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' T H k
CONSTITUTION
O F
ENGLAND,
O R
AN ACCOUNT
OF THE
ENGLISH GOVERNMENT;
In which it is compared, both with the Republican
Form of Government, and the other
Monarchies in Europe.
By J.L. DE LOLME, Advocate,
Member of the Council of the Two Hunbred in the
Republic of Geneva.
A NEW EDITION, Corrected.
Ponderibue librata fuia, ....
Ovid. Met. L. I, 13,
LONDON,
Printed for G. G. J. & J. Robinson, Paternofter-Row j
and J. Murray, Fleet-ftreet.
MDOCLXXXVIII.
\ A.
15 0CI1920' ; ;-V]
V/
TO T HB . I c
\7U
KING.
SIRE,
TH E approbation with which
the Public have been pleafed
to favour this Work, together with
the nature of the fubject, embolden
me to lay the prefent fourth and en-
j larged Edition of the fame at your
w Majefty's feet, both as an homage,
and an expreflion of the defire I en-
ter tain , the Book may for a few
minutes engage the attention of a
^ perfon of your deep and extenflve
knowledge.
o
Your Majefty's reign has, for
many years parr, afforded proofs
^ in more refpecls than one, that,
|j though human wifdom may not al-
ways be able to anticipate difficul-
ties, yet, aflifted by fortitude, it can
A 2
DEDICATION.
fucceed in terminating them in a
more favourable manner than it
feemed at firfl poflible to be expect-
ed, or even in bringing them to an
happy iffae. According to the com-
mon courfe of Nature, your Majefty
has only yet feen the lefs confider-
able part of the years of which your
reign is to be compofed : that the
part which now opens before your
Majefty, may be attended with a
degree of fatis faction proportionate
to your Majefty's public and private
virtues, to your dilinterefted go-
vernment, and religious regard for
your royal engagements, is the fond
hope of
Your Majefty's
Moil humble and
Mod devoted Servant,
And thefe many Years
Subject by Choice,
jV&y, 1784,
j. L. DE LOLME.
CONTENTS.
Page
Introduction - - i
Chap. I. Caufes of the Liberty of the Englijh
Nation. Reafons of the difference between the
Government of France, and that of England
hi England the great power of the Crown, ef-
pecially under the firjl Norman Kings, created art
Union between the Nobility and the People 6
Chap. II. A fecond Advantage England had over
France: it formed one undivided State 24
Chap. III. The Subjetl continued 41
Chap. IV. Of the Legijlative Power 60
Chap. V. Of the Executive Power - 71
Chap. VI. The Boundaries which the Confutation
has fet to the Royal Prerogative 74
C h a p . V 1 1 . The fame fubjeft continued < 7 S
Chap. VIII. Nezv Rejlr idiom 84
Chap. IX. Of private Liberty, or the Liberty of
Individuals 10a
Chap. X. On the Law in regard to Civil Matters
that is obferved' in England 113
Chap. XI. The SubjeR continued. The Courts of
Equity j 26
Chap. XIL Of Criminal Juftke 154
Chap. XIII. The Subject continued 169
Chap. XIV. The Subject concluded Laws relative
to Imprifonments 188
CONTENTS,
BOOK II.
Chap. I. Some Advantages peculiar to tlo Englifl)
Confiituthn. i. The Unity of the Executive
Power 195
Chap. II. The Suhjetl concluded. The Executive
Power is more eafily confined when it is one 215
Chap. III. A fecond Peculiarity. T he Dhifion of
the Legiflative Power 218
Chat. IV. A third Advantage peculiar to the
EngliJJj Government. The Bufinefs of pro-
pofing Laws, lodged in the Hands of the
People. 229
Chap. V. /// which an Inquiry is made, whether it.
would be an Advantage to public Liberty that the
Laws fioould be enabled by the Fetes of the Peo-
ple at large 240
Chap. VI. Advantages that accrue to the People
from appointing Reprefentathes 256
Chap. VII. The SubjeS continued The Advan-
tages thai accrue to the People from their ap-
pointing Reprefentatives, ere very inconfiderable,
unlefs they alfo entirely trv.fi their Legiflative
Authority to tbtnu -7- 2 ^
CONTENTS.
Chap. VIII. The Subjecl concluded Eff efts that
have refilled in the Englifh Government 9 from
the 'People's Power being 6ompletely delegated to
their Reprefentatives 166
Chap. IX. A farther Difadvantage of Republican
Governments. The People are necejfarily betrayed
by thofe in whom they trvfl 271
Chap. X. Fundamental difference between the
EnglifJj Government and the Governments jujl
defcribed. In England all Executive Authority
is placed out of the hands of thofe in whom the
People trujl. Ufefulnefs of the Pozver of the
Crozun 280
Chap. XI. The Pozver s which the People them-
felves exercife. The Election of Members of
Parliament 288
Chap. XII. The Subjett continued. Liberty of
the Prefs 291
Chap. XIII. The Subjetl continued 305
Chap. XIV. Right of Rejijlance 314
Chap. XV. Proofs drawn from Faffs of the Truth
of the Principles laid down in this Work.-
I. The peculiar Manner in which Revolutions
have always been concluded in England 324
Chap. XVI. Second Difference. The Manner after
which the Laws for the Liberty of the Subjeft
are executed in England 343
CONTENTS.
Chap. XVII. A more inward Viezv of the Englijh
Government than has hitherto -been offered to the
Reader in the courfe of this Work. Very effen-
iial differences between the Englijh Monarchy, as
a Monarchy, and all thofe with which we art
acquainted 387
Chap. XVIII. How far the examples of Nations
that have loft their liberty, are applicable to Eng-
land 472
Chap. XIX. A few thoughts on the attempts that
may at particular times be made to abridge the
power of the Crown, and on fome of the dangers
by which fuch attempts may be attended 498
Chap. XX. A few additional Thoughts on the
right of taxation, lodged in the Hands of the
Reprefentatives of the People. What kind of
danger this Right may be expojed to 513
Chap. XXI. Conclujion. A few Words on the
Nature of the Divifwns that take Place in Eng-
land 5 2 &
ADVERTI SEMEN T.
TH E Book on the Englifh Conflitution,
of Svhich a new Edition is here offered
to the Public was firft written in French, and
published in Holland. Several perfons have a Iked
me the queftion, how I came to think of treating
fuch a fubje& ? One of the firft things in this
Country, that engages the attention of a Stranger
who is in the habit of obferving the objects before
him, is the peculiarity of its Government : I had
moreover been lately a witnefs of the broils which
had for fome time prevailed in the Republic in
which I was born, and of the revolution by
which they were terminated. Scenes of that
kind, in a State which, though fmall, is indepen-
dent, and contains within itfelf the principles of
its motions, had naturally given me fome compe-
tent infight into the firft real principles of Go-
vernments : owing to this circumftance, and per-
haps alfo to fome moderate fhare of natural abi-
A
ji ADVERTISEMENT*
Ikies, I was enabled to perform the ta fie I had un-
dertaken, with tolerable fuccefs. I was twenty-
feven years old when I firft came to this Country:
after having been in it only a year, I began to write
my work, which I pubiifhed about nine months
afterwards : and have fince been furprifld to find
that I had committed fo few errors of a certain kind :
I certainly was fortunate in avoiding to enter deeply
into thofe articles with which I was not fufficicntly
acquainted.
The Book met with rather a favourable recep-
tion on the Continent ; feveral fucceffive Editions
having been made of it. And it alfo met here
with approbation, even from Men of eppofite
parties ; which, in this Country was no fmall
luck for a Bock on fyftematical politics. Al-
lowing trnt there was fome connexion and clear-
nefs, as well as novelty, in the arguments, I
think the work was of fome peculiar utility, if
the epoch at which it was pubiifhed, is confidered ;
which was, though without any defign from me,
at the time when the difputes with the Colonies
were beginning to take a ferious turn, both here
and in America. A work which contained a fpe-
cious, if not thoroughly true, confutation of
thofe political notions by the help of which a
difunion of the Empire was endeavoured to be
promoted (which confutation was moreover no-
ticed by Men in the higheft places) mould have
procured to the Author fome fort of real enecu-
ADVERTISEMENT iii
ragernent j at leaft the publication of it fhould
not have drawn him into any inconvenient fituu-
tion. When my enlarged Englifh Edition was
ready for the prefs, had I acquainted Miniflers
that I was preparing to boil my tea-kettle with it,
for want of being able conveniently to afford the
eexpence of printing it, I do not pretend to fay
what their anfwer would have been , but I am
firmly of opinion, that, had the like arguments
in favour of the cxifting Government of this
Country, again ft republican principle?, been (hewn
to Charles the Firft, or his Miniflers, at a cer-
tain period of his reign, they would have very
willingly defrayed the expences of the publica-
tion. In defect of encouragement from Great
Men (and even from Bookfeilers) I had recnurfe
to a fubfeription , and my having expected any
fuccefs from fuch a plan, (hews that my know-
ledge of this Country was at that time but very in-
complete (a).
(a) In regard to two Subfciibers In particular, I was,
I confefs, fadly difippointed. Though all the Bookfeilers
in London had at lint refufed to have any thing to do with,
my Englifli Edition (notwithftanding the French Work was
extremely well known), yet, foon after I had thought of the
expedient of a Subfcription, I found that two of them,
who are both living, had begun a traafhtion, on the re-
commendation, as they told me, of a noble Lord, whom
they named, who had, till a few years before, filled one of
the higheft offices under the Crown. I paid them ten
po.inds, in order to engage them to drop their under-
A x
iv ADVERTISEMENT.
After mentioning the advantages with which
my Work has not been favoured, ic is however
juft I fliould give an account of thofe by which it
has been attended. In the firft place, as is above
taking, about which I underftood they already had bees at
fome expence. Had the Noble Lord in queftion favoured
me with his fubfcription, I wo uld have celebrated the
generosity and munificence of my Patron ; but as he did not
think proper ib to do, [ fhall only obfsrve that his recom-
mending my Work to a Bookfeller, coil me ten pounds.
At the time the above fubfcription for my Englifh Edi-
tion was advertifing, a copy of the French Work was
afked of me for a Noble Earl, then inveiled 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 confequencc was, that 1 was obliged to borrow
one, to make my Englifh Edition from) ; and I added, that
1 noped his Lordfhip would honour me with his fubfcrip-
tion. However, my hopes were here again confounded.
As a gentleman, who continues to fill an important office
undjr the Crown, accidentally informed me about a
year afterwards, that the Noble Lord here alluded to,
had lent him my French work, I had no doubt left that
the copy I had delivered, had reached hi; Lordlhip's hand ;
I therefore prefuned to remind him by a letter, that the
Book in queftion had never been paid for ; at the fame time
apologizing for fuch liberty from the circumftances in which
my late Englifh Edition had been published, which did not
allow me to lofe one copy. I muft do his Lcrdfhip (who
is moreover a Knight of the Garter) thejuftice to acknow-
ledge, that no later than a week afterwards, he fent two
half crowns for me to a Bookfeller's in Fleet-fircet. A
Lady brought them in a coach, who took a receipt. As f!ie
ADVERTISEMENT.
faid, Men of high rank have condescended to
give their approbation to it ; and I take this
opportunity of returning them my moft humble
acknowledgments. In the fecond place, after
the difficulties by which the publication of the
Book had been attended and followed^ were over-
come, I began to (hare with Bookfellers in the
profits arifing from the fale of it. Thefe profits
I indeed thought to be but fcanty and flow : but
then I confidered this was no more than the com-
mon complaint made by every Trader in regard
to his g^in, as well as by every Great A4an
in regard to his emoluments and his penfions.
After a courfe of fome years, the net balance
formed by the profits in queflion, amounted to a
certain fum, propoitioned to the bignefs of the
performance. And, in fine, I muft add to the
account of the many favours I have received, that
I was allowed to carry on the abeve bufinefs of fell-
ing my book, without any objection being formed
was, by the Bookfciler's account, a fine Lady, though not
a Peerefs, it gave me much concern that J was not prcfent
to deliver the receipt to her myfelf.
At the fame time I mention the noble Earl's great punc-
tuality, I think I may be allowed to fay a word of my own
merits. I waited, before I prcfumed to trouble his Lord-
fhip, till I was informed that a penfion of four thoufand
pounds waj fettled upon him (I could have wiflied much
my own Creditors, had, about that time, fiievvu the like
tendernefs to me), and I moreover gave him time to receive
the firft quarter.
A 3
vi ADVERTISEMENT.
againft me from my not having ferved a regular
a.rprenticefhip and without being molefted by the
Inquisition Several Authors have chofen to
relate, in Writings publiflied after death, the
perfonal advantages by which their performances
had been followed : as for me, I have thought
Otherwife ; and, fearing that during the latter part
of my life I may be otherwife engaged, I have pre-
ferred to write now the account of my fucceffes
in this Country, and to fee it printed while I am
yet living.
I mall add to the above narrative (whatever the
Pieader may be pleafed to think of it) a few obfer-
vations of rather a more ferious kind, for the fake
of thofe perfons who, judging themfelves to be pof-
feiTed of abilities, find they are negleaed by thofe
having it in their power to do them occafional fer-
vices, and fiuTer themfelves to be mortified by it.
To hope that men will in earneft afhft in fetting
forth the mental qualifications of others, is an ex-
pedition which, generally fpeaking, muft needs be
difappointed. To procure one's notions- and opi-
nions to be attended to, and approved, by the circle
of one's acquaintance, is the univerfal wifh of
Mankind. To diffufe thefe notions farther, to nu-
merous Parts of the Public, by means of the prefs or
by others, becomes an object of real ambition : nor
h this ambition ahvr.ys propottioned to the real abi-
lities of thofe who feel it ; very far from it. When
the approbation of Mankind is in queftion, all per.
ADVERTISEMENT. vii
fons, whatever their different ranks may be, confi-
jder themfclves as being engaged in the fame ca-
reer : they look upon themfclves as being candi-
dates for the very fame kind of advantage : high
and low, all are in that refpect in a ftate of pri-
maeval equality , nor are thofe who are likely to
obtain fome prize, to expect much favour from the
others.
This defire of having their ideas communicated
to, and approved by, the Public, was very preva-
lent among the Great Men of the Roman Com-
monwealth, and afterwards with the Roman Em-
perors ; however imperfect the means of obtaining
thefe ends might be in thofe days, compared with
thofe which ar ufed in our's. The fame deOre has
been equally remarkable among modern European
kings, not to fpeak cf other parts of the World ;
and a long catalogue of Royal Authors may be pro-
duced. Minitters, efpecially after having loft their
places, have (hewn no lefs inclination than their
Matters, to convince Mankind of the reality of
their knowledge. Noble Perfcns of all denomina-
tions, have increaf d the catalogue. And to
fpeak of the Country in which we arc, there is
it feerns no good re^fon to make any e\certion in
regard to it ; and Great Men in it, or in general
thofe who are at the head of the People, are we
find fufliciently anxious about the fuccefs of their
Speeches, or cf the printed performances which they
A 4
x'm ADVERTISEMENT.
fometimes condcfcend to lay before the Public;
nor has it been every Great Man wifhing that a
compliment may be paid to his perfonal knowledge,
that has ventured to give fuch lading fpecimtns.
Several additions were made to this Work, at
the time I gave the firtt Englifh Edition of it. Be-
sides a more accurate divifion of the chapters, fe-
yeril new notes and paragraphs were inferred in
it ; for inflance in the nth chapter of the 2d Book ;
and three new chapters, the 15th, 16th, and 17th,
amounting to about ninety pages, were added to
the fame Book. Thefe three additional chapters,
never having been written by me in French, have
been inferted in the third Edition made at Amfler-
tlam, tranflated by aPerfon whom the Dutch Book-
feller employed for that purpofe : as I never had an
opportunity to perufe a copy of that Edition, I
cannot fay how well the Tranflator has performed
his talk. Having now parted with the copy-right
of the Book, I have farther added four new chapters
to it (10, II, B. I. 19, 20, B. II.) by way of taking
a final leave of it ; and in order the more com-
pletely to effect this, I may perhaps give, in a few
months, a French Edition of the fame (which I
cannot tell why I have not done fooner) in which
all the above mentioned additions, tranflated by
inyfelf, (hall be inferted.
ADVERTISEMENT. ix
In one of the former additional Chapters (the
17th, B. II.) mention is made of a peculiar cir-
cumftance attending the Englifh Government, con-
fidered as a Monarchy, which is the foiidity of the
power of the Crown. As one proof of this pecu-
liar foiidity, it is remarked, in that Chapter, that
all the Monarchs who ever exifted, in any part
of the World, were never able to maintain their
.ground againft certain powerful fubje&s (or a
combination of them) without the afTiftance of re-
gular forces at their cenftant command ; whereas it
is evident that the power of the Crown, in Eng-
land, is not at this day* fupported by fuch means ;
nor even had the Englifh Kings a guard of more
than a few fcores of Men, when their power, and
the exertions they at times made of it, were equal
to what has ever been related of the mod abfolute
Roman Emperors.
The caufe of this peculiarity in the Englifh Go-
vernment is faid in the fame Chapter, to lie in the
circuftance of the great or powerful iVIen, in Eng-
land, being divided into two dittinct AiTemblies,
and at the fame time, in the principles on which
fuch a divifion is formed. To attempt to gU-e a de-
monftration of this aflertion other wife than by facls
(as is done in the Chanter here alluded to) would
lead into difficulties which the reader is little aware
of. In genera!, the Science of Politics, confidered
as an ex-nl Science, that is to fay, as a Science capa-
ble of actual demonftration, is infinitely deeper than
{he reader fo much perhaps as fufpecls. The know-
x ADVERTISEMENT.
ledge of Man, on which fuch a Science, with its
preliminary axioms and definition^ is to be ground-
ed, has hitherto remained furprifingly imperfect :
as one inftance, how little Man is known to him-
feif it might be mentioned that no tolerable ex-
planation of that continual human phenomenon,
laughter, has been given, as yet ; and the power-
ful complicate fenfation which each fex produces
in the other, (till remains an equally inexplicable
myfiery.
To conclude the above digreffion (which may do
very well for a Preface ) I fhall only add, that thofe
Speculators who will amufe themfelves in feeking
for the demonflration of the political Theorem above
expreffed, will thereby be led through a field of
obfervations which they will at fir ft little expect ;
and in their way towards attaining fuch demonstra-
tion, will find the Science, commonly called Me-
taphyfics, to be at bed but a very fuperficial
one, and that the Mathematics, or at lead the
mathematical reafonings hitherto ufed hy. Men,
are not fo completely free from error as has been
thought (a).
(a) Certain errors that are not difcovercd, arc, in feve-
ral cafes, compenfated by others, which arc equally un-
perceived.
Continuing to avail myfelf of the indulgence an Au-
thor has a right to claim in a Preface, I fnali mention, r.s
ADVERTISEMENT, xi
Out of the four Chapters added to the prefent
Edition, two (the ioth and nth, B.I.) contain
among other thing?, a few ilrictures on the Courts
of Equity ; in which I wifn it may be found I
have not been miflaken : of the two others, the one
(19th, B. II.) contains a few obfervations on the
attempts that may in different circumftances be
made, to fet new limits on the authority 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 refoecT:.
Any farther obfervations I may hereafter make on
the Englifh Government, fuch as comparing it
with the other Governments of Europe, and exa-
mining what difference in the manners of the inha-
bitants of this Country may have refulted from it,
muft come in a new Work, if I ever undertake to
treat thefe fubje&s. In regard to the American uif-
putes, what I may hereafter write on that account,
will be introduced in a Work which I may at feme
future time publifn, under the title of Hijioirc de
George Trots, Roi d' Artgleterre, or, perhaps, of Hif-
toire a Angleterre, depuis Vannu 1765 (that in which
a farther explanation of the peculiarity in the Englifh Go-
vernment above alluded to, and which is again touched
upon in the poftfeript to this Advenifement, thar a Go-
vernment may be confitJered as a great Billet or Dance,
in which, the fame as in other Ballets, every thin*' de-
pends on the difpofition of the figures.
xii ADVERTISE M E N T.
the American Stamp duty was laid) jufqucs a T annie
178 , meaning that in which an end fhall be put to
the prefent corners {a).
Nov. 1781-.
P O S T C R I P T.
Notwithstanding the intention above exprcfled, of
making no additions to the prefent Work, I have
found it necefiary, in the prefent new Edition, to
render fomewhat more complete the xviith Chapter,
B. II. p. 587. On the peculiar foundations cf the Eng-
lijb Monarchy > as a Monarchy , as I found its ten-
dency not to be very well underftood ; and in fact,
that Chapter contained little more than hints on the
fubjecl: mentioned in it : the talk, in the courfe of
writing, has increafed beyond my expectation, and
has fwelled the Chapter to about fixty pages beyond
what it was in the former Edition, fo as almoft to
make it a kind of a feparate Book by itfelf. The
reader will now find in it feveral remarkable new in-
flances to prove the fact: of the peculiar futility of
the executive power of the Britifh Crown ; and
efpecially a much more complete delineation of the
advantages that refult from the liability in favour of
public liberty (b).
[a) A certain Book written in French, on the fubjec~t
of the American difputcs, was, I have been told, lately
attributed to me, in which I had no (hare.
(b) Fcr rhe fake of thofe Readers who like exactly to
ADVERTISEMENT. xin
Thefe advantages may be enumerated as fol-
lows. I. The numerous reflaints the governing
authority is able to bear, and extenfive freedom it.
can afford to allow the Subject, at its expence.
II. The liberty of fpeaking and writing, carried to
the great extent it is in England. III. The un-
bounded freedom of the Debates in the Lcgiflature.
IV. The power to bear the conftant union of all
rders of Subjects againfl its prerogative. V. The
freedom allowed to all individuals to take an active
part in Government concerns. VI. The Uriel im-
partiality with which Juflice is dealt to all Sub-
jects, without any refpeCT whatever of perfons.
VII. The lenity of the criminal law, both in re-
gard to the mildnefs of punifhments, and the fre-
quent remitting of them. VIII. The flricl compli-
ance of the governing Authority with the letter of the
law. IX. The needlefTuefs of an armed force to fup-
port itfelf by, and as a confequence, the lingular fub-
jettion of the Military to the Civil power.
The above mentioned advantages are peculiar to
the Englifh Government. To attempt to imitate
them, or transfer them into other Countries, with
that degree of extent to which they are carried
know in what one Edition of a Book differs from another.
I fhall mention, that five new pages have alfo been added
in the xviiith Chapter, viz. page 482 486, befides a few
(hott notes in the courfe of the Work ; for inftancc in
P-ge I4> 5 8 4> &c.
*iv ADVERTISEMENT.
in*England, without at the fame time transferring
the whole Order and conjunction of circumflances
in the Englifh Government, would prove unfuccefs-
ful attempts. Several articles of Englifh liberty
already appear impracticable to be preferved in the
new American Commonwealths. The Irifh Na-
tion have of late fucceeded to imitate feveral very-
important regulations in the Englifh Government,
and are very defirous to render the aflimilation
complete : yet, it is poflible, they will find many
inconveniences to arife from their endeavours,
which do not take place in England, pothwithftand-
ing the very great general fimilarity of circumflances
in the two kingdoms in many refpecls, and even
alfo, we might add, notwithstanding the refpeclable
power and weight the Crown derives from its 13ri-
tifh dominions, both for defending its prerogative in
Ireland, and preventing anarchy. I fay, the fimila-
rity in many refpcSls between the two kingdoms *, for
this refem'olance may perhaps fail in regard to fome
important points : however, this is a fubjeci about
which I (hall not attempt to fay any thing, not
having the necefliiry information.
The lad Chapter in the Work, concerning the
nature of the Divijions that take place in this Coun-
try, I have left in every Englifh Edition as I wrote
it at full in French. With refpect to the exact
manner of the Debates in Parliament, mentioned in
that Chapter, I mould not be able to fay more at pre-
sent than I was at that time, as I never had an oppor-
tunity to hear the Debates in either Houfe. In re-
ADVERTISEMENT, x*
gard to the Divifzons in general to which the fpirit
of party gives rife, I did perhaps the bulk of the
People fomewhat more honour than they really de-
ferve, when I reprefented them as being free from
any violent difpofitions in that refpeft : I have fince
found, that, like the bulk of Mankind in all Coun-
tries, they fuffer themfelves to be influenced by vehe-
ment prcpoffeffions for this or that fide of public
queftion-, commonly in proportion as their know-
ledge of the fubjecls, is imperfect. It is however
a fact, that their political prepofieffions and party
fpirit are not productive in this Country, of
thof.: dangerous confequences which might be
feared from the warmth with which they are fome-
timcs manifcfted. But this fubject, or in general
the fubjedl of the political quarrels and divilions in
this Country is not an article one may venture to
meddle with in a fingle Chapter ; I have therefore
let this fubfift, without touching it,
I fhall however obferve, before I conclude, that
there is an accidental circumftance in the Englifh
Government, which prevents the party fpirit by
which the Public are ufualiy influenced, from pro-
ducing thofe lading and rancorous divifions in the
Community which have peftered fo many other free
States, making of the fame Nation as it were two
diftincl: People, in a kind of conftant warfare with
each other. The circumftance I mean, is, the
frequent reconciliations (commonly to quarrel again
afterward) that take place between the Leaders
of parties, by which the moil violent and ignorant
xvi * ADVERTISEMENT.
Clafs of their partizans are bewildered, and made t
lofe the fcent. By the frequent coalitions between
Whig and Tory Leaders, even that party diftin&ion,
the mod famous in the Englifh Hiftory, has now be-
come ufelefs : the meaning of the words has thereby
been rendered fo perplexed that nobodycan any longer
give a tolerable definition of them ; and thofe per-
fons who now and then aim at gaining popularity
by claiming the merit of belonging to either party,
are fcarcely understood. The late Coalition between
two certain Leaders has done away and prevented
from fettling, that violent party fpirit to which the
adminiftration of Lord Bute had given rife, and
which the American difputes had carried ftill far-
ther. Though this Coalition has met with much
obloquy, I take the liberty to rank myfelf in the
number of its advocates, fo far as the circumftancc
here mentioned.
May y 1784.
THE
CONSTITUTION
O F
ENGLAND.
INTRODUCTION.
^*~] ~*A H E fpirit of Philofophy which pe-
culiarly diftinguilhes the prefent age,
-** after having corrected a number of
errors fatal to Society, feems now to be directed
towards the principles of Society itfelf; and
we fee prejudices vanifli, which are difficult to
overcome, in proportion as it is dangerous to
attack them (a). This rifing freedom of fen-
(a) As every popular notion which may contribute
to the fupport of an arbitrary Government, is at all times
vigilantly prote&ed by the whole ftrength of it, political
B
2 THE CONSTITUTION
timent, the necefTary forerunner of political
freedom, led me to imagine that it would not
be unacceptable to the Public, to be made ac-
quainted with the principles of a Conftitution
on which the eye of curiofity feems now to be
univerfally turned; and which, though cele-
brated as a model of perfection, is yet but
little known to its admirers.
I am aware that it will be deemed prefump-
tuous in a Man who has parTed the greateft part
of his life out of England, to attempt a de-
lineation of the Englifn Government j a fyfteci
which is fuppofed to be fo complicated as not
to be underltood or developed, but by thofe
who have been initiated in the mvfteries of it
J
from their infancy.
But, though a foreigner in England, yet, as
a native of a free Country, I am no ftranger
to thofe circumfrances which conftitute or cha-
racterife liberty. Even the great difpropor-
tion between the Republic of which I am
prejudices are, lr.fi of all, if ever, fhaken off by a Nation
fubjetted to fuch a Government. A great change in this
yefped, however, has of late taken place in France,
where this book was nrfl publifhed, and opinions are low
difcufled there, and tenets avowed, which in the time of
Lewis the Fourteenth, would have appeared downright
blafphemy : it is to this an allufion is made above.
Of ENGLAND, 3
a member, and in which I formed my prin-
ciples, and the Britiih Empire, has perhaps
only contributed to facilitate my political in-
quiries.
As the Mathematician the better to difcover
the proportions he invefligates, begins with
freeing his equation from coefficients, or fuch other
quantities as only perplex without properly
conitituting it, fo it may be advantageous to
the inquirer after the caufes that produce the
equilibrium of a government, to have previously
ftudied them, difengaged from the apparatus
of fleets, armies, foreign trade, diftant and
extenfive dominions, in a word, from all thofe
brilliant circumftances which fo greatly afreet
the external appearance of a powerful Society.
but have no eifcntial connection with the real
principles of it.
It is upon the pafiions of Mankind, that is
upon caufes which are unalterable, that the ac-
tion of the various parts of a State depends.
The machine may vary as to its dimenfions,
but its movement and acting fprings {till re-
main intrinfically the fame; and that time can-
not be confidered as loft, which has been fpent
in feeing them act and move in a narrower
circle.
4 THE CONSTITUTION
One other confidcration I will fuo-p-efh which
is, that the very circumftance of being a to-
reigner, may of itfelf be attended, in this cafe,
with a degree of advantage. The Englim
themfelves (the obfervation cannot give them
any offence) having their eyes open, as I may
lay, upon their libeity, from their firft entrance
into life, arc perhaps too much familiarifed
with its enjoyment, to enquire, with real con-
cern, into its caufes. Having acquired practi-
cal notions of their government, long before
they have meditated on it, and thefe notions
beim r flowlv and gradually imbibed, thev at
length behold it without any high degree of
fenfibility; and they feern to me, in this refpedt,
to be like the reclnfe inhabitant of a palace,
who is perhaps in the worft lunation for attain-
ing a complete idea of the whole, and never
experienced the finking effect of its external
ftrudture and elevation; or, if you pleafe, like
a Man who, having always had a beautiful and
extenfive iccm before his eyes, continues for
ever to view it with indifference.
But a ftranp-er, behold mi at once the vari-
ous parts of a Conftitution difplayed before
him, which at the fame time that it carries
liberty to its height, has guarded againft in-
OF ENGLAND. $
conveniences feeminelv inevitable, behold ins:
in lhort thoie things carried into execution,
which he had ever regarded as more defirable
than poffible, he is ftruck with a kind of ad-
miration; and it is neceiTary. to be thus frrongly
affected by objects, to be enabled to reach the
general principle which governs them.
Not that I mean to inlinuate that I have pe-
netrated with more acutenefs into the Conit'i-
tution of England than others; my only de-
fign in the above obfervations, was to obviate
an unfavourable, though natural, prepoiTeflion ;
and if, either in treating of the caufes which
originally produce the EngliOi liberty, or of
thole by which it continues to be maintained,
my obfervations mould be found new or iineu-
lar, I hope the Englith reader will not condemn
them, but where they mall be found incon-
fiftent with Hiitory, or with daily experience.
Of readers in general I alfo rcqueft, that they
will not judge of the principles I mall lay
down, but from their relation to thofe of hu-
man nature: a confideration which is almott
the only one effential, and has been hitherto too
much neglected by the Writers on the fubjedfc
pf government.
6 THE CONSTITUTION
CHAP. I.
Caufes of the liberty of the Englijb Nation.
Reafons of the difference between the Govern-
ment of England, and that of France, In
England, the great power of the Crozvn, under
the Norman kings, created an union between the
Nobility and the People.
J HEN the Romans, attacked on all
fides by the Barbarians, were reduced
to the neceffity of defending the centre of their
Empire, they abandoned Great Britain as well
as feveral other of their diftant provinces.
The ifland, thus left to itfelf, became a prey
to the Nations inhabiting the fhores of the
Baltic j who, having fir ft deftroyed the ancient
inhabitants, and for a long time reciprocally
annoyed each other, eftablifhed feveral Sove-
reignties in the fouthern part of the Ifland, af-
terwards called England, which at length were
united, under Egbert, into one Kingdom.
The fucceffors of this Prince, denominated
the Anglo-Saxon Princes, among whom Alfred
the Great and Edward the ConfefTor are particu-
larly celebrated, reigned for about two hundred
years: but, though our knowledge of the prii}-
OF ENGLAND. 7
cipal events of this early period of the Englifh
Hiftory is in fome degree exact, yet we have
but vague and uncertain accounts of the nature
of the Government which thofe Nations intro-
duced.
It appears to have had little more affinity
with the prefent Conftitution, than the general
relation, common indeed to all the Govern-
ments eftablifhed by the Northern Nations,
that of having a King and a Body of Nobi-
lity; and the ancient Saxon Government is
( Jeft us in (lory (to ufe the expreffions of
ec . fir William Temple on the fubject) but like
Cf fo many antique, broken, or defaced pic-
e( tures, which may {till reprefent fomething
" of the cuftoms and fafhions of thofe ages,
<( though little of the true lines, proportions,
iC or refemblance (a)."
It is at the era of the Conqueft, that we are
to look for the real foundation of the Enpdifh
Conftitution. From that period, fays Spelman,
novus feclorum nafcitur ordo (). William of Nor-
mandy, having defeated Harold, and made
{a) See his Introduction to the Hiftory of England.
{b) See Spelman, Of Parliaments. It has been a
favourite thefis with many Writer., to pretend that the
Saxon. Government was, at the time of the Concjueft, by
B4
8 THE CONSTITUTION
himfelf mafler of the Crown, fubverted the
ancient fabric of the Saxon Lejriflation : he
no means fubverted ; that William of Normandy le-
gally acceded to the Throne, and confequently to the en-
gagements of the Saxon Kings; and much argument has
in particular been employed with regard to the word Con-
quefi, which, it has been faid, in the feudal fcnfe only
meant aequijition. Thefe opinions have been particularly
infilled upon in times of popular oppofition: and, indeed,
there uas a far greater probability of fuccefs, in raifing
among the People the notions familiar to them of legal
claims and long eitablifhed culbms, than in arguing with
them from the no lefs rational, but lefs determinate, and
fomewhat dangerous doctrines, concerning the original
rights of Mankind, and the lawfulnefs of at all times x>p-
pofir.g force to an oppreflive Government.
But if we confider that the manner in which the
public Power is formed in a State, is fo very effential a
part of its Government, and that a thorough change in
this refpecl was introduced into England by the Concmeft,
we (hall not fcruple to allow that a new Government was
eftablifhed. Nay, as almoft the whole landed property
in the Kingdom was at that time transferred to other
hands, a new Syftem of criminal Juftice introduced, and
the language of the law moreover altered, the revolution
may be faid to have been fuch as is not perhaps to be
paralleled in the Hiilory of any other Country.
Some Saxon laws, favourable to the liberty of the
people, were indeed again eftabhflied under the fuc-
ceffors of William ; but the introduction of fome new
modes of proceeding in the Courts of Juilice, and of a
few particular laws, cannot, fo long as the ruling P&\yer
OFENGLAND. 9
exterminated, or expelled, the former occu-
piers of lands, in order to distribute their pof-
ieffions among his followers; and ellablilhed
the feudal fyftem of Government, as better
adapted to his fituation, and indeed the only one
of which he poffeffed a competent idea.
in the State remains the fame, be fa id to be the intro-
duction of a new Government ; and as when the laws
in queftion were again eftabliihed, the public power in.
England continued in the fame channel where the Con-
queil has placed it, they were more properly new modi-
fications of the Anglo-Norman Conltitution, than they
were the abolition of it ; or fince they were again adopted
from the Saxon Legiflatlon, they were rather imitations
of that legiflation, than the reftoration of the Saxon Go-
vernment.
Contented, however, with the two authorities I have
above quoted (Spehnan and Temple), I (hall dwell no
longer on a difcuffion of the preciie identity, or differ-
ence, of two Governments, that is of two ideal fy-
ftems, which only exift. in the conceptions cf men. Nor
do 1 wifh to explode a doctrine, which, in the opinion
of fome perfons, giving an additional fanclion and dig-
nity to the Englilh Government, contributes to increafe
their love and refpedt for it. It will be fufricient for my
purpofe, if the reader fhail be plsafed to grant that a
material change was, at the time of the Conquer!:, c ffected.
in the Government then exifting, and is accordin lv dif-
pofed to admit the proofs that will prefently be la^l before
him, of fuch cban e having prepared the effablilhment of
the prefent Engiifn Conftitutipn.
io THE CONSTITUTION
This fort of Government prevailed alfo in
almoft all the other parts of Europe. But,
inftead of being eftablifhed by dint of arms
and all at once, as in England, it had only
t>een eftablifhed on the Continent, and particu-
larly in France, through a long feries of flow
fucceflive events; a difference of circumftances
this, from which confequences were in time to
arife, as important as they were at firfl difficult
to be forefeen.
The German Nations who palled 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
aequired in their forefts but contracted notions
of fovereign authority, they followed a Chief,
lefs in quality of fubjccls, than as companions
in conqueft.
Befides, this conqueft was not the irruption
of a foreign army, which only takes poiTeffion
of fortified towns. It was the general invafion
of a whole People, in fearch of new habitations;
and as the number of the Conquerors bore a
great proportion to that of the conquered, who
were at the fame time enervated by long peace,
the expedition was no fooner completed thai;
OF ENGLAND. it
ell danger was -at an end, and of courfe their
union alfo. After dividing among themfelves
what lands they thought proper to occupy, they
feparated; and though their tenure was at firft
only precarious, yet in this particular, they de-
pended not on the King, but on the general
aflembly of the Nation (a).
Under the Kings of the firjl race, the fiefs,
by the mutual connivance of the Leaders, at
firft became annual; afterwards, held for life.
Under the defcendants of Charlemain, they be-
came hereditary (), And when at length Hugh
Capet effected his own election to the prejudice
of Charles of Lorrain, intended to render the
Crown, which in fadt was a fief, hereditary in
his own family (c), he eftablifhed the hereditari-
fhip of fiefs as a general principle; and from
(a) The fiefs were originally called, terra jure beneficii
concejfte ; and it was not till under Charles le Grcs the
term fief began to be in ufe. See Beneficium, Glojf.
J)u Cange.
{b) Apud Francos <vero, fenjim pedetentimque, jure hareM-
tarto ad b&redes tranfieruut feuda; quod labente faculo nono
incipis. See Feudum Du Cange.
(c) Hottoman has proved beyond a doubt, in his Fran-
cogallia, that under the two firfr. races of Kings, the
Crown of France was elective. The Princes of the
reigning family had nothing more in their favour, than
he cuftom of chufing one of that ho^fe.
12 THE CONSTITUTION
this epoch, authors date the complete eftabliih.-
merit of the feudal fyftem in France.
On the other hand, the Lords who save their
fuftrages to Hugh Capet, forgot not the intereit
of their own ambition. 1 hey completed the
breach of thofe feeble ties which fubjedted them
to the royal authority, and became every where
independent. They left the King no juris-
diction cither over themfelves, or their Vaffals ;
they refer ved the right of waging war with
each other; they even afFumed the fame privi-
lege, in certain cafes, with regard to the Kino:
himfelf(tf); fo that if Hugh' Capet, by ren-
dering the Crown hereditary, laid the founda-
tion of the greatnefs of his family, and of the
Crown itfelf, yet he added little to his own au-
thority, and acquired fcarcely any thing mote
than a nominal fuperiority over the number of
(a) The principal of thefe cafes was when the King
refufed to appoint Judges to decide a difference between
himfclf and one of his fir it Barons; the latter had then
a right to take up arms againft the King; and the fub-
ordinate Vaffals were fo dependent on their immediate
Lords, that they were obliged to follow them again it the
Lord Paramount. St. Louis, though the power of the
Crown was in his time much increafed, was obliged to
confirm both this privilege of the fir ft Barons, and thL
obligation of their Vaffals.
OK ENGLAND. ij
Sovereigns who then fvvarmed in France (#).
But the eftablifhment of the feudal fyflem in
England, was an immediate and fudden confe-
quence of that conqueft which introduced it.
Befides this conqueft 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 Sove-
reign: circumftanccs which gave a totally dif-
ferent turn to the Government of that kingdom.
Surrounded by a warlike, though a con-
quered Nation, William kept on foot pari:
of his army. The Englifh, and after them
the Normans themfelves, having revolted, he
crufhed both; and the new King of England,
at the head of victorious troops, having to do
with two Nations laying under a reciprocal
check from the enmity they bore to each other,
[a] " The Grandees of the Kingdom," fays Mezeray,
" thought that Hugh Capet ought to put up with all
" their infults, becaufe they had placed the CrowYi on
" his head: nay, To great was their licentioufnefs, that
" on his writing to Audebert, Vifcount of Perigueux,
tc ordering him to raife the fiege he had laid to Tours,
*' and aficing him, by way of reproach, who had made
" him a Vifcount? that Nobleman haughtily anfvvered,
" Not you, but thofe nvho made you a King, [Non pas
<f vous, mais ceux qui vous ont fait Roi.]
t4 THE CONSTITUTION
and moreover equally fubdued by a fenfe
of their unfortunate attempts of refiftance,
found himfelf in the moft favourable circum-
ftances for becoming an abfolute Monarch; and
his laws thus promulgated in the midft as it
were of thunder and lightning, impofed the
yoke of delpotifm both on the victors and the
vanquifhed.
He divided England into fixty thoufand two
hundred and fifteen military fiefs, all held of
the Crown; the poffeficrs of which were, on
pain of forfeiture, to take up arms, and repair
to his ftandard on the fir ft fignal : he fubjecled
not only the common people, but even the Ba-
rons, to all the rigours of the feudal Govern-
ment: he even impofed en them his tyrannical
foreft laws (#).
He affumed the prerogative of impofing
taxes. He inverted himfelf with the whole
executive power of Government. But what
(a) He referved to himfelf an exclufive privilege of
killing game throughout England, and enabled the fe-
vereft penalties on all who fhould attempt it without his
permiffion. The fuppreffion, or rather mitigation of thefe
penalties, was one of the articles of the Charta de FcreJIa,
which the Barons afterwards obtained by force of arms.
fJullus de catero amittat <vitam, vel membra, pro lenaiisne
nojira. Ch. de Foreft. Art. io<
OF ENGLAND. t$
was of the greateft confequence, he arrogated
to himfelf the mod extenfive judicial power by
the eftablifhment of the Court which was called
Aula Regis y a formidable tribunal, which re-
ceived appeals from all tjie courts of the Ba-
rons, and decided in the laft refort on the eftates,
honour, and lives of the Barons themfelves;
and which, being wholly compofed of the great
officers of the Crown, removable at the King's
pleafure, and having the King himfelf for Pre-
sident, kept the fir ft Nobleman in the Kingdom
under the fame controul as the meansft fubject.
Thus, while the Kingdom of France, in
confequence of the flow and gradual formation
of the feudal government, found itfelf, in the
iffue, compofed of a number of parts fimply
placed by each other, and without any recipro-
cal adherence, the Kingdom of England on
the contrary, in confequence of the fudden and
violent introduction of the fame fyftem, became
a compound of parts united by the flrongeft
ties, and the regal Authority, by the preflure
of its immenfe weight, confolidated the whole
into one compact indiflbluble body.
To this difference in the original Conftitu-
tion of France and England, that is, in the
original power of their Kings, we are to attri-
3
i6 THE CONSTITUTION
bute the difference, fo little analogous to 1(3
original caufe, of their prefent Constitutions*
This it is which furnifiies the folution of a pro-
blem which, I mnft confefs, for a long time
perplexed me, and explains the reafon why,
of two neighbouring Nations, Situated almoSt
under the fame climate, and having one com-
mon origin, the one has attained the fummit ot
liberty, the other has gradually funk under an
abfolute Monarchy.
In France, the royal Authority was indeed
inconfiderable; but this circumftar.ee was by no
means favourable to the general liberty. The
Lords were every thing; and the bulk of the
Nation were accounted nothing. All thofe wars
which were made on the King, had not liberty
lor their object; for of this the Chiefs al-
ready enjoyed but too great a mare: they were
the mere effedt of private ambition or caprice*
The People did not engage in them as aflb-
ciates in the fupport of a caufe common to all;
they were dragged, blindfold and like Haves,
to the Standard of their Leaders. In the mean
time, as the laws by virtue of which their Maf-
ters were considered as Vallals, had no relation to
thole by which they were themfclves bound as
Subjects, the refinance of which they were made
OF ENGLAND, i>
the inftruments, never produced any advan-
tageous confequence in their favour, nor did it
eftablilh any principle of freedom that was in
any cafe applicable to them.
The inferior Nobles, who fhared in the inde-
pendence of the fuperior Nobility, added alfo
the effects of their own infolence to the defpot-
ifm of fo many Sovereigns; and the people,
wearied out by fufferings, and rendered defperate
by oppreffion, at times attempted to revolt.
But being parcelled out into fo many different
States, they could never perfectly agree, either
in the nature, or the times of their complaints.
The infurredtions, which ought to have been
general, were only fncceffive and particular. In
the mean time the Lords, ever uniting to avenge
their common canfe as Mailers, fell with irre-
liltible advantage on Men who were divided;
the People were thus feparately, and by force,
brought back to their former yoke; and Li-
berty, that precious offspring, which requires
fo many favourable circumilances to fofter it,
was every where flifled in its birth {a),
[a) It may be feen in Mezeray, how the Flemings, at
the time of the great revolt which was caufed, as he fays,
" by the inveterate hatred of the Nobles (les Gentils-
** hornmes) againft the people of Ghent, 1 ' were crulhed
c
i* THE CONSTITUTION
At length, when by conquefts, by efcheats,
or by Treaties, the feveral Provinces came to be
re-united (a) to the extenfive and continually in-
creafing dominions of the Monarch, they be-
came fubjed: to their new Mailer, already trained
by the union of almoft all the Nobility of France. 5><r
Mezeray, Reign of Charles VI.
(a) The word re-union exprefles in the French law, or
Hiftory, the reduction of a Province to an immediate de-
pendence on the Crown. The French lawyers, who
were at all times remarkably zealous for the aggrandife-
ment of the Crown (a zeal which would not have been
blameable, if it had been exerted only in the fuppreflion
of lawlefs Ariftocracy) always contended that when a
province once came into the poffeffion of the King, even
any private dominion of his before he acceded to the
Throne, it became re united for ever: the Ordonnance of
Moulins, in the year 1566, has fince given a thorough
fandtion to thefe Principles. The re-union of a province
might be cccafioned, firft, by the cafe juft mentioned, of
the accefhon of the pofTefTor of it to the throne: thus at
the acceffion of Henry IV. (the filler of the late King be-
ing excluded by the Salic law) Navarre and Beam were
re-united. Secondly, by the felony of the poffefibr, when
the King was able to force by dint of arms, the judg-
ment paffed by the Judges he had appointed: thus the
fmall Lordfhip of Rambouillet was feized upon by Hugh
Capet ; on which authors remark that it was the firft do-
minion that was re-unitcd: and the duchy of Normandy
was afterwards taken in the fame manner by Philip Au-
guftus from John King of England, condemned for the;
murder of Arthur Duke of Britanny, Thirdly, by the laft
will of the pofleilbr; Provence was re-united in this man-
Of ENGLAND. 19
to obedience. The few privileges which the
Cities had been able to preferve, were little re-
flected by a Sovereign who had himfelf entered
into no engagement for that purpofe; 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 thofe he already poffeffed.
ner, under the reign of Lewis XI. Fourthly, by inter-
marriages : this was the cafe of the county of Champagne,
under Philip the Fair; and of Britanny under Francis I.
Fifthly, by the failure of heirs of the blood, and fome-
times of heirs male: thus Burgundy was feized upon by
Lewis XL after the death of Charles the Bold, Duke of
that Province. Laftly, by purchafes : thus Philip of Va-
lois purchafed the Barony of Montpellier ; Henry IV.
the Marquifat of Salucesj Lewis XIII. the Principality of
Sedan, &e.
Thefe different Provinces> which with others united,
or re -unit id, after a like manner, now compofe the French
Monarchy, not only thus conferred on their refpective
Sovereigns different titles, but alfo differed from each
other with refped to the laws which they followed, and
Hill follow: the one are governed by the Roman law,
and are called Pays de Droit ecrit; the others follow par-
ticular cuftoms, which in procefs of time have been fet
down in writing, and are called Pays de Droit Coutumier.
In thofe Provinces the people had, at times, purchafed pri-
vileges from their Princes, which in the different Provinces
were alfo different, according to the wants and temper of
the Princes who granted them :
C 2
2 THE CONSTITUTION
As a farther confequence of thefc differences
between the times of the re-unions, the feveral
parts of the Kingdom entertained no views of
affifling each other. When fome reclaimed
their privileges, the others, long fince reduced
to fubjedtion, had already forgotten their's. Be-
tides, thefe privileges, by reafon of the differ-
ences of the Governments under which the
Provinces had formerly been held, were alfo
almoft every where different: the circumftances
which happened in one place, thus bore little
affinity to thofe which fell out in another; the
fpirit of union was loft, or rather had never ex-
iffced : each Province, reftrained within its parti-
cular bounds, only ferved to infure the general
fubmiflionj and the fame caufes which had re-
duced that warlike, fpiritcd Nation, to a yoke of
fubjecaion, concurred alfo to keep them under it.
1 hus Liberty perifhed in France, becaufe it
wanted a favourable culture and proper fitua-
tion. Planted, if I may i'o exprefs myitlf, but
juft beneath the furface, it prclently expanded,
and fent forth fome larp-e fhoots; but having:
taken no root, it was loon plucked up. In
England, on the contrary, the feed lying at a
great depth, and being covered with an enor-
mous weight, feemed at firft to be fmothered;
OF ENGLAND. 21
but it vegetated with the greater force; it im-
bibed a more rich and abundant nourifhmentj
its fap and juice became better aflimilated, and
it penetrated and filled up with its roots the
whole body of the foil. It was the excefiive
power of the King which made England free,
becanfe it was this very excefs that gave rife to
the fpirit of union, and of concerted remittance.
PoiTefTed of extenfive demefnes, the King found
himfelf independent; veiled with the moft
formidable prerogatives, he crufhed at pleafure
the moil powerful Barons in the Realm : it was
only by clofe and numerous confederacies
therefore, that thefe could refill his tyranny j
they even were compelled to affociate the Peo-
ple in them, and make them partners of public
Liberty.
Aflembled with their Vaffals in their great
Halls, where they difpenfed their hofpitality,
deprived of the amufements of more polifhed
Nations, naturally inclined, befides, freely to
expatiate on objects of which their hearts were
full, their converfation naturally turned on the
injutlice of the public impositions, on the ty-
ranny of the judicial proceedings, and, above
all, on the detefted foreft laws.
c 3
22 THE CONSTITUTION
Deftitute of an opportunity of cavilling
about the meaning of laws the terms of which
were precife, or rather difdaining the refource
of fophiftry, they were naturally led to examine
into the firfl principles of Society; they en-
quired into the foundations of human authority^
and became convinced, that Power, when its
object is not the good of thofe who are fubject
XQ it, is nothing more than the right of the
fjongeft, and may be reprelTed by the exertion
of a fimilar right.
The different orders of the feudal Govern-
ment, as eftablifhed in England, being con-
nected by tenures exactly fimilar^ the fame
maxims which were laid down as true againfl
the Lord paramount in behalf pf the Lord of
an upper fief, were likewife to be admitted
againft the latter, in behalf of the owner of an
inferior fief. The fame maxims were alfo to be
applied to the poffefTor of a ftill lower fief: they
farther defcended to the freeman, and to the
peafantj and the fpirit of liberty, after having
circulated through the different branches of the
feudal fubordination, thus continued to flow
through fucceflive homogeneous channels; it
forced a paffage to itfelf into the remoteft rami-
fications, and the principle of primeval equa-
8
OF ENGLAND, 23
lity became every where diffufed and eftablilhed.
A facred principle, which neither injuftice nor
ambition can erafe; which exifts in every breaft,
and, to exert itfelf, requires only to be awaken-
ed among the numerous and opprefTed claries
of Mankind.
But when the Barons, whom their perfonal
confequence had at firft caufed to be treated
with caution and regard by the Sovereign, be-
gan to be no longer To, when the tyrannical laws
of the Conqueror became {till more tyrannically
executed, the confederacy, for which the gene-
ral opprefl]on had paved the way, inftantly took
place, The L,ord, the Vaflal, the inferior Vaf-
fal, all united, They even implored the afllft-
ance of the peafants and cottagers; and that
haughty averfion with which on the Continent
the Nobility repaid the induftrions hands which
fed them, was, in England, compelled to yield
to the prefTIng neceffity of fetting bounds to the
Royal authority.
The People, on the other hand, knew that
the caufe they were called upon to defend,
was a caufe common to all; and they were
fenfible, befides, that they were the necefTary
fupporters of it. Inftructed by the example
of their Leaders, they fpoke and ftipulatec^
c 4
24 THE CONSTITUTION
conditions for themfelves: they infilled that,
for the future, every individual Ihould be inti-
tled to the protection of the law; and thus did
thofe rights with which the Lords had ftrength-
ened themfelves, in order to oppofe the tyranny
of the Crown, become a bulwark which was, in
time, to reftrain their own.
CHAP. II.
A fecond advantage England had over France :
- it formed one undivided State,
T was in the reign of Henry the Firft, about
forty years after the Conquer!:, that we
ict the above caufes begin to operate, This
Prince having afcended the throne to the ex-
clufion of his elder brother, was fenfible that he
had no other means to maintain his power than
by gaining the affection of his fubjects ; but, at
the fame time, he perceived that it muft be
the affection of the whole nation: he, therefore*
not only mitigated the rigour of the feudal laws
in favour of the Lords, but alfo annexed as a
condicion to the Charter he granted, that the
Loids ihould allow the fame freedom to their
r^fpe&ive Vafials* Care was even taken to,
O F E N G L A N D, 25
abolifh thofe laws of the Conqueror which lay
heavielt on the lower claries of the People (a).
Under Henry the Second, liberty took a
farther ftride; and the ancient 'Trial by Jury,
a mode of procedure which is at prefent one
of the moft valuable parts of the Englifh
law, made again, though imperfectly, its ap-
pearance.
But thefe caufes, which had worked but
filently and {lowly under the two Henrys, who
were Princes in fome degree juil, and of
great capacity, manifested themfelves, at once,
under the defpotic reign of King John. The
royal prerogative, and the foreft laws, having
been exerted by this Prince to a degree of ex-
fa) Amongld others, the law of the Curfeu. It might
be matter 01 curious difcuffion to inquire what the Anglo-
Saxon Government would in procefs of time have become,
and of courfe the Government of England be, at this pre-
fent time, if the event of the Conquer! had never taken
place ; which, by conferring an immense as well as unufual
power on the head or the feudal Syftem, compelled the
Nobility to contract a lading and fincere union with the
People. It is very probable that the Englifh Government
y/ould at this day be the fame as that which long prevailed
in Scotland, where the King and Nobles engroiTed, jointly,
or by turns, the whole power in the State, the fame as in
Sweden, the fame as in Denmark, Countries whence the
Anglo-Saxons came,
s THE CONSTITUTION
ceffive feverity, he foon beheld a general con-
federacy formed againfl him : and here we muft
obferve another circumftance, highly advan-
tageous, as well as peculiar to England.
England was not, like France, an aggre-
gation of a number of different Sovereignties:
it formed but one State, and acknowledged
but one Mailer, one general title. The fame
laws, the fame kind of dependence, confe-
quently the fame notions, the fame interefts,
prevailed throughout the whole, The extre-
mities of the kingdom could, at all times,
unite to give a check to the exertions of an
unjuft power. From the river Tweed to Portf-
mouth, from Yarmouth to the Land's End, all
was in motion: the agitation increaied from
the diftance like the rolling waves of an exten-
five fea; and the Monarch left to himfelf,
and deftitute of refources, faw himfelf at-
tacked on all fides by an univerfal combination
of his fubjects.
No fooner was the ftandard fet up againft
John, than his very Courtiers forfook him.
In this fituation, finding no part of his king-
dom iefs irritated againft him than another,
having no detached province which he could
engage in his defence by promifes of pardon,
OF ENGLAND. a;
or of peculiar conceffions, the trivial though
never-failing refources of Government, he was
compelled with feven of his attendants, all that
remained with him, to fubmit himfelf to the
difpofal of his fubje&s; and he figned at Run-
ing Mead (#) the Charter of the Foreft, toge-
ther with that famous charter, which, from its
fuperior and extenfive importance, is denomU
nated Magna Charta.
By the former the mod tyrannical part of
the foreft laws was abolifhed ; and by the lat-
ter, the rigour of the feudal laws was greatly-
mitigated in favour of the Lords. But this
Charter did not flop there; conditions were
alfo ftipulated in favour of the numerous body
of the people who had concurred to obtain it,
and who claimed, with fword in hand, a fhare
in that fecurity it was meant to eftablifh. It
was hence instituted by the Great Charter, that
the fame fervices which were remitted in favour
of the Barons, fhould be in like manner remitted
in favour of their VafTals. This Charter more-
over eftablifhed an equality of weights and
meafures throughout England ; it exempted the
jMerchants from arbitrary impofts, and gave
(#) Anno 1 21 5.
sS THE CONSTITUTION
them liberty to enter and depart the Kingdom
at pleafure : it even extended to the loweit or-
ders of the State, fince it enacted, that the Vil-
lain, or Bondman, fhould not be fubject to the
forfeiture of his implements of tillage. Laftly,
by the twenty-ninth article of the fame Char-
ter, it was enacted, that no fubjedt mould be
exiled, or in any fhape whatever molefted,
either in his perfon or effects, otherwife rhia
by judgment of his peers, and according to ihe
law of the land (a) : an article lb impoi tar.t,
that it jnay be faid to comprehend the whole
end and delign of political focieties; and from
that moment the Englifh would have been a
free People, if there were not an immenfe
diftance between the making of laws, and the
obferving of them.
But though this Charter wanted moft of
thofe fupports which were necefiary to infure
refpeCt to it, though it did not fecure to the
(a) " Nullus liber homo capiatur, vel imprifonetur, vel
i difTefietur de libero tenemento fuo, vel libertatibus, vel
" liberis confuetudinibus fuis ; aut utlagetur, aut exulecur,
" aut aliquo modo deftruatizr; nee fupt-r eum ibimus, nee
* fuper eum mittemus, nili per legale judicium parium
*< fuorum, vel per legem terra;. Nulli vendemus, nulli
negabimus, aut differernus, juftitiam vel rectum." Magna
Chart, cap. xxix,
OF ENGLAND. 29
poor and friendlefs any certain and legal me-
thods of obtaining the execution of it (pro-
vifions which numberlefs tranfgreffions alone
could, in procefs of time point out), yet it
was a prodigious advance towards the efta-
bliihment of public liberty. Inflead of the
general maxims refpecting the rights of the
People and the duties of the Prince (maxims
againft which ambition perpetually contends,
and which it fometimes even openly and abfo-
lutely denies), here was fubftituted a written
law, that is, a truth admitted by all parties,
which no longer required the fupport of argu-
ment. The rights and privileges of the indi-
vidual, as well in his perfon as in his property,
became fettled axioms. The Great Charter, at
firft enacted with fo much folemnity, and after-
wards confirmed at the beginning of every fuc-
ceeding reign, became like a general banner
perpetually let up for the union of all clafTes
of the people; and the foundation was laid on
which thole equitable laws were to rife, which
offer the fame afiiftance to the poor and weak,
as to the rich and powerful (#).
(a) The reader, to be more fully convinced of the
reality of the caufes to which the liberty of England has
been here afcribed, as well as to the truth of the obfer-
5<s THE CONSTITUTION
Under the long reign of Henry the Thirds
the differences which arofe between the King
and the Nobles, rendered England a fcene of
confufion. Amidft the viciflitudes which the
fortune of war produced in their mutual con-
flicts, the People became flill more and more
ferifible of their importance, and fo did in con-
fequence both the Kirig and the Barons alfa.
Alternately courted by both parties, they ob-
tained a confirmation of the Great Charter, and
even the addition of new privileges, by the
ftatutes of Merton and of Marlebridge. But I
vations made at the fame time on the fituation of the peo-
ple of France, needs only to compare the Great Charter,
fo extenfive in its provilions, and in which the Baron*
ftipulated in favour even of the Bondman, with the treaty
concluded between Lewis the Eleventh and feveral of the
Princes and Peers of France, intitled, A Treaty made at
St. Maur, between the Dukes of Normandy, Calabre, Bre~
tagne, Bourbonnois, Awvergne, Nemours; the Counts of Cbaro*
lois, Armagnac, and St. Pol, and other Princes of France,
rifen up in fupport of the public good, of the one part ; and
King Lewis the Eleventh of the other, Oftober 29, 1 465.
In this Treaty, which was made in order to terminate a
war that was called the war for the Public good (pro bono
Publico), no provifion was made but concerning the parti-
cular power of a few Lords : not a word was inferted in
favour of the people. This treaty may be feen at large
in the pieces jujlifcatives annexed to the Mimoires de Phi-
lippe de Comines.
OFENGLAND. 3s
haften to reach the grand epoch of the reign of
Edward the Firft; a Prince, who, from his
numerous and prudent laws, has been denomi-
nated the Englim Juftinian.
PofTeffed of great natural talents, and fuc-
ceeding a Prince whofe weaknefs and injuflice
had rendered his reign unhappy, Edward was
fenfible that nothing but a flricl: adminiftration
of juflice, could, on the one fide, curb a Nobi-
lity whom the troubles of the preceding reign
had rendered turbulent, and on the other, ap-
peafe and conciliate the people, by fecuring the
property of individuals. To this end, he made
jurifprudence the principal objecl: of his atten-
tion; and fo much did it improve under his
care, that the mode of procefs became fixed
and fettled; Judge Hale going even fo far as
to affirm, that the Englim laws arrived at once,
6?" quafi per faltum, at perfection, and that there
has been more improvement made in them dur-
ing the firfi thirteen years of the reign of Ed-
ward, than all the ages fince his time have done.
But what renders this asra particularly inre-
refting, is, that it affords the firft inftance of
the admimon of the Deputies of Towns and
boroughs into (a) Parliament.
(#) I mean their legal origin; for the E31I of Lei-
32 THE CONSTITUTION
-* Edward, continually engaged in wars, either'
againft Scotland or on the Continent, feeing
moreover his demefnes considerably diminifhed,
was frequently reduced to the moft preffing ne-
ceflities. But though, in confequence of the
fpirit of the times, he frequently indulged him-
felf in particular acts of injuftice, yet he per-
ceived that it was impoffible to extend a general
oppreflion over a body of Nobles., and a People,
who fo well knew how to unite in a common
caufe. In order to raife fubfidies, therefore, he
was obliged to employ a new method, and to
endeavour to obtain through the confent of the
People, what his Predecehors had hitherto ex-
pected from their own power. The fheriffs were
ordered to invite the Towns and Boroughs of
the different Counties to fend Deputies to Par-
liament; and it is from this a?ra that we
are to date the origin of the Houfe of Com-
mons (//).
It rnuil be confeffed, however, that thefe
Deputies of the People were not, at firlt,
pofTeffed of any confiderable authority* They
ccftcr, who had ufurped the power during part of the
preceding reign, had called fiich Deputies up to Parlia-
ment before.
() Anno 1295.
I
OF ENGLAND. 33
were far from enjoying thofe extenfive privileges
which, in thefe days, conftitute the Houfe of
Commons a collateral part of the Government:
they were in thofe times called up only to pro-
vide for the wants of the King, and approve
of the refolutions taken by him and the afTem-
bly of the Lords (a). But it was neverthelefs
a great point gained, to have obtained the
right of uttering their complaints, affembled
in a body and in a legal way to have acquired,
inftead of the dangerous refource of infurrec-
tions, a lawful and regular mean of influencing
the motions of the Government, and thenceforth
to have become a part of it. Whatever difad-
vantage might attend the ftation at firft allotted
to the Reprefentatives of the People, it was foon
to be compenfated by the preponderance the
{a) The end mentioned in the Summons fent to the
Lords, was a'e arduis negotiis regni traclaturi, & confiliurn
impenfuri: the Summons fent to the Commons was, ad
facienJujn & confentiendum. The power enjoyed by the
latter was even inferior to what they might have expefred
from the Summons fent to them : " In irioft of the
" ancient Statutes they are not fo much as named ; and
" in feveral, even when they are mentioned, they are
*' diftinguiihed as petitioners merely, the Affent of the
* Lords being exprefled in contradutinftion to the Requeft
" of the Commons.'" See on this fubjeft the Preface to
the Collection of the Statutes at large, by P.ufFhead, and
the authorities quoted therein,
D
34 THE CONSTITUTION
People neceflarily acquire, when they are en-
abled to acl: and move with method, and efpe-
cially with concert (a).
And indeed this privilege of naming Re-
prefentatives, infignificant as it might then ap-
pear, prefently manifefled itfelf by the moft
confiderable effects. In fpite of his reluctance,
and after many evafions unworthy of fo great
a King, Edward was obliged to confirm the
Great Charter; he even confirmed it eleven
times in the courfe of his reign. It was more-
over enacted, that whatever mould be done con-
trary to it, Ihould be null and void; that it
Ihould be read twice a year in all Cathedrals;
and that the penalty of excommunication mould
be denounced againft any one who ihould pre-
fume to violate it ().
(a) France had indeed alfo her aflemblies of the
General Eftates of the Kingdom, in the fame 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 fmall part of the Nation
who, under the name of the Third Eftate, were admitted
in thofe Eftates ; and it is eafy to conceive that they ac-
quired no great influence in an aftembly of Sovereigns who
gave the law to their Lord Paramount. Hence, when
thefe difappeared, the maxim became immediately efta-
blifhed, The nuill of the King is the will of the Law. In
old French, Qui veut le Roy, Ji went la Lay.
(b) ConhVmationes Chartarum, cap. 2, 3, 4,
OF ENGLAND. 35
At length he converted into an eftablifhed
law a privilege of which the Englifh had hi-
therto had only a precarious enjoyment; and,
in the ftatute de Tallagio non concedendo, he de-
creed, that no tax fhould be laid, nor import
levied, without the joint confent of the Lords
and Commons (a). A moll: important Statute
this, which, in conjunction with Magna Charta,
forms the bafis of the Englifh Conftitution. If
from the latter the Englifh are to date the origin
of their liberty, from the former they are to
date the eftablifhment of it; and as the Great
Charter was the bulwark that protected the
freedom of individuals, fo was the Statute in
queftion the engine which protected the Charter
itfelf, and by the help of which the People
were thenceforth to make legal conquefts over
the authority of the Crown.
This is the period at which we muft flop,
in order to take a diftant view, and contemplate
the different profpecl: which the reft of Europe
then prefented.
(a) " Nullum tallagium vel auxllium, per nos, vel
" haeredes noftros, in regno noftro ponatur feu levetur,
11 fine voluntate Sc affenfu Archiepifcoporum, Epifcoporum,
" Comitum, Baronum, Militum, Burgenfium, & aliorum
" liberoruro bom 1 de regno noftro." Stat. an. 24 Ed. I.
D2
36 THE CONSTITUTION"
The efficient caufes of flavery were daily
operating and gaining ftrength. The indepen-
dence of the Nobles on the one hand, the igno-
rance and weaknefs of the people on the other,
continued to be extreme : the feudal govern-
ment Hill continued to diffufe oppreffion and
mifery; and fuch was the confufion of it, that
it even took away all hopes of amendment.
France, Hill bleeding from the extravagance
of a Nobility inceflantly engaged in groundlefs
wars, either with each other, or with the King,
was again defolated by the tyranny of that fame
Nobility, haughtily jealous of their liberty, or
rather of their anarchy (a). The people, op-
preiTed by thofe who ought to have guided and
protected them, loaded with infults by thofe
who exifted by their labour, revolted on all fides.
But their tumultuous infurreclions had fcarcely
any other object than that of giving vent to
(a) Net contented with oppreffion, they added infult.
