used by the tiibunes * Acerrimum telum. 532 T^HE CONSTITUTION for promoting schemes of a fatal, though some- what remote, tendency to public liberty. Their real aims were at the consulship, the prastorship, the priesthood, and other offices of executive power, which they were intended to control, and not to share. To these views they constantly made the cause of the people subservient. I shall relate, among other instances, the manner in which they procured to themselves an admittance to the office of consul. Having, during several years, seized every opportunity of making speeches to the people on that subject, and even excited seditions in order to overcome the opposition of the senate, they at last availed themselves of the circumr stance of an interregnum (a tiixie, during which there happened to be no pther magistrates in the republic beside themselves), and proposed to the tribes, whom tliey had assembled, to enact the three following laws : — the first, for settling the rate of interest of money ; the se- cond, for ordaining that no citizen should be possessed of more than five hundred acres of land ; and the third for providing that one of the two consuls should be taken from the body of the plebeians. But on this occasion it evi- dently appeared, says Livy, which of the laws in agitation were most agre^sa-ble to the people. OF ENGLAND. 335 and which to those who proposed them ; for the tribes accepted the laws concerning the interest of money, and the lands; but as to that con* cerning the plebeian consulship, they rejected it ; and both the former articles would from that moment have been settled, if the tribunes had not declared, that the tribes were called upon, either to accept, or reject, all their three pro- posals at once*. Great commotions ensued thereupon, for a whole year; but at last the tribunes, by their perseverance in insisting that the tribes should vote on their three rogations jointly, obtained their ends, and overcame both the opposition of the senate, and the reluctance of the people. In the same manner did the tribunes get themselves made capable of filling all other places of executive pow:er, and public trust, in the republic. But when all their views of that kind were accomplished, the republic did not for all this enjoy more quiet, nor was the interest * " Ab tribiinis, velut per interregnum, concilio plebis " habito, apparuit quae ex promulgatis plebi, qua3 latori- " bus, gratiora essent; nam de foenorc atque agro rogati- " ones jubebant, de plebeio consulatu antiquabant (anti- " quis stabant) ; et perfecta utraque res esset, ni tribuni ''* se in omnia simul consulere plebem dfxissent.*' — Tit* lir. lib. vi.§ 39- * ' "' 334 THE CONSTITUTION of the people better attended to, than bcfoi«. New struggles then arose for actual admission to those places, — for procuring them to relatives or friends, — for governments of provinces, and commands of armies. A few tribunes, indeed, did at times apply themselves seriously, out of real virtue and love of their duty, to remedy the grievances of the people ; but their fellow- tribunes, as we may see in history, and the ^Vhole body of those men upon whom the peo- ple had, at different times, bestowed consul- ships, aedileships, censorships, and other digni- ties without number, united together with th^ utmost vehemence against them ; and the real patriots, such as Tiberius Gracchus, Caius Gracchus, and Fulvius, constantly perished in the attempt. I have been somewhat explicit on the effects produced by the different revolutions that hap- pened in the Roman republic, because its his- tory is much known to us, and we have, either in Dionysius of Halicarnassus or in Livy, consi- derable monuments of the more ancient part of it. But the history of the Grecian common- wealths would also have supplied us with a num- l)er of facts to the same purpose. That revo- lution, for instance, by which the P isistratidcc were driven out of Athens^ — that by which the OF ENGLAND. SS5 four hundred^ and afterwards the thirty, were established, — as well as that by which the latter were in their turn expelled, — all ended in se- curing the power of a few. The republic of Syracuse, that of Corcyra, of which Thucydides has ieft us a pretty full account, and that of Florence, of which Machiavel has written the history, also present to us a series of public commotions ended by treaties, in which, as in the Roman republic, the grievances of the peo- pie, though ever so loudly complained of in the beginning by whose who acted as their defend- ers, were, in the issue, most carelessly attended to, or even totally disregarded^. But, if we turn our eyes towards the English history, scenes of a quite different kind will offer to our view; and we shall find, on the contrary, that revolutions in England have al- ways been terminated by making such provi- sions, and only such, as all orders of the peo- ple were really and indiscriminately to enjoy. Most extraordinary facts, these ! and which, from all the other circumstances that accom- panied them, we see, all along, to have been * The revolutions which formerly happened in France, all ended like those above-mentioned. A similar remark may be extended to the history of Spain, Denmark, Swe- den, Scotland, &c. IKI6 ~ THE CONSTITUTION owing to the mipossibility (a point that has been so much insisted upon in former chapters) in which those who possessed the confidence of the people, were, of transferring to themselves any branch of the executive authority, and thus se- parating their own condition from that of the rest of the people. Without mentioning the compacts which were made with the first kings of the Norman line, let us only cast our eyes on Magna Char- ta, which is still the foundation of English liberty. A number of circumstances, which have been described in the former part of this work, concurred at that time to strengthen the regal power to such a degree that no men in the state could .entertain a hope of succeeding in any other design than that of setting bounds to it. How great was the union which thence arose among all orders of the people ! — what extent, what caution, do we see in the provisions made by the Great Charter ! All the objects for which men naturally wish to live in a state of society were settled in its various articles. The judi- cial authority was regulated. The person and property of the individual were secured. The safety of the merchant and stranger was pro- vided for. The higher class of citizens gave up a number of oppressive privileges which they OF ENGLAND. S37 had long accustomed themselves to look upon as their undoubted rights*. Nay, the imple- ments of tillage of the bondman, or slave, were also secured to him : and for the first time, perhaps, in the annals of the world, a civil war was terminated by making stipulations in favour of those unfortunate men to whom the avarice and lust of dominion, inherent in human nature, continued, over the greatest part of the earth, to deny the common rights of mankind. Under Henry the Third great disturbances arose ; and they were all terminated by solemn confirmations given to the Great Charter. Un- der Edward I. Edward II. Edward III. and Richard II. those who were intrusted with the care of the interests of the people lost no oppor- tunity that offered, of strengthening still farther that foundation of public liberty, — of taking all such precautions as might render the Great Charter still more effectual in the event. They had not ceased to be convinced that their cause w^as the same with that of all the rest of the people. Henry of Lancaster having laid claim to the crown, the commons received the law from the * All possessors of lands took the engagement to esta- blish in behalf of their tenants and vassals (erga suos) the same liberties which they demanded from the king. Z 338 THE CONSTITUTION victorious party. They settled the crown upon Henry, by the name of Henry the Fourth ; and added, to the act of settlement, provisions which the reader may see in the second volume of the Parliamentary History of England, Struck with the wisdom of the conditions demanded by tlie commons, the authors of the book just-men- tioned, observe (perhaps with some simplicity) that the commons of England ivere no fools at that time. They ought rather to have said— The commons of England were happy enough to form among themselves an assembly in which every one could propose what matters he pleased, and freely discuss them ; — they had no possibi- lity left of converting either these advantages, or in general the confidence which the people had placed in them, to any private views of their own : they, therefore, without loss of time, en- deavoured to stipulate useful conditions with that power by which they saw themselves at every instant exposed to be dissolved and di- spersed, and applied their industry to ensure the safety of the whole people, as it was the only means they had of procuring their own. In the long contentions which took place between the houses of York and Lancaster, the commons remained spectators of disorders which in those times it was not in their power OF ENGLAND. 339 to prevent ; they successively acknowledged the title of the victorious parties: but whether under Edward the Fourth, under Richard the Third, or Henry the Seventh, by whom those quarrels were terminated, they continually availed themselves of the importance of the ser- vices which they were able to perform to the new-established sovereign, for obtaining effec- tual conditions in favour of the whole body of the people. At the accession of James the First, which, as it placed a new family on the throne of England, may be considered as a kind of revolution, no demands were made by the men who were at the head of the nation, but in favour of general liberty. ■* After the accession of Charles the First, dis- contents of a very serious nature began to take place ; and they were terminated, in the first in- stance, by the act called the Petiiion of Rlghty which is still looked upon as a most precise and accurate delineation of the rights of the people*. * The disorders which took place in the latter part of the reign of that prince seem indeed to contain a complete contradiction to the assertion which is the subject of the present chapter; but they, at the same time, are a no lew convincing confirmation of the truth of the principles laid down in the course of this whole work. The above- z 2 340 THE CONSTITUTION At the restoration of Charles the Second, the constitution being re-established upon its for- mer principles, the former consequences pro- duced by it began again to take place ; and we see at that aera, and indeed during the whole course of that reign, a continued series of precau- tions talcen for securing the general liberty. - Lastly, the great event which took place in the year 1689, affords a striking confirmation of the truth of the observation made in this chapter. At this aera the political wonder again appeared — of a revolution terminated by a series of pub- lic acts, in which no interests but those of the people at large were considered and provided for ; — no clause, even the most indirect, was in- serted, either to gratify the present ambition, or favour the future views, of those who were personally concerned in bringing those acts to a conclusion. Indeed, if any thing is capable of conveying to us an adequate idea of the sound- ness, as well as peculiarity, of the principles on which the English government is founded, it is mentioned disorders took rise from that day in which Charles the First gave up the power of dissolving his par- liament,— -that is, from the day in which the members of that assembly acquired an independent, personal, perma- nent authority, which they soon began to turn against the people who had raised them to it. OF ENGLAND. 341 the attentive perusal of the system of public compacts to which the revolution of the year 1689 gave rise, — of the Bill of Rights with all its different clauses, and of the several acts^ which, till the accession of the house of Hano- ver, were made in order to strengthen it. CHAPTER XVL Second Difference, — The Manner after wJiich the Laws for the Liberty of the Subject are executed in England. The second difference I mean to speak of between the English government and that of other free states, concerns the important object of the execution of the laws. On this article, also, we shall find the advantage to lie on the side of the English government ; and, if we make a comparison between the history of those states, and that of England, it will lead us to the following observation, viz. that though in other free states the laws concerning the liberty of the citizens were imperfect, yet the execution of them was still more defective. In England, on the contrary, not only the laws for the secu- rity of the subject are very extensive in their pro-' visions, but the manner in which they are exe- 542 THE CO?f STITUTION cuted carries these advantages still farthef ; and English subjects enjoy no less liberty from the spirit both of justice and mildness, by which all branches of the government are influenced, thati from the accuracy of the laws themselves. The Roman commonwealth will here again supply us with examples to prove the former part of the above assertion. When I said, in the foregoing chapter, that, in times of public commotion, no provisions were made for the body of the people, I meant no provisions that were likely to prove effectual in the event. When the people were roused to a certain de- gree, or when their concurrence was necessary to carry into effect certain resolutions, or mea- sures, that were particularly interesting to the men in power, the latter could not, with any prudence, openly profess a contempt for the political wishes of the people ; and some decla- rations expressed in general words, in favour of public liberty, were indeed added to the laws that were enacted on those occasions. But these declarations, and the principles which they tended to establish, were afterwards even openly disregarded in practice. Thus, when the people were made to vote, about a year after the expulsion of the kings, that tlie regal government never should be again OF ENGLAl^D. 343 established in Rome, and that those who should endeavour to restore it should be devoted to the gods, an article was added, which, in gertefrf terms, confirmed to the citizens the riglit they bad before enjoyed under the king, of appealing to the people from the sentences of death passed upon them. No punishment (which will sur- prise the reader) was decreed against those who should violate this law ; and indeed the consuls, as we may see in Dionysius of HalicarnassusJ and Livy, concerned themselves but little about the appeals of the citizens, and, in the more than military exercise of their functions, conti- nued to sport with rights which they ought to have respected, however imperfectly and loosely they had been secured. An article, to the same purport with the above, was afterwards also added to the laws of the Twelve Tables ; but the decemvirs, to whom the execution of those laws w^as at first committed, behaved exactly in the same man- ner, and even worse than the consuls had done before them ; and after they were expelled *, * At the time of the expulsion of the decemvirs, a law was also enacted, that no magistrate should be created from whom no appeal could be made to the people (magistratiii sine provocatione. Tit. Liv, lib. iii. §55.) ; by which thepeo* pie expressly meant to abolish the dictatorship: but this law was not better observed than the fonner ones had been. 344 THE CONSTIfUT^ON the magistrates who succeeded them, appear to have been as little tender of the lives of the citi- zens. I shall, out of many instances, select one which will show upon what slight grounds the citizens were exposed to have their lives taken p,way. — Spurius Maslius being accused of en- deavouring to make himself king, was sum- pQoned by the master of the horse to appear before the dictator, in order to clear himself of this somewhat extraordinary imputation. Spu- rius took refuge among the crowd ; the master of the horse pursued him, and killed him on the spot. The people having thereupon expressed a great indignation, the dictator had them called to his tribunal, and declared that Spurius had been lawfully put to death, even though he might be innocent of the crime laid to his charge, for having refused to appear before the dictator, when desired to dp so by the master of the horse"^. About one hundred and forty years after the times we mention, the' law concerning the ap- peal to the people was enacted for the third * Tumultuantem deinde multitudincm, incerta existi- matione facti, ad concionem vocari jussit, et Maliufnjure ccESum pronupciavit, etiamsi regni crimine insmisfuerit, qui %)0€atus a magistro equitunif ad dictatorem non tensset. Tit* J4v* lib. iv. § 15, OF ENGLAND. 345 time. But we do not see that it was better observed in the sequel than it had been before : we find it frequently violated, after that period, by the different magistrates of the republic ; and the senate itself, notwithstanding this same law, at times made formidable examples of the citi- zens. Of this we have an instance in the three hundred soldiers who had pillaged the town of Rhegium. The senate of its own authority or- dered them all to be put to death. In vain did the tribune Flaccus remonstrate against so se- vere an exertion of public justice on Roman citizens; the senate, says Valerius Maximus^ nevertheless persisted in its resolution"^. All these laws for securing the lives of the citi- zens had hitherto been enacted without any men- tion of a punishment against those who should violate them. At last the celebrated Lex Porcia * Val. Max. book ii. ch. 7. This author does not men- tion the precise number of those who were put to death on this occasion: he only says that they were executed fifty at a time, on different successive days : but other authors make the number of them amount to four thousand. Livy speaks of a whole legion — Legio Campana, qum Rhegium occupofveraty ohsessa, deditione facta, securi percussa est — Tit, lAv, lib. xy. Epit. — I have here followed Polybius, who says that ooly three hundred were taken and brought to Rome. 546 THE CONSTITUTION* iiras passed, which subjected to banishment thos« who should cause a Roman citizen to be scourged and put to death. From a number of instanced posterior to this law, it appears that it was not better observed than those before it had been : Caius Gracchus, therefore, caused the Lex Sern^ pronia to be enacted, by which a new sanction Was given to it. But this second law did not secure his own life, and that of his friends, better than the Lex Porcia had done that of his brother, and those who had supported him : indeed, all the events which took place about those times rendered it manifest that the evil was such as was beyond the power of any laws to cure. I shall here mention a fact which affords a remarkable instance of the wantonness with which the Roman magistrates had accus- tomed themselves to take away the lives of the citizens. A citizen, named Memmius, having put up for the consulship, and publicly canvass- ing for the s^ui^e, in opposition to a man whom the tribune Saturninus supported, the latter caused him to be apprehended, and made him expire under blows in the public forum. The tribune even carried his insolence so far (as Cicero informs us) as to give to this act of cru- elty, transacted in the presence of the whole OF ENGLAND. 347 people assembled, the outward form of a lawful act of public justice*. Nor were the Roman magistrates satisfied with committing acts of injustice in their politi- cal capacity, and for the support of the power of that body of which they made a part. Ava- rice and private rapine were at last added to political ambition. The provinces were first op- pressed and plundered. The calamity, in pro- cess of time, reached Italy itself, and the centre of the republic ; till at last the Lex Calpu rnia de repetundls was enacted to put a stop to it. By this law an action was given to the citizens and allies for the recovery of the money extorted from them by magistrates, or men in power ; and * The fatal forms of words (cruciatus carmina) used by the Roman magistrates when they ordered a man to be put to- death, resounded (says Tully in his speech for Rabinus) in the assembly of the people, in which the censors had forbidden the common executioner even to appear, /, lictor, colliga manus. Caput obnubito. Arbnri infelici suspendito. — Memmius being a considerable citizen, as we may conclude from his canvassing with success for the consulship, all the great men in the republic took the alarm at the atrocious action of the tribune*, the senate, the next day, ^issued out its solemn mandate, or form of words, to the consuls, t6 provide that the republic sheuld receive no detriment ; and the tribune was killed in a jMtched battle that was fought at the foot of the Capitol. 348 THE CONSTITUTION the Lex Jiinia afterwards added the penalty of banishment to the obligation of making restitu- tion. But here another kind of disorder arose. The judges proved as corrupt, as the magistrates had been op[)ressive. They equally betrayed, in their own province, the cause of the repub- lic with which they had been intrusted ; and ra- ther chose to share in the plunder of the con- suls, the praetors, and the proconsuls, than put the laws in force against them. New expedients were therefore resorted to, in order to remedy this new evil. Laws were made forjudging and punishing the judges them- selves ; and, above all, continual changes were made in the manner of composing their assem- blies. But the malady lay too deep for common legal provisions to remedy. The guilty judges employed the same resources, in order to avoid conviction, as the guilty magistrates had done ; and those continual changes, at which we are amazed, that were made in the constitution of the judiciary bodies*, instead of obviating the * The judges (over the assembly of whom the proetor usually presided) were taken from the body of the senate, till some years after the last Punic war ; when the Lex Sem- projiia, proposed by Caius S. Gracchus, enacted that they should in future be taken from the equestrian order. The OF ENGLAND. 349 corruption of the judges, only transferred to other men the profit arising from becoming guilty of it. It became a general complaint, so early as the times of the Gracchi, that no man, who had money to give, could be brought to punishment*. Cicero says, that, in his time, the same opinion was universally receivedf ; and his speeches are full of his lamentations on what he calls the levity^ and the infamy^ of the public judgements. Nor was the impunity of corrupt judges the only evil under which the republic laboured. Commotions of the whole empire at last took consul Caepio procured afterwards a law to be enacted, by which the judges were to be taken from both orders, equally. The Lex Servilia soon after put the equestrian order again in possession of the judge?nenis; and, after some years, the Lex Lima restored them entirely to the senate. The Lex Plautia enacted afterwards, that the judges should be taken from the three orders, — the senatorian, eques- trian, and plebeian. The Lex Cornelia, framed oy the dictator Sylla, enacted again, that the judges should be entirely taken from the body of the senate. The Lex Aurelia ordered anew, that they should be taken from the three orders. Pompey made afterwards a change in their number (which he fixed at seventy-five), and in the manner of electing them. And lastly, Caesar restored the judge- ments to the order of the senate. * App. de Bell. Civ. + Act. inVerr. i, § U 350 THE CONSTITUTION place. The horrid vexations, and afterwards the acquittal, of Aquilius, pi'oconsul of Syria, and of some others who had been guilty of the same crimes, drove the provinces of Asia to desperation : and then it was that the terrible war of Mithridates arose, which was ushered ia by the death of eighty thousand Romans, mas- sacred in one day, in various cities of Asia'^. • The laws and public judgements not only thus failed of the end for which they had been established : they even became, at length, new means of oppression added to those which al» ready existed. Citizens possessed of wealth, persons obnoxious to particular bodies, or the few magistrates who attempted to stem the tor- rent of the general corruption, were accused and condemned ; while Fiso, of whom Cicero, in his speech against him, relates facts which make the reader shudder with horror, and Verres, who had been guilty of enormities of the same kind, escaped unpunished. Hence a war arose, still more formidable than the former, and the dangers of which we wonder that Rome was able to surmount. The greatest part of the Italians revolted at once, exasperated by the tyranny of the public judgements ; and , : , ,; * Appian. OF ENGLAND. 351 we find in Cicero, who informs us of the cause of this revolt, which was called the Social War, a very expressive account both of the unfortu- nate condition of the republic, and of the per- version that had been made of the methods taken to remedy it. ' A hundred and ten years * have not yet elapsed (says he) since the law ' for the recovery of money extorted by magi- * strates was first propounded by the tribune ' Calpurnius Piso. A number of other laws * to the same effect, continually more and more ' severe, have followed : but so many persons * have been accused, so many condemned, so ' formidable a war has been excited in Italy ' by the terror of the public judgements, and, * when the laws and judgements have been sus- * pended, such an oppression and plunder of our * allies have prevailed, that we may truly say, 'i5 it is not by our own strength, but by the weak- ' ness of others, that we continue to exist*.' I have entered into these particulars with regard to the Roman commonwealth, because the facts on which they are grounded are re- markable of themselves, and yet no just conclu-- sion can be drawn from them, unless a series of them were presented to the reader. Nor are * See Cic. i>. So much regularity has even (from all the cir- cumstances above mentioned) been introduced into the operations of the executive power in England, — such an exact justice liave the peo- ple been accustomed, as a consequence, to ex- pect from that quarter, that even the sovereign, for his having once suffered himself personally to violate the safety of the subject, did not escape severe censure. The attack made, by order of Charles the Second, on the person of sir John Coventry, filled the nation with astonish- ment ; and this violent gratification of private passion, on the part of the sovereign (a piece of jself-indulgence with regard to inferiors, to w^hich whole classes of individuals in certain countries almost think that they have a right), excited a general ferment. " This event," says Bishop Burnet, " put the house of commons in a furi- " ous uproar. — It gave great advantages to all " those who opposed the court; and the names *^ of the court and coimtrj/pdiYty, which till now " had seemed to be forgotten, were revived^ 1^ » * See Burnet's History, vol. i. anno I669, — An act of parli:unent was made on this occasion, for giving a farther 364 THE CONSTITUTION These are the Hmitations that have been set, in the English government, on the operations of the executive power : limitations to which we find nothing comparable in any other free states, ancient or modern; and which are owing, as we have seen, to that very circumstance which seemed at first sight to prevent the possibility of them, — I mean the greatness and unity of that power; the effect of which has been, in the event, to unite, upon the same object, the views and efforts of all orders of the people. From this circumstance, that is, the unity and peculiar stability of the executive power in Eng- land, another most advantageous consequence has followed, that has been before noticed, and which it is not improper to mention again here, as this chapter is intended to confirm the prin- ciples laid down in the former ones ; — I mean the unremitted continuance of the same general union among all ranks of men, and the spirit of mutual justice which thereby continues to be diffused through all orders of subjects. Though surrounded by the many boundaries that have just now been described, the crown, we must observe, has preserved its prerogative extent to the provisions before made for the personal secu- rity of the subject ; which is still called the Coventry act. OF ENGLAND. 