" When the Gentility/'' fays Mezeray, " pillaged and
" committed exactions on the peafantry, they called the
" poor fufierer, in derifion Jaques bc?ibomtne (Goodman
" James.) This gave rife to a furious fedition, which
" was called xhejaquerie. It began at Beauvais in the year
" 1357a extending itfelf into mo it of the Provinces of
*' France, and was not appeafed but by the deftruclion of
" part of thofe unhappy victims, thoufands of whom were
" flaughtercd."
GF ENGLAND. 37
the anguiih with which their hearts were full.
They had no thoughts of entering into a gene-
ral combination; ftill lefs of changing the form
of the Government, and laying a regular plan
of public liberty.
Having never extended their views beyond
the fields they cultivated, they had no concep-
tion of thofe different ranks and orders of Men,
of thofe diftindr. and oppofite privileges and
prerogatives, which are all necefTary ingredients
of a free Conflitution. Hitherto confined to
the fame round of ruftic employments, they
little thought of that complicated fabiic, which
the more informed themielves cannot but with
difficulty comprehend, when, by a concurreace
of iayouiable circumstances, the flrud:ure has
at length been reared, and ftands difplayed to
their view.
In their fimplicity they faw no other remedy
for the national evils than the general eitablilh-
ment of the Regal power, that is, of the autho-
rity of one common uncontrouled mailer, and
only longed for that time, which, while it gra-
tified their revenge, would mitigate their fuffcr^
ings, and reduce to the fame level both the op-
preffors and the oppreffed.
The Nobility, on the other hand, bent folcly
on the enjoyment of a momentary indepencW
'd 3
5 3 THE CONSTITUTION
cnce, irrecoverably loft the affection of the
only Men who might in time fupport them ;
and, equally regardlefs of the dictates of hu-
manity and of prudence, they did not perceive
the gradual and continual advances of the royal
authority, which was foon to overwhelm them
all. Already were Normandy, Anjou, Langue-
doc, and Touraine, re-united to the Crown;
Dauphiny, Champagne, and part of Guienne,
were foon to follow: France was doomed at
length to fee the reign of Lewis the Eleventh ;
to fee her General Eftates firft become ufelefs,
and be afterwards abolifhed.
It was the defriny of Spain alfo to behold
her feveral Kingdoms united under one Head;
ihe was fated to be in time ruled by Ferdi-
nand and Charles the Fifth (a). And Ger-
{a) Spain was originally divided into twelve Kingdoms,
befides Principalities, which by Treaties, and efpecially
by Conquefts, were collected into three Kingdoms;
thofe of Caftile, Aragon, and Granada. Ferdinand the
fifth, King of Aragon, married Ifabella, Queen of Caf-
tile; they made a joint Conqueft of the Kingdom of Gra-
nada, and thefe three Kingdoms, thus united, defcended,
in 1 516, to their grandfon Charles V. and formed the
Spanifh Monarchy. At this aera, the Kings of Spain be-
gan to be abfolute; and the States of the Kingdoms of
Caftile and Leon, " aflembled at Toledo, in the month
' of November, 1539, were the laft in which the three
" orders met, that is, the Grandees, the Ecclefiaitics,
OFENGLAND. 39
many, where an elective Crown prevented the
re-unions (a), was indeed to acquire a few free
Cities; but her people, parcelled into fo many
different dominions, were deftined to remain
fubjec~t to the arbitrary yoke of fuch of her
different Sovereigns as mould be able to main-
tain their power and independence. In a word,
the feudal tyranny which overfpread the Con-
tinent, did not compenfate, by any preparation
of diftant advantages, the prefent calamities it
caufed; nor was it to leave behind it, as it
difappeared, any thing but a more regular kind
of Defpotifm.
" and the Deputies of the Towns. 1 ' See Ferrera's General
Hijiory of Spain.
{a) The Kingdom of France, as it flood under Hugh
Capet and his next Succeflbrs, may, with a great degree
of exaclnefs, be compared with the German Empire as
it exifls at prefent, and alfo exifted at that time: but the
Imperial Crown of Germany having, through a conjunc-
tion of circumftances, continued elective, the German
Emperors, though veiled with more high-founding pre-
rogatives than even the Kings of France, laboured under
very effential difadvantages : they could not purfue a plan
of aggrandifement with the fame lleadinefs as a line of
hereditary Sovereigns ufually do; and the right to elect
them, enjoyed by the greater Princes of Germany, pro-
cured a fufficicnt power to thefe, to protect themfelves,
as well as the leffer Lords, againft the power of the
Crown.
d 4
40 THE CONSTITUTION
But in England, the fame feudal fyftem, after
having fuddenly broken in like a flood, had de^
pofited, and flill continue to depofit, the noble
feeds of the fpirit of liberty, union, and fober
refinance. So early as the times of Edward,
the tide was feen gradually to fubfide ; the laws
which protect the perfon and property of the
individual, began to make their appearance;
that admirable Conftitution, the refult of a
threefold power, infeniibly arofe (a) ; and the.
eye might even then difcover the verdant fum-
mits of that fortunate region that was deflined
to be the feat of Philofophy and Liberty,
which are infeparable companions.
(<*.) " Now, in my opinion," fays Philipe de Comines,
in times not much pofterior to thofe of Edward the Firft,
and with the fimplicity of the language of his times.,
ft among all the fovereignties I know in the world, that
" in which the public good is beft attended to, and the
*' leaft violence exercifed on the people, is that of Eng-
land," Memoires de Comines, torn. I. lib. v. chap. xix.
OF ENGLAND, 4*
CHAPTER III.
The SubjeB continued.
THE Reprefentatives of the Nation, an$
of the whole Nation, were now admitted
into Parliament: the great point therefore was
gained, that was one day to procure them the
great influence which they at prefent pofTefs;
and the fubfequent reigns afford continual in-
stances of its fucceffive growth.
Under Edward the Second, the Commons be-
gan to annex petitions to the bills by which they
granted fubiidies: this was the dawn of their
legiflative authority. Under Edward the Third,
they declared they would not, in future, ac-
knowlege any law to which they had not ex-
prefsly affented. Soon after this, they exerted
a privilege in which confifts, at this time, one
of the great balances of the Conftitution : they
impeached, and procured to be condemned,
fome of the firft Minifters of State, Under
Henry the Fourth, they refufed to grant fub-
iidies before an anfwer had been given to their
petitions. In a word, every event of any con-
feo^uence was attended with an increafe of the
power of the Commons ; increafes indeed by&
42 THE CONSTITUTION
flow and gradual, but which were peaceably
and legally effected, and were the more fit to
engage the attention of the People, and coalefce
with the ancient principles of the Conftitution.
Under Henry the Fifth, the Nation was en-
tirely taken up with its wars againfl France;
and in the reign of Henry the Sixth began the
fatal contefts between the houfes of York and
Lancafter. The noife of arms alone was now
to be heard : during the filence of the laws
already in being, no thought was had of enact-
ing new ones; and for thirty years together,
England prefents a wide fcene of daughter and
defolation.
At length, under Henry the Seventh, who,
by his intermarriage with the houfe of York,
united the pretentions of the two families, a
general peace was re-eftablifhed, and the pro-
fpect of happier days feemed to open on the
Nation. But the long and violent agitation
under which it had laboured, was to be fol-
lowed by along and painful recovery. Henry,
mounting the throne with fword in hand, and
in great meafure as a Conqueror, had promifes
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
OFENGLAND. 43
for repofe, abhorred even the idea of refinance;
fo that the remains of an almoft exterminated
Nobility beheld themfelves left defence-
lefs, and abandoned to the mercy of the So-
vereign.
The Commons, on the other hand, accuf-
tomed to act only a fecond part in public af-
fairs, and finding themfelves bereft of thofe
who had hitherto been their Leaders, were more
than ever afraid to form, of themfelves, an
oppofition. Placed immediately, as well as the
Lords, under the eye of the King, they beheld
themfelves expofed to the fame dangers. Like
them, therefore, they purchafed their perfonal
fecurity at the expence of public liberty; and
in reading the hiftory of the two firft Kings of
the houfe of Tudor, we imagine ourfelvcs read-
ing the relation given by Tacitus, of Tiberius
and the Roman Senate (;/).
The time, therefore, feemed to be arrived,
at which England mull fubmit, in its turn, to
the fate of the other Nations of Europe. All
thofe barriers which it had railed for the de-
fence of its liberty, feemed to have only been
able to poftpone the inevitable effedts of Power.
[a) Shtanto qui: illujlricr, tatifo magis faljl ac fejli-
nantcs.
44 THE CONSTITUTION
But the remembrance of their ancient laws,
of that great charter fo often and fo folemnly
confirmed, was too deeply imprefled on the
minds of the Englifh, to be effaced by tran-
iitory evils. Like a deep and extenfive ocean,
which preferves an equability of temperature
amidft all the viciflitudes of feafons, England
iVill retained thofe principles of liberty which
were fo univerfally diffufed through all orders
of the People, and they required only a proper
opportunity to manifeft themfejves.
England, befides, Hill continued to porfefs
the immenfe advantage of being one undivided
$tate.
Had it been, like France, divided into fe-
veral diftintft dominions, it would alfo have
had feveral National Affemblies. Thefe Af-
femblies, being convened at different times and
places, for this and other reafons, never could
have ated in concert; and the power of with-
holding fubfidies, a power lb important when
it is that of difabling the Sovereign and bind-
ing him down to inaction, would then have
only been the definitive privilege of irritating
a Mafter who would have eafily found means to
pbtain fupplies from other quarters.
The different Parliaments or Affemblies of
thefe feveral States, having thenceforth no
OF ENGLAND; 45
means of recommending themfelves to their
Sovereign but their forwardnefs in complying
with his demands, would have vied with each
other in granting what it would not only have
been fruitlefs, but even highly dangerous, to
refufe. The King would not have failed foorv
to demand, as a tribute, a gift he muft have
been confident to obtain ; and the outward
form of confent would have been left to the
People only as an additional means of opprefT-
ing them without danger.
But the King of England continued, even
ill the time of the Tudors, to have but one
AfTembly before which he could lay his wants,
and apply for relief. How great foever the
incteafe of his power was, a fingle Parliament
alone could furnifh him with the means of
exercifing it; and whether it was that the
members of this Parliament entertained a deep
fenfe of their advantages, or whether private
intereft exerted itfelf in aid of patriotifm, they
at all times vindicated the right of granting, or
rather refufing fubfidies; and, amidft the ge-
neral wreck of every thing they ought to have
held dear, they at lead clung obuinately to the
plank which was deftined to prove the inftru-
ment of their prefervation.
3
46 THE CONSTITUTION
Under Edward the Sixth, the abfurd tyran-
nical laws againfl High Treafon, inftituted un-
der Henry the Eighth, his predeceffor, were
abolifhed. But this young and virtuous Prince
having foon patted away, the blood-thirfty
Mary aftoniihed the world with cruelties, which
nothing but the fanaticifm of a part of her
fubjects could have enabled her to execute.
Under the long and brilliant reign of Eliza-
beth, England began to breathe anew; and the
Proteftant religion, being feated once more on
the throne, brought with it fome more freedom
and toleration.
The Star-Chamber, that effectual inftru-
ment of the tyranny of the two Henries, yet
continued to fubfift; the inquifitorial tribunal
of the High Commiffion was even inftituted ;
and the yoke of arbitrary power lay ftill
heavy on the fubje<ft. But the general affec-
tion of the people for a Queen whofe former
misfortunes had created fuch a general con-
cern, the imminent dangers which England
efcaped, and the extreme glory attending that
reisn, leiTened the fenfe of fuch exertions of
authority as would, in thefe days, appear the
height of Tyranny, and ferved at that time to
juflify, as they ftill do excufe, a Princess
OF ENGLAND, 47
whofe great talents, though not her prin-
ciples of government, render her worthy
of being ranked among the greateft Sove-
reigns.
Under the reign of the Stuarts, the Nation
began to recover from its long lethargy. James
the Firft, a prince rather imprudent than ty-
rannical, drew back the veil which had hi-
therto difguifed fo many ufurpations, and made
an oftentatious difplay of what his predeceffors
had been contented to enjoy.
He was incefTantly alTerting, that the au-
thority of Kings was not to be controuled,
any more than that of God himfelf. Like
Him, they were omnipotent; and thofe privi-
leges to which the people fo clamorouily laid
claim, as their inheritance and birthright, were
no more than an effecl: of the grace and tole-
ration of his royal anceflors (a).
Thofe principles, hitherto only filently a-
dopted in the Cabinet, and in the Courts of
Juftice, had maintained their ground in con-
fequence of this very obfcurity. Being now
announced from the Throne, and refounded
{a) See his Declaration made in Parliament, in the
years 1610 and 1621.
Z
4 8 THE CONSTITUTION
from the pulpit, they fpread an univerfal alarm*
Commerce, befides, with its attendant arts,
and above all that of printing, diffufed more
falutary notions throughout all orders of the
people; a new light began to rife upon the
Nation; and the fpirit of oppofition frequently
diiplayed itfelf in this reign, to which the
Englifh Monarchs had not, for a long time
pad, been accuftomed.
But the florm, which was only gathering in
clouds during the reign of James, began to
mutter under Charles the Firft, his fuccefibr;
and the fcene which opened to view, on the
acceflion of that Prince, prefcnted the moft
formidable afpec/t.
The notions of religion, by a fingular con-
currence, united with the love of liberty : the
fame fpirit which had made an attack on the
eftablifhed faith, now directed itfelf to politics:
the royal prerogatives were brought under the
fame examination as the doctrines of the
Church of Rome had been fubmitted to; and
as a fuperflitious religion had proved unable
to fupport the tefl, lb neither couid an au-
thority pretended unlimited, be expected to
bear it.
The Commons, on the other hand, were
recovering from the aftonifhment into which
OF ENGLAND.
49
the extinction of the power of the Nobles had,
at fir ft, thrown them. Taking a view of the
(late of the Nation, and of their own, they
became fenfible of their whole flrength ; they
determined to make ufe of it, and to reprefs
a power which feemed, for fo long a time, to
have levelled every barrier. Finding among
themfelves Men of the greateft capacity, they
undertook that important tafk with method
and by conftitutional means ; and thus had
Charles to cope with a whole Nation put in
motion and directed by an affembly of Statef-
men.
And here we mull: obferve how different
were the effects produced in England, by the
annihilation of the power of the Nobility,
from thofe which the fame event had produced
in France.
In France, where, in confequence of the
divifion of the People and of the exorbitant
power of the Nobles, the People were account-
ed nothing, when the Nobles themfelves were
fuppreffed, the work was completed.
In England, on the contrary, where the
Nobles ever vindicated the rights of the
People equally with their own, in England,
where the People had fuccefiively acquired
E
$o THE CONSTITUTION
moll effectual means of influencing the mo-
tions of the Government, and above all were
undivided, when the Nobles thcmfelves were
call to the ground, the body of the People
flood firm, and maintained the public li-
berty.
The unfortunate Charles, however, was to-
tally ignorant of the dangers which furrounded
him. Seduced by the example of the other
Sovereigns of Europe, he was not aware how
different in reality, his fituation was from
theirs : he had the imprudence to exert with
rigour an authority which he had no ultimate
refources to fuppcrt: an union was at lafi ef-
fected in the Nation; and he law his ener-
vated prerogatives diflipated with a breath (a).
By the famous a<*l, called the Petition of
(a) It might here be objected, that when, under
Charles the Firft, the regal power was obliged to fub-
mit to the power of the People, the king poflefled
other dominions bcfides England, viz. Scotland and
Ireland, and therefore feemed to enjoy the fame ad-
vantage as the Kings of France, that of reigning over
2. divided Empire or Nation. But, to this it is to be
anfwered, that, at the time we mention, Ireland, fcarcely
civilized, only increafed the necrflities, and confequently
the deperdan.ee, of the King: while Scotland, through
OFENGLAND. 5*
Right, and another poflerior Act, to both
which he aflented, the compulfory loans and
taxes, difguifed under the name of Benevolences,
were delared to be contrary to law; arbitrary
imprisonments., and the exercife of the martial
law, were aboiifhed ; the Court of High Com-
miffion, and the Star-Chamber, were fup-
prefled (V); and the Conftitution, freed from
the apparatus of defpotic powers with which
the conjunction of peculiar circumftance?, had thrown
oft* her obedience. And though thofe two States, even
at prefent, bear no proportion to the compact body of
the Kingdom of England, and feem never to have beer!
able, by "their union with it, to procure to the King any
dangerous refources, yet, the circamftances which took
place in both at the time of the Revolution, or fince,
(ufRciencly prove that it was no unfavourable circumllance
to Englifh liberty, that the great crins of the reign of
Charles the Fiift, and the great advance which the Con-
stitution was to make at that time, mould precede the
period at which the King of England might have been
able to call in the affiilance of two other Kingdoms.
{a) The Star-Chamber differed from all the other
Courts of Law in this : the latter were governed only
by the common law, or immemorial cuftom, and Acts of
Parliament j whereas the former often admitted for law
the proclamations of the King in Council, and grounded
its judgments upon them. The abolition of this Tribunal,
therefore, was jultly looked upon as a great victory over
regal Authoritv,
2
52 THE CONSTITUTION
the Tudors had obfcured it, was reftored to
its ancient luftre. Happy had been the People
if their Leaders, after having executed fo noble
a work, had contented themfelves with the
glory of being the benefactors of their Country.
Happy had been the King, if, obliged at laft
to fubmit, his fubmiflion had been fincere, and
if he had become fufnciently fenfible, that the
only refource he had left was the affection of
his fubjedts.
But Charles knew not how to furvive the
lofs of a power he had conceived to be in-
difputable: he could not reconcile himfelf to
limitations and reftraints fo injurious, accord-
ing to his notions, to fovereign authority. His
diicourfe and conduct betrayed his fecret de-
figns; diflruft took poffeflion of the Nation;
certain ambitious perfons availed themfelves of
it to promote their own views; and the florm,
which feemed to have blown over, burfi forth
anew. The contending fanaticifm of perfe-
cuting fects, joined in the conflict between re-
gal haughtinefs and the ambition of indivi-
duals; the tempeft blew from every point ot
the compafs; the Constitution was rent afunder,
and Charles exhibited in his fall an awful ex-
ample to the Univerfe.
OF ENGLAND. S3
The royal power being thus annihilated,
the Englifh made fruitlefs attempts to fubfti-
tute a republican Government in its ftead.
" It was a curious fpedtacle," fays Montefquieu,
" to behold the vain efforts of the Englifh to
" eftablifh among themfelves a Democracy."
Subjected, at firft, to the power of the prin-
cipal Leaders in the Long Parliament, they
faw that power expire, only to pafs, without
bounds, into the hands of a Protector. They
faw it afterwards parcelled out among the
Chiefs of different bodies of troops; and thus
Ihifting without end from one kind of fub-
jedtion to another, they were at length con-
vinced, that an attempt to eftablifh liberty in
a great Nation, by making the people inter-
fere in the common bufinefs of Government,
is of all attempts the mod chimerical; that
the authority of all, with which men are a-
mufed, is in reality no more than the autho-
rity of a few powerful individuals who divide
the Republic among themfelves; and they at
laft refted in the bofom of the only Conftitution
which is fit for a great State and a free People;
I mean that in which a chofen number deli-
berate, and a fingle hand executes; but in
which, at the fame time, the public fatisfactioa
E3
34 THE CONSTITUTION
is rendered, by the genenj relation and arrange-
ment of things, a neceffary condition of the
duration of Government.
Charles the Second, therefore, was called
over; and he experienced on the part of
the people, that enthufiafm of affection which
ufually attends the return from a long aliena-
tion. Ke could net, however, bring himfelf
to forgive them the inexpiable crime of which
he looked upon them to have been guilty. He
faw with the deepeft concern that they {till en-
tertained their former notions with regard to
the nature of the royal prerogative j and, bent
upon the recovery of the ancient powers of
the Crown, he only waited for an opportunity
to break thofe promifes which had procured
his reiteration.
But the very eagernefs of his meafures fruf-
trated their fuccefs. His dangerous alliances
on the Continent, and the extravagant wars in
which he involved England, joined to the fre-
quent abufe he made of his authority, betrayed
his defigns. The eyes of the Nation were foon
opened, and faw into his projects; when, con-
vinced at length that nothing but fixed and ir-
refifiible bounds can be an effectual check on
the views and efforts of Power, they refolved
OF ENGLAND. 55
finally to take away thofe remnants of defpo-
tifm which Itill made a part of the regal pre-
rogative.
The military fervices due to the Crown, the
remains of the ancient feudal tenures, had been
already abolifhed : the laws againft heretics
were now repealed; the Statute for holding
parliaments once at leaft in three years was en-
acted ; the Habeas Corpus Aft, that barrier of
the Subject's perfonal fafety, was eftablifhed;
and, fuch was the patriotifm of the Parlia-
ments, that it was under a King the moil de-
flitute of principle, that liberty received its
moft efficacious fupports.
At length, on the death of Charles, began
a reign which affords a moft exemplary leffon
both to Kings and People. James the Second,
a prince of a more rigid dilpofition, though
of a lefs comprehcnfive undcrftanding, than
his late brother, purfued ftill more openly the
project which had already proved fo fatal to
his family. Pie would not fee that the great
alterations which had fucceffively been effected
in the Conftitution, rendered the execution of
it daily more and more impracticable : he im-
prudently fuffered himfeif to be exafperated at
a refiftance he was in no condition to overcome;
E 4
S6 THE CONSTITUTION
and, hurried away by a fpirit of defpotifm and
a monkifh zeal, he ran headlong againft the
rock which was to wreck his authority.
He not only ufed, in his declarations, the
alarming ex predion s of Ablblute Po.ver and
Unlimited Obedience he not only ufurped
to himfeif a right to difpenfe with the laws;
but moreover fought to convert that deftru&ive
pretention to the deftruction of thofe very laws
which were held moil dear by the Nation, by
endeavouring to abohih a religion for which
they had fullered the greateft calamities, in or-
der to eftabliih, on its ruins a mode of faith
which repeated Acts of the Legislature had
profcribed; and profcribed, not becaufe it
tended to eftabliih in England the dodtrines of
Tranfubftantiation and Purgatory, doctrines in
themfelves of no political moment, but becaufe
the unlimited power of the Sovereign had al-
ways been made one of its principal tenets.
To endeavour therefore to revive fuch a Re-
ligion, was not only a violation or the laws,
but was, by one enormous violation, to pave i\\Q
way for others of a ftill more alarming nature.
Hence the Englifh, feeing that their liberty
was attacked even in its firft principles, had
recourfe to that remedy which reafon and na-<
OF ENGLAND. 57
ture point out to the People, when he who
ought to be the guardian ot the laws becomes
their deftroyer: they withdrew the allegiance
which they had lworn to James, and thought
themfelves abfolved from their oath to a King
who himfelf disregarded the oath he had made
to his People.
But, initead of a revolution like that which
dethroned Charles the Firft, which was effected
by a great effufion of blood, and threw the ftate
into a general and terrible convulfion, the de-
thronement of James proved a matter of fhort
and eafy operation. In confequence of the pro-
greffive information of the People, and the cer-
tainty of the principles which now directed the
Nation, the whole were unanimous. All the
ties by which the People were bound to the
throne, were broken, as it were, by one fingle
fhock; and James, who, the moment before
was a Monarch furrounded bv mbjects, became
at once a fimple individual in the midft of the
Nation.
That which contributes, above all, to diftin-
guiih this event as lingular in the annals of
Mankind, is the moderation, I may even fay,
the legality which accompanied it. As if to
dethrone a King who fought to let himielf
<% THE CONSTITUTION
above the Laws, had been a natural confequence
of, and provided for, by the principles of Go-
vernment, every thing remained in its place;
the Throne was declared vacant, and a new line
of fucceffion was eftabliihed.
Nor was this all; care was had to repair the
breaches that had been made in the Conftitution,
as well as to prevent new ones; and advantage
was taken of the rare opportunity of entering
into an original and exprefs compadt between
King ana People.
An Oath was required of the new King,
more precife than had been taken by his pre-
deceffors ; and it was confecrated as a perpe-
tual formula of fuch oaths. It was deter-
mined, that to impofe taxes without the con-
fen* of Parliament, as well as to keep up a
(landing army in time of peace, are contrary
to law. The power which the Crown had con-
flantly claimed, of difpenfing with the laws,
was abolimed. It was enacted, that the fub-
iedt, of whatever rank or degree, had a right
to prefent petitions to the King (a). Lallly,
[a) The Lores and Commons, previous to the Coro-
nation of King William and Queen Man, had framed a
Bill which contained a declaration cf the rights which
they claimed in behalf of the People, and was in con-
OF ENGLAND.
59
the key-ftone was put to the arch, by the
final eftablifhment of the Liberty of the
Prefs (a).
The Revolution of 1689 is therefore the
third grand sera in the hiflory of the Constitu-
tion of England. The Great Charter had
marked out the limits within which the Royal
authority ought to be confined ; fome outworks
were railed in the reign of Edward the Firft;
but it was at the Revolution that the circum-
vallation was completed.
It was at this a?ra, that the true principles of
civil fociety were fully eftablifhed. By the ex-
puliion of a King who had violated his oath,
the doctnne of Refiflance, that ultimate re-
fource of an opprcfled People, was confirmed
beyond a doubt. By the exclufion given to a
fequence called the Bill of Rights. This Bill contained
the Articles above, as well as fome other:, and having
received afterwards the Royal affent, became an Act of
Parliament, under the title of An Ad declaring the Rights
aud Liberties of the Subject, and fettling the Succejfon of the
Crown. A. I William and Mary, Self. 2. Cap. 2.
(a) The liberty of the prefs was, properly fpeaking,
eltabliihec only fo..r years afterward., :n confcquence of
the refufai which the Padiament made at that time to con-
tinue any longer the reilriclions which had before been iet
upon it.
6o THE CONSTITUTION
family hereditarily defpotic, it was finally de-
termined, that Nations are not the property of
Kings. The principles of Paffive Obedience,
the Divine and indefeafible Right of Kings,
in a word, the whole fcaffolding of falfe and
fuperftitious notions by which the Royal au-
thority had till then been fupported, fell to
the ground, and in the room of it were fub-
flimted the more folid and durable foun-
dations of the love of order, and a fenfe of
the necemty of civil government among Man-
kind.
CHAPTER IV.
Of the Legiflative Pozver,
N almoft all the States of Europe, the will
of the Prince holds the place of law; and
cuftom has fo confounded the matter of right
with the matter of fact, that their Lawyers
generally reprefenc the legiflative authority as
effentially attached to the character of King;
and the plenitude of his power feems to them
neceffarily to flow from the very definition of
his title.
OF ENGLAND. 6t
The Englifh placed in more favourable cir-
cumflances, have judged differently : they could
not believe that the deftiny of Mankind ought
to depend on a play of words, and on fcholaf-
tic fubtilties; they have therefore annexed no
other idea to the word King, or Roy, a word
known alfo to their laws, than that which the
Latins annexed to the word Rex, and the
northern Nations to that of Cymng,
In limiting therefore the power of their Kins;,
they have adted more confidently with the ety-
mology of the word; they have acted alio
more confidently with reafon, in not leaving the
laws to the difpofal of the perfon who is already
inverted with the public power of the State, that
is, of the perfon who lies under the greateft and
moft important temptations to fet himfelf above
them.
The bafis of the Englifh Constitution, the
capital principle on which on all others depend,
is that the Legiflative pow r er belongs to Parlia-
ment alone; that is to fay, the power of efta-
bliihing laws, and of abrogating, changing, or
explaining them.
The constituent parts of Parliament are the
King, the Houfe of Lords, and the Houfe of
Commons.
The Houfe of Commons, other wife the Af-
6z THE CONSTITUTION
fembly of the Reprefentatives of the Nation^
is compofed of the Deputies of the different
Counties^ each of which fends two; of the
Deputies of certain Towns, of which London,
including Weftminfter and Southwark, fends
eight, other Towns, two or one; and of the
Deputies of the Univerfities of Oxford and
Cambri^e, each of which fends two.
Laftly, fince the Act of Union, Scotland fends
forty-five Deputies; who, added to thofe juft
mentioned, make up the whole number of five
hundred and fifty-eight. Thofe Deputies,
though feparately elected, do not folely repre-
fent the Town or County that fends them, as is
the cafe with the Deputies or the United Pro-
vinces of the Netherlands, or*of the Swifs Can-
tons; but, when they are once admitted, they
represent the whole body of the Nation.
The qualifications required for being a Mem-
ber of the Houfe of Commons are, for reprefent-
ing a County, to be born a fubject of Great
Britain, and to be poffefTed of a landed eftate
of fix hundred pounds a year; and of three hun-
dred, for reprefenting a Town, or Borough.
The qualifications required for being an
ele&or in a County, are to be poillfied, in
that County, of a Freehold of forty ftiiilings
OF ENGLAND. 63
a year (a). With regard to electors in Towns or
Boroughs, they muft be Freemen of them, a
word which now fignifies certain qualifications
exprefTed in the particular Charters.
When the King has determined to affemble
a Parliament, he fends an order for that purpofe
to the Lord Chancellor, who, after receiving
the fame, fends a writ under the great fcal of
England to the Sheriff of every County, direct-
ing him to take the necelTary fteps for the elec-
tion of Members for the County, and the Towns
and Boroughs contained in it. Three days after
the reception of the writ, the Sheriff muft, in
his turn, fend his precept to the Magiftrates of
the Towns and Boroughs, to order them to
make their election within eight days after the
reception of the precept, giving four days notice
of the fame. And the Sheriff* himielf muft.
proceed to the election for the County, not fooner
than ten days after the receipt of the writ, nor
later than fixteen.
The principal precautions taken by the
law, to infure the freedom of elections, are,
(a) This Freehold mutl have been pofTeffed by the
elector one whole year at leaft before the time of election,
except it has devolved to him by inheritance, by marriage.
by a laft will, or by promotion to an office.
64 THE CONSTITUTION
that any Candidate, who after the date of the
writ, or even after the vacancy, fhall have given
entertainments to the electors of a place, or to
any of them, in order to his being elected,
fhall be incapable of ferving for that place in
Parliament. That if any per fori gives, or pro-
mi fes to give any money, employment, or re-
ward, to any voter, in order to influence his
vote, he, as well as the voter himfelf, fhall be
condemned to pay a fine of five hundred pounds,
and for ever disqualified to vote and hold any
office in any corporation; the faculty however
being referved to both, of procuring their in-
demnity for their own offence, by difcovering
force other offender of the lame kind.
It has been moreover eilablifhed that no
Lord of Parliament, or Lord Lieutenant cf a
County, has any righr. to interfere in the elec-
tions of members; that any officer of the ex-
cife, cuftoms, Sec. who fhall prefume to inter-
meddle in elections, by iniiuencing any voter
to civc or withhold his vote, fhall forfeit one
hundred pounds, and be difabled to hold any
oiilce. Laillv, all foldiers quartered in a place
where an election is to be made, mull move
from it, at lead one day before the election,
to the uiiTance of two miles or more. :-:.r*
OF ENGLAND. 6$
turn not till one day after the election is
finifhed.
The Houfe of Peers, or Lords, is compofed
of the Lords Spiritual, who are the Archbiihops
of Canterbury and of York, and the twenty-
four Bifhops; and of the Lords Temporal,
whatever may be their refpective titles, fuch as
Dukes, Marquifes, Earls, &c.
Laftly, the King is the third conftitutive part
of Parliament: it is even he alone who can con-
voke it; and he alone can diffolve, or prorogue
it. The effect of a diflblution is, that from
that moment the Parliament completely ceafes
to exift; trie commiftion given to the Members
"by their Conftituents is at an end; and when-
ever a new meeting of Parliament mall happen,
they muft be elected anew. A prorogation is
an adjournment to a term appointed by the
King; till which the exiftence of Parliament is
iimply interrupted, and the function of the
Deputies fufpended.
When the Parliament meets, whether it be
by virtue of a new fummons, or whether, be-
ing compofed of Members formerly elected, it
meets again at the expiration of the term for
which it had been prorogued, the King either
goes to it in perfon, inverted with the infignia
of his dignity, or appoints proper perfon^ to
F
66 THE CONSTITUTION
reprefent him on that occafion, and opens the
feffion by laying before the Parliament the ftate
of the public affairs, and inviting them to take
them into confideratiom This prefence of the
King, either real or reprefented, is abfolutcly
rcquifite at. the firft' meeting j it is it which
gives life to the Legiflative Bodies, and puts
them in action.
The King having concluded his declaration,
withdraws. The Parliament, which is then le-
gally intruded with the care of the National
concerns, enters upon its functions, and con-
tinues to exift till it is prorogued, or difiblvcd.
The Houfe of Commons, and that of Peers,
alTemble feparately : the latter, under the pre-
fidence of the Lord Chancellor: the former,
under that of their Speaker, and both feparately
adjourn to fuch days as they refpectively think
proper to appoint.
As each of the two Houfes has a negative
on the proportions made by the other, and
there is, confequently, no danger of their en-
croaching on each other's rights, nor on thofe
of the King, who has likevvife his negative up-
on them both, any queliion judged by them
conducive to the public good, without excep-
tion, may be made the fubjeci" of their refpeo
bf ENGLAND. 67
live deliberations. Such are, for inftance, new
limitations, or extensions, to be given to the au-
thority of the Kins:; the eftablifhing; of new
laws, or making changes in thofe already in
being; Laftly, the different kinds of public
provifions, or eftabiifhments, the various abufes
of adminiftration, and their remedies, become,
in every Seiiion, the object of the attention of
Parliament.
Here, however, an important obfervation
muft be made. All Bills for granting Money
muft have their beginning in the Houfe of
Commons: the Lords cannot take this object
into their confederation but in confeauence of
a bill prefented to them by the latter; and the
Commons have at all times been fo anxioufly
tenacious of this privilege^ that they have never
buffered the Lords even to make any change in
the Money Bills which they have lent to them;
and the Lords are expected limply and folely
either to accept or reject them.
This excepted, every Member, in each
Houfe, may propofe whatever queftion he thinks
proper. If* after being confidered, the matter
is found to deferve attention) the perfon who
ruade the proportion, ufually with fome others
adjoined to him-, is defired to fet it down in
writing. If, after more complete difcuffions of
F 2
68 THE CONSTITUTION
the fubjecT:, the propofition is carried in the affir-
mative, it is fent to the other Houfe, that they
may, in their turn, take it into confidcration.
If the other Houfe reject the Bill, it remains
without any effect : if they agree to it, nothing
remains wanting to its complete eflablifhment,
but the Royal Aflcnt.
When there is no bufinefs that requires im-
mediate difpatch, the King ufually waits till
the end of the Seffion, or at leaft till a certain
number of bills are ready for him, before he
declares his royal pleafure. When the time is.
come, the King goes to Parliament in the fame
Hate with which he opened it; and while he is
feated on the Throne, a Clerk, who has a lift
of the Bills, gives, or refufes, as he reads the
Royal Aii'ent.
When the Royal Affent is given to a public
Bill, the Clerk fays, le Roy le veut. If the biil
be a private Bill, he fays, foit fait comme il ejl
o.efire. If the bill has fubfidies for its object,
lie fays, le Roy remercie fes loyaux Sujefts, accept e
teur benevolence & aujfi le veut, Laftly, if the
King docs not think proper to affent to the
Bill, the Clerk fays, le Roy s'advifera; which is a
mild way of giving a refufal.
It is, however, pretty lingular, that the King
of Fngland fhould make ufe of the French
OF ENGLAND. 69
language to declare his intentions to his Parlia-
O O
nient. This cuftom was introduced at the Con-
queft (a), and has been continued, like other
matters of form, which fometimes fubfift for
ages after the real fubftance of things has been
altered; and Judge Blackftone exprefles him-
felf, on this fubjedt in the following words :
" A badge, it mull be owned (now the only
(i one remaining), of Conqueft; and which one
(C would wifh to fee fall into total oblivion, un-
" lefs it be referved as a folemn memento to
ie remind us that our liberties are mortal, hav-
" ing once been deflroyed by a foreign force."
When the King has declared his different
intentions, he prorogues the Parliament. Thofe
Bills which he has rejected, remain without
force : thofe to which he has aflented, become
the expreffion of the will of the higheft power
acknowledged in England: they have the
fame binding force as the Edits enregiftres have
(a) William the Conqueror added to the other changes
he introduced, the abolition of the Englifh language in
all public, as well as judicial tranfaftions, and fubftituted
to it the French that was fpoke in his timej hence the
number of old French words that are met with in the
flyle of the Englifh laws. It was only under Edward III.
that the Englifh language began to be re-eftablifhed in the
Courts of Juftice.
F3
70 THE CONSTITUTION
in France (a), and as the PopuUfata had in an-
cient Rome: in a word, they are Laws. And
though each of the confVituent narts of the
Parliament might, at fnft, have prevented the
exigence of thqfe laws, the united will of alj.
the Three is now neceflary to repeal them.
(a) They call in France, Edits enregtjires, thofe Ed:ls
of the King which have been registered in the Court of
Parliament. The word Parliament dees not, however,
expjefs in France, as it does in England, the Affembly of
the Eftates of the Kingdom. The French Parlemens are
only Courts of Juftice: that of Paris was instituted in the
fame manner, and for the fame purpofes, as the Aula Regis
was afterwards in England, viz. for the adminiftration of
public Juftice, and for deciding the differences between the
King and his Barons : it was in confccuence of the Judg-
ments awarded by that Court, that the King proceeded to
feize the dominions cf thofe Lords or Princes againft
whom a fentence had been paiTed, and when he was able
to effect this, united them to the Crown. The Parliament
of Paris, as do the other Courts of Law, grounds its
judgments upon the Edids or Ordonnances of the King,
when it has once regiftered them. When thofe Ordon.
nances are looked upon as grievous to the Subject, the
Parliament refefes to regiftcr them : but this they do
not from any pretention they have to a (hare in the
Legislative authority; they only object that they are not
fathfied that the 0rdonnav.ee before them is really the will
of the King, and then proceed to make remonstrances
againit it: femctimes the King defers to thefe ; or, if he
is refolved to put an end to all oppofition, he comes in
perfon to the Parliament, there holds what they call wi
OF ENGLAND.. 71
CHAP. V.
Of the Executive Power.
WHEN the Parliament is prorogued or
diflblved, it ceafes to exift; but its
laws ftill continue to be in force : the King re-
mains charged with the execution of them,
and is fuppljed with, the neceffary power for
that purpofe.
It is however to be obferved that, though
in his political capacity of one of the con-
stituent parts of the Parliament, that is, with
regard to the Share allotted to him in the le-
giflative authority, the King is undoubtedly
Sovereign, and only needs allege his will
when he gives or refufes his alTent to the bills
prefented to him; yet, in the exercife of his
powers of Government, he is no more than
a Magiftrate, and the laws, whether thofe
that exifted before him, or thofe to which,
by his affent, he has given being, muft direct
his conduct, and bind him equally with his
fubjecls.
Lit de jujlice, declares that the Ordonnance before them U
actually his will, and orders th3 proper Officer to rcgi fttfr
it.
f 4
iz THE CONSTITUTION
The firft prerogative of the King, in his ca-
pacity of Supreme Magiftrate, has for its objedt
the adminiftration of Juflice.
i. He is the fource of all judicial power in
the State; he is the Chief of all the Courts of
Law, and the Judges are only his Subftitutes;
every thing is tranfadted in his name; the Judg-
ments mull: be with his Seal, and are executed
by his Officers.
2. By a fidtion of the law, he is looked upon
as the univerfal proprietor of the kingdom; he
is in cpnfequence deemed diredtly concerned in
all offences; and for that reafon profecutions are
to be carried on, in his name, in the Courts of law.
3. He can pardon offences, that is, remit
the punilhment that has been awarded in con-
fequence of his profecution.
II. The fecond prerogative of the King, is,
to be the fountain of honour, that is, the diftri-
butor of titles and dignities: he creates the
Peers of the realm, as well as befrows the dif-
ferent degrees of inferior Nobility. He more-
over difpofes of the different offices, either in
the Courts of law, or elfewhere.
III. The King is the fuperintendent of Com-
merce; he has the prerogative of regulating
weights and meafures; he alone can coin money.,
and can give a currency to foreign coine
OF ENGLAND, 73
IV. He is the Supreme Head of the Churchy
In this capacity he appoints the Bifhops, and
the two Archbifhops ; and he alone can con-
vene the Aflembly of the Clergy. This AfTem-
bly is formed, in England, on the model of the
Parliament : the Bifhops form the upper Houfe;
Deputies from the Diocefes, and from the fe-
yeral Chapters, form the lower Houfe: the
affent of the King is likewife neceflary to the
validity of their Adts, or Canons; and the King
can prorogue, or diffolve, the Convocation.
V. He is, in right of his Crown, the Gene-
ral iffi mo of all fea or land forces whatever;
he alone can levy troops, equip fleets, build
fortreffes, and fill all the polls in them.
VI. He is, with regard to foreign Nations,
the reprefentative and the depofitory, of all
the power and collective majefty of the Na-
tion: he fends and receives ambafTadors; he
contracts alliances; and has the prerogative of
declaring war, and of making peace, on what-
ever conditions he thinks proper.
VII. In fine, what feems to carry fo many
powers to the height, is, its being a funda-
mental maxim, that the King can do no
wrong : which does not fignify, however, that
the King has not the power of doing ill, or, as
it was pretended by certain perfons in former
74 THE CONSTITUTION
times that every thing he did was lawful; but
pnly that he is above the reach of all Courts of
law whatever, and that his perfon is facred and
inviolable.
CHAP. VI.
T'he Boundaries which the Conjlitution has fet to
the Royal Prerogative.
IN reading the foregoing enumeration of the
powers with which the laws of England
have intruded the King, we are at a lofs to
reconcile them with the idea of a Monarchy,
which, we are told, is limited. The King not
only unites in himfelf all the branches of the
Executive power, he not only difpofes, with-
out controul, of the whole military power in
the State, but he is moreover, it feems,
Matter of the Law itfelf, fince he calls up, and
difmifTes, at his will, the Legislative Bodies.
We find him, therefore, at firft fight, invefled
with all the prerogatives that ever were claimed
by the moft abfolute Monarchs; and we are at
a lofs to find that liberty which the Englifh
feem fo confident they poffefs.
But the Reprefentatives of the people Hill
have, and that is faying enough, they {till have
in their hands, now that the Conflitution 13
OF ENGLAND, 7$
fully eftablifhcd, the fame powerful weapon
which has enabled their ancestors to eftablifh
it. It is (till from their liberality alone that
the King can obtain fubfidies; and in thefe
([lays, when every thing is rated by pecuniary
eftimation, when gojd is become the great
moving fpring of affairs, it may be fafely af-
firmed, that he who depends on the will of
other men, with regard to fp important an
article, is, whatever his power may be in other
refpets, in a flate of real dependence.
This is the cafe pf the King of England.
He has, in that capacity, and without the grant
of his people, fcarcely any revenue. A few
hereditary duties on the exportation of wool,
which (fince the eftabliihment of manufactures)
are become tacitly extinguished; a branch
of the excife, which, under Charles the Second,
wa: annexed to the Crown as an indemnifica-
tion for the military fervices it gave up, and
which, under George the Firft, has been fixed
to feven thoufand pounds; a duty of two
(hillings on every ton of wine imported; the
wrecks of (hips of which the owners remain
unknown; whales and fturgeons thrown on the
coaft; fwans fwimming on public rivers; and
a few other feudal relics, now compofe the
whole appropriated revenue of the King, and
76 THE CONSTITUTION
are all that remains of the ancient inheritance
of the Crown.
The King of England, therefore, has the
prerogative of commanding armies, and equip-
ping fleets but without the concurrence of his
Parliament he cannot maintain them. He can
beftow places and employments but without
his Parliament he cannot pay the falaries at-
tending on them. He can declare war, but
without his Parliament it is impoflible for him
to carry it on. In a word, the Royal Preroga-
tive, deftitute as it is of the power of impofmg
taxes, is like a vaft body, which cannot of itfelf
accomplifh. its motions ; or, if you pleafe, it is
like a fhip completely equipped, but from
which the Parliament can at pleafure draw off
the water, and leave it aground, and alfo fet
k afloat again, by granting fubfidies.
And indeed we fee, that, fince the eftablim-
meiit of this right of the Reprefentatives of
the People, to grant, or refute, fubfidies to the
Crown, their other privileges have been con-
tinually increafing. Though thefe Reprefen-
tatives were not, in the beginning, admitted
into Parliament but upon the moil: difadvan-
tageous terms, yet they foon found means, by
joining petitions to their money-bills, to have
a fliare in framing thofe laws by which they
OF ENGLAND. 77
were in future to be governed ; and this method
of proceeding, which at firft was only tolerated
by the King, they afterwards converted into an
exprefs right, by declaring, under Henry the
Fourth, that they would not, thenceforward,
come to any refolutions with regard to fubfidies,
before the King had given a precife anfwer to
their petitions.
In fubfequent times we fee the Commons
sonftantly fuccefsful, by their exertions of the
fame privilege, in their endeavours to lop off
the defpotic powers which (till made a part of
the regal prerogative. Whenever abufes of
power had taken place, which they were fe-
rioufly determined to corredt, they made grie-
vances and fupplieS) to ufe the expreflion of Sir
Thomas Wentworth, go hand in hand together,
which always produced the redrefs of them.
And in general, when a bill, in confequence of
its being judged by the Commons effential to
the public welfare, has been joined by them to
a money bill, it has feldom failed to pafs in that
agreeable company (a).
(a) In mentioning the forcible ufe which the Com-
mons have at times made of their power of granting
fubfidies, by joining provifions of a different nature to
bills that had grants for their objett, I only mean to
fhew the great efficiency of that power, which was the
fubjett of this Chapter, without pretending to fay any
*8 ^HE CbNSTiTUTidH
CHA^. VII.
The fame Subjtft continued*
BUT this force of the prerogative of the
Commons, and the facility with which
it may be exerted^ however neceffary they may
have been for the firft eilabiilhment of the Con-
flitution^ might prove too confiderable at pre-
fent, when it is requifite only to fuppbrt it.
There might be the danger, that, if the Parlia-
ment fhould ever exert their privilege to its full
extent, the Prince, reduced to defpair, might
refort to fatal extremities j or that the Confti-
tution, which fublifts only by virtue of its equi-
librium, might in the end be fubyerted.
Indeed this is a cafe which the prudence of
Parliament has forefeem They have, in this
refpedtj impofed laws upon themfelves; and
without touching the prerogative itfelf, they
thing as to the propriety of the meafure. The Hoafe of
Lords have even Found it necefiary (which confirms what
is faid here) to form., as it were, a confederacy among
themfelves, for the fecurity of their Legiflative autho-
rity, againft the unbounded ufe which the Commons might
make of their power of taxation ; and it has been made
a (landing order of their Houfe, to reject any bill what-
foever to which a money-bill has been tackid.
OF ENGLAND. 7$
have moderated the exercife of it. A cuftom
has for a long time prevailed, at the beginning
of every reign, and in the kind of overflowing
of affection which takes place between a King
and his firft Parliament, to grant the King a
revenue for his life; a provifion which, with
refpedt to the great exertions of his power, does
not abridge the influence of the Commons, but
yet puts him in a condition to fupport the dig-
nity of the Crown, and affords him, who is the
firfl Magiftrate in the Nation, that indepen-
dence which the laws infure alfo to thofe Ma-
gistrates who are particularly intrufted with the
adminiftration of Juftice (a).
This conduct of the Parliament provides an
admirable remedy for the accidental diforders
of the State. For though, by the wife diflri-
bution of the powers of Government, great
(a) The twelve Judges. Their com millions, which in
former times were often given them durante bene placito,
now muft always " be made quamdiu fe bene gejferint, and
" their falaries afcertained : but upon an addrefs of both
Houfes it may be lawful to remove them." Stat. 13
Will. 111. c. 2. In the firft year of the reign of his pre-
sent Majefty, it has been moreover enacled, that the com-
mifllons of the Judges fhall continue in force, notwith-
ftanding the demife of the King; which ha? prevented
their being dependent, with regard to their continuatiom
in office, on the heir apparent. 8
So THE CONSTITUTION
nfurpations are become in a manner imprac*'
ticable, neverthetefs it is impoffible but that,
in confequence of the continual, though filent
efforts of the Executive power to extend itfelf,
abufes will at length flide in. But here the
powers, wifely kept in referve by the Parlia-
liament, afford the means of remedying them.'
At the end of each reign, the civil lift, and
confequently that kind of independence which
it procured, are at an end. The fucceffor finds
a Throne, a Sceptre, and a Crown; but he
finds neither power, nor even dignity; and be-
fore a real pofTefiion of all thefe things is given
him, the Parliament have it in their power to
take a thorough review of the State, as well as
correct the feveral abufes that may have crept
in during the preceding reign ; and thus the
Conftitution may be brought back to its firft
principles.
England, therefore, by this means, enjoys one
very great advantage, one that all free States
have fought to procure for themfelves ; I mean
.that of a periodical reformation. But the ex-
pedients which Legifiators have contrived for
this purpofe in other Countries, have always,
when attempted to be carried into practice,
been found to be productive of very difadvan-
tageous confequences, Thofe laws which were
OF ENGLAND. 81
made in Rome, to reftore that equality which
is the effence of a Democratical Government,
were always found impracticable : the attempt
alone endangered the overthrow of the Repub-
lic; and the expedient which the Florentines
called ripigliar il Jlato, proved nowife happier in
its confequences. This was becaufe all thofe
different remedies were deftroyed beforehand,
by the very evils they were meant to cure; and
the greater the abufes were, the more impoflible
it was to correct them.
But the means of reformation which the Par-
liament of England has taken care to refervc
to itfelf, is the more effectual, as it goes lefs
directly to its end. It does not oppofe the
ufurpations of prerogative, as it were, in front
it does not encounter it in the middle of its
career, and in the fulled flight of its exertion :
but it goes in fearch of it to its fource, and to
the principal of its action. It does not endea-
vour forcibly to overthrow it; it only enervates
its fprings.
What increafes ftill more the mildnefs of
the operation, is, that it is only to be applied
to the ufurpations themfelves, and paffes by,
what would be far more formidable to encoun-
ter, the obftinacy and pride of the ufurper?.
G
*2 THE CONSTITUTION
Every thing is tranfa&ed with a new Sove-
reign, who, till then, has had no fhare in public
affairs, and has taken no ftep which he may-
conceive himfelf bound in honour to fupport.
In fine, they do not wreft from him what the
good of the State requires he fhould give up :
he himfelf makes the iacrifice.
The truth of all thefe cbfervations is remark-
ably confirmed by the events that followed the
reign of the two laft Henries. Every barrier
that protected the People againft the excurfions
of Power had been broke through. The Par-
liament, in their terror, had even enacted that
proclamations, that is the will of the King,
fhould have the force of laws {a) : the Con*
flitution feemed really undone. Yet, on the
firft opportunity afforded by a new reign, li-
berty began again to make its appearance ().
And when the Nation, at length recovered
from its long fupineneis, haa\ at the acceffion
of Charles the Firft, another opportunity of
a change of Sovereign, that enormous mafs
{a) Stat. 31 Hen. VIII. chap. 8.
{i) The laws concerning Treafon, parted under Henry
the Eighth, which Judge Blackltone calis " an amazing
" heap of wild and new-fangled treafor. *," were, together
with the ftatute juft mentioned, repealed in the beginning
of the reign of Edward VI.
6F ENGLAND. 83
ftf abufes, which had been accumulating, or
gaining {Irertgth, during five fitcceffive reigns,
was removed, and the ancient laws were re-
ftdred.
To which add, that this fecond reformation,
which was fo extenfive iri its effects, and might
be called a new creation of the Conftitution,
was accompliihed without producing the lead
convulfion. Charles the Firft, in the fame
manner as Edward ' id done in former times (#),
affented to every regulation that was palled;
and whatever reluctance he might at firfb ma-
nifeft, yet the Act called the Petition of Right
(as well as the Bill which afterwards completed
the work) received the Royal Sanction without
bloodlhed.
It is true, great misfortunes followed ; but
they were the effects of particular circum-
flances.. During the time which preceded
the reign of the Tudors, the nature and ex-
tent of regal authority having never been ac-
curately defined, the exorbitant power of the
Princes of that Houfe had gradually intro-
duced political prejudices of even an extrava-
(a) Or, which is equally in point, the Duke of Somerfet
his uncle, who was the Regent of the Kingdom, unds:
the name of Protector.
G 2
H THE CONSTITUTION
gant kind: thofe prejudices, having had a
hundred and fifty years to take root, could
not be fhaken off but by a kind of general
convulfion; the agitation continued after the
action, and was carried to excefs by the reli-
gious quarrels that arofe at that time.
CHAPTER VIII.
Nezv Reftriftions.
THE Commons, however, have not entirely
relied on the advantages of the great
prerogative with which the Conilitution has
intruded them.
Though this prerogative is, in a man-
ner, out of danger of an immediate attack,
thev have neverthelefs fhewn at all times the
greateft jealoufy on its account. They never
fuffer, as we have obierved before, a money-
bill to begin any where but with themfelvesj
and any alteration that may be made in it, in
the other Houfe, is fure to be rejected. If
the Commons had not mofl ftrictly referved
to themfelves the exercife of a prerogative
on which their very exiflence depends, the
1
O F E N G L A N D. 85
whole might at length have Hidden into that
other body which they might have differed to
fhare in it equally with them. If any other per-
fons befides tne Reprefentatives of -the People,
had a right to make an offer of the produce
of the labour of the people, the executive
Power would foon have forgot, that it only
exiils for the advantage of the public (#).
{a) As the Crown had the undifputed prerogative of
afTenting to, and diffenting from, what bills it thinks pro-
per, as well as of convening, proroguing, and diflblving,
the Parliament, whenever it pleafes, the latter have no
aflurance of having a regard paid to their Bills, or even of
being allowed to aifemble, but what may refult from the
need the down ftands in of their affiftance: the danger,
in that refpect, is even greater for the Commons than for
the Lords, who enjoy a dignity which is hereditary, as
well as inherent to their perfons, and form a permanent
Body in the State ; whereas the Commons completely
vanifh, whenever a diffolution takes place: there is, there-
fore, no exaggeration in what has been faid above, that
fheir -very being depends on their power of granting fub-
fidies to the Crown.
Moved by theie confiderations, and no doubt by a
fenfe of their duty towards their Conftituents, to whom
this right of taxation originally belongs, the Houfe of
Commons have at all times been very careful left pre-
cedents mould be eftablifhed, which might, in the moft
diftant manner, tend to weaken that right. Hence the
warmth, I might fay the refentment, with which they
have always rejected even the amendments propofcd bv
3
$6 THE CONSTITUTION
Befides, though this prerogative has of itfelf,
we may fay, an irrefiftible efficiency, the Par-
liament has negle&ed nothing that may increafe
it, or at leaft the facility of its exercife; and
though they have allowed the general preroga-
tives of the Sovereign to remain undifputed,
they have in feveral cafes endeavoured to re-
train the ufe he might make of them, by en-
tering with him into divers exprefs and folemn
conventions for that purpofe (a).
Thus, the King is indifputably inverted with
the exclusive right of affembling Parliaments:
the Lords in their Money Bills. The Lords, however ^
have not given up their pretention to make fuch amend-
ments ; and it is only by the vigilance and conusant pre-
determination of the Commons to reject ail alteration
whatever made in their Money Bill;, without even ex-
amining them, that this pretenfion of the Lords is reduced
to be an ufelefs, and only dormant, claim. The hrit, m-
ftance of a mifunderftanding between the two Houfes, on
that account, was in the year 1671 ; and the reader may
fee at length, in Vol. I. of the Debates of the Houfe cf
Commons, the reafons that were at that time alledged on
feoth fide 5.
[a) Laws made to bind fuch Powers in a State, as
have no fuperior power by which they may be legally
compelled to the execution of them (for inftance, the
Crown, as tircumftanced in England) are nothing more
than general conventions, or treaties, made with the Body
pf tfye Ppople.
OF ENGLAND. 87
yet he mufl aflemble one, at leaft once in three
years; and this obligation on the King, which,
was, we find, infilled upon by the People in
very early times, has been fince coniirmed by
an act paffed in the fixteenth year of the reign
of Charles the Second.
Moreover, as the mod fatal confequences
might enfue, if laws which might molt ma-
terially affect public liberty, could be enacted
in Parliaments abruptly and imperfectly fum-
moned, it has been eftablilhed that the Writs
for affembling a Parliament mull: be iflued
forty days at leaft before the fir ft meeting of it.
Upon the fame principle it has alfo been en-
acted, that the King cannot abridge the term
he has once fixed for a prorogation, except in
the two following cafes, viz. of a rebellion, or
of imminent danger of a foreign invafion; in
both which cafes a fourteen days notice mull
be given (4).
Again, the King is the head of the Church ;
but he can neither alter the eftablilhed re-
ligion, or call individuals to an account for
their religious opinions (). He cannot even
[a) Stat. 30 Geo. II. c. 25.
{b) The Convocation^ or aftembly of the Clergy, of
yhich the King is the head, can only regulate fuch affairs
G4
S8 THE CONSTITUTION
profefs the religion which the Legislature has
particularly forbidden; and the Prince who
Ihould profefs it, is declared incapable of in-
Meriting, poffejfmg, or enjoying, the Crown of thefe
Kingdoms (a).
The King is the firfl Magiftrate; but he can
make no change in the maxims and forms con-
fecrated by law or cuftom: he cannot even in-
fluence, in any cafe whatever, the decifion of
caufes between fubject and fubjedt; and James
the Firft, aflifting at the Trial of a caufe, was
reminded by the Judge, that he could deliver
no opinion (b). Laftly, though crimes are
profecuted in his name, he cannot refufe to
lend it to any particular perfons who have com-
plaints to prefer.
as are merely ecclefiafUcal ; they cannot touch the Laws,
Cuftoms, and Statutes, of the Kingdom. Stat. 25
Hen. VIII. c. 19.
{a) 1 Will, and }A. Stat. 2. c. 2.
() Thete principles have fince been made an exprefs
article of an Ad of Parliament; the fame which aboliihed
the Star-Chamber. " Be it likevvife declared and enadted*
" by the authority of this prefent Parliament, That
" neither his Majefty, nor his Privy Council, have, or
*' ought to have any jurifdidlion, power, or authority, to
' examine or draw into queftion, determine, or difpofe
" of the lands, tenements, goods, or chattels, of any of
* l the fubjecU of this Kingdom." Stat. A. 16. Ch. I.
cap. 10. 10.
OF ENGLAND. 98
The King has the privilege of coining mo-
ney; but he cannot alter the ftandard.
The King has the power of pardoning offen*
ders ; but he cannot exempt them from making
a compenfatiou to the parties injured. It is even
eftabltfhed by law, that, in a cafe of murder,
the widow, or next heir, fhall have a right to
profecute the murderer; and the King's pardon,
whether it preceded the Sentence pafled in con-
fequence of fuch profecution, or whether it be
granted after it, cannot have any effecl: (a).
The King has the military power; but flill
with refpect to this, he is not abfolute. It is
true, in regard to the iea-forces, as there is in
them this very great advantage, that they
cannot be turned againft the liberty of the
Nation, at the fame time that they are the
fureft bulwark of the ifland, the King may
keep them as he thinks proper; and in this
refpeft he lies only under the general reftraint
of applying to Parliament for obtaining the
means of doing it. But in regard to land
forces, as they may become an immediate
{a) The method of profecution mentioned here, is called
3n Appeal; it mull be fued within a year and a day after
the completion of the crime.
9
THE CONSTITUTION
weapon in the hands of Power, for throwing
down all the barriers of public liberty, the
King cannot raife them without the confent of
Parliament. The Guards of Charles the Se-
cond were declared antirconftitutional (a); and
James's army was one of the caules of his be-
ing dethroned ().
In thefe times, however, when it is become
a cuftom with Princes to keep thofe numerous
armies which {erve as a pretext and means of
opprefling the People, a State that would mainr
tain its independence, is obliged, in a great
meafure, to do the fame. The Parliament has
therefore thought proper to eftabliiTi a Handing
body of troops, which amounts to about thirty
thoufand Men, of which the King has the
command.
But this army is only eftablifhed for one
year; at the end of that term, it is (unlels re-
eftablifhed) to be ipfe facto difbanded; and
as the queftion which then lies before Parlia-
(a) He had carried them to the number of four thou-
fand Men.
() A new fan&ion has been given to the above re-
ftriction in the fixth Article of the Bill of Rights : " A
" {landing army, without the confent of Parliament, is
f againft law."
OF ENGLAND, $t
Bnent, is not, whether the army Jhall be dijolved,
but whether it fhall be ejlablijhed anew, as if it
had never exifted, any one of the three branches
of the Legislature may, by its diflent, hinder
its continuance.
Befides, the funds for the payment of this
body of troops are to be railed by taxes that
never are eftablifhed for more than one year
(a) ; and it becomes likeivife necelTary, at the
end of this term again to eftabliih them ().
In a word, this instrument of*'defence, which
the circumftances of modern times have caufed
to be judged neceffary, being capable, on the
other hand, of being applied to the moft dan-
gerous purpofes, has been joined to the State
by only a flender thread, the knot of which may
be flipped, on the fjrft appearance of danger (<:)
{a) The land-tax, and malt-tax.
(b) It is alfo neceffary that the Parliament, when they
renew the At called the Mutiny Aft, fhould authorife the
different Courts Martial to punifh military offences, and
defertion. It can therefore refufe the King even the nc-
Ceffary power of military difcipljne.
(r) To thefe laws, or rather conventions, between King
and People, I mall add here the Oath which the King
takes at his Coronation; a compact which, if it cannot
have the fame precifion as the laws we have related
above, yet in a manner comprehends them all, and has
the farther advantage of being declared with more fo-
Jemnity.
52 THE CONSTITUTION
But thefe laws which limit the King's au-
thority, would not, of themfelves, have been
fufficient. As they are, after all, only in-
tellectual barriers, which it is poffible that the
King might not at all times refpecl, as the
check which the Commons have on his pro-
ceedings, by a refufal of fubfidies, affects too
much the whole State, to be exerted on every
particular abufe of his power; and laflly, as
** The archhijbop or bijhop Jhall fay, Will you folemnly
" promife and fwear to govern the people of this King-
" dom of England, and the dominions thereto belonging,
" according to the Statutes of Parliament agreed on, and
*' the laws and cuftoms of the fame ? The king or queen
* l jhall fay, I folemnly promife fo to do.
*' Archbijhop or bijhop. Will you to your power caufe
*' law and juftice, in mercy, to be executed in all your
" judgments? King or queen. I will.
" Archbijhop or bijhop. Will you to the utmoft of
" your power maintain the laws of God, the true pro-
" feflion of the gofpel, and the proteftant reformed
' religion eftablifhed by the law? And will you pre-
* ferve unto the bifhops and clergy of this realm, and to
<f the churches committed to their charge, all fuch rights
* and privileges as by law do or fhall appertain unto
' them, or any of them \King or queen. All this I
" promife to do.
" After this the king or queen, laying his or her hand upon
the holy gojpels, Jhall fay, The things which I have here
* before promifed I will perform and keep : fo help me
God. And then Jhall kijs the boot"-
O F E N G L A N D. 93
ven this means might in fome degree be
eluded, either by breaking the protnifes which
have procured fubfidies, or by applying them
to ufes different from thofe for which they were
appointed, the Conftitution has befides fup-
plied the Commons with a means of immediate
oppofition to the mifcondudt of Government,
by giving them a right to impeach the Minifters.
It is true, the King himfelf cannot be ar-
raigned before Judges; becaufe, if there were
any that could pafs fentence upon him, it would
be they, and not he, who muft finally poflefs
the executive power : but, on the other hand,
the King cannot ad: without Minifters; it is
therefore thofe Miniilers, that is, thofe indif-
penfable inftruments, whom they attack.
If, for example, the public money has been
employed in a manner contrary to the declared
intention of thofe who granted it, an impeach-
ment may be brought againft thofe who had the
management of it. If any abufe of power is
committed, or in general any thing done con-
trary to the public weal, they profecute thofe
who have been either the inftruments, or the
advifers of the mcafure (a).
{a) It was upon thefe principles that the Commons, in
the beginning of this century, impeached the Earl of
$4 THE CONSTITUTION
But who fhall be the Judges to decide in fuch
a caufe ? What Tribunal will flatter itfelf, thas
it can give an impartial decifion, when it fhall
fee, appearing at its bar, the Government itfelf
as the accufed, and the Reprefentatives of the
People, as the accufers?
It is before the Houfe of Peers that the Law
has directed the Commons to carry their accu-
fation ; that is, before Judges whole dignity,
On the one hand, renders them independent,
and who, on the other, have a great honour
to fupport in that awful function where they
have all the Nation for fpectators of their
conduct.
When the impeachment h brought to the
Lords, they commonly order the perfon ac-
cufed to be impfifoned. On the day appointed,
the Deputies of the Houfe of Commons, with
the perfon impeached, make their appearance;
the impeachment is read in his prefence; Coun-
fel are allowed him, as well as time, to prepare
for his defence; and at the expiration of this
term, the trial goes on from day to day, with
open doors, and every thing is communicated
in print to the public.
Oxford, who had advifed the Treaty of Partition, and the
Lord Chancellor Somers, who had affixed the great feal
to it.
OF ENGLAND. 9$
But whatever advantage the law grants to
the perfon impeached for his juftification, it
is from the intrinfic merits of his conduct that
he muft draw his arguments and proofs. It
would be of no fervice to him, in order to
juftify a criminal conduct, to allege the com-
mands of the Sovereign; or, pleading guilty
with refpect to the meafures imputed to him,,
to produce the Royal pardon (a). It is againft
the Administration itfelf that the impeach*
ment is carried on; it fnould therefore by no
means interfere: the King can neither flop
(a) This point in ancient times was far from being
clearly fettled. In the year 1678, the Commons having
impeached the Earl of Danby, he pleaded the King's par-
don in bar to that impeachment: great altercations enfued
on that fubject, which were terminated by the difTolution
of that Parliament. It has been unce enacled, (Stat. 12
and 13 W. III. c. 2.) " that no pardon under the great-
" feal can be pleaded in bar to an impeachment by the
'* Ho ui"e of Commons."
I once afked a Gentleman very learned in the laws of
this Country, if the King could remit the punifament of a
Man condemned in confequence of an impeachment of the
Houfe of Commons ; he anfwered me, the Tories wi,ll tell
you the King can, and the Whigs he cannot. 'But it is
not perhaps very material that the queltion mould be de-
cided : the great public ends are attained when a corrupt
Minifter is removed with difgrace, and the whole Syftem
of his proceedings unveiled to the public eye.
96 THE CONSTITUTION
nor fufpend its courfe, but is forced to behold,
as an inactive fpeftator, the difcovery of the
fiiare which he may himfelf have had in the
illegal proceedings of his fervants, and to hear
his own fentence in the condemnation of his
Miniflers.
An admirable expedient! which, by re-
moving and punilhing corrupt Miniflers, af-
fords an immediate remedy for the evils of the
State, and flrongly marks out the bounds within
which Power ought to be confined: which
takes away the fcandal of guilt and authority
united, and calms the people by a great and
awful act of Juftice: an expedient, in this re-
flect efpecially, fo highly ufeful, that it is to
the want of the like, that Machiavel attributes
the ruin of his Republic.
But all thefe general precautions to fecure the
rights of the Parliament, that is, thofe of the
Nation itfelf, againit the efforts of the executive
Power, would be vain, if the Members them-
felves remained peribnally expofed to them.
Being; unable openly to attack, with any fafety
to itfelf, the two legislative bodies, and by a
forcible exertion of its prerogatives, to make,
as it were, a general affault, the executive power
mi-ht, by fubdividing the fame prerogatives.
OF ENGLAND. 97
gain an entrance, and fometimes by intereft, and
at others by fear, guide the general will, by
influencing that of individuals.
But the laws which fo effectually provide
for the fafety of the People, provide no lefs
for that of the Members, whether of the
Houfe of Peers, or that of the Commons.
There are not known in England, either thole
CommiJfarieSy who are always ready to find
thofe guilty whom the wantonnefs of ambi-
tion points out, nor thole fecret imprifon-
ments which are, in other Countries, the
ufual expedients of Government. As the
forms and maxims of the Courts of Juftice
are flridtly preicribedj and every individual
has an invariable right to be judged accord-
ing to Law, he may obey without fear the
dictates of public virtue. Laftly, what crowns
all thefe precautions, is its being a fundamen-
tal maxim, " That the freedom of fpeech,
<c and debates and proceedings in Parliament;,
" ought not to be impeached or questioned
" in any Court or place out of Parlia-
" ment (a)."
' ^} Bill of. Rights. Art. 9..
It
9"S THE CONSTITUTION
The legislators, on the other hand, have
riot forgot that intereft, as well as fear, inaj"
impofe filence on duty. To prevent its effects,
it has been ena&edj that all perfons con-
cerned in the management of any taxes created
fince 1692, commiiTioners of prizes, navy,
vi&ualling-oirlce, &c. comptrollers of the army
accounts, agents for regiments, the clerks in
the different offices of the revenue, any perfons
that hold any new office under the Crown,
created fince 1:705, or having a penfion under
the Crown, during plcafure, or for any term of
years, arc incapable of being; elected Members.
Befides, if any Member accepts an office under
the Crown, except it be an officer in the army
or navy accc nting a new commiffion, his feat
becomes void ; though fuch Member is capable
of being re- elected.
Such are the precautions hitherto taken by
the Legifiators, for preventing the undue in-
fluence of the great prerogative of difpofing
of rewards and places : precautions which
have been fuccefiively taken, according as
circumfbances have fhewn them to be necef-
iarv ; and which we may thence fuppofe, are
owing to cauics powerful enough to produce
OF ENGLAND. - - -
produce the eflablifhment of new ones, when-
ever circumftances ihall point out the riecefilty
of them (a).
(a) Nothing can be a better proof of the efficacy of
the caufes that produce the liberty of the Englifh, and
which will be explained hereafter, than thofe viftories
which the Parliament from time to time gains over kfelf,
and in which the Members, forgetting all views of private
ambition, only think of their intereft as fubje&s,
Since this was firfl written, an excellent regulatioa
has been made for the decifion of controverted elections.
Formerly the Houfe decided them in a very fummary
manner, and the witneft'es were hot examined upon oath*
But, by an Aft palled a few years ago, the decifion is
now to be left to a Jury, or Committee, of fifteen Mem-
bers, formed in the following manner. Out of the
Members prefent, who muft not be lefs than one hun-
dred, forty-nine are drawn by lots : out of thefe, each
Candidate ftrikes off one alternately; till there remain
only thirteen, who, with two others, named out of the
whole Houfe, one by each Candidate, are to form the
Committee: in order to fecure the neceiTary number of
a hundred Members, all other bufinefs in the Houfe
3s to be fufpended, till the above operations are com-
pleted.
Hi
ioo THE CONSTITUTION*
CHAP. IX.
Of private Liberty, or the Liberty of Indivi-
duals,
WE have hitherto only treated of general
liberty, that is of the rights of the Na-
tion as a Nation, and of its mare in the Govern-
ment. It now remains that we mould treat
particularly of a thing without which this ge-
neral liberty, being abfolutely fruftrated in its
object, would be only a matter of oflentation,
and even could not long fubiift, I mean the
liberty of individuals.
Private Liberty, according to the divifion of
the Engliih Lawyers, confifts, firft, of the right
of Property, that is of the right of enjoying ex-
clufively the gifts of fortune, and all the va-
rious fruits of one's induflry. Secondly, of the
right of Perfonal Security. Thirdly, of the Loco*
motive Faculty, taking the word Liberty in its
more confined fenfe.
Each of thefe rights, fay again the Engliih
Lawyers, is inherent in the pcrfon of every
Englishman : they are to him as an inherit-
ance, and he cannot be deprived of them, but
by virtue of a fentence pafTed according to the
O F E N G L A N D. 101
laws of the land. And, indeed, as this right of
inheritance is expreffed in Engliih by one word
(birth-right), the fame as that which expreffes
the King's title to the Crown, it has, in times
of oppreflion, been often oppofed to him as a
right, doubtlefs of lefs extent, but of a fanction
equal to that of his own.
One of the principal effects of the right of
Property is, that the King can take from his
fubjects no part of what they poflefsj he mud
wait till they themfelves grant it him : and this
right, which, as we have feen before, is, by its
confequences, the bulwark that protects all
the others, has moreover the immediate effect
of preventing one of the chief caufes of op-
preflion.
In regard to the attempts to which the right
of property might be expofed from one indi-
vidual to another, I believe I mall have faid
every thing, when I have obferved, that there
is no Man in England who can oppofe the ir-
refiftible power of the Laws, that, as the
Judges cannot be deprived of their employ-
ments but on an accufation by Parliament,
the effect of intereft with the Sovereign, or
with thofe who approach his perfon, can
fcarcely influence their decifions, that, as the
Judges themfelves have no power to pafs fen-
3
202 THE CONSTITUTION
fence till the matter of fact has been fettle^
hy men nominated, we may almoft fay, at the
common choice of the parties (a) 3 ail private
views, and confequently all refpect of perfons,
are banifhed from the Courts of Juiiice. How-
ever, that nothing may be wanting which may
help to throw light on the fubject I have under*
taken to treat, 1 mall relate, in general, what is
the law in civil matters, that has taken place in
England.
When the Pandects were found at Amalphi,
the Clcrey, who were then the onlv Men that
were able to understand them, did not neglect
that opportunity of increasing the influence
they had already obtained, and caufed them to
be received in the greater part of Europe.
England, which was deftined to have a Con-
stitution lb different from that of other States,
was to be farther diitinguifhed by its rejecting
the Roman Laws.
Under William the Conqueror, and his im-
mediate fucceflbrs, a multitude of foreign Ec-
clefiaftics flocked to the Court of England.
Their influence over the mind of the Sove-
reign, which, in the other States of Europe, as
[a) Owing to the extenfive right of challenging jurymen.,
which is allowed to every perfon brought to his trial,
fcliojgh not ve:y frecpently ufed,
OF ENGLAND. 103
they were then conftituted, might be con-
sidered as matter of no great importance, was
not fo in a Country where the Sovereign being
all-powerful, to obtain influence over him, was
to obtain power itfeif. The Englilli Nobility
law with the greateft jealoufy, Men of a con-
dition fo different from their own, veiled with
a power to the attacks of which they were im-
mediately expofed, and thought that they would
carry that power to the height, if they were
ever to adopt a fyftem of laws which thofe fame
men fought to introduce, and of which they
would necelTarily become both the depofitaries
and the interpreters.
It happened, therefore, by a fomewhat lin-
gular conjunction of circurpilances, that, to
the Roman laws, brought over to England by
Monks, the idea of eccleijaftical power became
affociated, in the fame manner as the idea of
regal Defpotifm became afterwards annexed
to the Religion of the fame Monks, when fa-
voured by Kings who endeavoured to eftablifh
an arbitrary government. The Nobility at
all times rejected thefe laws, even with a de-
gree of ill humour {a); and the ufurper Ste-
[a) The nobility, under the reign of Richard IT.
declared in the French language of thofe times " Puree
st que le rcialme d'Englcterre n'ttoit devant ces hcures.
Ha
104 THE CONSTITUTION
phen, whofe intereft it was to conciliate their
affections, went fo far as to prohibit the itudy
of them.
As the general djfpofition of things brought
about, as hath been above obfervcd, a fufficient
degree of intercourfe between the Nobility or
Gentry, and the People, the averlion to the
Roman Laws gradually fpread itfelf far and
wide; and thofe laws, to which their wifdom
in many cafes, and particularly their extenfive-
nefs, ought naturally to have procured admit-
tance when the Englifh laws themfelves were
as yet but in their infancy, experienced the
moft fteacy oppofition from the Lawyers, and
as thofe perfons who fought to introduce them,
frequently renewed their attempts, there at
length arofe a kind of general combination
amongft the Laity, to confine them to Univer-
fities and Monafteries (#).
<c ne a Penitent du Roy notre Seignicr, k Seigniors dy;
" Parlement, unques ne fera, rule ne governe par la ley
" civil." viz. Inafmuch as the Kingdom of England was
not before this time, nor according to the intent of the
King our Lord, and Lords of Parliament, ever mall be
ruled or governed by the civil law In Rich. Parlamento
Weftmonafterii, Feb. 3. A?ino 2.
{a) It might perhaps be (hewn, if it belonged to the
fubjeft, that the liberty of thinking in religious mat-
ters, which has at all times remarkably prevailed in Eng-
land, is owing to much the fame caufes as its political
OF ENGLAND. 105
This oppofition was carried fa far, that For-
tefcue, Chief Juftice of the King^s Bench, and
afterwards Chancellor under Henry VI. wrote
a Book intitled De Laudibus Legum Anglic, in
which he propofes to dcmonftrate the fupe-
riority of the Englifh laws over the Civil;
and that nothing might be wanting in his ali-
gnments on that fubject, he gives them the ad-
vantage of fuperior antiquity, and traces their
origin to a period much anterior to the foun-
dation of Rome.
This fpirit has been preferved even to much
more modern times j and when we perufe the
many paragraphs which Judge Hale has
liberty: both perhaps are owing to this, that the fame
Men, who. '} intereit it is in other Countries that the
people fhould be influenced by prejudices of a politi-
cal or religious kind, have been in England forced to
inform and unite with them. I fhall here take occa-
fion to obferve, in anfwer to the reproach maJe to the
English, by Prefident Henault, in his much adeemed
Chronological Hiftory of France, that the frequent
changes of religion which have taken place in Eng-
land, do not argue any fervile difpofition in the people;
they only prove the equilibrium between the then exit-
ing Seels : there was none but what might become the
prevailing one, whenever the Sovereign thought proper
to declaie for it; and it was not England, as people may
think at firft fight, it was only its Government, which
charged its religion.
e
jo6 THE CONSTITUTION
written in his Hiftory of the Common Law,
to prove, that in the few cafes in which the
Civil Law is admitted in England, it can have
no power by virtue of any deference due to th
orders of Juflinian (a truth which certainly
had no need of proof), we plainly fee that this
Chief Jufcice, who was alio a very great Law-
yer, had, in this refpect, retained fomewhat of
the heat of party.
Even at pre lent the Engliili Lawyers at-
tribute the liberty they enjoy, and of which
Other Nations are deprived, to their having
rejected, while thofe Nations have admittedj
the 'Roman law; which is miftaking the effect
for the caufe. It is not becaufe the Engliili
have rejected the Roman laws that they are
free; but it is becaufe they were free, or at
leail becaufe there exifted among them
caufes which were, in procefs of time, to
make them (o, that they have been able to
rejeel: the Roman laws, But even though
thev had admitted thofe laws, the fame cir-
cumilanccs that have enabled them to reject
the whole, would have likewifc enabled them
to rejeel: thofe parts which might not have
iuited them; and they would have feen, that
jt is very pofiiblc to receive the decifions oi
the Civil law on the fubject of the fa --vitutes v.r-
OF ENGLAND ( 107
latia & rvjiica, without adopting its principles
with refpedt to the power of the Emperors (a).
Of this the Republic of Holland, where the
Civil law is adopted, would afford a proof, if
there were not the ftill more {lriking one, of
the Emperor of Germany, who, though in the
opinion of his People, he is the fucceflbr to the
very throne of the Cttfars (b), has not by a
great deal fo much power as a King of Eng-
land ; and the reading of the feveral treaties
which deprived him of the power of nominating
the principal offices of the Empire, fufHciently
fhews that a fpirit of unlimited fubmiffion to
Monarchical power, is no necefTary confequence
of the admiflion of the Roman Civil Law.
The Laws therefore that have taken place in
England, are what they call the Unwritten Law.,
alio termed the Common Law, and the Statute Lazv.
The Unwritten Luzv is thus called, not be-
caufe it is only tranfmitted by tradition from
generation to generation ; but becaufe it is not
founded on any known act of the Legislature.
It receives its force from immemorial cuftom,
and, for the moll parr, derives its origin from
(a) What particularly frightens the Englifh Lawyers is
L. i. Lib. I. Tit. 4. Dig. Quod Pri?:dpi placuerit legh
babet migorcm.
{b) The German word to exprefs the Emperor's dig-
nity, is, Co-far, Kaifer, 3
jc8 THE CONSTITUTION
Acts of Parliament enacted in the times which
immediately followed the Conqueft (particu-
larly thofe anterior to the time of Richard the
Firft), the originals of which are loft.
The principal objects fettled by the Com-
mon Law, are the rules of defcent, the dif-
ferent methods of acquiring property, the va-
rious forms required for rendering contracts
valid ; in all which points it differs, more or lefs,
from the Civil Law. Thus, by the Common
l^aw, lands defcend to the deleft fon, to the ex-
clufion of all his brothers and fitters; whereas,
by the Civil Law, they are equally divided
between all the children: by the Common Law,
property is transferred by writing; but by the
Civil Law, tradiricn, or actual delivery, is more-
over re qui lite, &c.
The fource from which the decifions of the
Common Law are drawn, is what is called
praterltorum memoria e-ventorum, and is found
in the collection of judgments that have been
paffed from time immemorial, and which, as
well as the proceedings relative to them, arc
carefully preferved under the title of Records.
In order that the principles eftablifhed by fuch
a feries of judgments may be known, extracts
from them are, from time to time, published
under the name of Reports; and thefe re
OF ENGLAND* 109
ports reach, by a regular feries, fo far back
as the reign of Edward the Second, inclu-
sively.
Befides this collection^ which is pretty vo-
luminous, there are alfo fome ancient Authors
of great authority among Lawyers; fuch as
Glanvily who wrote under the reign of Henry
the Second Brafton, who wrote under Henry
the Third, Fleta, and Lytteltcm Among
more modern Authors, is Sir Edward Coke,
Lord Chief Juftice of the King's Bench under
James the Firit, who has written four books of
Inftitutes, and is at prefent the Oracle of the
Common Law.
The Common Law moreover comprehends
fome particular cufloms, which are fragments
of rhe ancient Saxon laws, cfcaped from the
difafter of the Conquefl; fuch as that called
Gavelkind, in the County of Kent, by which
lands are divided equally between the Sons;
and that called Borough EngHfB, by which, in
fome particular diftricts, lands defcend to the
youngeft Son.
The Civil Law, in the few inftances where
it is admitted, is like wife comprehended under
the Unwritten Law, becaufc it is of force only
fo far as it has been authorifed by immemo-
rial cultom. Some of its principles are fol-
no THE CONSTITUTION
lowed in the Ecclefiailical Courts, in the Couf t$
of Admiralty, and in the Courts of the two
Univerfities ; but it is there nothing more than
lex fub lege graviori ; and thefe different Courts
muft conform to Acts of Parliament, and to the
fenfe given to them by the Courts of Common
Law; being moreover fubjected to the controul
of thefe latter.
Laftly, the Written Law is the collection of
the various Acts of Parliament, the originals
of which are carefully preferved, efpecially fince
the reign of Edward the Third. Without en-
tering into the diftinctions made by Lawyers
with refpedt to them, fuch as public and private
Acts, declaratory Acts, or fuch as are made to
extend or reftrain the Common Law, it will be
fufficient to obferve, that being the refult of
the united wills of the Three Coniiituent Parts
of the Legislature, they, in all cafes, fupercede
both the Common Law and all former Sta-
tutes, and the Judges muft take cognizance of
them, and decide in conformity to them, even
though they had not been alledged by ths
parties (a).
The different Courts for the Adminiftratioa
of Juflice, in England, are
(a) Unlefs they bs private Acb.
OF ENGLAND. uf
I. The Court of Common Pleas. It formerly
made a part of the Aula Regis; but as this lat-
ter Court was bound by its inftitution always
to follow the perfon of the King, and private
individuals experienced great difficulties in ob-
taining relief from a Court that was ambula-
tory, and always in motion, it was made one of
the articles of the Great Charter, that the Court
of Common Pleas mould thenceforwards be
held in a fixed place (a); and fince that time it
has been feated at Weftminfter. It is compofed
of a Lord Chief Juftice, with three other
Judges; and appeals from its judgments, ufually
called Writs of Errour, are brought before the
Court of King's Bench.
II. The Court of Exchequer. It was ori-
ginally eitablifhed to determine thofe caufes in
which the King, or his fervants, or accomptants,
were concerned, and has gradually become
open to all perfons. The confining the power
of this Court to the above clafs of perfons,
is therefore now a mere fiction; only a man
muft, for form's fake, fet forth in his decla-
ration that he is debtor to the King, whether
he be fo, or no. The Court of Exchequer is
(a) Commuma Placita non fequantur Curiam nof.ram, fed
ttmantur in a/iquo loco certo. Magna Charta, cap. u.
ii2 THE CONSTITUTION
compofed of the Chief Baron of the Exche-
quer, and three other Judges.
III. The Court of King's Bench form9 that
part of the Aula Regis which continued to fub-
fift after the difmembering of the Common
Pleas. This Court enjoys the moil extenfive
authority of all other Courts : it has the fuper-
intendcnce over all Corporations, and keeps the
various jurifdiclions in the Kingdom within
their refpediive bounds. It takes cognizance,
according to the end of its original inflitution,
of all criminal caufes, and even of many caufes
merely civil. It is compofed of the Lord Chief
Juftice of the Court of King's Bench, and three
other Judges. Writs of errour againft the judg-
ments palled in that Court in civil matters, arc-
brought before the Court of the Exchequer
Chamber; or, in moll cafes, before the Houfe
of Peers.
IV. The Court of the Exchequer Chamber.
When this Court is formed by the four Barons,
or Judges of the Exchequer, together with the
Chancellor and Treafurer of the fame, it fits as
a Court of Equity; a kind of inftitution on
which fomc obfervations will be introduced in a
following Chapter. When this Court is form-
ed by the twelve Judges, to whom fometimes
the Lord Chancellor is joined, its office is to
OFENGLAND. tij
deliberate, when properly referred and applied
to, and give an opinion on important and dif-
ficult caufes, before judgments are paffed upon,
them, in thdfe Courts where the caufes are de-
pending.
CHAP, X,
On the Law in regard to Civil Matter s } that is
obferved in England;
CONCERNING the manner in which
Juftice is adminiitered, in civil matters,
in England, and the kind of law that obtains
in that refpedt., the following obfervations may-
be made.
In the firft place, it is to be obferved, that
the beginning of a civil procefs in England^
and the firft ftcp ufually taken in bringing an
action, is the feising by public authority the
perfon againft whom that action is brought.
This is done with a view to fecure fuch per-
forms appearance before a Judge, or at leaft
make him give fureties for that purpofe. In
mod of the Countries of Europe, where the
forms introduced in the Roman Civil Law, in
the reigns of the latter Emperors, have been
imitated* a different method has been adopted
I
fi 4 THE CONSTITUTION
to procure a man's appearance before a Court
of Juflice. The ufual practice is to have the
perfon fucd, fummoned to appear before the
Court, by a public officer belonging to it,
a week before-hand : if no regard is paid to
fuch fummons twice repeated, the Plaintiff, or
his Attorney, is admitted to make before the
Court a formal reading of his demand, which
is then granted him, and he may proeeed to
execution (a).
In this mode of proceeding, it is taken for
granted, that a perfon who declines to appear
before a Judge, to anfwer the demand of an-
other, after being properly fummoned, ac-
knowledges the juftice of inch demand ; and
this fuppofition is very juft and rational.
However, the above mentioned practice of
fecuring before-hand the body of a perfon fucd,
though not fo mild in its execution as that jufl
now defcribed, nor even more effectual, ap-
pears more obvious, and is more readily adopt-
ed, in thofe times when Courts of Law begin
(a) A perfon againft whom a judgment of this
kind has been pafied (which they call in France un
jugement par difaut) may eafily obtain relief: but as he
now in his turn becomes in a manner the Plaintiff, his
deferring the caufe, in this fecund ftage of it, would
leave him without remedy.
OF ENGLAND. 115
to be formed in a Nation, and rules of diftri-
butive juftice to be eflablifhed; and it is, very
likely, followed in England as a continuation of
the methods that were adopted when the Eng-
lifh laws were as yet in their infancy.
In the times we mention, when laws be-
gin to be formed in a Country, the admini-
flration of juftice between individuals is com-
monly lodged in the fame hands which are in-
trufted with the public and military authority
in the State. Judges inverted with a power of
this kind, like to carry on their operations with
a high hand : they conlider the refufal of a
Man to appear before them, not as being barely
an expedient to avoid doing that which is juft,
but as a contempt of their authority : they of
courfe look upon themfelves as being bound to
vindicate it ; and a writ of Capias is fpcedily
ifTued to apprehend the refradtory Defendant.
A preliminary Writ, or order, of this kind,
becomes in time to be ufed of courfe, and as
the firft regular flcp of a law-fuit ; and thus, it
is likely enough, has it happened that in the
Englifh Courts of law, if I am rightly inform-
ed, a Writ of Capias is either iflued before the
original Writ itfelf (which contains the fum-
mons of the plaintiff, and a formal delineation
of his cafe), or is joined to fuch Writ, by mea-r.s
I 2
1x6 THE CONSTITUTION
of an ac etiam capias, and is ferved along with
it. It may be remembered that, in England,
the Aula Regis at the head of which the King
himfelf prefided, was originally the common
Court of Juftice for the whole Kingdom, in
civil as well as criminal matters, and continued
fo till the court of Common Pleas was in time
feparated from it.
In Rome, where the diftribution of civil
Juftice was at fir ft lodged in the hands of the
Kings, and afterwards of the Confuls, the
method of feizing the perfon of a Man againft
whom a demand of any kind was preferred,
previouily to any judgment being palTed
againft him, was likewife adopted, and con-
tinued to be followed after the inftitution of
the Praetor's Court, to whom the civil branch
of the power of the Confuls was afterwards
delegated ; and it lafted till very late times ;
that is, till the times when thofe capital al-
terations were made in the Roman civil Law,
during the reign of the latter Emperors, which
gave it the form it now has in thofe Codes
or collections of which we are in pofTeffion.
A very lingular degree of violence even
took place in Rome, in the method ufed to fe-
cure the perfons of thofe againft whom a legal
demand was preferred. In England, the wav
6
OF ENGLAND. 117
to feize upon the perfon of a Man under fuch
circumftances, is by means of a public Officer,
fupplied with a Writ or order for that purpofe,
fuppofed to be directed to him (or to the Sheriff
his employer) from the King himfelf. But
in Rome, every one became a kind of public
officer in his own caufe, to affert the Prsetor's
prerogative; and, without any oftenfible legal
licence or badge of public authority, had a
right to feize by force the perfon of his op-
ponent, wherever he met him. The practice
was, that the Plaintiff (ARor) firft fummoned
the perfon fued (Reum) with a loud voice, to
follow him before the Court of the Praetor (tf).
When the Defendant refufed to obey fuch
fummons, the Plaintiff, by means of the words
licet anteflari, requefted the by-ftanders to be
witneffes of the fact, as a remembrance of
which he touched the ears of each of them;
and then proceeded to feize the perfon of his
opponent, by throwing his arms round his neck
(obtorto collo), thus endeavouring to drag him
before the Praetor. When the perfon fued was,
through age or ficknefs, difabled from follow-
ing the Plaintiff, the latter was directed by the
law of the Twelve Tables to fupply him with
a horfe (jumentum dato).
[a] Ad Tribunal fsquere, in Iuj amhula.
I 7
iz8 THE CONSTITUTION
The above method of proceeding was how-'
ever in after-times mitigated, though very late
and flowly. In the firft place, it became unlaw-
ful to feize a man in his own houfe, as it was
the abode of his domeilic Gods. Women of
good family (Matron*) were in time protected
from the feverity of the above cuftom, and
they could no longer be dragged by force be-
fore the Tribunal of the Prjetor, The me-
thod of placing a lick or aged perfon by force
upon a horfe, feems to have been aboliftied
during the latter times of the Republic.
Emancipated Sons, and freed Slaves, were
afterwards retrained from fummoning their
Parents, or late Mailers, without haying ex-
prefsly obtained the Praetor's leave, under the
penalty of fifty pieces of gold. However, fo
late as the time of Pliny, the old mode of fum-
moning, or carrying by force, before a Judge,
continued in general to fubfift ; though, in the
time of Ulpian, the necefllty of exprefsly obtain-
ing the Praetor's leave was extended to all cafes
and perfons ; and in Conftantine's reign, the
method began to be eftablifned of having; legal
CD O O
iummonfes' ferved only by means of a public
Officer appointed for that purpofe. After that
time, other changes in the former law were in-
troduced., from which the mode of proceeding
OF ENGLAND. 119
dow ufed on the Continent of Europe, has been
borrowed.
In England likewife, fome changes we may
cbferve, have been wrought in the law and
practice concerning the arrefts of fued perfons,
though as flowly and late as thofe effected in
the Roman Republic or Empire, if not more
fo ; which evinces the great impediments of
various kinds that obftru.cjt the improvement of
laws in every Nation. So late as the reign of
king George the Firft, an Act was palled to
prohibit the practice of previous perfonal Ar-
reft, in cafes of demands under two pounds
fterling ; and iince that time, thofe Courts,
juftly called of Confcience, have been eftablifhed,
in which fuch demands are to be fummarily
decided, and fimple fummonfes, without arreft,
can only be ufed. A n d lately, another Bill has
been palTed on the motion of Lord Beauchamp,
whefe name deferves to be recorded, by which
the like prohibition Qf arreft is extended to
all cafes of debt under ten pounds fterling ;
a Bill the palling of which was of twenty,
or even a hundred times, more real impor-
tance than the rife or fall of a favourite or 3
Miniiter, thpugh it has perhaps been ho-
noured with a.lefs degree of attention by th?
Public,
Ia
no THE CONSTITUTION
Another peculiarity of the Englilh Civil Law x
is the great refinements, formalities, and ftrift-
nefs that prevail in it. Concerning fuch re-
finements, which are rather imperfections, the
fame obfervation may be made that has been
introduced above in regard to the mode and
frequency of civil arrefl in England ; which is,
that they are continuations of methods adopted
when the Englifh Law began to be formed,
and are the confequences of the iituation in
which the Englilh placed themfelves when
they rejected the ready made Code of the Ro-
man civil Law, compiled by order of Juftinian,
which molt Nations of Europe have admitted,
and rather chofe to become their own Law*
makers, and raife from the ground the ftruc-
ture of their own national Civil Code; which
Code, it may be obferved, is as yet in the firil
ftage of its formation, as the Roman Law itfelf
was during the times of the Republic, and in
the reigns of the firft Emperors.
The time at which the power of adminifter-
ing juftice to individuals, becomes feparated
from the military power (an event which hap-
pens fooner or later in different Countries) is
the real asra of the origin of a regular fyitem
of laws in a Nation. Judges being now de-
prived of the power of the fword, or, which
OF ENGLAND, iai
amounts to the fame, being obliged to borrow
that power from other perfons, endeavour to
find their refources within their own Courts,
and, if poffible, to obtain fubmiffion to their
decrees from the great regularity of their pro-
ceedings, and the reputation of the impartiality
of their decisions.
At the fame time alfo, Lawyers begin to
croud in numbers to Courts which it is no
longer dangerous to approach, and add their
refinements to the rules already fet down either
by the Legiflature or the Judges. As the em-
ploying of them is, efpecially in the begin-
ning, matter of choice, and they fear, that,
if bare common fenfe were thought fuffi-
cient to conduct a law-fuit, every body might
imagine he knows as much as they do, they
contrive difficulties to make their afliftance
needful. As the true fcience of the Law,
which is no other than the knowledge of a long
feries of former rules and precedents, cannot
as yet exift, they endeavour to create an artifi-
cial one to recommend themfelves by. Formal
diilin&ions and definitions are invented to ex-
prefs the different kinds of claims Men may
fet up again ft one another; in which almoft
the fame nicety is difplayed as that ufed by
Philofophers in claffing the different fubjedts,
m THE CONSTITUTION
or kingdoms, of natural Hiitory. Settled forms
of words, under the name of Writs, or fuch like,
are deviled to fet thofe claims forth ; and, like
introductory pafles, ferve to ufher Claimants
into the Temple of Juftice. For fear their
Clients mould defert them after their firft in-
traduction, like a fick man who refts contented
With a Tingle vifit of the Phyfician, Lawyers
contrive other ceremonies and technichai forms
for the farther conduct of the procefs and the
pleadings; and in order ftill more fafely to bind
their Clients to their dominion, they at length
obtain to make every error relating to their
profeffional regulations, whether it be a mif~
nomer, a mispleading, or fuch like tranfgreflion,
to be of: 33 fatal a confequence as a failure
againft the laws of ftridt Juftice. Upon the
foundation of the above mentioned definitions
and metaphyfical distinctions of cafes and ac-
tions, a number of ftridt rules of law are
moreover railed, with which none can be ac-
quainted but fuch as are complete mailers of
thpfe diftin&ions and definitions.
Tq a perfon who in a pofterior age obferves
for the firft time fuch refinements in the distri-
bution of Juftice, they appear very ftrangCj
and even ridiculous. Yet, it muft be confefledj
that during the times of the firft inftitution ci
G F ENGLAND. n$
MagifVaeies and Courts of a civil nature, ce-
remonies and formalities of different kinds,
are very ufeful to procure to fuch Courts, both,
the confidence of thofe perfons wjio are brought
before them, and the refpect of the Public at
large ; and they thereby become actual fub-
ftitutes for military force, which, till then,
had been the chief fuppcrt of Judges. Thofe
fame forms ana profeffional regulations arc
moreover ufeful to give uniformity to the
proceedings of the Lawyers and pf the Courts
of Law, and to infure conftancy and fteadinefs
to the rules they fet down among themfelves.
And if the whole fyflem of the refinements vvc
mention continues to fubfifl in very remote
ages, it is in a great meafurp owing (not to
mention other cauft s) to their having fo co-
alefced with the efTential parts of the Law as
to make danger, or at leait great difficulties, to
be apprehended from a feparation ; and they
may, in that refpecl:, be compared with a fcaf-
folding ufed in t-he raiftng of a houfe, which,
though only intended to fet the materials and
fupport the builders, happens to be fuffered
for a long time afterwards to fland, becaufe it
js thought the removing of it might endanger
the building,
J24 THE CONSTITUTION
Very Angular law formalities and refined
practices of the kind here alluded to, had
been contrived by the firffc Jurifconfuks in
Rome, with a view to amplify the rules fet
down in the Laws of the Twelve Tables ;
which being but few, and engraved on brafs,
every body could know as well as they : it
even was a general cuftom to give thofe laws
to children to learn, as we are informed by
Cicero.
Very accurate definitions, as well as diftindt
branches of cafes and actions, were contrived
by the firft Roman Jurifconfuks; and when a
Man had once made his election of that pecu-
liar kind of aSiioH he chofe to purfue his claim
by, it became out of his power to alter it.
Settled forms of words, called Aciiones legis,
were moreover contrived, which Men mult
abfolutely ufe to fet forth their demands. The
party himfelf was to recite the appointed
words before the Pra?tor; and mould he un-
fortunately happen to mifs or add a iingle
word, fo as to feem to alter his real cafe or
demand, he loft his fuit thereby. To this
an allufion is made by Cicero, when he fays,
We have a civil law fo conftituted, that a
" Man becomes non-fuited, who has not
" proceeded in the manner he fhould have
OF ENGLAND, 125
" done {a).** An obfervation of the like na-
ture is alfo to be found in Quintilian, whofe
expreffions on the fubjectare as follow: " There
" is beiides another danger; for if but one
tc word has been miftaken, we are to be con-
" fidered as having failed in every point of our
'* fuit ()." Similar folemnities and appropri-
ated forms of words were moreover necefiary
to introduce the reciprocal anfvvers and replies
of the Parties, to require and accept fureties,
to produce witneffes, &c.
Of the above Aftiones legis, the Roman Jurif-
confults and Pontiffs had carefully kept the
exclufive knowledge to themfelves, as well a*
of thofe Days on which religion did not allow
Courts of law to fit (<). One Cn. Flavius, fe-
cretary to Appius Claudius, having happened
to divulge the fecret of thofe momentous forms
(an act for which he was afterwards preferred
by the People), Jurifconfults contrived frefh
ones, which they began to keep written with
fecret cyphers; but a Member of their own
Body again betrayed them, and the new Col-
lection which he publilhed, was called Ins
(a) Ita Lis civile haltmus conftitutum, ut caufa cadat is
qui not: quomadmodum ofortet egerit. De Invent II. 19.
(b) Eft etiam periculofum, quum ft una *verbo fit erratum,,
tot a caufd cectdijfe <videami(r. In ft. Orat, III. 8. VI L 3.
(b) Die: Fafti & Nefa/Ii,
126 THE CONSTITUTION
&llanum> from his name, Sex. JElius, in trre
fame manner as the former collection had been
called, Ius Flavianum* However, it does not
icem that the influence of Lawyers became much
abridged bv thofe two Collections : befides wriN
ten information of that fort, practice is alfo ne-
ccfTary : and the public Collections we mention,
like the many books that have been published
on the Engliih law, could hardly enable a Man
to become a Lawyer, at lean: fufficiently fo as
to conduct a law-fult (a).
Modern Civilians have been at uncommon
pains to find out and produce the ancient law
formula we mention ; in which they really have
had furprifing fuceefs. Old Comic Writers,
fuch as Plautus and Terence, have fupplicd
them with feveral ; the fettled words, for in-
stance, ufed to claim the property of a Slave,
lrequently occur in their Works (!?).
(a) The Roman Jurifconfults had extended their kill tt>
objects of -voluntary jurifdiclion as well as to thofe of con-
tentious jurifdiclion, and had devifed peculiar formalities,
forms of words, dillinflions, and definitions, in regard to
the contracting of obligations between Man and Man, in
regard to ftipulations, donations, fpoufals, and efpecially
Iai\ wills, in regard to all which they had difplayed furprif-
ing nicety, refinement, accuracy, and ftridtnefs. The
Englifh Lawyers have not bellowed fo much pains on the
cbjetts of voluntary jurifdiclion, nor any thing like it.
() The words addrefled to the Plaintiffs by the perfon
fued, when the latter made his appearance on the day for
which he had been compelled to give furctics, were as fol-
OF ENGLAND. 127
Extremely like the above Acfiones legis are
the Writs ufed in the Englifh Courts of law.
Thofe Writs are framed for, and adapted to,
every branch or denomination of actions, fuch.
low, and are alluded to by Plaut. CurcuL I. 3. v. 5.
' Where art thou who haft obliged me to give fureties ?
" Where art thou who fummoneft me ? Here I ftand be-
" fore thee, do thyfelf ftand before me." To which
the Plaintiff made anfwer, " Here I am." The defendant
replied, What doft thou fay ?" When the plaintiff an-
fwered, I fay. . . {Aio) and then followed the form of
words by which he chofe to exprefs his aclion. Ubi-tu es,
qui me <vadatus es ? Vbi tu es qui me citajii ? Ecce ego me
iibififto ; tu contra iff te mihi fijle, Ztc.
If the aclion, for inftance, was brought on account of
goods ftolen, the fettled penalty or damages for which was
the reftitution of twice the value, the words to be ufed
were, AIO decern aureos mihi furto tue abejfe, teque ec nomine
viginti aureos mihi dare cportere. For work done, fuch as
cleaning of cloaths, &c. Alo te mihi tritici medium de qut,
inter nos, ccn-jtnit ob polita <vejlimenta tua, dare cportere. For
recovering the value of a Slave killed by another Citizen.
Aio te hominem m:um occidijfe, teque miki quantum i/Ie hoc anno
flurimi fuit dare cportere. For damages done by a vicious
animal, Aio boi'em Meevii fernjum rr.eum, Sticbum, coruu
fetiijfe Cif occidijfe, eoqiie nomine Mai'ium, cut fer-zi
^Jiimationem prafiare, aut bovem mihi noxse dare, oportert ;
or Aio urfum Mamii mihi iiulnus intulijfe, & Mttvium
quantum aquius melius mihi dare oportere, iffc. iff c .
It may be obferved, that the particular kind of re
medy which was provided by the law for the cafe befor?
the Court, was exprefly pointed out in the formula, ufed
by a Plaintiff ; and in regard to this no miftake was to
bf made. Thus, in the laft quoted formula, the words
3
128 THE CONSTITUTION
as detinue, trefpafs, aBion upon the cafe, acccmpt,
and covenant, &c the fame itri&nefs obtains
in regard to them as did in regard to the Ro-
man law formula? above mentioned : there
is the fame danger in mifapplying them, or
in failing in any part of them; and to ufe
the words of an Engliih Law writer on the
fubjedt, " Writs mull be rightly directed, or
<c they will be nought, ... In all writs, care
< c mull be had that they be laid and formed
<c according to their cafe, and fo purlued in the
<c procefs thereof (V)."
The fame formality likewife prevails in the
Englifh pleadings and conduct of the procefs^
as obtained in the old Roman law proceedings
and in the fame manner as the Roman Jurif-
confults had their Acllonls pojlulal'wnes Cff edi-
tiones, their inficiationes, exceptiones, fponJioneS}
replicationes, duplicaiiones, &c fo the Eng-
lifh Lawyers have their counts, bars^ rc~
quantum aqulus melius, fhew that the Praetor was to ap-
point inferior Judges, both to afcertain the damage done
and determine finally upon the cafe, according to the di-
rection he previoufly gave them ; thefe words being ex-
clufively appropriated to the kind of Aftions called Arbl-
trari/e, from the above mentioned Judges or Arbitrators.
In actions brought to require the execution of conventions
that had no name, the convention itfelf was expreffed in
the formula ; fuch is that which is recited above, relating
to work done by the Plaintiff, &c. &c.
(<?) Jacob's Law Dictionary. See Writ,
OF ENGLAND. 129
filiations, rejoinders, fur-rejoinders, rebutters, fur-
rebutters, &c. Afcrupulous accuracy in obferv-
ing certain rules, is moreover neceifary in the
management or thole pleadings: the following
are the words of an Engliih Law-writer on the
fubjecli iC Though the art and dexterity of
."pleading, was in its nature and defign only
ec 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 fimplicity. Pleaders, yea and
(l fudges, having become too curious in that
tl refpedt, pleadings at length ended in a piece
" of nicety and curiofitv, bv which the mil-
Ci carriage of many a caufe, upon fmall trivial
" objections, has been occafioned (#)"
There is, however, a difference between the
Roman Jtt'icnes legis, and the Engliih Writs ;
which is, that the former might be framed
when new ones were neceifary, by the Pnetor
or Judge of the Court, or, in fome cafes, by
the body of the Jurifconfults themfelves,
whereas JVrits, when wanted for fuch new cafes
as may offer, can only be devifed by a diftincl:
Judge or Court, exclufively inverted with fuch
power, viz. the High Court of Chancery.
The iffuing of Writs already exifting, for the
different cafes to which they belong, is alfo ex-
(a) Cunningham': Luw Di&ionarv, See Pleadings.
K
i 3 o THE CONSTITUTION
preily referved to this Court; and fo important
has its office on thofe two points been deemed
by Lawyers, that it has been called, by way of
eminence, the Manufactory of Juftice, (Officina
Jujlititf.) Original Writs befides, when once
framed, are not at any time to be altered, except
by Parliamentary authority (a).
Of fo much weight in the Englifti law, arc
the original delineations of cafes we mention,
that no caufe is fufTered to be proceeded upon,
unlefs they firft appear as legal introducers to
it. However important or interefting the cafe,
the Judge, till he fees the Writ he is ufed to,
or at leaft a Writ iflued from the right Manu-
factory, is both deaf and dumb. He is without
(c) Writs, legally iffued, are alfo neceffary for
executing the different incidental proceedings that may
take place in the courfe of a law fuit, fuch as producing
witnefles, &c. The names given to the different kindj
of writs, are ufually derived from the 'fir ft Latin words by
which they began when they were written in Latin, or a:
leaft from fome remarkable word in them; which give*
rife to expreflions fufficiently uncouth and unintelligible.
Thus, a Pone, is a writ iffued to oblige a perfon in certain
cafes to give fureties [Pone per 'vadium, and faliios pUgios.)
A writ of Subpoena is to oblige witneffes, and fometimes
other claffes of perfons, to appear before a Court. An
action of Qui tarn, is that which is brought to fue for a
proportional fhare of a fine eftablifhed by fome penal Sta-
tute, by the perfon who laid an information : the words
in the writ being, Qui tam pro Domino rege, quam profeip/t
in bac fsrtt feqvitur, &C. &C,
OF ENGLAND. 131
Cyes to fee, or ears to hear. And, when a cafe
of a new kind offers, for which there is as yet
no Writ in being, fhould the Lord Chancellor
and Mafters in Chancery difagree in creating
one, or prove unequal to the arduous talk, the
Great National Council^ that is Parliament
themfelves, are in fuch emergency exprefsly
applied to : by means of their collected wifdom,
the right myflical words are brought together '
the Judge is reftored to the free ufe of his organs
of hearing and of fpeech ; andj by the creation
of a new Writ, a new province is added to the
Empire of the Courts of Law 4
In fine, thofe precious Writs, thofe valuable
Briefs (Brevia) as they are alfo called by
way of eminence, which are the elixir and
quintefTence of the Law, have been committed
to the fpecial care of Officers appointed for that
purpofe, whofe offices derive their names from
thofe peculiar inftruments they refpectively ufe
for the prefervation of the depofit with which
they are intrufced ; the one being called the
office of the Hamper, and the other, of the Small
bag (a).
To fay the truth, however, the creating of
a new Writ^ upon any new given cafe, is mat-
fa} Hanaperium & Parya haga the Hanaper Office,
and the Petty-bag Office: the above two Latin words,-
it is not improper to obfeive, do not occur in Tally's
K %
132 THE CONSTITUTION
tcr of more difficulty than the generality of
Readers are aware of. The very importance
which is thought to be in thofe profeffional
forms of words, renders them realty important.
As every thing without them is illegal in a
Court of Common Law, fo with them every
thing becomes legal, that is to fay, they em-
power the Court legally to determine upon
every kind of fuit to which they are made to
ferve as introducftors. The creating of a new
Writ, therefore, amounts in its confequences
to the framing of a new law, and a law of a
general nature too : now, the creating of fuch
a law, on the firft appearance of a new cafe,
which law is afterwards to be applied to all
fuch cafes as may be fimilar to the firft, is really
matter of difficulty; efpeciaily, when men are
as yet in the dark as to the belt kind of provi-
fion to be made for the cafe in queftion, or even
when it is not perhaps yet known whether it be
proper to make any provifion at all. The fram-
ing of a new Writ under fuch circumftances, is
a mcafure on which Lawyers or Judges will not
very willingly either venture of themfelves, or
apply to the Legillature for that purpoR.*.
works. To the care of the Petty-bag office thofe writs
are trufted in which the King's bufinefs is concerned:
ard to the Hanaper cilice, thofe which relate to the Subject.
OF ENGLAND. 133
Owing to the above mentioned real difficulty
in creating new Writs on the one hand, and to
the abfolute neceffity of fuch Writs in the
Courts of Common Law on the other, many
new fpecies of claims and cafes (the ariiing of
which is from time to time the unavoidable con-
fequenees of the progrefs of trade and civiliza-
tion) are left unprovided for, and remain like
fo many vacant fpaces in the Law, or rather,
like io many inacccfllble fpots, which the laws
in being cannot reach: now this is a great im-
perfection in the diflribution of Juftice, which
mould be open to every individual, and provide
remedies for every kind of claim which Men
may fet up againit one another.
To remedy the above inconvenience, or ra-
ther in fome degree to palliate it, law fictions
have been reforted to, in the Englifh law, by
which Writs, being warped from their actual
meaning, are made to extend to cafes to which
they in no fhape belong.
Law fictions of the kind we mention were not
unknown to the old Roman Jurifconfults; and
as an inftance of their ingenuity in that refpect,
may be mentioned that kind of action, in which
a Daughter was called a Son (a). Several in-
(<?) From the above inftance it might be concluded
that the Roman Jurifconfults were pofTefTed of ftill
K. z
134 THE CONSTITUTION
fiances might alfo be quoted of the fictitious
ufe of Writs in the Englifh Courts of Common
Law. A very remarkable expedient of that
fort occurs in the method generally ufed to fue
for the payment of certain kinds of debt, be-
fore the Court of Common Pleas, fuch, if I am
not miftakcn, as a falary for work done, in-
demnity for fulfilling orders received, he. The
Writ iffued in thofe cafes, is grounded on the
fuppofition, that the perfon fued has trefpaffed
on the ground of the Plaintiff, and broken by
force of arms through his fences and inclo-
fures ; and under this predicament the Defen-
dant is brought before the Court : this Writ,
which has been that which Lawyers have found
of moft convenient ufe, to introduce before a
Court of Common Law the kinds of claim
we mention, is called in technical language a
Claufum f regit. In order to bring a perfon
before the Court of King's Bench, to anfwer
demands of much the fame nature with thofe a-
bove, a Writ, called a Latitat, is iffued, in which
it is taken fcr granred that the Defendant in-
(idiouily conceals himfelf., and is lurking in
greater power than the Englifh Parliament; for it is z
fundamental principle with the Englifh Lawyers, that
Parliament can do every thing, except making a V/om;^
t Man, or a Man a Woman,
OF ENGLAND. 135
fome County, different from that in which the
Court is fitting ; the expreffions ufed in the
Writ being, that " he runs up and down and
" fecretes himfelf ;" though no fuch fact is fe-
rioufly meant to be advanced either by the At-
torney or the Party.
The fame principle of ftrict adherence to
certain forms long fince eftablifhed, has alfo
caufed Lawyers to introduce into their pro-
ceedings, fictitious names of perfons who are
fuppofed to difcharge the office of fureties ;
and in certain cafes, it feems, the name of a
fictitious perfon is introduced in a Writ along
with that of the principal Defendant, as be-
ing joined in a common caufe with him. An-
other inftance of the fame high regard of
Lawyers, and Judges too, for certain old forms,
which makes them more unwilling to depart
from fuch forms than from the truth itfelf of
facts, occurs in the above mentioned expedient
ufed to bring ordinary caufes before the Court
of Exchequer, in order to be tried there at
Common Law ; which is, by making a decla-
ration that the Plaintiff is a King's debtor,
though neither the Court, nor the Plaintiffs
Attorney, lay any ferious jftrefs on the affer*
tion (#).
(a) Another inftance of the Itrift adherence of the Eng-
lifh Lawyers to their old eftabliihed forms in preference
K 4
u6 THE CONSTITUTION
CHAP. XI.
The Subject continued. The Courts of Equity.
HOWEVER, there are limits to the law
fictions and fubtilties we mention ; and
the remedies of the Law cannot by their means
be extended to all pomble cafes that arife, unlefs
too many abfurdities are differed to be accu-
mulated; nay, there have been inftances in
tvhich the improper application of Writs, in
the Courts of Law, has been checked by au-
thority. In order therefore to remedy the incon-
veniences we mention, that is, in order to ex-
tend the adminiftration of diflributive Juftice to
all poffible cafes, by freeing it from the profef-
fjonal difficulties that have gradually grown up
even to the truth of facts, occurs in the manner of execut-
ing the very Act mentioned in this Chapter, palled in the
reign of George I. for preventing perfonal Arreft for debts
under forty {hillings. If the defendant, after being per-
sonally ferved with a copy of the procei^, does not appear
on the appointed days, the method is to fuppofe that he
has actually made his appearance, and the caufe is pro-
ceeded upon according to this fuppofition : fictitious names
of bails are alio reforted to.
The inhabitants of Bengal, and other Eaft India pro-
vinces, have been prodigioufly furprifed, it is faid, at the
refinements, fictions, an J intricacy of ihe Englifh lav/, in
regard to civil matters which was introduced among them
a few years ago; and it is certainly net to be doubted that
tht-/ may have teen aonhl.cu\
OF ENGLAND. 137
in its way, a new Kind of Courts has been in-
ftituted in England, called Courts of Equity,
The generality of people, mifled by this
word Equity, have conceived falfe notions of
the office of the Courts we mention ; and it
feems to be generally thought that the Judges
who fit in them, are only to follow the rules
of natural Equity; by which People appear
to underfland, that in a Court of Equity, the
Judge may follow the dictates of his own pri-
vate feelings, and ground his decisions as he
thinks proper, on the peculiar circumftances
and fituation of thofe perfons who make their
appearance before him. Nay, Doctor Johnfon,
in his abridged Dictionary, gives the following
definition of the power of the Court of Chan-
cery, confidered as a Court of Equity : " The
ii Chancellor hath power to moderate and tern-
fl per the written law, and fubjefteth himfelf
i( only to the law of nature and confidence;"
for which definition Dean Swift, and Cowell,
who was a Lawyer, are quoted as authorities.
Other inftances 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 himfelf is on no
fubjecl a defpicable authority.
Certainly the power of the Judges of Equity
cannot be to alter, by their own private power,
the Written Law, that is, Ads of Parlia-
138 THE CONSTITUTION
ment, and thus to controul the Legiflaturc.
Their office only confifts, as will be proved in
the fequel, in providing remedies for thofe cafes
for which the public good requires that reme-
dies fnould be provided, and in regard to which
the Courts of Common Law, ffiackled by their
original forms and institutions, cannot procure
any ; or, in other words the Courts of Equity
have a power to adminirkr Juftice to indivi-
duals, unreftrained, not by the I y aw, but by
the profeflional law difficulties which Lawyers
have from time to time contrived in the Courts
of Common Law, and to which the Judges of
thofe Courts have given their fanction.
An office of the kind here mentioned, was
foon found necelfary in Rome, for reafons of
the fame nature with thofe above delineated.
For, it is remarkable enough, that the Body
of Englilh Lawyers, by refufing admittance
to the Code of Roman Laws, as it exitfed in
the latter times of the Empire, have only fub-
jec?ted themfelves to the fame difficulties undei
which the eld Roman jurifconfults laboured.,
durm" the time they were raifin<r the ftructure
of thefe fame Laws. And it may alfo be ob-
ferved, that the Lngbih Lawyers or judges have
falkn upon much the fame expedients as thofe
which the Reman Juiifconfujts and Praetors had
adopted.
This office of a Judge of Equity, was in
OF ENGLAND. 139
time afTumed by the Praetor in Rome, in ad-
dition to the judicial power he before poflerTed
(a). At the beginning of the year for which
he had been elected, the Praetor made a deck-*
ration of thofe remedies for new difficult cafes,
which he had determined to afford during the
time of his Magiftracy ; in the choice of which
he was no doubt directed, either by his own ob-
fervations, while out of office, on the propriety
of fuch remedies, or by the fuggeftions of expe-
rienced Lawyers on the fubjecl. This Decla-
ration (Ediftum) the Praetor produced in albo^
as the expreffion was. Modern Civilians have
made many conjectures on the real meaning of
the above words ; one of their fuppofitions,
which is as likely to be true as any other, is,
that the Praetor's Ediflum, or heads of new law
remedies, were written on a whitened wall, by
the fide of his Tribunal.
Among the provisions made by the Roman
Praetors in their capacity of Judges of Equity,
may be mentioned thofe which they introduced
in favour of emancipated Sons and of relations
by the Women's fide (Cogniti), in regard to the
right of inheriting. Emancipated Sons were
(a) The Praetor thus poflefTed two diflin.fi branches
of judicial authority, in the fame manner as the Court
of Exchequer does in England, which occafionlly fits
as a Court of Common Law, and a Court of Equity,
i 4 o THE CONSTITUTION
fuppofed, by the Laws of the Twelves Tables,
to have ceafed to be the children of their Fa-
ther, and, as a confequence, a legal claim was
denied them on the paternal inheritance : Re-
lations by the Woman's -fide were taken no no-
tice of, in that article of the fame laws which
treated of the right of fucceflion, mention be-
ing only made of relations by the Men's fide
(Agnatl.) The former, the Praetor admitted,
by the Edict Unde Libert, to fhare their Father's
(or Grandfather's) inheritance along with their
brothers ; and the latter he put in pofTefiion of
the patrimony of a kinfman deceafed, by means
of the Edict Unde Cognati, when there were no
relations by the Men's fide. Thefe two kinds
of inheritance were not however called h<eredi-
tas, but only bonorum pqffefio ; thefe words being
very accurately diftinguifhed, though the effect
was in the iffue exactly the fame {a).
{a) As the power of Fathers, at Rome, was unbounded,
and lafted as long as their life, the emancipating of Sons
was a cafe that occurred frequently enough, either for
the fecurity or fatisfadtion, of thole who engaged in any
undertaking with them. The power of Fathers had been
carried fo far by the laws of Romulus, confirmed after-
wards by thofe of the Twelve Tables, that they might fell
their Sons for Haves as often as three times, if, after a
firft or fecond fale, they happened to acquire their liberty:
jt was only after being fold for the third time, and then
OF ENGLAND. 141
In the fame manner, the "Laws of the Twelve
Tables had provided relief only for cafes of
theft; and no mention was made in them of
cafes of goods taken away by force (a deed
which was not looked upon in fo odious a light
at Rome as theft, which was confidered as the
peculiar guilt of flaves.) In procefs of time the
Prastor promifed relief to fuch perfons as might
have their goods taken from them by open
force, and gave them an action for the recoverv
of four times the value, againft thofe who had
committed the fact with an evil intention. Si
cut dolo malo bona rapt a efj'e dlccntur, ei in quadra-
plum Judicium dabo.
Again, neither the Law of the Twelve Ta-
bles, nor the Laws made afterwards in the Af-
femblies of the People, had provided remedies
becoming again free, that Sons could be entirely releafed
from the paternal authority. On this law-do&rine was
founded the peculiar formality and method of emanci-
pating Sons. A pair of fcales, and fome copper coin were
firft brought; without the prefence of thefe ingredient*
the whole bufinefs would have been void ; and the Father
then made a formal fale of his fon to a perfon ap-
pointed to buy him, who was immediately to free, or ma-
numit him : thefe fales and manumiffions were repeated
three times. Five wkneffes were to be prefent, befides a
Man to hold the fcales (Libripens), and another (Antejiatus)
occalionally to remind the witneffes to be attentive to the
bufinefs before them. 8
H2 THE CONSTITUTION
except for very few cafes of fraud. Here th
Prastor likewife interfered in his capacity of
Judge of Equity, though fo very late as the
times of Cicero ; and promifed relief to defraud-
ed perfons, in thofe cafes in which the Laws in
being afforded no action. )u<e dob malo fafla
ejfe dicentur, ft de his rebus alia aftio non erit, &
jujla caufaejjc videbitur, Judicium d a bo (a). By
Edicts of the fame nature, Praetors in procefs
of time gave relief in certain cafes to married
Women, and likewife to Minors (Minoribus xxv
annis fuccurrit Praetor, &x. (b).
(a) At the fame time that the Prxtor proffered a new
Edict, he alfo made public thofe peculiar formulae by which
the execution of the fame was afterwards to be required
from him. The name of that Prsetor who nrfl produced
the Edift above mentioned, was Aquilius, as we are in-
formed by Cieero, in that elegant flory well known to
Scholars, in which he relates the kind of fraud that was
put upon Canius, a Roman Knight, when he purchafed a
pleafure-houfe and gardens, near Syracufe in Sicily,
This account Cicero concludes with obferving that Canius
was left without remedy, '* as Aquilius, his Colleague
" and friend, had not yet published his formulas concern
{l ing fraud." >uid enim facer et ? nondum enim Aquilius \
Collega & familiar is me us, protulerat de dolo malo Jormulas.
Off. III. 14.
(Jo) The Law Colle&ion, or Syftem that was formed
by the feries of Edicts publifhed at different times by
Praetors, was called Ius Pratorium, and alfo Jus Hono-
rarium (not firiftly binding.) The laws of the Twelve
Tables, together with all fuch other Laws as had at any
OF ENGLAND. 143
The Courts of Equity eftablifhed in Eng-
land, have in like manner provided remedies
for a very great number of cafes, or fpecies of
demand, for which the Courts of Common
Law, cramped by their forms and peculiar law
tenets, can afford none. Thus, the Courts of
Equity may, in certain cafes, give actions for
and againit infants, notwithstanding their mi-
nority and for and againit. married Women,
notwithstanding their coverture. Married Wo-
men may even in certain cafes, fue their huf-
bands before a Court of Equity. Executors may
be made to pay interefl for money that lies long
in their hands. Courts of Equity may appoint
Commiffioners to hear the evidence of abfent
witnefTes. When other proofs fail, they may
impofe an oath on either of the Parties; or, in
time been pa/Ted in the Affembly of the People, were
called by way of eminence, Ius Civile. The distinction,
was exactly of the fame nature as that which takes place
:n England, between the Common and Statute Laws,
and the law or practice of the Courts of Equity. The
two branches of the Praetor's judicial office were very ac-
curately diftinguifhed , and there was befides, this capital
difference between the remedies or actions which he gave
in his capacity of Judge of Civil Law, and thofe in his
capacity of Judge of Equity, that the former, being
grounded on the Ius Civile, were perpetual ; the latter
muft be preferred within the year, and were accordingly
called ASliones annua, or ABiones pratori< ; in the fame
manner as the former were called Aiiionei civile;, or
Atliones zretn<t.
U4 THE CONSTITUTION
the like cafe of a failure of proofs, they may
compel a trader to produce his books of trade.
They may alfo confirm a title to land, though
one has loft his writings, &x. &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 pofleiTed by this latter, both of creating
and ifluing Writs. When new complicated
cafes offered, for which a new kind of Writ
was wanted, the Judges of Chancery, finding
that it was necefiary that jnftice mould be done,
and at the fame time being unwilling to make
general and perpetual provifions on the cafes
before them by creating new Writs, command-
ed the appearance of both Parties, in order to
procure as complete information as poiTible in
regard to the circumftances attending the cafe;
and then they gave a decree upon the fame by
way of experiment.
To beginnings and circumftances like thefe
the Englifh Courts of Equity, it is not to be
doubted, owe their prefent exiftence. In our
days, when fuch flrict notions are entertained
concerning the power of Magiftrates and
Judges, it can fcarcely be fuppofed that thofe
Courts, however ufeful, could gain admit-
tance. Nor indeed, even in the times when
they were inftituted, were their proceedings
OF ENGLAND. 145
free from opposition ; and afterwards, fo late as
the reign of Queen Elizabeth, it was adjudged
in the cafe of Collefton and Gardner, that the
killing a Sequeflrator from the Court of Chan-
cery, in the difcharge of his buSinefs, was no
murder, which judgement could only be a-
warded on the ground that the Sequestrator's
commiffion, and confequently the power of
his Employers, were illegal (a). However, the
authority of the Courts of Equity has in pro-
cefs of time become fettled ; one of the con-
flituent branches of the Legislature even re-
ceives at prefent appeals from the decrees paST-
ed in thofe Courts; and I have no doubt that
feveral Acts of the whole Legislature might be
produced, in which the omce of the Courts
f Equity is openly acknowledged.
The kind of procefs that has in time been
eftabliShed in the Court of Chancery, is as fol-
lows. After a petition is received by the Court,
the perfon fued is ferved with a writ of Subpoena,
{a) When Sir Edward Coke was Lord Chief Juftice
of the King's Bench, and Lord Ellefmere Lord Chan-
cellor, during the reign of James I. a very ferious quar-
rel alfo took place between the Courts of Law, and thofe
of Equity, which is mentioned in the fourth Chapter of
the third Book of Judge Blackilone's Commentaries : a
Work in which more might have been faid on the fubjeel
of the Courts of Equitv.
L
146 THE CONSTITUTION
to command his appearance. If he does not
appear, an attachment is iffued againft him;
and if a non inventus is returned, that is, if he is
pot to be found, a proclamation goes forth
againft him; then a commiflion of rebellion is
ifTued for apprehending him, and bringing him
to the Fleet prifon. If the peribn fued {lands
farther in contempt, a Serjeant at arms is to be
fent out to take him; and if he cannot be taken,
a fequeitration of his land may be obtained till
he appears. Such is the power which the Court
of Chanceiy, as a Court of Equity, hath gra-
dually acquired to compel appearance before it.
In regard to the execution of the Decrees it
gives, it feems that Court has not been quite
fp fuccefsful; at leaft, thofe Law-writers whofe
Works I have had an opportunity to fee, hold
it as a maxim, that the Court of Chancery can-
not bind the eftate, but only the peribn ; and
as a confequence, a peribn who refufes to fub-
mit to its decree, is only to be confined to the
Fleet prifon (<?).
{a) The Court of Chancery was very likely the
firft inftituted cf the two Courts oi Equity : as it was
the Hi^heft Court in the Kingdom, it was belt able to
beo-in the eftabliihment of an ofr.ee, or power, which
naturally gave rife at firit to fo many objections. The
Court of Exchequer, we ma) fuppofe, only followed
the example of the Court of Chancery : in order the bet-
ter to fecure the new power it affymsd, it even found i;
O F E N G L A N D. 147
On this occafion I ffiall obferve, that the
authority of the Lord Chancellor, in England,
in his capacity of a Judge of Equity, is much
more narrowly limited than that which the
Praetors in Rome had been able to afllime.
The Roman Praetors, we are to remark, united
in themfelves the double office of deciding
cafes according to the Civil Law (Ius civile),
and to the Praetorian Law, or Law of Equity ;
nor did there exiftany other Court befides their
own, that might ferve as a check upon them :
hence it happened that their proceedings in the
career of Equity, were very arbitrary indeed.
In the firft piace, they did not ufe to make it
any very flrid: rule to adhere to the tenor of
their own Edicts, during the whole year which
their office lafted ; and they affumed a power
of altering them as they thought proper. To
remedy fo capital a defect in the diftribution
of Juftice, a law was paffed fo late as the year
of Rome 687 (not long before Tully's time)
which was called Lex Cornelia, from the name
of C. Cornelius, a Tribune of the People, who
propounded it under the Confulfhip of C. Pifo,
and Man. Glabrio. By this law it was enacted,
neceffary to bring out the whole ftrergth it could mufter
and both the Treasurer and the Chmcellor of the Exche-
(jter fit (or. are fuppofed to fit) in the Court of Exchequer,
when it h formed as a Court oi Equity.
148 THE CONSTITUTION
that Praetors mould in future constantly decree
according to their own Edicts, without altering
any thing in them during the whole year of their
Praetorihip. Some modern Civilians produce
a certain Senatufconfult to the fame erTed:,
which, they fay, had been paffed a hundred
years before ; while others are of opinion that
the fame is not genuine : however, fuppofing
it to be really fo, the pamng of the law we
mention, ihews that it had not been fo well at-
tended to as it ought to have been.
Though the above mentioned arbitrary pro-
ceedings of Praetors were put a flop to, they
flill retained another privilege, equally hurtful ;
which was, that every new Praetor, on his
coming into office, had it in his power to re-
tain only what part he pleafed of the Edicts of
his predecefTors, and to reject the remainder:
from which it followed that the Praetorian
Laws or Edicts, though provided for fo great
a number of important cafes, were really in
rorce for only one year, the time of the du-
ration of a Praetor's office (a). Nor was a re-
(a) Thofe Edicts of their predecefTors in office,
which the new Praetors thought proper to retain, were
called Edicla Tralatitia ; thofe which they themfelves
publifhed (as alio the alterations they made in former on< )
were called Edirta Nova. Prom the above mentioned
OFENGLAND. 149
gulation made to remedy this capital defect
in the Roman Jurifpruderice, before the time
of the Emperor Hadrian ; which is another
remarkable proof of the very great flownefs
with which ufeful public regulations take place
in every Nation. Under the reign of the Em-
peror we mention, the rhoft ufeful Edicts of
former Prsetors were by his order collected, or
rather compiled into one general Edict, which
was thenceforwards to be obferved by all civil
Judges in their decifion, and was accordingly*
called the perpetual Edict (perpetuum Ediclum.)
This Edict, though now loft, foon grew into
great repute ; all the Jurifconfults of thofc
days vied with each other in writing commenta-
ries upon it; and the Emperor himfclf thought it
fo glorious an act of his reign, to have caufed the
fame to be framed, that he conlidered himfelf
on that account as being another Numa (a).
power exercifed by every new Pnetor in turn, their Edicts
were fometimes diftinguifhed by the appellation of Leget
annute, annual laws. See Orat. in Ver. I. 42.
(a) Several other more extenfive law compilations
were framed after the perpetual Edict we mention j
there having been a kind of emulation between the Ro-
man Emperors., in regard to %ie improvement of the
Law. At Lift, under the reign of Juitinian, that cele-
brated Compilation was publilhed, cailed the Code of
Juftiman, which, under different titles, comprifes the Ro-
man Laws, the Edicts of the Prxtors, together with the
* 5 o THE CONSTITUTION
But the Courts of Equity in England,
notwithftanding the extenfive jurifdidtion they
have been able in procefs of time to af-
fume, never fuperfeded the other Courts of
law. Thefe Courts flill continue to exift in
the fame manner as formerly, and have proved
a lafting check on the innovations, and in
general the proceedings of the Courts of E-
quity. And here we may remark the lingular,
and at the fame time effectual, means of ba-
lancing each other's influence, reciprocally pof-
fefTed by the Courts of the two different fpecies.
By means of its exclufive privilege both of
creating and iffuing writs, the Court of Chan-
cery has been able to hinder the Courts of
Common Law from arrogating to themfelves
the cognizance of thofe new cafes which were
not provided for by any law in being, and thus
dangeroufly uniting in themfelves the power of
judges of Equity with that of Judges of Com-
mon Law. On the other hand, the Courts of
refcripts of the Emperors ; and an equal fanclion was
giver, to the whole. This was an event of much the
lame nature as that which will take place in England,
whenever a coalition fhall be effected between the Courts
of Common Law, and thofe of Equity, and both fhall
thenceforwards be bound alike to frame their judgments
from the whole mafs of decided cafes and precedents then
exifting, at leaft of fuch as it will be poflibie to bring
confidently together into one compilation.
OF ENGLAND. 151
Common Law are alone inverted with the
power of punifhing (or allowing damages for)
thofe cafes of violence by which the proceed-
ings of the Courts of Equity might be oppofed;
and by that means they have been able to ob-
flruct the enterprizes of the latter, and prevent
their effecting in themfelves the like dangerous
union of the two offices of Judges of Common
Law, and of Equity.
Owing to the fituation of the Englifh Courts
of Equity, with refpect to the Courts of Com-
mon Law, thofe Courts have really been kept
within limits that may be called exactly de-
lined, if the nature of their functions be con-
fidered. In the firft place, they can neither
touch Acts of Parliament, rtor the eftablifhed
practice of the other Courts, much lefs re-
verfe the judgments already pafTed in thefe
latter, as the Roman Prsetors fometimes ufed
to do in regard to the decifions of their prede-
ceffors in office, and fometimes alfo in regard
to their own. The Courts of Equity are even
retrained from taking cognizance of any cafe
for which the other Courts can poffibly afford
remedies. Nay, fo ftrenuoufly have the Courts
of Common Law defended the verge of their
frontier, that they have prevented the Court3
of Equity from uling in their proceedings the
L4
*5* THE CONSTITUTION
mode of Trial by a Jury ; fo that, when in a cafe
already begun to be taken cognizance of by
the Court of Chancery, the Parties happen to
join ifiue on any particular fact (the truth or
falfehood of which a Jury is to determine), the
Court of Chancery is obliged to deliver up the
caufe to the Court of King's Bench, there to
be finally decided (a). In fine, the example of
the regularity of the proceedings, pracYifed in
the Courts of Common Law, has been com-
municated to the Courts of Equity ; and Rolls
or Records are carefully kept of the pleadings,
determinations, and ads of thofe Courts, to
ferve as rules for future deciiions (b.)