365 undivided : it still possesses its whole effective strength, and is only tied by its own engage- ments, and the consideration of what it owes to its dearest interests. The great, or wealthy men in the natiort>'' who, assisted by the body of the people, hav6 succeeded in reducing the exercise of its autho- rity within such well-defined limits, can have no expectation that it will continue to confine itself to them any longer than they themselves conti- nue, by the justice of their own conduct, to de- serve that support of the people, which alone can make them appear of consequence in the eye of the sovereign, — no probable hopes that the crown will continue to observe those laws by which their wealth, dignity, liberty, are pro- tected, any longer than they themselves also con- tinue to observe them. Nay more, all those claims of their rights which they continue to make against the crown are encouragements which they give to the rest of the people to assert their own rights against them. Their constant opposition to all arbi- trary proceedings of that power is a continual declaration they make against any acts of op- pression which the superior advantages they enjoy might entice them to commit on their inferior fellow-subjects. Nor was that severe 366 THE CONSTITUTION censure, for instance, which they concurred in passing on an unguarded violent action of their sovereign, only a restraint put upon the per- sonal actions of future English kings; no, it was a much more extensive provision for the securing of public liberty; — it was a solemn engagement entered into by all the powerful men in the state to the whole body of the peo- ple, scrupulously to respect the person of the lowest among them. And indeed the constant tenor of the conduct, even of the two houses of parliament, shows us that the above observations are not matters of mere speculation. From the earliest times we see the members of the house of commons to have been very cautious not to assume any di- stinction that might alienate from them the af- fections of the rest of the people*. Whenever those privileges which were necessary to them * In all cases of public offences, down to a simple breach of the peace, the members of the house of commons have no privileges whatever above the rest of the people : they may be committed to prison by any justice of the peace ;- and are dealt with afterwards in the same manner as any other subjects. With regard to civil matters, their [only privilege is to be free from arrests during the time of a session, and forty days before, and forty days after; bufc they may be sued, by process against their goods^ for an^ just debt during that time. OF ENGLAND. S67 for the discharge of their trust have proved burdensome to the community, they have re-^ trenched them. And those of their members who have applied either these privileges, or in general that influence which they derived from their situation, to any oppressive purposes, they themselves have endeavoured to bring to pu- nishment. Thus, we see, that, in the reign of James tho First, sir Giles Montpesson, a member of th^ house of commons, having been guilty of mono* polies, and other acts of great oppression on the people, was not only expelled, but impeached and prosecuted with the greatest warmth by the house, and finally condemned by the lords tQ be publicly degraded from his rank of a knight, held for ever an infamous person, and impri-^ soned during life. In the same reign, sir John Benet, who was also a member of the house of commons, hav- ing been found to have been guilty of corrupt practices, in his capacity of judge of the Prero- gative Court of Canterbury (such as taking exorbitant fees, and the like), was expelled th^ house, and prosecuted for those offences. In the year 1641, Mr. Henry Benson, mem bei* for Knar^sborough, having been detected 368 THE CONSTITUTION in selling protections, experienced likewise the indignation of the house, and was expelled. In fine, in order, as it were, to make it com- pletely notorious, that neither the condition of representative of the people, nor even any de- gree of influence in their house, could excuse any one of them from strictly observing the rules of justice, the commons did on one occasion pass the most severe censure they had pow er to inflict, upon their speaker himself, for having, in a single instance, attempted to convert the dis- charge of his duty, as speaker, into the means of private emolument. Sir John Trevor, speaker of the house of commons, having, in the sixth year of the reign of king William, received a thousand guineas from the city of London, " as a gratuity for the trouble he had " taken with regard to the passing of the Orphan " Bill,'' was voted guilty of a high crime and misdemeanor, and expelled the house. Even the inconsiderable sum of twenty guineas which Mr. Hungerford, another member, had been weak enough to accept on the same score, was looked upon as deserving the notice of the house ; and he was likewise expelled*. * Other examples, of the attention of the house of com- mons to the conduct of their members, might be produced, OF ENGLAND, ^9t If w^ turn our vi^^ towards th^ house of lords, we shall find that they have also con* stantly t£<,ken care that tUeir peculiar privileges should qot prove impediments to the common justice which is due to the rest of the people*. They have constantly agreed to every just pro- ppsal that has been made to them on that sub- ject by th^ commons : and indeed, if we con^ §id^r the nunierous and oppressive privileges claimed by the nobles in most other countries, find the vehenient spirit with which they are commonly asserted, w^e shall think it no small praise to the body of the nobility in England (and also to the nature of that government of f ither before, or after, that which is mentioned here. The reader may, for instance, see the relation of their proceed^ ings in the affair of the South-Sea Company scheme ; and ^ few years after, in that of the Charitable Corporation, ^-^2^. fraudulent scheme, particularly oppressive to the poor, for which several members were expelled. ^ In case of a public offence, or even a simple breach p^ the peace, a peer may be committed till he fii>ds b^il, by ^ny justice of tl^e peace: and pe.ers ^r^ to \q tried by the common course of law, for all offences under felony. With regard to civil matters, they are at all times free from arrests; but execution may be had against their ef- fects, in the same manner as against tiiose of other sub- j«et3, 2 B 370 THE CONSTITUTION which they make a part), that it has been by their free consent that their privileges have been confined to what they now are ; that is to say, to no more, in general, than what is necessary to the accomplishment of the end and constitu- tional design of that house. In the exercise of their judicial authority with regard 'to civil matters, the lords have manifested a spirit of equity nowise inferior to that which they have shown in their legislative capacity. They have, in the discharge of that function (which of all others is so liable to cre- ate temptations), shown an incorrruptness really superior to what any judicial assembly in any other nation can boast. Nor do 1 think that I run any risque of being contradicted, uhen I say, that the conduct of the house of lords, in their civil judicial capacity, has constantly been such as has kept them above the reach qf even suspicion or slander. Even that privilege which they enjoy, of ex- clusively trying their OAvn members, in case of any accusation that may affect their lives (a pri- vilege which we might at first sight think repug- nant to the idea of a regular government, and even alarming to the rest of the people), has constantly been rendered, by the lords, subser- OF E^'^GLAND. 371 vient to the purpose of doing justice to their fellow-subjects ; and if we cast our eyes either on the collection of the State Trials, or on the History of England, w^e shall find very few ex- amples, if any, of a peer, really guilty of the offence laid to his charge, that has derived any advantage from his not being tried by a jury of commoners. Nor has this just and moderate conduct of the tv/o houses of parliament, in the exercise of their powers (a moderation so unlike w^hat has been related of the conduct of the powerful men in the Roman republic), been the only happy consequence of that salutary jealousy which those two bodies entertain of the power of the crown. The same motive has also engaged them to exert their utmost endeavours to put the courts of justice under proper restraints ; a point of the highest importance to public liberty. They have, from the earliest times, preferred complaints against the influence of the crown over these courts, and at last procured laws to be enacted by which such influence has been entirely prevented ; all which measures, we must observe, were at the same time strong declarations that no subjects, however exalted ^heir rank might be, were to think themselves 372 THE CONSTITUTION exempt from submitting to the uniform course of the law, or hope to influence or over-awe it. The severe examples which they have united to make on those judges who have rendered them- selves the instruments of the passions of the so- vereign, or of the designs of the ministers of the crown, are also awful warnings to the judges who have succeeded them, never to attempt to deviate in favour of any, the most powerful indivi- duals, from that straight line of justice which the joint wisdom of the legislature has once marked out to them. This singular situation of the English judges, relatively to the three constituent powers of the state (and also the formidable support which they are certain to receive from them as long as they continue to be the faithful ministers of jus- tice), has at last created such an impartiality in the distribution of public justice in England, has introduced into the courts of law the practice of such a thorough disregard to either the influence or wealth of the contending parties, and procured to every individual, both such an easy access to these courts, and such a certainty of redress, as ?ire not to be paralleled in any other govern- ment. — Philip de Comines, so long as three hundred years ago, commended in strong terms OF iENGLAKD. 373 the exactness with which justice was done in England to all ranks of subjects^ ; and the im- partiality with which the same is administered in these days, will, with still more reason, ex* icite the surprise of every stranger who has ah opportunity of observing the customs of this countfyf. * See page 40 of this work. t Soon after I came to England for the first time (if the reader will give me leave to make mention of myself in this case), an action was brought in a court of justicfe against a prince very nearly related to the crown ; and a noble lord was also, much about that time, engaged in a law-suit for the property of some valuable lead-mines in Yorkshire. I could not but observe that in both these cases a decision was given against the two most powerful parties; though I wondered but little at this, because I had before heard much of the impartiality of the law proceedings in England, and was prepared to See instances of that kind. But what I was much surprised at was, that nobody ap- peared to be in the least so, even at the strictness with which the ordinary course of the law had, particularly in the former case, been adhered to, — and that those proceed- ings which I was disposed to consider as great instances of justice, to the production of which some circumstances pe- culiar to the times, at least some uncommon virtue or spirit on the part of the judges, must have more or less co-ope- rated, were looked upon by all those whom I heard speak about it, as nothing more than the common and expected course of things. This circumstance became a strong in- ducement to me to inquire into the nature of a government by which such effects were produced. -374 THE COIS^STIJUTION Indeed to such a degree of impartiality has the administration of public justice been brought in England, that it is saying nothing beyond the exact truth, to affirm that any violation of the laws, though perpetrated by men of the most extensive influence — nay, though committed by the special direction of the very first servants of the crown — will be publicly and completely re- dressed. And the very lowest of subjects will obtain such redress, if he has but spirit enough to stand forth, and appeal to the laws of his country. — Most extraordinary circumstances these ! which those who know the difficulty of establishing just laws among mankind, and of providing afterwards for their due execution, only find credible because they are matters of fact, and can begin to account for, only when they look up to the constitution of the govern- ment itself; that is to say, when they consider the circumstances in which the executive power, or the crown, is placed in relation to the two bodies t|iat concur with it to form the legisla- ture, — the circumstances in which those two as- semblies are placed in relation to the crown, and to each other, — and the situation in which all the three find themselves with respect to the w hole body of the people*. * The assertion above made, with respect to the impar- tiality with which justice is, in all cases, administered in OF ENGLAND. S7S in fine, a very remarkable circumstance in tM^ English government (and which alone England, not being of a nature to be proved by alleging single facts, I have entered into no particulars on that ac- count. However, I will subjoin two cases, which, I thinkj* cannot but appear remarkable to the reader. ' The first is the case of the prosecution commenced in the year 1763, by some journeymen printers, .against the king's messengers, for apprehending and imprisoning them for a short time, by virtue of a general warrant from the secretaries of state; and that which was afterwards carried on by another private individual against one of the secre- taries themselves. In these actions, all the ordinary, forms of proceedings used in cases of actions between pri-; vate subjects, were strictly adhered to ; and both the ser cretary of state, and the messengers, were, in the end, con- demned. Yet, which it is proper the reader should observe, from all the circumstances that accompanied this affair, it is difficult to propose a case in which ministers could, of themselves, be under greater temptations to exert an undue influence to hinder the ordinary course of justice. Nor were the acts for which those ministers were condemned acts of jDvident oppression, which nobody could be found to justify. They had done nothing but follow a practice, of which they found several precedents, established in their offices: and their case, if I am well informed, was such that most individuals, under similar circumstances, would have thought themselves authorised to have acted as they had done. The second case I propose to relate, affords a singular in- stance of the confidence with which all subjects in England claim what they think their just rights, and of the certainty 376 THE C'ONStltU^tON evinces something peculiar and exeelllBttt itl its nature), is that spirit of Extreme mildness with which justice, in criminal cases, is administered in England; a point with regard to w^hich England differs from all other countries in the world. When we consider the punishments in use in thie other states of Europe, w^e wonder how men can be brought to treat their fellow-crea- tures with so much cruelty ; and the bare con- ^\'ith which the remedies of the law are in all cases open to them. The fact I mean, is the arrest executed in the reigii of queen Anne, in the year 1708, on the person of the Russian ambassador, by taking him out of his coach for the suhi of fifty pounds. — And the consequences that followed this fact are still more reiiiarkable. The czar highly re- sented the affront, and demanded that the sheriff of Mid- dlese5c, and all others concerned in the arresifc, should be punished with instant death. " But the queen*' (to the amazement of that despotic court, says judge Blackstone, from whom I borrow this fact) " directed the secretary of ** state to inform him that she could inflict no punishment *' iipon any, the meanest of her subjects, unless Avarranted " by the law of the land.''— An act was afterwards passed to free froin arrests thie persons of foreign ministers, and such of their servants as they have delivered a list of to {tie secretary of state. A copy of this act, elegantly engrossed and illuminated, continues judge Blackstone, was sent to Moscow, arid an ambassador extraordinary commissioned to delivier it. sideration of those punishments would suffici- ently convince us (if we did not know the fact from other circumstances) that the men in those states who frame the kws^ and preside over their execution, have little apprehension that either they, or their friends, will ever fall victims to those laws which they thus rashly establish. In the Roman republic, circumstances of the same nature with those just mentioned were also productive of the greatest defects in the kind of criminal justice which took place in it. That class of citizens who were at the head of the republic, and who knew how mutually to exempt each other from the operation of any toO severe laws or practice, not only allowed them- selves great liberties, as we have seen, in dis- posing of the lives of the inferior citizens, but had also introduced, into the exercise of the il- legal powers they assumed to themselves in that respect, a great degree of cruelty*. * The common manner in which the senate ordered ci- tizens to be put to death, was by throwing them headlong from the top of the Tarpeian rock. The consuls, or other particular magistrates, sometimes caused citizens to expirfc upon a ci-oss ; or, which was a much more common c^s^, ordered them to be beaten to death, with their heads fasten- ed between the brahches of a fork ; which thty catted ccr- vicemfurccB inserere. 57$' THE CONSTITUTION Nor were things more happily conducted in the Grecian republics. From their democra- tical nature, and the frequent revolutions to which they were subject, we naturally expect to, find that authority used with mildness, whiclij' those who enjoyed it must have known to have^ been precarious ; yet such were the effects of thcr violence attending those very revolutions, that ^^ spirit both of great irregularity and cruelty hatf? taken place among the Greeks, in the exercise of the power of inflicting punishments. Thd very harsh laws of Draco are well known, of which it was said that they were not written with ink, but with blood. The severe laws of the Twelve Tables among the Romans were in great part brought over from Greece. And it was an opinion commonly received in Rome, that the cruelties practised by the magistrates on the citizens were only imitations of the examples which the Greeks had given them *. In fine, the use of torture, that method of administering justice, in which folly may be said * Ca?sar expressly reproaches the Greeks with this fact in his speech in favour of the accomplices of Catiline, 'which Sallust has transmitted to us — Eodcm illo tempore, GrcBcicB morem imitati (majores nostri), verberibus animiujL- 'certebant in cives ; dc rondemnatis summtim suppHcium sumc- bant. OF ENGLAND. 3/9 to. be added to cruelty, had been adopted by the Greeks in consequence of the same causes which had concurred to produce the irregularity of their criminal justice. And the same prac- tice continues, in these days, to prevail on the continent of Europe, in consequence of that general arrangement of things which creates there such a carelessness about remedying the abuses of public authority. ^ JBut the nature of that same government which has procured to the people of England all the advantages we have before described, has, with still more reason, freed them from the most op- pressive abuses which prevail in other countries. That wantonness in disposing of the dearest rights of mankind, those insults upon human nature, of which the frame of the governments established in other states unavoidably becomes more or less productive, are entirely banished from a nation which has the happiness of hav- ing its interest guarded by men who continue to be themselves exposed to the pressure of those laws which they concur in making, and of every tyrannic practice which they suffer to be intro- duced, — by men whom the advantages which they possess above the rest of the people render only more exposed to the abuses they are ap- 380 THE CONSTITUTION pointed to prevent, only more alive to the dan- gers against which it is their duty to defend the community*. Hence we see that the use of torture has, from the earliest times, been utterly unknown in England. And all attempts to introduce it, whatever might be the power of those who made them, or the circumstances in which they renewed their endeavours, have been strenuous- ly opposed and defeated f . From the same cause also arose that remark- able forbearance of the English laws to use any cruel severity in the punishments which experi- ence showed it was necessary for the preserva- tion of society to establish:}:; and the utmost * Historians take notice that the commons, in the reign of Charles 11., made haste to procure the abolition of the old statute, De Hceretico comburendo (for burning Heretics), as soon as it became publicly known that the presumptive heir to the crown was a Roman-catholic. Perhaps they would not have been so diligent and earnest, if they hfd not been fully convinced that a member of the house of commons, or his friends, might be brought to trial as ea- sily as any other individuals among the people, so long as an express and written law could be produced against them. t See the two notes in page 180 and 181 of this work. J Was not the practice of burning a fellow-creature the most cruel seventy that could be exercised ? Yet this hor- rible inhumanity long prevailed in England in the case of OF ENGLAND. 381 vengeance of those laws, even against the most enormous offenders, never extends beyond the simple deprivation of life'^'. "^^'Nay, so anxious has the English legislature been to establish mercy, even to convicted of- fenders, as a fundamental principle of the go- vernment of England, that they made it an ex- press article of that great public compact which was framed at the important aera of the Revolu- tion, that " no cruel and unusual punishments" should be enforced^. — They even endeavoured, by adding a clause for that purpose to the oath which kings were thenceforward to take at their supposed heresy, and, to a much later period, against fe- males condemned for treason, or the murder of their hus- bands. Edit. * A very singular instance occurs in \h^ history of thf year l605, of the care of the English legislature not to suf- fer precedents of cruel practices to be introduced. Dur- ing the time that those concerned in the gunpowder-plot were under sentence of death, a motion was made in the ^Quse of commons to petition the king, that the execution might be stayed, in order to consider of some extraordi* nary punishment to be inflicted upon them : but this mo- tion was rejected. A proposal of the same kind was also made in the house of lords, where it was dropped. — See the Parliamentary History of England, vol. v. anno l605. ■f See the Bill of Rights, Art. x. — " Excessive bail ought " not to be required:, nor excessive fines imposed ; nor '* cruel and unusual punishments inflicted.'^ 382 THE CONSTITUTION coronation, as it were to render it an everlast- ing obligation of English kings, to make justice to be " executed with mercy*." '*^ CHAPTER XVII. A more inward View of the English Governmerii than has hitherto been offei'ed to the Reader in the Course of this Work. — Fery essential Differences between the English Monarchy^ as^ a Monarchy, and all those with which we are acquainted. 1 HE doctrine constantly maintained in this work, and which has, I think, been sufficiently supported by facts and comparisons drawn from the history of other countries, is, that the re- markable liberty enjoyed by the English nation * Those same dispositions of the English legislature which have led them to take such precautions in favour even of convicted offenders, have still more engaged them to make provisions in favour of such persons as are only suspected and accused of having committed offences of any kind. Hence the zeal with which they have availed them- selves of every important occasion, — such, for instance, as that of the Revolution, — to procure new confirmations to be given to the institution of the trial by jury, to the laws on imprisonments, and in general to that system of criminal jurisprudence of which a description has been given in thi6 first part of this work. OF ENGLAND. 383 is essentially owing to the impossibility under which their leaders, or in general all men of power among them, are placed, of invading and transferring to themselves any branch of the go- verning executive authority ; which authority is exclusively vested, and firmly secured, in thq crown. Hence the anxious care with which those men continue to watch the exercise of that authority. Hence their perseverance in ob- serving every kind of engagement which them- selves may have entered into wdth the rest of the people. But here a consideration of a most important kind presents itself: How comes the crowm in England thus constantly to preserve to itself (as w^e see it does) the executive authority in the state, and moreover to preserve it so completely, as to inspire the great men in the nation with that conduct so advantageous to public liberty, which has just been mentioned ? These are ef- fects which we do not find, upon examination, that the power of crowns has hitherto been able to produce in other countries. In all states of a monarchical form, we indeed see that those men whom their rank and wealth, or their personal power of any kind, have raised above the rest of the people, have formed com- binations among themselves to oppose the power ^84 'fH^ COKSTITUTION of X\\(^ ixionarch. But their views, ly^ must pb- s^rve, in forming thes^ cpiT^binations, vfexeixot by any Ri^ans to set general and impartial limi- tation's pn the soyereigq authority. They en- deaypui'ed to render themselves entirely ind^-^ pendent of that authority; or even utterly tQ ^lii^ilate it, according to circuiristances. Thus we see that in all the states of ancient Greece, the kings were at last destroyed and exterminated. The same event happened in Italy, where in remote times ther^ existed for a while several kingdoms, as we learn both from the ancient historians and poets. And in Rome, we even know the manner and circumstances in Avhich such a revolution was brought about. la moi'e modern times, we see the nume- rous monarchical sovereignties (which had been raised in Italy on the ruins of the Roman em- pu'e) successively destroyed by powerful fac- tions; and events of much the same nature have at different times taken place in the king- doms established in the other parts of Europe. In Sweden, Denmark, and Poland, for in-i stance, we find the 7iobles reducing their sove- reigns to the condition of simple presidents over their assemblies,-— of mere ostensible heads of tlie government. In Germany and in France, countries where OF ENGLAND. 385 the dfionarchs, being possessed of considerable demesnes, were better able to maintain their in- dependence than the princes just mentioned, the nobles waged war against them, sometimes singly and sometimes jointly; and events si- milar to these have successively happened in. Scotland, Spain, and the modern kingdoms of Italy. In fine, it has only been by means of standing armed forces that the sovereigns of most of the kingdoms we have mentioned have been able, in a course of time, to assert the prerogatives of the crown. And it is only by continuing to keep up such forces, that, like the eastern monarchs, and indeed like all the monarchs that ever ex- isted, they continue to he able to support their authority. How therefore can Ibc crown of England, without the assistance ♦>/ any armed force, main- tain, as it does, itsnuuierous prerogatives? How can it, under such circumstances, preserve to itself the w hole executive power in the state ? For here we must observe, the crown in Eng- land does not derive any support from what regular forces it has at its disposal; and if we doubted this fact, we need only look to the astonishing subordination in which the military rs kept to the civil power, to become convinced 2 C 3S6* THE CONSTITUTION that an English king is not indebted to his army for the preservation of his authority*. If we could suppose that the armies of the kings of Spain or of France, for instance, were, through some very extraordinary circumstance, all to vanish in one night, the power of those sovereigns, we must not doubt, would, in six months, be reduced to a mere shadow. They would immediately behold their prerogatives, however formidable they may be at present, in- vaded and dismembered^ : and supposing that regular governments continued to exist, they would be reduced to have little more influence in them than the doges of Venice or of Genoa possess in the governments of those republics J; How, therefore, — to repeat the question onc^ more, which is one of the most interesting that can occur in politics, — how can the crown in England, without the assistance of any armed force, avoid those dangers to which all other sovereigns are exposed ? * Henry VIIL the most absolute prince, perhaps, who ever sat upon a throne, kept no standing army. t As was the case in the several kingdoms into which the Spanish monarchy was formerly divided j and, iaiii^o very remote times, in France itself, ^utW. X Or than the kings of Sweden were allowed to enjoy, before the last revolution in that country — [that which took place in 1772.] OF ENGLAND. 387 How can it, without aiiy such force, accom- plish even incomparably greater works than those sovereigns, with their powerful armies, are, we find, in a conditioii to perform ? — How can it bear that universal effort (unknown in other monarchies), which, we have seen, is con- tinually and openly exerted against it ? How can it even continue to resist this effort so power- fully as to preclude all individuals whatever from entertaining any views besides those of setting just and general limitations to the exercise of its authority? How can it enforce the laws upon all subjects, indiscriminately, without in- jury or danger to itself? How can it, in fine, impress the minds of all the great men in the state with so lasting a jealousy of its power, as to necessitate them, even in the exercise of their undoubted rights and privileges, to continue to court and deserve the affection of the rest of the people ? Those great men, I shall answer, who evert in quiet times prove so formidable to other mon- archs, are in England divided into two assem- blies ; and such, it is necessary to add, are the principles upon which this division is made, that from it result, as necessary consequences, the solidity and the indivisibility of the power of the crowfi. iJiiv.i g c 2 38^ THE CONSTITUTION The reader may perceive thatl have led hhn, in tlie course of this work, much beyond tlie line within which writers on the subject of govern-' ment have confined themselves ; or father, that I have follo\yed a track entirely different from that which those writers have pursued. But as the observation just made, on the stability of the power of the crown in England, and the cause of it, is new in its kind, so do the principles from which its truth is to be demonstrated totally differ from what is commonly looked upon as the foundation of the science of politics. To lay those principles here before the reader, in a manner completely satisfactory to Wm, would lead us into philosophical discussions on what really constitutes the basis of governments and power amongst mankind, both extremely long, and in a great measure foreign to the subject of this book. I shall therefore content myself with proving the above observations by facts ; which is more, after all, than political writers usually undertake to do \\ ith regard to their specula- tions. As I chiefly proposed to show that the exten- sive liberty the English enjoy is the result of the peculiar frame of their government, and occa- sionally to compare the sariie with the repub- lican form, I even had at first intended to con- OF ENGLANiy.HT 389 fine myself to that circumstance, which both con- stitutes the essential difference between those two forms of government, and is the immediate cause of English liberty, — I mean the having placed all the executive authority in the state out of the liands of those in whom the people trust. With regard to the remote cause of that same liberty, that is to say, the stability of the power of the crown, the singular solidity, withr out the assistance of any armed force, by which this executive authority is so secured, I should perhaps have been silent, had I not found it absolutely necessary to mention the fact in this place, in order to obviate th^ objections which the more reflecting part of readers might other- wise have made, both to several of the obser- vations before offered to them, and to a few- others which are soon to follow. Besides, I shall confess here, 1 have been se- veral times under apprehensions, in the course of this work, that the generality of readers, misled by the similarity of names, might put too extensive a construction upon w^hat I said with regard to the usefulness of the power of the crowTfi in England ; — that they might accuse or suspect me, for instance, of attributing the supe- lior advantages of the English mode of govern- ment over the republican form, merely to its ap- 390 THE CONSTITUTJON preaching nearer to the nature of the monarchies established in the other parts of Europe, and of looking upon every kind of monarchy as prefer- able in itself to a republican government ; — an opinion which I do not by any means, or in any degree, entertain : I have too much affection, or (if you please) prepossession, in favour of that form of government under which I was bom ; and, as I am sensible of its defects, so do I know how to set a value upon the advantages by which it compensates for them. I therefore have, as it were, made haste to avail myself of the first opportunity of explain- ing my meaning on this subject, — of indicating that the power of the crown in England stands upon foundations entirely different from those on which the same power rests in other coun- tries, — and of engaging the reader to observe (which for the present will suffice), that, as the English monarchy differs, in its nature and main foundations, fi'om every other, so all that is said here of its advantages is peculiar and confined to it. But to come to the proofs (derived from facts) of the solidity accruing to the power of the erowii in England, from the co-existence of the two assemblies which concur to form the Eng- lish parliament, I shall first point out to the OF ENGLAND. 