So far therefore from having it in his power
i to temper and moderate," (that is, to alter)
the Written Law or Statutes, a Judge of Equity
we find, cannot alter the Unwritten Law, that
is to fay, the eflabliihed practice of the other
Courts, and the judgments grounded there-
upon, nor even can he meddle with thofe
cafes for which either the Written or Unwritten
Law have already made general provifions, and
(a) See Cunningham's and Jacob's Law Dictionaries,
fajfim.
(b) The Mafter of the Rolls is the Keeper of thofe
records, as the title of this office exprefies. His office
in the Court of Chancery is of great importance, as
he can hear and determine caufes in the abfence of the
Lord Chancellor.
OF ENGLAND. 153
of which there is a poflibility for the ordinary-
Courts of Law to take cognizance.
From all the above obfervations it follows,
that, of the Courts of Equity as eftablifhed in
England, the following definition may be gi-
ven, which i9, that they are a kind of inferior
experimental Legislature, continually employed
in finding out and providing law remedies for
thofe new fpecies of cafes for which neither
the Courts of Common Law, nor the Legif-
lature, have as yet found it convenient or prac-
ticable to eftablifh any. In doing which, they
are to forbear to interfere with fuch cafes as
they find already in general provided for. A
Judge of Equity is alfo to adhere in his deci-
sions, to the fyftem of decrees formerly pafled
in his own Court, regular records of which are
kept for that purpofe.
From this latter circumftance it again fol-
lows, that a Judge of Equity, by the very
exercife he makes of his power, is continually
abridging the arbitrary part of it; as every
new cafe he determines, every precedent he
eftablifhes, becomes a land-mark or boundary
which both he and his fuccefibrs in office are
afterwards expected to regard.
Here it may be added as a conclufion,
that appeals from the Decrees panned in the
Courts of Equity are carried to the Houfe of
6
x 54 THE CONSTITUTION
Peers; which bare circumflance might fuggeit
that a Judge of Equity is fubjedted to certain
pofitive rules, befides thofe 6< of nature and con-
" fcience only;" an appeal being naturally
grounded on a fuppontion that fome rules of
that kind were neglected.
The above difcuffion on the Englifh Law,
has proved much longer than I intended at firft;
fo much as to have fvvelled, I find, into two
new additional Chapters. However, I confefs
I have been under the greater temptation to
treat at fome length the fubject of the Courts
of Equity, as I have found the error (which
may be called a confhcutional one) concerning
the arbitrary office of thofe Courts, to be coun-
tenanced by the apparent authority of Lawyers,
and of Men of abilities, at the fame time that
I have not feen in any book any attempt made
profeffedly to confute the fame, nor indeed to
point out the nature and true office of the
Courts of Equity.
CHAPTER XII.
Of Criminal Juflke.
WE are now to treat of an article, which,
though it does not in England, and
indeed fhould not in any State, make part of
the powers which are properly Conflitutional>
OF ENGLAND. 155
that is, of the reciprocal rights by means of
which the Powers that concur to form the Go-
vernment conftantly balance each other, yet
eiTentially interefts the fecurity of individuals,
and, in the ifFue, the Conftitution itfelf; I
mean to fpeak of Criminal Juftice. But, pre-
vious to an expofition of the laws of England
on this head, it is neceffary to defire the Rea-
der's attention to certain confiderations.
When a Nation entrufts the power of the
State to a certain number of perfons, or to one,
it is with a view to two points : the one, to re-
pel more effectually foreign attacks; the other,
to maintain domeftic tranquility.
To accomplifh the former point, each indi-
vidual furrenders a fhare of his property, and
fometimes, to a certain degree, even of his
liberty. But, though the power of thofe who
are the Heads of the State may thereby be ren-
dered very considerable, yet it cannot be faid,
that liberty is, after all, in any high degree en-
dangered: becaufe mould ever the Executive
Power turn againft the Nation a ilrength which
ought to be employed folely for its defence,
this Nation, if it were really free, by which I
mean, unreftrained by political prejudices,
would be at no lofs for providing the means of
its fecurity.
124 THE CONSTITUTION
In regard to the latter object, that is, the
maintenance of domeftic tranquillity, every in-
dividual muft, exclufive of new renunciations
of his natural liberty, moreover furrender, which
is a matter of far more dangerous confequence,
a part of his perfonal fecurity.
The Legiflative power, being, from the nature
of human affairs, placed in the alternative,
either of expofing individuals to dangers which
it is at the fame time able extremely to diminifh,
or of delivering up the State to the boundlefs
calamities of violence and anarchy, finds itfelf
compelled to reduce all its members within
reach of the arm of the public Power, and, by
withdrawing in fuch cafes the benefit of the
Social ftrength, to leave them expofed, bare,
and defencelefs, to the exertion of the compara-
tively immenfe power of the Executors of the
laws.
Nor is this all ; for, inflead of that power-
ful re-a&ion which the public authority ought
in the former cafe to experience, here it muft
find none ; and the law is obliged to profcribe
even the attempt of refinance. It is there-
fore in regulating fo dangerous a power, and
in guarding left it fhould deviate from the real
end of its inftitution, that legiflation ought to
exhauft all its efforts.
OF ENGLAND. 157
But here it is of great importance to obferve,
that the more powers a Nation has referved to
itielf, and the more it limits the authority of
the Executors of the laws, the more induftri-
oufly ought its precautions to be multiplied.
In a State where, from aferiesof events, the
will of the Prince has at length attained to hold
the place of law, he fpreads an univerfal oppref-
fion, arbitrary and unrefifted ; even complaint
is dumb ; and the individual, undiftinguifhable
by him, finds a kind of fafety in his own insigni-
ficance. With refpedf. to the few who furround
him, as they are at the fame time the inftruments
of his greatnefs, they have nothing to dread but
momentary caprices ; a danger againft which,
if there prevails a certain general mildnefs of
manners, they are in a great meafure fecured.
But in a State where the Minifters of the laws
meet with obftacles at every ftep, even their
ftrongeft paffions are continually put in motion;
and that portion of public authority, depofited
with them to be the inftrument of national tran-
quillity, eafily becomes a moil formidable wea-
pon.
Let us begin with the moil favourable fuppo-
fnion, and imagine a Prince whofe intentions
are in every cafe thoroughly upright, let us
even fuppofe that he never lends an ear to the
i 5 S THE CONSTITUTION
fuggeftions of thofe vvbofe intereft it is to deceive
him: neverthelefs, he will be fubjeet to error:
and this error, which, I will farther allow, folely
proceeds from his attachment to the public
welfare, yet may very pombly happen to prompt
him to act as if his views were directly oppoiite.
When opportunities lhall offer (and many
fuch will occur) of procuring a public advan-
tage by overleaping reftraints, confident in the
uprightnefs of his intentions, and being natu-
rally not very earned to difcover the diftant evil
confequences of actions in which, from his very
virtue, he feels a kind of complacency, he will
not perceive, that, in aiming at a momentary
advantage, he flrikes at the laws themfelves on
which the fafety of the Nation refts, and that
thofe acts, fo laudable when we only confider
the motive of them, make a breach at which
tyranny will one day enter.
Yet farther, he will not even underfland
the complaints that will be made againfl him.
To infill: upon them will appear to him to the
laii degree injurious : pride, when perhaps he
is leaft aware of it, will enter the lifts; what he
began with calmnefs, he will profecute with
warmth; and if the laws fhall not have taken
every polTible precaution, he may think he is
acting a very honeft part, while he treats as
OFENGLAND. 159
enemies of the State, Men whofe only crime
will be that of being more fagacious than him-
felf, or of being in a better fituation for judg-
ing of the refuits of meafures.
But it were mightily to exalt human nature,
to think that this cafe of a Prince who never
aims at augmenting his power, may in any
fhape be expected frequently tp occur. Expe-
rience, on the contrary, evinces that the happiefl
difpofitions are not proof againft the allure-
ments of power, which has no charms but as it
leads on to new advances; authority endures not
the very idea of reftraint; nor does it ceafe to
ftruggle till it has beaten down every boundary.
Openly to level every barrier, at once to
aflume the abfolute Matter, are, as we faid be-
fore, fruitlefs tafks. But it is here to be re-
membered, that "thofe powers of the People
which are referved as a check upon the Sove-
reign, can only be effectual ib far as they are
brought into action by private individuals.
Sometimes a Citizen, by the force and perfe-
verance of his complaints, opens the eyes of the
Nation; at other times, fome member of the
Legiflature propofes a law for the removal of
fome public abufe : thefe, therefore, will be the
perfons againft whom the Prince will direct all
his efforts (a).
[a) By the word Prince, I mean shofe who. under
i6o THE CONSTITUTION
And he will the more aifuredly do fo, as, from
the error fo ufual among Men in power, he will
think that the oppofition he meets with, how-
ever general, wholly depends on the activity of
but one or two leaders ; and amidft the calcula-
tions he will make, both of the fuppofed fmall-
nefs of the obftacle which offers to his view, and
of the decifive confequence of the fingle blow he
thinks he needs to flrike, he will be urged on by
the defpair of ambition on the point of being
baffled, and by the moft violent of all hatreds,
that which was preceded by contempt.
In that cafe which I am ftill confidering, of
a really free Nation, the Sovereign muft be
very careful that military violence do not
make the fmalleft part of his plan : a breach of
the focial compact like this added to the hor-
ror of the expedient, would infallibly endanger
his whole authority. But, on the other hand,
as he was reiblved to fucceed, he will in de-
fect of other refources, try the utmoft extent
of the legal powers which the Constitution has
intruded with him ; and if the laws have
not in a manner provided for every poffible
cafe, he will avail himfelf of the imperfect
precautions themfelves that have been taken,
as a cover to his tyrannical proceedings ; he
whatever appellation and in whatever Government it may
be, are at the head of public affairs.
OF ENGLAND, 161
will purfue fteadily his particular object, while
his profeflions breathe nothing but the general
welfare, and deftroy the affertors of the laws,
under the very fhelter of the forms contrived
for their fecurity (#).
This is not all ; independently of the im-
mediate mifchief he may do, If the Legiflature
do not interpofe in time, the blows will reach
the Conftitution itfelf ; and the confternation
becoming general amongft the People, each
individual will find himfelf enflaved in a State
which yet may ftill exhibit all the common ap-
pearances of liberty.
Not only, therefore, the fafety of the indi-
vidual, but that of the Nation itfelf, requires the
utmoft precautions in the eftablifhmeut of that
neceffary, but 1 formidable, prerogative of dif-
penfkg punifhments. The firfl to be taken,
even without which it is impoflible to avoid the
dangers above fuggefted, is, that it never be
left at the difpofal, nor, if it be poflible, expofed
to the influence of the Man who is the deposi-
tary of the public power.
(a) If the:.- wrc any perfon who charged me with
calumniating human Natire, for it is her alone I am ac-
cufi-g here, 1 would tiefue him to call his eyes on the
Hiitory of a Lewis XI. of a Richelieu, and, above all,
on cnat of England before the Revolution; he w li
fee the ::rt^ ana aCtivit of Government increafe, in pro-
j . "t:c-:. a^ it gradually loll its means of oppreiuon.
M
i6z THE CONSTITUTION
The next indifpenfable precaution is, that
neither ftiall this power be veiled in the legif-
lative Body; and this precaution, fo neceflfary
alike under every mode of Government, be-
comes doubly fo, when only a fmall part of the
Nation has a mare in the legiflative power.
If the judicial authority were lodged in the
legiflative part of the People, not only the great
inconvenience mufl enfue of its thus becoming
independent, but alfo that worfl of evils, the
fuppreffion of the fole circumflance that can
well identify this part of the Nation with the
whole, which is, a common fubjedtion to the
rules which they themfelves prefer ibe. The
legiflative Body, which could not, without ruin
to itfclf, eftabliih, openly and by diredt laws,
diflinctions in favour of its Members, would
introduce them by its judgments; and the Peo-
ple, in electing Reprefentatives, would give
themfelves Mailers.
The judicial power ought therefore abfolutely
to refide in a fubordinate and dependent body;
dependent, not in its particular atls, with re-
gard to which it ought to be a fancluary, but
in its rules and in its forms, which the legifla-
tive authority mufl prefcribe. Plow is this
body to be compofed ? In this vefpect farther
precautions mufl: be taken.
In a State where the Prince is abfolute
O F E N G L A N D. 163
Mafter, numerous Bodies of Judges are moft
convenient, inafmuch as they retrain, in a
confiderable degree, that refpedt of Perfons
which is one inevitable attendant on that mode
of Government. Befides, thofe bodies, what-
ever their outward privileges may be, being at
bottom in a flate of great weaknefs, have no
other means of acquiring the refpecl: of the
people than their integrity, and their conftancy
in obferving certain rules and forms: nay,
thefe circumftances united, in fome degree over-
awe the Sovereign himfelf, and difcourage the
thoughts he might entertain of making them
the tools of his caprices {a).
But, in an effectually limited Monarchy,
that is, where the Prince is underftood to be,
and in fact is, fubject to the laws, numerous
{a) The above obfervations are in a great meafure
meant to allude to the French Parlemens, and particu-
larly that of Paris, which forms fuch a confiderable
Body as to have been once fummoned as a fourth Oder
to the General filiates of the kingdom. The weight of
that body, increafed by the circumftance of the Members
holding their places for life, has in general been attended,
with the advantage juft mentioned, of placing them above
being over-awed by private individuals in the adminiltra-
tion either of civil or criminal Juftice ; it has even ren-
dered them fo difficult to be managed by the Court, that
the Miniilers have been at times obliged to appoint par-
ticular Judges, or Gmmijj'arier, to try fuch Men as they
refolved to ruin-
Ma
i6 4 THE CONSTITUTION
Bodies of Judicature would b repugnant to
the fpirit of the Conftitution, which requires
that all powers in the State mould be as much
confined as the end of their inftitution can al-
low ; not to add, that in the vicifiitucles incident
to fuch a State, they might exert a very danger-
ous influence.
Befides, that awe which is naturally infpired
by fuch Bodies, and is fo ufeful when it is ne-
ceflary to ftrengthen the feeblenefs of the laws,
would not only be fupcrfluous in a State where
the whole power of the Nation is on their fide,
but would moreover have the mifchievous ten-
dency to introduce another fort of fear than
that which Men muft be taught to entertain.
Thofe mighty Tribunals, I am willing to fup-
pofe, would prefei ve, in all fituations of affairs,
that integrity which diftinguifhes them in
States of a different Conftitution ; they would
never inquire after the influence, (till lefs the
political fentiments, of thole whofe fate they
Thefe, however, are only local advantages, and. re-
lative to the natuve of the French Government, which
is an uncontrouled Monarchy, with confiderable remain;.
of Ariftocracy. But in a f:ee State, fuch a powerful
Body of Men, veiled vv'th the power of deciding on the
life, honour, and property, of the Citizens, would, as
will be prefently {hewn, be productive of very dangerous
political confequences ; and the more fo, if fuch Judges
had, as is the cafe all over the world, except here, the
power of deciding upon the matter of law, and the
matter of fact.
O F E N G L A N D. 16$
were called' to decide ; but thefe advantages
not being founded in the neceflity of things,
and the power of fuch Judges feeming to ex-
empt them from being fo very virtuous, Men
would be in danger of taking up the fatal
opinion, that the fimple exadt obiervance of
the laws is not the only tafk of prudence : the
Citizen called upon to defend, in the fphere
where fortune has placed him, his own rights,
and thofe of the Nation itfelf, would dread the
confequence of even a lawful conduct, and
though encouraged by the law, might de-
fert himfelf when he came to behold its Mini-
nifters.
In the afTembly of thofe who fit as his Judges,
the Citizen might poflibly defcry no enemies :
but neither would he fee any Man whom a fimi-
larity of circumilances might engage to take a
concern in his fate : and their rank, efpecially
when joined with their numbers, would appear
to him, to lift them above that which over-awes
injuftice, where the law has been unable to fe-
cure any other check, I mean the reproaches of
the Public.
And thefe his fears would be confiderably
heightened, if, by the admiffion of the Jurif-
prudence received among certain Nations, he
beheld thofe Tribunals, already fo formidable,
M q
i66 THE CONSTITUTION
wrap themfelves up in myftery, and be made,
as it were inacceffible (a).
He could not think, without difmay, of
thofe vait prifons within which he is one day
perhaps to be immured of thofe proceed-
ings, unknown to him, through which he is
to pafs of that total feclufion from the fociety
of other Men nor of thofe long and fecret
examinations, in which, abandoned wholly
to himfelf, he will have nothing but a paflive
defence to oppofe to the artfully varied quef-
tions of Men, whofe intentions he mall at lead
{a) An allufion is made here to the fecrecy with
which the proceedings, in the adminiftration of criminal
Juflice, are to be carried on, according to the rules of the
civil law, which in that refpett are adopted over all Eu
rope. As foon as the prifoner is committed, he is de-
barred of the fight of every body, till he has gone through
his feveral examinations. One or two Judges are ap-
pointed to examine him, with a Clerk to take his an-
fwers in writing : and he (lands alone before them in
feme private room in the prifon. The witneffes are to
be examined a part, and he is not admitted to fee thenj
till their evidence is clofed : they are then confronted to-
gether before a;: the Judges, to the end that the witneffes
may fee if the p:ifoner is really the Man they meant
in giving their refpective evidences, and that the pri-
foner may objecT. to fuch of them as he mall think pro-
per. This done, the depositions of thofe witneffes who
are adjudged u; on trial to be exceptionable, are fet afide :
the depofuiono of the others are to be laid before the
judges, as well as the anfwers of the prifoner, who has
O F E N G L A N D. 167
miftruft, and in which his fpirits, broken down
by folitude, fhall receive no fupport, either from
the counfels of his friends^or the looks of thofe
who mall offer up vows for his deliverance.
The fecurity of the individual, and the eon-
fcioufnefs of that fecurity, being then equally
effential to the enjoyment of liberty, and ne-
ceflary for the prefervation of it, thefe two
points mufl never be left out of fight, in the
eitablifhment of a judicial power; and I con-
ceive that they neceffarily lead to the following'
maxims.
been previoufly called upon to confirm or deny them in
their prefence ; and a copy of the whole is delivered to
him, that he may, with the afliftance of a Counfel, which
is now granted him, prepare for his juftification. The
Judges are, as has been faid before, to decide both upon
the matter of law and the matter of fact, as well as upon
all incidents that may arife during the courfe of the pro-
ceedings, fuch as admitting witneffes to be heard in
behalf of the prifoner, &c.
This mode of criminal Judicature may be ufeful as
to the bare difcovering of truth, a thing which I do not
propofe to difcufs here ; but, at the fame time, a pri-
foner is fo completely delivered up into the hands of
the Judges, who even can detain him almoft at pleafure
by multiplying or delaying his examinations, that, when-
ever it is adopted., Men are almoft as much afraid of
being accufed, as of being guilty, and eipecially grow
very cautious how they interfere in public matters. We
fhall fee prefently how the Trial by Jury, peculiar to the
Englifh Nation, is admiraWy adapted to the nature of a
free State.
M 4
168 THE CONSTITUTION
In the firft place I fhall remind the reader of
what has been laid down above, that the judicial
authority ought never to refide in an independent
Body; Hill lefs in him who is already the truftee
of the executive power.
Secondly, the party accufed ought to be pro-
vided with every pofflble means of defence.
Above all things, the whole proceedings ought
to be public. The Courts, and their different
forms, muft be fuch as to infpire refpedt, but
never terror ; and the cafes ought to be fo ac-
curately afcertained, the limits fo clearly mark-
ed, as that neither the executive power, nor
the Judges, may ever hope to tranfgrefs them
with impunity.
In fine, fince we mull abfolutely pay a price
for the advantage of living in fociety, not only
by relincjuifhing fome fhare of our natural li-
berty (a furrender which, in a wifely framed Go-
vernment, a wife Man will make without re-
luctance) but even alfo by rcfigning part of even
our pcrfonal fecurity, in a word, fince all judi-
cial power is an evil, though a neceflary one, no
care fhould be omitted to reduce as far as
poflible the dangers of it.
And as there is however a period at which
the prudence of Man muft flop, at which the
fafety of the individual muft be given up, and
OF ENGLAND. i6 9
the law is to refign him over to the judg-
ment of a few perfons, that is, to fpeak plainly,
to a decifion in fome fenfe arbitrary, it is
neceffary that this law mould narrow as far as
poffible this fphere of peril, and fo order mat-
ters, that when the fubject mail happen to be
fummoned to the decifion of his fate by the fal-
lible conicience of a few of his fellow-creatures,
he may always find in them advocates, and
never adverfaries.
CHAP. XIII.
The Subjeft continued.
AFTER having offered to the reader, in
the preceding Chapter, fuch general
confiderations as I thought neceffary, in order
to convey a jufter idea of the fpirit of the cri-
minal Judicature in England, and of the ad-
vantages peculiar to it, I now proceed to ex-
hibit the particulars.
When a perfon is charged with a crime, the
Magiftrate, who is called in England a Jujlice
of the Peace, iffues a warrant to apprehend
him ; but this warrant can be no more than an
order for bringing the party before him : he
muft then hear him, and take down in writ-
170 THE CONSTITUTION
ing his anfwers, together with the different
informations. If it appears on this exami-
nation, either that the crime laid to the charge
of the perfon who is brought before the Juftice,
was not committed, or that there is no juft
ground to fufpect him of it, he muft be fet
abfolutely at liberty; if the contrary refults
from the examination, the party accufed muft
give bail for his appearance to anfwer to the
charge; ufelefs in capital cafes, for then he
muft, for fafer cuftody, be really committed
to prifon, in order t?o take his trial at the next
Seftions.
But this precaution of requiring the exami-
nation of an accufed perfon, previous to his
imprifonment, is not the only care which the
law has taken in his behalf; it has farther
ordained that the accufation againft him
mould be again difculTed, before he can be
expofed to the danger of a trial. At every
feftion the Sheriff appoints what is called the
Gra,ui Jury. This Affembly muft be com-
pofed of more than twelve Men, and lefs
than twenty-four; and is always formed out
of the mod confidcrable perfons in the County.
Its function is to examine the evidence that
has been given in fupport of every charge :
if twJve of thofe perfons do not concur ia
OF ENGLAND, 171
the opinion that an accufation is well grounded,
the party is immediately difcharged; if, on
the contrary, twelve of the grand Jury find the
proofs fufficient, the prifoner is faid to be in-
dicted, and is detained in order to go through
the remaining proceedings.
On the day appointed for his Trial, the
prifoner is brought to the bar of the Court,
where the Judge, after cauling the bill of in-
dictment to be read in his prefence, muft afk
him how he would be tried : to which the pri-
foner anfwers, by God and my Country, by which
he is underftood to claim to be tried by a Jury,
and to have all the judicial means of defence to
which the law intitles him. The Sheriff then
appoints what is called the Petty Jury: this
mull be compofed of twelve Men, chofen out
of the county where the crime was committed,
and poiTeffed of a landed income of ten pounds
by the year : their declaration finally decides on
the truth or falfhood of the accufation.
As the fate of the prifoner thus entirely de-
pends on the Men who compofe this Jury,
Juftice requires that he mould have a fhare in
the choice of them; and this he has through
the extenfive right which the law has granted
him, of challenging, or objecting to, fuch of
them as he may think exceptionable.
172 THE CONSTITUTION
Thefe challenges are of two kinds. The
firft, which is called the challenge to the array y
has for its object to have the whole pannel fet
afide : it is propofed by the prifoncr when he
thinks that the Sheriff who formed the pannel
is not indifferent in the caufe ; for inftance, if
he thinks he has an intereft in the profecution,
that he is related to the profecutor, or in gene-
ral to the party who pretends to be injured.
The feeond kind of challenges are called,
to the Polls (in capita): they are exceptions
propofed againft the Jurors, feverally, and are
reduced to four heads by Sir Edward Coke.
That which he calls proper honoris refpeclum,
may be propofed againft a Lord impannelled
on a jury ; or he might challenge himfelf.
That propter defectum takes place when a Ju-
ror is legally incapable of ferving that office,
as, if he was an alien ; if he had not an eflate
Sufficient to qualify him, &c. That propter
delictum has for its object to fet afide any Ju-
ror convicted of fuch crime or mifdemeanor as
renders him infamous, as felony, perjury, &c.
That propter affectum is propofed againft a Ju-
ror who has an intereft in the conviction of
the prifoner : he, for inftance, who has an
action depending between him and the pri-
foner ; he who is of kin to the profecutor, or
O F E N G L A N D. 173
his counfcl, attorney, or of the fame fociety
or corporation with him, he. (a).
In fine, in order to relieve even the imagina-
tion of the prifoner, the law allows him, in-
dependently of the feveral challenges above
mentioned, to challenge peremptorily, that is
to fay, without fhewing any caufe, twenty Ju-
rors fucceffively ().
When at length the Jury is formed, and
they have taken their oath, the indictment is
opened, and the profecutor produces the
proofs of his accufation. But, unlike to the
rules of the Civil Law, the witnefTes deliver
their evidence in the prefence of the prifoner :
the latter may put queftions to them ; he may
alfo produce witnefies in his behalf, and have
them examined upon oath. Laftly, he is al-
lowed to have a Counfel to afHft him, no:
only in the difcumon of any point of law
which may be complicated with the fact, but
alfo in the investigation of the fact itfelf, and
(a) When a prifoner is an alien, one half of the
Jurors mull alfo be aliens ; a Jury thus formed is called
a Jury de medietate lingua.
(h) When thefe feveral challenges reduce too much
the 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 Tales, from thofe words of the writ, decern
or o3e tales.
i 7 4 THE CONSTITUTION
who points out to him the queftions he ought
to afk, or even alks them for him (a).
Such are the precautions which the law has
devifed for cafes of common profecutions ; but
in thofe for High Treafon, and for mifprifion
of treafon, that is to fay, for a confpiracy againft
the life of the King, or againft the State, and
for a concealment of it (), accufations which
fuppofe a heat of party and powerful accufers,
the law has provided for the accufed party far-
ther fafe-guards.
Firft, no pcrfon can be queftioned .for any
treafon, except a direct. attempt on the life of
the King, after three years elapfed fince the of-
fence. 2. The accufed party may, indepen-
dently of his other legal grounds of challeng-
ing, peremptorily challenge thirty-five Jurors.
3. He may have two Counfel to amft him
through the whole courfe of the proceedings.
4. That his witnefles may not be kept away,
the Judges mufl grant him the fame compul-
five procefs to bring them in, which they if-
fue to compel the evidences againft him.
5. A copy of his indictment mufl be delivered
(a) This laft article, however, is not eftabliftied by law,
except in cafes of treafon ; it is done only through cuftom
aind the indulgence of the Judges,
{b) The penalty of a mifprifion of treafon i. e , the for-
feiture of all goods, and imprifonment for life.
O F E N G L A N D. 175
to him ten days at lead before the trial, in
prefence of two witneffes, and at the expence
of five millings; which copy muft contain all
the facts laid to his charge, the names, profef-
fions, and abodes, of the Jurors who are to be
on the pannel, and of all the witneffes who are
intended to be produced againfi him (a).
When, either in cafes of high treafon, or of
inferior crimes, the profecutor and the prifoner
have clofed their evidence, and the witneffes
have anfwered to the refpective queftions both
of the Bench, and of the Jurors, one of the
Judges makes a fpeech, in which he funis up
the facts which have been advanced on both
fides. He points out to the Jury what more
precifely conftitutes the hinge of the quellion
before them; and he gives them his opinion
both with regard to the evidences that have
been given, and to the point of law which is to
guide them in their decifion. This done, the
Jury withdraw into an adjoining room, where
they muft remain without eating and drinking,
and without fire, till thev have agreed unani-
moufiy among themfelves, unlefs the Court
give a permiffion to the contrary. Their decla-
(a) Stat. 7 Will. III. c, 3. and 7 Ann. c. 21. Ths
latter was to be in force on!v after the tieath of the late
Pretender.
176 THE CONSTITUTION
ration or verdict Queredittum) muft (unlefs they
choofe to give a fpecial verdict) pronounce ex-
prefsly, either that the prifoner is guilty, or that
he is not guilty, of the fact laid to his charge.
Laftly, the fundamental maxim of this mode of
proceeding, is, that the Jury muft be unanimous.
And as the main object of the inflitution
of the Trial by a Jury, is to guard accufed
perfons againft all decifions whatfoever by
Men invefted with any permanent official au-
thority (a), it is not only a fettled principle
that the opinion which the Judge delivers
has no weight but fuch as the Jury choofe
to give it; but their verdict muft befides com-
prehend the whole matter in trial, and decide
as well upon the fact, as upon the point of
law that may arife out of it : in other words,
they muft pronounce both on the commimon
of a certain fact, and on the reafon which makes
fush fact to be contrary to law ().
{a) " Laws, 1 ' as Junius fays extremely well, " are
'* intended, not to truft to what Men will do, but to
" guard againft what they may do."
(b) Unlefs they choofe to give a /pedal ve-dil.
When the Jury," fays Coke, doubt of the law and
* intend to do that which is jnft, thty find the fpedul
,r matter, and the entry is, Et fuftr iota materia fetimt
** difentionem 'Jujliaariorum" Inft. iv. p. 41. Thefe
wo-ds of Coke, we may obferve, confirm beyond a
doubt the power of the Jury to determine on the
OF ENGLAND. 177
This is even fo effential a point, that a bill of
indictment mult exprefsly be grounded upon
thofe two objects. Thus, an indictment for
treafon muft charge, that the alledged fails were
committed with a treafonable intent (proditorie.)
An indictment for murder muft exprefs, that
the fact has been committed with malice prepenfe,
or aforethought. An indictment for robbery
muft charge, that the things were taken with an
intention to rob,- (amnio fur an di), &c. &c. (V).
Juries are even fo uncontrolable in their
verdict, fo apprehenfive has the Constitution
been left precautious to reftrain them in the
exercife of their functions, however fpecious in
the beginning, might in the iffue be converted
whole matter in trial : a power which in all conliitu'"
fional views is neceffary ; and the more fo, fince a pri-
foner cannot in England challenge the Juige, as he can
under the Civil Law, and for the fame caufe as he can
a witnefs.
(a) The principle that a Jury is to decide both on the
fat and the criminality of it., is fo well understood, that
if a verdicl were fo framed as only to have for its objecT:
the bare exiltence of the fa'tt laid to the charge of the
prifoner, no punifhment could be awarded by the Judge
in confequence of it. Thus, in the profecution of Wood -
fall, for printing Junius's letter to the King, the Jury
brought in the following verdicl, guilty of printing and
fuhlifhing, only ; the confequence of which was the dis-
charge of the prifoner.
N
178 THE CONSTITUTION
to the very deftruction of the ends of that
inflitution, that it is a repeated principle that
a Juror, in delivering his opinion, is to have
no other rule but his opinion itfelf, that is to
fay, no other rule than the belief which refults
to his mind from the facets alledged on both
fides, from their probability,, from the credi-
bility of the witnefles, and even from all fuck
circumflances as he may have a private know-
ledge of. Lord Chief Juftice Hale expreffes
himfelf on this fubjedt, in the following terms,
in his Hiilory of the Common Law of England,
chap. 12. n.
" In this recefs of the Jury, they are to
" confider their evidence, to weigh the credi-
" bility of the witneffes, and the force and
"efficacy of their teftimonies; wherein (as I
,f before faid) they are not precifcly bound to
" the rules of the Civil Law, viz. to have
" two witneffes to prove every fact, unlefs it
" be in cafes of treafon, nor to reject one
" witnefs becaufe he is fingle, or always to
" believe two witnefles, if the probability
" of the facl: does upon other circumftances
ct reafonably encounter them; for the Trial
is not here limply by witneffes, but by
" Jury: nay, it may fo fall out, that a Jury
" upon their own knowledge may know a
OFENGLAND. 179
kt thing to be falfe that a witnefs fwore to be
tc true, or may know a witnefs to be ineompe-
" tent or incredible, though nothing be object -
" ed againft him and may give their verdict
" accordingly (a)"
If the verdict pronounces Hot guilty, the
prifoner is fet at liberty, and cannot, on any
pretence, be tried again for the fame offence.
If the verdict declares him guilty, then, and not
till then, the Judge enters upon his function
as a Judgej and pronounces the punifhment
which the law appoints (b). But, even in this
cafe, he is not to judge according to his own
(a) The fame principles and forms are obferved in civil
matters ; only peremptory challenges are not allowed.
(b) When the party accafed is one of the Lords tem-
poral, he likewife enjoys the univerfal privilege of being
judged by his Peers ; though the Trial then differs in
feveral refpetts. In the firft place, as to the number of
the Jurors : all the Peers are to perform the function of
fuch, and they mufl be fummoned at leait twenty days
beforehand. II. When the Trial takes place during the
feffion, it is faid to be in the High Court of Parliament ;
and the Peers officiate at once as Jurors and Judges :
when the Parliament is not fitting, the Trial is faid to be
in the Court of the High Steward of England; an office
which is not ufually in being, but is revived on thofe
occafions ; and the High Steward performs the office of
Judge. III. In either of thefe cafes, unanimity is not
required; and the majority, which muft confift of twelve
perfons at leaft, is to decide.
N2
i8o THE CONSTITUTION
difcretion only; he mufl ftridly adhere to the
letter of the law ; no conftrudtive extenfion can
be admitted ; and however criminal a fad: might
in itfelf be, it would pafs unpunifhed if it were
found not to be politively comprehended in
fome one of the cafes provided for by the law.
The evil that may arife from the impunity of a
crime, that is, an evil which a new law may in-
ftantly flop, has not by the Englifh laws been
confidered as of magnitude fufficient to be put
in comparifon with the danger of breaking
through a barrier on which fo mightily depends
the lafety of the individual (#).
To all thefe precautions taken by the law
for the fafety of the Subject, one circumflance
inuft be added, which indeed would alone juf-
tify the partiality of the Englifh Lawyers to
their laws in preference to the Civil Law, I
mean the abfolute rejection they have made of
(a) I (hall give here an inftance of the fcruple with
which the Englilh Judges proceed upon occafions of this
kind. Sir Henry Ferrers having been arretted by virtue of
a warrant, in which he was termed a Knigbt, though he
was a Baronet, Nightingale his fervant took his part,
and killed the Officer ; but it was decided, that as the
Warrant " was an ill Warrant, the killing an Officer in
" executing that Warrant, cannot be murder, becaufe no
" good Warrant: wherefore he was found not guilty of
" the murder and manflaughter." See Croke's Rep. P.
HI. P. 3/i. 7
OF ENGLAND. 181
torture (a). Without repeating here what has
been faid on this fubjed: by the admirable Au-
thor of the Treatife on Crimes and Punfjhments,
I fhall only obferve, that the torture, in itfelf
fo horrible an expedient, would, more efpe-
cially in a free State, be attended with the moil
fatal confequences. It was abfolutely neceiTary
to preclude, by rejecting it, all attempts to make
the purfuit of guilt an inftrument of vengeance
againft the innocent. Even the convicted crimi-
nal mult be fpared, and a practice at all rates
exploded, which might fo eafily be made an in-
ftrument of endlefs vexation and perfecution ().
(a) Coke fays (Inft. III. p. 35.) that when John Hol-
land, Duke of Exeter, and William de la Poole, Duke
of Suffolk, renewed, under Henry VI. the attempts
made to introduce the Civil Law, they exhibited the tor-
ture as a beginning thereof. The inftrument was called
the Duke of Exeter's daughter.
(b) J'idge Fofter relates, from Whitlock, that the
Biihop of London having faid to Felton, who had af-
faflinated the Duke of Buckingham, " If you will not
" confcfs, you muji go to the Rack."' The Man replied,
" If it muft be fo, I know not who I may accufe in the
*f extremity of the torture ; Biihop Laud perhaps, or any
Lord at this Board."
" Sound fenfe, (adds Fofter) in the mouth of an
" Enthufiaft and a Ruffian!"
Laud having propofed the Rack, the matter was
fhortly debated at the Board, and it ended in a reference
to the Judges, who unanimoufly refolved that the Rack
could not be legally ufed.
N 3
i2 THE CONSTITUTION
For the farther prevention of abufes, it is
an invariable ufage, that the Trial be public.
The prifoner neither makes his appearance,
nor pleads, but in places where every body
may have free entrance; and the witneffes
when they give their evidence, the Judge
when he delivers his opinion, the Jury when
they give their verdicft, are all under the pub-
lic eye. Laftly, the Judge cannot change either
the place, or the kind of punifhment ordered
by the law; and a Sheriff who fhould take
away the life of a Man in a manner different
from that which the law prefcribes, would be
profecuted as guilty of murder (<?).
In a word, the Conftitution of England be-
ing a free Conftitution, demanded from that
circumftance alone (as I mould already have
but too often repeated, if fo fundamental a
truth could be too often urged) extraordinary
precautions to guard againft the dangers which
unavoidably attend the Power of inflicting
punifhments ; and it is particularly when con-
fidered in this light, that the Trial by Jury
proves an admirable institution.
(a) And if any other perfon but the Sheriff, even the
Judge himfelf, were to caufe death to the inflicted upon
a Man, though convicted, it would be deemed homicide,
See Blackilor.e, book iv. chap. 14.
OF ENGLANn. 183
By means of it, the Judicial Authority is not
only placed out of the hands of the pvlan who
is veiled with the Executive Authority it is
even out of the hands of the Judge himfelf.
Not only, the perfon who is trufted with the
public power cannot exert it, till he has as it
were received the permiifion to that purpofe, of
thofe who are fet apart to adminifter the laws ;
but thefe latter are alfo reftrained in a manner
exactly alike, and cannot make the law fpeak,
but when, in their turn, they have likewife re<-
ceived permiffion.
And thofe perfons to whom the law has thus
exclusively delegated the prerogative of de-
ciding that a punifhment is to be inflicted,
thofe Men without whole declaration the Exe-
cutive and the Judicial Powers are both thus
bound down to inaction, do not form among
themfelves a permanentBody, who may have
had time to ftudy how their power can ferve
to promote their private views or intereft : they
are Men felected at once from among the
people, who perhaps never were before called to
the exercife of fuch a function, nor forefee that
they ever fhall be called to it again.
As the extenfive right of challenging, effec-
tually baffles, on the one hand, the fecret prac*
N 4
i*4 THE CONSTITUTION
tices of fuch as, in the face of fo many difcpu-
ragements, might ftill endeavour to make the
Judicial Power fubfervient to their own views,
and on the other excludes all perfonal refent-
ments, the fole affection which remains to in-
fluence the integrity of thofe who alone are in-
titled to put the public power into action, dur-
ing the fhort period of their authority, is, that
their own fate as fubjects, is efientially con-
nected with that of the Man whofe doom they
are going to decide.
In fine, fuch is the happy nature pf this in-
stitution, that the Judicial Power, a power fo
formidable in itfelf, which is to difpofe, without
finding any refiftance, of the property, honour,
and life of individuals, and which, whatever
precautions may be taken to reftrain it, mud
in a great degree remain arbitrary, may be faid
in England, to exift, to accomplifh every
intended end,- and to be in the hands of no-
body (a).
In all thefe obfervations on the advantages
{a) The confequence of this Institution is, that no
Man in England ever meets the Man of whom he may
fay, " That Man has a power to decide on my death,
-' or life." If we could for a moment forget the advan-
tages of that Initiation, we ought at lead to admire the
ingenuity of it,
OFENGLAND, 185
/of the Englifh criminal laws, I have only
considered it as connected with the Confli-
tution, which is a free one ; and it is in this
view alone that I have compared it with the
Jurifprudence received in other States. Yet,
abstractedly from the weighty constitutional
.considerations which I have fuggefted, I think
there are {till other interefting grounds of
pre-eminence on the fide of the laws of Eng-
land.
In the firft place, they do not permit that a
Man mould be made to run the rifque of a trial,
but upon the declaration of twelve perfons at
leaft (the Grand Jury,) Whether he be in pri-
fon, or on his Trial, they never for an inftant
refufe free accefs to thofe who have either ad-
vice, or comfort, to give him; they even allow
him to fummon all who may have any thing
to fay in his favour. And laftly, what is of
very great importance, the witnefles againfl
him muft deliver their teftimony in his pre-
fence ; he may crofs-examine them, and, by
one unexpected question, confound a whole
fyflem of calumny : indulgences thefe, all de-
nied by the laws of other Countries.
Hence, though an accufed perfon may be
expofed to have his fate decided by perfons
(the Petty Jury) who poSTefs not, perhaps all
jS6 the constitution
that fagacity which in fome delicate cafes it is
particularly advantageous to meet with in a
Judge, yet this inconvenience is amply com-
penfated by the extenfive means of defence
with which the law, as we have feen, has pro-
vided him. If a Juryman does not poiTefs that
expertnefs which is the refult of long practice,
yet neither does he bring to Judgment that
hardnefs of heart which is, more or lefs, alfo
the confequence of it : and bearing about him
the principles, let me fay, the unimpaired in-
ftinct of humanity, he trembles while he exer-
cifes the awful office to which he finds him-
felf called, and in doubtful cafes always de-
cides for mercy.
It is to be farther obferved, that in the
ufual courfe of things, Juries pay great
regard to the opinions delivered by the Judges :
that in thofe cafes where they are clear as to
the fact, yet find themfelves perplexed with
regard to the degree of guilt connected with
it, they leave it, as has been faid before, to be
afcertained by the difcretion of the Judge,
by returning what is called a Special Verdifl, :
that, whenever circumftances feem to alleviate
the guilt of a perfon, againft. whom neverthelefs
the proof has been pofitive, they temper their
verdict by recommending him to the mercy
OF ENGLAND. 187
of the King ; which feldom fails to produce
at leaft a mitigation of the puniihment :
that, though a Man once acquitted, can ne-
ver under any pretence whatfoever be again
brought into peril for the fame offence, yet a
new Trial would be granted, if he had been
found guilty upon proofs ftrongly fufpe&ed of
being falfe (Blackft. b. iv. c. 27.) Laftly,
what diftinguiflies the laws of England from
thofe of other Countries in a very honourable
manner, is, that as the torture is unknown to
them, fo neither do they know any more grie-
vous punifhment than the fimple deprivation
of life.
All thefe circumftances have combined to
introduce fuch a mildnefs into the exercife of
criminal Juftice, that the trial by Jury is that
point of their liberty to which the people of
England are moft thoroughly and univerfally
wedded ; and the only complaint I have ever
heard uttered againft it, has been by Men
who, more fenfible of the neceffity of public
order than alive to the feelings of humanity,
think that too many offenders efcape with im-
punity.
jSS the constitution
CHAP. XIV.
*[he Subjeft concluded. Laws relative to
Imprifonment.
BUT what completes that fenfe of indepen-
dence which the laws of England pro-
cure to every individual (a fenfe which is the
Dobteft advantage attending liberty) is the
greatnefs of their precautions upon the delicate
point of Imprifonment.
In the firft place, by allowing, in mod
cafes, of enlargement upon bail, and by pre-
ferring, on that article, exprefs rules for the
Judges to follow, they have removed all pre-
texts which circumftances might afford of de-
priving a man of his liberty.
But it is againft the Executive Power that
the Legifiature has, above all, directed its ef-
forts : nor has it been but by flow degrees
that it has been enabled to wreft from it a
branch of power which enabled it to deprive
the people of their Leaders, as well as to
intimidate thofe who might be tempted to
O F E N G L A N D. 189
affurae the function ; and which, having thus
all the efficacy of more odious means without
the dangers of them, was perhaps the mod
formidable weapon with which it might attack
public liberty.
The methods originally pointed out by the
laws of England for the enlargement of a per-
fon unjuftly imprifoned, were the writs of main-
prize, de odio & atia, and de bomine replegiando.
Thole writs, which could not be denied, were
an order to the Sheriff of the County in which
a perfon was confined, to inquire into the
caufes of his confinement ; and, according to
the circumftances of his cafe, either to dis-
charge him completely, or upon bail.
But the mod ufeful method, and which
even, by being moil general and certain, has
tacitly abolimed all the others, is the writ of
Habeas Corpus, fo called becaufe it begins with
the words Habeas corpus ad fubjiciendum, This-
writ, being a writ of high prerogative, mull
iffue from the Court of King's Bench : its
tfFefts extend equally to every County ;
and the King by it requires, or is under-
flood to require, the perfon who holds one of
his fubjects in cuftody, to carry him before
the Judge, with the date of the confinement,.
!9o THE CONSTITUTION
and the caufe of it, in order to difcharge him*
or continue to detain him, according as the
Judge (hall decree.
But this writ, which might be a refource in
cafes of violent imprifonment effected by in-
dividuals, or granted at their requeft, was but
a feeble one, or rather was no refource at all,
againfl the prerogative of the Prince, efpecially
under the reigns of the Tudors, and in the be-
ginning of that of the Stuarts. And even in
the firft years of Charles the Firft, the Judges
of the King's Bench, who, in confequence of
the fpirit of the times, and of their holding
their places durante bene placlto x were confhntly
devoted to the Court, declared, " that they
" could not, upon a Habeas Corpus, either bail
" or deliver a prifoner, though committed
" without any caufe afiigned, in cafe he was
" committed by the fpecial command of the
" King, or by the Lords of the Privy Coun-
cil."
Thofe principles, and the mode of proce-
dure which refulted from them, drew the
attention of Parliament; and in the Aft
called the Petition of Right, paffed in the
third year of the reign of Charles the Firft,
it was enacted, that no perfon fhould be kept
O F E N G L A N D. 191
in cuftody, in confequence of fuch imprifon-
ments.
But the Judges knew how to evade the in-
tention of this Aft : they indeed did not
refufe to difcharge a Man imprifoned without
a caufe ; but they ufed fo much delay in the
examination of the caufes, that they obtained
the full effect of an open denial of Juftice.
The Legiflature again interpofed, and in the
Act paffed in the fixteenth year of the reio-n
of Charles the Firft, the fame in which the Star-
Chamber was fupprefied, it was enacted, that
" if any perfon be committed by the King
" himfelf in perfon, or by his Privy Council,
" or by any of the Members thereof, he mall
" have granted unto him, without any delav
<c upon any pretence whatfoever, a writ of
" Habeas Corpus ; and that the Judge fhall
" thereupon, within three Court-days after the
" return is made, examine and determine the
" legality of fuch imprifonment."
This Act feemed to preclude every poffi-
bility of future cvafion : yet it was evaded
ftill ; and, by the connivance of the Judges,
the perfon who detained the prifoner could
without danger, wait for a fecond, and a third
writ, called an Alias and a Pluries, before he
produced him,
iq 2 THE CONSTITUTION
All thefe different artifices gave at length*
birch to the famous Act of Habeas Corpus,
paired in the thirtieth year of the reign of
Charles the Second, which is confidered in"
England as a fecond Great Charter, and has
finally fuppreffed all the refources of oppref-
fion (a).
The principal articles of this Act are, to
fix the different terms allowed for bringing
a priibner : thofe terms are proportioned ttf
the diflance ; and none can in any cafe exceed
twenty days.
2. That the Officer and Keeper neglecting
to make due returns, or not delivering to the
prifoner, or his agent, within fix hours after
demand, a copy of the warrant of commit-
ment, or fhifting the cuftody of the prifoner
from one to another, without fufficient reafon
or authority (fpecified in the aft), mall for
the firfl offence forfeit one hundred pounds,
and for the fecond two hundred, to the
party grieved, and be difabled to hold his
office.
(a) The real title of this Aft is, An A3 for better
fecuring the Subject > and for Prevention of Imprlfonment be-
yond the Seas.
OF ENGLAND. i 93
3. No perfon, once delivered by Habeas
Corpus, fhall be recommitted for the fame of-
fence, on penalty of five hundred pounds.
4. Every perfon committed for treafon or
felony, fhall, if he require it, in the firft week
of the next term, or the firft day of the
next feffion, be indicted in that term or
feflion, or elfe admitted to bail, unlefs the
King's witnefTes cannot be produced at that
time : and if not indicted and tried in the
fecond term or feffion, he fhall be difcharged
of his imprifonment for fuch imputed of-
fence.
5. Any of the twelve Judges, or the Lord
Chancellor, who fhall deny a writ of Habeas
Corpus, on fight of the warrant, or on oath,
that the fame is refufed, fhall forfeit feverally
to the party grieved five hundred pounds.
6. No inhabitant of England (except per-
fons contracting, or convicts praying to be
tranfported) fhall be fent priibner to Scot-
land, Ireland, Jerfey, Guernfey, or any place
beyond the Seas, within or without the King's
dominions, on pain, that the party commit-
ting, his advifers, aiders, and affiftants, fhall
forfeit to the party grieved a fum not lefs
than five hundred pounds, to be recovered
with treble cofts, fhall be difabled to bear any
O
i 9 4 THE CONSTITUTION
office of truft or profit, fhall incur the penal-
ties of a praemunire {a), and be incapable of
the King's pardon.
() The Statutes of praemunire, thus called from the
writ for their execution, which begins with the words
praemunire (for praemotiere^ facias, were Originally defigned
to oppofe the ulurpations of the Popes. The firft was
pafled under the reign of Edward the Firtl, and has
been followed by fcveral others, which even before the
Reformation, eitablifhed iuch efFedlual provifions as to draw
upon one of them the epithet of F.xecralile Statutum.
The offences againlt which thofe Statutes were framed,
were likewife diftinguifhed by the appellation of praemunire ;
and under that word were included in general all attempts
ro promote the 1'ope's authority at r .he expence of the
K.ir:g's. The punilhment decreed for fuch cafes, was alfo
called a praemunire : it has fince been extended again to
feveral other kinds of offence, and amounts to " the im-
'*" priionment for life, and forfeiture of all goods and
" rents of lands during life."' See Blackitone's Com,
book iv ch, b
OF ENGLAND,. 195
BOOK II.
CHAP. L
Some Advantages peculiar to the Englijh Con-'
Jiitution. 1. The Unity of the Executive
Ptzver.
WE have feen in former Chapters* the
refources allotted to the different parts
of the Engliih Government for balancing each
other, and how their reciprocal actions and re-
actions produce the freedom of the Confti-
tution, which is no more than an equilibrium
between the ruling Powers of the State. I now
propofe to ihew that the particular nature
and functions of thefe fame conftituent parts
of the Government, which give it fo different
an appearance from that of other free States,
are moreover attended with peculiar and very
great advantages, which have not hitherto
been fuinciently obferved.
O 2
i 9 6 THE CONSTITUTION
The firft peculiarity of the English Go-
vernment, as a free Government, is its hav-
ing a King, its having thrown into one
place the whole mafs, if I may ufe the ex-
preflion, of the Executive Power, and hav-
ing invariably and for ever fixed it there.
By this very circumftance alfo has the depo-
Jitum of it been rendered facred and inexpugn-
able ; by making one great, very great
Man, in the State, has an effectual check
been put to the pretentions of thofe who
otherwife would ftrive to become fuch, and
diforders have been prevented, which, in all
Republics, ever brought on the ruin of liberty,
and, before it was loft, obftrudted the enjoyment
of it.
If we cafl our eyes on all the States that
ever were free, we fhall fee that the People
ever turning their jealoufy, as it was natural,
againft the Executive Power, but never think-
ing of the means of limiting it that has. fo
happily taken place in England {a), never em-
ployed any other expedient befides the ob-
vious one, of trufling that Power to Magi-
ftrates whom they appointed annually ; which
(a) The rendering that power dependent on the
People for its fupplies.*See on this fubjeft Chapter vi,
Book I.
OF ENGLAND. 197
was in great meafure the fame as keeping
the management of it to themfclves. Whence
it refulted that the People, who, whatever
may be the frame of the Government, al-
ways poffefs, after all, the reality of power,
thus uniting in themfclves with this reality
of power the actual exercife of it, in form as
well as in fact, conftituted the whole State.
In order therefore legally to difturb the
whole State, nothing more was requifite than
to put in motion a certain number of indivi-
duals.
In a State which is fmall and poor, an ar^
rangement of this kind is not attended with
any great inconveniencies, as every individual
is taken up with the care of providing for his
fubfiftence, as great objects of ambition are
wanting, and as evils cannot, in fuch a State,
ever become much complicated. In a State
that flrives for aggrandifement, the difficulties
and danger attending the purfuit of fuch a
plan, infpire a general fpirit of caution, and
every individual makes a fober ufe of his rights
as a Citizen.
But when, at length, thofe exterior motives
come to ceafe, and the paffions, and even the
virtues, which they excited, thus become
reduced to a Hate of inaction, the People
O 3
i 9 * THE CONSTITUTION
turn their eyes back towards the interior of
the Republic, and every individual, in feek-
ing then to concern himfelf in all affairs,
feeks for new objects that may reflore him
to that Hate of exertion which habit, he finds,
has rendered necelfary to him, and to exercife
a mare of power which, fmall as it is, yet flat-
ters his vanity.
As the preceding events mud needs have
given an influence to a certain number of
Citizens, they avail themfelves of the general
difpofition of the people, to promote their pri-
vate views : the legislative power is thence-
forth continually in motion ; and as it is badly
informed and falfely directed, almoft every ex-
ertion of it is attended with fome injury either
to the Laws, or the State.
This is not all j as thofe who compofe the
general Affemblies cannot, in confequence of
fc>
their numbers, entertain any hopes of gratify-
in their own private ambition, or in general
their own private paffions, they at leaft feek to
gratify their political caprices, and they accu-
mulate the honours and dignities of the State
on fome favourite whom the public voice hap-
pens to raife at that time.
But, as in fuch a State there can be, from
the irregularity of the determinations of the
OF ENGLAND. 199
Pcople ; no fuch thing as a fettled courfe of
meafures, it happens that Men never can ex-
actly tell the prefent ftate of public affairs.
The power thus given away is already grown
very great, before thofe for whom it was given
fo much as fufpect it; and he himfelf who en-
joys that power, does not know its full extent :
but then, on the firft opportunity that offers,
he fuddenly pierces through the cloud which
hid the fummit from him, and at once feats
himfelf upon it. The People, on the other
hand, no fooner recover light of him, than
they fee their Favourite now become their Maf-
ter, and difcover the evil, only to find that it is
paft remedy.
As this power, thus furreptitioufly acquired,
is deftitute of the fupport both of the law
and of the ancient courfe of things, and is
even but indifferently refpedted by thofe who
have fubjected themfelves to it, it cannot be
maintained but by abufing it. The People at
length fuccecd in forming fomewhere a centre
of union ; they agree in the choice of a
Leader ; this Leader in his turn rifes ; in his
turn alfo he betrays his engagements ; power
produces its wonted effects ; and the Protector
becomes a Tyrant.
O4
200 THE CONSTITUTION
This is not all ; the fame caufes which have
given a Mafter to the State, give it two, give
it three. AU thofe rival powers endeavour to
fvvallow up each other j the State becomes a
fcene of endlefs quarrels and broils, and is in
a continual convulfion.
If amidft fuch diforders the People retained
their freedom, the evil mufl indeed be very
great, to take away all the advantages of it;
but they are Haves, and yet have not what in
other Countries makes amends for political fer r
vitude, I mean tranquillity.
In order to prove all thefe things, if proofs
were deemed neceffary, I would only refer the
reader to what every one knows of Pififtratus
and Megacles, of Marius and Sylla, of Csfar
and Pompey. However, I cannot avoid tranf-
lating a part of the fpeech which a Citizen of
Florence addreffed^ once to the Senate : the
reader will find in it a kind of abridged ftory
of all Republics ; at leaft of thofe which, by
the fliare allowed to the People in the Govern-
ment, deferved that name, and which, befides,
have attained a certain degree of extent and
power.
u And that nothing human may be per-
" petual and liable, it is the will of Heaven.
OF ENGLAND, 201
" that in all States whatfoever, there ihould
P arife certain deftructive families, who are
" the bane and ruin of them. Of this our
" own Republic afford? as many and more de-
f* plorable examples than any other, as it owes
" its misfortunes not only to one, but to fevc-
" ral fuch families. We had at firft the Buon-
f ( delmonti and the Huberti, We had afterwards
U the Donati and the Cercbi ; and at prefent,
" (fhameful and ridiculous conduct ! ) we are
" waging war among ourfelves for the Ricci and
" the Albizzi.
" When in former times the Ghibelins
f c were fuppreffed, every one expedited that
<c the Guelfs, being then fatisfied, would have
f c chofen to live in tranquillity ; yet, but a
e( little time had elapfed, when they again
i( divided themfelves into the factions of the
Whites and the Blacks. When the Whites
*' were fuppreffed, new parties arofe, and new
< e troubles followed. Sometimes battles were
ec fought in favour of the Exiles ; and at other
" times, quarrels broke out between the No-
cc bility and the People. And, as if refolved
" to give away to others what we ourfelves
*f neither could, nor would, peaceably enjoy,
p we committed the care of our liberty
102 THE CONSTITUTION
" fometimes to King Robert, and at other times
*' to his brother, and at length to the Duke
** of Athens ; never fettling nor refting in any
<l kind of Government, as not knowing ei-
"ther how to enjoy liberty, or fupport fervi-
' tude -(a)"
The Engliih Conftitution has prevented
the poffibility of misfortunes of this kind.
Not only by diminifhing the power, or ra-
ther the aftual exercife of the power, of the
People (b), and making them (hare in the
Legiflature only by their Reprefentatives, the
irreiiitible violence has been avoided of thole
numerous and general Afiemblies, which, on
whatever fide they throw their weight, bear
down every thing. Beiides, as the power of
the People, when they have any kind of power,
and know how to ufe it, is at all times really
formidable, the Conftitution has let a coun-
terpoife to it; and the Royal authority is this
counterpoife.
[a) See the Hiitory of Florepce, by Machiavel.
lib. iii.
(&) We (hall fee in the fequel, that this diminution oi
the exercife of the power of the People has been attended,
with i great increafe of their liberty.
OF ENGLAND. 203
In order to render it equal to fuch a tafk, the
Conftitution has, in the firft place, conferred on
the King, as we have feen before, the exclufive
prerogative of calling and difmifling the legif-
lative Bodies, and of putting a negative on
their refolutions.
Secondly, it has alfo placed on the fide of
the King the whole Executive Power in the
Nation,
Laftly, in order to effed dill nearer an
equilibrium, the Conftitution has inverted
the Man whom it has made the fole Head
of the State, with all the perfonal privileges,
all the pomp, all the majefty, of which hu~
man dignities are capable. In the language
of the law, the King is Sovereign Lord, and
the People are his fubjects; he is univerfal
proprietor of the whole Kingdom; he be-
llows all the dignities and places ; and he is
not to be aqMrefied but with the exprefiions
and outward ceremony of almoft Eaftern
humility. Befides, his perfon is facred and
inviolable ; and any attempt whatfoever a-
gainft it, is, in the eye of the law, a crime
equal to that of an attack againft the whole
State.
In a word, fince, to have too exactly com-
pleted the equilibrium between the power
2.04 THE CONSTITUTION
of the People, and that of the Crown, would
have been to iacrifice the end to the means,
that is, to have endangered liberty with a
view to ftrengthen the Government, the defi-
ciency which ought to remain on the fide
of the Crown, has at lead been the appearance
made up, by conferring on the King all
that fort of flrength that may refult from
the opinion and reverence of the people ;
and amidft the agitations which are the
unavoidable attendants of liberty, the Royal
power, like an anchor that refills both by
its weight and the depth of its hold, in*
lures a falutary Iteadinefs to the vefTel of the
State,
The greatnefs of the prerogative of the
King, by its thus procuring a great degree
of liability to the State in general, has much
leffened the pofllbility of the evils we have above
defcribed ; it has even, we may fay, totally pre-
vented them, by rendering it impoflible for
any Citizen even, to rife to any dangerous
greatnefs.
And to begin with an advantage by which
the people eafily fuller themfelves to be in-
fluenced, I mean that of birth, it is impofTi-
ble for it to produce in England effects in
any degree dangerous ; for though there are
O F E N G L A N D. 205
Lords who, befides their wealth, may alio
boaft of an illuftrious defcent, yet that ad-
vantage, being expofed to a continual com-
panion with the fplendor of the Throne,
dwindles almoft to nothing; and in the gra-
dation univerfally received of dignities and
titles, that of Sovereign Prince and King places
him who is inverted with it, out of all degree
of proportion.
The Ceremonial of the Court of Ens-land
is even formed upon that principle. Thofe
perfons who are related to the King, have the
title of Princes of the blood, and, in that
quality, an indifputed pre-eminence over all
other perfons (a). Nay, the firft Men in the
Nation think it an honourable diftn&icn to
themfelves, to hold the different menial offices,
or titles, in his Houfnold. If we therefore were
to fet aiide the extenfive and real power of
the King, as well as the numerous means he
pofleffes of gratifying the ambition and hopes
of individuals, and were to confider only the
Majefty of his title, and that kind of flrength
founded on public opinion, which refults from
() This, by Stat, of the 31ft of Hen. VIII. ex-
tends to the fons, grandfons, brothers, uncles, snd ne-
phews, of the reigning King,
2
2o6 THE CONSTITUTION
it, we fliould find that- advantage fo consider-
able, that to attempt to enter into a competition
with it, with the bare advantage of high birth^
which itfelf has no other foundation than
public opinion, and that too in a very Subor-
dinate degree, would be an attempt completely
extravagant.
If this difference is fo great as to be tho-
roughly fubmitted to, even by thofe perfons
whole Situation might incline them to difown
it, much more does it influence the minds of
the people. And if, notwithstanding the value
which every Englishman ought to fet upon him-
felf as a Man, and a free Man, there were any
whofe eyes were lb very tender as to be dazzled
by the appearance and the arms of a Lord, they
would be totally blinded when they came to
turn them towards the Royal Majefly.
The only Man, therefore, who, to thofe who
are unacquainted with the Conftitution of Eng-
land, might at fir ft fight appear in a condition
to put the Government in danger, would be a
Man who, by the greatnefs of his abilities and
public Services, might have acquired in a high
degree the love of the people, and obtained a
great influence in the Houfe of Commons.
But how great Soever this enthufiafm of
the public may be, barren applaufe is the only
OF ENGLAND. 207
fruit which the Man whom they favour can
expect from it. He can hope neither for a
Dictatorfhip, nor a Confulfhip, nor in general
for any power under the ihelter of which
he may at once fafely unmafk that ambition
with which we might fuppofe him to be actu-
ated,- or, if we fuppofe him to have been
hitherto free from any, grow infenfibly corrupt.
The only door which the Conflitution leaves
open to his ambition, of whatever kind it may
be, is a place in the adminiftration, during
the pleafure of the King. If, by the con-
tinuance of his fervices, and the prefcrvation
of his influence, he becomes able to aim ftill
higher, the only door which again opens to
him, is that of the Houfe of Lords.
But this advance of the favourite of the
people towards the eftablifhment of his grcat-
nefs, is at the fame time a great flep towards
the lofs of that power which might render him
formidable.
In the fir ft place, the People feeing that
he is become much lefs dependent on their
favour, begin, from that very moment, to
leflen their attachment to him. Seeing him
moreover diftinguifhed by privileges which
are the object of their jealoufy, I mean their
political jealoufy, and member of a body
208 THE CONSTITUTION
whofe interefts are frequently oppofite to their's,
they immediately conclude that this great and
new dignity cannot have been acquired but
through a fecret agreement to betray them.
Their favourite, thus fuddenly transformed,
is going, they make no doubt, to adopt a
conduct entirely oppofite to that which has
till then been the caufe of his advancement
and high reputation, and, in the compafs of a
few hours, completely renounce thofe principles
which he has fo long and fo loudly profeiTed.
In this certainly the People are miitaken ;
but yet neither would they be wrong, if they
feared that a zeal hitherto fo warm, fo conftant,
I will even add, fo fincere, when it concurred
with their Favourite's private intereM, would,
by being thenceforth often in oppofition to it,
become gradually much abated.
Nor is this all ; the favourite of the people
does not even find in his new acquired dignity,
all the increafe of greatnefs and eclat that
might at fir ft be imagined.
Hitherto he was, it is true, only a private
individual ; but then he was the object in
which the whole Nation interefled themfelves j
his actions and words were fct forth in the
public prints ; and he every where met with
applaufe and acclamation*
OF ENGLAND, aoo
All thefe tokens of public favour are, I
know, fometimes acquired very lightly ; but
they never laft long, whatever people may fay,
nnlefs real fervices are performed ; now, the
title of Benefactor to the Nation, when de-
ferved, and univerfally bellowed, is certainly
a very handfome title, and which does no-wife
require the affiftance of outward pomp to fet it
off. Befides, though he was only a Member
of the inferior body of the Legiflature, we
muft obferve, he was the firft; and the "word
firji is always a word of very great moment*
But now that he is made Lord > all his great-
nefs, which hitherto was indeterminate, be*
comes defined. By granting him privileges efla-
blilhed and fixed by known laws$ that uncer-
tainty is taken from his luftre which is of fo
much importance in thofe things which depend
on imagination; and his value is lowered, juft
becaufe it is afcertained.
Befides, he is a Lord ; but then there are
feveral Men who poflefs but fmall abilities,
and few eftimable qualifications, who alio are
Lords ; his lot is, neverthelefs, to be feated
among them; the law places him exactly on the
fame level with them ; and all that is real in his
greatnefs, is thus loll in a croud of dignities,
hereditary and conventional,
P
2io THE CONSTITUTION
Nor are thefe the only lofTes which the
favourite of the People is to fuffer. Indepen-
dently of thofe great changes which he defcries
at a diflance, he feels around him alterations
no lcis vifible, and ftill more painful.
Seated formerly in the Aflembly of the Re-
prefentatives of the People, his talents and con-
tinual fuccefs had foon railed him above the le-
vel of his fellow Members; and, being carried
on by the vivacity and warmth of the public
favour, thofe who might have been tempted to
fet up as his competitors, were reduced to
filence, or even became his fupporters.
Admitted now into an Aflembly of perfons
invefled with a perpetual and hereditary title,
he finds Men hitherto his fuperiors, Men
who fee wit-h a jealous eye the mining talents
of the homo novus, and who are firmly refoived,
that after having been the leading Man in the
Houfe of Commons, he mail not be the fir ft
in their's.
In a word, the fuccefs of the favourite of
the People was brilliant, and even formid-
able ; but the Conftitution, in the very reward
it prepares for him, makes him find a kind of
Oftracifm. His advances were fudden, and
his courfe rapid ; he was, if you pleafe, like a
torrent ready to bear down every thing before
OF ENGLAND. 211
it; but this torrent is compelled, by the ge-
neral arrangement of things, finally to throw
itfelf into a vaft refervoir, where it mingles,
and lofes its force and direction.
I know it may be faid, that, in order to
avoid the fatal Hep which is to deprive him of
fo many advantages, the favourite of the People
ought to refufe the new dignity which is offered
to him, and wait for more important fucceffes,
from his eloquence in the Houfe of Commons,
and his influence over the People.