391 reader several open acts of these two houses, by which they have by turns effectually defeated the attacks of each other upon its prerogative. Without looking farther back for examples than the reign of Charles the Second, we see tliat the house of commons had, in that reign, begun to adopt the method of adding (or tack- ing, as it is commonly expressed) such bills as they wanted more particularly to have passed, to their money bills. This forcible use of their undoubted privilege of granting money, if it had been suffered to grow into common prac- tice, would have totally destroyed the equili- brium that ought to subsist between them and the crown. But the lords took upon themselves the task of maintaining that equilibrium : they complained with great warmth of the several precedents that were made by the commons, of the practice we mention : they insisted that bills should be framed '^ in the old and decent ^' way of parliament ;' and, at last made it a standing order of their house, to reject, upon the sight of them, all bills that are tacked to money bills. Again, about the thirty-first year of the same reign, a strong party prevailed in the house of commons ; and their efforts were not entirely 39^ THE CONSTITUriON confined, if wenaay credit' -the historians 6f those times, to serving their constituents faith- fuUy^ and providing for the welfare of the state. Among other bills ivhich they proposed in their house, they carried one to exclude from the crovv^n the immediate heir to it ; an affair this, of a very high nature, and with regard to which it may well be questioned whether the legisla- tive assemblies have a right to form a resolu-^ tion, without the express and declared concur- rence of the body of the people. But both the crown and the nation were delivered from the danger of establishing such a precedent, by the interposition of the lords, who threw out the bill on the first reading. In the reign of king William the Third, a few years after the Revolution, attacks were made upon the crown from another quarter. A strong party was formed in the house of lords ; and, as we may see in Eishop Burnet's History of his Own Times, they entertained very deep designs. One of their views, among others, was to abridge the royal prerogative of calling parliaments, and judging of the proper times of doing it*. They * Tpj'ey,' fec^cIeV,*'pT6pose(f to Have all' rhoney' felJs' stop- ped in tlieir hoiis<',' till they h'ad procured tfrc! nglit of tax- ing, themselves, their o^Vn estatts, and io huvc a commit- OF ENGLAND. 393 accordingly framed and carried in their house a bill for ascertaining the fitting of parliament every year: but the bill, after it had passed in their house, was rejected by the commons*. "'Again, we find, that, a little after tlie acces- sion 6f king George the First, an attempt was made by a party in the house of lords, to wrest from the crown a prerogative which is one of its jBnest flowers, and is, besides, the only check it has on the dangerous views which that house (which may stop both money bills and all other bills) might be brought to entertain ; I mean the right of adding new members to it, and judging of the times when it may be necessary to do so. A bill was accordingly presented, and carried, in the house of lords, for limiting the members of that house to a fixed number, beyond which it should not be increased ; but after great pains taken to ensure the success of this bill, it was at last rejected by the commons. the of lords, antl a certain number of the commons, ap- pointed to confer together concerning the state of the na- tion ; " which committee (says Bishop Burnet) would soon " hdve grown to have been a council af^tate^^^idt' would " have brought all aiTviirs under their inspection, and never ** had been proposed but when the nation was ready to " break into civil wars." — See Burnet's History, anno 1693. * Nov. 08, 1693. '■0tk '^^^ CONSTITUTION" ^ .. In fine, the several attempts which a majority [ in the house of commons have in their turn made fc jto restrain, farther than it now is, the influence of the crown arising from the distribution , erf preferments and other advantages, have been checked by the house of lords, and all place- bills have, from the beginning of this century^', constantly miscarried in that house f. Nor have these two powerful assemblies only succeeded in thus warding off the open attacks of each other on the power of the crown. Their co-existence, and the principles upon which they are severally framed, have been productive of another effect much more extensive, though at first less attended to, — I mean the preventing even the making of such attacks ; and in times too, when the crown was of itself incapable of defending its authority; the views of each house destroying, upon these occasions, the opposite * Now the last that is, the eighteenth. Edit. + This assertion is too general ; for, by a statute of the sixth year of queen Anne, persons holding any office under the crown, created since 1705, are obliged to vacate their seats, without hoAug absolutely certain of re-election; It may be added, though contractors are not(in strictness of speech) place-men, that, with the sam.e view of restraining the in- fluence of the crown, they have been declared ineligible io aseatin parliament, by an act of the twenty-second year of the present reign. Edit. OF ENGLAND. 395 views of the other, like those positive and nega- tive equal quantities (if I may be allowed the comparison), which destroy each other on the op- posite sides of an equation. Of this we have several remarkable examples : for instance, when the sovereign has been a mi- nor. If we examine the history of other na- tions, especially before the invention of standing armies, we shall find that the event we mention never failed to be attended with open invasions of the royal authority, or even sometimes with complete and settled divisions of it. In Eng- land, on the contrary, whether we look at the reign of Richard II. or that of Henry VI. or of Ed^^ard VI. we shall see that the royal autho- rity was quietly exercised by the councils that were appointed to assist those princes ; and, when they came of age, it was delivered over to them undiminished. But nothing so remarkable can be alleged on this subject as the manner in which the two houses have acted upon those occasions, when, the crown being without any present possessor, they had it in their power, both to settle it on what person they pleased, and to divide and dis- tribute its effectual prerogatives, in what man- ner, and to what set of men, they might think proper. Circumstances like these we mention 396 THE CONSTiTU*riON have ne\^r failed, in other kingdoms, to bring on a division of the effectual authority of the crown, or even of the state itself. In- Swe- den, for instance (to speak of a kingdom which has borne the greatest outward resemblance to that of England), when queen Christina was put under a necessity of abdicating the crown, and it was transferred to the prince who stood next to her in the line of succession, the executive authority in the state was immediately divided, and either distributed among the nobles, or as"- signed to the senate, into which the nobles alone could be admitted; and the new king was only to be a president over it. After the death of Charles the Twelfth, who died without -male lieirs, the disposal of the crown (the power of wlrich Charles the Ele- venth had found means to render again abso- lute), returned to the states, and was settled on the princess Ulrica, and the prince her husband. But the senate, at the same time it thus settled the possession of the crown, again assumed to it- self the effectual authority which had formerly belonged to it. The privilege of assembling the states i\-as vested in that body. They also se- cured to themselves the power of making war and peace, and treaties with foreign powers' — /the disposal of places, — the command of the OF ENGLAND. 597 army and of the fleet, — and the administration of the public revenue. Their number was to consist of sixteen members. The majority of votes was to be decisive upon every occasion. The only privilege of the new king was to have his vote reckoned for two: and if at any time he should refuse to attend their meetings, the business was nevertheless to be done as eflx3CtU' ally and definitively without him*. : * .The senate had proeured a seal to be made, to be af- fixed to their official resolutions, in case the king should refuse to lend his own. The reader will find more parti- culars concerning the former government of Sweden in the nineteenth chapter. ^Regulations of -a siraijar nature l^ad , been majle, in Den- mark, and continued to subsist, with some variations, till thCj revolution which, in the seventeenth century, placed the whole power of the state in the hands of the cr«wn, without control. The different kingdoms into which Spain was formerly divided, were governed in much the same manner.:' . ,,.:.,>;,,;,„ ■ .,. ,.n.e^^ : ■•.-: n. And in Scotland, that seat of anarchy and aristocratj^al fepds, the great offices in the state were not only taken from the crown, but they were moreover made hereditary in the principal families of the body of the nobles : such were the offices of high admiral, hi^rh steward, high con- stable, great rchamberlain, and justice general; this last office implied powers analogous to those of tli,e chancel- lor, and the chief justice ;of the king's bench, united. The king's minority, or personal weakness, or, in gcni- ral. the dii^culties in which the state. might be involvnL 398 THE CONSTITUTION But, in England, the revolution of the year 1689 was terminated in a manner totally dif- ferent. Those who at that interesting epoch had the guardianship of the crow^n, — those in whose hands it lay vacant — did not manifest so much as a thought to split and parcel out its prerogative. They tendered it to a single indi- visible possessor, impelled as it were by some secret power operating upon them, without were circumstances of which the Scotch leaders never failed to avail themselves for invading the governing authority. A remarkable instance of the claims which they used to set forth on those occasions, occurs in a bill that was framed in the year 1703, for settling the succession to the crown, after the demise of the queen, under the title of An Act for the Security of the Kingdom, The Scotch parliament was to sit by its own authority every year, on the first day of November, and adjourn it* self as it should think proper. The king was to give his assent to all laws agreed to, and offered by, the estates ; or commission proper officers fot doing the same. A committee of one and thirty members, chosen by the parliament, were to be called the King's Council, and govern during the recess, being accountable to the parlia- ment. The king was iioti to make any foreign treaty without the consent of parliament. All places and offices, both civil and military, and all pensions formerly given by the king, were ever after to be |iven \yy parliament. See Parliamentary Debates^ A. 1703. ^' OF ETSTGLAND. ^W any salvo, without any article to establish the greatness of themselves or of their families. It is true, those prerogatives destructive of public liberty, which the late king had assumed, were retrenched from the crown; and thus far the two houses agreed. But as to any attempt to transfer to other hands any part of the authority of the crown, no proposal was even made about it. Those branches of prerogative which were taken from the kingly office were annihilated, and made to cease to exist in the state : and all the executive authority that was thought necessary to be continued in the government, was, as be- fore, left undivided in the crown. In the very same manner was the whole au- thority of the crown transferred afterwards to the princess who succeeded king William the Third, and who had no other claim to it but what was conferred on her by the parliament. And in the same manner again it was settled, a long time beforehand, on the princes of Han- over who succeeded her*. * It may not be improper to observe here, as a farther proof of the indivisibility of the power of the crown (which has been above said to result from the peculiar frame of the. English governmowt), that no part of the executive autho- rity of the king is vested in his privy council, as it was in 400 THE CONSTITUTION There is yet one more extraordinary fact, ta which I desire the reader to give attention. — Notwithstanding all the revolutions we mention, although parliament hath sat every year since the beginning of this century, and though they have constantly enjoyed the most unlimited freedom both as to the subjects and the manner of their deliberations, and numberless proposals have in consequence been made, — yet such has been the efficiency of each house, in destroying, prevent- ing, or qualifying, the views of the other, that the crown has not been obliged during all tliat period to make use, even once, of its negative voice; and the last bill rejected by a king of England was that rejected by king William the the senate of Sweden: the whole business centres in , the sovereign ; the votes of the members are not even counted ; and in fact the constant style of the la^v is, the king iu council, and not the king ajul council. A proviso is indeed sometimes added to some bills, that certain acts mentioned in them are to be transacted by the king in council; but this is only a precaution taken in the view that the most important affairs of a great nation may be transacted with proper solemnity, and to prevent, for instance, ail objec- tions that might, in process of time, be drawn from the un- certainty whether the king had assented, or not, to certain particular transactions. The king names the members of the privy council; or excludes them, by causing their narnes to be struck out of the book. OF ENGLAND. 401 Third in the year 1692, for triennial parlia* ments'*. There occurs another instance yet more re- markable of this forbearing conduct of the par- liament in regard to the crown, to whatever open or latent cause it may be owing, and how little their esprit de corps in reality leads them, amidst the apparent heat sometimes of their struggles, to invade its governing executive au- thority : I mean, the facility with which they have been prevailed upon to give up any essen- tial branch of that authority, even after a con- junction of preceding circumstances had caused them to be actually in possession of it : a case this, however, that has not frequently happened in the English history. After the restoration of Charles the Second, for instance, the parliament, of their own accord, passed an act (in the first year that followed that event), by which they jlnnihilated, at one stroke, both the independent legislative authority, and all claims to such au- thority, which they had assumed during the pre- ceding disturbances : by the stat. 13 Car. II. c. 1, it was forbidden, under the penalty of a prcemu7iire^ to affirm that either of the two * He assented a few years afterwards to that bill, when several amendments had been made in it. 2d 402 THE CONSTITUTION houses of parliament, or both jointly, possess, without the concurrence of the king, the legisla- tive authority. In the fourth year after the Re- storation, another capital branch of the govern- ing authority of the crown was also restored to it, without any manner of struggle: — by the stat. 16 Car. II. c. 1. the act was repealed by which it had been enacted, that in case the king should neglect to call a parliament once at least in three years, the peers should issue the writs for an election : and that, should they neglect to issue the same, the constituents should of themselves assemble to elect a parliament. It is here to be observed, that, in the same reign, the parliament passed the Habeas Corpus Act, as well as the other acts that prepared for the same, and in general showed a jealousy in watching over the liberty of the subject, supe^ .vior perhaps to what has taken place at any other period of the English history. This is another striking confirmation of what has b^en remarked in a preceding chapter, concerning the manner in which public disturbances have been terminated in England. Here we find a series of parliaments to have been tenaciously and per- severingly jealous of those kinds of popular universal provisions, which great men in other states ever disdained seriously to think of, or OF KNGIAND. 403 give a place to, in those treaties by which inter- nal peace was restored to the nation ; and at the same time these parliaments cordially and sin- cerely gave up those high and splendid branches of governing authority, which the senates, or assemblies of great men who surrounded the monarchs in other limited monarchies, never ceased anxiously to strive to assume to them- selves, — and which the monarchs, after having lost them, never were able to recover but by military violence aided by surprise, or through national commotions. All these are political singularities, certainly remarkable enough. It is a circumstance in no small degree conducive to the solidity ojfthe executive authority of the English crown (which is the subject of this chap- ter), that those persons who seem to have it in their power to wrest the same from it, are even prevented from entertaining thoughts of doing" so*. * I shall mention another instance of this real disinter- estedness of the parliament in regard to the power of the crown; — nay, of the strong bent that prevails in that as- sembly to make the crown the general depository of the executive authority of the nation ; I mean to speak of the manner in Avhich they are accustomed to provide for the execution of such resolutions of an active kind as they may at times adopt: it is always by addressing the crown for that purpose, and dcsijring it to interfere with its own^xC' 2d2 404 THE CONSTITUTION As another proof of the peculiar solidity of the power of the crown, in England, may be cutive authority. Even in regard to the printing of their journals, the crown is applied to by the commons, with a promise of making good to it the necessary expenses. Certainly, if there existed in that body any latent anxiety, any real ambition (I speak here of the general tenor of their conduct) to invest themselves with the executive au- thority in the state, they would not give up the providing by their own authority, at least for the object just men- tioned ; it might give them a pretence for having a set of officers belonging to them, as well as a treasury of their own, and, in short, for establishing in their favour some sort of beginning or precedent ; at the same time that a wish on their part, to be the publishers of their own journals, could not be decently opposed by the crown^ nor would be likely to be disapproved by the public. To some readers the fact we are speaking of may appear trifling; to me it does not seem so : I confess I never see a paragraph in the news- papers, mentioning an address to the crown for borrowing its executive prerogative in regard to the inconsiderable object here alluded to, without pausing on the article. Certainly there must exist causes of a very peculiar na- ture, which produce in an assembly possessed of so much weight that remarkable freedom from any serious ambition to push their advantages farther, — which inspire it with the great political forbearance we have mentioned, with so sincere an indifference in general, in regard to arrogating to themselves any branch of the executive authority of the crown : they really seem as if they did not know what to do with it after having acquired it, or of what kind of ser* vice it may be to them. OF ENGLAND. 405 mentioned the facility, and safety to itself and to the state, with which it has at all times been able to deprive any particular subjects of their different offices, however overgrown and even dangerous their private power might seem to be. A very remarkable instance of this kind occur- red when the great duke of Marlborough was suddenly removed from all his employments: the following is the account given by dean Swift in his " History of the four last Years of the " Reign of Queen Anne." " As the queen found herself under a neces- " sity, either, on the one side, to sacrifice those " friends, who had ventured their lives in res- " cuing her out of the power of some, whose " former treatment she had little reason to be " fond of, — to put an end to the progress she *' had made towards a peace, and dissolve her *^ parliament; or, on the other side, by remov- *^ ing one person from so great a trust, to get " clear of all her difficulties at once; her ma- " jesty determined upon the latter expedient, as " the shorter and safer course; and, during the " recess at Christmas, sent the duke a letter, to " tell him she had no farther occasion for his " service. 7 " There has not perhaps in the present age " been a clearer instance to show the instability 406 TfJE CONSTITUTION " of greatness which is not founded on virtue; " and it may be an instruction to princes who *' are well in the hearts of their people, that the " overgrown power of any particular person, V although supported by exorbitant wealth, can, ^' by a little resolution, be reduced in a moment, " without any dangerous consequences. This " lord, who was, beyond all comparison, the " greatest subject in Christendom, found his " power, credit, and influence, crumble away " on a sudden; and except a few friends and " followers, the rest dropped oft' in course," 8cc. (B. I. near the end). The ease with which such a man as the duke was suddenly removed, dean Swift has explained by the necessary advantages of princes who pos- sess the aftection of their people, and the natural wealmess of power which is not founded on vir- tue. However, these are vei'y unsatisfactory ex- planations. The history of Europe, in former times, presents a continual series of examples to- the contrary. We see in it numberless instances of princes incessantly engaged in resisting in the field the competition of the subjects invested with the eminent dignities of the realm, wha were not by any means superior to them in point of virtue, — or, at other times, living in a conti- nual stage of vassalage under some powerful man OF ENGLAND. 407 whom they durst not resist, and whose power, credit, and influence, they would have found it far from possible to reduce in a moment or crum- ble on a sudden, by the sending of a single let- ter, even though assisted by a little resolutioji, to use dean Swift's expressions, and without any dangerous consequences. Nay, certain kings, such as Henry the Third' of France, in regard to the duke of Guise, and James the Second of Scotland, in regard to the two earls of Douglas successively, had at last re- course to plot and assassination ; and expedients of a similar sudden violent kind are the settled methods adopted by the eastern monarchs ; nor is it very sure that they can always easily do otherwise*. * We might also mention here the case of the emperor Ferdinand II. and the duke of Walstein, which seems to have at the time made a great noise in the world. — The earls of Douglas were sometimes attended by a retinue of two thousand horse. See Dr. Robertson's History of Scot- land. — The duke of Guise was warned, some hours before his death, ^of the danger of trusting his person in the king's presence or house ; he answered, On n'oseroit, They durst not. If Mary, queen of Scots, had possessed a power analo* gous to that exerted by queen Anne, she might perhaps have avoided being driven into those instances of ill-con- duct which were followed by such tragical consequences. 408 THE CONSTITUTION Even in the present monarchies of Europe^ notwithstanding the awful force by which they are outwardly supported, a discarded minister is the cause of more or less anxiety to the go- verning authority; especially if, through the length of time he has been in office, he happens to have acquired a considerable degree of influ- ence. He is generally sent and confined to one of his estates in the country, w^hich the crown names to him : he is not allowed to appear at court, nor even in the metropolis ; much less is he suffered to appeal to the people in loud complaints, to make public speeches to the great men in the state, and intrigue among them, and, in short, to vent his resentment by those bitter, and sometimes desperate methods, which, in the constitution of this country, prove in a great measure harmless. But a dissolution of the parliament, that is, the dismission of the whole body of the great men in the nation, assembled in a legislative ca- pacity, is a circumstance in the English govern- ment, in a much higher degree remarkable and deserving our notice than the depriving any sin- gle individual, however powerful, of his public employments. When we consider in w^hat an easy and complete manner such a dissolution is effected in England, we must become convinced OF ENGLAND. 409 that the power of the crown bears upon founda- tions of very uncommon, though perhaps hidden, strength; especially, if we attend to the several facts that take place in other countries. In France, for example*, we find the crown, notwithstanding the immense outward force by which it is surrounded, to use the utmost cau- tion in its proceedings towards the parliament of Paris ; an assembly only of a judiciary na- ture, without any legislative authority or avowed claim, and which, in short, is very far from hav- ing the same weight in the kingdom of France as the English parliament has in England. The king never repairs to that assembly, to signify his intentions, or hold a lit de justice, without the most overawing circumstances of military apparatus and preparation, constantly choosing to make his appearance among them rather as a general than as a king. And when the late king-f, having taken a se- rious alarm at the proceedings of this parlia- ment, at length resolved upon their dismission, he fenced himself, as it were, with his army ;. * The reader must still keep in mind the time when the author last revised his work; namely, the year 1784. Edit. t Louis the Fifteenth. 410 THE CONSTITUTION and military messengers were sent with every circumstance of secrecy and dispatch, who, at an early part of the day, and at the same hour, surprised each member in his own house, caus- ing them severally to. retire to distant parts of the country, which w^ere described to them, without allowing them time to consider, much less to meet, and hold any consultation. But the person who is invested with the king- ly office in England, has need of no other wea- pon, no other artillery, than the civil insignia of his dignity to effect a dissolution of the parlia-. ment. He steps into the midst of them, telling* them that they are dissolved ; and they are dis- solved : — he tells them that they are no longer a parliament ; and they are no longer so. Like the wand of Popilius"^, a dissolution instantly puts a stop to their warmest debates and most;' violent proceedings. The peremptory words by which it is expressed have no sooner met their ears, than all their legislative faculties are benumbed : though they may still be sitting on tiie same benches, they look no longer on them- selves as forming an assembly ; they no longer consider each other in the light of associates or * A Roman ambassador, who stopped the army of An- tiochus, king of Syria. Livii Hist^ lib. xlv. OF ENGLAND. 411 of colleagues. As if some strange kind of wea- pon, or a sudden magical effort, had been ex- erted in the midst of them, all the bonds of their union are cut off; and they hasten away, with^ out having so much as the thought of continuing for a single minute the duration of their assem- bly*. * Nor has London post-horses enough to drive them far and near into the country, when the declaration^ by which the parliament is dissolved, also mentions the calling of a new one. A dissolution, when proclaimed by a common crier assisted by a few beadles, is attended by the very same, effects. To the account of the expedient used by Louis XV. of France to effect the dismission of the parliament of Paris, we may add the manner in which the crown of Spain, more arbitrary perhaps than that of France, un- dertook some years ago to rid itself of the religious society of the Jesuits, whose political influence, and intrigues, had grown to give it umbrage. They were seized by an armed force at the same minute of the same day, in every town or borough of that extensive monarchy, where they had re- sidence, in order to their being hurried away to ships that were waiting to carry them into another country; the whole business being conducted with circumstances of secrecy, of surprise, and of preparation, far superior to what is related of the most celebrated conspiracies men- tioned in history. The dissolution of the parliament which Charles the Second had called at Oxford is an extremely curious ^vent, 412 THE CONSTITUTION To all these observations concerning the pe* culiar solidity of the authority of the crown in England, I shall add another that is supplied by the whole series of the English history ; which is, that though bloody broils and disturbances have often taken place in England, and war been often made against the king, yet it has scarcely ever been done, but by persons who positively and expressly laid claim to the crown. Even while Cromwell contended with an armed force against Charles the First, it was in the a very lively account of it is to be found in Oldmixon's History of England. If certain alterations, however imperceptible they may perhaps be at first to the public eye, ever take place, the period may come at which the crown will no longer have it in its power to dissolve the parliament; that is to say, a dissolution will no longer be followed by the same eflfects that it is at present. [This power of dissolution has lately been exercised in a very extraordinary manner. The parliament which met for the first time in December 1806, was dissolved in the following April, merely for the purpose of procuring a de- cisive ministerial majority. The people, perhaps, ought not to object even to very frequent appeals of this kind, as they are thus enabled to re-exercise the elective franchise : but the necessity of this recent act of prerogative may well be disputed ; and its tendency to public benefit is much less apparent than its subserviency to private in- terest. Edit.] OF ENGLAND* 413 king's own name that he waged war against him. The same objection might be expressed in a more general manner, and with strict truth, by saying that no war has been waged, in England, against the governing authority, except upon na- tional grounds ; that is to say, either when the title to the crown has been doubtful, or whea general complaints, either of a political or reli- gious kind, have arisen from every part of the nation. As instances of such complaints, may be mentioned those that gave rise to the war against king John, which ended in the passing of the Great Charter ; the civil wars in the reign of Charles the First ; and the Revolution of the year I689. From the facts just mentioned it may also be observed as a conclusion, that the crown cannot depend on the great security we have been describing any longer than it conti- nues to fulfil its engagements to the nation, and to respect those laws which form the compact between it and the people. And the imminent dangers, or at least the alarms and perplexities, in which the kings of England have constantly involved themselves, w^henever they have at- tempted to struggle against the general sense of the nation, manifestly show that all that has been abovQ observed, concerning the security 414 THE CONSTITUTION and remarkable stability somehow annexed to their office, is to be understood, not of the capricious power of the man, but of the lawful authority of the head of the state"*^. * One more observation may be made on the subject; which is, that when the kingly dignity has happened in England to be wrested from the possessor, through some revolution, it has been recovered, or struggled for, with more difficulty than in other countries : in all the other countries upon earth, a king de jure (by claim) possesses advantages in regard to the king in being, much superior to those of which the same circumstance may be pro- ductive in England. The power of the other sovereigns in the world is not so securely established as that of an English king; but then their character is more indelible; that is to say, — till their antagonists have succeeded in cutting off them and their families, they possess, in a high degree, a power to renew those claims and disturb the state. Those family pleas or claims of priority, and, in general, those arguments to which the bulk of mankind have agreed to allow so much weiglit, cease almost en- tirely to be of any effect in England, against the person actually invested with the kingly office, as soon as the con- stitutional parts and springs have begun to move, and, in short, as soon as the machine of the government has once begun to be in full play. An universal national ferment, similar to that which produced the former disturbances, is the only time of real dangerr The remarkable degree of internal national quiet, which? for very near a century past, has followed the Revolution of the year lC89, is a strong proof of the truth of the ob- OF ENGLAND. 415 Secotid Part of the Chapter. There is certainly a very great degree of singularity in all the circumstances we have been describing here : those persons who are acquainted with the history of other countries cannot but remark with surprise that stability of the power of the English crown, — that myste- rious solidity, that inward binding strength with which it is able to carry on with certainty its le- gal operations, amidst the clamorous struggle and uproar with which it is commonly surrounded, and without the medium of any armed threat- ening force. To give a demonstration of the manner in which all these things are brought to bear and operate, it is not, as I said before, my design to attempt here ; the principles from which such demonstration is to be derived, sup- pose an inquiry into the nature of man, and of human affairs, which rather belongs to philoso- phy (though to a branch hitherto unexplored) than to politics ; at least such an inquiry cer- tainly lies out of the sphere of the common servations above made; nor do I think that, all circum- stances being considered, any other country can produce the like instance. 416 THE CONSTITUTION science of politics*. However, 1 had a veiy material reason for introducing all the above- mentioned facts concerning the peculiar stability of the governing authority of England, inasmuch as they lead to an observation of a most import- ant political nature; which is, that this stability allows several essential branches of English li- berty to take place, which, w ithout it, could not exist. For there is a very essential consi- deration to be made in every science, though speculators are sometimes apt to lose sight of it, which is this — in order that things may have existence, they must be possible ; in order that political regulations of any kind may obtain their effect, they must imply no direct contra- diction, either open or hidden, to the nature of things, or to the other circumstances of the go- vernment. In reasoning from this principle, we shall find that the stability of the governing exe- cutive authority in England, and the weight it gives to the whole machine of the state, have actually enabled the English nation, considered * It may, if the reader pleases, belong to the science of metapolitics ; in the same sense as we say metaphysics ; that is, the science of those things which lie beyond physical or substantial things. A few more words are bestowed upon the same subject in the advertisement, or preface, at the head of this work. OF ENGLAND. 417 ai5 a free nation, to enjoy several advantages which would really have been totally unattain- able in the other states we have mentioned in former chapters, whatever degree of public vir- tue we might even suppose to have belonged to the men who acted in those states as the ad- visers of the people, or, in general, who were in- trusted with the business of framing the laws. One of these advantages resulting from the solidity of the government, is, the extraordinary personal freedom which all ranks of individuals in England enjoy at the expense of the govern- ing authority. In the Roman commonwealth, for instance, we behold the senate invested with a number of powers totally destructive of the liberty of the citizens : and the continuance of these powers was, no doubt, in a great measure, owing to the treacherous remissness of those men to whom the people trusted for repressing them, or even to their determined resolution not to abridge those prerogatives. Yet, if we attentively consider the constant situation of af- fairs in that republic, we shall find, that though we should suppose those persons to have been ever so truly attached to the cause of the peo- ple, it would not really have been possible for them to procure to the people an entire security. The right enjoyed by the senate, of suddenly SE 418 TH£ CONSTITUTION" naming a dictator with a power unrestrained by any law, or of investing the consuls with an au- thority of much the same kind, and the power it at times assumed of making formidable examples of arbiti^ary justice, were resources of which the republic could not, perhaps, with safety have been totally deprived : and though these expe- dients frequently were used to destroy the just li- berty of the people, yet they were also very often the means of preserving the commonwealth. ? Upon the same principle we should possibly jfind that the ostracism^ that arbitrary method of banishing citizens, was a necessary resource in the republic of Athens. A Venetian noble would perhaps also confess, that, however ter-* rible the state inquisition, established in his re* public, may be even to the nobles themselves, yet it would not be prudent entirely to abolish it. And we do not know but a minister of state in France, though ever so vit*tu6us and moderate a man, would say the same with regard to secret imprisonments, the lettres de cachet, and other arbitrary deviations from the settled course of law, which often take place in that kingdom, and in the other monarchies of Europe. No doubt, if he was the man we suppose, he would confess that the expedients mentioned have in numberless instances been basely prostituted to OF ENGLANIXrr^ 419 gratify the wantonness and private revenge of ministers, or of those who had any interest with them; but still perhaps he would continue to give it as his opinion, that the crown, notwith- standing its apparently immense strength, could not avoid recurring at times to expedients of this kind ; much less could it publicly and absor lately renounce them for ever. - It is therefore a most advantageous circum- stance in the English government, that its se- curity renders all such expedients unnecessary, and that the representatives of the people have not only been constantly willing to promote the public liberty, but that the general situation of affairs has also enabled them to carry their pre- cautions so far as they have done. And indeed, when we consider what prerogatives the crown, in England, has implicitly renounced ; — that, in consequence of the independence conferred on the judges, and of the method of trial by jury, it is deprived of all means of influencing the set-^. tied course of the law both in civil and criminal matters ; — that it has renounced all power of seizing the property of individuals, and even of restraining in any manner whatsoever, and for the shortest time, the liberty of their persons ;— • we do not know which we ought most to ad- mire, whether the public virtue of those who 420 THE CONSTITUTION' have deprived the supreme executive power of all those dangerous prerogatives, or the nature t)f that same power, which has enabled it to give them up without ruin to itself, — ^whether the happy frame of the English government, which makes those in whom the people trust, continue so faithful to the discharge of their duty, or the solidity of that same government, which can afford to leave to the people so extensive a de- gree of freedom*. * At the times of the invasions of the Pretender, assisted by the forces of hostile nations, the Habeas Corpus Act was indeed suspended (which by the bye may serve as one proof, that, in proportion as a government is in danger, it becomes necessary to abridge the liberty of the subject) : but the executive power did not thus of itself stretch its own authority ; the precaution was deliberated upon and taken by the representatives of the people; and the de- taining of individuals in consequence of the suspension of ^he act was limited to a certain fixed time. Notwith- standing the just fears of internal and hidden enemies which the circumstances of the times might raise, the deviation from the former course of the law was carried no farther than the single point we have mentioned. Persons, detained by order of the government were to be dealt with in the same manner as those arrested at the suit of private individuals: the proceedings against them were to be carried on no other* wise than in a public place: they were to be tried by their peers, and have all the usual legal means of defence allow- ed to them, such as calling of witnesses, peremptory chal- lenge of juries, &c. OF ENGLAND, 421 Again, the liberty of the press, that great ad- vantage enjoyed by the English nation, does not exist in any of the other monarchies of Europe, however well established their power may at first seem to be ; and it might even be demon- strated that it cannot exist in them. The most watchful eye, we see, is constantly kept in those monarchies upon every kind of publication ; and a jealous attention is paid even to the loose and idle speeches of individuals. Much unnecessary trouble (we may be apt at first to think) is taken upon this subject ; but yet if we consider how uniform is the conduct of all those governments, how constant and unremitted are their cares in those respects, we shall become convinced, with- out looking farther, that there must be some sort of necessity for their precautions. In republican states, for reasons which are at bottom the same as in the before-mentioned governments, the people are also kept under the greatest restraints by those who are at the head of the state. In the Roman commonwealth, for instance, the liberty of writing was curbed by the severest laws^ : with regard to the freedom of speech, things were but little better, as we may * The law of the Twelve Tables had established the punishment of death against the author of a libel : nor was it by a trial hyjury that they determined what was to be called a libel. Si qvis carman occentassit, acti- 423 THE C01!^ST1TUTI0N conclude from several facts ; and many instances may even be produced of the dread with which the private citizens, upon certain occasions, com- municated their political opinions to the consuls^ or to the senate. In the Venetian republic, thd press is most strictly watched ; nay, to forbear to speak in any matter whatsoever of the con- duct of the government is the fundamental maxim which they inculcate on the minds of the people throughout their dominions'*. With respect therefore to this point, it maj^ again be looked upon as a most advantageous T^^SIT, CONDIDISSIT, QUOD ALTERI TLAGITIUM I AX- IT* CAPITAL ESTO. * Of this I have myself seen a proof somewhat singular, which I beg leave of the reader to relate. Being, in the year 17^8, at Bergamo, the first town of the Venetian state as you come into it from the state of Milan, about a hundred and twenty miles distant from Venice, I took a uaik in the evening in the neighbourhood of the towa? and wanting to know the names of several places which I saw at a distance, I stopped a young countryman to ask for information. Finding him to be a sensible young man, I entered into some farther conversation with him; and as he had himself a great inclination to see Venice, h« asked ^ne, whether I proposed to go tl^ere ? I answered that J did : on which he immediately warned me, when I was at Venice, not to speak of the prince (delprencipe) ; an appel- lation assumed by the Venetian government, in order, as I suppose, to convey to the people a greater idea of their union among themselves. As I wanted to hear him talk OF ENGLAND. 425 circumstance in the English government, that tho^e who have been at the head of the people have not only been constantly disposed to pro- cure the public liberty, but also that they have found it possible for them to do so ; and that the remarkable strength and steadiness of the government have admitted of that extensive freedom of speaking and writing which the peo- ple of England enj oy '*. A most advantageous prir farther on the subject, I pretended to be entirely ignorant in that respect, and asked for what reason I must not speak ,of the prince ? But he (after the manner of the common people in Italy, who, when strongly affected by any thing, rather choose to express tliemselves by some vehement ges- ture than by words) ran the edge of his hand, with great quickness, along his neck, meaning thereby to express, that being strangled, or having one's throat cut, was the instant consequence of taking such liberty. * This freedom was considerably abridged under the ad- ministration of Mr. Pitt. A bill was enacted in the year 179<5, rendering the authors, printers, and publishers, of inflamma- tory papers or writings, liable to capital punishment, and declaring seditious or free and licentious speaking to be a high offence, punishable in many cases by transportation for seven years. As popular meetings are usually accom- panied with freedom of speech, it was ordained, by another act of the same session, that, if above fifty persons should meet without previously informing the magistrates of their intention, and so few as twelve should remain assembled for an hour after being ordered to retire, death should be in* flicted on the offenders. Edit. 424 THE CONSTItUTION vilege this ! which, affording to every man a mean of laying his complaints before the public, pro- cures him almost a certainty of redress against any act of oppression that he may have been ex- posed to : and which leaving, moreover, to every subject a right to give his opinion on all pub- lic matters, and, by thus influencing the senti- ments of the nation, to influence those of the legislature itself (which is sooner or later obliged to pay a deference to them), procures to him a sort of legislative authority of a much more effi- cacious and beneficial nature than any formal right he might enjoy of voting by a mere yea or nay^ upon general propositions suddenly offered to him, and which he could have neither a share in framing, nor any opportunity of objecting to and modifying. Such a privilege, by supporting in the peo- ple a continual sense of their security, and af- fording them undoubted proofs that the govern- ment, whatever may be its form, is ultimately designed to ensure the happiness of those who live under it, is both one of the greatest advan- tages of freedom, and its 'surest characteristic. ; The kind of security, as to their persons and possessions, which subjects, who are totally de- prived of that privilege, enjoy at particular times tmder other governments, perhaps may entitle them to look upon themselves as the well admi- ^OOF ENGLAND. 425 nistered property of masters who rightly under- stand their own interests ; but it is the right of canvassing without fear the conduct of those who are placed at their head, which constitutes -a free nation''^. .7. -*' The unbounded freedom of debate, possessed by the English parliament, is also a consequence of the peculiar stability of the government All sovereigns have agreed in their jealousy of as- semblies of this kind, in their dread of the privi- leges of assemblies who attract in so high a de- gree the attention of the rest of the people, — who in a course of time become connected by so many essential ties with the bulk of the na- tion, and acquire so much real influence by the essential share they must needs have in the ma- nagement of public affairs, and by the eminent services, in short, which they are able to per- form to the community t- Hence it has happened * If we consider the great advantages to public liberty \vhich result from the institution of the trial by jury, and from the liberty of the press, we shall find England to be in reality a more democratical state than any other we are acquainted with. The judicial power, and the censorial power, are vested in the people. + And which they do actually perform, till they are able "to throw off the restraints of impartiality and moderation, — a thing which, being men, they never fail to do when their influencie is generally established, and proper oppor- ;t^^itics offer. Sovereigns know these things, and dread.them. 42S THJC CONSTITUTION that monarchs, or single rulers, in all countries, have endeavoured to dispense with the assist- ance of assemblies like those we mention, not- withstanding the capital advantages they might have derived from their services towards the good government of the state ; or, if the circum- stances of the times have rendered it expedient for them to call such assemblies together, they have used the utmost endeavours in abridging those privileges and legislative claims which they soon found to prove so hostile to their security : in short, they have ever found it impracticable to place an unreserved trust in public meetings of this kind. We may here name Cromwell, as he was supported by a numerous army, and possessed more power than any foreign monarch who has not been secured by an armed force. Even after he had purged, by the agency of colonel Pride and two regiments, the parliament that was sitting when his power became settled, thereby thrusting out all his opponents, to the amount of about two hundred, he soon found his whole authority endangered by the proceedings of those who remained, and was under a neces- sity of turning them out in the military manner with which every one is acquainted. Finding still a meeting of this kind highly expedient to legalise his military authority, he called together that as- OF ENGLAND. <^ sembly which was called Barebone^s parliament. He had himself chosen the members of this par- liament, to the number of about a hundred and twenty, and they had severally received the sum- mons from him; yet notwithstanding this cir- cumstance, and the total want of personal weight in most of the members, he began in a very few months, and in the midst of his powerful victo- rious army, to feel a serious alarm at their pro- ceedings ; he soon heard them talk of their own divine commission, and of the authority they had received from the Lord; and, in short, finding he could not trust them, he employed the offices of a second colonel, to effect their dismission. Being now dignified with the legal appellation of Protector, he ventured to call a parliament elected by considerable parts of the people^ ■ but though the existence of this parliament was grounded, we might say grafted, upon his own, and though bands of soldiers were even posted in the avenues to keep out all such members as refused to take certain personal engagements to him, be made such haste, in the issue, to rid himself of their presence, as to contrive a mean quibble or device to shorten the time of their sitting by ten or twelve days^. To a fourth * They were to have sitten five months; but Cromwell pretended that the months were to consist of only twenty- 428 THE CONSTITUTION assembly he again applied; but though the elections had been so managed as to procure him a formal tender of the crown during the first sitting, he put an end to the second with resentment and precipitation"^. The example of the Roman emperors, whose power was outwardly so prodigious, may also be introduced here. They used to show the utmost jealousy in their conduct with respect to the Roman senate; and that assembly, which the prepossession of the people, who looked upon it as the ancient remains of the republic, had made it expedient to continue, were not suffered to assemble but under the drawn scy- mitars of the praetorian guards. Even the kings of France, though their autho- rity is so unquestioned, so universally respected, as well as strongly supported, have felt frequent anxiety from the claims and proceedings of the parliament of Paris, an assembly of much less eight days ; as this was the way of reckoning time used in paying the array and the fleet. * The history of the conduct of the deliberating and de- bating assemblies we are alluding to, in regard to the mon* archs, or single rulers of any denomination, who summon them together, may be expressed in very few words. If the monarch, is unarmed, they over-rule him so as almost entirely to set him aside : if his power is of ^ military kind, they form connexions with the army. OF ENGLAND. 429 weight than the English parliament. The alarm has been mentioned which Louis XV. at last expressed concerning their measures, as well as the expedient to which he resorted, to free himself from their presence. And when his suc- cessor thought proper to call again this parlia- ment together, a measure highly prudent in the' beginning of his reign, every jealous precaution was at the same time taken to abridge those pri- vileges of deliberating and remonstrating, upon which any distant claim to, or struggle for, a share of the supreme authority, might be grounded, ^u It may be objected that the pride of kings or single rulers makes them averse to the existence of assemblies like those we mention, and despise the capital services which they might derive from them for the good government of their kingdoms. I grant it may in some measure be so. But if we inquire into the general situation of affairs in different states, and into the examples with which their history supplies us, we shall also find that the pride of those kings agrees in the main with the interest and quiet of their subjects, and that their preventing the assemblies we speak of from meeting, or, when met, from assuming too large a share in the management of public affairs, is, in a great measure, matter of necessity. We may therefore reckon it as a very great advantage, that, in England, no such necessity 430 THE CONSTITUTION exists. Such is the frame of the government, that the supreme executive authority can both give leave to assemble, and show the most un^ reserved trust, when assembled, to those two houses which concur together to form the legis- lature. These two houses, we see, enjoy the most complete freedom in their debates, whether the subject be grievances^ or regulations concerning government matters of any kind : no restriction whatever is laid upon them ; they may start any ' subject they please. The crown is not to take any notice of their deliberations : its wishes, or even its name, are not to be introduced in the debates. And, in short, what makes the fi'ee- dom of deliberating, exercised by the two houses, really unlimited, is the privilege, or sovereignty we may say, enjoyed by each within its own walls, in consequence of which, nothing done or said in parliament is to be questioned in any place out of parliament. Nor will it be pretended by those persons who are acquainted with the Eng- lish history, that these privileges of parliament we mention are nominal privileges, only privi- leges upon paper, which the crown has disre- garded whenever it has thought proper, and to the violations of which the parliament have used very tamely to submit. That these remarkable advantages, — this total freedom from any com- OF ENGLAND. 431 pulsion or even fear, and, in short, this unlimited liberty of debate, so strictly claimed by the par- liament, and so scrupulously allowed by the crown,— ishould be exercised, year after year, duf iftg a long course of time, without producing the least relaxation in the execution of the laws, the smallest degree of anarchy, — are certainly very singular political phagnomena. It may be said, that the remarkable solidity * of the governing executive authority, in Eng- land, operates to the advantage of the people with respect to the objects we mention, in a two- fold manner. In the first place, it so far takes from the gi^eat men in the nation all serious ambition to invade this authority, that their debates do not produce such anarchical and more or less bloody struggles as have very fre- quently disturbed other countries. In tlie second place, it inspires those great men with that salu-^^ tary jealousy of the same authority which leads^ tiiem to frame such effectual provisions for laying it under proper restraints. On which I" i shall observe, by way of a short digression, thai this distinguished stability of the executive au- thority of the English crown affords an expla- nation of the peculiar manner in which publwj commotions have constantly been terminated \% England, compared with the manner in which the same events have been concluded in other 432 THE CONSTITUTION kingdoms. When I mentioned, in a former chapter, this peculiarity in the English govern- ment, I mean the accuracy, impartiality, and universality of the provisions by which peace, after internal disturbances, has been restored to the nation, I confined my comparisons to in- stances drawn from republican governments, purposely postponing to say any thing of govern- ments of a monarchical form, till I had intro- duced the very essential observation contained in this chapter, which is, that the power of crowns^ in other monarchies, has not been able, by itself, to produce the same effects it has in England, — that is, has not been able to inspire the great men in the state with any thing like that salutary jealousy we mention, nor of course to induce them to unite in a real common cause with the rest of the people. In other monar- chies*, those men who, during the continuance of the public disturbances, were at the head of the people, finding it in their power, in the issue, to parcel out, more or less, the supreme govern- ing authority (or even the state itself), and to * I mean, before the introduction of those numerous standing armies which are now kept by all the crowns of Europe: since that epoch, which is of no very ancient date, no treaty has been entered into by those crowns with any subjects; ^oOf ENGLAND* 43$ transfer the same to themselves, constantly did so, in the same manner, and for the very same reasons, as it happened in the ancient common^ wealths; those monarchical governments being in reality, so far as that, of a republican nature: and the governing authority was left, at the con- clusion, in the same undefined extent it had be- fore'^. But in England, the great men in the nation finding themselves in a situation essen- tially different, lost no time in pursuits like those ki which the great men of other countries used to indulge themselves on the occasion we men- tion. Every member of the legislature plainly perceived, from the general aspect of affairs, and his feelings, that the supreme executive au- thority in the state must in the issue fall some- where undivided, and continue so ; and being moreover sensible, that neither personal advan- tages, of any kind, nor the power of any faction, but the law alone, could afterwards be an ef- fectual restraint upon its motions, they had no thought or aim left, except to frame with care those laws on which their own liberty was to con- tinue to depend, and to restrain a power which * As a remarkable instance of such a treaty, may be mentioned that by which the war for the public good was terminkted in l^rartce. See the note in page 30 of this work. 2 F 434 THE CONSTITUTION they judged it so impracticable to transfer to themselves or their party, or to render them- selves independent ofi These observations I thought necessary to be added to those in the fifteenth chapter, to which I now refer the reader. Nor has the great freedom of canvassing pc^ litical subjects we have described, been limited to the members of the legislature, or confined to the walls of Westminster, that is, to the ex- clusive spot on which the two houses meet : the like privilege is allowed to the other orderfe of the people : and a full scope is given to that spirit of party, and a complete security ensured to those numerous and irregular meetings, which, especially when directed to matters of govern- ment, create so much uneasiness in the sove- reigns of other countries. Individuals even may, in such meetings, take an active part for pro- curing the success of those public steps which they wish to see pursued ; they may frame pe- titions to be delivered to the crown, or to both houses, either to procure the repeal of measures already entered upon by government, or to pre- vent the passing of such as are under consider- ation, or to obtain the enacting of new regula- tions of any kind ; they may severally subscribe their names to such petitions : the law sets no OF ENGLAND^. %$S restrktion on their numbers; nor has it, we may say, taken any precaution to prevent even the abuse that might be made of such freedom. That mighty political engine, the press, is also at their service ; they may avail themselves of it to advertise the time and place, as well as the intent, of the meetings, and moreover to set oif and inculcate the a dvantages of those no- tions which they wish to see adopted. Such meetings may be repeated ; and ev^ry individual may deliver what opinion he pleases on the proposed subjects, though ever so directly opposite to the views or avowed designs of the government. This member of the legislature may, if he chooses, have admittance among them, arid again enforce those topics which have not obtained the success he expected, in that house to which he belongs. The disap- pointed statesman, the minister turned out, also find the door open to them : they may bring in the whole weight of their influence and of their connexions : they may exert every nerve to en- list the assembly in the number of their sup- porters : they are bidden to do their worst : they fly through the country from one place of meet« ing to another : the clamour increases : the con- stitution, one may think, is going to be shaken to its very foundations : — but these mighty §trug- 2 f2 436 THE CONSTITUTION gles, by some means or other, always find a proportionate degree of re-action ; new difficul- ties, and at last insuperable impediments, grow up in the way of those who would take advan- tage of the general ferment to raise themselves on the wreck of the governing authority : a secret force exerts itself, which gradually brings things back to a state of moderation and calm * and that sea so stormy, to appearance so deeply agitated, constantly stops at certain limits which it seems as if it wanted the power to pass. The impartiality with which justice is dealt to all orders of men in England, is also in great measure owing to the peculiar stability of the government: the very remarkable, high degree, to which this impartiality is carried, is one of those things, which, being impossible in other countries, are possible under the government of this country. In the ancient commonwealths, from the instances that have been introduced in a former place, and form others that might be quoted, it is evident that no redress was to be obtained for the acts of injustice or oppres- sion committed by the men possessed of influ- ence or wealth, upon the inferior citizens. In the monarchies of Europe, in former times, abuses of a like kind prevailed to a most enor- mous" degree. In our days, notwithstanding OF ENGLAND. 437 the great degrees of strength acquired by the different governments, it is matter of the ut- most difficulty for subjects of the inferior classes to obtain the remedies of the law against cer- tain individuals ; in some countries it is impos- sible, let the abuse be ever so flagrant; an open attempt to pursue such remedies being moreover attended with danger. Even in those monar- chies of Europe in which the government is supported both by real strength, and by civil institutions of a very advantageous nature, great differences prevail between individuals in regard to the facility of obtaining the remedies of the law : and to seek for redress, is at best, in many cases, so arduous and precarious an attempt, as to take from injured individuals all thoughts of encountering the difficulty. Nor are these abuses we mention, in the former or present governments of Europe, to be attributed only to the want of resolution in the heads of those governments- In some countries, the sovereign, by an open design to suppress these abuses, would have endangered at once his whole au- thority: and in others, he would find obstruc- tions multiply so in his way as to compel him, perhaps very quickly, to drop the undertaking. How can a monarch, alone, make a persevering stand against the avowed expectations of all the 438 THJK CONSTTTUTION great men by whom he is suiTounded, and against the loud claims of powerful classes of individu- als? In a commonwealth, what can the senate do when they find that their refusing to protect ^ powerful offender of their own class, or to in- dulge soitie great citizen with the impunity of hi$ friends, is likely to be productive of serious di- ■vkions among themselves, or perhaps of disturb- ances among the people ? 