But thofe who give him this counfel, have
not fufficiently examined it. Without doubt
there are Men in England, who in their pre-
fent purfuit of a project which they think
effential to the public good, would be capable
of refuting for a while a dignity which would
deprive their virtue of opportunities of exert-
ing itfelf, or might more or lefs endanger
it : but woe to him who mould perfift in
fuch a refufal, with any pernicious defign !
and who, in a Government where liberty is
eftablifhed on fo folid and extenfive a bafis,
fhould endeavour to make the People believe
that their fate depends on the perfevering vir-
tue of a fingle Citizen. His ambitious views
being at laft difcovered (nor could it be long
before they were fo), his obftinate refolu-
P 2
i THE CONSTITUTION
lution to move out of the ordinary courfe of
things, would indicate aims, on his part, of
fuch an extraordinary nature, that all Men
whatever, who have any regard for their Coun-
try, would inftantly rife up from all parts to
oppofe him, and he muft fall, overwhelmed
with fo much ridicule, that it would be better
for him to fall from the Tarpeian rock (a).
In fine, even though we were to fuppofc
that the new Lord might, after his exalta-
tion, have preferved all his intereft with the
People, or, what would be no lefs difficult,
that any Lord whatever could, by dint of his
wealth and high birth, rival the fplendor of
the Crown itfelf, all thefe advantages, how
great foever we may fuppofe them, as they
[a) The Reader will perhaps object that no Man in
England can poflibly entertain fuch views as thofe I have
fuggefted here : this is precifely what I intended to prove.
The effential advantage of the Engliih Government
above all thofe that have been called free, and which in
many refpedls were but apparently fo, is, that no perfon
in England can entertain fo much as a thought of his
ever riling to the level of the Power charged with the
execution of the Laws. All Men in the State, what-
ever may be their rank, wealth, or influence, are tho-
ro uglily convinced that they muft in reality as well 2.%
*n name, continue to be Subjects ; and are thus compell-
ed really to love, to defend, and to promote, thofe laws
which fecure the liberty of the Subject. This latter ob*
fcrratien will be again introduced in the feque! v
OF ENGLAND. 213
would not of themfelves be able to confer on
him the leaft executive authority, mud for ever
remain mere fhowy unfubftantial advantages.
Finding all the active powers in the State con-
centered in that very feat of power which we
fuppofe him inclined to attack, and there fecured
by formidable provisions, his influence muft al-
ways evaporate in ineffectual words ; and after
having advanced himfelf, as we fuppofe, to the
very foot of the Throne, finding no branch of
independent power which he might appropriate
to himfelf, and thus at laft give a reality to his
political importance, he would foon fee it, how-
ever great it might have at fir ft appeared, decline
and die away.
God forbid, however, that I fhould mean,
that the People of England are fo fatally tied
clown to inaction, by the nature of their Govern-
ment, that they cannot, in times of oppreffion,
find means of appointing a Leader. No ; I
only meant to fay that the laws of England
open no door to thofe accumulations of power,
which have been the ruin of fo many Repub-
lics ; that they offer to the ambitious no poffi-
ble means of taking advantage of the inad-
vertence, or even the gratitude, of the People^
to make themfelves their Tyrants ; and that the
public power, of which the King has been madq
?4
2i 4 THE CONSTITUTION
the exclusive depofitary, muft remain unfhaken
in his hands, fo long as things continue to keep
in the legal order ; which, it may be obferved,
is a ftrong inducement to him conftantly to en-
deavour to maintain them in it (a).
(a) There are feveral events, in the Englifh Hiftory,
which put in a very ftrong light this idea of the liability
which the power of the Crpwn gives to the State.
One, is the facility with which the great Duke of
Marlborough, and. his party at home, were removed from
their feveral employments. Hannibal, in circumftances
nearly fimilar, had continued the war againft the will of
the Senate of Carthage : Casfar had done the fame in
Gaul ; and when at laft he was exprefsly required to de-
liver up his commiffion, he marched his army to Rome,
and eftablifhed a military defpotifm. But the Duke,
though furrounded, as well as the above named Generals,
by a v.clorious army, and by Allien in conjun&ion with
whom he had carried on fuch a fuccefsful war, did not
even hefitate to furrcnder his commiiTion. He knew that
all his folciers were infeparably prepoffeffed in favour of
that Power so-a'-nft which he muft have revolted : he
knew that the fame prepoffeffions were deeply rooted in
the minds of the whole Nation, and that every thing
among them concurred to fupport the fame Power: he-
knew that the very nature of the claims he muft have fet
up, would inftantly have made all his Officers and Cap-
tains turn themfelves againft him, and, in fhort, that in
an enterprize of that nature, the arm of the fea he had to
repafs, was the fmalleft of the obftacles he would have to
encounter.
The other event I fhall mention here, is that of the Re-
volution of 1689. If the long eltabiifhed power of the
Crown had not beforehand prevented the people frpru
OF ENGLAND, 215
CHAP. II.
The Subjecl concluded. The Executive Pozver is
more eafily confined when it is one.
ANOTHER great advantage, and which
one would not at firft expect, in this unity
of the public power in England, in this union,
and, if I may fo exprefs myfelf, in this coacer-
vation, of all the branches of the Executive
authority, is the greater facility it affords of
retraining it.
In thole States where the execution of the
laws is intruded to feveral different hands,
and to each with different titles and prero-
gatives, fuch divifion, and the changeablenefs
of meafures which muft be the confequence
of it, conftantly hide the true caufe of the
evils of the State : in the endlefs fluctuation
of things, no political principles have time
to fix among the People : and public mil-
accuftoming themfelves to fix their eyes on fome par-
ticular Citizen?, and in general had not prevented all
Men in the Stare from attaining any too confiderable de-
gree of power and greatnefs, the expulfion of James II,
might have been followed by events fimilar to thofe which
took place at Rome after the death of Cajfar.
?4
2i6 THE CONSTITUTION
fortunes happen, without ever leaving behind
them any ufeful lefTon.
At fometimes military Tribunes, and at
others, Confuls bear an abfolute iway ; forne^
times Patricians ufurp every thing, and at other
times, thofe who are called Nobles (a);
fometimes the People are opprefled by Decem-
virs, and at others by Dictators,
Tyranny, in fuch States, does not always
beat down the fences that are fet around it; but
it leaps over them. When men think it con-
fined to one place, it Harts up again in another j
it mocks the efforts of the People, not be-
caufe it is invincible, but becaufe it is unknown;
feized by the arm of a Hercules, it efcapes
with the changes of a Proteus.
But the indivisibility of the Public power
in England has conftantly kept the views and
efforts of the People directed to one and the
fame object; and the permanence of that power
[a) Ths capacity of being admitted to all places of
public truth at length gained by the Plebeians, having ren-
dered ufelefs the old diltinclion between them and the
patricians, a coalition was then effected between the
great Plebeians, or Commoners, who got into thefe places,
and the ancient Patricians : Hence a new Clafs of Men
arofe, who were called Nobiles and Nobilitas. Thefe ar
the words by which Livy, after that period, conitantly
diftinguilhes thofe Men and families who were at ths
head of the State.
OF ENGLAND. 217
has alfo given a permanence and a regularity
to the precautions they have taken to reilrain
it.
Conftantly turned towards that ancient for-
trefs, the Royal power, they have made it, for
ieven centuries, the object of their fear ; with a
watchful jealoufy they have confidered all its
parts they have oblerved all its outlets they
have even pierced the earth to explore its fecret
avenues, and fubterraneous works.
United in their views by the greatnefs of the
danger, they regularly formed their attacks.
They eftablifhcd their works, mil at a diftance ;
then brought them fucceflively nearer ; and,
in fihort, railed none but what ferved afterwards
as a foundation or defence to others.
After the great Charter was eltabliihed 5
forty fucc^ffive confirmations itrcngthened it.
The Aft called the Petition of Right, and that
panned in the fixteenth year of Charles the Firft,
then followed : fome years after, the Habeas
Corpus Act was eftablifhed ; and the Bill of
Rights made at length its appearance. In fine,
whatever the circumftances may have been,
they always had, in their efforts, that inefti-
mable advantage of knowing with certainty
the general feat of the evils they had to defend
themfelves againft; and each calamity, each
21S THE CONSTITUTION
particular eruption, by pointing out fome weak
place, has ever gained a new bulwark to public
Liberty.
To fay all in three words ; the Executive
power in England is formidable, but then it
is for ever the fame ; its refources are vafl,
but their nature is at length known ; it has
been made the indivifible and inalienable at-
tribute of one perfon alone, but then all other
perfons, of whatever rank or degree, become
really interefted to reftrain it within its proper
bounds (d).
CHAP. III.
A feccnd Peculiarity. The Divifion of the Legif-
lat'we Tower.
TH E fecond peculiarity which England,
as an undivided State and a free State,
exhibits in its Conftitution, is the divifion of
its Legiflature. But, in order to make the
(a) This laft advantage of the greatnefs and indivifibi-
lity of the executive power, viz. the obligation it lays
upon the greater! Men in the State, fincerely to unite in a
common caufe with the people, will be more amply dif-
cuffed hereafter, when a more particular comparifon be-
ween the Englifh Government and the Republican form,
tall be offered to the Reader,
OF ENGLAND. 219
reader more fenfible of the advantages of this
division, it is neceffary to defire him to attend
to the following confederations.
It is, without doubt, abfolutely neceffar) r ,
for fecuring the Conftitution of a State, to re-
train the Executive power; but it is ilill more
neceffary to reftrain the Legiflative. What
the former can only do by fucceffive ftcps (I
mean fubvert the laws) and through a longer
or fhorter train of enterprizes, the latter does
in a moment. As its bare will can give being
to the Jaws ; fo its bare will can alfo annihilate
them : and, if I may be permitted the cxpref-
(ion, the Legislative power can change the
Conftitution, as God created the light.
In order therefore to infure (lability to the
Conftitution of a State, it is indifpenfably
neceffary to reftrain the Legiflative authority.
But here we muft obferve a difference between
the Legiflative and Executive powers. The
latter may be confined, and even is the more
eafily fo, when undivided : the Legiflative,
on the contrary, in order to its being re-
flrained, mould ablblutely be divided. For,
whatever laws it may make to reftrain itfelf,
they never can be, relatively to it, any thing
more than fimple refolutions : as thofe bars
which it might erect to flop its own motions,
S 20 THE CONSTITUTION 1
muff then be within it, and reft upon it, they
can be no bars. In a word, the fame kind oi
impoflibility is found, to fix the Legislative
power when it is one, which Archimedes ob-
jected againfl his moving the Earth (a).
Nor does fuch a division oi theLegifiature only
vender it pofhble for it to be refcrained, Since
each of thofe parts into which it is divided, can
then ferve as a bar to the motions of the others ;
but it even makes it to be actually fo retrained.
If it has been divided into only two parts, it is
probable that they will not in ail cafes unite,
either for doing, or undoing ; it it has been divid-
ed into three parts, the chance that no changes
will be made, is thereby greatly increafed.
Nay more ; as a kind ot point of honour will
naturally take place between thefe different parts
of the Legiilative, they will therefore be led to
offer to each other only fuch proportions as will
at lead be plaufible ; and all very prejudicial
changes will thus be prevented, as it were,
before their birth.
If the Legislative and Executive powers
differ fo greatly with regard to the neceflity of
their being: divided, in order to their being- re-
Strained, they differ no lefs with regard to the
other confequences arifing from fuch division,
{a) He wanted a fpot whereupon to fix his inftruments.
O F E N G L A N D. 221
The divifion of the Executive power necef-
farily introduces actual oppofitions, even violent
ones, between the different parts into which
it has been divided ; and that part which
in the iffue fucceeds fo far as to abforb, and
unite in itfelf, all the others, immediately
fets itfelf above the laws. But thofe oppofi-
tions which take place, and which the public
good requires fhould take place, between the
different parts of the Lcgiflature, are never
any thing more than oppofitions between con-
trary opinions and intentions ; all is tranfacted
in the regions of the underftanding ; and the
only contention that arifes is wholly carried 011
with thofe inoffenfive weapons, afients and dil-
fents, ayes and noes,
Beficles, when one of thefe parts of the Lc-
giflature is fo fuccefsful as to engage the others
to adopt its proportion, the refult is, that a
law takes place which has in it a great proba-
bility of being good : when it happens to be
defeated, and fees its proportion rejected, the
worft that can refult from it is, that a law is
not made at that time ; and the lofs which the
State fuffers thereby, reaches no farther than
the temporary fetting aiide of fome more or lefs
ufeful fpeculation.
3
22* THE CONSTITUTION
In a word, the refult of a divifion of the
Executive power, is either a more or lefs fpeedy
eftablifhment of the right of the Jlrongejl, or a
continued ftate of war {a) : that of a divifion
of the Legiflative power, is either truth, or
general tranquillity.
The following maxim will therefore be ad-
mitted. That the laws of a State may be per-
manent, it is requifite that the Legiflative
power mould be divided : that they may have
weight, and continue in force, it is neceffary
that the Executive power mould be one.
If the reader conceived any doubt as to the
truth of the above obfervations, he need only
call his eyes on the hiftory of the proceedings
of the Englifh Legiflature down to our times,
to find a proof of them. He would be fur-
prifed to fee how little variation there has
been in the political laws of this Country, ef-
pecially during the laft hundred years, though,
it is moll: important to obferve, the Legif-
lature has been as it were in a continual
(a) Every one knows the frequent hoftilities 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 over-
powered each other by turns. And in England, when
the Executive power became double, by the King al-
lowing the Parliament to have a perpetual and indepen-
dent exigence, a civil war almoft immediately followed.
O F E N G L A N D. 223
ftate of action, and, no difpaffionate Man
will deny, has generally promoted the public
good. Nay, if we except the Act palled under
William III. by which it had been enacted,
that Parliaments fhould fit no longer than three
years, and which was repealed by a fubfequent
Act, under George I. which allowed them to
fit for feven years, we mall not find that any
law, which may really be called Constitutional,
and which has been enacted fince the Reftora-
tion, has been changed afterwards.
Now, if we compare this fteadinefs of the
Englifh Government with the continual fub-
verfions of the Conftitutional laws of fome an-
cient Republics, with the imprudence of fome
of the laws paffed in their affemblies (#), and
with the ftill greater inconfideratenefs with
which they fometimes repealed the mod fa-
lutary regulations, as it were the day after
they had been enacted, if we call to mind
the extraordinary means to which the Legis-
lature of tho'e Republics, at times fenfible
how its very power was prejudicial to itfelf and
to the State, was obliged to have recourle, in
(a) The Athenians, among other laws, had enacted
one to forbid applying a certain part of the public re-
venues to any other ufe than the expences of the
Theatres and public Shews,
224 THE CONSTITUTION
order, if poffible, to tie its own hands (a),
we fhall remain convinced of the great advan-
tages which attend the Conflitution of the
Engliih Legiflature ().
Nor is this divifion of the Englifh Legifla-
ture accompanied (which is indeed a very for*
tunate circumftance) by any actual divifion of
the Nation : each conflituent part of it pof-
ieffes ftrength fufficient to infure refpect to its
refolutions, yet no real divifion has been made
of the forces of the State. Only a greater
proportional fhare of all thofe diflinctions
which are calculated to gain the reverence of
the People, has been allotted to thofe parts of
the Legiflature which could not poflefs their
(a) In fome ancient Republics, when the Legiflature
wifhed to render a certain law permanent, and at the
fame time miitrufted their own future wifdom, they added
.. claufe to it, which made it death to propofe the revo-
cation of it. Thofe who afterwards thought fuch revo-
cation neceffary to the public welfare, relying on the
mercy of the People, appeared in the public Affembly
with an halter about thei. necks.
{'') We fhall perhaps have occafion to obferve, here-
aftc, that the true caufe of the equability of the operations
of the Englifh Legiflature, is the oppofnion that happily
takes place between the different views and interefts of
ihe leveral bodies that compofe it : a confederation this,
without whkh all political inquiries are no more than
airy fpeculations, and is the only one that can lead to
uieful practical concluficns.
OFENGLAND. 225
confidence, in fo high a degree as the others ;
and the inequalities in point of real ftrength be-
tween them, have been made up by the magic
of dignity.
Thus, the King, who alone forms one part
of the Legiflature^ has on his fide the ma-
jelly of the kingly title : the two Houfes
are, in appearance, no more than Councils
entirely dependent on him ; they are bound to
follow his perfon; they only meet, as it feems,
toadvifehim; and never addrefs him but in
the moll folemn and refpedtful manner.
As the Nobles, who form the fecond or-
der of the Legiflature, bear, in point both of
real weight and numbers, no proportion to the
body of the People (a), they have received
[a) It is for want of having duly confidered this fub-
jett, that Mr. RoufTeau exclaims, fomewhere, againlt.
thofe who, when they fpeak of General Eftates of France,
" dare to call the people, the third Eftate." At Rome,
where all the order we mention was inverted, where
the fafces were laid down at the feet of the People,
and where the Tribunes, whofe function, like that of
the King of England, was to eppofe the eftablifhmert
of new laws, were only a fubordinate kind of Ma-
<*}ftracy, many diforders followed. In Sweden, and in
Scotland (before the union), faults of another kind pre-
vailed : in the former kingdom, for inftance, an over-
grown body of two thoufand Nobles frequently over-ruled
both King and People.
226 THE CONSTITUTION
as a compenfation, the advantage of perfonal
honours, and of an hereditary title.
Befides, the eftablifhed ceremonial gives to
their Aflembly a great pre-eminence over that
of the Reprefentatives of the People. They
are the upper Houfe, and the others are the
lower Houfe. They are in a more fpecial man-
ner confieJered as the King's Council, and it is
in the place where they affemble that his
Throne is placed.
When the King comes to the Parliament,
the Commons are fent for, and make their ap-
pearance at the bar of the Houfe of Lords.
It is moreover before the Lords, as before
their Judges, that the Commons bring their
impeachments. When, after pafling a bill
in their own Houfe, they fend it to the Lords
to defire their concurrence, they always order
a number of their own Members to accompany
it {a) : whereas the Lords fend down their
bills to them, only by fome of the Affiftants
of their Houfe (b). When the nature of the
[a) The Speaker of the Houfe of Lords muft come
down from the woolpack to receive the bills which the
Members of the Commons bring to their Houfe.
(b) The twelve Judges and the Matters in Chancery.
There is alfo a ceremonial eftablittied with regard to the
manner, and marks of refpeft, with which thofe two of
them, who are fent with a bill to the Commons, are re-
deliver it.
OF ENGLAND. 227
alterations which one of the two Houfes de-
fires to make in a bill fent to it by the other,
renders a conference between them neceffary,
the Deputies of the Commons to the Com-
mittee which is then formed of Members
of both Houfes^ are to remain uncovered.
Laftly, thofe bills which (in whichever of the
two Houfes they have originated) have been
agreed to by both, mult be depofited in the
Houfe of Lords, there to remain till the Royal
pleafure is iignified.
Befides, the Lords are Members of the
Legiflature by virtue of a right inherent in their
perfons, and they are fuppofed to fit in Parlia-
ment on their own account^ and for the fup-
port of their own interefls. In confequence
of this they have the privilege of giving their
votes by proxies (a) ; and, when any of them
diffent from the refolutions of their Houfe, they
may enter a proteft againft them, containing
the reafons of their particular opinion. In a
word, as this part of the Legiflature is deftined
frequently to balance the power of the People.,
what it could not receive in real itrength,
it has received in outward fplendor and great-
{a) The Commons have not that privilege, becaufs
they are themfelves proxies for the People, See Coke 3
Inft. iv. p. 41.
O 2
22 3 THE CONSTITUTION
nefs ; fo that, when it cannot refill by its.
weight, it overawes by its apparent magni-
tude.
In fine, as thefe various prerogatives by
which the component parts of the Legiilature
are thus made to balance each other, are all
intimately connected with the fortune of State,
and flourifh and decay according to the viciffi-
tudes of public prosperity or adverfity, it thence
follows, that, though differences of opinions may
at fome times take place between thofe parts,
there can fcarcelv arife anv, when the general
welfare is really in queflion. And when, to
refolve the doubts that may arife in political
{peculations of this kind, we caff our eyes on
the debates of the two Houfes for a long fuc-
ceffion of years, and fee the nature of the
laws which have been propofed, of thofe which
have parTed, and of thofe which have been
rejected, as well as of the arguments that have
been urged on both fides, we fhall remain con-
vinced of the goodnefs of the principles on
which the Englifh Legiilature is formed,
OF ENGLAND. 229
CHAP. IV.
A third Advantage peculiar to the EngUJh Govern*
ment. The Bujinefs of propojing Laws, lodged
in the Hands of the people.
A Third circumftance which I propofe to
ftiow to be peculiar to the Englifh Go-
vernment, is the manner in which the refpec-
tive offices of the three component parts of the
Legiflature have been divided, and allotted to
each of them.
If the Reader will be pleafed to obferve, he
will find that in mod of the ancient free States,
the fhare of the People in the bufinefs of Le-
giflation, was to approve, or reject, the pro-
portions which were mad to them, and to give
the final fanction to the laws. The function
of thofe Perfons, or in general thofe Bodies,
who were intrufted with the Executive power,
was to prepare and frame the Laws, and then
to propofe them to the People : and in a word,
they poffefTed that branch of the Legiilative
power which may be called the initiative, that
is, the prerogative of putting that power in
action (a),
(a) This power of previoufly confidering and approv-
ing fuch laws as were afterwards to be propounded to
Q-3
2 3 o THE CONSTITUTION
This initiative, or exclulive right of pro-
pofing, in Legiflative afTemblies, attributed tq
the Magiftrates, is indeed very ufeful, and per-
haps even neceffary, in States of a republican
form, for giving a permanence to the laws, as
well as for preventing the diforders and flrug-
gles for power which have been mentioned be-
fore ; but upon examination we mail find that
this expedient is attended with inconveniences
of little lefs magnitude than the evils it is
meant to remedy.
the People, was, in the firft times of the Roman Re-
public, copftantly exercifed by the Senate : laws were
made, Populi jujfu, ex aucloritate Senatus. Even in cafes
of elections, the previous approbation and autloritas of
the Senate, with regard to thofe perfons who were of-
fered to the fufFrages of the People, was required. Turn
enim non gerebat is magijlratum qui ceperat, Ji Patres auc-
tores non erant faEii. Cic. pro Plancio, 3.
At Venice the Senate alfo exercifes powers of the fame
kind, with regard to the Grand Council or Aflembly of
the Nobles. In the Canton of Bern, all proportions muft
be difcuffed in the Little Council, which is compofed of
twenty-feven Members, before they are laid before the
Council of the Two hundred, in whom refides the fo-
yereignty of the whole Canton. And in Geneva, the law
is, that nothing fhall be treated in the General Council,
* or Affembly of the Citizens, which has not been pre-
f vioufly treated and approved in the Council of the
' Two hundred ; and that nothing fhall be treated in the
*' Two hundred, which has not been previoufly treated
"' and approved in the Council of the Twenty -Jive,' 1
O F E N G L A N D. 23
Thefe Magiflrates, or Bodies, at firft indeed
apply frequently to the Legiflature for a grant
of fuch branches of power as they dare not of
themfelves affume, or for the removal of fuch
obflacles to their growing authority as they
do not yet think it fafe for them peremptorily
to fet afide. But when their authority has at
length gained a fufBcient degree of extent and
{lability, as farther manifestations of the will
of the Legiflature could then only create ob-
structions to the exercife of their power, they
begin to confider the Legiflature as an enemy
whom they muft take great care never to roufe.
They confequently convene the AfTembly
of the People as feldom as they can. When
they do it, they carefully avoid proposing
any thing favourable to public liberty. Soon
they even entirely ceafe to convene the AfTem-
bly at all ; and the People, after thus lofing
the power of legally afferting their rights, are
cxpofed to that which is the highefl degree of
political ruin, the lofs of even the remem-
brance of them , unlets fome indirect means
are found, by which they may from time to
time give life to their dormant privileges ;
means which may be found, and fucceed
pretty well in fmall States, where provifions
can more eafily be made to anfwer their m-
O A
232 THE CONSTITUTION
tended ends, but in States of confiderable ex-
tent, have always been found, in the event,
to give rife to diforders of the fame kind with
thofe which v/ere at fjrft intended to be pre-
vented.
But as the capital principle of the Englifh
Conftitution totally differs from that which
forms the bafis of Republican Governments,
b is it capable of procuring to the People
advantages that are found to be unattain-
able in the latter. It is the People in Eng-
land, or at leafl thofe who reprefeqt them,
who po fiefs the initiative in Legislation, that
is to fay, who perform the office of framing
laws, and propofmg them. And among the
many circumitances in the Englifh Govern-
ment, which would appear entirely new to the
Politicians of antiquity, that of feeing the
perfon intruded with the Executive power bear
that fhare in Legislation which they looked
upon as being necefTarily the lot of the People,
and the People that which they thought the
indifpenfable office of its Magiftrates, would not
certainly be the leafl occafion of their furprize.
I forefee that it will be objected, that, as
the King of England has the power of dif-
folving, and even of not calling Parliaments,
lie is hereby poilefled of a prerogative which
OF ENGLAND. 233
in fact is the fame with that which I have juft
now reprefented as being fo dangerous.
To this I anfwer, that all circumstances
ought to be combined together. Doubtlefs, if
the Crown had been under no kind of depen-
dence whatever on the people, it would long
fince have freed itfelf from the obligation of
calling their Reprefentatives together ; and the
Britifh Parliament, like the National AfTem-
blies of feveral other Kingdoms, would moll
likely have no existence now, except in Hiftory.
But, as we have above feen, the neceffities
of the State, and the wants of the Sovereign
himfelf, put him under a neceffity of having
frequently recourfe to his Parliament ; and then
the difference may be feen between the prero-
gative of not calling an AfTembly, when power-
ful caufes neverthelefs render fuch a meafure
neceffary, and the exclufive right, when an Af-
fembly is convened, of propofing laws to it.
In the latter cafe, though a Prince, let us
even fuppofe, in order to fave appearances,
might condefcend to mention any thing be-
tides his own wants, it would be at molt to
propofe the giving up of fome branch of his
prerogative upon which he fet no value, or to
reform fuch abufes as his inclination does not
lead him to imitate; but he would be very
234 THE CONSTITUTION
careful not to touch any points which might
materially affect his authority.
Befides, as all his conceffions would be
made, or appear to be made, of his own mo-
tion, and would in fonie meafure feem to fpring
from the activity of his zeal for the public wel-
fare, all that he might offer, though in fact
ever fo inconfiderable, would be reprefented
by him as grants of the moil important na-
ture, and for which he expects the highefl gra-
titude. Laftly, it would alfo be his province
to make reflections and exceptions to laws
thus propofed by himfelf ; he would alfo be
the per fon who were to chufe the words to ex-
prefs them, and it would not be reafonable to
expect that he would give himfelf any great
trouble to avoid all ambiguity (a).
{a) In the beginning of the exigence of the Houfe of
Commons, bills were prefented to the King under the
form of Petitions. Thofe to which the King affented 4
were regiflered among the rolls of Parliament, with his
anfwer to them ; and at the end of each Parliament, the
Judges formed them into Statutes. Several abufes hav-
ing crept into that method of proceeding, it was or-
dained that the Judges fhould in future make the Sta
tute before the end of every Sefiion. Ladly, as ever,
that became, in procefs of time, infufheient, the prefer.:
method of framing bills was eflablifhed ; that is to fay,
both Houfes now frame the Statutes in the very form
and words in which they are to Hand when they have
received the Roval aJlent.
OF ENGLAND. 235
But the Parliament of England is not, as
we faid before, bound down to wait paifively,
and in filence for fuch laws as the Executive
power may condefcend to propofe to them.
At the opening of every Seffion, they of them-
felves take into their hands the great book of
the State ; they open all the pages, and ex-
amine every article.
When they have difcovered abufes, they
proceed to enquire into their caufes : when
thefe abufes arife from an open difregard
of the laws, they endeavour to ftrengthen
them ; when they proceed from their infuffi-
ciency, they remedy the evil by additional pro-
vifions (V).
{a) No popular Affembly ever enjoyed the privilege
of flatting, canvafling, aud proposing new matter, to
fuch a degree as the Englifh Commons. In France,
when their General Eftates were allowed to fit, their
remonjlrcmces were little regarded, and the particular
Eltates of the Provinces dare now hardly prefent any.
In Sweden, the Power of propofing new fubjects was
lodged in an AiTembly called the Secret Committee, com-
pofed of Nobles, and a few of the Clergy ; and is now
poffeffed by the King, In Scotland, until the Union,
all propofitions to be laid before the Parliament, were to
be framed by the perfons called the Lords of the Articles \
In regard to Ireland, all bills mull be prepared by
the King in his Privy Council, and are to be laid before
the Parliament by the Lord Lieutenant, for their af-
fnt or diffent : only, they are allowed to difcufs, among
ihem, what they c;.ll Heads of a Bill, which the Lord
ztf THE CONSTITUTION
Nor do they proceed with lefs regularity and
freedom, in regard to that important object,
fubfidies. They are to be the fole Judges of
the quantity of them, as well as of the ways
and means of raifing them ; and they need not
come to any refolution with regard to them, till
they fee the fafety of the Subject completely
provided for. In a word, the making of laws,
is pot, .in fuch an arrangement of things, a gra-
tuitous contract, in which the People are to take
jufl what is given them, and as it is given them :
it is a contract in which they buy and pay,
and in which they themfelves fettle the different
conditions, and furnifh the words to exprefs
them.
The Englim Parliament have given a Hill
greater extent to their advantages on fo im-
portant a fubject. They have not only fe-
cured to themfelves a right of propofmg laws
and remedies, but they have alfo prevailed
Lieutenant is defired afterwards to tranfmlt to the King,
who feletts out of them what claufes he thinks proper,
or fets the whole afide ; and is not expe&ed to give at
<iny time, any precife anfwer to them. And in repub-
lican Governments, Magiftrates are never at reft till
they have entirely fecured to themfelves the important
privilege of fropof.ng ; nor does this follow merely from
their ambition ; it is alfo the confequence of the fituatiou
they are in, from the principles of that mode of Govern
ment.
OF ENGLAND. 237
on the Executive power to renounce all claim
to do the fame. It is even a conftant rule that
neither the King nor his Privy Council, can
make any amendments to the bills preferred by
the two Houfes ; but the King is merely to ac-
cept or reject them : a provifion this, which,
if we pay a little attention to the fubjedt, we
fhall find to have been alio neceffary for com-
pletely fecuring the freedom and regularity of
the parliamentary deliberations (#).
I indeed confefs that it fcems very natural,
in the modelling of a State, to intruft this
very important office of framing laws, to
thofe perfons who may be fuppofed to have
{a) The King indeed at times fends meffages to either
Houfe ; and nobody, I think, can wifh that no means of
intercourfe mould exift between him and his Parliament.
But thefe mefiages are always exprefied in very general
words : they are only made to defire the Houfe to take
certain fubje&s into their confideration ; no particular ar-
ticles or claufes are exprefied ; the Commons are not to
declare, at any fettled time, any folemn acceptation or
rejection of the propofition made by the King ; and, in
fhort, the Houfe follows the fame mode of proceeding,
with refpeft to fuch mefTages, as they ufually do in regard
to petitions prefented by private individuals. Some Mem-
ber makes a motion upon the fubjeft exprefied in the
King's meflage ; a bill is framed in the ufual way ; it
may be dropt at every ftage of it ; and it is never the
propofal of the Crown, but the motions of fome of their
own Members, which the Houfe difcufs, and finally ac-
cept or rejeft.
n
% THE CONSTITUTION
before acquired experience and wifdom, in the
management of public affairs. But events have
unfortunately demonflrated, that public era-
ployments and power improve the underfland-
ing of Men in a lefs degree than they pervert
their views ; and it has been found in the iffue
that the effect of a regulation which, at firft
light, feems fo perfectly confonant with pru-
dence, is to confine the People to a mere paf-
five and defenfive fhare in Legiflation, and to
deliver them up to the continual enterprizes
of thofe who, at the fame time that they are
under the greatefl temptations to deceive them^
pofTefs the moil powerful means of effecting
it.
If we call our eyes on the Hiflory of the
ancient Governments, in thofe times when
the perfons entrufled with the Executive power
were Hill in a flate of dependence on the Le-
giflature, and confequently frequently obliged
to have recourfe to it, we fhall fee almofl con-
tinual inftances of felfifh and infidious laws
propofed by them ro the Aflemblies of the
people.
And thofe Men in whofe wifdom the law
had at fir ft placed fo much confidence, be-
came, in the iffue, fo loll to all fenfe of
fhame and duty, that when arguments were
found to be no longer fufficicnt, they had
OF ENGLAND* 239
recourfe to force; the legiflative AfTemblies
became fo many fields of battle, and their
power, a real calamity.
I know very well, however, that there are
other important circumstances befides thofe
I have juft mentioned, which would prevent
diforders of this kind from taking place in Eng-
land (a). But, on the other hand, let us call to
mind that the perfon who, in England, is in-
verted with the Executive authority, unites in
himfelf the whole public power and majefty.
Let us reprefent to ourfelves the great and fole
Magiftrate of the Nation, preffing the accept-
ance of thofe laws w r hich he had propofed,
with a vehemence fuited to the ufual importance
of his defigns, with the warmth of Monarchical
pride, which mult meet with no refufal, and
exerting for that purpofe all his immenfe re-
four ces.
It was therefore a matter of indifpenfable
necemty, that things mould be fettled in Eng-
land in the manner they are. As the moving
fprings of the Executive power are, in the
hands of the King, a kind of facred depofitum, (&
[a] I particularly mean here, the circumftance of the
People having entirely delegated their power to their Re-
prefentatives : the confequences of which Inftkution will
be difcuffed in the rext Chapter.
2 4 o THE CONSTITUTION
are thofe'of the Legillative Power in the hands'
of the two Houfes. The King muit abftain
from touching them, in the fame manner as all
the fubjects of the kingdom are bound to fub-
mit to his prerogatives. When he fits in' Parli-
ament, he has left, v/e may fay, his execu-
tive power without doors, and can only affent
or diffent. If the Crown had been allowed to
take an active part in the buiinefs of making
laws, it would foon have rendered ufelefs the
other branches of the Legiflature.
CHAP. V.
In which an Inquiry is made, whether it would be
an Advantage to public Liberty, that the Laws
JJjould be enatted by the Votes of the People at
large.
U T it will be faid, whatever may be
the wifdom of the Englifh Laws, how
great foever their precautions may be with
regard to the fafety of the individual, the
People, as they do not themfelves exprefsly enact
them, cannot be looked upon as a free People.
Th Author of the Social Contrail carries this opi'
3
OF ENGLAND. 241
mon even farther ; he fays, that, " though
ii the people of England think they arc free,
cc they are much miftaken ; truy are fo only
" during the election of Members for Par-
" liament : as foon as thefe are elected, the
" People are flavesr they are nothing (a)"
Before I anfwer this objection, I fhall ob-
ferve, that the word Liberty is one of thofe
which have been mofl mifunderftood or mis-
applied.
Thus, at Rome, where that clafs of Citi-
zens who were really Matters of the State,
were fenfible that a lawful regular authority,
once trufted to a fingle Ruler, would put an
end to their tyranny, they taught the People
to believe, that, provided thofe who exercifed
a military power over them, and overwhelmed
them with infults, went by the names of
Confides, Diulatores, Patricii, Nobiks, in a
word, by any other appellation than that
horrid one of Rex, they were free, and that
fuch a valuable fituation muft be preferred
at the price of every calamity.
In the fame manner, certain Writers of
the prefent age, milled by their inconsiderate
admiration of the Governments of ancient
{a) See M, Rouffeau's Social Contract, chap. xv.
R
242 THE CONSTITUTION
times, and perhaps alfo by a defire of preferr-
ing lively contrails to what they call the de-
generate manners of our modern times, have
cried up the governments of Sparta and Rome,
as the only ones fit for us to imitate. In
their opinions, the only proper employment
of a free Citizen is, to be either inceffantly af-
fembled in the forum, or preparing for war. Be-
ing valiant, inured to hardjbips, inflamed with an
ardent love of one's Country, which is, after all,
nothing more than an ardent defire of injur-
ing all Mankind for the fake of that Society
of which we are Members and zvith an ardent
love of glory, which is likewife nothing more
than an ardent defire of committing Slaugh-
ter, in order to make afterwards a boaft of it,
have appeared to thefe Writers to be the only
focial qualifications worthy of our efteem, and
of the encouragement of law-givers (a). And
while, in order to fupport fuch opinions, they
have ufed a profufion of exaggerated expref-
fions without any diftindt meaning, and perpe-
tually repeated, though without defining them,
the words dajlardlinefs, corruption, greatnefs of
(a) I have ufed all the above exprefiions in the fame
fenfe in which they were ufed in the ancient Commoa-
wealths, and Mill are by moll of the Writers who defcribe
tbeir Governments.
OF ENGLAND. 243
foul, and virtue, they have never once thought
of telling us the only thing that was worth our
knowing, which is, whether men were happy
under thofe Governments which they fo much
exhorted us to imitate.
Nor, while they thus mifapprehended the
only rational defign of civil Societies, have
they better underftood the true end of the par-
ticular inftiturions by which they were to be
regulated. They were fatisfied when they favv
the few who really governed every thing in
the State, at times perform the illulbry cere-
mony of affembling the body of the People,
that they might appear to confult them : and
the mere giving of votes, under any difadvan-
tage in the manner of giving them, and
how much foever the law might afterwards
be negledted that was thus pretended to have
been made in common, has appeared to them
to be Liberty.
But thofe Writers are in the right ; ' a
Man who contributes by his vote to the
palling of a law, has himfelf made the law ;
in obeying it, he obeys himfelf, he there-
fore is free, A play on words, and no-
thing more. The individual who has voted
in a popular legiilative AfTembly, has not
R z
244 THE CONSTITUTION
made the law that has palled in it; he has
only contributed^ or feemed to contribute, to-
wards enacting it, for his thousandth, or even
ten thoufandth fhare : he has had no oppor-
tunity of making his objections to the pro-
poicd law, or of canvafiing it, or of propos-
ing reitrictions to it, and he has only been
allowed to cxprefs his afient, or diffent. When
a law is paffed agreeably to his vote, it is
not as a confequence of this his vote, that
his will happens to take place; it is becaufe
a number of other Men have accidentally
thrown themfelves on the fame fide with
him: when a law contrary to his intentions
is enacted, he mud neverthelefs fubmit to
it.
This is not all ; for though we mould
fuppofe that to give a vote is the effential
constituent of liberty, yet, fuch liberty could
only be faid to lafl for a fingle moment, after
which it becomes neccfiary to trull entirely
to the diferetion of other perfons, that is, ac-
cording to this doctrine, to be no longer free.
It becomes neceffary, for inftance, for the Ci-
tizen who has given his vote, to rely on the
honeily of thole who collect the fufTr^y
and more than once have falfe declarations been
made of them.
OF ENGLAND. iy D
The Citizen mufl alfo truft to other per-
fons for the execution of thofe things which
have been refolved upon in common : and
when the affembly fhall have feparated, and
he fhall find himfelf alone, in the prefence
of the Men who are invefted with the public
power, of the Confuls, for inftance, or of the
Dictator, he will have but little fecurity for
the continuance of his liberty, if he has only
that of having contributed by his fuffrage to-
wards enacting a law which they are determined
to neglect.
What then is Liberty ? Liberty, I would
anfwer, fo far as it is poffible for it to exiit
in a Society of Beings whofe interefts are
almoft perpetually oppofed to each other,
confifts in this, that, every Man, zvhile he re-
fpebls the perfons of others, and allozvs them
quietly to enjoy the produce of their indvfiry,
be certain himfelf likezvife to enjoy the pro-
duce of his own indujlry, and that his per-
fin be alfo fecure. But to contribute by one's
fuffrage to procure thefe advantages to the
Community, to have a fhare in eftablifhing
that order, that general arrangement of things,
by means of which an individual, loft as it
were in the croud, is effectually protected,
to lay down the rules to be obferved bv thofe
a 4 6 THE CONSTITUTION
xvho, being in veiled with a confiderable power,
are charged with the defence of individuals,
and provide that they Ihould never tranfgrefs
them, thefe are functions, are acts of Go-
vernment, but not conflituent parts of Li-
berty.
To exprefs the whole in two words : To
concur by one's fuffrage in enacting laws, is
to enjoy a mare, whatever it may be, of Power :
ro live in a ft ate where the laws are equal for
all, and lure to be executed (whatever may be
the means by which thefe advantages are at-
tained) is to be free.
Be it (q; we grant that to give one's fuf-
frage is not liberty itfelf, but only a means of
procuring it, and a means too which may de-
generate to mere form ; we grant alfo_> that
it is pofiible that other expedients might be
found for that purpofe, and that, for a Man to
decide that a State with whofe Government
and interior adminiflration he is unacquainted,
is a State in which the People are Jlaves,
are nothing, merely becaufe the Conritia of an-
cient Rome are no longer to be met with
in it, is a fcmewhat precipitate decifion.
But ftill wc muft continue to think, that li-
berty would be much more complete, if the
People at large were exprefsly called upon to
OF ENGLAND, 247
give their opinion concerning the particular
provisions by which it is to be fecured, and
that the Englifh laws, for inftance, if they were
made by the fuffrages of all, would be wifer,
more equitable, and, above all, more likely to
be executed. To this objection, which is
certainly fpecious, I mall endeavour to give an
anfwer.
If, in the firft formation of a civil Society,
the only care to be taken was that of eftablim-
ing, once for all, the feveral duties which
every individual owes to others, and to the
State, if thofe who are intruded with the
care of procuring the performance of thefe
duties, had neither any ambition, nor any
other private paffions, which fuch employ-
ment might put in motion, and furnifh the
means of gratifying ; in a word, if looking
upon their function as a mere talk of duty,
they were never tempted to deviate from the
intentions of thofe who had appointed them ;
I confefs that in fuch a cafe, there might be
no inconvenience in allowing every individual
to have a fhare in the government of the com-
munity of which he is a member; or rather
I ought to fay, in fuch a Society, and among
fuch Beings, there would be no occafion for
any Government.
R 4
2 4 3 THE CONSTITUTION
But experience teaches us that many mors
precautions, indeed, ' are neceffary to oblige
Men to be jufl towards each other ; nay, the
very fir ft expedients that may be expected to
conduce to fuch an end, fupply the moll fruit-
ful fourcc of the evils which are propofed
to be prevented. Thofe laws which were
intended to be equal for all, are foon warped
to the private convenience of thofe who have
been made the adm ini fixators of them : in-
flituted at firft for the protection of all, they
foon are made only to defend the ufurpations
of a few ; and as the People continue to re-
flect them, while thofe to whofe guardian-
fhip they were intrufled make little account
of them, they at length have no other effect
than that of fupplying the want of real ftrength
in thofe few who have contrived to place
themfelves at the head of the community, and
of rendering regular and free from danger the
tyranny of the fmaller number over the greater.
To remedy, therefore, evils which thus
have a tendency to refult from the very na-
ture of things, to oblige thofe who are in a
manner Mailers of the law, to conform them-
felves to it, to render ineffectual the filent,
powerful, and ever active confpiracy of thofe
who govern, requires a degree of knowledge,
O F E N G L A N D. 249
tmd a fpirit of prefeverance, which are not to
be expected from the multitude.
The greater part of thole who compofe
this multitude, taken up with the care of pro-
viding for their fubfiltence, have neither fuf-
ficient leifure, nor even, in confequence of
their more imperfect education, the degree of
information requifite for functions of this
kind. Nature, befides, who is fparing of
her gifts, has bellowed upon only a few Men
an understanding capable of the complicated
refearches of Legiflation ; and, as a fick Man
trufts to his Phyfician, a Client to his Lawyer,
fo the greater number of the Citizens mult
truft to thofe who have more abilities than
themfelves for the execution of things which,
at the fame time that they lb materially
concern them, require fo many qualifications
to perform them with any degree of fufri-
ciency.
To theie confiderations, of themfelves fo
material, another rauft be added, which is
if pomble of ftill greater weight. This is, that
the multitude, in confequence of their very
being a multitude, are incapable of coming to
any mature refolution.
Thofe who compofe a popular Aflembly
are not actuated, in the courfe of their de-
lS o THE CONSTITUTION
liberations, by any clear and precife view of
any prefent or pofitive perfonal intereft. As
they fee themfelves loll as it were in the croud
of thofe who are called upon to exercife the
fame function with themfelves, as they know
that their individual votes will make no change
in the public refolution, and that, to whatever
fide they may incline, the general refult will
neverthelefs be the fame, they do not under-
take to enquire how far the things propofed
to them agree with the whole of the laws
already in being, or with the prefent circum-
ftances of the State, becaufe Men will not en-
ter upon a laborious tafk, when they know
that it can fcarcely anfwer any purpofe.
It is, however, with difpofitions of this kind,
and each relying on all,' that the AfTembly of
the People meets. But as very few among
them have previously confidered the fubjedts
on which they are called upon to determine,
very few carry along with them any opinion or
inclination, or at leaft any inclination of their
own, and to which they are refolved to ad-
here. As however it is neceffary at lad to come
to fome refolution, the major part of them
are determined by reafons which they would
blufh to pay any regard to., on much lefs fe-
OFENGLAND. 251
rious occasions. An unufual fight, a change
of the ordinary place of the Afiembly, a fud-
den difturbaace, a rumour, are, a mid ft the ge-
neral want of a fpirit of decifion, the fifficiens ratio
of the determination of the greateft part (#) ;
and from this affemblage of feparate wills,
thus formed haftily and without reflection, a
general will refults, which is alfo void of re-
flection.
If, amidft thefe difadvantages, the Afiemblv
were left to themfelves, and no body had an
intereft to lead them into error, the evil,
though very great, would not however be
extreme, becaufe fuch an aiTembly never being
called upon but to determine upon an affirmative
or negative, that is, never having but two cafes
to choofe between, there would be an equal
chance for their choofing either ; and it might
be hoped that at every other turn they would
take the right fide.
But the combination of thofe who fhare ei-
ther in the actual exercife of the public Power,
(a) Every one knows of how much importance it was
in the Roman Commonwealth, to affemble the People,
in one place rather than another. In order to change
entirely the nature of their refolutions, it was often
fufficient to hide from them, or let them fee, the Capitol.
3
i S z THE CONSTITUTION
or in its advantages, do not thus allow them*
felves to fit down in inaction. They wake,
while the People fleep. Entirely taken up with
the thoughts of their own power, they live but.
to increafe it. Deeply verfed in the manage-
ment of public bufmefs, they fee at once all
the poflible confequences of meafures. And
as they have the exclusive direction of the
fprings of Government, they give rife, at
their pleafure, to every incident that may
influence the minds of a multitude who are
not on their guard, and who wait for fomc
event or other that may finally determine
them.
It is they who convene the Affemblv, and
diffolvc it ; it is they who offer proportions,
and make fpceches to it. Ever active in turn-
ing to their advantage every circumftance
that happens, they equally avail themfelves
of the tractablenefs of the People during pub-
lic calamities, and its heedleffnefs in times
of profperity. When things take a differ-
ent turn from what they expected, they dif-
mifs the Affemblv. By prefenting to it ma-
ny proportions at once, and which arc to
be voted upon in the lump, they hide what
is deftined to promote their own private views,
or give a colour to it, by joining it with things
which thev know will take hold of the mind
OF ENGLAND.
2$.
of the People (a). By preferring in their
fpeeches, arguments and fads, which Men have
no time to examine, they lead the People into
grofs, and yet decifive errors ; and the common-
places of rhetoric, fupported by their perfonal
influence, ever enable them to draw to their
fide the majority of votes.
On the other hand, the few (for there
are, after all, fome) who, having meditated
on the propofed cpaeftion, fee the confcquences
of the decifive ftep which is juft going to
be taken, being loll in the croud, cannot
make their feeble voices to be heard in the
midfl of the univerfal noife and confufion.
They have it no more in their power to Hop
the general motion, than a Man in the midft
of 'an army on a march, has it in his power
to avoid marching. In the mean time, the
People are giving their fuffrages ; a majority
[a) It was thus the Senate, at' Rome, afTumed to itfelf
the power of laying taxes. They promifed, in the time of
the war againfl the Veientes, to give pay to fuch Citizens
as would inlift : and to that end they eftabliih a tribute.
The people, folely taken up with the idea of not going to
war at their own expence, were tianfported with fo much
joy, that they crouded at the door of the Senate, and lay-
ing hold of the hands of the Senators, called them their
Fathers Nihil unquam acceptum a plebe tanto gandio tradi-
tur : concur/urn itaque Curiam eJTe, preber.fatafque excu;:tium
viflniU) Patres "jere appellatos, sfc. See Tit. Li\\ book iv,
254 THE CONSTITUTION
appears in favour of the propofal ; 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 defigning Men, who are ex-
ulting among themfelves (a).
(a) I might confirm all thefe things by numberlefs in-
stances from ancient Hiftory ; but, if I may be allowed, in
this cafe, to draw examples from my own'Country, cjf cele-
brare domejlica facia, I {hall relate fails which will be no
lefs to the purpofe. In Geneva, in the year 1707, a law
was enadled, that a General Affembly of the People fhould
be held eveiy five years, to treat of the affairs of the Re-
public ; but the Magiftrates, who dreaded thofe Affem-
blies, foon obtained from the Citizens themfelves the re-
peal of the law ; and the firft refolution of the People,
in the firft of thefe periodical AfTemblies (in the year 171 2)
was to abolifh them for ever. The profound fecrecy with
which the Magiftrates prepared their propofal to the Ci-
tizens on that fubjeft, and the fudden manner in which
the latter, when afiembled, were acquainted with it, and
made to give their votes upon it, have indeed accounted
but imperfectly for this ftrange determination of the Peo-
ple ; and the confternation which feized the whole Affem-
bly when the refult of the fuffrages was proclaimed, has
confirmed many in the opinion that fome unfair means had
been ufed. The whole tranfa&ion has been kept fecret to
this day ; but the common opinion on this fubject, which
has been adopted by M. Rouffeau in his Lettres de la
Montagnt, is this : the Magiftrates, it is faid, had pri-
vately inftrufted the Secretaries in whofe ears the Citizens
were to ivbifper their fuffrages : when a Citizen faid, ap-
probation, he was underftood to approve the propofal of
the Magiftrates ; when he faid, rejection^ he was underftood
;o reject the periodical JJJemblies,
O F E N G L A N D. 255
In a word, thofe who are acquainted with
Republican Governments, and, in general, who
know the manner in which bufinefs is tranf-
acted in numerous Affemblies, will not fcruple
to affirm, that the few who are united to-
gether, who take an active part in public
affairs, and whofe ftation makes them con-
In the year 1738, the Citizens enacted at once into laws
a fmall Code of forty-four Articles, by one fingle line
of which they bound themfelves for ever to eleft the four
Syndics (the Chiefs of the Council of the Twenty-five) out
of the Members of the fame Council ; whereas they were
before free in their choice. They at that time fuffered
alfo the word approved to be flipped into the law mentioned
in the Note (a) p. 185, which was tranfcribed from a for-
mer Code ; the confequence of which was to render the
Magistrates abfolute mailers of the Legiflature.
The Citizens had thus been fuccefiively dripped of all
their political rights, and had little more left to them than
the pleaiure of being called a Sovereign JJjembly, when
they met (which idea, it mull be confeffed, preferved
among them a fpirit of rcfiftance which it would have
been dangerous for the Magiftrates to provoke too far),
and the power of at leafl; refufing to eleft the four Syn-
dics. Upon this privilege the Citizens have, a few years
ago, (A. 1755, to 1 ; 68.) made their laft ft and : and a
lingular conjunction of circumftances having happened at
the fame time, to raife and preferve' among them, during
three years, an uncommon fpirit of union and perfeverance,
they have in the iffue fucceeded in a great meafure to re-
pair the injuries which they had been made to do to them-
felves, for thefe laft two hundred years and more. (J total
change has fine e that time been ajfetled by foreign forces, in
the Government of the Republic (A. 1782) upon which thif,
is not a proper place te make anj obfcrvaticn.J
2i 6 THE CONSTITUTION
fpicuous, have fuch an advantage over the
many who turn their eyes towards them, and are
without union among themfelves, that, even
with a middling degree of ikill, they can at all
limes direct, at their pleafure, the general refo-
lutions; that, as a confequencc of the very
nature of things, there is no propofal, however
abfurd, to which a numerous aflembly of Men
may not, at one time or other, be brought to
affent; and that laws would be wifer, and
more likely to procure the advantage of all, if
they were to be made by drawing lots, or calling
dice, than by the fuffrages of a multitude.
C H A P. VI.
Advantages that accrue to the People from appoint-
ing Reprefentatives*
HOW then mail the People remedy the dif-
advantages that neceflarily attend their
fituation ? How fhall they refill the phalanx of
thofe who have engroffed to themfelves all the
honours, dignities, and power in the State ?
It will be by employing tor their defence the
fame means by which their adverfaries carry on
their attacks : it will be by ufmg the fame
weapons as they do, the fame order, the fame,
kind of difcipline.
OF ENGLAND. 257
They are a fmall number, and confequently
ealily united ; a fmall number muft therefore
be oppofed to them, that a like union may
alfo be obtained. It is becaufe they are a
fmall number, that they can deliberate on every
occurrence, and never come to any rcfolu-
tions but fuch as are maturely weighed
it is becaufe they are few, that they can have
forms which continually ferve them for ge-
neral ftandards to refort to, approved maxims
to which they invariably adhere, and plans
which they never lofe fight of: here there-
fore, I repeat it, oppofe to them a fmall num-
ber, and you will obtain the like advantages.
Befides, thofe who govern, as a farther con-
fequence of their being few, have a more
considerable mare, confequently feel a deeper
concern in the fuccefs, whatever it may be,
of their enterprizes. As they ufually profefs
a contempt for their adverfaries, and are at
all times acting an ofFenfive part againfl them,
they impofe on themfelves an obligation of
conquering. They, in fhort, who are all
alive from the moil powerful incentives, and
aim at gaining new advantages, have to do
with a multitude, who, wanting only to pre-
ferve what they already poffefs, are unavoid-
ably liable to long intervals of inactivity and
S '
S5S THE CONSTITUTION
fupinenefs. But the People, by appointing Re-
prefentatives, immediately gain to their caufe
that advantageous activity w.hich they before
flood in need of, to put them on a par with
their adverfaries ; and thofe paffions become
excited in their defenders by which they them-
felves cannot pofiibly be actuated.
Exclnfively charged with the care of pub-
lic liberty, the Reprefentatives of the Peo-
ple will be animated by a fenfe of the great-
nefs of the concerns with which they are
intruded. Diftinguifhed from the bulk of the
Nation, and forming among themfelves a fe-
parate Afiembly, they will ailert the rights of
which they have been made the Guardians,
with all that warmth which the efprit de corps
is ufed to infpke (a). Placed on an elevated
theatre, they will endeavour to render them-
felves dill more confpicuous ; and the arts and
ambitious activity of thofe who govern, will
now be encountered by the vivacity and per-
feverance of opponents actuated by the love of
glory.
{a) If it had not been for an incentive of this kind,
the Englifh Commons would not have vindicated their
right of taxation with fo much vigilance as they have
done, againfl all enterprizes, often perhaps* involuntary,
of the Lords.
O F E N G L A N D, zfr
Laftly, as the Reprefentativcs of the People
will naturally be feledted from among thofe'
Citizens who are molt favoured by fortune,
and will have confequently much to preferve,
they will, even in the midit of quiet times,
keep a watchful eye on the motions of Power.
As the advantages they poffefs, will naturally
create a kind of rivalihip between them and
thofe who govern, the jcaloufy which they
will conceive againft the latter, will give them
an exquifite degree of fenfibility on every
increafe of their authority. Like thofe de-.
licate inftruments which difcover the ope-
rations of Nature, while they are yet imper-
ceptible to our fenfes, they will warn the
People of thofe things which of themfelves
they never fee but when it is too late ; and
their greater proportional mare, whether of
real riches, or of thofe which lie in the opi*
nions of Men, will make them, if I may fo
exprefs myfelf, the barometers that will dif-
cover, in its firft beginning, every tendency to
a change in the Conftitution (a).
{a) All the above reafoning eiTentially requires that
the Reprefentatives of the People {hould be united in
intereft with the People. We lhall Coon fee that thi*
union really obtains in the Englilh Conftitution, and ma/
be called the mafter-piece of it.
S 2
2o*o THE CONSTITUTION
CHAP. VII.
The Suhjeft continued The Advantages thai ac-
crue to the People from their appointing Repre-
fentatives, are very inconjiderable, unlefs they
aljo entirely trujl their Legiflathe Authority io
them.
npHE obfervations made in the preced-
"** ing Chapter are fo obvious, that the
People themfelves, in popular Governments,
have alway been fenfible of the truth of them,
and never thought it pofiible to remedy, by
themfelves alone, the difadvantages necefiarily
attending their fituation. Whenever the op-
preffions of their Rulers have forced them to
rcfort to fome uncommon exertion ox their le-
gal powers, they have immediately put them-
felves under the direction of thofe few Men
who had been inftrumental in informing and
encou rap-in;? them : and when the nature of
the circumftances has required any degree of
f.rmnefs and perfeverance in their conduct,
they have never been able to attain the ends
they propofed to themfelves, except by means
of the moft implicit deference to thofe Leaders
whom they had thus appointed,
OF ENGLAND. 261
But as thefe Leaders, thus haflily chofen,
are eafily intimidated by the continual dif-
play which is made before them of the terrors
of Power, as that unlimited confidence which
the People now repofe in them, only takes
place when public liberty is in the utmoft
danger, and cannot be kept up otherwife
than by an extraordinary conjunction of cir-
cumftances, and in which thofe who govern
feldom fuffer themfelves to be caught more
than once, the People have conftantly fought
to avail themfelves of the fhort intervals of
fuperiority which the chance of events had gi-
ven them, for rendering durable thofe advan
tages which they knew would, of themfelves,
be but tranfitory, and for getting fome perfons
appointed, whofe peculiar office it may be
to protect them, and whom the Conftitution
fhall thenceforwards recognize. Thus it was
that the People of Lacedasmon obtained their
Ephori, and the People of Rome their Tri-
bunes.
We grant this, will it be faid ; but the
Roman People never allowed their Tribunes
to conclude any thing definitively ; they, on the
contrary, referved to themfelves the right of
ratifying (a) any refolutions the latter mould
take, This, I anfwer, was the very circuiru
($\ See Rouffeau's Social Contract,
S '
262 THE CONSTITUTION
fiance that rendered the inftitution of Tri-
bunes totally ineffectual in the event. The
People thus -wanting to interfere with their own
opinions, in the refolutions of thofe on whom
they had, in their wifdom, determined entirely
to rely, and endeavouring to fettle with an
hundred thoufand votes, things which would
have been fettled equally well by the votes of
their advifers, defeated in the iffue every be-
neficial end of their former provifions ; and
while they meant to preferve an appearance of
their fovereignty (a chimerical appearance,
iince it was under the direction of others that
they intended to vote), they fell back into all
thofe inconveniences which we have before
mentioned.
The Senators, the Confuls, the Dictators,
and the other great Men in the Republic,
whom the People were prudent enough to
fear, and fimple enough to believe, continued
full to mix with them, and play off their
political artifices. They continued to make
ipeeches to them (a), and flill availed them-
{a) Valerius Maximus relates that the Tribunes of the
People having offered to propofe fome regulations in re-
gard to the price o( corn, in a time of great icarcity,
oc!pio Nafica over-ruled the Afiembly merely by faying,
V Sderce, Romans ; I know better than you what h
" expedient for the Republic. Which words were no
11 footer heard by the People, than they fhewed by 3
OF ENGLAND. 2S3
felves of their privilege of changing at their
pleafure the place and form of the public meet-
ings. When they did not find it poflible by
fuch means to direct the refolutions of the Af-
femblies, they pretended that the omens were
not favourable, and under this pretext, or others
of the fame kind, they diflblved them (a). And
the Tribunes, when they had fucceeded fo far
as to effect an union among themfelves, thus
were obliged to fubmit to the pungent mortifi-
cation of feeing thofe projects which they had
purfued with infinite labour, and even through
the greateft dangers, irrecoverably defeated by
the moft defpicable artifices.
When, at other times, they faw that a con-
federacy was carrying on with uncommon
warmth againft them, and defpaired of fuc-
" filence full of veneration, that they were more affefted
" by his authority, than by the neceffity of providing
" for their own fubfiftence." Tacete, qrt.sfo, Quirites,
Plus enim ego quant <vos quid reipublicte expediat intelligo.
Qua voce audita, omnes, pleno <venerationis filentio, major em
ejus autoritatis quam al'tmentorum fuorum curam egerunt.
(a) Quid enim majus ejt, Ji de jure Augurun: quarimus,
fays Tully, who himfelf was an Augur, and a Senator into
the bargain, quam poffe afumviis imperils & fummis potejlaii-
bus Comitatus iff Concilia, vel injlituta dimittcre, <vel babtta
rtfeindere ! Quid gravius, quam rem Jufceptam d'irimi, fi
unus Augur alium (id eft, alium diem) di.xerit ! Se<$
}e Legib. lib. ii. \z.
t
264 THE CONSTITUTION
ceeding by employing expedients of the above
kind, or were afraid of diminishing their effica-
cy by a too frequent ufe of them, they betook
themfelves to other ftratagems. They then
conferred on the Confute, by the means of a
ihort form of words for the occafion (a), an ab-
folute power over the lives of the Citizens, or
even appointed a Diclator. The People, at
the fight of the State mafquerade which was
difplayed before them, were fure to fink into a
ftate of confirmation ; and the Tribunes, how-
ever clearly they might fee through the artifice,
alfo trembled in their turn, when they thus
beheld themfelves left without defenders (<?).
Atj^other times, they brought falfe accu-
fations againft the Tribunes before the Ailem-
bly itfelf; or by privately ilandering them
with the PeSj}le, they totally deprived them of
their confidence. It was through artifices of
this kind, that the People were brought to be-
hold, without concern, the murder of Tiberius
(c) ViJcat Cenful m quid detrimenti Refpublica capiat.
{b) " The Tribunes of the People," fays Livy, who
was a great admirer of the Ariftocratical power, " and
< the People themfelves, durft neither lift up their eyes,
*' r.cr even mutter, in the prefence of the Di&ator."
Nee ail<verfns Jjitiatoriam <vim, aut 1 rlbuni plebis aut ipfa
Picks, attolicre cculos, aut hifctre-. amkbant See Tit.
JJv, lib, vi. $ 6,
OF ENGLAND. 265
Gracchus, the only Roman that was really-
virtuous, the only one who truly loved the
People. It was alfo in the fame manner that
Caius, who was not deterred by his brother's
fate from purfuing the fame plan of conduct,
was in the end fo entirely forfaken by the Peo-
ple, that nobody could be found among them
who would even lend him a horfe to fly from
the fury of the Nobles ; and he was at laft
compelled to lay violent hands upon himfelf,
while he invoked the wrath of the Gods on his
inconftant fellow-citizens.
At other times, they raifed divifions a-
mong the People. Formidable combinations
broke out, on a fudden, on the eve of im-
portant tranfadfcions ; and all moderate Men
avoided attending AfTemblies, where they faw
that all was to be tumult and confufion.
In fine, that nothing might be wanting to
the infolence with which they treated the Af-
femblies of the People, they fometimes falsi-
fied the declarations of the number of the votes;
they even once went fo far as to carry off the
urns into which the Citizens were to throw
their fuffrages (a),
(a) The reader with refpeft to all the above obferva-
tions, may fee Plutarch's Lives, particularly the Lives
Of the two Gracchi, I mull add, that I have avoided
t6 THE CONSTITUTION
CHAP. VIII.
The Subject concluded. Effecls that have refulted,
in the JLnglijh Government , from the People's
Power being completely delegated to their Repre-
fentaiives.
BUT when the People have entirely trulled
their power to a mouerate number of
perfons, affairs immediate. 7 take a widely dif-
ferent turn. Thofe who govern are from that
moment obliged to lea off all thofe ftrata-
gems which had hitherto enfured their iuccefs.
Inftead of thofe Aifemblies which they affected
to defpife, and were perpetually comparing to
ftorms, or to the current of the Euripus (a),
drawing any inftance from thofe Aflemblics in which one
half of the People were made to arm themfelves againft
the other. I have here only alluded to thofe times
which immediately either preceded or followed the third
Punic war, that is, of thofe which are commonly called
the bejl period of the Republic.
(a) Tully makes no end of his fimiles on this fubjedt.
Quod enim /return, quern Euripum, tot mot us, t ant as &
tarn cartas habere putatis agitaticnes f.uclum, quantas pertur-
bationcs & quantos cejius habet ratio Comitiorum ? See Orat.
pro Murasna. Concio, fays he in another place, qu& ex
imperil ijfimis conjlat, is'c. De Amicitia, 25.
OF ENGLAND. 267
and in regard to which they accordingly thought
thcmfelves at liberty to pafs over the rules of
Juftice, they now find that they have to deal
with Men who are their equals in point of edu-
cation and knowledge, and their inferiors only
in point of rank and form. They, in confe-
quence, foon find it neceffary to adopt quite
different methods ; and, above all, become very
careful not to talk to them any more about
the facrcd chickens, the white or black days,
and the Sibylline books. As they fee their
new adverfaries expect to have a proper regard
paid to them, that fingle circumftance infpires
them with it: as they fee them act in a regu-
lar manner, obferve conftant rules, in a word
proceed with form, they come to look upon
them with refpect, from the very fame realbn
which makes them themfelves to be reverenced
by the People.
The Reprefentatives of the People, on the
other hand, do not fail foon to procure for
themfelves every advantage that may enable
them effectually to ufe the powers with which
they have been entrufted 3 and to adopt every
rule of proceeding that may make their refo-
lutions to be truly the refult of reflection and
deliberation. Thus it was that the Reprefen-
tatives of the Englifh Nation, foon after their
z53 THE CONSTITUTION
firfl eftabliihment, became formed into a fepa-
rate AiTembly : they afterwards obtained the
liberty of appointing a Prefident : foon after,
they infilled upon their being confulted on the
laft form of the Acts to which they had given
rife : laflly, they infilled on thenceforth fram-
ing them themfelves.
In order to prevent any pombility of furprize
in the courfe of their proceedings, it is a fettled
rule with them, that every proportion, or bill,
muft be read three times, at different prefixed
days, before it can receive a final function :
and before each reading of the bill, as well as
at its firft introduction, an exprefs refolution
muft be taken to continue it under confider-
ation. If the bill be rejected, in any one of
thofe feveral operations, it muft be dropped,
and cannot be propofed again during the fame
Seffion (#).
[a) It is moreover a fettled rule in the Houfe of Com-
mons, that no Member is to fpeak more than oncejn-the
-fame- day. When the number and nature of the claufes
of a Bill require that it fhould be difcufTed in a freer man-
ner, a Committee is appointed for the purpofe, who
are to make their report afterwards to the Houfe. When
the fubjeft i^ of importance, this Committee is formed of
the whole Koufe, which Hill continues to fit in the fame
place, but in a lefs folemn manner, and under another
Prefident, who is called the Chairman of the Committee,
Jr. order to form the Hcufe again, the mace is re-
O F E N G L A N D. 269
The Commons have been, above all, jealous
of the freedom of fpeech in their arTembly.
They have exprefly flipulated, as we have
above mentioned, that none of their words or
fpeeches fhould be queftioned in any place out
of their Houfe. In fine, in order to keep their
deliberations free from every kind of influence,
they have denied their Prefident the right to give
his vote, or even his opinion : they moreover
have fettled it as a rule, not only that the King
could not fend to them any exprefs propofal
about laws, or other fubjects, but even that
his name mould never be mentioned in the de-
liberations (#).