3 if we ca&t our eyes on the strict and universal fcipartiality with which justice is administered in Entrland, we shall soon become convinced that some inward essential difference exists between the English government and those of other countries, ^ and that its power is founded on causes of a distinct nature. Individuals of the most exalted rank do not entertain so much as the thought to raise the smallest direct op- position to the operation of the law. The com- plaint of the meanest subject, if preferred and supported in the usual way, immediately meets with a serious regard. The oppressor of the most extensive influence, though in the midst of a train of retainers, nay, though in the fullest flight of his career and pride, and surrounded by thousands of applauders and partisans, is stopped short at the sight of the legal p4per which is delivered into his hands; and a tipstaff V:09^ ENGLAND. 439 i^>ufBcient to bring him away, and produce him before the beiiph. Such is the greatness, and such the uninterr rupted prevalence of the law"^'; such is, in shorty the continuity of omnipotence, of resistless su- periority, it exhibits, that the extent of its effects at length ceases to be a subject of observation to the public. fkiNor are great or wealthy men to seek for rer Although the whole nation, not excepting the army, w^ere in a manner unanimous against him,' he w^as able to reign four years, standing single against all, without meeting with any open re- sistance. Nor was such justifiable and neces- sary resistance easily brought about at length*". * Mr. Hume is rather too anxious in his wish to excul- pate James the Second. He begins the conclusive character he gives of him, with representing him as a prince xy^om we may safely pronounce more unfortunate than criminal. If we consider the solemn engagements entered into, not by his predecessors only, but by himself, which this prince endea- voured to break, how cool and deliberate was his attack on the liberties and religion of the people, how unprovoked the attempt, and, in short, how totally destitute he was of any plea of self-defence or necessity, a plea to which most of the princes who have been at variance with their sub- jects have had a more or less distant claim, we shall look upon him as being perhaps the most guilty monarch that ever existed. 456 THE CONSTITUTION Though it is not to be doubted that the dethron- Hig of James the Second would have been ef- fected in the issue, and perhaps in a very tragical manner ; yet, if it had not been for the assist* ance of the prince of Orange, the event would certainly have been postponed for a few years. That authority on which James relied with so much confidence, Avas not annihilated at the time it was, otherwise than by a ready and considerable armed force being brought against i^ from the other side of the sea, — like a solid fortress, which, though without any visible out- works, requires, in order to be compelled to surrender, to be battered with cannon. If we look into the manner in which this country has been governed since the Revolution, we shall evidently see that it has not been by means of the army that the crown has been able to preserve and exert its authority. It is not by m.eans of their soldiers that the kings of Great Britain prevent the manner in which elections are carried on, from being hurtful to them ; for these soldiers must move from the places of election one day before such , elections are be- gun, and not return till one day after they are finished. It is not by means of then- military force that they prevent the several kinds of civil magistracies in the kingdom from invading and OF ENGLAND. 4.57 lessening their prerogative; for this military force is not to act till called for by these latter, and under their direction. It is not by means of their army that they lead the two branches of the legislature into that respect to their regal author- ity which w^e have before described; since each of these two branches, severally, is possessed of an annual power of disbanding this army*. There is another circumstance, which, ab- stractedly from all others, makes it evident that the executive authority of the crown is not sup- ported by the army : I mean the very singular subjection in which the military is kept in regard to the civil power in this country. In a country where the governing authority in the state is supported by the army, the mili- tary profession, who, in regard to the other pro- fessions, have on their side the advantage of pre- sent force, being now moreover countenanced by * The generality of the people have from early times been so little accustomed to see any display of force used to influence the debutes of the parliament, that the attempt made by Charles the First to seize the^re members^ at- tended by a retinue of about two hundred servant*, was the actual spark that set in a blaze the heap of combus- tibles which the preceding contests had accumulated. The parliament, from that fact, took a pretence to make mili- tary preparations in their tarn; aad then the civil war began. 458 THE CONSTITUTION the law, immediately acquire, or rather assume, a general ascendency; and the sovereign, far from wishing to discourage their claims, feels an inward happiness in seeing that instrument on which he rests his authority, additionally strengthened by the respect of the people, and receiving a kind of legal sanction from the gene- ral outward consent. J And not only the military profession at large, but the individuals belonging to it, also claim personally a pre-eminence : chief commanders, officers, soldiers or janissaries, all claim, in their own spheres, some sort of exclusive privilege: and these privileges, whether of an honorary, or of a more substantial kind, are violently assert- ed, and rendered grievous to the rest of the com- munity, in proportion as the assistance of the military force is more evidently necessary to, and more frequently employed by, the govern- ment. These things cannot be otherwise. Now, if we look into the facts that take place in England, we shall find that a quite different order prevails from what is above described. All courts of a military kind are under a con- stant subordination to the ordinary courts of law. Officers who have abused their private power, though only in regard to their own sol- diers, may be called to account before a court OF ENGLAND. 459 of common law, and compelled to make proper satisfaction. Even any flagrant abuse of au-. thority committed by members of courts-mar- tial, when sitting to judge their own people, and determine upon cases entirely of a military kind, makes them liable to the animadversion of the civil judge'^. * A great number of instances might be adduced to prove the above-mentioned subjection of the military to the civil power. I shall introduce one which is particu- larly remarkable : I met with it in the periodical publi- cations of the year 1746. A lieutenant of marines, whose name was Frye, had been charged, while in the West-Indies, with contempt of orders, for having refused, when ordered by the captain, to assist another lieutenant in carrying another officer pri- soner on board the ship : the two lieutenants wished to have the order given in writing. For this, lieutenant Frye was tried at Jamaica by a court-martial, and sentenced to fifteen -years' imprisonment, besides being declared incapa- ble of servino; the kincr. He was brought home : and his case (after being laid before the privy-council) appear- ing in a justifiable light, he was released. Some time after, he brought an action against sir Chaloner Ogle, who had been president of the above court-martial, and had a ver- dict in his favour for one thousand pounds damages, as it was also proved that he had been kept fourteen months in the most severe confinement before he was brought to his trial. The judge moreover informed him that he was at liberty to bring his action against any of the members of *- 460 THE CONSTITUTION To the above facts concerning the pre-emi- nence of the civil over the military power at the said court-martial he could meet with. The following part of the affair is still more remarkable. Upon application made by lieutenant Frye, sir John Willes, lord chief justice of the Common Pleas, issued his writ against admiral Mayne, and capt. Rentone, two of the persons who had composed the above cpurt-martial, who happened to be at that time in England, and wer6 mem- bers of the court-martial that was then sitting at Deptford, to determine on the affair between admirals Matthews and Lestock, of which admired Mayne was also president; and they were arrested immediately after the breaking-up of the court. The other members resented highly what they thought an insult ; they met twice on the subject, and came to certain resolutions^ which the judge advocate was directed to deliver to the Board of Admiralty, in order to their being laid before the king. In these resolutions they demanded " satisfaction for the high insult on their presi- " dent, from all persons, how high soever in office, who " have set on foot this arrest, or in any degree advised or " promoted it :" — moreover complaining, that, by the said arrest, " the order, discipline, and government of his ma- ** jesty^s armies by sea were dissolved, and the statute 13 " Car. II. made null and void." '_ The altercations on that account lasted some months. At length the court-martial thought it necessary to submit; and they sent to lord chief justice Willes a letter signed by the seventeen officers, admirals ajid commanders, who composed it, in which they acknowledged that " the re ** solutions of the \6tk and 'Zlst of May^ were unjust and OF ENGLAND. 461 large, it is needless to add that all offences com- mitted by persons of the military profession, in regard to individuals belonging to the other classes of the people, are to be determined upon by the civil judge. Any use they may make of their force, unless expressly authorised and di- rected by the civil magistrate, let the occasion be what it may, makes tiiem liable to be con- victed of murder for any life that may have been lost. To allege the duties or customs of their profession, in extenuation of any offence, is a plea which the judge will not so much as understand. Whenever claimed by the civil power, they must be delivered up immediately. Nor can it, in general, be said that the coun- tenance shown to the military profession by the ruling power in the state has constantly been such as to inspire the bulk of the people with a disposition tamely to bear their acts of oppres- '* vnwarrantable, and to ask pardon of his lordship^ and the *' whole court of Common Fleas, for the indignity offered to *^ him and the court/' This letter judge Willes read in the open court, and di- rected the same to be registered in the Remembrance Office, *' as a memorial to thepresent andfuture ages, that whoever •* set themselves above the law, will, in the end, Jind them- ** selves mistaken!" The letter from the court-martial, and Judge Willes's acceptation, were inserted in the nrxt Ga- aette, 15th November, J74^. 462 THE CONSTITUTION sion, or to raise in magistrates and juries any degree of prepossession sufficient to lead them always to determine with partiality in their fa- vour*. The subjection of the military to the civil power, carried to that extent it is in England, is another characteristic and distinctive circum- istance in the English government. It is sufficiently evident that a king does not look to his army for his support, who takes so little pains to bribe and unite it to his interesti This right, possessed by the people of Eng- land, constitutes the great difference between them and all the other nations that live under monarchical governments. It likewise gives them a gi'eat advantage over such as are formed into republican states, and confers on them a mean of influencing the conduct of the govern- ment, not only more effectual, but also (which is more in point to the subject of this chapter) incomparably more lasting and secure than those reserved to the people^^ in the states we mention. OF ENGLAND. 473 In those states, the political rights which usu- ally fall to tbe^ share of the people are tliose of voting in general assemblies, either when laws are to be enacted, or magistrates to be elected. But as the advantages arising from these gene- ral rights of giving votes are never very clearly ascertained by the generality of the people, so neither are the consequences attending particu- lar forms or modes of giving these votes gene* rally and completely understood. They accord- ingly never entertain any strong and constant preference for one method rather than another ; and hence it always proves too easy a thing in republican states, either by insidious proposals made at particular times to the people, or by well-contrived precedents, or other means, first to reduce their political privileges to mere cere* monies and forms, and, at last, entirely to abo- lish them. Thus, in the Roman republic, the mode which was constantly in use for about one hun- dred and fifty years, of dividing the citizens into centurice when they gave their votes, re- duced the right of the greater part of them, dur* ing that time, to little more than a shadow. After the mode of dividing them by tribes had been introduced by the tribunes, the bulk of the citizens indeed w^ere not, when it was used, un* 476 THE CONSTITUTION der so great a disadvantage as before ; but yet the great privileges exercised by the magistrates in all the public assemblies, the power they assumed of moving the citizens out of one tribe into another, and a number of other circum- stances, continued to render the rights of the citizens more and more inefficient ; and in fact we do not find that when those rights were at last entirely taken from them, they expressed any very great degree of discontent. In Sweden (the former government of which partook much of the republican form) the right allotted to the people in the government was that of sending deputies to the general states of the kingdom, who were to give their votes on the resolutions that were to be taken in that assem- bly. But the privilege of the people of sending such deputies was, in the first place, greatly di- minished by some essential disadvantages under which these deputies were placed with respect to the body, or order ^ of the nobles. The same privilege of the people was farther lessened by their deputies being deprived of the right of freely laying their different proposals before the states, for tlieir assent or dissent ; and by vesting the exclusive right of framing such proposals in a private assembly, which was called the secret committee. Again, the right allowed to the or- OF ENGLAND. 477 der of the nobles, of having a number of mem- bers in this secret committee, double to that of all the other orders taken together, rendered the rights of the people still more ineffectual. At the last revolution, the rights we mention were in a manner taken from the people ; and they do not seem to have made any great efforts to preserve them"^. But the situation of affairs in England is to- tally different from that which we have just de- scribed. The political rights of the people are inseparably connected with the right of property — with a right which it is as difficult to invali- date by artifice, as it is dangerous to attack by force, and which we see that the most arbitrary kings, in the full career of their power, have never offered to violate without the gi^eatest pre- cautions. A king of England who would enslave his people, must begin with doing, for his first act, what all other kings reserve for the last; and he cannot attempt to deprive his subjects of * I might have produced examples of a number of re- publican states, in which the people have been brought, at one time or other, to submit to the loss of their political privileges. In the Venetian republic, for instance, the right, long vested exclusively in a certain number of fami- lies, — of enacting laws, and electing the doge and other magistrates,— was originally enjoyed by the whole people. 478 THE CONSTITUTION their political privileges, without declaring war against the whole nation at the same time, and attacking every individual at once in his most permanent and his best-understood interest. The mean possessed by the people of Eng- land, of influencing the conduct of the govern- ment, is not only in a manner secure against any danger of being taken from them : it is more- over attended with another advantage of the greatest importance ; which is that of conferring naturally, and as it were necessarily, on those to whom they intrust the care of their interests, the great privilege we have before described, of debating among themselves whatever questions they deem conducive to the good of their con- stituents, and of framing whatever questions they think proper, and in what terms they choose. This privilege of starting new subjects of de- liberation, and, in short, of propounding in the business of legislation, which, in England, is al- lotted to the representatives of the people, forms another capital difference between the English constitution, and the government of other free states, whether limited monarchies or com- monwealths, and prevents that which, in those states, proves a most effectual mean of subvert* ing the laws favourable to public liberty, — name* ly, the undermining of these laws by the prece- OF ENGLAND. 479 dents and artful practices of those who are in- vested with the executive power in the govern- ment. In the states we mention, the active share, or the business oi propounding, in legislation, being ever allotted to those persons who are invested with the executive authority, they not only pos- sess a general power, by means of insidious and well-timed proposals made to the people, of get- ting those laws repealed which set bounds to their authority ; but when they do not choose openly to discover their wishes in that respect, or perhaps are even afraid of failing in the attempt, they have another resource, which, though slower in its operation, is no less effec- tual in the issue. They neglect to execute those law s which they dislike, or deny the benefit of them to the separate straggling individuals who claim it, and, in short, introduce practices that are directly repugnant to them. These prac- tices in a course of time become respectable usages, and at length obtain the force of laws. The people, even where they are allowed a share in legislation, being ever passive in the exercise of it, have no opportunities of framing new provisions by which to remove these spu- rious practices or regulations, and declare what the law in reality is. The only resource of the 480 THE CONSTITUTION citizens, in such a state of things, is either to be perpetually cavilling, or openly to oppose : and, always exerting themselves either too soon or too late, they cannot come forth to defend their liberty, without incurring the charge, either of disaffection, or of rebellion. And while the whole class of politicians, who are constantly alluding to the usual forms of li- mited governments, agree in deciding that free- dom, when once lost, cannot be recovered*, it happens that the maxim principiis obsta, which they look upon as the safeguard of liberty, and which they accordingly never cease to recom- mend, besides its requiring a degree of watch- fulness incompatible with the situation of the people, is in a manner impracticable. But the operation of preferring grievances, which in other governments is a constant fore- runner of public commotions, and that of fram- ing new law-remedies, which is so jealously se- cured to the ruling powers of the state, are, in England, the constitutional and appropriated offices of the representatives of the people. How long soever the people may have re- mained in a state of supineness, as to their most * " Ye free nations, remember this maxim : Freedom " may be acquired, but it cannot be recovered." Jxous^ seaus Social Contract, chap. viii. OF ENGLAND. 481 valuable interests, whatever may have been the neglect and even the errors of their representa- tives, the instant the latter come either to see these errors, or to have a sense of their duty, they proceed, by means of the privilege we men- tion, to abolish those abuses or practices which, during the preceding years, had taken place of the laws. To how low soever a state public li- berty may happen to be reduced, they take it^ where they find it, lead it back through the same path, and to the same point, from which it had been compelled to retreat ; and the ruling power, whatever its usurpations may have been, — how far soever it may have overflowed its banks,- — is ever brought back to its old limits. To the exertions of the privilege we mention, were owing the frequent confirmations and elu- cidations of the Great Charter that took place in different reigns. By means of the same pri- vilege the act was repealed, without public com- motion, which had enacted that the king's pro- clamation should have the force of law : by this act public liberty seemed to be irretrievably lost ; and the parliament which passed it, seemed to have done what the Danish nation did about a century afterwards. The same privilege pro- cured the peaceable abolition of the Court of star-chamber, — a court which, though in itself 2i 482 THE CONSTITUTION illegal, had grown to be so respected through the length of time it had been suffered to exist, that it seemed to have for ever fixed and riveted the unlawful authority it conferred on the crown. By the same means was set aside the power which the privy council had assumed of imprisoning the subject without admitting to bail, or even men- tioning any cause. This power was, in the first instance, declared illegal by the Petition of Right; and the attempts of both the crown and the judges to invalidate this declaration, by introducing or maintaining practices that were derogatory to it, were as often obviated, in a peaceable manner, by fresh declarations, and, in the end, by the celebrated Habeas Corpus act*. * The case of general warrants may also be mentioned as an instance. The issuing of such warrants, with the name of the person to be arrested left blank, was a prac- tice that had been followed by the secretaries of state for above sixty years. In a government differently constituted, that is, in a government in which the magistrates, or exe- cutive power, should have been possessed of the key of legis- lation, it is difficult to say how^ the contest might have been terminated ; these magistrates would have been but indifferently inclined to frame and bring forth a declaration which would abridge their assumed authority. In the republic of Geneva, the magistracy, instead of rescinding the judgement against M. Rousseau, of which the citizens OF ENGLAND. 483 I shall take this opportunity of observing, in general, how the different parts of the English government mutually assist and support each other. It is because the whole executive au- thority of the state is vested in the crown, that the people may without danger delegate the care of their liberty to representatives : — it is because they share in the government only through these representatives, that they are enabled to possess the great advantage arising from framing and proposing new laws : but for this purpose it is again absolutely necessary that a correspondent prerogative of the crown, that is to say, a veto of extraordinary power, should exist in the state. It is, on the other hand, because the balance of the people is placed in the right of granting to the crown its necessary supplies, that the latter may, without danger, be intrusted with the great authority we mention ; and that the right, for instance, which is vested in it, of judging of the proper time for calling and dissolving parlia- ments (a right absolutely necessary to its pre- complained, chose rather openly to avow the maxim, that standing uses were valid derogations from the written law, and ought to supersede it. This rendered the clamour more violent than before. 2 12 484 THE CONSTITUTION servation^) may exist without producing, ipso facto, the ruin of public liberty. The most singular government upon earth, and which has carried farthest the liberty of the individual, was in danger of total destruction, when Bar- tholomew Columbus was on his passage to Eng- land, to teach Henry the Seventh the way to Mexico and Peru. As a conclusion of this subject (which might open a field for speculation without end) I shall take notice of an advantage peculiar to the English government, and which, more than any other we could mention, must contribute to its duration. All the political passions of mankind, if we attend to it, are satisfied and provided for in the English government; and whether we look at the monarchical, the aristocratical, or the de- mocratical part of it, we find all those powers already settled in it in a regular manner, which have an unavoidable tendency to arise, at one time or other, in all human societies. If we could for an instant suppose that the English form of government, instead of having been the effect of a concun'ence of fortunate '''* As affairs are situated in England, the dissolution of a parliament on the part of the cfown is no more than an appeal either to the people themselves, or to another par- liament. OF ENGLAND. 485 circumstances, had been established from a settled plan by a man who had discovered, be- fore-hand and by reasoning, all those advantages resulting from it which we now perceive from experience, and had undertaken to point them out to other men capable of judging of what he said to them, the following is, most likely, the manner in which he would have expressed him- self. ^ Nothing is more chimerical (he might have * said) than a state either of total equality, or * total liberty, amongst mankind. In all socie- ' ties of men, some power will necessarily arise. ' This power, after gradually becoming confined ^ to a smaller number of persons, will, by a like ' necessity, at last fall into the hands of a single * leader ; and these two effects (of which you ' may see constant examples in history) arising * from the ambition of one part of mankind, and ' from the various affections and passions of the ' other, are absolutely unavoidable. * Let us, therefore, admit this evil at once, * since it is impossble to avoid it. Let us, of ' ourselves, establish a chief among us, since we * must, some time or other, submit to one ; we * shall, by this step, effectually prevent the con- * fiicts that would arise among the competitors ' for that station. But let us, above all, avoid 486 THE CONSTITUTION ^ plurality ; lest one of the chiefs, after succes- ' sively raising himself on the ruin of his rivals, ^ should, in the end, establish despotism, and ' that through a train of incidents the most per- ^ nicious to the nation. * Let us even give him every thing we can con- * fer without endangering our security. Let us ' call him our sovereign ; let us make him con- ' sider the state as being his own patrimony ; let ^ us grant him, in short, such personal privileges * as none of us can ever hope to rival him in ; and ' we shall find that those things which we were ^ at first inclined to consider as a great evil, will ' be in reality a source of advantage to the com- ^ munity. We shall be the better able to set * bounds to that power which we shall have thus ' ascertained and fixed in one place. We shall ^ thus render more interested the man whom we ^ shall have put in possession of so many ad- ' vantages, in the faithful discharge of his duty ; * and we shall procure, for each of us, a power- ' ful protector at home, and, for the whole com- * munity, a defender against foreign enemies, ^ superior to all possible temptation of betray- ' ing his country. ' You may also have observed (he might ' continue) that, in all states there naturally * arise around the person, or persons, who are OF ENGLAND. 487 invested with the public power, a class of men, who, without having any actual share in that power, yet partake of its lustre, — who, pre- tending to be distinguished from the rest of the community, do from that very circumstance become distinguished from it ; and this distinc- tion, though only matter of opinion, and at first thus surreptitiously obtained, yet may be- come in time the source of very grievous ef- fects. * Let us therefore regulate this evil, which we cannot entirely prevent. Let us establish this class of men, who would otherwise grow up among us without our knowledge, and gradu- ally acquire the most pernicious privileges. Let us grant them distinctions that are visi- ble and clearly ascertained : their nature will thus be the better understood, and they will of course be much less likely to become danger- ous. By the same means also, we shall pre- clude all other persons from the hopes of usurping them. As to pretend to distinctions can thenceforward be no longer a title to ob- tain them, every one who shall not be ex- pressly included in their number must continue to confess himself one of the people; and, just as we said before, ^* Let us choose ourselves * one master that we may not have fifty," we may ^88 THE CONSTITUTION ' now say, " Let us establish three hundred lords, ^' that we may not have ten thousand nobles." * Besides, our pride will better reconcile itself * to a superiority which it will no longer think of * disputing. Nay, as they will themselves see * that we are before-hand in acknowledging it, * they w ill think themselves under no necessity ^ of being insolent to furnish us a proof of it. ' Secure as to their privileges, all violent mea- * sures on their part for maintaining, and at last \ perhaps extending them, will be prevented : ^ they will never combine with any degree of ve- #;iiemence, but when they really have cause to * think themselves in danger; and by having ' made them indisputably great men, we shall ' have a chance of often seeing them behave like K. modest and virtuous citizens. * In fine, by being united in a regular assem- ■' bly, they vtill form an intermediate body in - the state, that is to say, a very useful part of f the government. ' It is also necessary (our reasoning lawgiver ' inight add) that w^e, the people, should have * an influence upon government : it is necessary 4: for our own security; it is mo less necessary ' for the security of the government itself. But ' experience must have taught you, at the same ' time, that a gi>eat body of men cannot act. OF ENGLAND. 489 ^ without being, though tliey are not aware of * it, the instruments of the designs of a small * number of persons ; and that the power of the * people is never any thing but the power of a ' few leaders, who (though it may be impossi- * but to tell when or how) have found means to * secure to themselves the direction of its exer- * cise. ' Let us, therefore, be also before-hand with ' this other inconvenience. Let us effect openly ' what would, otherwise, take place in secret. ' Let us intrust our power, before it be taken ' from us by address. Those whom we shall * have expressly made the depositories of it, ' being freed from any anxious care about sup- ' porting themselves, will have no object but to * render it useful. They will stand in awe of us * the more, because they well know that they ^ have not imposed upon us ; and instead of a ' small number of leaders, who would imagine ' they derive their whole importance from their * own dexterity, we shall have express and ac- ' knowledged representatives, who will be ac- * countable to us for the evils of the state. * But, above all, by forming our government ^ with as mall number of persons, we shall pre- ' vent any disorder that may take place in it ' from ever becoming dangerously extensive. 490 THE CONSTITUTION" ' Nay more, we shall render it capable of such ^ inestimable combinations and resources, as * would be utterly impossible in the govem- * ment-of all, which never can be any thing but * uproar and confusion. * In short, by expressly divesting ourselves of * a power, of which we should, at best, have only ' an apparent enjoyment, we shall be entitled to * make conditions for ourselves : we will insist ' that our liberty be augmented ; we will, above ' all, reserve to ourselves the right of watching ^ and censuring that administi'ation which will ^ have been established by our own consent. ^ We shall the better see its faults, because we ^ shall be only spectators of it : we shall correct ^ them the better, because we shall not have * personally concurred in its operations^.' The English constitution being founded upon such principles as those we have just described, no true comparison can be made between it and * He might have added, — " As we will not seek to '** counteract nature, but rather to follow it, we shalF be ** able to procure ourselves a mild legislation. Let us not *' be without cause afraid of the power of one man ; we " shall have no need either of a Tarpeian rock, or of a " council often. Having expressly allowed to the people a " liberty to inquire into the conduct of government, and to " endeavour to correct it, we shall need neither state-pri* ** sons, nor secret informers." OF ENGLAND. 491 the government of any other state ; and since it evidently secures, not only the liberty, but the general satisfaction in all respects, of those who are subject to it, in a much greater degree than any other government ever did, this considera- tion alone affords sufficient ground to conclude, without looking farther, that it is also more likely to be preserved from ruin. And indeed we may observe the remarkable manner in which it has been maintained in the midst of such general commotions as seemed to lead to its unavoidable destruction. It rose again, we see, after the wars between Henry the Third and his barons, — after the usurpation of Henry the Fourth, — and after the long and bloody contentions between the houses of York and Lancaster. Nay, though totally destroyed in appearance after the fall of Charles the First, and though the greatest efforts had been made to establish another form of government in its stead, yet no sooner was Charles the Second called over, than the constitution was re-esta- blished upon all its ancient foundations. However, as what has not happened at one time may happen at another, future revolutions (events which no form of government can totally prevent) may perhaps end in a different manner from that in which past ones have terminated. '492 THE CONSTITUTION New combinations may possibly take place among the then ruling powers of the state, of such a nature as to prevent the constitution, when peace shall be restored to the nation, from settling again upon its ancient and genuine foundations : and it would certainly be a very bold assertion to affirm, that both the outward form, and the true spirit of the English govern- ment, would again be preserved from destruc- tion, if the same dangers to which they have in former times been exposed should again happen to take place. Nay, such fatal changes as those we mention may be introduced even in quiet times, or, at least, by means in appearance peaceable and constitutional. Advantages, for instance, may be taken by particular factions, either of the feeble capacity, or of the misconduct of some future king. Temporary prepossessions of the people may be so artfully managed as to make them concur in doing what will prove afterwards the ruin of their own liberty. Plans of apparent improvement in the constitution, forwarded by men who, though with good intentions, shall proceed without a due knowledge of the true principles and foundations of government, may produce effects quite contrary to those which were intended, and in reality pave the way to OF ENGLAND. 493 its ruin*'. The crown, on the other hand, may, by the acquisition of foreign dominions, acquire a fatal independency on the people: and if, * Instead of looking for the principlesof politics in their true sources, that is to say, in the nature of the affections of mankind, and of those sacred ties by which they are united in a state of society, men have treated that science in the same manner as they did natural philosophy in the time of Aristotle, continually recurring to occult causes and principles, from which no useful consequence could be drawn. Thus, in order to ground particular assertions, they have much used the word constitution in a personal sense, the constitution loves, the constitution forbids, and the like. At other times they have had recourse to luxury, in order to explain certain events ; and, at others, to a still more occult caues, which they have called corruption; and abundance of comparisons drawn from the human body have been also used for the same purposes : continued in- stances of such defective arguments and considerations oc- cur in the works of 3f. de Montesquieu, though a man of so much genius, and from whose writings so much informa- tion is nevertheless to be derived. Nor is it only the ob- scurity of the writings of politicians, and the impossibility of applying their speculative doctrines to practical uses, which prove that some peculiar and uncommon difficulties lie in the way of the investigation of political truths; but the remarkable perplexity which men in general, even the ablest, labour under, when they attempt to descant and argue upon abstract questions in politics, also justifies this observation, and proves that the true first principles of this science, whatever they are, lie deep both in the human feelings and understanding. 40^ THE CONSTITUTION without entering into any farther particulars on this subject, I were required to point out the principal events which would, if they were ever to happen, prove immediately the ruin of the English government I would say, — The Eng- lish government will be no more, either when the crown shall become independent on the na- tion for its supplies, or when the representatives of the people shall begin to share in the execu- tive authority*. CHAPTER XIX. A few additional Thoughts on the Attempts that at particular Times may he 7uade to abridge the Power of the Crown, and some of the Dangers by which such Attempts may be attended. I HE power of the crown is supported by deeper and more numerous roots than the ge- nerality of people are aware of, as has been ob- served in a former chapter ; and there is no cause to fear that the wresting any capital branch of its * And if at any time dangerous changes were to take place in the English constitution, the pernicious tendency of which the people were not able at first to discover, re- strictions on the liberty of the press, and on the power of juries, will give them the first information. OF ENGLAND. 495 prerogative may be effected, in common peace- able times, by the mere theoretical speculations of politicians. However, it is not equally im- practicable that some event of the kind we men- tion may be brought about through a conjunc- tion of several circumstances. Advantage may, in the first place, be taken of the minority, and even of the inexperience or the errors of the person invested with the kingly authority. Of this a remarkable instance happened in the reign of George the First, while that bill, by which the order of peers was in future to be limited to a certain number, was under consideration in the house of commons, to whom it had been sent by the lords. So unacquainted was the king at that time with his own interest, and with the consti- tution of the English government, that, having been persuaded by the party who wished suc- cess to the bill, that the commons only objected to it from an opinion of its being disagreeable to him, he was prevailed upon to send a message to them, to let them know that such an opinion was ill-grounded, and that, should the bill pass in their house, it would meet with his assent. Considering the prodigious importance of the consequenpes of such a bill, the fact is certainly very remarkable. With those personal disadvantages under 496 THE CONSTITUTION which the sovereign may lie for defending his au- thority, other causes of difficulty may concur, — such as popular discontents of long continuance in regard to certain particular abuses of influ- ence or authority. The generality of the pub- lic, bent, at that time, both upon remedying the abuses complained of, and preventing the like from taking place in future, will perhaps wish to see that branch of the prerogative which gave rise to them taken from the crown : a general disposition to applaud such a measure, if effect- ed, will be manifested from all quarters ; and at the same time men may not be aware, that the only material consequence that may arise from depriving the crown of that branch of power which has caused the public complaints, will perhaps be the having transferred that branch of power from its former seat to another, and hav- ing intrusted it to new hands, which will be still more likely to abuse it than those in which it was formerly lodged. In general, it may be laid down as a maxim, that power under any form of government must exist, and be intrusted somewhere. If the con- stitution does not admit of a king, the govern- ing authority is lodged in the hands of magi- strates. If the government, at the same time that it is a limited one, bears a monarchical OF ENGLAND. 497 form, those portions of power that are retrench- ed from the kmg's prerogative will most proba- bly continue to subsist, and be vested in a senate or assembly of great men, under some other name of the like kind. Thus, in the kingdom of Sweden, which, having been a limited monarchy, may supply examples very applicable to the government of this country, we find that the power of convok- ing the general states (or parliament) of that kingdom, had been taken fmm the crown ; but at the same time we also find that the Swedish senators had invested themselves with that es- sential branch of power which the crown had lost : I mean here the government of Sweden as it stood before the last revolution. The power of the Swedish king to confer of- fices and employments had been also very much abridged. But what was wanting to the power of the king, the senate enjoyed : it had the no- mination of three persons for every vacant of- fice, out of whom the king was to choose one. The king had but a limited power in regard to pardoning offenders ; but the senate likewise possessed what was wanting to that branch of his prerogative, and it appointed two persons, without the consent of whom the king could not remit the punishment of any offence. 2 K 498 THE CONSTITUTION The king of England has an exclusive power in regard to foreign affairs, war, peace, trea- ties ; — ^in all that relates to military affairs, he has the disposal of the existing army, of the fleet, &c. The king of Sweden had no such ex- tensive powers ; but they nevertheless existed : every thing relating to the above-mentioned objects was transacted in the assembly of the senate; the majority decided; the king was obliged to submit to it; and his only privilege consisted in his vote being accounted two*. * The Swedish senate was fully composed of sixteen members. In regard to affairs of smaller moment they formed themselves into two divisions, in either of these, ^vhen they did sit, the presence of seven members was re- quired for the effectual transacting of business : in affairs of importance, the assembly was formed of the whole se- nate; and the presence of ten members was required to give force to the resolutions. When the king could not or would not take his seat, the senate proceeded nevertheless, and the majority continued to be equally decisive. As the royal seal was necessary for putting in execution the resolutions of the senate, king Adolphus Frederic tried, by refusing to lend the same, to procure that power which he had not by his suffrage, and to stop the proceedings of the senate. Great debates, in consequence of that preten- sion, arose, and continued for a while ; but at last, in the year 1756, the king was over-ruled by the senate, who or- dered a seal to be made, that was named the king*s seal, which they affixed to their official resolutions, when the king refused to lend his own. OF ENGLAND. 499 If we pursue farther our inquiry on the sub- ject, we shall find that the king of Sweden could not raise whom he pleased to the office of se* nator, as the king of England can in regard to the office of member of the privy council ; but the Swedish states, in the assembly of whom the nobility enjoyed most capital advantages, possessed a share of the power we mention, in conjunction with the king; and in cases of va- cancies in the senate, they elected three persons, out of whom the king was to return one. The king of England may, at all times, de* prive the ministers of their employments. The king of Sweden could remove no man from his office ; but the states enjoyed the power that had been denied to the king ; and they might deprive of their places both the senators, and those per- sons in general who had a share in the admini- stration. The king of England has the power of dis- solving, or keeping assembled, his parliament. The king of Sweden had not that power; but the states might of themselves prolong their du- ration as they thought proper. Those who think that the prerogative of a king cannot be too much abridged, and that power loses all its influence on the dispositions and views of those who possess it, according to J2 K 2 500 THE CONSTITUTION the kind of name used to express the offices by which it is conferred, may be satisfied, no doubt, to behold those branches of power that were taken from a king distributed to several bodies, and shared by the representatives of the people ; but those who think that power, when parceled and diffused, is never so well repressed and re- gulated as when it is confined to a sole indi- visible seat, which keeps the nation united and awake, — ^those who know, that, names by no means altering the intrinsic nature of things, the representatives of the people, as soon as they are invested with independent authority, become, ipso facto, its masters, — those persons, I say, will not think it a very happy regulation in the former constitution of Sweden to have deprived the king of prerogatives formerly attached to his office, in order to vest the same either in a senate, or in the deputies of the people, and thus to have in- trusted with a share in the exercise of the public power those very men whose constitutional office should have been to watch and restrain it. From the indivisibility of the governing autho- rity in England, a community of interest takes place among all orders of men; and hence arises, as a necessary consequence, the liberty enjoyed by all ranks of subjects. This observa- tion has been insisted upon at length in the course OF ENGLAND. 501 of the present work. The shortest reflection on the frame of the human heart suffices to convince us of its truth, and at the same time manifests the danger that would result from making any changes in the form of the existing government, by which this general community of interest might be lessened, — unless we are at the same time also determined to believe, that partial na- ture forms men in this island with sentiments very different from the selfish and ambitious dis- positions which have ever been found in other countries^. * Such regulations as may essentially affect, through their consequences, the equipoise of a government, may be brought about, even though the promoters themselves of those regulations are not aware of their tendency. When the bill passed in the seventeenth century, by which it was enacted that the crown should give up its prerogative of dissolving the parliament then sitting, the generality of people had no thought of the calamitous consequences that were to follow : very far from it. The king himself certain- ly felt no very great apprehension on that account; else he would not have given his assent : and the commons them- selves, it appears, had very faint notions of the capital changes which the bill would speedily effect in their politi- cal situation. When the crown of Sweden was, in the first instance, stripped of all the different prerogatives we have mentioned, it docs not appear that those measures were effected by sudden open provisions for that purpose; it is very pro- <509 THE CONSTITUTION But experience does not by any innate 'allow us to entertain so pleasing an opinion. The bable that the wa}^ had been paved for them by indirect regulations formerly made, the whole tendency of which scarcely any one perhaps could foresee at the time they were framed. When the bill was in agitation, for limiting the house of peers to a certain number, its great constitutional conse* quences were scarcely attended to by any body. The king himself certainly saw no harm in it, since he sent an open message to promote the passing of it : a measure which was not, perhaps, strictly regular. The bill was, it appears, generally approved out of doors. Its fate was for a long time doubtful in the house of commons; nor did they ac- quire any favour with the bulk of the people by finally re- jecting it : and judge Blackstonc, as I find in his Commen- taries, does not seem to have thought much of the bill, and its being rejected, as he only observes that the commons " wished to keep the door of the house of lords as open as '*' possible." Yet, no bill of greater constitutional im- portance was ever agitated in parliament; since the con- sequences of its being passed would have been the freeing the liouse of lords, both in their judicial and legislative capa- ^* cities, from all constitutional check whatever, either from "the crown, or the nation. Nay, it is not to be doubted, that they would have acquired, in time, the right of elect- ing their own members: though it would be useless to point out here by what series of intermediate events the measure might have been brought about. Whether there existed any actual project of this kind among the first framers of the bill, does not appear : but a certain num- ber of the members of the house we mention would have OF ENGLAND. 50? perusal of the history of this country will show us, that the care of its legislators, for the wel- fare of the subject, always kept pace with the exigencies of their own situation. When, through the minority, or easy temper of the reigning prince, or other circumstances, the dread of a superior power began to be over- looked, the public cause was immediately de- serted in a greater or less degree, and pursuit after private influence and lucrative offices took the place of patriotism. When, in the reign of Charles the First, the authority of the crown was for a while annihilated, those very men, who till then had talked of nothing but Magna Charta and liberty, instantly endeavoured openly to trample both under foot. Since the time we mention, the former con- stitution of the government having been re- stored, the great outlines of public liberty have indeed been warmly and seriously defended : but if any partial unjust laws or regulations have been made, especially since the revolu- thought of jt soon enough, if the bill in question had been enacted into a law; and they would certainly have met with success, had they been contented to wait, and had they taken time. Other equally important changes in the substance, and perhaps the outward form, of the govern- ment \fould have followed. 504 THE CONSTITUTION tion of the year 1689, — if any abuses injurious to particular classes of individuals have been suffered to continue, it will certainly be found upon inquiry, that those laws and those abuses were of such a complexion, that from them, the members of the legislature well knew, neither they nor their friends would ever be likely to suffer. If, through the unforeseen operation of some new regulation made to restrain the royal pre- rogative, or through some sudden public revo- lution, any particular bodies or classes of indi- viduals were ever to acquire a personal inde- pendent share in the exercise of the governing authority, we should behold the public virtue and patriotism of the legislators and great men immediately cease with its cause, and aristo- cracy, as it were, watchful of the opportunity, burst out at once, and spread itself over the kingdom. The men who are now the ministers, but then the partners of the crown, would instantly set themselves above the reach of the law, and soon after ensure the same privilege to their se- veral supporters or dependents. Personal and independent power becoming the only kind of security of which men would now show themselves ambitious, the Habeas OF ENGLAND. 505 Corpus act, and in general all those laws which subjects of every rank regard with veneration, and to which they look up for protection and safety, would be spoken of with contempt, and mentioned as remedies fit only for peasants and cits : — it even would not be long before they would be set aside, as obstructing the wise and salutary steps of the senate. The pretensions of an equality of right in all subjects of whatever rank and order, to their property and to personal safety, would soon be looked upon as an old-fashioned doctrine, which the judge himself would ridicule from the bench. And the liberty of the press, now so universally and warmly vindicated, would, without loss of time, be cried down and suppressed, as only serving to keep up the insolence and pride of a refractory people. And let us not believe, that the mistaken people, whose representatives we now behold making such a firm stand against the indivisible "power of the crown, would, amidst the general devastation of every thing they hold dear, easily find men equally disposed to repress the en- croaching, while attainable, power of a senate and body of nobles. The time would be no more when the peo- 506 THE CONSTITUTION pie, upon whatever men they should fix their choice, would be sure to find them ready sin- cerely to join in the support of every important branch of public liberty. * Present or expected personal power, and in- dependence on the laws, being now the conse- quence of the trust of the people, — wherever they should apply for servants, they would only meet with betrayers. Corrupting, as it were, every thing they should touch, they could con- fer no favour upon an individual but to destroy his public virtue ; and (to repeat the words used in a former chapter) " their raising a man would " only be immediately inspiring him with views ^ directly opposite to their own, and sending *' him to increase the number of their enemies.'* All these considerations strongly point out the very great caution which is necessary to be used in the difficult business of laying new re- straints on the governing authority. Let there- fore the less informed part of the people, whose zeal requires to be kept up by visible objects, look (if they choose) upon the crown as the only seat of the evils they are exposed to ; mistaken notions on their part are less dangerous than political indifference ; and they are more easily directed than roused: — but, at the same time, OF ENGLAND. 507 let the more enlightened part of the nation constantly remember, that the constitution only subsists by virtue of a proper equilibrium,— by a discriminating line being drawn between pow- er and liberty. Made wise by the examples of several other nations, by those which the history of this very country affords, let the people, in the heat of their struggles in the defence of liberty, always take heed, only to reach, never to overshoot the mark, — only to repress, never to transfer and diffuse power. Amidst the alarms that may at particular times arise from the really awful authority of the crown, let. it, on one hand, be remembered, that even the power of the Tudors was opposed and subdued, — and on the other, let it be look- ed upon as a fundamental maxim, that, when- ever the prospect of personal power and inde- pendence on the governing authority shall offer to the view of the members of the legislature, or in general of those men to whom the people must trust, even hope itself is destroyed. The Hollander, in the midst of a storm, though trusting to the experienced strength of the mounds that protect him, shudders, no doubt, at the sight of the foaming element that sur- rounds him ; but they all gave themselves over J 508 THE CONSTITUTION for lost, when they thought the worm had pene- trated into their dykes^. CHAPTER XX. A few additional Observations on the Right of Taxa- tion, which is hdged in the Hands of the Representa- tives of the People. What kind of Danger this Right may be exposed to. The generality of men, or at least of politi- cians, seem to consider the right of taxing them- selves, enjoyed by the English nation, as being no more than the means of securing their pro- perty against the attempts of the -brown ; while they overlook the nobler and more extensive efficiency of that privilege. The right to grant subsidies to the crown, possessed by the people of England, is the safe- guard of all their other liberties, religious and civil; it is a regular mean conferred on them by the constitution, of influencing the motion * Such new forms as may prove destructive of the real substance of a government may be unwarily adopted, in the same manner as the superstitious notions and practices described in my work, entitled Memorials of Human Super- stitioriy may be introduced into a religion, so as entirely to subvert the true spirit of it. ft '^ OF ENGLAND. 509 of the executive power : and it forms the tie by which the latter is bound to them. In short, this privilege is a sure pledge in their hands, that their sovereign, who can dismiss their re- presentatives at his pleasure, will never enter- tain thoughts of ruling without the assistance of these. If, through unforeseen events, the crown could attain to be independent on the people in regard to its supplies, such is the extent of its preroga- tive, that, from that moment, all the means the people possess to vindicate their liberty would be annihilated. They would have no resource left, — except indeed that uncertain and calami- tous one, of an appeal to the sword ; which is no more, after all, than what the most enslaved na- tions enjoy. Let us suppose, for instance, that abuses of power should be committed, which, either by their immediate operation, or by the precedents they might establish, should undermine the liber- ty of the subject. The people, it will be said, would then have their remedy in the legislative power possessed by their representatives. The latter would, at the first opportunity, interfere, and frame such bills as would prevent the like abuses for the future. But here we must ob- serve, that the assent of the sovereio;n is neces- 510 THE CONSTITUTION sary to make those bills become laws : and if, as we have just now supposed, he had no need of the support of the commons, how could tliey obtam his assent to law^s thus purposely framed to abridge his authority ? Again, let us suppose that, mstead of content- ing itself with making slow advances to despot- ism, the executive power, or its minister, should at once openly invade tlie liberty of the subject. Obnoxious men, printers for instance, or politi- cal writers, might be persecuted by military vio- lence, or, to do things with more security, with the forms of law. Then, it will be said, the re* presentatives of tiie people would impeach tlic persons concerned in tliose measures. Though unable to reach a king who personally can do no wrong, they at least would attack those men w^ho were the immediate instruments of his tyrannical proceedings, and endeavour, by bringing them to condign punishment, to deter future judges or ministers from imitating their conduct. All this I grant ; and I w ill even add, that, circum- stanced as the representatives of the people now are, and having to do with a sovereign w^ho can enjoy no dignity without their assistance, it is most likely that their endeavours in the pursuit of such laudable objects would prove successful. But if, on the contrary, the king, as we have sup- OF ENGLAND. 511 posed, stood in no need of their assistance, and moreover knew that he should never want it, it is impossible to think that he would then suffer himself to remain a tame spectator of their pro- ceedings. The impeachments thus brought by them would immediately prove the signal of their dismission ; and the king would make haste, by dissolvincr them, both to revenge what would then be called the insolence of the commons, and to secure his ministers. But even those are vain suppositions ; the evil would reach much farther ; and we may be assured that, if ever the crown should be in a condition to govern without the assistance of the representatives of the people, it would dismiss them for ever, and thus rid itself of an assembly which, continuing to be a clog on its power, would no longer be of any service to it. This Charles the First attempted to do when he found his parliaments refractory, and the kings of France really have done, with respect to the general estates of their kingdom. Indeed if we consider the extent of the prero- gative of the king of England, and especially the circumstance of his completely uniting in him- self all the executive and active powers' of the state, we shall find that it is no exaggeration to 512 THi: CONSTITtfTION say, that he has power sufficient to be as arbi- trary as the kings of France, were it not for the right of taxation, which, in England, is possess- ed by the people; and the only constitutional difference between the French and English na- tions is, that the former can neither confer be- nefits on their sovereign, nor obstruct his mea- sures ; while the latter, how extensive soever the prerogative of their king may be, can deny him the means of exerting it. But here a most important observation is to be made; and I entreat the reader's attention to the subject. This right of granting subsidies to the crown can only be effectual when it is ex- -ercised by one assembly alone. When several distinct assemblies have it equally in their power to supply the wants of the prince, the case be- comes totally altered. The competition which so easily takes place between those different bodies, and even the bare consciousness which each entertains of its inability to obstruct the measures of the sovereign, render it impossible for them to make any effectual constitutional use of their privilege. " Those different parlia- " ments or estates (to repeat the observation " introduced in the former part of this work) " having no means of recommending themselves OF ENCJLANDi 51S ^^ to their sovereign, but their superior readiness " in complying with his demands, vie with each '^ other in granting what it would not only be " fruitless but even dangerous to refuse. And " the king, in the mean time, soon comes to de- " mand, as a tribute, a gift which he is confident " to obtain.' In short, it may be laid down as a maxim, that when a sovereign is made to de- pend, in regard to his supplies, on more assem- blies than one, he in fact depends upon none. And indeed the king of France is not independ- ent of his people for his necessary supplies, any otherwise than by drawing the same from seve- ral different assemblies of their representatives : the latter have in appearance a right to refuse all his demands : and as the English call the grants they make to their kings, aids or subsi- dies, the estates of the French provinces call theirs dons gratuits, or free gifts. What is it, therefore, that constitutes the dif- ference between the political situation of the French and English nations, since their rights thus seem outwardly to be the same ? The dif- ference lies in this, that there has never been in England more than one assembly that could sup- ply the wants of the sovereign. This has always kept him in a state, not of a seeming, but of a 2 L 514 THE CONSTITUTION real dependence on the representatives of the people for his necessary supplies ; and how low soever the liberty of the subject may, at parti- cular times, have sunk, they have always found themselves possessed of the most effectual means of restoring it, whenever they thought proper so to do. Under Henry the Eighth, for instance, we find the despotism of the crown to have been carried to an astonishing height : it was even enacted that the proclamations of the king should have the force of law : a thing which, even in France, never was so expressly de- clared : yet, no sboner did the nation recover from its long state of supineness, than the ex- orbitant power of the crown was reduced within its constitutional bounds. To no other cause than the disadvantage of their situation, are we to ascribe the low con- dition in which the deputies of the people in the assembly called the general estates of France? were always forced to remain. Surrounded as they were by the particular estates of those provinces into which the king- dom had been formerly divided, they never wera able to stipulate conditions with their sovereign ; and,- instead of making their right of granting "Subsidies to the crown serve to s^ain them- ia OF ENGLAND. 