But that circumilance which, of all others,
conftitutes the fuperior excellence of a Go-
vernment in which the People act only through
their Reprefentatives, that is, by means of an
affembly formed of a moderate number of
perfons, and in which it is poffible for every
Member to propofe new fubjects, and to argue
and to canvafs the queflions that arife, is that
placed on the Table, and the Speaker goes again into
his chair,
(a) If any perfon were to mention in his fpeech, what
the King wifees Jhould be, would be glad to fee, &c. he
would be immediately called to order, for attempting to
influence the debate.
2.70 THE CONSTITUTION
fuch a Conftitution is the only one that is Ca-
pable of the immenfe advantage, and of which
I do not know if I have been able to convey an
adequate idea to the reader when I mentioned it
before (a), I mean that of putting into the hands
of the People the moving fprings of the Legif-
lative authority*
In a Conftitution where the People at large
exercife the function of enacting the Laws,
as it is only to thofe perfons towards whom the
Citizens are accuftomed to turn their eyes,
that is to the very Men who govern, that
the Affembly have either time or inclination
to liften, they acquire, at lengthy as has con-
tlantly been the cafe in all Republics, the ex-
clufive right of propofmg, if they pleafe,
when they pleafe, in what manner they pleafe.
A prerogative this, of fuch extent, that it
would fuffice to put an affembly formed of
Men of the greateft parts, at the mercy of a
few dunces, and renders completely illufory the
boafted power of the People. Nay more, as
this prerogative is thus placed in the very
hands of the adverfaries of the People, it
forces the People to remain expofed to their
attacks, in a condition perpetually pafiive*
(/*) Sec chap. iv. of this Book.
OF ENGLAND. 271
and takes from them the only legal means by
which they might effectually oppoie their usur-
pations.
To exprefs the whole in a few words. A
reprefentative Constitution places the remedy in
the hands of thofe who feel the diforder : but
a popular Conftitution places the remedy in the
hands of thofe who caufe it ; and it is neceffarily
productive, in the event, of the misfortune *
of the political calamity, of trufting the care
and the means of reprefling the invafions of
power, to the Men who have the enjoyment of
power.
CHAP. IX.
A farther' Difadvantage of Republican Govern*
merits. The People are neeeffaruy bet raxed by
thofe in whom they trvfl.
HOWEVER, thofe general affemblies of
a People who were made to determine
upon things which they neither underftood nor
examined, that general confufion in which
the Ambitious could at all times hide their
artifices, and carry on their fchemes with fafety,
were not he only evils attending the ancient
Commonwealths, There was a more fecret
s 7 2 THE CONSTITUTION
defect, and a defect that ftruck immediately at
the very vitals of it, inherent in that kind of
Government.
It was impoffible for the People ever to have
faithful defenders. Neither thofe whom they
had exprefly chofen, nor thofe whom fome per-
fonal advantages enabled to govern the AfTem-
blies (for the only ufe, I mult repeat it, which
the People ever make of their power, is either
to give it way, or allow it to be taken from
them) could pofiibly be united to them by any
common feeling of the fame concerns. As their
influence put them, in a great meafure, upon
a level with thofe who were inverted with the
executive authority, they cared little to reftram
oppreffions out of the reach of which they faw
themfelves placed. Nay, they feared they
ihould thereby leffen a power which they knew
was one day to be their own ; if they had not
even already an actual fhare in it (a).
Thus, at Rome, the only end which the
Tribunes ever purfued with any degree of fin-
(c) How could it be expefled that Men who en-
tertained views of being Praetors, would endeavour to
reitrain the power of the Praetors, that Men who
aimed at being one day Confuls, would wiih to limit the
power of the Confuls, that Men whom their influence
among the People made fure of getting into the Senate,
would ferioufly endeavour to confine the authority of the
Senate ?
OF ENGLAND. 273
cerity and perfeverance, was to procure to the
People, that is to themfelves, an ad million to
all the different dignities in the Republic. After
having obtained that a law fhoukl be enacted or
admitting Plebeians to the Confullhip, they pro-
cured for them the liberty of intermarrying with
the Patricians. They afterwards rendered them
admiflible to the Dictator ihip, to the office of
military Tribune, to the Lenforfhip : in a word,
the only ufe they made of the power of the Peo-
ple, was to increafe privileges which they called
the privileges of all, though they and their
friends alone were ever likely to have the enjoy-
ment of them.
But we do not find that they ever employed,
the power of the People in things really bene-
ficial to the People. We do not find that they
ever fet bounds to the terrible power of its Ma-
giftrates, that they ever reprelTed that clafs of
Citizens who knew how to mike their crimes
pafs uncenfured; in a word, that they ever en-
deavoured, on the one hand to regul te, and on
the other to ftrengthen, the judicial power;
precautions thefe, without which men might
ftruggle to the end of time, and never attain
true liberty (a\.
{a) Without fuch precautions, laws mud always be as
Pope expreffes it,
*' Still for the ftrong too weak, the weak too ftrong. , ' ,
T
274 THE CONSTITUTION
And indeed the judicial power, that fure crite-
rion of the goodnefs of a Government, was al-
ways, at Rome, a mere inftxument of tyranny.
The Confuls were at ail times inverted with an
abfolute power over the lives of the Citizens.
The Dictators pofTefTed the fame right ; fo did
the Praetors, the Tribunes of the People, the
judicial CommilTioners named by the Senate,
and fo, of courfe, did the Senate itfelf ; and the
fact of the three hundred and feventy deferters-
whom it commanded to be thrown down at one
time, as Livy relates, from the Tarpeian rock,
fufficicntly fhews that it well knew how to exerr
its power upon occafion.
It even may be fa id, that, at Rome, the
power of life and death, or rather the right of
killing, was annexed to every kind of autho-
rity whatever, even to that which refults- from
mere influence, or wealth ; and the only confe-
rence of the murder of the Gracchi, which
was accompanied by the daughter of three
hundred, and afterwards of four thoufam] un-
armed Citizens, whom the Isobles knocked on
the heady was to engage the Senate to erect a
Temple to C^.lJ/J. The Lex Porcm de tergo "-
vium, which has been fo much celebrated, was
attended with no other effect but that of more
completely fecuring againft the danger of a re-
taliation, fuch. Confuls, Prrctors, Quceflors, &c,
O F E N G L A N D. 275
as, like Verres, caufed the inferior Citizens of
Rome to be fcourged with rods, and put to
death upon croiTes, through mere caprice and
cruelty (#).
In fine, nothing can more completely mew to
what degree the Tribunes had forfaken the inte-
refts of the People, whom they were appointed
to defend, than the fact of their having allowed
the Senate to invefl itfelf with the power of tax-
ation : they even fuffered it to affume to itfelf
the power, not only of difpenfing with the laws,
but alio of abrogating them ().
() If we turn our eyes to Lacedxmon, we fiiall fee,
from feveral inftances of the juftice of the Ephori, that
matters were little better ordered there, in regard to the
administration of public juftice. And in Athens itfelf,
which is the only one of the ancient Commonwealths
in which the people feem to have enjoyed any degree of
real liberty, we fee the Magistrates proceed nearly in
the fame manner as they now do among the Turks :
and I think no other proof needs to be given than the
flory of that Barber in the Piraeus, who having fpread
about the Town the news of the orerthrow of the Athe-
nians in Sicily, which he had heard from a ftranger who
had flopped at his fhop, was put to the torture, by the
command of the Archons, becaufe he could not tell the
name of his author. See Piut. Life o/Niciat.
(b) There are frequent inftances of the Confuls tak-
ing away from the Capitol the tables of the laws pafTed
under their piedecefTors. Nor was this, as we might
at firft be tempted to beliere, an a& of violence which
T 2
276 THE CONSTITUTION
In a word, as the necefTary confequence of
the communlcability of power, a circumftance ef-
fentially inherent in the republican form of go-
vernment, it is impoffible for it ever to be re-
trained within certain rules. Thofe who are
in a condition to controul it, from that very
circumftance, become its defenders. Though
they may have rifen, as we may fuppofe, from
the humbleft ftations, and fuch as feemed to-
tally to preclude them from all ambitious
Views, they have no fooner reached a certain
degree of eminence, than they begin to aim
higher. Their endeavours had at firft no other
object, as they profeffed, and perhaps with fin-
eerity, than to fee the laws impartially exe-
cuted : their only view now is to fet them-
felves above them ; and feeing themfelves
raifed to the level of a clafs of Men who pof-
fuccefs alone could juftify; it was a confequence of the
acknowledged power enjoyed by the Senate cujus trat
grcwijjimum judicium di jure legum, as we may fee in feve-
ral places in Tully. Nay, the Augurs themfelves, at
Tully informs us, enjoyed the fame privilege. " If laws
'< have not been laid before the people, in the legal
form, they (the Augurs) may fet them afide : as was
" done with refpect to the Lex Tatia, by the decree of
-' the College, and to the Leges Livi<r, by the advice of
Philip, who was Conful and Augur." Legem fi ms
jure rogata eft, tollere pojfuvt ; ut Tatiam, decreto Collegii,
ut Li-vius, covfilio Pkilippi, Coufulis cjf Auguris See LUt
Li'lb. lib. ii. k 12.
OF ENGLAND. 277
fefs all the power, and enjoy all the advantages,
in the State, they make haile to affociate them-
felves with them (#).
Perfonal pover and independence on the
laws being, in fuch States, the immediate con-
fequence of the favour of the People, they are
under an unavoidable necefiity of being be-
trayed. Corrupting, as it were, every thing
they touch, they cannot {hew a preference to
a Man, but they thereby attack his virtue ;
they cannot raife him, without immediately
Jofing him and weakening their own caufe ;
(a) Which always proves an eafy thing. It is in Com-
monwealths the particular care of that clafs of Men who
are at the head of the State, to keep a watchful eye over
the People, in order to craw over to their own parcy any
Man who happens to acquire a confi.'.erable influence
among them ; and this they are (and indeed muft be)
the more attentive to do, in proportion as the nature of
the Government is more democratical.
The Conituution of Rome had even made exprefs pro *
vifiono on that fubjecr. Not only the Cenfors could at
once remove any Citizen into what Tribe they pleafed,
and even into the Senate, and we may eafily believe that
they maae a political ufe of this privilege ; but it was
moreover a fettled rule, that all Perfons who had been
promoted to any public office by the People, fuch as the
Confuifhip, the Edilefhip, or Tribunefhip, became ipfo
faflo y members of the Senate. See Middleton's Dijfer-
taticm on the Roman Senate,
T 3
278 THE CONSTITUTION
nay, they infpire him with views diredtly oppo-
fite to their own, and fend him to join and in
creafe 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
Plebeians, whom the votes of the People began
to raife to thofe offices, were immediately received
into the Senate, as has been juft now obferved.
From that period, their families began to form,
in conjunction with the ancient Patrician fami
lies, a new combination or political affociation
of perfo.ns (a) ; and as this combination was
formed of no particular clafs of Citizens, but of
all thofe in general who had influence enough
to gain admittance into it, a fingle overgrown
head was now to be feen in the Republic, which
confiftins: of all thofe who had either wealth or
power of any kind, and difpofing at will of the
laws and the power of the People (b~), foon loft
all regard to moderation and decency.
{a) Called Nobiles and Nobijitas..
{k) Itwac, ; n feveral refpecls, a misfortune for the Peo-
ple of Rome, whatever may have been faid to the con-
trary by the Writers on this fubjeft, that the diftinction
between the Patricians and the Plebeians was ever abolifh-
ed ; though, to lay the truth, this was an event which
cculd not be prevented.
OF ENGLAND, 279
Every Conftitution, therefore, whatever may
be its form, which does not provide for incon-
veniencies of the kind here mentioned, is a
Conftitution eflentially imperfect. It is in Man
himfelf that the fcurce of the evils to be re-
medied, lies ; general precautions therefore csun.
alone prevent them. If it be a fatal error en-
tirely to rely on the juftice and equity of thofe
who govern, it is an error no lcfs dangerous to
imagine, that, while virtue and moderation are
the conftant companions of thofe who oppofe
the abnfes of Power, all ambition, all thirft after
dominion, have retired to the other party,
ThGUgh wife Men fometimes may, led aiiray
by the power of names, and the heat of po-
litical contentions, lofe fight of what ought
to be their real aim, they neverthelefs know
that it is not againft the Appii 9 the Coruncanii,
the Cethegi, but againft. all thofe who can in-
fluence the execution of the laws, that pre-
cautions ought to be taken, that it is not
the Conful, the Prastor, the Archon, the Mi-
nifler, the King, whom we ought to dread,
nor the Tribune, or the Reprefentative of the
People, on whom we ought implicitly to rely;
but that all thofe perfons, without diftin&ion,
ought to be the objects of our jealoufy, who,
T4
280 THE CONSTITUTION
by any methods, and under any names whatfo-
ever, have acquired the means of turning againft
each individual the collective ftrensth of all.
and have fo ordered things around themfelves,
that whoever attempts to refill them, is fure to
find himielf engaged alone againft a thoufand.
CHAP. X.
Fundamental difference between the Englijh Govern-
ment, and the Governments jufi defer ibed. In
England all Executive Authority is plat ed out of
the hand* of thofe in whom the People trvfl. life-
fulnefs of the Power of the Crown.
N what manner then, has the Englifh Con-
flitution contrived to find a remedy for evils
which, from the very nature of Men and things,
feem to be irremediable ? How has it found
means to oblige thofe perfons to whom the Peo-
ple have given up their power, to make them
effectual and lafting "returns of gratitude ? thofe
who enjoy an exclufive authority, to feek the
advantage of all ? thofe who make the laws,
to make only equitable ones ? It has been by
fubjecling themfelves to thofe laws, and for that
purpofe excluding them from all fliare in the
execution of them,
OF ENGLAND. 281
Thus, the Parliament can eftablifh as nume-
rous a Handing army as it pleafes; but imme-
diately another Power comes forward, which
takes the abfolute command of it, which fills
all the polls in it, and directs its motions at its
pleafure. The Parliament may lay new taxes ;
but immediately another Power feizes upon
the produce of them, and alone enjoys the ad-
vantages and glory arifmg from the difpofal of
it. The Parliament may even, if you pleafe,
repeal the laws on which the fafety of the
Subject is grounded ; but it is not their own
caprices and arbitrary humours, it is the ca-
price and paffions of other Men, which they
will have gratified, when they mall thus have
overthrown the columns of public liberty.
And the Englifh Conflitution has not only
excluded from any fhare in the Execution of
the laws, thole in whom the People trull for
the enacting of them, but it has alfo taken
from them what would have had the fame per-
nicious influence on their deliberations the
hope of ever invading that executive authority,
and transferring it to themfelves.
This authority has been made in England
one fingle, indivisible prerogative ; it has been
made for ever the unalienable attribute of one
*Sa THE CONSTITUTION
one perfon, marked out and afcertained before-
hand by folemn laws and long eftablifhed cuf-
torn ; and all the active forces in the State
have been left at his difpofal.
In order to fecure this prerogative (till far-
ther againft all poffibility of invafions from in-
dividuals, it has been heightened and ftrength-
ened by every thing that can attract and fix
the attention and reverence of the people. The
power of conferring, and withdrawing, places
and employments has alio been added to it, ami
ambition itfelf has thus been interefted in its
defence, and fervice.
A fhare in the Lcgiflative power has alfo
been given to the Man to whom this preroga-
tive has been delegated : a paflive fhare in-
deed, and the only one that can, with fafety
to the State, be trufied to him, but by means
of which he is enabled to defeat every attempt
againft his conftitutional authority.
Laftly, he is the only felf-exifting and per-
manent Power in the State. The Generals,
the Minifters of State, are fo only by the con-
tinuance of his pleafure. He would even dif-
mifs the Parliament themfelves, if ever he
faw them begin to entertain dangerous defigns;
and he needs only fay one word to difperfe
OF ENGLAND. 283
every power in the State that may threaten
his authority. Formidable prerogatives thefe ;
but with regard to which we mail be inclined
to lay afide our apprehenfions, if we reflect,
on the one hand, on the great privileges of
the People by which they have been counter-
balanced, and on the other, on the happy con-
fequences that refult from their being thus
united together.
From this unity, and, if I may fo exprefs
myfelf, this total fequeftration of the Execu-
tive authority, this advantageous confequence
in the firft place follows, which has been men-
tioned in a preceding Chapter, that the atten-
tion of the whole Nation is directed to one
and the fame object. The People, befides,
enjoy this moll elfential advantage, which they
would vainly endeavour to obtain under the
government of many, they can give their
confidence, without giving power over them-
felves, and againft themlelves , they can ap-
point Truflees, and yet not give themfelves
Mailers.
Thofe Men to whom the People have dele-
gated the power of framing the Laws, arc
thereby made fure to feel the whole preflure
of them. They can increafe the prerogatives
9
284 THE CONSTITUTION
of the executive authority, but they cannot in*
veil themfelves 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,
nay, they are indebted for their exiflence, to
the need in which that Power Hands of their
affiftance ; and they know that they would
no fooner have abufed the truft of the People,
and completed the treacherous work, than they
would fee themfelves diffolved, fpurned, like
inftruments now fpent, and become ufelefs.
This fame difpofition of things alfo prevents
in England, that eifential defect, inherent in
the Government of many, which has been de-
fcribed in the preceding Chapter.
In that fort of Government, the caufe of
the People, as has been obferved, is conti-
nually deferted and betrayed. The arbitrary
prerogatives of the governing Powers are at
all times either openly or fecretly favoured,
not only by thofe in whofe poflcflion they are s
not only by thofe who have good reafon to
hope that they fhall at fome future time fhare
in the exercife of them, but alfo by the whole
croud of thofe Men who, in confequence of
the natural difpofition of Mankind to over-
OF ENGLAND. 28$
rate their own advantages, fondly imagine, ei-
ther that they fhall one day enjoy fome branch
of this governing authority, or that they are
even already, in fome way or other, affociated
to it.
But as this authority has been made, in
England, the indivifible, unalienable attribute
of one alone, all other perfons in the State are,
ipfo fafto, interefted to confine it within its due
bounds. Liberty is thus made the common
caufe of all ; the laws that fecure it are fup-
ported by Men of every rank and order ; and
the Habeas Corpus A6t, for inftance, is as
zealoufly defended by the firft Nobleman in
the Kingdom, as by the meanell: Subject.
Even the Minifter himfelf, in confequence
of this inalienability of the executive authority,
is equally interefted with his fellow-citizens
to maintain the laws on which public liberty
is founded. He knows, in the midft of his
fchemes for enjoying or retaining his authority,
that a Court-intrigue, or a caprice, may at
every inftant confound him with the multitude,
and the rancour of a fucceffor long kept out,
fend him to linger in the fame jail which his
temporary paftions might tempt him to prepare
for others.
aS6 THE CONSTITUTION
In confequence of this difpofition of things,
great Men, therefore, are made to join in a
common caufe with the People, for retraining
the excefles of the governing Power; and,
which is no lefs eiTential to the public wel-
fare, they are alfo, from this fame caufe, com-
pelled to reftrain the excefs of their own pri-
vate power and influence, and a general fpirit
of juilice becomes thus diffufed through all
part9 of the State.
The wealthy Commoner, the Reprefentative
of the People, the potent Peer, always having
before their eyes the view of a formidable
Power, of a Power from the attempts of
which they have only the fhield of the laws
to protect them, and which would, in the iflue,
retaliate an hundred fold upon them their acts
of violence, are compelled, both to wifh only
for equitable laws, and to obferve them with
fcrupulous exadtnefs.
Let then the People dread (it is necefTary
to the prefervation of their liberty), but let
thern never entirely ceafe to love, the Throne,
that folc and indivifiblc feat of all the active
powers in the State.
Let them know, it is that, which, by
lending an immenfe ftrength to the arm of
Juilice, has enabled her to bring to account as
OF ENGLAND. 2S7
vvell the moft powerful, as the meaneft offen-
der, which has fuppreffed, and if I may fo
rxprefs myfelf, weeded out all thofe tyrannies,
fometimes confederated with, and fometimes
adverfe to, each other, which incefTantly tend
to grow up in the middle of civil focieties, and
are the more terrible in proportion as they
feel themfelvcs to be lefs firmly eftablifhed.
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 thofe projects the purfuit of which, in
former times, fhook the foundations of whole
States, has changed into intrigues the con-
flicts, the outrages of ambition, and that
thofe contentions which, in the prefent times,
afford them only matter of amufement, are the.
Volcanos which fet in flames the ancient Com-
monwealths.
It is that, which, leaving to the rich no
other fecurity for his palace than that which
the peafant has for his cottage, has united his
caufe to that of this latter, the caufe of the
powerful to that of the helplefs, the caufe of
the Man of extenfive influence and connections,
to that of him who is without friends.
It is the Throne above all, it is this jealous
Power, which makes the People fure that its
283 THE CONSTITUTION
Reprefentatives never will be any thing more
than its Reprefentatives : at the fame time it is
the evcr-fubfifting Carthage which vouches to>
it for the duration of their virtue.
C H A P. XL
Ike Towers which the People them/elves excrcife.
The Ekoiton of Members of Parliament.
T^HE Englifh Confcitution having effen-
tially connected the fate of the Men to
whom the People truu their power, with that
of the People themfelves, really feems, by
that caution alone, to have procured the latter
a complete lecurity.
However, as the viciffitude of human affairs
may, in procefs of time, realize events which
at fir ft had appeared moft improbable, it might
happen that the Miniiiers of the Executive
power, notwithftandir.g the intereft they them-
felves have in the preservation of public li-
berty, and in fpitc of the precautions cxprefly
taken in order to prevent the effedt of their
influence, fhould, at length, employ fuch effi-
cacious means of corruption as might bring
about a furrender of fome of the laws upon
7
O F E N G L A N D- 2S9
which this public liberty is founded. And
though we fhould fuppofe that fuch a danger
would really be chimerical, it might at leaft
happen, that, conniving at a vicious admini-
(tration, and being over liberal of the produce
of the labours of the People, the Reprefen-
tatives of the People might make them fuffer
many of the evils which attend worfe forms of
Government.
Laftly, as their duty does not confift only ,
in preferving their conflituehts againft the cala-
mities of an arbitrary Government, but more-
over in procuring them the belt adminiftration
poffible, it might happen that they would
manifeft, in this refpedt, an indifference which
would, in its confequences, amount to a real
calamity.
It was therefore neceffary that the Consti-
tution fhould furnilh a remedy for all the
above cafes ; now, it is in the right of elect-
ing Members of Parliament, that this remedy
lies.
When the time is come at which the com-
miflion which the People had given to their
delegates expires, they again afiemble in their
feveral Towns or Counties : on thefe occafions
they have it in their power to elect again thofe
U
* 9 o THE CONSTITUTION
of their Reprefentatives whofe former conduct
they approve, and to reject thofe who have con-
tributed to give rife to their complaints. A fim-
ple remedy 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 fame time,
which is the moil effectual that could be appli-
ed ; for, as the evils complained of, arife merely
from the peculiar difpofitions of a certain num-
ber of individuals, to fet afide thofe individuals,
is to pluck up the evil by the roots.
But I perceive, that in order to make the
reader fenfible of the advantages that may ac-
crue to the People of England, from their right
of election, there is another of their rights, of
which it is abfolutely neceffary that I fhould
firft give an account,
OF ENGLAND. 291
CHAP. XII.
'The Subjeft continued. Liberty of the Prefs.
AS the evils that may be complained of in
a State, do not always arife merely from
the defedl of the laws, but alfo from the non-
execution of them, and this non-execution of
fuch a kind, that it is often impoflible to fubject
it to any exprefs punifhment, or even to afcer-
tain it by any previous definition, Men, in feveral
States, have been led to feek for an expedient
that might fupply the unavoidable deficiency of
legiflative provifions, and begin to operate, as
it were, from the point at which the latter began
to fail : I mean here to fpeak of the Cenforial
power ; a power which may produce excellent
effects, but the excrcife of which (contrary to
that of the legiflative power) raufi be left to
the People themfelves.
As the propofed end of Legislation is not,
according to what has been above obferved, to
have the particular intentions of individuals,
upon every cafe, known and complied with,
but folely to have what is mofl conducive to
the public good on the occofions that ariie,
found out, and eftabliihed, it is not an eflentisl
U 2
492 THE CONSTITUTION
requisite in legiQative operations, that every in-
dividual fhould be called upon to deliver his
opinion ; and fince this expedient, which at
fir ft fight appears fo natural, of feeking out by
the advice of all that which concerns all, is
found liable, when carried into practice, to
the greateft inconveniences, we mult not hefi-
tate to lay it afide entirely. But as it is the
opinion of individuals alone, which confti-
tutes the check of a cenforial power, this power
cannot poffibly produce its intended effect
any farther than this public opinion is made
known and declared : the fentiments of the
People are the only thing in queftion here :
therefore it is necelTary that the People fhould
fpeak for themfelves, and manifeft thofe fen-
timents. A particular Court of Cenfure there-
fore effentially fruftrates its intended purpofe :
it is attended, befides, with very great incon-
veniences.
As the ufe of fuch a Court is to deter-
mine upon thofe cafes which lie out of the
reach of the laws, it cannot be tied down to
any precife regulations. As a farther confe-
quence of the arbitrary nature of its functions,
it cannot even be fubjectcd to any constitutional
check : and it continually prefents to the eye
the view of a power entirely arbitrary, and
which in its different exertions may affect,
OFENGLAND. 293
in the moft cruel manner, the peace and hap-
pinefs of individuals. It is attended, befides,
with this yery pernicious confcquence, that,
by dictating to the people their judgments of
Men or meafures, it takes from them that
freedom outranking, which is the noblefl pri-
vilege, as well as the firmed fupport of Li-
berty (a).
We may therefore look upon it as a far-
ther proof of the fondnefs of the principles
[a) M. de Montefquieu, and M. RoufTeau, and in-
deed all the Writers on this fubjeft I have met with,
bellow vaR encomiums on the Cenforial Tribunal that
had been inftituted at Rome; they have not been
aware that this power of Cenfure, lodged in the hands
of peculiar Magi Urates, with other difcretionary powers
annexed to it, was no other than a piece of ftate-craft,
like thofe defcribed in the preceding Chapters, and had
been contrived by the Senate as an additional means of
fecuring its authority. Sir Thomas More has alfo adopted
fjmilar pinions on the fubjedt : and he is fo far from al-
lowing the people to canvafs the aftions of their Rulers,
that in his Syftem of Policy, which he calls, An Account
of Utopia (the happy Region, tv and totto^ he makes
it death for individuals to talk about the conduct of Go-
vernment.
I feel a kind of pleafure, I muft. confefs, to obferve on
this occafion, that though I have been called by fome an
advocate for Power, I have carried my ideas of Liberty
farther than many Writers who have mentioned that word
with much enthufiafm.
u <?
194 THE CONSTITUTION
on which the Englifh conftitution is founded,
that it has allotted to the People themfelves
the province of openly canvafllng and arraign-
ing the conduct of thofe who are inverted with
any branch of public authority ; and that it has
thus delivered into the hands of the People
at large, the exercife of the cenforial power.
Every fubject in England has not only a
right to prefent petitions to the King, or to the
Houfes of Parliament, but he has a right
alfo to lay his complaints and obfervations
before the Public, by means of an open
prefs. A formidable right this, to thofe who
rule mankind ; and which, continually dif-
pelling the cloud of majeity by which they
are furrounded, brings them to a level with the
reft of the people, and flrikes at the very be-
ing of their authority.
And indeed this privilege is that which has
been obtained by the Englifh Nation with the
greatefl difficulty, and latefl in point of time,
at the expence of the Executive power. Free-
dom was in every other refpect already efta-
blifhed, when the Englifh were ftill, with
regard to the public exprefllon of their kn-
timents, under reftraints that may be called
defpotic. Hiftory abounds with inftances of
the feverity of the Court of Star-Chamber,
O F E N G L A N D, 295
againft thofe who prefumed to write on poli-
tical fubjects. It had fixed the number of
printers and printing-preiles, and appointed a
Lice.'ifer, without whofe approbation no book
could be published. Befides, as this Tribunal
decided matters by its own lingle authority,
without the intervention of a Jury, it was al-
ways ready to find thofe perfons guilty, whom
the Court was pleafed to look upon as fuch ;
nor was it indeed without ground that -Chief
Juflice Coke, whofe notions of liberty were
fomewhat tainted with the prejudices of the
times in which he lived, concluded the elo-
giums he has bellowed on this Conrt, with
faying, that, " the right inftitution and orders
" thereof being obferved, it doth keep all Eng-
" land in quiet."
After the Court of Star-Chamber had been
abolifhed, the Long Parliament, whofe con-
duct and affumed power were little better qua-
lified to bear a fcrutiny, revived the regulations
againft the freedom of the prefs. Charles the
Second, and after him James the Second,
procured farther renewals of them. Thefe
latter acts having expired in the year -1692,
were at this asra, although pofterior to the
Revolution, continued for two years longer :
U 4
i 9 6 THE CONSTITUTION
fo that it was not till the year 1694, that,
in confequence of the Parliament's refufal to
continue the prohibitions any longer, the free-
dom of the prefs (a privilege which the Exe-
cutive power could not, it feemed, prevail
upon itfelf to yield up to the people) was
finally eftablifhed.
In what does then this liberty of the prefs
precifely confift ? It is a liberty left to every
one to publifh any thing that comes into his
head ? To calumniate, to blacken, whomfo-
ever he pleafes ? No; the fame laws that pro-
tect the perfon and the property of the indivi-
dual, do alfo protect his reputation; and they
decree againft libels, when really fo, punifh-
ments of much the fame kind as are eftablilh-
ed in other Countries. But, on the other hand,
they do not allow, as in other States, that a
Man fhould be deemed guilty of a crime for
merely publifhing fomething in print ; and
they appoint a punifhment only againft him
who has printed things that are in their nature
criminal, and who is declared guilty of fo do-
ing by twelve of his equals, appointed to de-
termine upon his cafe, with the precautions we
have before defcribed.
The liberty of the prefs, as cftabliihed in
England, confifts therefore, to define it more
O F E N G L A N D. 297
precifely, in this, That neither the Courts of
Juflice, nor any other Judges whatever, are au-
thorifed to take any notice of writings intended
for the prefs, but are confined to thofe which
are actually printed, and mufl, in thefe cafes,
proceed by the Trial by Jury.
It is even this latter circumflance which
more particularly conflitutes the freedom of
the prefs. If the Magiftrates, though con-
fined in their proceedings to cafes of criminal
publications, were to be the fole Judges of
the criminal nature of the things publifhed,
it might eafily happen that, with regard to a
point which, like this, fo highly excites the
jealoufy of the governing Powers, they would
exert themfelves with fo much fpirit and per-
feverance, that they might, at length, fuc-
ceed in completely finking off all the heads of
the hydra.
But whether the authority of the Judges be
exerted at the motion of a private individual,
or whether it be at the inftance of the Govern-
ment itfelf, their fole office is to declare the
punifhment eftablifhed by the law : it is to
the Jury alone that it belongs to determine
on the matter of law, as well as on the matter
of fact ; that is, to determine, not only whe-
ther the writing which is the fubject of the
2 9 S THE CONSTITUTION
charge has really been compofed by the Man
charged with having done it, and whether it
be really meant of the perfon named in the in-
dictment, but alfo, whether its contents are
criminal.
And though the law in England does not
allow a Man, profecuted for having publifhed
a libel, to offer to fupport by evidence the
truth of the fadts contained in it, (a mode of
proceeding which would be attended with very
mifchievous confequences, and is every where
prohibited), yet (a) as the indictment is to ex-
press that the facts are falfe, malicious, &c.
and the Jury, at the fame time, are fole mailers
of their verdict, that is, may ground it upon
what confederations they pleafe, it is very pro-
bable that they would acquit the accufed party,
if the fact, afferted in the writing before them,
were matter of undoubted truth, and of a ge-
neral evil tendency. They, at lead, would
certainly have it their power.
And this would ftill more likely be the cafe
if the conduct of the Government itfelf was
arraigned ; becaufe, befides this conviction
(a) In actions for damages between individuals, the
cafe, if I miftake not, is different, and the defendant is
allowed to produce evidence of the fails afferted by*
him. 5
OF ENGLAND.
-99
which we fuppofe in the Jury, of the cer-
tainty of the facts, they would alfo be in-
fluenced by their fenfe of a principle gene-
rally admitted in England, and which, in a
late celebrated caufe, has been ftrongly infifled
upon, viz. That, " though to fpeak ill of in-
" dividuals was deferving of reprehenficn, yet
" the public acts of Government ought to lie
" open to public examination, and that it was
" a fervice done to the State, to canvafs them
" freely (a)."
And indeed this extreme fecurity with which
every man in England is enabled to communi-
cate his fentiments to the Public, and the ge-
neral concern which matters relative to the
Government are always fure to create, has
wonderfully multiplied all kinds of public pa-
pers. Befides thole which, being publifhed at
the end of every year, month, or week, pre-
fent to the reader a recapitulation of every
thing interefting that may have been done or
faid during their refpective periods, there are
feveral others, which making their appearance
every day, or every other day, communicate
to the public the feveral meafures taken by
(a) See Serjeant Glynn's Speech for Woodfall in
the profecution again the latter, by the Attorney.
General, for publiihing Junius's letter to the King.
3
THE CONSTITUTION
the Government, as well as the different caufes
of any importance, whether civil or criminal,
that occur in the Courts of Juftice, and
Iketches from the fpeeches either of the Ad-
vocates, or the Judges, concerned in the ma-
nagement and decifion of them. During the
time the Parliament continues fitting, the votes,
or refolutions of the Houfe of Commons, are
daily publiihed by authority ; and the moll
interefling fpeeches in both Houfes, are taken
down in fhort-hand, and communicated to the
Public, in print.
Laftly, the private anecdotes in the Metro-
polis, and the Country, concur alfo towards
filling the collection ; and as the feveral public
papers circulate, or are tranferibed into others,
in the different Country Towns, and even
find their way into the villages, where every
Man, down to the labourer, perufes them with
a fort of eagcrnefs, every individual thus be-
comes acquainted with the State of the Nation,
from one end to the other ; and by thefe means
the general intercourfe is fuch, that the three
Kingdoms feem as if they were one fingle Town,
And it is this public notoriety of all things,
that conftitutes the fupplcmental power, or
check, which, we have above faid, is fo ufe-
ful to remedy the unavoidable infufliciency
OF ENGLAND. 301
of the laws, and keep within their refpective
bounds all thofe perfons who enjoy any mare
of public authority.
As they are thereby made fenfible that all
their actions are expofed to public view, they
dare not venture upon thofe acts of partiality,
thofe fecret connivances at the iniquities of
particular perfons, or thofe vexatious practices,
which the Man in office is but too apt to be
guilty of, when, exercifing his office at a
diftance from the public eye, and as it were
in a corner, he is fatisfied that provided he be
cautious, he may difpenfe with being juft.
Whatever may be the kind of abufe in which
perfons in power may, in fuch a date of things,
be tempted to indulge thcmfelves, they are
convinced that their irregularities will be im-
mediately divulged. The Juryman, for exam-
ple, knows that his verdict, the judge, that
his direction to the Jury, will prefently be laid
before the Public : and there is no Man in
office, but who thus finds himfelf compelled,
in almoft every inflance, to choofe between
his duty, and the furrencler of all his former
reputation.
It will, I am aware, be thought that I fpeak
in too high terms, of the effects produced
by the public news-papers. I indeed confefs
3 o2 THE CONSTITUTION
that all the pieces contained in them are not
patterns of good reafoning, or of the trueft
Attic wit ; but, on the other hand, it fcarcely
ever happens that a fubjedt in which the laws,
or in general the public welfare, arc really con-
cerned, fails to call forth fome able writer,
who, under fome form or other, communicates
to the public his obfervations and complaints,
I mall add here, that, though an upright Man
labouring for a while under a ftrong 'popular
prejudice, may, fupported by the confcioufnefs
of his innocence, endure with patience the
fevereft imputations, the guilty Man, hearing
nothing in the reproaches of the public, but
what he knows to be true, and already upbraids
himielf with, is very far from enjoying any
fuch comfort ; and that, when a man's own
confeience takes part againft him, the moft
defpicable weapon is fufficient to wound him to
the quick (a).
(a) I /hall take this occafion to obferve, that the li-
berty of the preis is lb far from being injurious to the
reputation of individuals, (as fome perfons have com-
plained) that it is, on the contrary, its furelr. guard.
When there exiils no means of communication with the
Public, every one is expofed, without defence, to the
fecret fhafts of malignity and envy. The Man in of-
fice lofes his reputation, the Merchant his credit, the
private individual his character, without fo much as
knowing, either who are his enemies, or which way
O F E N G L A N D. 303
Even thofe perfons whofe greatnefs feems
molt to fet them above the reach of public
cenfure, and not thofe who leafl feel its effects.
They have need of the fuffrages of that vulgar
whom they effect to defpife, and who are, af-
ter all, the difpenfers of that glory, which is
the real object of their ambitious cares. Though
all have not fo much fincerity as Alexander,
they have equal reafon to exclaim, O People!
what tolls do we not undergo, in order to gain your
applavje !
I confefs that in a State where the People
dare not fpeak their fentiments, but with a
view to pleafe the ears of their rulers, it is
pofTible that either the Prince, or thofe to
whom he has trufted his authority, may fome-
times miflake the nature of the public fen-
timents, or that, for want of that affection
of which they are denied all pofTible marks,
they may reft contented with infpiring ter-
ror, and make themfelves amends in behold-
ing the over-awed multitude fmother their
complaints.
they carry on their attacks. But when there exifls a free
prefs, an innocent Man immediately brings the matter into
open day, and crufhes his adverfaries, at once, by a public
challenge to lay before the public the grounds of their
lever al imputation?.
3 04 THE CONSTITUTION
But when the laws give a full fcope to the
People for the expreffion of their fentiments,
thofe who govern cannot conceal from them-
felves the difagreeable truths which refonnd
from all iides. They are obliged to put up
even with ridicule ; and the coarfeft jefts are
not always thofe which give them the leaft
lineafinefs. Like the lion in the fable, they
muft bear the blows of thofe enemies whom
they depife the mod j and they are, at length,
flopped fhort in their career, and compelled
to give up thofe unjuft purfuits which they
find to draw upon them, inftead of that ad-
miration which is the propofed end and reward
of their labours, nothing but mortification and
difguft.
In fhort, whoever confidcrs what it is that
conftitutes the moving principle of what we
call great affairs, and the invincible fenfibility
of Man to the opinion of his fellow -creatures,
will not hefitate to affirm that, if it were pof-
fible for the liberty of the prefs to exift in a
defpotic government, and (what is not lefs dif-
ficult) for it to exift without changing the
conftitution, this liberty of the prefs would
alone form a counterpoife to the power of the
Prince. If, for example, in an empire of the
Eaft, a fanctuary could be found, which, ren-
OF ENGLAND, 305
dered refpectable by the ancient religion of the
people, might enfure fafety to thofe who ihould
bring thither their obfervations of any kind,
and that from thence printed papers ihould
iflue, which, under a certain feal, might be
equally refpedted, and which in their daily ap-
pearance fhould examine and freely difcufs the
co # nduct of the Cadis* the Balhaws, the Vizir,
the Divan, and the Sultan himfelf, that
would introduce immediately fome degree of
liberty.
CHAP. XIII.
The SubjeSf continued.
ANOTHER effect, and a very confiderabie
one, of the liberty of the prefs, is, that
it enables the People effectually to exert thole
means which the Constitution has beftowed on
them, of influencing the motions of the Govern-
ment.
It has been obferved in a former place, how
it came to be a matter of impoffibility for any
large number of men, when obliged to act in a
body, and upon the fpot, to take any well-
weighed refolution. But this inconvenience,
which is the inevitable confequence of their
X
3 o6 THE CONSTITUTION
fituation, does in no wife argue a perfonal in-
feriority in them, with refpect to the few who,
from fome accidental advantages, are enabled
to influence their determinations. It is not
Fortune, it is Nature, that has made the ef-
fential differences between Men : and whatever
appellation a imall number of perfons who
fpeak without fufficient reflection, may affix
to the general body of their fellow-creatures,
the whole difference between the Statefman,
and many a Man from among what they call
the dregs of the People, often lies in the rough
outride of the latter; a difguife which may
fall off on the firft opportunity; and more than
once has it happened, that from the middle
of a multitude in appearance contemptible, there
have been feen to rife at once Viriatufes, or
Spartacufes,
Time, and a more favourable fituation (to
repeat it once more) are therefore the only
things wanting to the People ; and the free-
dom of the prefs affords the remedy to thefe
difadvantagcs. Through its affiftance every in-
dividual may, at his leifure and in retirement,
inform himfelf of every thing that relates to the
qneftions on which he is to take a refolution.
Through its affiftance, a whole Nation as it
were holds a Council, and deliberates ; flowly
indeed (for a Nation cannot be informed like
OF ENGLAND. 307
an aflembly of Judges), but after a regular
manner, and with certainty; Through ir.s af-
fiflance, all matters of fact are, at length, made
clear; and, through the conflict of the different
anfwers and replies, nothing at lalt remains,
but the found part of the arguments (<z.)
(a) This right of publicly difcufling political Subjects,
is alone a great advantage to a People Who enjoy it ; and
if the Citizens of Geneva, for instance, have preferved
their liberty better than the People have been able to do
in the other Commonwealths of Switzerland, it is, I think,
owing to the extenfive right they poiTefs of making public
remon (trances to their Magistrates. To thefe remon-
flrances the Magistrates, for inltance the Council of
Ttventy-Ji-ve, to which they are ufually made, are obliged
to give an anfwer. If this anfwer does not fatisfy the re-
monitrating Citizens, they take time^ perhaps two or three
weeks, to make a reply to it, which mult alio be anfwer-
ed ; and the number of Citizens who go up with each new
remonttrance increafes, according as they a;e thought to
have reafon on their fide. Thus, the remonftrances
which were made fome years ago, on account of the fen-
tence againft the celebrated M. RouMeau, and were deli-
vered at first by only forty Citizens, were afterwards often
accompanied by about nine hundred. This circumstance,
together with the ceremony with which thofe remonihances
(or Representations, as they more commonly call them)
are delivered, his rendered them a great check on the
conduct of the Magistrates : they even have been still
more ufeful to the Citizens of Geneva, as a preventative
than as a remedy ; and nothing is more likely to deter the
Magistrates from taking a ftep of any kind thac tlt<3
thought that it will give rife to a Reprefcntation.
308 THE CONSTITUTION
Hence, though all good Men may not think
themfelves obliged to concur implicitly in the
tumultuary refolutions of a People whom their
Orators take pains to agitate, yet, on the other
hand, when this fame People, left to itfelf,
perfeveres in opinions which have for a long
time been difcuffed in public writings, and
from which (it is effential to add) all errors
concerning fads have been removed, fuch per-
feverance is certainly a very refpeclable decifion ;
and then it is, though only then, that we may
with fafety fay," the voice of the People is
i( the voice of God."
How, therefore, can the People of England
aft, when, having formed opinions which may
really be called their own, they think they have
juft caufe to complain againft the Adminiftra-
tion ? It is, as has been faid above, by means
of the right they have of electing their Re-
prefentatives ; and the fame method of gene-
ral intercourfe that has informed them with
regard to the objecls of their complaints, will
likewife enable them to apply the remedy to
them.
Through this means they are acquainted
with the nature of the fubjecls that have been
deliberated upon in the Affembly of their Re-
O F E N G L A N D. 399
prefentatives ; they are informed by whom
the different motions were made, by whom
they were fupported ; and the manner in which
the fufFrages are delivered, is fuch, that they
always can know the names of thofe who have
voted conftantly for the advancement of perni-
cious meafures.
And the People not only know the par-
ticular difpofitions of every Member of the
Houfe of Commons ; but the general noto-
riety of all things gives them alfo a know-
ledge of the political fentiments of a great
number of thofe, whom their fituation in life
renders fit to fill a place in that -Houfe.
And availing themfelves of the feveral va-
cancies that happen, and ftill more of the op-
portunity of a general election, they purify
either fucceffively, or at once, the Legiflative
AfTembly ; and thus, without any commo-
tion or danger to the State, they effect a ma-
terial reformation in the views of the Govern-
ment.
I am aware that fome perfons will doubt
thefe patriotic and fyftematic views, which
I am here attributing to the People of England,
and will object to me the diforders that fome-
times happen at Elections, But this reproach
x 3
31 THE CONSTITUTION
which, by the way, conies with but little pro-
priety from Writers who would have the People
tranfact every thing in their own peribns, this
reproach, I fay, though true to a certain degree,
is not however fo much fo as it is thought by
certain perfons who have taken only a fuperficiai
furvey of the flate of things.
Without doubt, in a Constitution in which
all important caufes of uneaiinefs are fo effec-
tually prevented, it is impoflible but that the
People will have long intervals of inattention.
Being then called upon, on a fudden, from this
ftate of inactivity, to elect Representatives, they
have not examined, beforehand, the merits of
thofe who afk them their votes ; and the latter
have not had, amidfl the general tranquillity,
any opportunity to make themfelves known to
them.
The Elector, perfuaded, at the fame time,
that the perfon whom he will elect, will be
equally interefted with himfelf in the fupport
pf public liberty, does not enter into laborious
difquifitions, and from which he fees he may
exempt himfelf. Obliged, however, to give
the preference to fomebody, he forms his
choice on motives which would not be excuf-
ftble, if it were not that fome motives are
OF ENGLAND. 311
neceffary to make a choice, and that, at this in-
flant, he is not influenced by any other: and
indeed it muft be confeffed, that, in the ordinary
courfe of things, and with Electors of a certain
rank in life, that Candidate who gives the bell
entertainment, has a great chance to get the
better of his competitors.
But if the meafures of Government, and the
reception of thofe meafures in Parliament, by
means of a too complying Houfe of Commons,
mould ever be fuch as to fpread a ferious alarm
among the People, the fame caufes which have
concurred to eftablifh public liberty, would, no
doubt, operate again, and likewife concur in its
fupport. A general combination would then
be formed, both of thofe Members of Parlia-
ment who have remained true to the public
caufe, and of perfons of every order among the
People. Public meetings, in fuch circumftances,
would be appointed, general fubfcriptions would
be entered into, to fupport the expences, what-
ever they might be, of fuch a necefTary op-
pofition ; and all private and unworthy pur-
pofes being fupprelTed by the fenfe of the Na-
tional danger, the choice of the electors would
then be wholly determined by the confider*
x 4
3 i2 THE CONSTITUTION
ation of the public fpirit of the Candidates, and
the tokens given by them of fuch fpirit.
Thus were thofe Parliaments formed, which
fuppreffed arbitrary taxes and imprisonments.
Thus was it, that, under Charles the Second,
the People, when recovered from that enthufi-
afm of affection with which they received a
King fo long perfecuted, at laft returned to him
no Parliaments but fuch as were compofed of a
majority of Men attached to public liberty.
Thus it was, that, perfevering in a condudt
which the circumltances of the times rendered
necelTary, the People baffled the arts of the
Government ; and Charles difTolved three fuc-
ceffive Parliaments, without any other effecl: but
that of having thofe fame Men re-chofen, and
fet again in pppofition to him, of whom he
hoped he had rid himfelf for ever.
Nor was James the Second happier in his
attempts than Charles had been. This Prince
foon experienced that his Parliament was ac-
tuated by the fame fpirit as thofe which had
pppofed the defigns of his late brother ; and
Jiaving fuffered himfelf to be led into mea-
sures of violence, inftead of being better
taught by the difcovery he made of the real fen?
iiments of the People, his reign was terminated
OF ENGLAND, 3 J 3
by that cataftrophe with which every one is
acquainted.
Indeed, if we combine the right enjoyed
by the People of England, of electing their
Representatives, with the whole of the Eng-
lish Government, we fhall become continually
more and more fenfible of the excellent ef-
fects that may refult from that right. All Men
jn the State are, as has been before obferved,
really interefted in the fupport of public li-
berty j nothing but temporary motives, and
fuch as are quite peculiar to themfelves, can
poffibly induce the Members of any Houfc of
Commons to connive at meafures deftructive
pf this liberty : the People, therefore, under
fuch circumftances, need only change thefe
Members in order effectually to reform the
conduct of that Houfe : and it may fairly be
pronounced beforehand, that a Houfe of Com-
mons, compofed of a new fet of perfons, will,
from this bare circumftance, be in the interefls
of the People.
Hence, though the complaints of the People
do not always meet with a fpeedy and im-
mediate redrefs (a celerity which would be
the fymptom of a fatal unfteadinefs in the
Conftitution, and would fooner or later bring
on its ruin) yet, when we attentively confider
3 i4 THE CONSTITUTION
the nature and the refources of this Confuta-
tion, we fhall not think it too bold an affertion
to fay, that it is impoflible but that complaints
in which the People perfevcre, that is, to re-
peat it once more, well-grounded complaints,
will fooner or later be redreffed.
CHAP. XIV.
Right of Refinance.
BUT all thofe privileges of the People, con-
iidered in themfelves, are but feeble de-
fences againft the real ftrength of thole who
govern. All thofe provifions, all thofe reci-
procal Rights, nccefTarily fuppofe that things
remain in their legal and fettled courfe :
what would then be the refource of the People,
\i ever the Prince, fuddenly freeing him-
felf from all reftraint, and throwing himfelf
as it were out of the Conftitution, lhould no
longer refpe<t either the perfon, or the pro-
perty of the fubject, and either mould make
no account of his convention with his Par-
liament, or attempt to force it implicitly to
iubmit to his will ? It would be refinance.
OF ENGLAND. 315
Without entering here into the difcuffion
of a doctrine which would lead us to enquire
into the firft principles of Civil Government,
confequently engage us in a long difquifition,
and with regard to which, befides, perfons
free from prejudices agree pretty much in their
opinions, I fhall only obferve here (and it
will be fufficient for my purpofe) that the
queftion has been decided in favour of this
doctrine by the Laws of England, and that
refiftance is looked upon by them as the ulti-
mate and lawful refource againft the violences
of Power,
It was refiftance that gave birth to the Great
Charter, that lading foundation of Englifli
Liberty ; and the exceffes of a Power eftablim-
ed by force, were alfo reftrained by force (a).
It has been by the fame means that, at dif-
(a) Lord Lyttelton fays extremely well, in his Per-
fian Letter?, " If the privileges of the People of
" England be conceffions from the Crown, is not the
" power of the Crown itfelf, a conceffion from the
" People ?" It might be faid with equal truth, and
fomewhat more in point to the fubjedl of this Chapter, -
If the privileges of the People be an encroachment
on the power of Kings, the power itfelf of Kings
was at fiift an encroachment (no matter whether efr
fe&ed by furprize) on the natural liberty of the
People.
3 i6 THE CONSTITUTION
ferent times, the People have procured the con-
firmation of the fame Charter. Laftly, it
has alfo been the Refiftance to a King who
made no account of his own engagements,
that has, in the iffue, placed on the Throne
the family which is now in poffelTion of it.
This is not all; this refource which, till
then had only been an act of force, oppofed
to other ads of force, was, at that aera, ex-
prefly recognized by the Law itfelf. The
Lords and Commons, folemnly affembled, de-
clared, that " King James the Second, having
endeavoured to fubvert the Conftitution of
" the Kingdom, by breaking the original
" contract between King and People, and hav-
" ing violated the fundamental laws, and
" withdrawn himfelf, had abdicated the Go-
(l vernment ; and that the Throne was thereby
" vacant (a)."
. And left thofe principles to which the Re-
volution thus gave a fanclion, mould, in pro-
cefs of time, become mere arcana of State,
exclusively appropriated, and only known to
a certain clafs of Subjects, the fame Act, we
have juft mentioned, exprefly infured to ii>
(a) The Bill of Rights has fince given a new fandlion
to all thefe principles.
8
OFENGLAND. 317
dividuals the right of publicly preferring com-
plaints againft the abufes of Government,
and moreover, of being provided with arms
for their own defence. Judge Blackftone ex-
preffes himfelf in the following terms, in his
Commentaries on the Laws of England,
(B. I. Ch. i.) .
" And laftly, to vindicate thofe rights,
" when actually violated or attacked, the
" fubjects of England are entitled, in the
" firit place, to the regular adminiftration,
" and free courfe of juftice in the Courts of
" law ; next, to the right of petitioning the
" King and Parliament for redrefs of griev-
" ances ; and, laflly, to the right of hav-
" ing and ufing arms for felf-prefervation and
'* defence."
Laftly, this right of oppoflng violence, in
whatever fhape, and from whatever quarter
it may come, is fo generally acknowledged,
that the Courts of law have fometimes ground-
ed their judgments upon it. I fhall relate
on this head a fadt which is fomewhat re-
markable.
A Conftable, being out of his precinft,
arrefted a woman whofe name was Anne Dekins ;
one 'Tooly took her part, and in the heat of the
fray, killed the afitftant of the Conftable.
3 i8 THE CONSTITUTION
Being profccuted for murder, he alledged,
in his defence, that the illegality of the im~
prifonment was a fulflcient provocation to make
the homicide excufable, and intitle him to the
benefit of Clergy. The Jury having fettled
the matter of fad:, left the criminality of it to
be decided by the Judge, by returning afpecial
verdifii. The caufe was adjourned to the King's
Bench, and thence again to Serjeants Inn, for
the opinion of the twelve Judges. Here fol-
lows the opinion delivered by Chief Juftice
Holt, in giving judgment.
" If one be imprifoned upon an unlawful
" authority, it is a fufficient provocation to
" ail people, out of companion, much more
" fo when it is done under colour of juftice;
" and when the liberty of the fubjett is in-
< vaded, it is a provocation to all the fubjeCts
" of England. A Alan ought to be con-
" cerned for Magna Ckarta and the laws;
" and if any one againft law imprifon a Man,
he is an ofFendei againft Magna Charta."
After fome debate, occafioned chiefly by
Tooly's appearing not to have known that the
Conftable was out of his precinct, feven of
the Judges were of opinion that the prifoner
OF ENGLAND. 319
was guilty of Manflaughter, and he was ad-
mitted to the benefit of Clergy (a).
But it is with refpect to this right of an ul-
timate reiiibnce, that the advantage of a free
prefs appears in a mod confpicuous light. As
the molt important rights of the People, with-
out the profped: of a refinance which over-
awes thofe who fhould attempt to violate them,
are little more than mereihadows, fo this right
of rejijling, itfelf, is but vain, when there ex-
iits no means of effecting a general union be-
tween the different parts of the People.
Private individuals, unknown to each other,
are forced to bear in filence injuries in which
they do not fee other people take a concern.
Left to their own individual ftrength, they
tremble before the formidable and ever-ready
power of thofe who govern ; and as thefe latter
well know, nay, are apt to over-rate the ad-
vantages of their own fituation, they think
that they may venture upon any thing.
But when they fee that all their actions
are expofed to public view, that in confe-
quence of the celerity with which all things
{a) See Reports of Cafes argued, debated, and ad-
judged in Banco Regina, in the time of the !a:e Q^een
Anne.
320 THE CONSTITUTION
become communicated, the whole Nation forms*
as it were, one continued irritable body, no
part of which can be touched without exciting
an univerfal tremor, they become fenfible that
the caufe of each individual is really the caufe
of all, and that to attack the loweft among the
People, is to attack the whole People.
Here alfo we muft remark the error of thofe
who, as they make the liberty of the people
to confift in their power, fo make their power
confift in their action.
When the People are often called to adt
in their own perfons, it is impofTible for
them to acquire any exact knowledge of the
ftate of things. The event of one day effaces
the notions which they had begun to adopt on
the preceding day ; and amidft the continual
change of things, no fettled principle, and
above all no plans of union, have time to be
cftablifhed among them. You wifh to have
the People love and defend their laws and
liberty; leave them, therefore, the neceffary
time to know what laws and liberty are, and
to agree in their opinion concerning them ;
you wifh an union, a coalition, which cannot
be obtained but by a flow and peaceable pro-
cefs, forbear therefore continually to fhake the
veffel.
OF ENGLAND. 321
Nay farther, it is a contradiction, that the
People mould aft, and at the fame time retain
any real power. Have they, for iriftance,
been forced by the weight of public oppref-
fion to throw off the reftraints of the law,
from which they no longer received protec-
tion, they prefently find themfelves fuddenly
become fubjedt to the command of a few
Leaders, who are the more abfolute in pro-
portion a9 the nature of their power is lefs
clearly afcertained : nay, perhaps, they muft
even fubmit to the toils of war, and to mili-
tary difcipline.
If it be in the common and legal courfe
of things that the People are called to move,
each individual is obliged, for the fuccefs of
the meafures in which he is then made to
take a concern, to join himfelf to fome party ;
nor can this party be without a Head. The
Citizens thus grow divided among themfelves,
and contract the pernicious habit of fubmit-
ting to Leaders. They are, at length, no
more than the clients of a certain number of
Patrons; and the latter foon becoming able to
command the arms of the Citizens in the fame
manner as they at fi?ft governed their votes,
make little account of a People with one par:
of which they know how to curb the other.
Y
3 22 THE CONSTITUTION
But when the moving fprings of Govern-
ment are placed entirely out of the body of
the People, their action is thereby difengaged
from all that could render it complicated, or
hide it from the eye. As the People thence-
forward confider things fpeculatively, and
are, if I may be allowed the expreffion, only
fpectators of the game, they. acquire juft no-
tions of things ; and as thefe notions, amidft
the general quiet, get ground and fpread
themfelves far and wide, they at length en-
tertain, on the fubject of their liberty, but one
opinion.
Forming thus, as it were, one body, the
People, at every inftant, have it in their power
to ftrike the deciiive blow which is to level
everv thing. Like thofc mechanical powers
the greateft efficiency of which exifts at the
inftant which precedes their entering into ac-
tion, it has an immenfe force, juft becaufe
it does not yet exert any ; and in this ftate
of ftillncfs, but of attention, confifts its true
momentum.
With regard to thofe who (whether from
perfonal privileges, or by virtue of a com-
million from the People) are intruded with
the adive part of Government, as they, in
the mean while, fee themfelves expofed to
O F E N G L A N D. 323
public view, and obferved as from a diftance
by Men free from the fpirit of parry, and who
place in them but a conditional trull, they
are afraid of exciting a commotion which,
though it might not prove the deilruftion of
all power, yet would furely and immediately
be the dcftruftion of their own. And if we
might fuppofe that, through an extraordinary
conjunction of circumftances, they mould re-
folve among themfelves upon the facrifice of
thofe laws on which public liberty is founded,
they would no fooner lift up their eyes to-
wards that extenfive Affembly which views
them with a watchful attention, than they
would find their public virtue return upon
them, and would make hafte to rcfume that
plan of conduct out of the limits of which
they can expect: nothing but ruin and perdi-
tion.
In fhort, as the body of the People cannot
act ' without either fubjefting themfelves to
fome Power, or effecting a general dcftruftion,
the only mare they can have in a Government
with advantage to themfelves, is not to inter-
fere, but to influence, to be able to aft, and
not to aft.
The Power of the People is not when they
{hike, but when they keep in awe : it is
Y 2
S 24 THE CONSTITUTION
when they can overthrow every thing, that
they never need to move ; and Manlius in-
cluded all in four words, when he faid to
the People of Rome, OJiendite helium, pacem
habebitis.
CHAP. XIV.
Proofs drawn from Faffs, of the Truth of the
Principles laid down in the prefent Work.
i. The peculiar Manner in which Revolutions
have always been concluded in England.
T may not be fufficient to have proved by
arguments the advantages of the Englifh
Constitution : it will perhaps be afked, whe-
ther the effects correfpond to the theory ?
To this queflion (which I confefs is extremely
proper) my anfwer is ready ; it is the fame
which was once made, I believe, by a Lace-
demonian, Ccme and fee.
It we perufe the Englifh Hiftory, we fhall
be particularly {truck with one circumflance
to be obferved in it, and which diftinguifhes
mod advantageoufly the Englifh Government
from all other free governments; I mean the
OF ENGLAND. $1$
manner in which Revolutions and public com-
motions have always been terminated in Eng-
land.
If we read with fome attention the Hiftory
of other free States, we fhall fee that the public
difTeniions that have taken place in them, have
conftantly been terminated by fettlements in
which the interefts only of a few were really
provided for; while the grievances of the many
were hardly, if at all, attended to. In Eng-
land the very reverfe has happened, and we find
Revolutions always to have been terminated by
extenfive and accurate provifions for fecuring
the general liberty.
The Hiftory of the ancient Grecian Com-
monwealths, but above all of the Roman Re-
public, of which more complete accounts have
been left us, afford ftriking proof of the for-
mer part of this obfervation.
What was, for inftance, the confequence
of that great Revolution by which the Kings
were driven from Rome, and in which the
Senate and Particians adted as the advifers
and leaders of the People ? The confequence
was, as we find in Dionyfius of Halicarnaflus,
and Livy, that the Senators immediately af-
fumed all thofe powers lately fo much com-
plained of by themfelves, which the Kings
326 THE CONSTITUTION
had exercifed. The execution of their future
decrees was intruded to two Magiflrates, taken
from their own body, and entirely dependent
on them, whom they called Confuls, and who
were made to bear about them all the enfio-ns
of power which had formerly attended the
Kings. Only, care was taken that the axes
and fcifecs, the fymbols of the power of life
and death over the Citizens, which the Senate
now claimed to itfelf, mould not be carried
before both Confuls at once, but only before
one at a time, for fear, fays Livy, of doubling
the terror of the People (a).
Nor was this all : the Senators drew over
to their party thole Men who had the moil
intcrcft at that time among the People, and
admitted them as Members into their own
body ('>) ; which indeed was a precaution they
could not prudently avoid taking. But the
interefls of the great Men in the Republic
being thus provided for, the Revolution ended.
The new Senators, as well as the old, took
care not to leffen, by making provifions for the
(a) " Omnia jura (Regum) omnia infignia., primi Con-
" fules tenuere ; id raodb cautum eft ne n ambo fafces
" haberent, duplicates terror videretur." Tit. Li~j. lib. ii.
h i.
[b) Thcfe new Senators were called conferipti : hence
the name of Patres Conferipti, afterwards indiscriminately
riven to the whole Senate. Tit. Liv. ibid.
OF ENGLAND. 327
liberty of the People, a power which was now
become their own. Nay, they prefently ftretch-
ed this power beyond its former tone ; and
the punifhments which the Conful inflicted
in a military manner on a number of thofe
who ftill adhered to the former mode of Go-
vernment, and even upon his own children,
taught the People what they had to expect for
the future, if they prefumed to oppofe the
power of thofe whom they had thus unwarily
made their Matters.
Among the opprefllve laws, or ufages, which
the Senate, after the expuliion of the Kings,
had permitted to continue, thofe which were
molt complained of by the People, were thofe
by which thofe Citizens who could not pay
their debts with the intcrcft (which at Rome
was enormous) at the appointed time, became
flaves to their Creditors, and were delivered
over to them bound with cords : hence the
word Nexi, by which that kind of Slaves were
denominated. The cruelties excrcifed by Cre-
ditors on thofe unfortunate Men, whom the
private calamities cauled by the frequent wars
in which Rome was engaged, rendered very
numerous, at laft roufed the body ot the
People : they abandoned both the City, and
their inhuman fellow-citizens, and retreated to
the other fide of the River Anio.
Y 4
^28 THE CONSTITUTION
But this fccond Revolution, like the former^
only procured the advancement of particular
perfons. A new office was created, called the
Tribunefhip. Thofe whom the People had
placed at their head when they left the City,
were raifed to it. Their duty, it was agreed,
v/as for the future to prated: the Citizens ;
and they were inverted with a certain number
of prerogatives for that purpofe. This Infti-
tution, it mult however be confeffed, would
have, in the ifTue, proved very beneficial to the
People, at leaft for a long courfe of time, if
certain precautions had been taken with refpecl
to it, which would have much leiTened the fu-
ture perfonal importance of the newTribunes (a):
but thefe precautions the latter did not think
proper to fugged ; and in regard to thofe
abufes themfelves which had at firft given rife
to the complaints of the People, no farther
mention was made of them (b).
As the Senate and Patricians, in the early
ages of the Commonwealth, kept clofely united
together, the Tribunes, for all their perfonal
[a) Their number, which was only Ten, ought to have
"been much greater ; and they never ought to have ac=
ceptecl the power left to each of them, of flopping by his
tingle oppofition the proceedings of all the reft.
{b) A number of (editions were afterwards raffed upon
he fame account.
OF ENGLAND.
329
privileges, were not able, however, during the
firft times after their creation, to gain an admit*
tance either to the Confulfhip, or into the
Senate, and thereby to feparate their condition
any farther from that of the People. This
fituation of their's, in which it was to be wifhed
they might always have been kept, produced
at firfl excellent effects, and caufed their con-
duct to anfwer in a great meafure the expecta-
tions of the People. The Tribunes complained
loudly of the exorbitancy of the powers pofTeffed
by the Senate and Confuls ; and here we mull:
obferve, that the power exercifed by thefe latter
over the lives of the Citizens, had never been
yet fubje&ed (which will probably furprife the
Reader), to any known laws, though fixty years
had already elapfed fince the expulfion of the
Kings. The Tribunes therefore infilled, that
laws mould be made in that refpedt, which the
Confuls mould thenceforwards be bound to fol-
low; and that they mould no longer be left,
in the exercife of their power over the lives of
the Citizens, to their own caprice and wanton-
nefs (a).
{a) " Quod Populus in fe jus dederit, eo Confulem
(t ufurum ; non ipfos libidinem ac licentiam fuam pre-
' lege habituros." Tit. Liv. lib. iii. $ 9.
33o THE CONSTITUTION
Equitable as thefe demands were, the Senate
and Patricians oppofed them with great warmth,
and either by naming Dictators, or calling in
the affiftance of the Priefts, or other means,
they defeated for nine years together, all the
endeavours of the Tribunes. However, as the
latter were at that time in earner!:, the Senate
was at length obliged to comply; and the Lex
Terentilla was pafled, by which it was enacted,
that a general Code of Laws ihould be made.
Thefe beginnings feemed to promife great
fuccefs to the caufe ot the People. But, unfor-
tunately for them, the Senate found means to
have it agreed, that the office of Tribune mould
be fet afide during the whole time that the Code
Ihould be framing.' They moreover obtained,
that the ten Men, called Decemvirs, to whom
the charge oi" compelling this Code was to be
given, fliould be taken from the body of the
patricians. The fame caufes, therefore, pro-
duced again the fame effects ; and the po ver ot
the Senate and Conful was left in the new Code,
or laws of the Twelve Tables, as undtnned as
before. As to the laws above mentioned, con-
cerning debtors, which never had ccaled to be-
bitterly complained of by the People, and in
regard to which feme fatisfaction ought in com-
O F E N G L A N D. 331
iiion juftice, to have been given them, they were
confirmed, and a new terror added to them from
the manner in which they were worded.
The true motive of the Senate, when they
thus milled the framing of the new laws to a
new kind of Magillrates, called Decemvirs,
was that, by fufpending the ancient office of
Conful, they might have a fair pretence for fuf-
pending alfo the office of Tribune, and there-
by rid themfelves of the People, during the
time that the important bulinefs of framing
the Code mould be carrying on : they even, in
order the better to fecure that point, placed the
whole power in the Republic, in the hands of
thefe new Magillrates. But the Senate and Pa-
tricians experienced then, in their turn, the
danger of entrullin; Men with an uncontrolled
authority. As they themfelves had formerly
betrayed the trull which the People had placed
in them, fo did the Decemvirs, on this occa-
lion, likewife deceive them. They retained,
by their own private authority, the unlimited
power that had been conferred on them, and at
laft exercifed it on the Patricians as weli as the
Plebeians. Both parties therefore united againft
them, and the Decemvirs were expelled from
the City.
jji THE CONSTITUTION
The former dignities of the Republic were
r-eflored, and with them the office of Tribune.