516 the end a share in the legislation, they ever re- mained confined to the unassuming privilege of *' humble supplication and remonstrance*." * An idea of the manner in vrhich the business of grant* ing supplies to the crown was conducted by the states of the province of Brctagne in the reign of Louis the Four- teenth, may be formed from several lively strokes to be met with in the letters of Madame de Sevigne, whose estate lay in that province, and who had often assisted at the holding of those states. The granting of supplies was not, it seems, looked upon as any serious kind of business. The whole time the states were sitting, was a continued scene of fes- tivity and entertainment J the canvassing of the demands of the crown was chiefly carried on at the table of the noble- man who had been deputed from court to hold the states; and the different points were usually decided by a kind of acclamation. Tn a certain assembly of those states, the duke of Chaulnes, the lord deputy, had a present of fifty- thousand crowns made to him, as well as a considerably one for his duchess, besides obtai.ning the demand of th^ court: and the lady we quote here, commenting somewhat jocularly on these grants, says, Ce n'est pas que nous soyons riches : mais nous snmmes honnefes, notts avuns da courage^ et entre midi et une heure nous ne savons rien refuser a jios amis, " It is not that we are rich ; but we are civil, we are full " of courage, and between twelve and one o'clock we art *' unable to deny any thing to oar friends." The ditTerent provinces of France, it may be observed, arc liable to pay several taxes besides those imposed on them by their own states. Dean Tucker, in one of his tracts, in which he hms thought proper to quote this wpjrh? 2 L2 516 THE CONSTITUTION Those estates, however, as all the great lords in France were admitted into them, began at length to appear dangerous; and as the king could in the mean time do without their assist- ance, they were set aside. But several of the particular states of the provinces are preserved to this day"* : some, which for temporary reasons had been abolished, have been restored : nay, so manageable have popular assemblies been found by the crown, when it has to do with many, that the kind of government we mention is that which it has been found most convenient to as- sign to Corsica: and Corsica has been made U7i pays cTctats^. That the crown in England should, on a sud- has added to the above instance of the French provinces that of the states of the Austrian Netherlands, which is rery conclusive. And examples to the same purpose might be supplied by all those kingdoms of Europe in which pro- vincial states are holden. * The year 1784. + The English, partly by conquest, and partly by the submission of the inhabitants, gained possession of Corsica in 179"*; and a national parliament was granted to the island by its new possessors. But the people did not long submit with patience to the British government : the island was evacuated in 1796, and re-possessed by the French, who reduced it under the same tyrannical yoke to which thwr other territories were subject. Edit. OF ENGLAND. S17 den, render itself independent on the commons for its supplies, — that is, should on a sudden^ successfully assume to itself a right to lay taxes on the subject, by its own authority, — is not certainly an event likely to take place, nor in- deed is it one that should, at the present time, raise any kind of political apprehension. But it is not equally impracticable that the right of the representatives of the people might become inva- lidated, by being divided in the manner that has been just described. Such a division of the right of the people might be effected in various ways. National calamities for instance, unfortunate foreign wars attended with loss of public credit, might suggest me- thods for raising the necessary supplies, different from those which have hitherto been used. Di- viding the kingdom into a certain number of parts, which should severally vote subsidies to the crown, or even distinct assessments to be made by the different counties into which Eng- land is now divided, might, in the circumstances we suppose, be looked upon as advisable expe- dients; and these, being once introduced, might be continued. Another division of the right of the people, nmch more likely to take place than those just mentioned, might be such as might arise from 51 S THE CONSTITUTION acquisitions of foreign dominions, the inhabit- ants of which should in time claim and obtain a right to treat directly with the crown, and grant supplies to it, without the interference of the British legislature. Should any colonics acquire the right we m^ntion,-^should, for instance, the American ^Jonies have acquired, as they claimed it, — it is not to be doubted that the consequences which have resulted from a division like that we men- tion in most of the kingdoms of Europe, would also have taken place in the British dominions, and that the spirit of competition, above de- scribed, would in time have manifested itself between the different colonies. This desire of ingratiating themselves with the crov» n, by means of the privilege of granting supplies to it, was #ven openly confessed by an agent of the Ame- rican provinces*, when, on his being examined by the house of commons in the year 1 766, he said, ^' the granting aids to the croivn is the *' or? ^y means the Americans have of recom* ** mendinfy themselves to their sovereign,'" And the events that have of late years taken place in America, render it evident that the colonies T^uld not have scrupled going any lengths to * Df. F/anliliB. OF ENGLAND. 5i9 obtain favourable conditions at the expense of Britain and the British legislature. That a similar spirit of competition might be raised in Ireland, is also sufficiently plain from certain late events. And should the American colonies have obtained their demands, — and at the same time should Ireland and America have increased in wealth to a certain degree, — the time might have come at which the crown might have governed England with the supplies of Ireland and America — Ireland with the sup- plies of England and of the American colonies — and the American colonies with the money of each other, and of England and Ireland. To this it may be objected, that the supplies granted by the colonies, even though joined with those of Ireland, never could have risen to such a heiglit as to have counterbalanced the importance of the English commons. — I an- swer, in the first place, that there would have been no necessity that the aids granted by Ire- land and America should have risen to an equality with those granted by the British par- liament : it would have been sufficient to pro- duce the effects we mention, that they had only borne a certain proportion to the latter, so far as to have conferred on the crown a certain de- gree of independence, and at the same time have 520 THE CONSTITUTION raised in the English commons a correspondent sense of self-diffidence in the exercise of their undoubted privilege of granting, or rather re- fusing y subsidies to the crown. — Here it must be remembered, that the right of granting or re- fusing supplies to the crown is the only ultimate forcible privilege possessed by the British par- liament : by the constitution it has no other, as has been observed in the beginning of this chap- ter. This circumstance ought to be combined with the exclusive possession of the executive powers lodged in the crown — with its preroga-r tive of dissenting from the bills framed by par- liament, and even of dissolving it^, * Being with Doctor Franklin at his house in Craven- street, some months before he went back to America, I mentioned to him a few of the remarks contained in this chapter, and, in general, that the claim of the Amcricap colonies directly clashed with one of the vital principles of the Engjish constitution. The observation, I remember, struck him very much : it led him afterwards to speak to me of the examination he bad undergone in the house of commons; and he concluded with lending me that volume of the Collection oi Parliament artj DebeteSy in which an ac- count of it is contained., Finding the constitutional tend- ency of the claim of the Americans to be a subject not very generally understood, 1 added a few paragraphs con- cerning it in the English edition I some time after gave of this work ; and on publishing a third edition of the same, I thought it might not be amiss to write something more OF ENGLAND. 521 I shall mention, in the second place, a re- markable fact in regard to this subject (which may serve to show that politicians are not al- ways consistent, or even sagacious in their ar- guments) ; which is, that the same persons who were the most strenuous advocates for granting to the American colonies their demands, were likewise the most sanguine in their predictions of the future wealth and greatness of America; and at the same time also used to make fre- quent complaints of the undue influence which the crown derives from the scanty supplies granted to it by the kingdom of Ireland*. Had the American colonies fully obtained their demands, both the essence of the present English government, and the condition of the Engfch people, would certainly have been al- compact on the subject, and accordingly added the present new chapter, into which I transferred ihe few additional paragraphs I mention, leaving in the place where they stood (page 45), only the general observations on the right of granting subsidies, which were formerly in the French work. Several of the ideas, and even expressions contained in this chapter, made their appearance in the Pvb/ic Adver- tiser, about the time I was preparing the first edition: I sent them myself to that newspaper, under the signature of Adveria, * For instance, the complaints made in regard to the pensions on the Irish cstablishmeiit. 522 THE QONSTITUTIO^^ tered thereby : nor would such a change have been inconsiderable, but in proportion as the colonies should have remained in a state of na- tional poverty"^. * When I observe that no man who wished for the pre- servation of the form and spirit of the English constitution ought to have desired that the claim of the American co- lonies might be granted to them, I mean not to say that the American colonics should have given up their claim. The wisdom of ministers, in regard to American affairs, onght to have been constantly employed in making the co- lonies useful to this country, and at the same time ia hid- ing their subjection from them (a caution, which is, after all, more or less used in every government upon earth) ; it ought to have been exerted in preventing the opposite in- terests of Britain, and of America, from being brought to an issue, — to any such clashing dilemma as would render disobedience on the one hand, and the resort to force on the other, almost unavoidable. The generality of the people fancy that ministers use a great depth of thought and much forecast in their operations; whereas the truth is, that ministers, in all countries, never think but of providing for present, immediate contingencies; in doing which they constantly follow the open track before them. This method does very well for the common course of hu- man affairs, and even is the safest; but whenever cases and circumstances of a new and unknown nature occur, sad blunders and uproar are the consequences. The celebrated count Oxenstiern, chancellor of Sweden, one day when his son was expressing to him his diffidence of his own abili- ties, and the dread with which he thought of ever engaging OF ENGLAND. 5^3 CHAPTER XXL Conclusion > — A few Words on the Nature of the Di- visions that take place in England. 1 SHALL conclude this work with a few ob- servations on the total freedom from violence with which the political disputes and conten- in the management of public affairs, made the following Latin answer to him ; Nescisy mijili, qvam parsd cum sapi- entid regitur mundus — " You do not know, my son, with ** what little wisdom the world is governed/' Matters having come to an eruption, it was no longer to be expected they could be composed by the palliative offers sent at different times from this country to America. When the earl ol" Carlisle solicited to be at the head of the solemn commission that sailed for the purpose we mention, he did not certainly show modesty equal to that of the son of chancellor Oxensticrn. It has been said, in that stage of the contest, the Americans could not think that the pro- posals thus sent to them were seriously meant : however, this cannot have been the principal cause of the miscar- riage of the commission. 1 he fact is, that after the Ame- ricans had been induced to open their eyes on their poli- tical situation, and rendered sensible of the local advan- tages of their country, it became in a manner impossible to strike with them any bargain at which either nation would afterwaids have cause to rejoice, or even to make any bargain at all. It would be needless to say any thing 524 TliK CONSTITUTIOX tions ill England are conducted and terminated, in order both to give a farther proof of the soundness of the principles on which the Eng- lish government is founded, and to confute in general the opmion of foreign writers or politi- cians, who, misled by the apparent heat with which those disputes are sometimes carried on, and the clamour to which they give occasion, look upon England as a perpetual scene of civil broils and dissensions. In fact, if we consider, in the first place, the constant tenor of the conduct of the parliament we shall see that whatever different views the several branches that compose it may at times pursue, and whatever use they may accordingly make of tiieir privileges, they never go, in re- gard to each other, beyond the terms of de- cency, or even of that general good understand- ing which ought to prevail among them. Thus the king, though he preserves the style of his dignity, never addressed the two houses but in terms of rea;ard and affection : and if at more, in this place, on the subject of the American con- test. The motto of one of the English nobility should have been that of ministers, in their regulations for rendering the colonies useful to the mother country,— FtfaVe savs dire. OF ENGLAND. 5^5 any time he chooses to refuse their bills, he only says that he will consider of them fie roy s'avi- sera) ; which is certainly a gentler expression than the word veto. The two houses on their pa;it, though very jealous, each within their own walls, of the free- dom of speech, are, on the other hand, careful that this liberty shall never break out into un- guarded expressions ^^ith regard to the person of the king. It is even a constant rule amongst >them never to mention him, when they mean to blame the administration ; and those things which they may choose to censure, even in the speeches made by the king in person, and which are apparently his own acts, are never consider- ^ but as the deeds of his ministers, or, in gene- ral, of those who have advised him. The two houses are also equally attentive to prevent every step that may be inconsistent with tliat respect which they owe to one another. The examples of their differences with each other are very rare, and have been, for the most part, mere misunderstandings. Nay, in-order to prevent all subject of altercation, the custom is, that, when one house refuses to assent to a bill pre- aented by the other, no formal declaration is made of such refusal ; and that house whose bill 526 THE CONSTITUTION' is rejected, learns its fate only from hearing no more of it, or by what the members may be told as private persons. In each house, the members take care, even in the heat of debate, never to go beyond cer- tain bounds in their manner of speaking of each other : if they were to offend in that respect, they would certainly incur the censure of the house*. And as reason has taudit mankind to refrain, in their wars, from all injuries to each other that have no tendency to promote the main object of their contentions, so a kind of law of nations (if I may so express myself) has been introduced among the persons who form the parliament and take a part in the debates : they have discovered that they may very well be of opposite parties, and yet not hate and persecute one another. Coming fresh from debates car- ried on even with considerable warmth, they meet v/ithout reluctance in the ordinary inter- * Yet many duels have occurred in consequence of in- temperate expressions thrown out amidst the warmth of de- bate ; for the laws of imaginary honour are supposed to over- balance all regard to common morality, and to rise supe- rior to that sense of public duty which ought to prompt every member of a national assembly to sacrifice private resentment on the altar of patriotism. Edit. OF ENGLAND. 527 course of life; and, suspending all hostilities, they hold every place out of parliament to be neutral ground. In regard to the generality of the people, as they never are called upon to come to a final decision with respect to any public measures, or expressly to concur in supporting them, they preserve themselves still more free from party spirit than their representatives themselves some- times are. Considering, as we have observed, the affairs of government as only matter of spe- culation, they never have occasion to engage in any vehement contests among themselves on that account : much less do they think of taking an active and violent part in the differences of par- ticular factions, or the quarrels of private indi- viduals. And those family feuds, those party animosities, those victories and consequent out- rages of factions alternately successful ; in short, all those inconveniences which in so many other states have constantly been the attendants of liberty, and which authors tell us we must sub- mit to, as the price of it, are things in very great measure unknown in England. But are not the English perpetually making complaints against the administration? and do they not speak and write as if they were conti- nually exposed to grievances of every kind ? 528 THE CONSTITUTION Undoubtedly, I shall answer, in a society of beings subject to error, dissatisfactions will ne- cessarily arise from some quarter or other ; and, in a free society, they will be openly manifested by complaints. Besides, as every man in Eng- land is permitted to give his opinion upon all subjects, and as, to watch over the administra- tion, and complain of grievances, is the proper duty of the representatives of the people, com- plaints must necessarily be heard in such a go- vernment, and even more frequently, and upon more subjects, than in any other. But those complaints, it should be remem- bered, are not, in England, the cries of oppres- sion forced at last to break its silence. They do not suppose hearts deeply wounded. Nay I will go farther, — they do not even suppose very determinate sentiments ; and they are often nothing more than the first vent which men give to their new and yet unsettled conceptions. The agitation of the popular mind, therefore, is not in England what it would be in other states : it is not the symptom of a profound and general discontent, and the forerunner of violent commotions. Foreseen, regulated, even hoped for by the constitution, this agitation animates all parts of the state, and is to be considered only as the beneficial vicissitude of the seasons. The or ENGLAND. = ' 529 goveiliing power, being dependent on the na- tion, is often thwarted ; but, so long as it conti- nues to deserve the affection of the people, it can never be endangered. Like a vigorous tree which stretches its branches far and wide, the slightest breath can put it in motion ; but it ac- quires and exerts at every moment a new^ degree of force, and resists the w inds, by the strength and elasticity of its fibres, and the depth of its roots. In a word, whatever revolutions may at times happen among the persons who conduct the pub-^ lie affairs in England, they never occasion the shortest interruption of the power of the laws, or the smallest diminution of the security of individuals. A man who should have incurred the enmity of the most powerful men in the state — what do I say ? — though he had, like another Vatinius, drawn upon himself the unit- ed detestation of all parties, — might, under the protection of the laws, and by keeping within the bounds required by them, continue to set both his enemies and the w hole nation at defi- ance. The limits prescribed to this book do not ad- mit of entering into any farther particulars on the subject we are treating here ; but if we were to pursue this inquiry, and investigate the in- 2 M S30 THE CONSTITUTION fluence which the English government has on the manners and customs of the people, perhaps we should find that, instead of inspiring them with any disposition to disorder or anarchy, it pro- duces in them a quite contrary effect. As they see the highest powers in the state constantly submit to the laws, and they receive, them- selves, such a certain protection from those laws whenever they appeal to them, it is impos- sible but they must insensibly contract a deep- rooted reverence for them, which can at no time cease to have some influence on their actions. And, in fact, we see that even the lower clas9 of the people, in England, notwithstanding the ap- parent excesses into which they are sometimes hurried, possess a spirit of justice and order su- perior to what is to be observed in the same rank of men in other countries. The extraordinary indulgence which is shown to accused persons of every degree, is not attended with any of those pernicious consequences which we might at first be apt to fear from it. And it is, perhaps, to the nature of the English constitution itself (how- ever remote the cause may seem) and to the spi- rit of justice which it continually and insensibly diffuses through all orders of the people, that we are to ascribe the singular advantage pos- .sessed by the English nation, of employing an in- OF ENGLAND. 531 comparably milder mode of administering justice in criminal matters than any other nation, and at the same time of affording, perhaps, fewer instances of violence or cruelty. Another consequence which we might ob- serve here, as flowing also from the principles of the English government, is the moderate behaviour of those who are invested with any branch of public authority. If we look at the conduct of public officers, from the minister of state, or the judge, down to the lowest officer of justice, we find a spirit of forbearance and leni* ty prevailing in England, among the persons in power, which cannot but create surprise in those who have visited other countries. Two circumstances more I shall mention here, as peculiar to England; namely, the constant attention of the legislature in providing for the interests and welfare of the people, and the in- dulgence shown by them to their very preju- dices ; advantages these, which are, no doubt, the consequence of the general spirit that ani- mates the whole English government, but are also particularly owing to the circumstance pe- culiar to it, of having lodged the active part of legislation in the hands of the representatives of the nation, and committed the care of alle- viating the grievances of the people to persons £ M 2 532 THE CONSTITUTION who either feel them, or see them nearly, and whose surest path to advancement and fame is to be active in finding remedies for them. I mean not, however, to affirm that the Eng- lish government is free from abuses, or that all possible good laws are enacted, but that there is a constant tendency in it, both to connect the one, and improve the other. And that all the laws which are in being are strictly executed, whenever appealed to, is what I look upon as the characteristic and undisputed advantage of the English constitution, — a constitution the more likely to produce all the effects we have mentioned, and to procure in general the hap- piness of the people, since it has taken mankind as they are, and has not endeavoured to prevent every thing, but to regulate every thing ; I shall add, the more difficult to discover, because its form is complicated, while its principles are na- tural and simple. Hence it is that the politi- cians of antiquity, sensible of the inconveniences of the governments they had opportunities of knowing, wished for the establishment of such a government, without much hope of ever seeing it realised* : even Tacitus, an excellent judge * " Statuo esse optime constitutam rempublicam quse' " ex tribus generibus illis, regali, optimo, ot populari, mo- " dice confusa.*'— Cic, Frasim, OF ENGLAND. 533 of political subjects, considered it as a project entirely chimerical*. Nor was it because he had not thought of it, had not reflected on it, that he was of this opinion : he had sought for such a government, had had a glimpse of it, and yet continued to pronounce it impracticable. Let us not, therefore, ascribe to the confined views of man, to his imperfect sagacity, the discovery of this important secret. The world tnight have grown old, generations might have succeeded generations, still seeking it in vain. It has been by a fortunate conjunction of cir- cumstances, — I shall add, by the assistance of a favourable situation, — that Liberty has at last been able to erect herself a temple. Invoked by every nation, but of too delicate a nature, as it should seem, to subsist in socie- ties formed of such imperfect beings as mankind, she showed, and merely showed herself, to the ingenious nations of antiquity who inhabited the south of Europe. They were cotistantly mis- taken in the form of the worship they paid to her. As they continually aimed at extending '/■■u/ .!> i, , ' ■ : * " Cunctas nationes ct urbcs, populus, aiit priores, aiit " singuli, regunt. Delecta ex his et constituta reipublicse " forma, laudari facilius quam evenirc : vel, si evenii, baud * diuturna esse potest." — Tac. Ann. lib. iv. 534 THE CONSTITUTION dominion and conquest over other nations, they were no less mistaken in the spirit of that wor- ship ; and though they continued for ages to pay their devotions to this divinity, she still conti- nued, with regard to them, to be the unknown goddess. Excluded, since that time, from those places to which she had seemed to give a preference, driven to the extremity of the Western >World, banished even out of the Continent, she has taken refuge in the Atlantic Ocean. There it is, that, freed from the dangers of external dis- turbance, and assisted by a happy pre-arrange- ment of things, she has been able to display the form that suited her ; and she has found six cen- turies to have been necessary for the completion of her work. Being sheltered, as it were, within a citadel, she there reigns over a nation which is the bet- ter entitled to her favours, as it endeavours to extend her empire, and carries with it, to every part of its dominions, the blessings of industry and equality. Fenced in on every side (to use the expressions of Chamberlayne) with a wide and deep ditch, the sea, — guarded with strong out-works, its ships of war, — and defended by the courage of her seamen, — she preserves that OF ENGLAND. 535 mysterious essence, that sacred fire so difficult to be kindled, and which, if it were onde ex- tinguished, would perhaps never be lighted again. When the world shall have been again laid . waste by conquerors, she will still continue to show mankind, not only the principle that ought to unite them, but, what is of no less im- portance, the form under which they ought to be united. And the philosopher, when he consi- ders the constant fate of civil societies amongst men, and observes the numerous and powerful causes which seem, as it were, unavoidably to conduct them all to a state of political slavery, will take comfort in seeing that Liberty has at length disclosed her nature and genuine princi- ples, and secured to herself an asylum, against despotism on one hand, and popular licentious- ness on the other*. *This work cannot be dismissed without praise by any editor who has a due sense of merit. The author, like an ingenious painter, sees the whole of his subject at one view; exhibits the prominent features in a strong light, without neglecting the inferior parts of the piece; observes the keeping and the perspective, and gives an interesting Ji?iish to the strokes of art. His colouring is, perhaps, too high : I do not mean that his style is brilliant ; but his display is, in some respects, too flattering. Occasionally he seems to refine too much, in attributing to art and design what may 536 THE CONSTITUTION OF ENGLAND. in a great measure have arisen- from chance. But this is the natural effect of that zeal for his subject, and of that respect for our ancestors, which he iipbib^d in the progress of his work. ii Vlk: ntyf>. INDEX A. AMERICAN Colonies, their claim of voting supplies to the crown, hurtful, if obtained, to the English consti- tution, 518, 521. What ought to have been the ge- neral conduct of ministers in regard to the colonies, 522. Appcaly in case of murder, its effects, and to whom allowed, 89. Anny, restrictions on the power of the king in regard to the keeping of it, 89, 90. Is not, in England, i\m means of supporting the authority of the crown, 439- How little its assistance was useful to James II., 464'. See Military Pov:er and Crown, Arrest, method of, in civil causes, by the English laws, 112,113. By the Roman laws, 115, ll6. The alte- rations in the English law in that respect, 117. Assemblies, popular, the disadvantages they lie under in regard to each coaling to any deliberate well-weighed resolution, 249, 250. The advantages a few distin- guished citizens have over them, 255. Tully's passage concerning them, 266. See People, Cotmnonwealths, Rome. Athens, arbitrary proceedings of its magistrates, 27'4. Aula Regis, what kind of Couyt, l6. The Court of Com- mon Pleas dismembered from it, 110. The court of King's Bench may be considered as the remains of it, 111. Author, occasional personal remarks of his, 373, 421, 438, 447. His Memorials of' Hit?nan Superstition quoted, 508. His conversation with Dr. Franklin, 520. B. ^ Barons, orginally in a great measure independent in 538 INDEX. France, 13. Not so in England, 15. Unite in a com- mon cause with the people, 23, 336,450. Beauchampy lord (now marquis of Hertford), procures the passing of a bill for limiting personal arrests, 118. Bz7/^, how deliberated upon and framed, 68,226, 234, '■267 ' See Commons and Parliament. Bill of Rights, an account of, 59. Utility of its provi- sions, 341. Blackstoncy judge, quoted, 70, J 44, 182, 35g, 376. Burnet, bishop, quoted, 363) 464. C. O^ar, public speech of his quoted, 378. Censorial power, that established in Rome only a senate- rial artifice, 292. See Press. Censors, in Rome, might remove a man from one tribe into another, and elect senators, 277. Chajiccry, court of, its office in regard to the framing of writs, 128. See Equity, courts of. Charles I. sketch of his reign, 48 — 52. Maintains his ground eleven years against the violent political and religious spirit of his times, 455. His attempt to seize the five members led to the civil war, 457. Charles 11.^ conduct of, 54. Charta, Magna, substance ofy 27, 28. Cicero quoted, 123., 141, 263, 266, 275, 351. Civil English laws, divided into unwritten and written law,. 