Thofe from among the People who had been
molt inftrumental in deftroying the power of
the Decemvirs, were, as it was natural, raifed
to the Tribuncmip ; and they entered upon
their offices pofTeffed of a prodigious degree
of popularity. The Senate and the Patricians
were, at the fame time, funk extremely low
m confequence of the long tyranny which had
juft expired ; and thofe two circumftances
united, afforded the Tribunes but too eafy an
opportunity of making the prefent Revolution
end as the former ones had done, and con-
verting it to the advancement of their own
power. They got new perfonal privileges to
be added to thofe which they already pof-
leffed, and moreover procured a law to be cn-
nfted, by which it was ordained, that the re-
folutions taken by the Comltia 'Tributa (an Af-
fembly in which the Tribunes were admitted
to propofe new laws) fhould be binding upon
the whole Commonwealth : by which they
at once raifed to themfelvcs an impcrium in im-
prrio, and acquired, as Livy expreffes it, a molt
active weapon (<?).
(<?) Acerrhnum ttlnm.
OF ENGLAND.
333
From that time great commotions arofe in
the Republic, which, like all thofe before them,
ended in promoting the power of a few.
Propofals for ealing the people of their debts,
for dividing with fome equality amongft the
Citizens the lands which were taken from
the enemy, and for lowering the rate of the
intereft of money, were frequently made by
the Tribunes. And indeed all thefe were
excellent regulations to propofe ; but, unfor-
tunately for the People, the propofals of them
were only pretences made ufe of by the Tri-
bunes for promoting fchemes of a fatal though
fomewhat remote, tendency, to public liberty.
Their real aims v/ere at the Confulfhip, the
Prstorfhip, the Prieilhood, and other offices of
Executive power, which they were intended
to controul, and not to lhare. To thefe views
they conftantly made the caufe of the People
fubfervient : I mall relate among other
inflances, the manner in which they procured
to themfelves an admittance to the office of
Coniul.
Having, during feveral years, feized every
opportunity of making fpeeches to the People
on that fubjecl, and even excited feditions
in order to overcome the oppofition of the
Senate, they at laft availed themfelves of the
9
334 THE CONSTITUTION
circumftance of an interregnum (a time, during
which there happened to be no other Magistrates
in the Republic befides themfelves) and pro-
pofed to the Tribes, whom they had affembled,
to enadt the three following laws: the fir ft,
ior fettling the rate of intereft of money ; the
fecond, for ordaining that no Citizen fhould be
pofTefled of more than five hundred acres of
land; and the third, for providing that one of
the two Confuls mould be taken from the body
of the Plebeians. But on this occafion it evi-
dently appeared, fays Livy, which of the laws
in agitation were mod agreeable to the People,
and which to thole who propofed them ; for
the Tribes accepted the laws concerning the
intereft of money, and the lands ; but as
to that concerning the Plebeian Confulfhip,
they rejected it : and both the former articles
would from that moment have been fettled,
if the Tribunes had not declared, that the
Tribes were called upon, either to accept,
or reject, all their three propofals at once (a).
(a) " Ab Triburiis, velut p?r interregnum, concilio
" Plebis habko, apparuit qucc ex pronvjigstis Fleb;, qua;
'* latoribus, gratiora client ; nam de fcenoie atque agro
" rogationes jubebant, de plebeio Confulacu antiquabant
" (antiqttis Jiabantj : & perfeda utraque res efil-r, ni
" Tribuni fe in omnia fimul confulere Plebem dixiiTent.'" -
Tit. Liv. lib. vi. 39.
5
OF ENGLAND, 32 $
Great commotions enfued thereupon, for a
whole year; but at laft the Tribunes, by their
perfeverance in infilling that the Tribes mould
vote on their three rogations, jointly, obtained
their ends, and overcame both the oppo-
sition of the Senate, and the reluctance of
the People.
In the fame manner did the Tribunes get
themfelves made capable of filling all other
places of executive power, and public trull,
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 intcreft of the People better attended
to, than before. New ilruggles then arofe for
actual admiflion to thofe places ; for procur-
ing them to relations, or friends ; for govern-
ments of provinces, and commands of armies.
A few Tribunes, indeed, did at times apply
themfelves fcriouilv, out of real virtue and
love of their duty, to remedv the grievances
of the People ; but both their fellow Tribunes,
as we mav ice in Hiilory, and the whole body
of thofe Men upon whom the People had, at
different times, bellowed Confuiihips, ^Edile-
fhips, Ccnforfnips, and other dignities without
number, united together with the urmoil ve-
336 THE CONSTITUTION
hemence aga'mft them ; and the real Patriots*
fuch as Tiberius Gracchus, Caius Gracchus,
and Fulvius, constantly perifhed in the at-
tempt.
I have been fomewhat explicit on the ef-
fects produced by the different Resolutions
that have happened in the Roman Republic*
becaufe its Hiftory is much known to us, and
we have, either in Dionyfms of HalicarnafTus,
or Livy, confiderable monuments of the more
ancient part of it. But the Hiilory of the
Grecian Commonwealths would alfo have
fupplied us with a number of facts to the
fame purpofe. That Revolution, for inftance,
by which the Pijijlratidtf were driven out of
Athens that by which the Four hundred, and
afterwards the 'Thirty, were eitablifhed, as well
as that by which the latter were in their turn
expelled, all ending in fecuring the power of
a few. The Republic of Syracufe, that
of Corcyra, of which Thucydides has left us
a pretty full account, and that of Florence,
of which Machiavel has written the Hiftory,
alfo pre fe nt us a feries of public commotions
ended by treaties, in which, as in the Roman
Republic, the grievances of the People, though
ever fo loudly complained of in the beginning
bv thofe who acted as their defenders, were,
6F ENGLAND, 337
in die iffue, mofl carelefsly attended to, or even
totally disregarded (d).
But if we turn our eyes towards the Eng-
lish Hiftory, fcenes of a quite different kind
will offer to our view ; and we fhn.ll find,
on the contrary, that Revolutions in England
have always been terminated by making fuch
provifions, and only fuch, as all orders of the
People were really and indifcriminately to en-
joy-
Moft extraordinary fa&s, thefe ! and which,
from all the other circumftances that accom-
panied them, we fee, all along, to have been
owing to the impoffibility (a point that has
been fo much infilled upon in former Chap-
ters) in which thofe who poffeffed the confi-
dence of the People, were, of transferring to
themfelves any branch of the Executive autho-
rity, and thus feparating their own condition
from that of the reft of the People.
(a) The Revolutions which have formerly happened
in France, have all ended like thofe above menti > ed :
of this a remarkable inftance may be feen in th? note {a)
p, 29, 30. of this Work. The fame fadls are alfo tu>
be obferved in the Hiftory of Spain, Denmark, Swe-
den, Scotland, &c. ; but I have avoided mentioning
States of a Monarchical form, till fome obfervations are
made, which hi Reader will find in the XVIIth Chap-
ter,
333 THE CONSITITUTON
Without mentioning the compacts which were
made with the firft Kings of the Norman
line, let us only caft our eyes on Magna Charta,
which is flill the foundation of Englim liberty.
A number of circumftances which has been
defcribed in the former part of this work, con-
curred at that time to ftrengthen the Regal
power to fuch a degree that no Men in the
State could entertain a hope of fucceeding
in any other defign than that of fetting bounds
to it. How great was the union which thence
arofe among all orders of the People ! what
extent, what caution, do we fee in the provi-
fions made by the Great Charter ! All the
objects for which men naturally wifh to live
in a ftate of Society, were fettled in its thirty-
eight Articles. The judicial authority was
regulated. The perfon and property of the
individual were fecured. The fafety of the
Merchant and flranger was provided for. The
higher clafs of Citizens gave up a number
ot oppremve privileges which they had long
fince accuflomed themfelves to look upon as
their undoubted rights (a). Nay, the implc-
[a) All poffeffors of lands took the engagement to
eflablilh in behalf of their Tenants and Vaffals (ergo,
fuoi) the fame liberties which they demanded from the
King. Mag. Char. cap. xxxviii.
OF ENGLAND, 539
fncnts of tillage of the Bondman, or Slave,
were alfo fecured to him ; and for the firft
titne perhaps in the annals of the World, a
civil war was terminated by making ftipula-
tions in favour of thofe unfortunate Men to
whom the avarice and lull of dominion inhe-
rent in human Nature, continued, over the
greateft part of the Earth, to deny the com-
mon rights of Mankind.
Under Henry the Third great disturbances
arofe ; and they were all terminated by folemn
confirmations given to the Great Charter. Un-
der Edward I. Edward II. Edward III. and
Richard II. thofe who were intrufted with the
care of the interefts of the People, loft no op-
portunity that offered, of ftrengthening ftill
farther that foundation of public liberty, of
taking all fuch precautions as might render the
Great Charter ftill more effectual in the event.
They had not ceaied to be convinced that their
caufe was the fame with that of all the reft of
the People.
Henry of Lancafter having laid claim to
the Crown, the Commons received the law
from- the victorious party. They fettled the
Crown upon Henry, by the name of Henry
the Fourth ; and added to the Ad: of Settle-
ment, provinons which the Reader may fee in
Z 2
340 THE CONSTITUTION
the fecond Volume of the Parliamentary Hijfsry
of England. Struck with the wifdom of the
conditions demanded by the Commons, the
Authors of the Book jufl mentioned, obferve
(perhaps with feme fimplicity) that the Com-
mons of England were -no fools at that time.
They ought rather to have faid;-^-The Com-
mons of England were happy enough to form
among themfelves an AlTembly in which every
one could propofe what matters he pleafed,
and freely difcufs them ; they had no pofli-
bility left of converting either thefe advan-
tages, or in general the confidence which the
People had placed in them, to any private
views of their own : they, therefore, without
lofs of time endeavoured to llipulate ufeful
conditions with that Power by which they
faw themfelves at every inflant expofed to
be difiblvcd and difperfed, and applied their
incluftvy to infure the fafety 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 Houfes of York and Lancafter,
the Commons remained fpedtators of diforders,
which in thofe times, it was not in their
power to prevent : they fucceflively acknow-
ledged the title of the victorious parties ; but
O F E N G L A N D. 34s
whether under Edward the Fourth, under
Richard the Third, 01 Henry the Seventh, by
whom thofe quarrels wei .. terminated, they con-
tinually availed themfelves of the importance
of the fervices which they were able to perforin
to the new eftablifhed Sovereign, for obtaining
effectual conditions in favour of the whole body
of the People.
At the accefficn of James the Fiift, which,
as it placed a new Family on the Throne of
England, may be confidered as a kind of Re-
volution, no demands were made by the Men
who were at the head of the Nation, but in
favour of general liberty.
After the accefiion of Charles the Firft, dis-
contents of a very ferious nature began to take
place, and they were terminated in the firft
inftance, by the Att called the Petition of Right,
which is (till looked upon as a mod precife and
accurate delineation of the rights of the Peo-
ple (a),
(a) The diforders which took place in the latter part
of the reign of that Prince, feem indeed to contain a
complete contradiction of the affertion which is the fub-
jet of the prefent Chapter ; bat they, at the fame time,
are a no lefs c .r.vincing confirmation of the truth of the
principles laid 6 wn in courfe of this whole Work. The
kbove mentioned diforders took rife from that day in
which Charlec the Firft gave up the power cf diffolving
Z3
54 2 THE CONSTITUTION
At the Restoration of Charles the Second,
the Conftitution being re-eftablifhed upon its
former principles, the former coiifequences
produced by it, began again to take place ;
and we fee at that sera, and indeed during
the whole courfe of that Reign, a continued
feries of precautions taken for fe curing the
general liberty,
Laftly, the great event which took place
in the year 1689, affords a linking confir-
mation of the truth of the obfervation made
in this Chapter. At this agra the political
wonder again appeared of a Revolution ter-
minated by a feries of public Acls in which
no interefts but thofe of the People at large
were confidered and provided for ; no claufe,
even the moft indirect, was inferted, either
to gratify the prefent ambition, or favour the
future views, of thofe who were perfonally
concerned in bringing thofe Acts to a con-
clusion. Indeed, if any thing is capable of
conveying to us an adequate idea of the found-
uefs, as well as peculiarity, of the principles
on which the Englifh Government is founded,
hh Parliament ; that is, from the day in which the Mem-
bers of that Aiiembly acquired an independent, perfonal,
permanent authority, which they foon began to turn agau>ft
the People who had rallied them to it,
OF ENGLAND. 343
It is the attentive perufal of the Syftem of
public Compacts to which the Revolution
of the year 1689 gave rife, >of the Bill of
Rights with all its different claufes, and
of the feveral Acts which under two fubfe-
quent Reigns, till the Acceffion of the Houfe
of Hanover, were made in order to flrengthen
it. ;
CHAP. XVI.
Second Difference The Manner after which the
Laws for the Liberty of the Subjecl are executed
in England,
THE fecond difference I mean to fpeak of,
between the Englifh Government, and
that of other free States, concerns the im-
portant object of the execution of the Laws.
On this article, alfo, we fhall find the advan-
tage to lie on the fide of the Englifh Go-
vernment; and, if we make a comparifon be-
tween the Hiftory of thofe States and that
of England, it will lead us to the following
Z 4
; 4 4 THE CONSTITUTION
obfervation, viz. that, though in other free
States the laws concerning the Liberty of the
Citizens were imperfect, yet the execution of
them was ftill more defective. In England, on
the contrary, the laws for the fecurity of the
Syfbies5t, are not only very extenfive in their pro-
visions, buc the manner in which they are exe-
cuted, carries thefe advantages tlill farther?
and Englim Subjects enjoy no lefs liberty from
the ipirit both of juitice and mildnefs, by
which all branches of the Government are in-
fluenced, than from the accuracy of the laws
them (elves.
The Roman Commonwealth will here again
fupply us with examples to prove the former
pirt of the above afTe'rtion. When I fajd, in the
foregoing Chapter, that, in times of public
commotion, no provifions were made for the
body of the People, I meant no provifions
that were likely to prove effectual in the event.
When the People were roufed to a certain de-
cree or when their concurrence was neceffary
to carry into effed: certain relblutions, or mea-
fures, that were particularly interefling to the
Men in power, the latter could not, with any
prudence, openly profefs a contempt for they
O F E N G L A N D. 345
political wifhes of the People ; and fome
declarations expreffed in general words, in
favour of public liberty, were indeed added
to the laws that were enacted on thofe occa-
fions. But thefe declarations, and the prin-
ciples which they tended to eftablifh, were
afterwards even openly difregarded in prac-
tice.
Thus, when the People were made to vote,
about a year after the expulrlon of the Kings,
that the Regal Government never fhould be
again eftablifhed in Rome, and that thofe
who mould endeavour to reflore it, mould
be devoted to the Gods, an article was added
which, in general terms, confirmed to the
Citizens the right they had before enjoyed
under the King, of appealing to the People
from the fentences of death palled upon them.
No puniihment (which will furprife the Rea-
der) was decreed againft thofe who mould
violate this law ; and indeed the Confuls,
as we may fee in D.ionyfius of HalicarnafTas
and Livy, concerned themfelves but little about
tl^e appeals of the Citizens, and in the more
than military exercife of their functions, con-
tinued to fport with rights which they ought to
have refpected, however imperfectly and loofely
$hey had been fecured.
54-6 THE CONSTITUTION
An article to the fame purport with the
above, was afterwards alfo added to the laws
of the Twelve Tables ; but the Decemvirs,
to whom the execution of thofe laws was
at firft committed, behaved exactly in the
fame manner, and even worfe than the Con-
fute had done before them ; and after they
were expelled (a) the Magiftrates who fuc-
ceeded them, appear to have been as little
tender of the lives of the Citizens. I fhall,
among many inftances, relate one which will
fhew upon what flight grounds the Citizens
were expofed to have their lives taken away,
Spurious Maelius being accufed of en-
deavouring to make himfelf King, was fum-
moned by the Matter of the Houfe, to ap-
pear before the Dictator, in order to clear
himfelf of this fomewhat extraordinary impu-
tation. Spurius took refuge among the Peo-
ple ; the Matter of the Horfe purfued him,
and killed him on the fpot. The multitude
(a) At the time of the expulfion of the Decemvirs, a
law was alfo enacted, that no Magillratc lhould be created
from whom no appeal could be made to the People (Ma-
pijlratus fine provocations. Tit. &<u. lib, iii. 55.) by
which the people exprefsly meant to abolifh the Dictator*
{hip : but, from the fact that will jult now be related, and
which happened about ten years afterwards, we fhall fee
that this law was not better obferved than the former one_j
had been.
OFENGLAND, 347
having thereupon exprefTed a great indig-
nation, 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 refufed to appear before the Dic-
tator, when fummoned to do fo by the Mafler
of the Houfe (#).
About one hundred and forty years after
the times we mention, the law concerning the
appeals to the people, was enacted for the third
time. But we do not fee that it was better
obferved afterwards than it had been before ;
we find it frequently violated, fince that period,
by the different Magiftrates of the Republic,
and the Senate itlelf, notwithstanding this
fame law, at times made formidable exam-
ples of the Citizens, Of this we have an
inftance in the three hundred foldiers who
had pillaged the Town of Rhegium. The
Senate, of its own authority ordered them
all to be put to death. In vain did the Tri-
bune Flaccus remonftrate ao-ainft fo fevere an
(a) Tumultuantem deinde multitudinem, incerta exiftima-
tione fafti, ad concionem vocari juflit, & M-r Hum jure crf-.rn
pronunciavit, etiamji regni crhnine i?ifons fuerit , qui voca/us
a Magijiro equitum, ad DiSlaiown nan venijfei. Tit. I.iv,
lib. lv. j ?5-
.:>
aS the constitution
exertion of public juftice on Roman Citizens:
the Senate, fays Valerius Maximus, neverthc-
leis perfifted in its refolution (a).
All thefe laws for fecuring the lives of the
Citizens, had hitherto been enacted without
any mention being made of a punilhment
againfl: thofe who fhould violate them. At
lift the celebrated Lex Porcia was paffed, which
lubjedted to banifhment thofe who mould
cauls a Roman Citizen to be fcourged and
put to death. From a number of inftances
pofterior to this law, it appears that it was not
better obferved than thofe before it had been :
Caius Gracchus, therefore, caufed the Lev
Sempronia to be enacted, by which a new
fanction was given to it. But this fecond law
did not fecure his own life, and that of his
friends, better than the Lex Portia had done
that of his brother, and thofe who had fup-
(a) Val. Mai. b,ook ii. c. 7. This Author does not
mention the precife number of thofe who were put to
death on this occafion ; he only fays that they were exe-
cuted fifty at a time, in different fucceffive days ; bui
other Authors make the number of them amount to four
ihoufand Livy fpeaks of a whole Legion. Legio Campana
eux Rhegium cccupaverat, cbfeffa, deditione fa Sid , fecuri per-
cuffa ejl. Tit. Liz: lib. xv. Epit. I have here followed
Polybius, who fays that only three hundred were take:*
and brought to Rome.
OF ENGLAND, 349
ported him : indeed, all the events which took
place about thofe times, rendered it manifeft
that the evil was fuch as was beyond the
power of any lawb 10 cure. I mall here men-
tion a fact which aftoids a remarkable in-
ftance of the wantonnefs with which the Ro-
man Magistrates had accuftomed themfelves
to take away the lives of the Citizens. A
Citizen, named Memmius, having put up for
the Confulfhip, and publicly canvamng for
the fame, in oppofition to a Man whom the
Tribune Saturninus fupported, the latter caufed
him to be apprehended, and made him expire
under blows in the public Forum. The Tri-
bune even carried his infolence fo far, as Ci-
cero informs us, as to give to this act of
cruelty, tranfacted in the prefence of the whole
People affembled, the outward form of a law-
ful act of public Juftice (a).
(a) The fatal forms of words ( cruciatus carmina ) nfed
by the Roman Magistrates when they ordered a Man to
be put to death, refounded (fays Tully in his fpeech for
Rabirius) in the AfTembly of the People, in which the
Cenfors had forbidden the common Executioner ever to
appear. / Littor, coiliga mama. Caput obnubito. Arbcrl
infelici fufpendito . Memmius being a considerable Ci-
tizen, as we may conclude from his canvaffing with fuc-
cefs for the Confulfhip, all the great Men in the Republic
*ook the alarm at the atrocious action of the Tribune :
2$* THE CONSTITUTION
Nor were the Roman Magiftrates fatisfied
with committing acts of injuftice in their po-
litical capacity, and for the fupport of the
power of that Body of which they made a
part. Avarice and private rapine were at
laft added to political ambition. The Pro-
vinces were firft opprefTed and plundered.
The calamity, in procefs of time, reached
Italy itfelf, and the centre of the Republic ;
till at laft the Lex Calpurnia de repetundis was
enadted to put a flop to it. By this law
an action was given to the Citizens and Allies
for the recovery of the money extorted from
them by Magiftrates, or Men in power ; and
the Lex Junta afterwards added the penalty
of banilhment to the obligation of making
reftitution.
But here another kind of diforder arofe.
The Judges proved as corrupt, as the Ma-
giftrates had been oppreflive. They equally
betrayed, in their own province, the caufe of
the Republic with which they had been in-
trufted ; and rather chofe to fhare in the
plunder of the Confuls, the Praetors, and the
the Senate, the next day, ifTued out its folemn mandate,
Or form of words, to the Confuls, to provide that the Re-
public jkould receive no detriment ; and the Tribune was
killed in a pitched battle that was fought at the foot of
the Capitol.
O F E N G L A N D. 351
Proconfuls, than put the laws in force againft
them.
New expedients were, therefore, reforted to,
in order to remedy this new evil. Laws were
made for judging and punifhing the Judges
themfelves ; and above all, continual changes
were made in the manner of compofmg their
Aifemblies. But the malady lay too deep for
common legal provifions to remedy. The
guilty Judges employed the fame refources in
order to avoid conviction, as the guilty
Magiftrates had done ; and thofe continual
changes at which we are amazed, were
made in the ccnftitution of the judiciary
Bodies (Y), inftead of obviating the cor-
(a) The Judges (over the Afiembly of whom the
Prstor ufually prefided) were taken from the body of the
Senate, till fome years after the laft Punic War ; when
the Lex Sempronia, propofed by Cuius S. Gracchus, en-
acted that they fhould in future be taken from the
Equefhian Order. The Conful Ca:pio procured after-
wards a law to be enacled, by which the Judges were to
be taken from both orders, equally. The Lex Ser-vilia
fcon after put the Equeftrian Order again in pofTeflion of
the Jttdg?nents ; and, after fome years, the Lex Li-z-ia
reftored them entirely to the Senate. The Lex PlautLj
enadled afterward;, that the Judges fhould be taken from
the three Order: ; the Senatorian, Equeftrian, and Plebeian.
The Lex Cornelia, framed by the Didtator Sylla, enacled
again, that the Judges fhould be entirely taken from the
2t THE CONSTITUTION
ruption of the Judges, only transferred to
other Men the profit arifing from becoming
guilty of it. It was grown to be a general
complaint, fo early as the times of the Gracchi,
that no Man who had money to give, could
be brought to punifhment (a). Cicero fays,
that in his time, the fame opinion was be-
come fettled and univerfally received () ; and
his Speeches are full of his lamentations on
what he calls the levity, and the infamy, of the
public Judgments.
Nor was the impunity of corrupt Judges
the only evil under which the Republic la-
boured. Commotions of the whole Empire
at lad took place. The horrid vexations,
and afterwards the acquittal, of Aquilius,
Proconful of Syria, and of fome others who
had been guilty of the fame crimes, drove
the Provinces of Afia to defperation : and
then it was that that terrible war of Mithri-
body of the Senate. The Lex Aurelia ordered anew,
that they fhould be taken from the three Orders, Pom-
pey made afterwards a change in their number, which
he fixed at feventy-five, and in the manner of electing
them. And laftly, Casfar entirely reftored the Judgment
to the Order of the Senate.
(a) App. de Bell. Civ.
(b) Ad. in Verr. i. i.
OF ENGLAND. 353
dates arofe, which was ufhered in by the death
of eighty thoufand Romans, maffacred in one
day, in all the Cities of Afia (a).
The Laws and public Judgments not only
thus failed of the end for which they had
been eftablifhed : they even became, at length,
new means of oppreffion added to thofe which
already exifted. Citizens porTeffed of wealth,
perfons obnoxious to particular Bodies, or the
few Magistrates who attempted to Hem the
torrent of the general corruption, were ac-
cufed and condemned ; while Pifo, of whom
Cicero in his fpeech againft him relates
facts which make the Reader fhudder with
horror, and Verres, who had been guilty of
enormities of the fame kind, efcaped un-
punished.
Hence a war arofe flill more formidable
than the former, and the dangers of which
we wonder that Rome was able to furmount.
The greateft part of the Italians revolted at
once, exafperated by the tyranny of the pub-
lic Judgments ; and we find in Cicero, who
informs us of the caufe of this revolt, which
was called the Sc'ial war, a very expreflive
account both of the unfortunate condition of
{a) Appian.
Aa
354 THE CONSTITUTION
the Republic, and of the perverfion that had been
made of the methods taken to remedy it. e An
' hundred and ten years are not yet elapfed
' (fays he) fince the law for the recovery of
e money extorted by Magiltrates was firft pro-
1 pounded by the Tribune Calpurnius Pifo. A
e number of other laws to the fame eftecl:, con-
' tinually more and more fevere, have followed :
6 but fo many perfons have been accufcd, fo
( many condemned, fo formidable a war has
6 been excited in Italy by the terror of the
c public Judgments, and when the laws and
' Judgments have been fufpended, fuch an op-
prefTion and plunder of our Allies have pre-
' vailed, that we may truly fay that it is not
* by our own ftrength, but by the weaknefs of
* others, that we continue to cxifl (#).'
I have entered into thefe particulars with
regard to the Roman Commonwealth, be-
caufe the facts on which they are grounded,
arc remarkable of themfelves, and yetnojuit
conclufion can be drawn from them, un-
lefs a feries of them were prefented to the Rea-
der. Nor are we to account for thefe facts,
by the Luxury which prevailed in the latter
ages of the Republic, by the corruption of
{a) See Cic, de Off. lib. ii. 75.
OF ENGLAND. 35$
the manners of the Citizens, their degene-
racy from their ancient principles, and fuch.
like loofe general phrafes, which may perhaps
be ufeful to exprefs the manner itfelf in which
the evil became manifeftedj but by no means
fet forth the caufes of it.
The above diforders arofe from the very na-
ture of the Government of the Republic,-
of a Government in which the Executive and
Supreme Power being made to centre in the
Body of thofe in whom the People had once
placed their confidence, there remained no
other effectual Power in the State that might
render it neceflary for them jto keep within the
bounds of juftice and decency. And in the
mean time, as the People, who were intended
as a check over that Body, continually gave a
ihare in this Executive authority to thofe whom
they entrufted with the care of their interests,
they increafed the evils they complained of,
as it were at every attempt they made to reme-
dy them, and inftead of railing up Opponents
to thofe who were become the enemies of
their liberty, as it was their intention to do,
they continually fupplied them with new Aflb-
ciates.
A a 2.
356 THE CONSTITUTION
From this fituation of affairs, flowed, as an
unavoidable confequence, that continual de-
fertion of the caufe of the People, which,
even in time of Revolutions, when the paf-
fions of the People themfelves were roufed,
and they were in a great degree united, mani-
fefted itfelf in fo remarkable a manner. We
may trace the fyptoms of the great political
defect here mentioned, in the earlieft ages
-of the Commonwealth, as well as in the laft
ftage of its duration. In Rome, while fmali
and poor, it rendered vain whatever rights
or power the People poiTeffed, and blafted
all their endeavours to defend their liberty, in
the fame manner as, in the more fplendid ages
of the Commonwealth, it rendered the molt fa-
lutary regulations utterly fruitlefs, and even in-
flrumental to the ambition and avarice of a
few. The prodigious fortune of the Republic,
in fhort, did not create the diforder, it only gave
full fcopc to it.
But if we turn our view towards the Hiftory
of the Englifh Nation, we fhall fee how, from
a Government in which the above defects did
not exift, different confequences have fol-
lowed : how cordially all ranks of Men have
always united together to lay under proper re-
5
OF ENGLAND. 357
ftraints this Executive power, which they knew
could never be their own. In times of public
Revolutions, the greateft care, as we have be-
fore obierved, was taken to afcertain the limits
of that Power : and after peace had been re-
stored to the State, thofe who remained at the
head of the Nation, continued to manifeft an
unwearied jealoufy in maintaining thofe advan-
tages which the united efforts of all had ob-
tained.
Thus it was made one of the Articles of
Magna Charta, that the Executive Power
ihould not touch the perfon of the Subject,
but in confequence of a judgment pafTed upon
him by his Peers ; and fo great was after-
wards the general union in maintaining this
law, that the Trial by Jury, that admirable
mode of proceeding which fo effectually fe-
cures the Subject againil all the attempts
of Power, even (which feemed fo difficult to
obtain) againft fuch as might be made un-
der the fanction of the Judicial authority, hath
been preferved to this day. It has even been
preferved in all its original purity, though
the fame has been fucceffively fuffered to de-
cay, and then to be loft, in the other Corn-
tries of Europe, where it had been formerly
A3
358 THE CONSTITUTION
known (*), Nay, though this privilege of be-
jng tried by one's Peers, was at firft a privilege
of Conquerors and Mailers, exclufively appre?
priated to thofe parts of Nations which had ori-
ginally invaded and feduced the reft by arms,
it has in England been fucceflively extended to,
every Order of the People.
And not only the Perfon, but alfo the pror
perty, of the individual, has been fecured
againft all arbitrary attempts from the Exe-
cutive power, and the latter has been fuccefs-
[a) The Trial by Jury was in ufe among the Normans
long before they came over to England ; but it is now
utterly loft in that Province : it even began very early to
degenerate there from its firft inftitution ; we fee in Hale's
Hiftory of the Common haw of England, that the unani-
mity among Jurymen was not required in'Noimandy for
making a verdict a good verdict ; but when Jurymen
diflented, a number of them was taken out, and others
added in their ftead, till an unanimity was procured.
In Sweden, where, according to the opinion of the
"Learned in that Country, the Trial by Jury had its firft
prigin, only fome forms of that Inftitution are now pre-
ferved in the lower Courts in the Country, where fets of
Jurymen are eftablifhed for life, and have a falary ac-
cordingly. Sec Robert/on s State cf Sweden. And in
Scotland, the vicinity of England, has not been r.ble to.
preferve to the Trial bv Jury its genuine ancient form :
the unanimity among Jurymen is not required, as I have
been told, to form a Veidift ; but the majority is de-
pjiJlye,
OF ENGLAND. 359
lively restrained from touching any part of
the property of the Subject, even under pre-
tence of the neceffities of the State, any other-
wife than by the free grant of the Reprefen-
tatives of the People. Nay, fo true and per-
fevering has been the zeal of thefe Represen-
tatives, in afferting on that account the in-
terefts of the Nation, from which they could
not feparate their own, that this privilege of
taxing themfelves, which was in the begin-
ning grounded on a moft precarious tenure,
and only a mode of governing adopted by
the Sovereign for the fake of his own con-
venience, has become, in time, a fettled right
of the People, which the Sovereign has found
it at length neceffarily folemnly and repeatedly
to acknowledge.
Nay more, the Reprefentatives of the Peo-
ple have applied this right of Taxation to a
flill nobler ufe than the mere prefervation of
property ; they have, in procefs of time, fuc-
ceeded in converting it into a regular and con-
ititutional means of influencing the motions
of the Executive Power. By means of this
Right, they have gained the advantage of
being conftantly called to concur in the mea-
sures of the Sovereign, of having the greateft
A a 4
3 6o THE CONSTITUTION
attention fhewn by him to their requefts, as
well as the higheft regard paid to any engage-
ments that he enters into with them. -Thus has
it become at laft the peculiar happinefs of Eng-
lifh Subjects, to whatever other People either
ancient or modern we compare them, to enjoy
a fhare in the Government of their Country, by
electing Reprefentatives, who, by reafon of
the peculiar circumftances in which they are
placed, and of the extenfive rights they pof-
fefs, are both willing faithfully to ferve thofe
who have appointed them, and able to do
fo.
And indeed the Commons have not refted
fatisfied with eftablifhing, once for all, the
provifions for the liberty of the People which
have been juft mentioned ; they have after-
wards made the prefervation of them, the
firft object of their care (*?), and taken every
opportunity of giving them new vigour and
life.
(a) The firft operation cf the Commons, at the begin-
ning of a Seffion, is to appoint four grand Committees.
The one is a Committee of Religion, another of Courts
of Juftice, another of Trade, and another of Grievances :
they are to be Handing Committees during the whole
Seffion.
OFENGLAND. 361
Thus, under Charles the Firft, when attacks
of a molt alarming nature were made on
the privilege of the People to grant free fup-
plies to the Crown, the Commons vindicated,
without lofs of time, that great right of the
Nation, which is the Conftitutional bulwark
of all others, and haftened to oppugn in their
beginning, every precedent of a practice that
muft in the end have produced the ruin of
public liberty.
They even extended their care to abufes of
every kind. The judicial authority, for in-.
flance, which the Executive Power had im-
perceptibly affumed to itfelf, both with ref-
pect to the perfon and property of the indivi-
dual, was abrogated by the A&. which abolifhed
the Court of Star Chamber ; and the Crown
was thus brought back to its true Condi-
tutional office, viz. the countenancing, and fup-
porting with its flrength, the execution of the
Laws.
The fubfequent endeavours of the Legifla-
ture have carried even to a (till greater extent
the above privileges of the People. They have
moreover fucceeded in reflrainins: the Crown
from any attempt to feize and confine, even
for the morteft time, the perfon of the Sub-
ject, unlefs it be in the cafes afcertained by the
Law, of which the Judges of it are to decide.
362 THE CONSTITUTION
Nor has this extenfive unexampled freedom
at the expence of the Executive Power, been
made, as we might be inclinable to think, the
exclufive appropriated privilege of the great
and powerful. It is to be enjoved alike by all
ranks of Subjects. Nay, it was the injury done
to a common Citizen that gave exigence to
the At which has completed the fecurity
of this interefling branch of public liberty.
Vhe epprefjion of an obfeure individual, fays Judge
Blackitone, gave rife to the famous Habeas Corpus
Aid : Junius has quoted this obfervation of the
Judge ; and the fame is well worth repeating
a third time, for the juft idea it conveys of that
readinefs of all Orders of Men, to unite in de-
fence of common liberty, which is a charac-
terise circumftance in the Engliih Govern-
ment (a).
And this general union in favour of public
liberty, has not been confined to the framing
{a} The individual here alluded to was one Francis
Jenks, who having made a motion at Guildhall, in ths
year 1676, to petition the King for a new Parliament,
was examined before the Privy Council, and afterwards
committed to the Gate-houfe, where he was kept about
two months, through the delays made by the feveial
judges to whom he applied, in granting him a Habeas
Corpus. See the State Trials, vol. vii. anno 1676.
OF ENGLAND. 363
@f laws for its fecurity : it has operated with
no lefs vigour in bringing to punifhment fuch,
as have ventured to infringe them ; and the
Sovereign has conftantly found it neceffary to
give up the violators of thofe laws, even when
his own Servants, to the Juftice of their Coun?
try.
Thus we find, fo early as the reign of Ed-
ward the Firfl, Judges who were convicted of
having committed exactions in the exercife of
their offices, to have been condemned by a
fentence of Parliament (a). From the im-
menfe fines which were laid upon them, and
which it feems they were in a condition to pay,
we may indeed conclude that, in thofe early
ages of the Conftitution, the remedy was ap-
plied rather late to the difcrder; but: yet it
was at laft applied.
Under Richard the Second, examples of
the fame kind were renewed. Michael de la
Pole, Earl of Suffolk, who had been Lord
Chancellor of the kingdom, the Duke of
Ireland, and the Archbiihop of York, having
{a) Sir Ralph de Hengham, Chief Juftice of the King's
Bench, was fined 7000 marks; Sir Thomas Waylana,
Chief Juftice of the Common Pleas, had his whole eilats
forfeited ; and Sir Adam de Stratton, Chief Baron of the
Exchequer, was fined 3400 marks.
364 THE CONSTITUTION
abufed their power by carrying on dcfigns that
were fubverfive of public liberty, were de-
clared guilty of High-treafon ; and a number
of Judges who, in their judicial capacity, had
a&ed as their inftruments, were involved in
the fam$ condemnation ().
Under the reign of Henry the Eighth, Sir
Thowas Empfon, and Edmund Dudley, who
(a) The moil confpicuous among thefe Judges were
Sir Robert Belknap, and Sir Robert Trefilian, Chief
Juftice of the King's Bench. The latter had drawn
up a firing of queftion=> calculated to confer a defpotic
authority on the Crown, or rather on the Minifters
above named, who had found means to render them-
felves entire Mafters of the perfon of the King. Thefe
queltions Sir Robert Trefilian propofed to the Judges,
who had been fummoned for that purpofe, and the/
gave their opinions in favour of them. One of thefe
opinions of the Judges, among others, tended to no
lefs than to annihilate, at one ftroke, all the rights of
the Commons, by taking from them that important
privilege mentioned before, of ftarting and freely dif-
cuffing whatever fubjecls of debate they think proper :
the Commons were to be reflrained, under pain of being
punifhed as traitors, from proceeding upon any articles
befides thofe limited to them by the King. All thofe
who had had a fhare in the above declarations of the
Judges, were attainted of high treafon. Some were
hanged ; among them was Sir Robert Trefilian ; and the
others were only banimed, at rhe interceffion of the Bifhops.
See the Pari. Hiflory of England, vol. i.
OF ENGLAND. 3$$
had been the promoters of the exactions com-
mitted under the preceding reign, fell victims
to the zeal of the Commons for vindicating
the caufe of the People. Under King James
the Firft, Lord Chancellor Bacon experienced
that neither his high dignity, nor great per-
ibnal qualifications, could fcreen him from
having the fevereft cenfure paiTed upon him,
for the corrupt practices of which he had fuf-
fered himfclf to become guilty. And under
Charles the Firft, the Judges having attempted
to imitate the example of the Judges under
Richard the Second, by delivering opinions
fubverfive of the rights of the People, found
the fame fpirit of watchfulnefs in the Com-
mons, as had proved the ruin of the former.
Lord Finch, keeper of the Great Seal, was
obliged to fly beyond fea. The Judges Daven-
port and Crawley were imprifoned : and Judge
Berkeley was feized while fitting upon the
Bench, as we find in Rufhworth.
In the reign of Charles the Second, we
again find frefh inftances of the vigilance of
the Commons. Sir William Scroggs, Lord
Chief Juftice of the King's-Bench, Sir Francis
North, Chief Juftice of the Common Pleas,
Sir Thomas Jones, one of the Judges of the
366 THE CONSTITUTION
King's-Bench, and Sir Richard Wefton, one
of the Barons of the Exchequer, were im-
peached by the Commons, for partialities
fhewn by them in the adminiftration of juftice ;
and Chief Juftice Scroggs, againft whom fomc
pofitive charges were well proved, was re-
in oved from his employments.
The feveral examples offered here to the
Reader, have been taken from feveral different
periods of the Englifh Hiftory, in order to
Ihew that neither the influence, nor the dig-
nity, of the infractors of the laws, even when
they have been the neareft Servants of the
Crown, have ever been able to check the zeal
of the Commons in afferting the rights of
the People. Other examples might perhaps
be related to the fame pnrpofe ; though the
whole number of thoie to be met with, will,
upon enquiry, be found the fmallcr, in pro-
portion as the danger of infringing the laws
has always been indubitable.
So much regularity has even (from all
the cir.cum (lances above mentioned) been in-
troduced into the operations of the Executive
Power in England, fuch an exact: Juftice
have the People been accuftomed, as a confe-
quence, to expect from that quarter, that
even the Sovereign, for his having once luf-
OF ENGLAND. 367
fered himfelf perfonally to violate the fafety
of the Subject, did not efcape fevere cenfure.
The attack made by order of Charles the
Second, on the perfon of Sir John Coventry,
filled the Nation with aftonifhment ; and this
violent gratification of private paffion, on the
part of the Sovereign (a piece of felf-indul-
gence with regard to inferiors, which whole
claries of individuals in certain Countries al-
moit think that they have a right to) excited a
general ferment. " This event (fays Bifhop
t( Burnet) put the Houfe of Commons in a
(< furious uproar. ... It gave great advantages
iS to all thofe who oppofed the Court ; and
" the names of the Court and Country party,
' which till now had fcemed to be forgotten,
({ were again revived (#)."
Thefe are the limitations that have been
fet, in the Englifh Government, on the ope-
rations 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 fecn, to thac
() See Barnet's Hiftory, vol i. anno 1669. -An Ad
of Parliament was made on this occafion, fcr giving-
a farther extent to the provifions before made for the
perfonal fecuiity of the Subject , which is (till called the
Coventry Aft.
368 THE CONSTITUTION
very circumftance which Teemed at firft fighf:
to prevent the pofiibility of them, I mean the
greatnefs and unity of that Power ; the effect
of which has been, in the event, to unite upon
the fame object, the views and efforts of all
Orders of the People.
From this circumftance, that is, the unity
and peculiar liability of the Executive Power
in England, another moft advantageous con-
fequence has followed, that has been be-
fore noticed, and which it is not improper
to mention again here, as this Chapter is
intended to confirm the principles laid down
in the former ones, I mean the unremitted
continuance of the fame general union among
all ranks of Men, and the fpirit of mutual
juftice which thereby continues to be diffufed
through all orders of Subjects.
Though furrounded by the many boun-
daries that have juft now been defcribed, the
Crown, we muft obferve, has preferved its pre-
rogative undivided : it (till poiieffes its whole
effective flrength, and is only tied by its own
ensascments, and the confideration of what
it owes to its deareft interefts.
The great, or wealthy Men in the Nation,
who, affifted by the body of the People, have
fucceeded in reducing the exercife of its au-
OF ENGLAND. zh
thority within fuch well defined limits, can
have no expectation that it will continue to
confine itfelf to them any longer than they
themfelves continue, by the juflice of their own
conduct, to deferve that fupport of the People,
which alone can make them appear of con-
fequence in the eye of the Sovereign, no
probable hopes that the Crown will continue
to obferve thofe laws by which their wealth,
dignity, liberty, are protected, any longer
than they themfelves alio continue to obferve
them.
Nay more, all thofe claims of their rights
which they continue to make againfl the
Crown, are encouragements which they give to
the felt of the People to afTert their own rights
againft them. Their conftant oppofition to
all arbitrary proceedings of that Power, is
a continual declaration they make againft any
acts of opprefiion which the fuperior ad-
vantages they enjoy, might entice them to
commit on their inferior fellow- fubjects.
Nor was that fevere cenfure, for inftance,
which they concurred in palling on an un-
guarded violent action of their Sovereign,
only a reltraint put on the perfonal actions
of future Englilh Kings ; no, it was a much
more extenlive provifion for the fecuring of
Bb
37o THE CONSTITUTION
public liberty ; it was a folemn engagement
entered into by ail the powerful Men in the
State to the whole body of the People, fcru-
puloufly to refpect the perfon of the loweft
among them.
And indeed the conftant tenor of the con-
duel even of the two Houfes of Parliament
mews tis, that the above obfervations are not
matters of mere fpeculation. From the ear-
Heft times we fee the Members of the Houfe
of Commons to have been very cautious not
to afTume any diftindtion that might alienate
from them the affections of the reft of the
People (a). Whenever thofe privileges which
were neceflary to them for the difcharge of
their truft have proved burdenfome to the
Community, they have retrenched them.
And thofe of their Members who have ap-
plied either thefe privileges, or in general
./;) In all cafes of public offences, down to a fimple
breach of the peace, the Members of the Houfe of
Commons have no privilege whatever above the reft of
the People : they may be committed to prifon by any
Juftice of the Peace -, and a-e dealt with afterwards in the
fame manner as any other Subjecls. With regard to ci-
vil matters, their only privilege is to be free from Arrefts
during the time of a Seffion, and forty days before, and
forty days after ; but they may be fued, by procefs againft
their goods, for any juft debt during that time.
OF" ENGLAND. 371
that influence which they derived from their
Situation, to any oppreffive propofes, they*
themfelves have endeavoured to bring to pu-
nishment.
Thus, we fee, that in the reign of James
the; Firft, Sir Giles MompefTon, a Member
of the Houfe of Commons, having been
guilty of monopolies, and other acts of great
oppreffion on the People, was not only ex-
pelled, but impeached and profecuted with
the greater! warmth by the Houfe, and finally
condemned by the Lords to be publicly de-
graded from his rank of a Knight, held for
ever an infamous perfon, and imprifoned dur-
ing life.
In the fame reign, Sir John Bennet, who
was alfo a Member of the rioufe of Commons,
having been found to have been guilty of fe-
veral corrupt practices, in his capacitv of
Judge of the Prerogative Court of Canterbury,
fuch as taking exorbitant fees, and the like,
was expelled the Houfe, and profecuted for
thefe offences.
In the year 1641, Mr. Henry Benfon,
Member for Knarefborough, having been de-
tected in felling protections, experienced like-
wife the indignation of the Houfe, and was
expelled.
Bb 2
372 THE CONSTITUTION
In fine, in order as it were to make it com-
pletely notorious, that neither the condition-
er Reprefentative of the People, nor even any
degree of influence in their Houfe, could ex-
cufe any one of them from ftridfly obferving
the rules of Juftice, the Commons did on one
occufion pafs the mod fevere cenfure they had
power to inflict, upon their Speaker himfelf,
for having, in a fin g re inflance, attempted to
convert the diicharge of his duty as Speaker
into a means of private emolument. Sir
John Trevor, Speaker of the Houfe of Com-
mona, having, in the fixth year of the reign
of King William, received a thoufand gui-
neas from the City of London, "as a gra-
" tuity for the trouble he had taken with re-
" gard to the paffiiig of the Orphan Bill,"
was voted guilty of a High crime and mif-
demeanor, and expelled the Houfe. Even
the inconfiuerablc fum of twenty guineas which
Mr. Hungcrford, another Member, had been
weak enough to accept on the fame fcore,
was looked upon as deferving the notice
of the Houfe ; and he was likewife ex-
pelled'^).-
a) Other examples of the attention of the Houfe of
Common? to the conduft of their Members, might be
produced either before, or after, that which is men-
tioned here. The reader may, for inftance, fee the re-
OF ENGLAND. 373
If we turn our view towards the Houfe of
Lords, we ftiall find that they have alio con-
stantly taken care that their peculiar privi-
leges fhoujd not prove impediments to the
common juftice which js due to the reft of the
People (a). They have conftantly agreed to
every juft propofal that has been made to them
on that fubject by the Commons : and in-
deed, if we confider the numerous and op-
preffive privileges claimed by the Nobles in
moft other Countries, and the vehement fpirit
with which they are commonly aiTerted, we
fliall think it no fmall praife to the body of
the Nobility in England (and alfo to the na-
ture of that Government of which they make
lation of their proceedings in the affair of the South Sea
Company Scheme ; and a few years after, in that of the
Charitable Corporation ; a fraudulent fcheme particularly
oppreffive to the poor, for which feveral Members were
expelled.
[a) In cafe of a public offence, or even a fimple
breach of the peace, a Peer may be committed, till hq
finds bail, by any juftice of the peace : and Peers are
to be tried by the common courfe of law, for all offences
under felony. With regard to civil matters, they are at
all times free from arrejls ; but execution may be had
againfl their effect:-, in the fame manner as againft thofe,
f other Subjects.
^ b 3
374 THE CONSTITUTION
a part) that it has been by their free confent
that their privileges have been confined to what
they now are ; that is to fay, to no more, in
general, than what is neceffary to the accom-
plifhment of the end and conftitutional defign
of that Houfe.
In the exercife of their Judicial authority
with regard to civil matters, the Lords have
manifefled a fpirit of equity nowife inferior to
that which they have Ihewn in their Legis-
lative capacity. They have, in the difcharge
of that function, (which of all others is fo
liable to create temptations) ihewn an uncor-
ruptnefs really fuperior to what any judicial
Affembly in any other Nation can boaft. Nor
do I think that I run any rifk of being contra-
dicted, when I fay that the conduct of the
Houfe of Lords, in their civil judicial ca-
pacity, has constantly been fuch as has kept
them above the reach of even fufpicion or
flander.
Even that privilege which they enjoy, of
exclufively trving their own Members, in cafe
of any accufation that may affect their life
(a privilege which we might at fir ft fight
think repugnant to the idea of a regular Go-
vernment, and even alarming to the reft of
the People) has conftantly been made ufe of
OF ENGLAND. 375
by the Lords to do juflice to their fellow-fub-
jects ; ami if we caft our eyes either on the
collection of the State Trials, or on the Hiftory
of England, we mall find very few examples, 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 juft and moderate conduct of
the two Houfcs of Parliament in the exercife
of their powers (a moderation fo unlike what
has been related of the conduct of the power-
ful Men in the Roman Republic; been the
only happy confequence of that falutary jea-
loufy which thole two Bodies entertain of the
power of the Crown. The fame motive has
alio engaged them to exert their utmoit endea-
vours to put the Courts of Juflice under proper
reftraints : a point of the higheft importance
to public liberty.
They have, from the earlieft times, pre-
ferred complaints againft the influence of the
Crown over thefe Courts, and at laft procured
Laws to be enacted by which fuch influence has
been intirely prevented : all which meafures,
we muft obferve, were at the fame time ftrong
declarations that no Subjects, however exalted
their rank might be, were to think themfelves
exempt from lubmitting to the uniform courfe
Bb 4
376 THE CONSTITUTION
of the Law, or hope to influence or over-awe it
The fevere examples which they have unit-
ed to make on t.hofe Judges who had ren-
dered themfelves the instruments of the paf-
fions ol the Sovereign, or of the defigns of the
Ministers of the Crown, are alio awful warn-
ings to the Judges who have fucceeded them,
never to attempt to deviate in favour of any,
the moil powerful individuals, from that flrait
line of Juftice which the joint Wifdom of the
Legiflature has once marked out to them.
This lingular Situation of the English Judges
relatively to the three Constituent Powers of
the State, (and alfo the formidable fupport
which they are certain to receive from them
as long as they continue to be the faithful
Miniflers of Juftice) has at lad created Such
an impartiality in the distribution of public
Juftice in England, has introduced into the
Courts of Law the practice of fuch a thorough
difregard of either the influence or wealth of
the contending Parties, and procured to every
individual, both fuch an eafy accefs to thefe
Courts, and fuch a certainty of redrefs, as are
not to be paralleled in any other Government,,
Philip de Comines, fo long as three hundred
years ago, commended in Strong terms the exact-
aefs with which Juftice is done in England to
JO F ENGLAND. 377
all ranks of Subjects () ; and the impartiality
with which the fame is adminiftered in thefe
clays, will with .ftill more reaibn create the
furprize of every Stranger who has an opportu-
nity of obferving the cuftoms of this Coun-
try (b).
(a) See page 56 of this Work.
() A little after I came to England for the nrft time
(if the Reader will give me leave to make mention of
myfelf in thi cafe) an action was brought in a Court of
Juftice aoainft a Prince very nearly related to the Crown ;
and a Noble Lord was alio, much about that time, en-
gaged in a law-fuit for the property of fome valuable lead-
mines in Yorkfhire. I could not but obferve that in both
thefe cafes a decifion was given againlt the two moil
powerful parties ; though 1 wondered but little at this,
becaufe I had before heard much of the impartiality of
the law proceedings in England, and was prepared to fee
inftances of that kind. But what I was much iurprifed at,
was, that no body appeared to be in the leafc fo, not even
at the ftridlnefs with which the ordinary courfe of the law
had, particularly in the former cafe, been adherted to,
and that thofe proceedings which I was difpofed to con-
fider as great inftances of juftice, to the production of
which fome circumitances peculiar to the times, at lean:
fpme uncommon virtue of fpirit on the part of the Judges,
mufl have more or lefs co-operated, were looked upon by
all thofe whom I heard fpeak about it, as being nothing
more than the common and expected courfe of thing-.
This circumftance became a ftrong inducement to me to
enquire into the nature of a Government by which fuel*
Cflfctts were produced.
37* THE CONSTITUTION
Indeed to fuch a degree of impartiality
has the adminiftration of public Juftice been
brought in England, that it is faying nothing
beyond the exadt truth, to affirm that any
violation of the laws, though perpetrated by
Men of the moil extenfive influence, nay,
though committed by the fpecial direction of
the very firft Servants of the Crown, will be
publicly and completely redreffed. And the
very loweft of fubjedts will obtain fuch re-
drefs, if he has but fpirit enough to ftand
forth, and appeal to the laws of his Coun-
try. Mod extraordinary circumftances thefe !
which thofe who know the difficulty that
there is in eftablifhing juft laws among Man-
kind, and in providing afterwards for their
due execution, only find credible becaufe they
are matters of fad:, and can begiri to ac-
count for, only when they look up to the con-
ftitution of the Government itfelf; that is to
fay, when they confider the circumftances in
which the Executive Power, or the Crown,
is placed in relation to the two Bodies that
concur with it to form the Legiflature, the
circumftances in which thofe two Aifemblies
are placed in relation to the Crown, and to
each other, and the fituation in which all
O F E N G L A N D. 379
the Three find themfelves with refpedt to the
whole Body of the People (a).
(a) The affertion above made with refpeft to the im-
partiality with which Juftice is, in all cafes, administered
in England, not being of a nature to be proved by alledg-
ing fingle fa&s, I have entered into no particulars on that
account. However, I have fubjomed here two cafes
which, I think, cannot but appear remarkable to the Rea-
der.
The firft is the cafe of the p.ofecution commenced in
the year 1763, by fome Journeymen Printers, againft the
King's Meffengers, for apprehending and imprifoning them
for a fhort time, by vntue of a Ge?ieral Warrant from the
Secretaries of State ; and that which was afterwards car-
ried on by another private individual, againft one of the
Secretaries themfelves. In thefe actions, all the or-
dinary forms of proceeding ufed in cafes of adlions be-
tween private Subjects, were ftrifUy adhered to ; and
both the Secretary of State, and the Meffengers, were, in
the end, condemned. Yet, which it is proper the Reader
fhould obferve, from all the circumftances that accompa-
nied this affair, it is difficult to propofe a cafe in which
Minifters could, of themfelves, be under greater tempta-
tions to exert an undue influence to hinder the ordinary
courfe of Juftice. Nor were the acts for which thofe
Minifters were condemned, Acts of evident oppreffion,
which nobody could be found to juftify. They had done
nothing but follow a practice of which they found fe-
veral precedents eftablifhed in their Offices ; and their
cafe, if I am well informed, was fuch that moll indi-
viduals, under fimilar circumftances, would have thought
themfelves authorifed to have adted as they had done.
tfo T^E CONSTITUTION
In fine, a very remarkable circumftance ii*
the Englifh Government (and which alone
evinces fomething peculiar and excellent in its
Nature), is that fpirit of extreme mildnefs with
which Juftice, in criminal cafes, is admin iftered
jn England ; a point with regard to which
England differs from all other Countries in the
World.
The fecond cafe I propofe to relate, affords a lingular
jnftance of the confidence with which ail Subjects in Eng-
land claim what thev think their juft rights, and of the
certainty with which the remedies of the law are in all
cafes open to them. The fact I mean, is the Arreft ex-
ecuted in the reign of Queen Anne, in the year r7oS, on
the perfon of the Ruffian Ambaffador, by taking him out
of his Coach for the fum of fifty pounds And the con-
feqnence that followed this fact are Hill n ore remarkable.
The Czar highly refented this affront, and demanded that
the Sheriff of Middlefex, and all others concerned in the
Arreft, fhould be punifhed with inftant death. " But
" the Queen," (to the amazement of that defpotic Court,
fays Juftice Blackllone, from whom J borrow this fact)
I'' the Queen directed the Secretary of State to inform
" him that fhe could inflict no puniihmenc upon any,
" the meaneft of Her Subjects, unlefs warranted by
the law of the land." An Act was afterwards paffed
to free from arrefts the perfens of foreign Minifters, and
fuch of their fervants as they have delivered a lift of, to
the Secretary of State. A copy of this Act elegantly
engroffed and illuminated, continues Judge Blackftone,
was fent to Mofcow, and an Ambaffador extraordinary
commiffioned to deliver it.
OF ENGLAND. 3S1
When we confider the punifhments in ufe
in the other States in Europe, we wonder how
Men can be broup-ht to treat their fellow-crea-
tures with fo much cruelty ; and the bare con-
fideration of thofe punifhments would fuffici-
ently convince us (fuppofing we did not know
the fact from other circumftances) that the Men
in thofe States who frame the laws, and prefide
Over their execution, have little apprehenfion
that either they, or their friends, will ever fail
viftims to thofe laws which they thus ralhly
eftablifh.
In the Roman Republic, circumftances of
the fame nature with thofe ju ft mentioned, were
alio productive of the greateft defects in the
kind of criminal Juftice which took place in
it. That clafs of Citizens who were at the
head of the Republic, and who knew how
mutually to exempt each other from the^pera-
tion of any too fevere lows or practice, not only
allowed themfelves great liberties, as we have
feen, in difpofing of the lives of the inferior
Citizens, but had alfo introduced into the ex-
ercife of the illegal powers they aiTumed to
themfelves in that relpect, a great degree of
cruelty (a).
[a) The common manner in which tb.* Senate or-
dered Ciuzens to be put to death, was by throwing
o
382 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 fubject, we naturally expect to
fee that authority to have been ufed with mild-
nefs, which thofe who enjoyed it mufl have
known to have been but precarious ; yet, fuch
were the effects of the violence attending
thofe very Revolutions, that a fpirit both of
great irregularity and cruelty had taken place
among the Greeks, in the exercife of the power
of inflicting punifhments. The very harfh laws
of Draco are well known, of which it was
faid that they were not written with ink, but
with blood. The fevere laws of the Twelve
Tables among the Romans, were in great part
brought over from Greece. And it was an opi-
nion commonly received in Rome, that the
cruelties practifed by the Magiftrates on the
Citizens, were only imitations of the exam-
ples which the Greeks had given them (a),
them head-long from the top of the Tarpeian Rock. The
Confuls, or other particular Magiftrates, fometimes caufed
Citizens to expire upon a crofs; or, which was a much
more common cafe, ordered them to be beaten to death,
with their heads fattened between the two branches of a
fork : which they called cer<uiccm furca inferere.
[a) Caefar exprefsly reproaches the Greeks with this
fail in his fpeech in favour of the accomplices of
O F E N G L A N D. 383
In fine, the ufe of Torture, that method of
adminiftering Juftice in which folly may be faid
to be added to cruelty, had been adopted by the
Greeks, in confequence of the fame caufes which
had concurred to produce the irregularity of
their criminal Juftice. And the fame practice
continues, in thefe days, to prevail on the con-
tinent of Europe, in confequence of that gene-
ral arrangement of things which creates there
fuch a carelefihefs about remedying the abufes
of public Authority.
But the nature of that fame Government
which has procured to the People of England
all the advantages we have before defcribed,
has, with ftill more reafon, freed them from
the molt oppreffive abufes, which prevail in
other countries.
That wantonnefs in difpoiing of the deareft
rights of Mankind, thofe infults upon human
Nature, of which the frame of the Govern-
ments eftabliihed in other States, unavoidably
becomes more or lefs productive, are entirely
banifhed from a Nation which has the happi-
nefs of having its interefts taken care ol
by Men who continue to be themfelves ex-
Cataline, which Salluft has tranfmitted to us Sed eodem
illo tempore, Gratia mar em imitati, (Majores noftri) wr-
beribus animad'vertebant in tiveis ; de conJemnatis ultimum
fufplicium fumptum.
3H THE CONSTITUTION
pofed to the preflure of thofe laws which the/
concur in making, arid of every tyrannic prac*
tice which they fuffer to be introduced, by
Men whom the advantages which they pofTefs
above the reft of the People, render only more
expoied to the abufes they are appointed to
prevent, only more alive to the dangers againfl
which it is their duty to defend the Commu-
nity (a).
Hence we fee that the ufe of Torture has,
from the earlier! times, been utterly unknown in
England. And all attempts to introduce it,
whatever might be the power of thofe who.
made them, or the circumfiances in which they
renewed their endeavours, have been ilrenuoufly
oppofed and defeated (b).
{a) Hiftorians take notice that the Commons, in th'c :
reign of Charles II. made hafte to procure the abolition of
the old Statute, De Ha:retico comburendo, (For burning He-
retics) as foon as it became to be publicly known that the
prefumptive Heir to the Crown was a Roman Catholic.
Perhaps they would not have been fo diligent and eameft,
if they had not been fully convinced that a Member of
the Houfe of Commons, or his friends, may be brought
to trial as eafily as any other individuals among the people,
fo long as an exprefs and written law may be produced
againft them.
[b] The Reader may on this fubjecT; fee again the
Note in page 1S1 of this Work, where the oppofition
is mentioned, that was mace to the Earl of Suffolk,
and the Duke of Exeter, when they attempted to in-
troduce the practice of Torture ; this even was erne
OF ENGLAND. 3$$
From the fame caufe alfo arofe that remark-
able forbearance of the Engliih Laws, to life any
cruel feverity in the punifhments which expe-
rience fliewed it was neceffary for the preserva-
tion of Society to eftablifh : and the utmoft
vengeance of thole laws, even againft the moll
enormous Offenders, never extends beyond the
fimple deprivation of life (a)
Nay, fo anxious has the Englifh Legis-
lature been to eftablifh mercy, even to con-
victed Offenders, as a fundamental principle of
the Government of England, that they made
of the caufes for which the latter was afterward impeach-
ed The Reader is alfo referred to the Note following
that which has juft been quoted, in which the folemn de-
claration is related, that was given by the Judges againft
the practice of Torture, in the cafe of Felton, who had
affaffinated the Duke of Buckingham.
(<*) A very fingular inftance occurs in the Hiftory of the
year 1605, of the care of the Engliih Legislature not to
fuffer precedents of cruel practices to be introduced. Dur-
ing the time that thofe concerned in the Gun-powder
plot were under fentence of death, a motion was made
in the Houfe of Commons to petition the King, that the
execution might be ftaid, in order to confider of fome ex-
traordinary punifhment to be inflicted upon them : but
this motion was rejected. A propofal of the fame kind
was alfo made in the Houfe of Lords, where it was
dropped See the Parliamentary Hiftory of England, vol,
v, anno 1605.
Cc
586 THE CONSTITUTION
it an exprefs article of that great public Compact
which was framed at the important aera of. the
Revolution, that " no cruel and unufual pu-
6C nifhments mould be ufed (#)." They even
endeavoured, by adding a claufe for that purpofe
to the Oath which Kings were thenceforward to
take at their Coronation, as it were to render it
an everlafling obligation of Englifh Kings, to
make Jufticeto be " executed with mercy ()"
() See the Bill of Rights, Art. x. " Exceffive bail
ought not to be required, nor exceffive fines impofed ; nor
cruel and unafaal punishments inflifled.'"
{b) Thofe fame difpofitions of the Englifh Legiflature,
which have led them to take fuch precautions in favour
even of convicted" offenders, have ftill more engaged them
to make provifions in favour of fach perfons as are only
fufpefted and accufed of having committed offences of any
kind. Hence the zeal with which they have availed
themfelves of every important occafion, fuch for inftance
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 fyftem of
criminal Jurifprudence of which a defcription has been
given in the firft part of this Work, to which I refer the-
Header,
OF ENGLAND. 3 87
CHAP. XVII.
A more Inward View of the Englijlo Government
than has hitherto been offered to the Reader in
the courfe of this Work.- Very effential differences
between the Englijh Monarchy , as a Monarchy,
and all thofe with which we are acquainted*
TH E Doctrine conftantly maintained in
this Work, and which has, I think,
been fufficiently fupported by fad:s and com-
panions drawn from the Hiftory of other Coun-
tries, is that the remarkable liberty enjoyed
by the Englifh Nation, is effentially owing to
the impoflibility under which their Leaders, or
in general all Men -of power among them,
are placed, of invading and transferring to
themfelves any branch of the Governing Ex-
ecutive authority ; which authority is exclu-
fively vefted, and firmly fecured, in the Crown.
Hence the anxious care with which thofe Men
continue to watch the exercife of that autho-
rity. Hence their perfeverance in obferving
every kind of engagement which themfelves
may have entered into with the reft of the
People.
But here a confederation of a mofl impor-
tant kind prefents itfelf. How comes the
C c 2
388 THE CONSTITUTION
Crown in England, thus conftantly to prefervc
to itfelf (as we fee it does) the Executive au-
thority in the State, and moreover to preferve it
fo completely as to infpire the great Men in the
Nation with that condudt fo advantageous to
public Liberty, which has juft been mentioned ?
All thefe are effects which we do not find, upon
examination, that the power of Crowns has
hitherto been able to produce in other Coun-
tries.
In all States of a Monarchical form, we indeed
fee that thofe Men whom their rank and wealth,
or their perfonal power of any kind, have raifed
above the reft of the People, have formed com-
binations among themfelves to oppofe the power
of the Monarch. But their views, we muft
obferve, in forming thefe combinations, were
not by any means to fet general and impar-
tial limitations on the Sovereign authority.
They endeavoured to render themfelves en-
tirely independent of that authority ; or even
utterly to annihilate it, according to circum-
ftances.
Thus we fee that in all the States of ancient
Greece, the Kings were at laft deftroyed and
exterminated. The fame event happened in
Italy, where in remote times there exifted
for a while feveral kingdoms, as we learn
both from the ancient Hiftorians and the
O F E N G L A N D. 38$
Poets. And in Rome, we even know the man-
ner and circumftances in which fuch a revolution
was brought about,
In more modern times, we fee the numerous
Monarchical Sovereignties which had beenraifed
in Italy on the ruins of the Roman Empire, to
have been fucceflively deftroyed by powerful
factions ; and events of much the fame nature
have at different times taken place in the King-
doms eftablifhed in the other parts of Europe.
In Sweden, Denmark, and Poland, for in-
ftance, we find that the Nobles have com-
monly reduced their Sovereigns to the con-
dition of fimple Prefidents over their AfTem-
blies, of mere oflenfible Heads of the Govern-
ment.
In Germany and in France, Countries where
the Monarchs being pofTefTed of considerable
demefnes, were better able to maintain their
independence than the Princes juft mentioned,
the Nobles waged war againft them, fometimes
fingly and fometimes jointly ; and events
fimilar to thefe have fucceflively happened in
Scotland, Spain, and the modern Kingdoms
of Italy.
In fine, it has only been the means qf {landing
armed forces that the Sovereigns of moft of the
39 o THE CONSTITUTION
the Kingdoms we have mentioned, have been
able in a courfe of time to afTert the prerogatives
of their Crown. And it is only by continuing
to keep up fuch forces, that, like the Eaftcrn
Monarchs, and indeed like all the Monarchs that
ever exifted, they continue to be able to iupport
their authority.
How therefore can the Crown cf England,
without the afliftance of -any armed force, main-
tain, as it does, its numerous prerogatives ?
How can it, under fuch circumftances, preferve
to itfelf the whole Executive power in the
State ? For here we muft obferve, the Crown
in England does not derive any fupport from
what regular forces it has at its difpofal ;
and if we doubted this fact, we need only look
to the aftonifhing fubordination in which the
military is kept to the civil power, to become
convinced that an Englifh King is not in-
debted to his army for the prefer vation of his,
authority (a).