106. The sources of the unwritten law, 107. How iar the civil law is a part of the same, 109. What the written law is, ibid. Peculiarities of the English civil laws, 112. Refinements and subtilties in them, 118, et seq. Compared with the old Roman civil laws, 126. Civil power in England, Tiow superior to the military, 457,462. Civil Roman laws, the constant dislike of the English lawyers for them, 103, i04. Formalities in the an-^ cient Roman laws, 122. The different collection* of them, 148. Cohe, sir Edward, quoted, 176, 180, 227, 294. Comines, Philip de, quoted, 40. Commons, English, their origin, under Henry HI. and Ed-^ ward I. 31, 32. How inconsiderable their weight at first, 33. This soon increaseSr 34. Farther advances. INDEX. 55^ '*41, 42. How the house is constituted, 62. Vindicate the right of taxation against the attempts of the crown, 46,51. And of the lords, 85. See Taxation, They cannot vote by proxy, 227- Enjoy a freedom of de- bate superior to that ever possessed by any popular assembly, 235. They are debarred from any share in the executive authority, 281. Are thence led to serve the people faithfully, 283, 284. Striking instances of this in the laws they have framed at particular times, 338—40. And in their watching their execution, ^^7 — 9. Have impeached the servants of the crown and judges, 359. Their proceedings in the case of sir John Coventry, 363. See Parliament and Represent a^ five- Abridge their own personal privileges, 367. Do strict justice on their own members, ibid. On what occasion they repealed the statute De Haretico Com' burendoy 380. Their attacks on the crown's prerogative defeated by the lords, 391. They in their turn defeat the like attempts from the lords, 392. Commonwealths i the people in them apt to be misled by favourite leaders, 199, 200. The division of the exe- cutive authority that takes place in them, makes it very difficult to lay it under proper restraint, 220. The people unavoidably betrayed by those whom they trust with power, 271, 275, 278. Revolutions always con- cluded, in them, in a manner disadvantageous to pub- lic liberty, 323. See IXevolutions. The laws to secure the liberty of the citizens, besides being imperfect, are not even carefully executed, 341, et seq. Cannot sub- sist without certain arbitrary powers, contrary to the liberty of the citizens, 418. Do not admit the liberty of speaking and writing, and, perhaps, cannot, 421. The power of the government supposed by law to be unbounded, till stopped by some positive regulation, 446. By what means commonwealths generally lose their liberties, 475. Great difficulty for the people in them to preserve their rights, 475, 476. See Rome and Geneva. Conquest, the, is the real a;ra of the formation, of the pre- sent English government, 8. Constitution, English, the ff;ras of its formation 8, 40, 58, 82. Being different from that of all other free states, cannot fall into ruin from the same causes, 469. Causes that operate for its preservation, 478. Endangered by 540 INDEX. the offers of Columbus to Henry VII., 484. Farther reasons of its future preservation, 491. How it rises again, after being in a manner overwhelmed, ibid. Dangers to which it may be exposed, 492. In what circumstances it may be looked upon as annihilated, 494. Meddling with it, upon the score of improve- ment, may prove very dangerous experiments, 46'6, 501. See Crown. Would have been altered by grant- . jng the Americans their claims, 521. Sec Taxation. , Seems to diffuse a spirit of order and justice among the iivlower classes of people, 529. Such a one wished for 1." by the politicians of antiquity, 532. Consuls, the aera of their creation, and nature of their of- fice, 324. Unrestrained power, 273, 343. See Rome, Cornnation oalh, 9I. Coventry, sir John, his case, 3^3. Resentment of the commons, and their bill, ibid. Courts oi law, in England, their names and functions, 110, 111. Kept by parliament under strict rules, 37 1* The great impartiality of their proceedings, 366, &c. See Laws and Jvry. Crom-well, his fruitless attempts to form a popular assem- bly obedient to him, 427- Crown, its power much superior in England after the Con- quest to what it was in France, 14. The barons com- pelled to unite with the commonalty, to restrain its power, 23. Its present constitutional prerogative, 71. Restraints it lies under, 75, 78. Totally dependent on the people for its supplies, 7S. Usefulness of its power in preventing any citizen -or popular leader from ac- quiring a degree of power dangerous to public liberty, .;.204. Instances of it, 214. Is not to make open pro- SKiposals to parliament for their assent or dissent, 235. May send messages to each house, and to what effect, 237. Unites in itself the whole executive authority, 281. Thereby produces a union in a common cause among all orders of subjects, 285. Is like an ever- subsisting Carthage, that maintains the virtue of the representatives of the people, 287. Farther illustration of the same fact, 353, 364. The power of Crowns has not produced these effects in other countries, 383. Instances of this, 384. The stability of the executive j)ower of the English crown, 387. I^^ a great peculi- arity of it, 390. Is not a subject to be explained here INDEX. 541 Otherwise than by facts, 390. Its power alternately defended by the two houses, 3^i. The secret forbear- ance of the two houses from invading its prerogative, 395. Remarkable instances of this, 39.9, 4.01, 402. i Its secure power rendered conspicuous in the facility ,r'with which it dismisses great men from their employ- --ments, 405. Not so in other monarchies, 406. The 1 facility with which it dismisses the parliament, 408. Never attacked except by persons who positively laid claim to it, or at least upon national grounds, 413. Its power m'ore secure in itself, but not so indelibly an- nexed to the person of an individual as in other coun- tries, 414. The secret causes of its peculiar stability form a subject more properly belonging to philosophy than to politics, 413. Great advantages result from this stability, 4l6. I. The numerous restraints it is able to bear, and great freedom it can allow the sub- ject at its expense, 417. II. The liberty of speaking and writing, 421,423. III. The unlimited freedom of debate in parliament, 425. IV. The union among all orders of subjects in defence of public liberty, 432. V. The unlimited freedom allowed to the people of meddling with government aftairs, 434. VI. The im- partiality with which justice is administered, without respect to persons, 436. VII. Needlessness of an firmed force to support its power, 439* VIII. Its strict respect even for the letter of the law, 449. IX. The lenity used in the administration of criminal jus- tice may, perhaps, be ascribed in great part to the general security which the stable power of the crown ^ives to the whole machine of government, 449. The great power the crown formerly derived from its domi- nions beyond sea, supplied afterwards by sudden cir- circumstances at home, 453. Instances of this great power without the support of an armed force, 454, 455. It keeps the military power in a surprising state of subjection to the law, 458. Instances of this, 459, Really could not, in the general situation of things^ derive any assistance from a standing army against the people, 462. The method it should adopt for setting aside the present constitution, 465. Its power is wholly annexed to the civil branch of its office, 466. Hints concerning its effectual foundations, 467. Prevents the English constitution from being destroyed in the same 54-^ INDEX. T. manner the Roman republic was, 4/1. The great •■^usefulness of its veto power, 483. Considerations on the attempts to abridge its -prerogative, 45^4. In what circumstances these attempts might be brought to suc- ceed, 495. A comparison between its prerogative, and that of the kings of Sweden, before the last revolution, 497. The abridging of its prerogative might not an- swer the expectations of those politicians who wish for if> 499, et seq. Sketches of the dangers to public li- berty that might arise therefrom, 504. The rule to be followed in pursuing such attempts, 506. How de- pendent on the people for its supplies, see Taxation, D. Debate, freedom of, secured by the bill of rights, 97. See Propounding. How conducted in the English parlia- ment, 68, 268. The unlimited freedom exercised in the English parliament not followed by any bad conse- quences, and why, 430,431. Democracy, remarks on, 53. Dictators, their great power, 263, 344. Their absolute power was often useful, 418. See Rome. Dissolution of the parliament, its effects, 66. Easily ef- fected by the crown in England, 410. Edward I., surnamed the English Justinian, 30. Elections, laws relating to them, 63, 97. GrenvHWs bill for deciding contested elections, 98. Advantages aris- ing from the right of the people to elect representatives, 288,312. See People. Elizabeth, queen, the inquisitorial court of High Commission established during her reign, 47. Emancipation of sons, in Rome, manner of, 139. Englandf the power of the king becomes very great at the ara of the Conquest, 14. The lords or barons much dependent on the crown, 15. Are tLcnce compelled to unite in a common cause with the people, 23. Dif- ferent from France, in forming one compact united kingdom, 26. This circumstance favours the establish- ment of public liberty, ibid. A peculiarity of its gcvernment, viz. the advantageous manner to public Sr- INDEX. 543 liberty in which revolutions have constantly been concluded, 33.5, et seq. The strictness with which laws favourable to the liberty of the subject are exe- cuted, 354, et seq. Sec Commons, Remarkable im- partiality in the courts of law, 372. Instances quoted, 37S, 375. Farther strictures on the same subject, 438. Singular law-doctrine, concerning the authority of go- vernment, and the liberty of the subject, 447- The people's situation different from that of the people in Rome, 472. See People. The balance of the people in government is connected with the right of property, 477* See Taxation. Divisions among the people never carried very far, 6^7' The lower class possessed of a considerable spirit of order and justice, 530. Equity, courts of; and inquiry into the meaning of the word, and their real office, 135. A court of this kind existed in Rome, 137. SeePrcetor. Remedies afforded by the English courts of equity, 142. How these courts were first instituted, 143. The opposition they met, 144. Their method of proceeding to enforce ap- pearance, and submission to their decrees, 145. Are kept within much more strict bounds than the prsetor's equity court was in Rome, 146. Farther definition of their office, 150. Executive power, lodged in the king, is more easily re- pressed when confined to a sole indivisible seat, 215, et seq. — is taken out of the hands of the representatives of the people, 281. Great advantages thence arising, 283. See Croxvn, F. Faire sans dire, the motto quoted, 524. Favourite oi the people, how prevented in the English con- stitution from acquiring a power dangerous to public liberty, 206, et seq. See Commonwealths. Felton, his answer to the bishop of London, 181. Feudal government introduced in France through a long sc- ries of events and years, 11. Is introduced suddenly and at once in England by the Conquest, 14. Conse- quences of this difference, l6. Fictions of law, 1 32. France f the feudal government was established in it very slowly, II. The crown was at first elective, 12. The 544 iNi)£x. authority of the king originally very inconsiderable, 13, 17. The barons were in great measure independent of the crown> ibid. These circumstances were prejudicial to the liberty of the people, 17. The kingdom was formed by an aggregation of different sovereignties, 18, The remarkable treaty by which the war for the public good was terminated, 30. General estates, how con- stituted, 34. The third tstate, or commons, never pos- sessed any weight, ibid. A remarkable insurrection, 36. Edits cnregistres, 70. Expedient for dismissing the par- liament of Paris, 410. The jealousy of the crown against that assembly, 428. Comparison between the French and English constitutions in regard to the right of taxa- tion, 512, 515. Franklin, Dr., quoted, 518, 520. French language introduced into the English laws by Wil- liam the Conqueror, 6^, Is still used by the king in declaring his intention to the parliament, ibid. G. Gaieral warrants, set aside, 482. Geneva, republic of, mentioned, 230,253, 306, 482. George I., king, led into an imprudent step, 495, 502. Germany, by what cause the growth of the power of the crown was checked there, 39* Gracchi, how forsaken by the people, 264, Grand jury, its office, 170. Grecian commonwealths, revolutions in them only favour- able to the particular interests of leaders and dema- gogues, 335. The reproach made them by Caesar, 378. Guise, death of the duke of, 407. H. Habeas Corpus act, when passed, and for what purpose, 191. The tenour of it, 192. The particular occasion of it, 359- Expressions of judge Blackstone on the subject, ibid. On what occasion suspended, and with what caution, 420. By what means finally settled, 482. Hale, judge, quoted, 31. His description of the office of a jury, 178. Henry I., charter of, 24. INDEX. 545 Henry VIII., his great power, 46. Was unsupported by a standing army, 386. /fo/f, judge, remarkable opinion delivered by him, 317. Hugh Capet, the first hereditary king in France, 13. The haughty answer of a French lord to him, 14. Hume, Mr., a few words on the character given by him of James 1 1., 455. James I., liberty begins to revive in his reign, 48. His lofty notions concerning regal authority, ibid. Keeps his ground against the restless spirit of the times, 454. James II., how his dethronement was effected, 57. Was inexcusable in his conduct, 455. Received no assist- ance from his numerous army, 464. Jesuits, how expelled from Spain, 411. Impeachment, public, what, and its effects, 93. The king's pardon no bar to the prosecution of an impeachment, 95. Can it prevent the execution of the judgement? ibid. Instances of ministers and judges impeached by the commons, 93, 94, 359— -62. Imprisorment , the methods formerly used for liberating imprisoned persons, I89. They were insufficient against the power of the court, 190. A new force given- to them by the petition of right, ibid. Habeas Corpus act, 191. Joh7i, king, grants the great charter, 27. Johnson, Vr. Samuel, his opinion concerning the office of the courts of equity, examined, 136. Judges, independence of, 79- Their office, in criminal causes, is only to direct the jury, and afterwards to pronounce the law, 17 6. Cannot alter the mode of punishment, 182. Instances of judges impeached, 359. See Courts. Judicial power, in regard to criminal matters, the neces- sary cautions in establishing such power, 154, et seq. Should not be trusted, especially in a free state, to any too powerful persons or bodies, 16I. Allusions to the French courts of law, l63. See Trial. May be said in England to be in the hands of nobody, 184. Lodged in the people, 425. Ju7iius*s Letters quoted, 175, 359. Jury, how they are to shape their verdict, 175. Must de 2 N 54^ INDEX. cide both upon the fact and the criminality of it, 176. What rules must be followed in their opinion, 177, 178. Judge Hale's remarkable passage in that respect, ibid. Usually pay a great regard to the judge's direction, 186. The effect of their recommending to mercy, ibid. See Trial and Judicial Fower, Justice^ impartiality of its administration in England, 372, 436. See LaxD and Judicial Power. K. King^ his prerogative by the constitution, 61, 71, 72. The restrictions set by law upon the exercise of the same, 75, 78, 84. He is not to interfere, nor his privy- council, in the decision of causes either civil or crimi-- nal, 88. It is disputed whether he can remit the pro- secution of a sentence awarded in consequence of an impeachment, 95. Not to be named in debates, 26g. The last instance of one using his negative voice, 4OO, See Crown, Laws. See Legislation. Laws of England, 106. Diffi- culty in procuring just ones, 247, AH who can influ- ence the execution of them, arc to be strictly watched, 279* A very necessary caution in framing them, 281. Law, criminal, how strictly the letter of it is adhered to in England, without any extension, 179? 449. Great mildness of it, 187. See Punishment. Legislative power, how formed in England, 61, et seq. Advantages arising from its being divided, 222, et seq. Remarkable constancy in its operations in England, 223. Not so in the ancient commonwealths, ibid. See Parliament. Legislation, mode of, in commonwealths, 229* Inconve- nicncy of it, 231. The manner in which laws are framed in England, 232. Advantages of the same, 235. Sec Propounding. Would it be an advantage if laws werf enacted by the people at large .? 246—55. See People. Liberty^ causes of English, 20 — 23. Its progress, 24, et seq. Private liberty, ^^. The word much misapplied pr ipisunderstood, 241, A more accurate definition ot" the same, 245. How the provisions to secure it should be directed, 279* Singular law-doctrine in England concerning the liberty of the subject, 44S. Lit?3/ quoted, 252, 264, 325, 328, 331, 333, 344. Lords, the house of, how constituted, 6S. Not suffered by the commons to frame, or even alter, a money-bill, 68, 85. Make it a standing order to reject all money bills, to which bills of another nature have been tacked, 76, 391. Have not given up their claim in regard to altering money-bills, 85. The great pre-eminence al- lowed them in point of ceremony over the commons, 226. Can vote by proxy, 227. Unite in a common cause with the people against the power of the crown, 21, 50, 285, 359. Abridge their own personal privi- leges, 367. Their impartiality in their judicial capa- city, 370. Cannot be charged with having abused their privilege of trying their own members, 371. Defeat the attempts of the commons on the crown's preroga- tive, 392. Their own attempts defeated by the com- mons, 393. A bill is framed to limit their number, 495. The great importance of that bill generally overlooked, 502. See Parliament and Peers, Lyttelton, lord, quoted, 314. MachiaveVs History of the republic of Florence, quoted, 201. Magna Charta, remarkable extensiveness and impartiality of the provisions of, 336. Marlborotfgh, duke of, easily dismissed from his employ- ments, 214, 405. Martial courts, a remarkable dispute between one and a court of law, 459» Martial law must be universal, where the authority of the government is supported by a standing army, 443. Members of the house of commons, their personal privi- leges, 366. Instances of some punished by their own house, 367. See Commons. Military power, a cause of anxiety to those s6vereigns whose authority is supported by it, 443. Cannot in such case be subjected to the civil power, 458. Not necessary to support the power of the crown in Eng- 2x2 54-8 INDEX. Jand, 456. The surprising subjection of it to the civil power in England, 457, 475). '^ce Crown. Minister, equally interested with other subjects in main- taining the laws concerning personal security, 285. A discarded one in other countries, the cause of some anxiety or jealousy to the government, 408. Not so in England^ ibid. Monarchies, revolutions, generally concluded in them by provisions for the advantage of great men and leaders, not of the people, the same as in commonwealths, 335, 396. The executive power of the crown in ail ancient or modern monarchies, wanting that peculiar stability of the English crown, 384. Not secured otherwise than by standing armies, 385. The monarchs are afraid of powerful subjects, 407. Cannot do without some arbi- trary means of asserting their authority, 418. Very jealous of the liberty of the press, and, perhaps, are really obliged to be so, 421. Extremely averse, out of fear for their own security, to calling popular assem- blies, 425. Respect of persons in the administration of justice cannot be prevented in them, 437. Anxious precautions taken in them in regard to the military- power, 442. Their law-doctrine concerning the exe- cutive authority of the government, 447. The military superior to the civil power, 458. Money -Bills, See Taxation, Montesquieu quoted, 292, 4^9. Mare's Utopia quoted, 292. O. Obedience, passive, an absurd doctrine, 60. Ostracism, an arbitrary unjust expedient, but, perhaps, ne- cessary in the republic of Athens, 418. Oxensfiern, chancellor, his words to his son, 522. P. Tarllament, English, the constitution of, G\ — 70. How to be convoked, 6'3, 86. Proceedings in parliament not to be questioned in any other place or court, ^7, The secret bent of that assembly to forbear invading the pre- rogative of the crown, 40 J. Cautious conduct of the INDEX. 549 three branches towards each other, 524. See Commons and Crown. Farliaments, French, great weight of, l63. Difficult to be managed by the crown, ibid. How Louis XV'. dis- missed that of Paris, 40^. Precautions taken by the next king in restoring it, 429- See France, Parliamentary History of England, a superficial observa- tion of its authors, 338. Pardon, the prerogative of, lodged in the king, 72. Can- not be pleaded as a bar to an impeachment being car- ried on, 94. Often granted on the recommendation of a jury, 186. Peers, how to be tried, 179- Have few real personal pri- vileges above the subject, 369. See Lords. People, how misled by favourites or demagogues, 200. How influenced or deceived by the magistrates or great men in commonwealths, S351. Should act through re- presentatives, 256. Should entirely delegate the legis- lative authority to these, 259* How, and i^ what cir- cumstances only, the right of resistance may be usefully exerted by them, 320. See Cum?nonwealths and England. May be said in England to possess both the judicial and censorial powers, 425. The freedom they enjoy of in- terfering in government matters, 434, Pope, Mr., quoted, 273. Porcia Lex de tergo clvivm, 274, 2,^7' Prammiire, writ of, 193. PrcEtor, his office in Rome, m6. Assumes the office of a judge of equity, 137- i^is provisions, 138. I'heir power very arbitrary, 146. When first restrained, 147. Press, liberty of the, is a real censorial power lodged in the people, 290. Much more effectual and beneficial than the one established in Rome, 292. A licenser ap- pointed upon the press by the star-chamber, 294. By the long parliament, ibid. By Charles JI. and James II. ibid. Finally established in the year I694, and how, 295. A definition of it, ibid. Actions respecting the same-not to be decided without a jury, 296. How extensivc^its use has become, 298. Great political advantages aris- ing from the same, 300. Is farther useful, combinc^d with the other rights of the people, 304; such as the right of election, 308. How useful a support to the right of resistance, 318. Is not allowed in common- wealths, or in monarchies, 421. Its being tolerated in England to so high a degree, depends on the stabilitv of 550 INDE5IC. the executive power of the crown, 4Q3. The real foun- dation on which it rests in England, 448i Error of the author, at first, in this respect, ibid. Prisoner, how to be committed, 16*9. When once ac- quitted, cannot be tried again for the same offence,. 179» See Tiial, Privy council, its power abridged by the same act which abolished the star-chamber, 88. Prorogation^ its effects, 66. The term not to be afterwards^ shortened, 87. Propounding, in legislation, the privilege of, reserved to the executive power in commonwealths, 22-9. Allotted in the English constitution to the representatives of the people, 232. How the same point was formerly settled in France, Sweden, Scotland, and Ireland, 2S5. Great advantage accruing to public liberty from this right being lodged in the representatives of the people, 23^, 267. Its remarkable advantages for preserving the Eng- lish constitution, and instances of it, 478. * PunishmentSy the judge cannot alter the mode of, 182. Nor the sheriff, ibid. Do not extend beyond the sim- ple deprivation of life, 187- Their mildness in Eng- land, 376\ Not so among the Greeks and Romans^ S77' Attention of the English legislature in that re- spect, 380, R. Represent atites, qualifications for being one, 63. Advan- tages that accrue to the people from acting through re- presentatives, 257, et seq. More hurtful than benefi- cial when their interest is not in reality united with that of the people, 259. The people should entirely delegate the legislative authority to them, 266. The sedate manner in which ip England they debate and vote, 267. Do not allow the speaker to have a vote, or the king's name to be introduced in debates, 268. Are debarred from all executive authority, 281. Capital advantages thence arising, 283, et seq. See Commons and People. ResisiancCf right of, admitted by the English laws, 314. Opinion of judge Blackstone quoted, 3l6. Recognised even by the courts of law, 3l6. Is in a great measure a useless right, unless combined with the liberty of the press, 318. What circumstances are required for its being usefully exerted, 321. INDEX. 551 Uevenuef of the king, very trifling, without grants from the parliament, 75. Revolutions have always been concluded in England in a manner advantageous to public liberty, 324, 335. A series of instances, 336, &c. Not so in the Roman commonwealth, 324'. A series of instances during the whole time of its duration, 324 — 34. The same disad- vantage occurred in the Greek republics, 334. And in the limited monarchies of Europe, such as Scotland, Sweden, &c. 335. Revolutiou of the year 1689? how accomplished and im- proved, 57, 340. Re-unions of particular provinces to the crown, in France, 19. Right, petition of, 51, 339- Rome, wrong notions of liberty the patricians and se- nate gave to the people, 241. The influence of sena- tors and great men over the people, and their arti- ^ces, 262, The people, and even the tribunes, greatly over-awed by a dictator, 265. The people betrayed by those in whom they trusted, 273. The tribunes not earnest in the defence of public liberty, ibid. The se- nate, consuls, and dictators, possessed of an arbitrary power over the lives of the citizens, 274. The censorial power only a piece of senatorial craft, 292. Revolu- tions constantly concluded in a manner disadvantageous to public liberty, 324. The laws concerning the liberty of the citizens were not strictly executed, 342. Re- markable instance of insolence and cruelty of a magi- strate, 344. The rapacity of the men in power in re- gard to the allies and subjects of the republic, 347« Corruption of the judges, 348. Remarkable changes in the formation of them, 34^. A remarkable passage of Tully in regard to the disorders that took place in there- public, 351. A short sketch of their real cause, 352. Dangers to which both its liberty and empire were ex- posed, 471. How the final overthrow of the republic was operated, 472. The political rights allotted to tha people, 475. Rousseau quoted, 225, 241, 26 1, 292, 480. Russian anibassador, the cause of his arrest, 376. S. Baxon goternmenty abolished in England by the Norman 552 II^DEX.' Conquest, p. Note upon that disputed subject, 8, £?, 10. Scotland, the number of representatives it sends to parlia- ment, 62. The lords of the articles, what assembly, 235. The authority of the crown commonly invaded by the nobles, 397. The bill framed for settling the crown on the house of Hanover, 398. No advantageous ex- pedient to have trusted the nobility with the command of a standing army, 444. Secretary of state, case of an action brought against one, fey a private individual, 375. Senate, Roman, how formed, 277- See Rome, Its conduct at the expulsion of the kings, 324. See Revolutions, Sevigne, madame dc, quoted, 515. Smith, Dr. Adam, his opinion on liberty, and on the effects produced by a standing army, examined, 444. Farther observations on the same subject in general, 453. Spai?i, how that monarchy was formed, 3S. Spchnan, (juoted, 8. har-chambei', court of, how constituted, 51, It crushed the liberty of the press, 294. Expressions of sir Ed- ward Coke concerning it, ibid. Was a kind of a court M^ of equity in regard to criminal matters, 451. By what •^ means abolished, 481. Statute de htvretico comburendo, for what reason repealed, 380. That for allowing parliaments to meet of them- selves, repealed, 402. Sxvede7}, an account of the revolutions that have taken place in its government, and of the restraints at times put on the authority of the crown, 3^6, The disad- vantages of the body of the people in the legislature, 476. An account of its government before the last re- volution, 497. Swift, dean, quoted, 405. Tacitus quoted, 44, 533. Taxation, right of, when first secured to the lords and commons, 35, Possessed in England by a single par- liament, not by several assemblies as in France, 45, 46, Is rendered thereby a much more efficacious check upon the crown, ibid. All taxes or money-bills must INDEX. 5!jZ originate in the house of commons, as well as the al- terations in such bills, 67. The great constitutional efficiency of that right, 75, 81. The existence of the commons depends upon the same, 84. The advantages of this right of the commons, when combined with the right of propounding law-remedies, 233 — 7. How firm- ly it secures all the other rights of the people, and the whole constitution, against the attempts of the crown, 478. Is the constitutional balance of the people against the crown, 508. At the same time the only forcible ' one, 510, 512, 520. Rendered ineffectual when lodged in several distinct provincial assemblies, 45, 513. How it might become so divided in England, 517. Temple, sir William, quoted, 7. Torture, attempted to be introduced in the reign of Henry VI., 181. Declared illegal by the judges, ibid. Treason, high, statutes concerning it, repealed, 46, 82. How trials in cases of treason are to be conducted, 174. Trial by jury revived in the reign of Henry II., 25. How to be conducted, 176, et seq. Great advantages of this institution, 182—7. How strictly preserved in Eng- land, 354. Not so in Normandy, Sweden, and Scot- land, 355. Trials, the manner in which prisoners are tried in foreign countries, l65. Tribunes, Roman, betrayed the cause of the people, 272. Their interested public conduct, 331. See Rome, Tucker, dean, 515. Tudors, the great power of the princes of that house, 43, 82, 454. V. Verdict, how to be expressed, 176. A special one, what, ibid. W. Wdlstein, duke of, caused to b« slain by the emperor Fer- dinand II., 407. William the conqueror set aside the Saxon, and substituted the feudal government, 9, 14, 15. Possessed an un- commonly great authority, 15. 2o 554 IKDEX. Writers J political, their ill-judged expressions and notions? 241. Their unwise admiration of the censorial power in Rome, 292. Have not penetrated into the real foun- dation of the science of politics, 470. Have treated it as an occult kind of science, as natural philosophy was considered in the time of Aristotle, 493. Anecdote of one, 449. Writs, their importance in the English courts of law, 126. Compared to the Roman actiones legis, ibid. The diffi- culty in creating nev^ writs, 130. INDEX TO THE NOTES OF THE EDITOR. B. Burgesses^ first election of, 32. C. Convocation, a nullity, 87. Corsica, state of, 51 6. D. Dw*oto'o/i of parliament, extraordinary instance of, 412. Duels, a remark upon, 526. G. Government, stability of the English, 467. I. Impeachment, remarks upon, 41, 95. Ireland, union with, 62, 65. Jury, trial by, 25, 187, 355. K. King cando no wrong, a maxim in our law, 73* L. Land-tax, perpetual, 90. 656 INDEX. Lawy as opposed to equity, 152. Occasional cruelty of the English laws, 380. * Libels, law of, 177; truth of, 297- N. Ktwspaper abuse, effect of, 802. O. Office, disqualifications from, 394. P. Peers, house of, sometimes alter money-bills in effect, 85. Popularity, progress of, 210. Resistance, doctrine of, 315. Revolution, French, 2. True nature of that of England, 58. Saxon constitution, whether subverted, or not, by William the Conqueror, 10, Shires, knights of, 32. Supplies, power of with-holding, 196. T. Treating of electors, new act against, 64. W. Wilkes, case of, 159. William the Conqueror, tyranny of, 15. Witfena-gemot, annual, S6. FINIS. I'rinted by S. Hamilton, Wejbridge. y ir- RETURN CIRCULATION DEPARTMENT TO-^ 202 Main Library LOAN PERIOD 1 . 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