If we could fuppofe that the armies of the
Kings of Spain or of France, for inftance 3
were, through feme very extraordinary circum-
ftance, all to vanifh in one night, the power of
thofe Sovereigns, v,;e r muft not doubt, would,
ere fix months, be reduced to a mere fhadow.
{a) Henry VIII. the molt abfclute Prince, perhaps,
who ev-ji- fat upon a Throne, kept no iianuing army.
OF ENGLAND. 39 1
They would immediately behold their prero-
gatives, however formidable they may be at
prefent, invaded and difmembered (a) : and
fuppofmg that regular Governments continued
to exift, they would be reduced to have little
more influence in them than the Doges of
Venice, or of Genoa, poffefs in the Governments
of thofe Republics (b).
How, therefore, to repeat the queftion once
more, which is one of the mofl interefting that
can occur in politics, how can the Crown in
England, without the affiftance of any armed
force, avoid thofe dangers to which all other
Sovereigns are expofed ?
How can it, without any fuch force, accomplifh
even incomparably greater works than thofe
Sovereigns, with their powerful armies, are,
we find, in a condition to perform ? How can
it bear that univerfal effort (unknown in other
Monarchies) which, we have feen, is continually
and openly exerted againft it ? How can it even
continue to refill: it fo powerfully as to preclude
all individuals whatever, from ever entertaining
any views befides thofe of fetting juft and ge-
(a) As was the cafe in the feveral Kingdoms into which
the Spanifh Monarchy was formerly divided ; and, in not
very remote times, in France itfelf.
(b) Or than the Kings of Sweden were allowed to enjoy,
before the laft Revolution in that Country.
C c 4
392 THE CONSTITUTION
neral limitations to the exercife of its authority >
How can it enforce the laws upon all Subjects,
indiscriminately, without injury or danger to it-
felf ? How can it, in fine, imprefs the minds
of all the great Men in the State with fo lafting
a jealoufy of its power, as to necefiuate them,
even in the exercife of their undoubted rights
and privileges, to continue to court and defervc
the affection of the reft of the People ?
Thofe great Men, I fhall anfwer, who even
in quiet times prove fo formidable to other
Monarchs, are in England divided into two
Affemblies ; and fuch, it is neceffary to add,
are the principles upon which this divifion is
made, that from it refults, as a neceffary con-
fequence, the folidity and indivifibility of the
power of the Crown (a).
The Reader may perceive that I have led
him, in the courfe of this Work, much be-
yond the line within which Writers on the
fubjeft of Government have confined them-
felves, or rather, that I have followed a tradt
entirely different from that which thofe Wri-
ters have purfued, But as the obfervation juft
made on the liability of the power of the Crown
in England, and the caufe of it, is new in its
(a) I have not flattered myfelf, in writing this Chapter
that it would be perfectly underwood, nor is it defigned
for the generality of readers.
OF ENGLAND. 393
kind, fo do the principles from which its truth
is to be demonftrated, totally differ from what
is commonly looked upon as the foundation
of the fcience of Politics. To lay thefe prin-
ciples here before the Reader, in a manner
completely fatisfadtory to him, would lead us
into philofophical difcufilons on what really
conftitues the ban's of Governments and Power
amongft Mankind, both extremely long, and
in a great meafure foreign to the fubject of
this book. I lhall therefore content myfelf
with proving the above obfervations by facts ;
which is more, after all, than political Wri-
ters ufually undertake to do with regard to
their fpeculations.
As I chiefly propofed to mew how the ex-
tensive liberty the Englifh enjoy, is the refult
of the peculiar frame of their Government,
and occafionally to compare the fame with
the Republican form, I even had at firft in-
tended to confine myfelf to that circumftance,
which both conftitutes the efTential difference
between thofe two forms of Government, and
is the immediate caufe of Englifh liberty;
I mean the having placed all the executive au-
thority in the State out of the hands of thofe
in whom the People trufl. With regard to
the remote caufe of that fame liberty, that is
to fay the {lability of the power of the Crown,
394 THE CONSTITUTION
this fingular folidity without the affiflance of
any armed force, by which this executive
authority is fo fecured, I fhould perhaps have
been filcnt, had I not found it abfolutely ne-
ceffary to mention the fact in this place, in
order to obviate the objections which the
more reflecting part of Readers might other-
wife have made, both to feveral of the ob-
fervations before offered to them, and to a
few others which are foon to follow.
Befides, I {hall confefs here, I have been
feveral times under apprehenfions, in the courfe
of this Work, left the generality of Readers,
milled by the fimilarity of names, ihould put
too extenfive a conftruction upon what I faid
with regaFd to the ufefulnefs of the power
of the Crown in England ; left they Ihould
think, for inftance, that I attributed the
fupcrior advantages of the Englifh mode of
Government over the Republican form, merely
to its approaching nearer to the nature of the
Monarchies eftablimed in the other parts of
Europe, and that I looked upon every kind
pf Monarchy, as being in itfelf preferable
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 pleafe, prepoiTeftion, in favour of that
form of Government under which I was born ;
and as I am fenfiblc of its defects^ fo do I
OFENGLAND. 395
know how to fet a value upon the advantages
by which it compenfates for them.
I therefore have, as it were, made hafte to
avail myfelf of the firft opportunity of ex-
plaining my meaning on this fubjedt, of in-
dicating that the power of the Crown in Eng-
land ftands upon foundations entirely dif-
ferent from thofe on which the fame Power
refts in other Countries, and of engaging the
Reader to obferve (which for the prefent will
fuffice) that as the Englifh Monarchy differs,
in its nature and main foundations, from every
other, fo all that is faid here of its advantages
is peculiar and confined to it.
But, to come to the proofs (derived from
fats) of the folidity accruing to the power of
the Crown in England, from the co~exiftence of
the two AfTemblies which concur to form the
Englifh Parliament, I fhall firft point out to the
Reader feveral open a&s of thefe two Houfes,
by which they have by turns effectually de-
feated the attacks of each other upon its pre-
rogative.
Without looking farther back for examples
than the reign of Charles the Second, we fee
that the Houfe of Commons had, in that
reign, begun to adopt the method of adding
(or tacking, as it is commonly exprefTed)
7
396 THE CONSTITUTION
fuch bills as they wanted more particularly
to have paffed, to their money bills. This
forcible ufe they made of their undoubted
privilege of granting money, if fuffered to have
grown into common practice, would have to-
tally deftroyed the ^equilibrium : that ought to
fubfift between them and the Crown. But the
Lords took upon themfelves the tafk of main-
taining that asquilibrium they complained
with great warmth of the feveral precedents
that were made by the Commons, of the prac-
tice we mention : they infilled that Bills
ihould be framed " in the old and decent zvay
" of Parliament " and at laft have made it
a Handing order of their Houfe, to reject upon
the fight of them, all bills that are tacked to
money bills.
Again, about the thirty-firft year of the
fame reign, a flrong party prevailed in the
Houfe of Commons ; and their efforts were
not entirely confined, if we may credit the
Hiftorians of thofe times, to ferving their
Conflituents faithfully, and providing for the
welfare of the State. Among other bills which
they propofed in their Houfe, they carried one
to exclude from the Crown the immediate
Heir to it; an affair this, of a very high
nature, and with regard to which it may well
be queflioned whether the legislative Affem-
OF ENGLAND. 397
blies have a right to form a refolution, with-
out the exprefs and declared concurrence of
the body of the People. But both the Crown
and the Nation were delivered from the danger
of eftablifhing fuch a precedent, by the inter-
pofition of the Lords, who threw out the bill
on the firft 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 ftrong party was formed in the Houfe of
Lords ; and, as we may fee in Bifhop Burnet's
Hiftory of his Own Times, they entertain-
ed very deep defigns. One of their views,
among others, was to abridge the prerogative
of the Crown of calling Parliaments, and
judging of the proper times of doing it (a).
They accordingly framed and carried in their
Houfe a bill for afcertaining the fitting of
(a) They, befides, propofed to have all money bills
flopped in their Houfe, till they had procured the right
of taxing, themfelves, their own eftates ; and have
a Committee of Lords, and a certain number of the
Commons, appointed to confer together concerning the
State of the Nation ; ' which Commitee (fays Bilhop
* Burnet) would foon have grown to have been a Council
* of State, that would have brought all affairs under their
' infpeftion, and never had been propofed but when the
* Nation was ready to break into civil wars/ See
Burnet's Hiftory, anno 1693,
39S THE CONSTITUTION
Parliament every year : but the bill, after it
had pafTed in their Houfe, was rejected by
the Commons (a).
Again, we find, a little after the acceffion
of King George the Firft, an attempt was
alfo made by a party in the Houfe of Lords,
to wreft from the Crown a prerogative which
is one of its finefl flowers ; and is, befides,
the only check it has on the dangerous views
which that Houfe (which may flop 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 neceffary to do fo. A bill was ac-
cordingly prefented, and carried, in the
Houfe of Lords, for limiting the members
of that Houfe to a fixed number, beyond
which it fhould not be increafed ; but after
great pains taken to infure the fuccefs of this
bill, it was at laft rejected by the Houfe of
Commons.
In fine, the feveral attempts which a ma-
jority in the Lloufe of Commons have in their
turn made to reftrain, farther than it now is,
the influence of the Crown arifng from the
difh'ibution of preferments and other advan-
tages, have been checked by the Houfe of
[a) Nov. 2S, 1693.
OF ENGLAND.
o
99
Lords; and all place-bills have, from the
beginning of this Century, conftantly mifcarried
in that Houfe.
Nor have thefe two powerful Affemblies only
fucceeded in thus warding off the open attacks
of each other, on the power of the Crown. Their
co-exiflence, and the principles upon which
they are feverally framed, have been productive
of another effedt much more extenfive, though
at firft lefs attended to, I mean the preventing
even the making of fuch attacks ; and in times
too, when the Crown was of itfelf incapable
of defending its authority : the views of each of
thefe two Houfes, deftroying, upon thefe occa-
lions, the oppofite views of the other, like thofe
pofitive and negative equal quantities (if I may
be allowed the comparifon) which deflroy each
other on the oppofite fides of an equation.
Of this we have feveral remarkable exam-
ples ; as for inftance, when the Sovereign has
been a minor. If we examine the Hiftory of
other Nations, efpocially before the invention
of {landing armies, we mail find that the
event we mentioned never failed to be attended
with open invafions of the Royal authority, or
even fometimes with complete and fettled divi-
sions of it. In England, on the contrary, whe-
ther we look at the reign of Richard II. or that
of Henry VI. or of Edward VI, we mail fee
4 oo THE CONSTITUTION
that the Royal authority has been quietly exer-
cifed by the Councils that were appointed
to aflift thofe Princes ; and when they came of
age, the fame has been delivered over to them
undiminiflied.
But nothing fo remarkable can be alledged
on this fubject, as the manner in which thefe
two Houfes have acted upon thofe occalions
when the Grown being without any prefent
porTeflbr, they had it in their power, both to
fettle it on what Perfon they pleafed, and to
divide and diftribute its effectual prerogatives,
in what manner, and to what fet of Men,
they might think proper. Circumflances like
thofe we mention, have never failed in other
Kingdoms, to bring on a diviflon of the effec-
tual authority of the Crown, or even of the
State itfelf. In Sweden, for inftance (to fpeak
of that kingdom which has borne the greateft
outward refemblance to that of England), when
Queen Chriftina was put under a neceffity of
abdicating the Crown, and it was transferred to
the Prince who flood next to her in the line of
Succeffion, the Executive authority in the State
was immediately divided, and either diftributed
among the Nobles, or afligned to the Senate,
into which the Nobles alone could be admitted ;
and the new King was only to be a Preiident
over ic. $
OF ENGLAND. 401
After the death of Charles the Twelfth,
who died without male heirs, the difpofal of
the Crown (the power of which Charles the
Eleventh had found means to render again
abfolute) returned to the States, and was fettled
on the Prineefs Ulrica, and the Prince her
hufband. But the Senate, at the fame time
it thus fettled the poffeffion of the Crown, again
affumed to itfelf the effectual authority which
had formerly belonged to it. The privilege of
affembling the States was vefted in that Body.
They alfo fecured to themfelves the power of
making war and peace, and treaties with fo-
reign powers, the difpofal of places, the
command of the army and of the fleet,
and the adminiftration of the public revenue.
Their number was to confiftof fixteen Members.
The majority of votes was to be decifive upori
every occafion. The only privilege of the new
King, was to have his vote reckoned for
two : and if at any time he mould refufe
to attend their meetings, the bufinefs was never-
thelefs to be done as effectually and definitively
without him (a).
(*) The Senate had procured a Seal to be made, to be
affixed to their official refolutions, in cafe the King fhould
refufe to lend his own. The reader will find a few more
particulars concerning the former government of Sweden-
in the nineteenth Chapter.
Dd
4 02 THE CONSTITUTION
But in England, the revolution of the year
1689 was terminated in a manner totally dif-
Regnlations of a fimilar nature had been made in
Denmark, and continued to fubfitt, with fome variations,
till the Revolution which, in the lad Century, placed the
whole power in the State in the hands of the Crown,
without controul. The different Kingdoms into which
Spain was formerly divided, were governed in much the
fame manner.
And in Scotland, that Seat of anarchy and ariftocra-
tical feuds, all the great offices in the State were not only
taken from the Crown ; but they were moreover made he-
reditary in the principal families of the Body of the No-
bles : fuch were the offices of High Admiral, High
Stewart, High Conftable, Great Chamberlain, and Juflice
General; this latter office implied powers analogous to
thofe of the Lord Chancellor, and the Lord Chief Juftici j
of the King's Bench, united.
The King's minority, or perfonal weaknefs, or in ge-
neral the difficulties in which the State might be involved.
were circumftances of which the Scotch Leaders never
failed to avail thcmfelves for invading the governing au-
thority ; a remarkable inftance of the claims they were
ufed to fet forth on thofe occafions, occurs in a Bill that
was framed in the year 1705, for fettling the Succeffion to
the Crown, after the demife of the Queen, under the title
of An J SI for the Security of the Kingdom*
The Scotch Parliament was to fit by its own authority,
every year, on the firft day of November, and adjourn
themfelves as they fliould think proper.
The king was to give his afient to all laws agreed to,
and offered by, the Ellates; or commiffion proper officer?
for doing the fame.
A Committee of one and thirty Members, chofen
by the Parliament, were to be called the King's Council,
OF ENGLAND* 403
ferenC Thofe who at that interefting epoch
had the guardianfhip of the Crown, thofe
in whofe hands it lay vacant, did not manifeft
1b much as a thought to fplit and parcel out
its prerogative. They tendered it to a fingle
indivifible poiTeflbr, impelled as it were by
ibme fecret power that was, unfeen, operating
upon them without any falvo, without any
article to eftablifh the greatnefs of themfelves,
or of their families. It is true, thofe prero-
gatives deftrucYive of public liberty which the
late King had affumed, were retrenched from
the Crown ; and thus far the two Houfes
agreed. But as to any attempt to transfer to
other hands any part of the authority of the
Crown, no propofal was even made about it.
Thofe branches of prerogative which were
taken from the kingly office, were annihilated
and made to ceafe to exift in the State ; and all
the Executive authority that was thought ne-
ceffary to be continued in the Government, was,
as before, left undivided in the Crown.
and govern, during the recefs, being accountable to the
Parliament.
The King net to make any foreign Treaty without the
confent of Parliament.
All places and offices, both civil and military, and ail
penflons formerly given by the King, {hall ever after bs
Kn-en by Parliament. Sec Parliamentary Debates. A, 1705,
Dd 2
404 THE CONSTITUTION
In the very fame manner was the whole au-
thority of the Crown transferred afterwards
to the Princefs who fucceeded King William
the Third, and who had no other claim to it
but what was conferred on her by the Par-
liament. And in the fame manner again was
it fettled, a long time beforehand, on the Prin-
ces of Hanover who have fince fucceeded
her (a).
Nay, one more extraordinary fadt, and to
which I defire the Reader to give attention
(a) It may not be improper to obferve here, as a far-
ther proof of the indivilibility of the power of the Crown
(which has been above faid to refult from the peculiar
frame of the Englifh Government) that no part of the
Executive authority of the King is vefted in his Privy
Council, as we have feen it was in the Senate of Sweden:
the whole bufmefs centers in the Sovereign; the votes of
the Members are not even counted, if I am well in-
formed : and in fact the conftant ft vie of the Law, is the
King in Council, and ,not the King and Council. A
provifo is indeed fometimes added to feme Bills, that
certain acts mentioned in them are to be tranfadled by
the King in Council : but this is only a precaution taken
in the view- that the moft important affairs of a great Na-
tion may be tranfadled with proper fclemnity, and to pre-
vent, for inftance, all objections that might, in procefs of
time, be drawn from the uncertainty whether the King has
affented, or not, to certain particular tranfactions. The
King names the Members of the Privy Council :
or excludes them, by cr.ufing their names to be (truck
out of the Book.
OF ENGLAND. 405
Notwithstanding all the Revolutions we men-
tion, and although Parliament hath fat every
year fince the beginning of this century, and
though they have conftantly enjoyed the moft
unlimited freedom both as to the fubjects and
the manner of their deliberations, and num-
berlefs propofals have in confequence been
made, yet, fuch has been the efficiency of each
Houfe, in deflroying, preventing, or qualify-
ing, the views of the other, that the Crown
has not been obliged during all that time to
make ufe, even once, of its negative voice j
and the lafl Bill rejected by a king of England,
has been that rejected by King William the
Third in the year 1692, for Triennial Parlia-
ments (a).
There is another inftance yet more remarkable
of this forbearing conduct of the Parliament
in regard to the Crown, to whatever open or
latent caufe it may be owing, and how little
their efpnt de corps in reality leads them, amidfl
the apparent heat fometimes of their ftruggles,
to invade its governing executive authori-
ty ; I mean, the facility with which they
have been prevailed upon to give up any ef-
fential branch of that authority, even after a
{'a) He affented a few years afterwards to that Bill., afte:
feveral amendments had been made in it.
D d 3
4 o6 THE CONSTITUTION
conjunction of preceding circumftances had
caufed them to be actually in poffeffion of it ;
a cafe this, however, that has not frequently
happened in the Englifh Hiftory. After the
Reftoration of Charles the Second, for inftance,
we find the Parliament to have of their own ac-
cord parted an Act, in the firft year that follow-
ed that event, by which they annihilated, at one
ftroke, both the independent legislative autho^
rity, and all claims to fuch authority, which
they had afiumed during the preceding dis-
turbances : by the Stat. 13 Ca. II. c 1. it was
forbidden, under the penalty of a premunire
(fee p. 97.) to affirm that either of the two
Houfes of Parliament, or both jointly, poifefs,
without the concurrence of the Kino- the
Legislative authority. In the fourth year after
the Reftoration, another capital branch of the
governing authority of the Crown was alio
reftcred to it, without any manner of ftrug-
gle : by the Stat. 16 Car. II. c. 1. the A<ft
was repealed by which it had been enacted,
that in cafe the King Should neglect to call a
Parliament once at lead in three years, the
Peers lhould iffue the writs for an election ; and
that fnould they neglect to iflue the fame, the
Conftituents mould of themfelves aiTembl? to
elect a Parliament.
OF ENGLAND. 47
It is here to be obferved, that, in the
fame reign we mention, the Parliament paflf-
ed the Habeas Corpus Aft, as well as the other
Afts that prepared the fame, and in general
fhewed a jealoufy in watching over the liberty
of the fubjeft, fuperior perhaps to what has
taken place at any other period of the Englim
Hiflory: this is another ftriking confirmation
of what has been remarked in a preceding
Chapter, concerning the manner in which
public difturbances have always been ter-
minated in England. Here we find a feries
of Parliaments to have been tenaciously and
perfeverantly jealous of thofe kinds of popu-
lar univerfal provisions which great Men in
other States ever difdained feriouSly to think
of, or give a place to, in thofe treaties by
which internal peace was reftored to the
Nation ; and at the fame time thefe Par-
liaments cordially and Sincerely gave up
thofe high and fplendid branches of Govern-
ing authority, which the Senates or ASTemblies
of great Men who furrounded the Monarchs in
other limited Monarchies, never ceafed anxiouSly
to flrive to aSTume to themfelves, and which
the Monarchs, after having loft them, never
wei*e able to recover but by military violence
aided by furprize, or through National com-
Dda
4o8 THE CONSTITUTION
motions. All thefe are political lingular'^
ties, certainly remarkable enough. It is a
circumftance , in no fmall degree conducive
to the folidity of the executive authority of the
Englifh Crown (which is the fubjed: of this
Chapter) that thofe perfons who feem to have
it in their power to wreft the fame from it, are,
fomehow, prevented from entertaining thoughts
of doing fo (#).
(a) I will mention another inftance of this real difin-
tereftednefs of the Parliament in regard to the power of
the Crown, nay, of the ilrong bent that prevails in
that AfTembly, to make the Crown the general depofi-
tory of the executive authority to the Nation ; I mean
to fpeak of the manner in which they ufe to provide
for the execution of thofe refutations of an a&ive kind
they may at times come to: it is always by addreffing
the Crown for that purpofe, and defiring it to interfere
with its own executive authority. Even, in regard to the
printing of their Journals, the Crown is applied to by the
Commons, with a promife of making good to it the
neceffary expences. Certainly, if there exifted in that
Body any latent anxiety, any real ambition (I fpeak
here of the general tenor of their conduct) to inveft them-
felves with the executive authority in the State, they
would not give up the providing by their own authority
at leaft for the objeel juft mentioned : it might give them
a pretence for having a fet of Officers belonging to them,
as well as a Treafury of their own, and in fhort for
eftablifhing in their favour fome fort of beginning or
precedent: at the fame time that a wifh on their part,
to be the publifhers of their own Journals, could not be
decently oppefed by the Crown, nor would be likely
O F E N G L A N D. 409
As another proof of the peculiar folidity.of
the power of the Crown, in England, may
be mentioned the facility, and fafety to itfelf
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 may feem
to be. A very remarkable inftance of this kind
occurred when the great Duke of Marlborough
was fuddenly removed from all his employments :
the following is the account given by Dean
Swift, in his " Hiftory of the Four laft Years
" of the Reign of Queen Anne."
to be found fault with by the Public. To fome readers
the fat we are fpeaking of may appear trifling ; to me it
is not fo: I confefs I never happen to fee a paragraph in
the newfpapers, mentioning an addrefs to the Crown for
borrowing its executive prerogative in regard to the incon-
fiderable objeft here alluded to, without paufing for half
a minute on the article. Certainly there muft needs exift
caufes of a very peculiar nature which produce in an Af-
fembly poueffed of fo much weight, that remarkable free-
dom from any ferious ambition to pulh their adrantages
farther, which imfpire it with the great political forbear-
ance we have mentioned, with fo fincere an indifference in
general, in regard to arrogating to themfelves any branch
of the executive authority of the Crown : they really
feem as if they did not know what to do with it after
having acquired it, nor of what kind of fervice it may be
to them.
4io THE CONSTITUTION
" So that the Queen found herfelf under a
" neceflity, by removing one perfon from fo
te great a truft, to get clear of all her difficul-
" ties at once : her Majefty determined upon
" the latter expedient, as the ihorter and fafer
" courfe; and during the recefs at Chriftmas,
" fent the Duke a letter to tell him fhe had no
cc farther occafion for his fervice.
tc There has not perhaps in the prefent age
" been a clearer inftance to ihew the inftability
" of power, which is not founded on virtue :
<c and it may be an inftru&ion to Princes who
" are well in the hearts of their People, that
" the overgrown power of any particular
" perfon, although fupported by exorbitant
" wealth, can, by a little refolution, be re-
" duced in a moment, without any dangerous
tc confequences. This Lord, who was, beyond
* c all comparifon, the greateft fubjeel: in Chri-
ic ftendom, found his power, credit, and in-
" fluence crumble away on a fudden ; and ex-
il cept a few friends and followers, the reft
(i dropped off in courfe, &c." (B. I. near the
end.)
The eafe with which fuch a Man as the Puke
was fuddenly removed, Dean Swift has ex-
plained by the neceffary advantages of Princes
who pofTefs the affeftion of their People, and
OFENGLAND. 411
the natural weaknefs of power which is not
founded on virtue. However, thefe are very
unfatisfadtory explanations. The Hiftory of
Europe, in former times, offers us a continued
feries of examples to the contrary. We fee in
it numberlefs inftances of Princes inceffantly en-
gaged in refilling in the field the competition of
Subjects inverted with the eminent dignities of
the Realm, who were not by any means fnperior
to them in point of virtue, or at other times,
living in a continued ftate of vaflalage under
fome powerful Man whom they durft not refifr,
and whofe power, credit, and influence they would
have found it far from poffible to reduce in a
moment, or crumble on afudden, by the fending of
a fingle letter, even though affiiled by a little rc-
Jolution, to ufe Dean Swift's expreflions, and
without any dangerous confequences.
Nay, certain Kings, fuch as Henry the
Third of France, in regard to the Duke of
Guile, and James the Second, of Scotland,
in regard to the two Earls of Douglas fuccef-
{ively, had at laft recourfe to plot and affafiina-
tion; and expedients of a fimilar fudden violent
kind, are the fettled methods adopted by the
Eaftern monarchs ; nor is it very fure they can
always eafily do otherwife (a).
(a) We might alfo mention here the cafe of the Em.
peror Ferdinand II. and the Duke of Walftein, which
4 i2 THE CONSTITUTION
Even in the prefent'Monarchies of Europe,
notwithstanding the awful force by which they
are outwardly fupported, a difcarded Minifter
is the caufe of more or lefs anxiety to the go-
verning Authority ; efpecially 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 fentand confined to one
of his eftates in the country, which the Crown
names to him : he is not allowed to appear at
Court, nor even in the Metropolis; much lefs is
he fufFered to appeal to the People in loud com-
plaints, to make public fpeeches to the great
Men in the State, and intrigue among them,
and in fhort to vent his refentment by thofe
bitter, and fometimes defperate methods, which
in the Conftitution of this Country, prove in
great meafure harmlefs.
feems tc have at the time made a g-eat r.oife in the world.
The Earls of Douglas were fometimes attended by a
retinue of two thoufand horfe. See Dr. Robertfon':
Hiftory of Scotland. The Duke of Guile was warred
fomc hours before his death, of the danger of trufhng his
perfon into the king's prefence or houfe ; he aniwered,
On n'ofcroit They durfc not.
If Mary, Queen of Scots, had pollened a power ana-
logous to ti at exerted by Queen Anne, lhe might perhaps
have avoided ::ng driven into thofe inflances of ill- conduct
which were followed by fuch tragical conlequence:.
O F E N G L A N D, 413
But a Diffolution of the Parliament, that is,
the difmiffion of the whole body of the great
Men in the Nation, affembled in Legislative ca-
pacity, is a circumftance in the Englifti Govern-
ment, in a much higher degree remarkable and
deferving our notice, than the depriving any fin*
gle individual, however powerful, of his pub-
lic employments. When we confider in what
eafy and complete manner fuch a diffolution is
effedted in England, we muft needs become
convinced that the power of the Crown bears
upon foundations of very uncommon, though.
perhaps hidden, ftrength ; efpecially, if we
attend to the feveral fadts that take place in
other Countries.
In France, for example, 'we find the Crown,
notwithflanding the immenfe outward force by
which it is furrounded, to ufe the utmoft cau-
tion in its proceedings towards the Parliament
of Paris : an Affembly only of a judiciary na-
ture, without any Legislative authority or avow-
ed claim, and which, in ihort, is very far from
having the fame weight in the kingdom of
France, as the Engliih Parliament has in Eng-
land. The King never repairs to that Affem-
bly, to fignify his intentions, or hold a Lit de
Jujlice, without the moft over-awing circum-
ftances of military apparatus and preparation,
4H THE CONSTITUTION
constantly choofing to make his appearance
among them rather as a military Genera], than
as a King.
And when the late King, having taken a fe-
rions alarm at the proceedings of this Parlia-
ment, at length refolved upon their difmiflion,
he fenced himfelf, as it were, with his army ;
and military Meffengers were fent with every
circumftance of fecrecy and difpatch, who, at
an early part of the day and at the fame hour,
furprifed each Member in his own houfe,
caufing them feverally to depart for diflant
parts of the country which were prefcribed to
them, without allowing them time to confider,
much lefs to meet, and hold any confutation
together.
But the Perfon who is invefted with the king-
ly office, in England, has need of no other wea-
pon, no other artillery, than the Civil Infignia
of his dignity, to efFed: a diffolution of the
Parliament. He fteps into the middle of them,
telling them they are diffolved; and they are
diffolved : he tells them, they are no longer a
Parliament ; and they are no longer fo. Like
Popilius's wand (a), a diffolution inftantly puts
a flop to their warmeft debates and molt vio-
[a) He who ftopt the army of King Antiochus.
O F E N G L A N D. 415
lent proceedings. The wonderful words by
which it is expreffed have no fooner met their
ears, than all their legiflative faculties are be-
numbed : though they may Hill be fitting on
the fame benches, they look no longer upon
themfelves as forming an AfTembly ; they no
longer confider each other in the light of Affo-
ciates or of Colleagues. As if fome ftrange
kind of weapon, or a fudden magical effort, had
been exerted in the midft of them, all the bonds
of their union are cut off; and they hallen
away, without having fo much as the thought
of continuing for a fingle minute the duration
of their AfTembly (a).
{a) Nor has London poft-horfes enough to drive them
far and near into the Country, in cafe the declaration by
which the Parliament is diffblved, alfo mentions the calling
of a new one.
A Diffolution, when proclaimed by a common Crier
afiilted by a few Beadles, is attended by the very fame
effefts.
To the account of the expedient ufed by the late King
of France, to effect the difmifRon of the Parliament of
Paris, we may add the manner in which the Crown of
Spain, in a higher degree arbitrary perhaps than chat of
France, undertook, fome years ago, to rid itfelf of the
religious Society of the Jefuits, whofe political influence
and intrigues had grown to give it umbrage. Thev
were feized by an armed force, at the fame minute of the
fame day, in every Town or Borough of that extenfive
4 i6 THE CONSTITUTION
To all thefe obfervations concerning the pe-
culiar folidity of the authority of the Crown,
in England, I fhall add another that is fupplied
by the whole feries of the Englifh Hiftory ;
which is, that, though bloody broils and dis-
turbances have often taken place in England,
and war often made againft the King, yet it has
fcarcely ever been done, but by perfons whopofi-
tively and exprefsly laid claim to the Crown.
Even while Cromwell contended with an armed
force againft Charles the Firft, it was, as every
one knows who has read that part of the Englifh
hiftory, in the King's own name he waged war
againft him.
Monarchy where they had refidence, in order to their be-
ing hurried away to fhips that were waiting to carry them
into aaother Country : the whole bufinefs being conducted
with circumftances of fecrecy, furprize, and of preparation
far fuperior to what is related of the moft celebrated con-
fpiracies mentioned in Hiftory,
The Diffolution of the Parliament which Charles the
Second had. called at Oxford, is an extremely curious
event : a very lively account of it is to be found in Old-
mixon's Hiftory of England.
If certain alterations, however imperceptible they may
perhaps be, at firft, to the public eye, ever take place,
the period may come at which the Crown will no longer
have it in its power to diffolve the Parliament ; that is to
fay, a diffolution will no longer be followed by the fam
effects that it is at prcfent.
O F E N G L A N D. 417
The fame objection might be exprefled'in a
more general manner and with ftrict truth, by
faying, that no war has been waged, in Eng-
land, againft the governing authority, except
upon national grounds ; that is to fay, either
when the title to the Crown has been doubtful,
or when general complaints, either of a political
or religious kind, have ariferi from every part
of the Nation : as inftances of fuch complaints
may be mentioned thofe that gave rife to
tKe war againft King John, which ended in the
paffing of the Great Charter, the civil wars
in the reign of Charles the Firft, and the
Revolution of the year 1689. From the
facts juft mentioned it may alfo be obferved as
a concluiion, that the Crown cannot depend on
the great fecurity we have been defcribing any
longer than it continues to fulfil its engage-
ments to the Nation, and to refpect thofe laws
which form the compact between it and the
People. And the imminent dangers, or at leaft
the alarms and perplexities, in which the Kings
of England have conftantly involved themfelves,
whenever they have attempted to ftruo-o-l e
againft the general fenfe of the Nation, mani-
feftly fhew that all that has been above ob-
ferved, concerning the fecurity and remarkable
{lability fomehow annexed to their Office, is to
Ee
4 iS THE CONSTITUTION
be underftood, not of the capricious power of the
Man, but of the lawful authority of the Head
of the State (a).
[a) One more obfervation might be made on the fubjeft ;
which is, that, when the kingly dignity has happened in
England to be wrefted from the poffeffor, through fome
revolution, it has been recovered, or ftruggled for, with
more difficulty than in other Countries : in all the other
Countries upon earth, a King de jure (by claim) poffeffes
advantages in regard tothe King in being, much fuperior
to thofe of which the fame circumftance may be produc-
tive in England. The power of the other Sovereigns in.
the World, is not fo fecurely eflablifhed as that of an Eng-
Hih King; but then their character is more indelible;
that is to fay, till their Antagonists have fuccceded in
Cutting them off and their families, they poffefs in a high
degree a power to renew thefe claims, and difturb the
State. Thofe family pleas or claims of priority, and in
general thofe arguments to which the bulk of Mankind
have agreed to allow fo much weight, ceafe almoir. entirely
to be of any effect, in England, againft the perfon actually
inverted with the kingly office, as foon as the conflitutional
parts and fprings have begun to move, and in fhort as
foon as the machine of the Government has once begun
be in full play. An univerfal national ferment, fimilar tct
that which produced the former difturbances,- is the on-
ly time of real danger.
The remarkable degree of internal national quiet, which,
for very near a century pair, has followed the Revolution
of the year 1689, is a remarkable proof of the truth of the-
obfervations above made; nor do I think, that, all circum-
ftances being confidered, any other Country can produce
the like inftancs.
OF ENGLAND. 4 r 9
Second Part of the fame Chapter.
THERE is certainly a very great degree of
Angularity in all the circumftances we
have been defcribing here : thofe perfons who
are acquainted with the hiftory of other Coun-
tries, cannot but remark with furprife, that lia-
bility of the power of the Englifh Crown,
that myfterious folidity, nthat inward binding
ftrength with which it is able to carry on with
certainty its legal operations > amidft the cla-
morous ftruggle and aproar with which it it
commonly furrounded, and without the me-
dium of any armed threatening force. To
give a demonftratiort of the manner in which
all thefe things are brought to bear and oper-
ated, is not, as I faid before, my defign to
attempt here ; the principles from which
fuch demonstration is to be derived, fuppofe
an enquiry into the nature of Man, and of hu-
man affairs, which rather belongs to philofophy
(though to a branch hitherto unexplored) than
to Politics : at lead fuch an enquiry certainly
lies out of the fphere of the common Science of
Politics (a). However, I had a very material
(a) It may, if the reader pleafes, belong to the Science
of Metapolitics ; in the fame fenfe as we fay Mctaphyfia ;
that is, the Science of thofe things which lie beyond phyfical,
or fubltantial, things. A few more word are b^ftowed
* E e 2
42o THE CONSTITUTION
reaibn in introducing all the above mentioned
tads concerning the peculiar liability of the
governing authority of England, in that they
lead to an obfervation of a moft important po-
litical nature; which is, that this liability al-
lows feveral efTential branches of Englilh li-
berty to take place which without it could
not exift. For there is a very elTential con-
sideration to be made in every Science, though
Speculators are fometimes apt to lofe fight
of it, which is, that in order that things
may have exiflence, they mull be pojjiblc ;
in order that political regulations of any
kind may obtain their effect, they mull imply
no direct contradiction, either open or hidden,
to the nature of things, or to the other circum-
llances of the- Government. In reafoning from
tins principle, we ihall find that the liability of
the Governing executive authority in England,
and the weight it gives to the whole machine
of the State, has actually enabled the Englilh
Nation, confidered as a free Nation, to enjoy
feveral advantages which would really have
been totally unattainable in the other States
we have mentioned in former Chapters, what-
ever degree of public virtue we might even
f ippofe to have belonged to thofe who acted
in thofe States as the Advifers of the People,'
upon the fame fubjeft, in the Advertifement, or Preface,,-
at the head of his Work.
OF ENGLAND. 421
4* in general who were trufted with xhe bu-
of framing the Laws (a).
One of thefe advantages refulting from the So-
lidity of the Government, is, the extraordinary
perfonal freedom which all ranks of individuals in
England, enjoy at the expence of the governing
authority. In the Roman Commonwealth, for
inftance, we fee the Senate to naye been veiled
with a number of powers totally deftrudtive of
the liberty of the Citizens: and the continuance
of thefe powers was, no doubt, in a great mea-
fure owing to the treacherous remiffnefs of thofe
Men in whom the People trufted for reprefTing
them, or even to their determined refolution
not to abridge thofe prerogatives. Yet, if we
attentively confider the conftant fituation of af-
fairs in that Republic, we fhall find that though
we might fuppofe thofe perfons to have been
ever fo truly attached to the caufe of the People,
it would not really have been poflible for them
to procure to the People an entire fecurity.
The right enjoyed by the Senate, of fuddenly
naming a Dictator with a power unreftraincd
by any law, or of inverting the Confuls with an
authority of much the fame kind, and the
power it at times afTumed of making formid-
able examples of arbitrary Juftice, were refour-
(a) I mould be very well fatisfied though only the more
reflecting clafs of readers were fully to underiland the ten-
dency of this Chapter : in the mean time it is confiderably
^lluflrated beyond what it was in the former Editions
E e 3
4ii THE CONSTITUTION
c.es of which the Republic could not, perhaps,
with fafety have been totally deprived : and
though thefe expedients frequently were ufed to
deflroy the juii liberty of the People, yet they
were alfo very often the means of preferving the
Commonwealth.
Upon the fame principle we mould poffibly
find that the OJlracifm, that arbitrary method
of baniming Citizens, was a neceiTary refourcc
in the Republic of Athens. A Venetian Noble
would perhaps alfo confefs, that however ter-
rible the State Inquifition eitabliihed in his Re-
public, may be even to the Nobles themfelves,
yet it would not be prudent entirely to abolifli
it, And we do not know but a Minifter of State
in France, though we might fuppofe him ever
i'o virtuous and moderate a Man, would fay
the fame with regard to the fecret imprifon-
ments, the lettres de cachet, and other arbitrary
(deviations from the fettled courfe of law,
which often take place in that Kingdom, and
in the other Monarchies of Europe. No doubt,
if he was the Man we fuppofe, he would con-
fefs the expedients we mention have in num-
berlefs inftances been villainoufly proflituted
to gratify the wantonnefs and private revenge
of Mmifters, or of thofe who had any intereil
with them; but itill perhaps he would con-
tinue to give it as his opinion, that the Crown,
notwithstanding its apparently immenfe ftrength,
cannot avoid recurring at times to expedients
3
OF ENGLAN D. 42;
*>f this kind ; much lefs could it publicly and
abfolutely renounce them for ever.
It is therefore a moil advantageous circum-
ftance in the Englifh Government, that its fe-
curity renders all fuch expedients nnneceflary,
and that the Reprefentatives of the People
have not only been conflantly willing to pro-
mote the public liberty, but that the general
fituation of affairs has alfo enabled them to
carry their precautions (o far as the}- have done.
And indeed, when we confider what prero-
gatives the Crown, in England, has fincerely
renounced that in confequence of the inde-
pendence conferred on the Judges and of the
method of Trial by Jury, it is deprived of all
means of influencing the fettled courfe of the
law both in civil and criminal matters, that it
has renounced all power of fcizing the pro-
perty of individuals, and even of retraining
in any manner whatfoever, and for the fhorteft
time, the liberty of their perfons, we do not
know what we ought moft to admire, whether
the public virtue of thole who have deprived
the fupreme Executive Power of all thofe dan-
gerous prerogatives, or the nature of that fame
Power, which has enabled it to give them up
without ruin to itfelf whether the happy frame
of the Englifh Government, which makes thofe
;n whom the People trult, continue fo faith*
424 THE CONSTITUTION
ful in the difcharge of their duty, or to the foli-
dity of that fame Government, which really can
afford to leave to the People fo extenfive a de-
gree of freedom (a).
Again the Liberty of the Prefs, that great
advantage enjoyed by the Englifh Nation,
does not exift in any of the other Monarchies
of Europe, however well eftablifhed their power
may at firft feem to be; and it might even
be demonftrated that it cannot exift in them.
The moft watchful eye, we fee, is constantly
{a) At the times of the invafions of the Pretender, af-
fifted by the forces of hoftile Nations, the Habeas Corpus
Aft was indeed fufpended (which by the bye may ferve as
one proof, than in proportion as a Government is any how
in danger, it becomes neceffary to abridge the liberty of
the fubjeft) j but the executive power did not thus of it-
felf ftretch its own authority; the precaution was deliber-
ated upon and taken by the Reprefentatives of the
People ; and the detaining of individuals in confequence
of the fufpenfion of the Aft, was limited to a certain fixed
time. Notwithftanding the jufl: fears of internal and
hidden enemies which the circumftances of the times
might raife, the deviation from the former courfe of the
law was carried no farther than the fingle point we have
mentioned: Perfons detained by order of the Government,
were to be dealt with in the fame manner as thofe arretted
at the fuit of private individuals : the proceedings 'againft
them were to be carried on no otherwife than in a public
place : they were to be tried by their Peers, and have all
the ufual legal means of defence allowed to them, fuch tfs
calling of witneffes, peremptory challenge of Juries., &c
OF ENGLAND. 425
kept in thofe Monarchies upon every kind of
publication ; and a jealous attention is paid even
to the loofe and idle fpeeches. of individuals.
Much unnecefTary trouble (we may be apt at
firft to think) js taken upon this fubject ; but
yet if we confider hpw uniform the conduct of
all thofe Governments is, how conftant and un-
remitted their cares in thofe refpedls, we {hall
become covinced, without looking farther,
that there muft be fome fort of necefiity for their
precautions.
In Republican States, for reafons which are
at bottom the fame as in the before mentioned
governments, the People are alio kept under
the greateft reftraints by thofe who are at the
head of the State. In the Roman Common-
wealth, for inftance, the liberty of writing was
curbed by the fevereft laws (a) : with regard
to the freedom of fpeech, things were but little
better, as we may conclude from feveral facts ;
and many inftances may even be produced of
the dread with which the private Citizens, upon
{a) The Law of the Twelve Tables had eftablifhed the
punifhment of death againft the author of a Libel : nor
\vas it by a Trial by Jwy that they determined what wa*
to be called a Libel. Si qxjis carmen occentassit,
ACTITASSIT, CONDIDISSlTjQUOD ALTER1 FLAGITIVM TAXIT*
CAPITAL ESTO.
4 a6 THE CONSTITUTION
rcrtain occafions, communicated their political
opinions to the Con fuls, or to the Senate.
In the Venetian Republic, the prefs is moft
itridtly watched : nay, to forbear to fpeak
in any matter whatibever on the conduct:
of the Government, is the fundamental
maxim which they inculcate on the minds
of the People throughout their domini-
ons (a).
(a) Of this I have myfelf feen a proof fomewhat An-
gular, which I beg leave of the Reader to relate. Being,
in the year 1768, at Bergamo, the fir ft Town of the Vene-
tian State, as you come into it from the State of Milan,,
about an hundred and twenty miles diftant from Venice,
3 took a walk in the evening in the neighbourhood of the
1 own : and wanting to know the name of feveral places
which I faw at a diftance, I Hopped a young Countryman
xo afk him information. Finding him tp be a fenfible
young Man, I entered into fome farther converfation with
iiim j and as he had himfelf a great inclination to fee Ve-
nice, he afked me, whether I propofed to go there ? I
anfwered that I did : on whjch he immediately warned
mc when I was at Venice not to fpeak of the Prince (dtl
Prencipe) an appellation affumed by the Venetian Govern-
ment, in order, as I fuppofe, to convey to the People a
greater idea of their union among themfelves. As I wanted
p hear him talk farther on the fubject, I pretended to be
entirely ignorant in that refpett, and afked for what reafon
1 muft not fpeak of the Prince ? But he, (after the man-
ner, of the common People in Italy, who when, ftrongly
affected by any thing, rather choofe to exprefs themfelves
GF ENGLAND. 427
With refpcft therefore to this point, it
may again be looked upon as a moft advanta-
geous circumftance in the Englifh Government,
that thofe who have been at the head of the
People, have not only been constantly difpofed
to procure the public liberty, but alfo that they
have found it poflible for them to do fo ; and
that the remarkable ftrength and fteadinefs of
the Government has admitted of that extenfive
freedom of fpeaking and writing which the
People of England enjoy. A moft advanta-
geous privilege, this ! which, affording to every
Man a means of laying his cpmplaints before
the Public, procures him almoft a certainty of
redrefs againft any act of oppremon that he may
have been expofed to : and which leaving,
moreover, to every Subject a right to give his
opinion on all public matters, and by thus in-
fluencing the fentiments of the Nation, to in-
fluence thofe of the Legislature itfelf (which is
fooner or later obliged to pay a deference to
them), procures to him a fort of Legislative
authority of a much more efficacious and bene-
by fome vehement gefture, than by words) ran the edge
of his hand, with gre^t quicknefs, along his neck, mean-
ing thereby to exprefs, that being ftrangled, or having
one's throat cut, was the inflan: conference of taking
fuch liberty.
4*8 THE CONSTITUTION
ficial nature than any formal right he might
enjoy of voting by a mere yea or nay, upon ge-
neral propofitions fuddenly offered to him, and
which he could have neither a mare in framing,
nor any opportunity of objecting to, and mo-
difying.
A privilege which, by railing in the People
a continual fenfe of their fecurity, and af-
fording them undoubted proofs that the Go-
vernment, whatever may be its form, is ul-
timately deftined to enfure the happinefs of
thofe who live under it, is both one of the
greater!: advantages of Freedom, and its fureft
characterise. The kind of fecurity as to their
perfons and pofTelTions which Subjects who
are totally deprived of that privilege, enjoy
at particular times, under other Governments,
perhaps may intitle them to look upon them-
felves as the well adminiflered property of
Rafters who rightly underftand their own in-
tereils ; but it is the right of canvafling with-
out fear the condudt of thofe who are placed
at their head, which cqnflitutes, a free Na-
tion (a).
. {a) If we confider the great advantages to public
Jiberty which refult from the inftitution of the Trial by
j^ry, aud from the Liberty of the Prefs,, we mall finq
OF ENGLAND'. 423
The unbounded freedom of debate pofTefTed
by the Englifh Parliament, is alfo a confe-
quence of the peculiar liability of the Govern-
ment. All Sovereigns have agreed in their
jealoufy of AfTemblies of this kind, in their
dread of the privileges of AfTemblies who at-
tract in fo high a degree the attention of the
reft of the People, who in a courfe of time be-
come connected by fo many eiTential ties with
the bulk of the Nation, and acquire fo much
real influence by the eiTential fhare they muft
needs have in the management of public affairs*
and by the eminent ferviccs, in fhort, which
they are able to perform to the Community (a.)
Hence it has happened that Monarchs, or fingle
Rulers, in all Countries, have endeavoured to/
difpenfe with the Afliftance of AfTemblies like
thofe we mention, notwithstanding the capital
England to be in reality a more Democratical State;'
than any other we are acquainted with. The Judi-
cial power, and the Cenforial power, are verted in the
People.
{a) And which they do aclually perform, till they are
able to throw off the reftraints of impartiality and mode-
ration ; a thing which, being Men, they never fail to do
when their influence is generally eftablifhed, and proper
opportunities offer. Sovereigns know thefe things, and
dread them.
43 o THE CONSTITUTION
advantages they might have derived from their
fervices towards the good government of the*
State; or if the circumftances of the times have
rendered it expedient for them to call fuch Af-
femblies together, they have ufed the utmofl en-
deavours in abridging thofe privileges and legif-
lative claim's which they foon found to prove
fo hoftile to their fecurity : in fhort, they have
ever found it impracticable to place any unre-
ferved truft in public Meetings of this kind.
We may here name Cromwell,' as he was'
fupported by a numerous army, and poffefTed
more power than any foreign Monarch who has'
not been fecured by an armed force. Even af-
ter he had purged, by the agency of Colonel
Pride and two regiments, the Parliament that
was fitting when his power became fettled
thereby thrufting out all his opponents to the
amount of about two hundred, he foon found;
his whole authority endangered by their pro-
ceedings, and was at laft under a neceffity of
turning them out in the military maimer with
which every one is acquainted. Finding Hill
a Meeting of this kind highly expedient to le-
galize his military authority, he called together
that AfTembly which was called Bareboe*s Par-
liamcnt. He had himfelf chofen the Members
OF ENGLAND. 431
of this Parliament to the number of about an
hundred and twenty,- and they had feverally re-
ceived the fummcns from him ; yet notwith-
standing this circumftarfcej and the total want of
peribnal weight in molt of the Members, he
began in a very few months, and in the midft of
his powerful victorious army, to feel a ferious
alarm at their proceedings; he foon heard them
talk of their own divine commiffion, and of the
authority they had received from the Lord ;
and, in fhort, finding he could not truit them,
he employed the offices of a fecond Colonel, to
effect their difmiffion. Being now dignified
with the legal appellation of Proteftor, he ven-
tured to calt a Parliament elected by confidcr-
able parts of the people ; but though the ex-
istence of this Parliament was grounded, we
might fay grafted, upon his own ; and though
bands of Soldiers weFe even ported in the
avenues to keep out all fuch Members as refufed
to take certain perfonal engagements to him,
he made fuch hafte in the irlue, to rid himfelt
of their prefence, as to contrive a mean quib-
ble or device to fhorten the time of their fitting
lby ten or twelve days (<?). To a fourth Af-
(*) They were to have fat five months ; but Cromwell
pretended that the months were to confift of only twenty-
432 THE CONSTITUTION
fembly he again applied ; but, though the
ele&ions had been fo managed as to procure
him a formal tender of the Crown during the
firft fitting, he put a final end to the fecond with
refentment and precipitation (a).
The example of the Roman Emperors, whofe
power was outwardly fo prodigiousy may alfo
be introduced here. They ufed to mew the ut-
moft jealoufy in their conduct: with refpedt to
the Roman Senate ; and that AlTembly which
the prepovTemon of the People, who looked
upon it as the ancient remains of the Republic,
had made it expedient to continue, were not fuf-
fercd to afTemble but under the drawn fcymitars'
of the Pretorian guards.
Even the Kings of France, though" their
authority is fo unqueflioned, fo" univerfally re-
fpedted, as well a% ftrongly fupported, have felt
frequent anxiety from the claims and proceed-
ings of the Parliament of Paris ; an AiTembly
eight days ; as this was the way of reckoning time ufed
in paying the army, and the fleet.
(a) The hiflory of the cor.dufl of the deliberating and
debating AiTcmbliei we are alluding to, in regard to the
Monarchs, or fingle Rulers of any denomination, who
fummon them together, may be exprefTed in a very few
words. If the Monarch is unarmed, they over-rule him
fo as almoft entirely to fet frm afide : if his power is of
a military kind, they form connections with the army.
OF ENGLAND. 433
of fo much lefs weight than the Englifh Parlia-
ment. The alarm has been mentioned which
the late King at laft exprefTed concerning their
meafures, as well as the expedient to which he
reforted, to free himfelf from their prefence.
And when the prefent King thought proper to
call again this Parliament together, a meafure
highly prudent in the beginning of his reign,
every jealous precaution was at the fame time
taken to abridge thofe privileges of deliberating
and remonftrating upon which any diflant clainrf
to, or llruggle for, a fhare in the Supreme au-
thority might be grounded.
It may be objected that the pride of Kings,
or fingle Rulers, makes them averfe to the ex-
iftence of Affemblies like thofe we mention,
and defpife the capital fervic%9 which they
might derive from them for the good govern-
ment of their Kingdoms. I grant it may in fome
meafure be fo. But if we examine into the ge-
neral fituation of affairs in different States, and
into the examples with which their Hiftory
lupplies us, we Uiall alfo find that the pride of
thofe Kings agrees in the main with the intereft
and quiet of their Subjects, and that their pre-
venting the Affemblies we fpeak of from meet-
ing, or, when met, from afiuming too large a
F f
434 TflE CONSTITUTION
fhare in the management of public affairs, is, in
a great meafure, matter of neceffity.
We may therefore reckon it as a very great
advantage, that, in England, no fuch neceffity
exifts. Such is the frame of the Government,
that the Supreme executive authority can both
give leave to affemble, and fhevv the molt un*
refer ved truft, when affembled, to thofe two
Houfes which concur together to form the Le-
giflature.
Thefe two Houfes, we fee, enjoy the mofr.
complete freedom in their debates, whether
the fubjedt be grievances , or regulations concern-
ing government matters of any kind : no re-
ftriction whatever is laid upon them ; they may
ltart any fubjeel: they pleafe. The Crown is not
to take any notice of their deliberations : its
wifhes, or even its name, are not to be intro-
duced in the debates. And, in fhort, what
makes the freedom of deliberating, exercifed
by the two Houfes, really to be unlimited, un-
bounded, is the privilege, or fovereignty we
may fay, enjoyed by each within its own walls,
in confequence of which nothing done or faid in
Parliament, is to be queftioned in any place out
of Parliament. Nor will it be pretended by
thofe perfons who are acquainted with the Eng-
lish Hiflory, that thofe privileges of Parliament
OF ENGLAND. 435
ive mention are nominal privileges, only privi-
leges upon paper, which the Crown has difre-
garded whenever it has thought proper, and to
the violations of which the Parliament have ufed
very tamely to fubmit. That thefe remarkable
advantages, that this total freedom from any
compulsion or even fear, and in fhort this unli-
mited liberty of debate, fo {Iriclly claimed by
the Parliament, and fo fcrupuloufly allowed by
the Crown, Ihould be exercifed year after year
during a long courfe of time, without produc-
ing the leaft relaxation in the execution of the
lawSj the fmallefc degree of anarchy, are cer-
tainly very lingular political phenomena.
It may be faid that the remarkable Solidity
of the governing Executive authority, in Eng-
land, operates to the advantage of the People
with refpecl to the objedts we mention, in a two-
fold manner. In the firft place, it takes from
the great Men in the Nation all ferious ambi-
tion to invade this authority, thereby prevent-
ing thofe anarchical and more or lefs bloody
Itruggles to refult from their debates, which
have fo conftantly difturbed other Countries.
In the fecond place, it infpires thofe Great Men
with that falutary jealoufy of the fame authority
which leads them to frame fuch effectual provi-
F f 2
4j6 THE CONSTITUTION
lions for laying it under proper reftraints. On
which I fhall obferve, by way of a ihort digref-
fion, that this diftinguifhed Jiabillty of the
executive authority of the Englilh Crown, af-
fords an explanation for the peculiar manner in
which public commotions have conftantly been
terminated in England, compared with the
manner in which the fame events have been
concluded in other Kingdoms. When I
mentioned, in a former Chapter, this peculi-
arity in the Englim Government, I mean the
accuracy, impartiality, and univerfality, of the
provifions by which peace, after internal dis-
turbances, has been reftored to the Nation, I
confined my comparifons to inftances drawn
from Republican Governments, purpofely poft-
poning to fay any thing of Governments of a
Monarchical form, till I had introduced the
very eflenrial observation contained in this
Chapter, which is, that the power of Crowns,
in other Monarckies, has not been able, by it-
feif, to produce the fame effects it has in Eng-
land, that is, has not been able to infpire the
Great Men in the State with any thing like that
falutary jealoufy we mention, nor of courfe to
induce them to unite in a real common caufc
with the reft of the People. In other Monar*
Or ENGLAN : D. 45?
chies(^), thofe Men who, during the continua-
tion of the public diilurbanccs, were at the
head of the People, finding it in their power,
in the iffue, to parcel out, more or lefs, the Su-
preme governing authority (or even the State
itfelf), and to transfer the fame to themfelves,
conftantly did fo, in the fame manner, and from
the very fame reafons, as it conftantly happened
in the ancient Commonwealths ; thofe Monar-
chical Governments being in reality, fo far as
that, of a Republican nature : and the govern-
ing authority was left, at the conclusion, in the
fame undefined extent it had before (b). But
in England, the great Men in the Nation find-
ing themfelves in a fituation effentially differ-
ent, loft no time in purfuits like thofe in
which the great Men of other countries ufed
to indulge themfelves on the occafion we men-
tion. Every Member of the Legiflature plainly
perceived, from the general afpect of affairs
{a) I mean, before the introduction of thofe numerous
Sanding armies which are now kept by all the Crowns
of Europe : fince that epoch, which is of no very ancient
date, no Treaty has been entered into by thofe downs
with any Subjecls.
() As a remarkable inftance of fuch a Treaty may b*
mentioned that by which the War for the Public giod was
terminated in France. It is quoted in page 30 of this
Work. F f 3
438 THE CONSTITUTION
and his feelings, that the Supreme exeeu-:
tive authority in the State muft in the iffue fall
fome where undivided, and continue fo ; and
being moreover fenfible, that neither perfonal
advantages of any kind, nor the power of any
faction, but the law alone, could afterwards be
an effectual reftraint upon its motions, they had
no thought or aim left, except the framing with
care thofe laws on which their own liberty was
to continue to depend, and to reftrain a power
which they, fomehovv, judged it fo impracti-
cable to transfer to themfelves or their party,
or to render themfelves independent of. Thcfe
obfervations I thought neceifary to be added to
thofe in the xv. Chapter, to which I now refer
the reader.
Nor has the great freedom of canvafling po-
litical fubjedts we have defcribed, been limited
to the Members of the Legiilature, or confined
to the walls of Weftminfter, that is, to that ex-
clufive fpot on which the two Houfes meet :
the like privilege is allowed to the other
orders of the People ; and a full fcope is
given to that fpirit of party, and a complete
fecurity infured to thofe numerous and irregu-
lar meetings, which, efpecially when directed
to matters of government, create fo much un-
eafinefs in the Sovereigns of other Countries.
OF ENGLAND. 439
Individuals even may, in fuch meetings, take ail
active part for procuring the fuccefs of thofe
public fteps which they wiih to fee purfued ;
they may frame petitions to be delivered to the
Crown, or to both Houfes, either to procure
the repeal of meafures already entered upon by
Government, or to prevent the pairing of fucli
as are under consideration, or to obtain the en-
acting of new regulations of any kind : they may
feverally fubfcribe their names to fuch petitions :
the law fets no reftriction on their numbers ;
nor has it, we may fay, taken any precaution to
prevent even the abufe that might be made of
fuch freedom.
. That mighty political engine, the prefs, is
alfo at- their fervice; they may avail themfelves
of it to advertife the time and place, as well as
the intent, of the meetings, and moreover to fet
off and inculcate the advantages of thofe notions
which the wiiTi is to fee adopted.
Such meetings may be repeated ; and every
individual may deliver what opinion he pleafes
on the propofed fubje&s, though ever fo direct-
ly oppofite to the views or avowed defigns of the
Government. The Member of the Legislature
may, if he choofes, have admittance among
them, and again enforce thofe topics which
have not obtained the fuccefs he expected, in,
F fi
440 THE CONSTITUTION
that Koufe to which he belongs. The difap-
pointed Statefmen, the Miniiler turned out, alio
find the door open to them : they may bring ia
the whole weight of their influence and of their
connections : they may exert every nerve to en-
lift the AiTembly in the number of their fup-
porters: they are bid to do their worft : they
fly through the Country from one place of meet-
ing to another : the clamour increafes : the
Conflitution, one may thinly is going to be
ihaken to its very foundations : but thefe
mighty flruggles, by fome means or other, al-
ways find a proportionate degree of re-action :
new difficulties, and at lafl inluperable impedi-
ments, grow up in the way of thofe who would
take advantage of the general ferment to raife
themfelves on the wreck of the governing Au-
thority : a fecret force exerts itfelf, which gra-
dually brings things back to a flate of modera-
tion and calm ; and that fea fo flormy, to ap-
pearance fo deeply agitated, ccnftantly flops at
certain limits which it Teems as if it wanted the
power to pafs.
The impartiality with which juflice is dealt
to all orders of Men in England, is alio in
creat meafure owing to the peculiar liability of
the Government : the very remarkable, high
degree, to which this, impartiality is carried, is
8
Of ENGLAND. 44*
one of thofe things which, being impoflible in
other Countries, are pofilble under the Go-
vermenf of this Country. In the ancient Com-
monwealths, from the inftances that have been
introduced in a former place, and .from others
that might be quoted, it is evident that no re-
drefs was to be obtained for the acts of injuftice
or oppreffion committed by the Men poffefled
of influence or wealth upon the inferior Ci-
tizens. In the Monarchies of Europe, in for-
mer times, abuies of a like kind prevailed to z
moft enormous degree. In our days, notwith-
standing the great degrees of ftrength acquired
by the different Governments, it is matter of the
utmoftdifficulty for fubjedts of the inferior clafies
to obtain the remedies of the law againft certain
individuals : in fome Countries it is impollible,
let the abufe be ever fo flagrant ; an open at-
tempt to puriue fuch remedies being more-
over attended with danger. Even in thofe
Monarchies of Europe in which the Govern-
ment is fupported both by real ftrength, and
by civil Inftitutions of a very advantageous na-
ture, great differences prevail between indivi-
duals in regard to the facility of obtaining the
remedies of the law ; and to feek for redrefs is
at bed in many cafes, fo arduous and precarious
an attempt as to take from injured individuals
44* THE CO'NSITITUTON
all thoughts of encountering the difficulty.
Nor are thefe abufes we mention, in the former
or prefent Governments of Europe, to be attri-
buted Only to the want of refolution in the
Heads of thefe Governments. In fome Coun-
tries, the Sovereign by an open dcfign to fup-
prefs thefe abufes, would have endangered at
once his whole authority; and in others, he
would find obftructions multiply fo in his way
as to compel him, and perhaps foon enough
too, to drop the undertaking. How can a Mo-
narch make, alone, a perfevering Hand againft
the avowed expectations of all the great Men by
whom he is furrounded, and againft the loud
claims of powerful claffes of individuals ? In a
Commonwealth, what is the Senate to do when
they find that their refufmg to protect a power-
ful offender of their own clafs, or to indulge
fome great Citizen with the impunity of his
friends, is likely to be productive of ferious di-
vifions among themfelves, or perhaps of difturb-
ances among the People ?
If we caft our eyes on the ftrid: and uni-
verfal impartiality with which juflice is admi-
niftered in England, we fhall foon become con-
vinced that fome inward effential difference
. exifts between the Englim Government, and
thofe of other Countries, and that its power i
OF ENGLAND. 443
founded on caufes of a diflincl: nature. Indivi-r
duals of the moil exalted rank do not entertain
fo much as the thought to raife. the fm.alleft
direct oppofition to the operation of the law.
The complaint of the mean.eft Subject, if. pre-
ferred and, fupported in the ufual way, imme-
diately meets with a ferious regard. The Op-
preflbr of the moil extenfive influence, though.
in the midit-ef a train of retainers, nay, though
in the ful left flight of his career and pride* and
furrounded by thoufands of applauders and par-
tifans, is flopped fhort at the fight of the legal
paper, which is delivered into his hands, and a
TipfhuT is fuihcient to bring him away, and
produce him before the Bench.
Such is the greatnefs and uninterrupted pre-
valence of the law (a), fuch is in fhort the con-
tinuity of omnipotence, of refifllefs fuperi-
ority, it exhibits that the extent of its effecls at
length ceafes to be a fubjedt of obfervation to
the Public.
Nor are great or wealthy Men to feek for re-
drefs or fatisfa&ion of any kind, by any other
means than fuch as are open to all : even the
Sovereign has bound himfelf to refort to no
other : and experience has fliewn that he may
without danger, trufl the prote&ion of his per-
(a) Lex magna eft Cff pravalebit.
444 THE CONSTITUTION
Ton, and of the places of his refidence, to the
flow and litigious affiflance of the law (a).
Another very great advantage attending this
remarkable liability of the Engl ifh Government
we are defcribing, is, that the fame is operated
without the affiftance of an armed {landing
force : the conftant expedient this, of all other
Governments. On this occafion I ihall intro-
duce a paffage of Doctor Adam Smith (), in a
Work published fince the prefent Chapter was
firft written, in which pafTage an opinion cer-
tainly erroneous is contained : the miftakes of
perfons of his very great abilities deferve at-
tention. This Gentleman, flruck with the ne-
ceffity of a fufficient power of re-action, of a
fufficient ftrength, on the fide of Government,
to refift the agitations attending on liberty, has
looked round, and judged the Engliih Govern-
ment derived the lingular {lability it manifefts
from the {landing force it has at its difpofal:
the following are his exprefiions. " To a Sove-
** reign who feels himfelf fupported, not only by
(a) I remember, during the time after my firft coming
to this Country, I took notice of the boards fet up from
place to place behind the inclofure of Richmond park.
" Whoever trefpaffes upon this ground will be profecuttd"
* {b) An Inquiry into 4iM Nature and Caufes of the Wealth of
Ncrious. Book V. Chap, I. vol. 1 1,. p. 313, 314.
OF ENGLAND. 445
** the natural Ariftrocracy of the Country, but
" by a well regulated {landing army, the rudeft,
" the mofl: groundlefs, and the moft licentious
" remonflrances can give little disturbance.
" He can fafely pardon or negledt them, and
" his confcioufnefs of his fuperiority naturally
' difpofes him to do ib. That degree of liberty
" which approaches to licentioufnefs, can be tolerated
ft only in Countries where the Sovereign is fecured by
" a well regulated Jianding army (a)"
The above portions are grounded on the
notion that an army places in the hand of the
Sovereign an united irrefiftible flrength, a
(trength liable to no accident, difficulties, or
exceptions; a fuppofition this, which is not
conformable to experience. If a Sovereign was
endued with a kind of extraordinary power at-
tending on his perfon, at once to lay Under wa-
ter whole legions of infurgents, or to repulfe
and fweep them away by flames and mocks of
the electrical fluid, then indeed he might ufc
the great forbearance above defcribed : though
it is not perhaps very likely he would put up
{a) The Author's defign in the whole paflage, is to
ihew that Handing armies, under proper reftrittions, can-
not be huitful to public liberty; and may in fome cafes be
ufeful to it, by freeing the Sovereign from any trouble-
fome je:!oufy in regard to this liberty.
446 THE CONSTITUTION
with the rude and groun&lefi remonftrances of his
iubjects, and with their licentious freedom, yet$
he might, with fafety, do or not do fo, at his
own choice. But an army is not that fimpk
weapon which is here fuppofed. It is formed
of Officers and Soldiers who feel the fame paf-
fions with the reft of the people, the fame dif-
pofition to promote their own intereft and im-
portance, when they find out their firength,
and proper opportunities oiTer. What will
therefore be the refource of the Sovereign, if, in-
to that army on the affiftance of which he relies,
the fame party fpirit creeps by which his other
Subjects are actuated ? whereto will he take his
'refuge, if the fame political caprices, abetted by
the ierious ambition of a few leading Men, the
fame reftlelihefs, and at laft perhaps the fame
difafTettion, begin to pervade the fmaller king-
dom of the army, by which the main Iffingdcm
or Nation are agitated ?
The prevention of dangers like thofe jufl
mentioned, conftitutes the moft effential part of
the precautions and Hate craft of Rulers, in
thofe Governments which are fecured by ftand-^
ing armed forces. Mixing the troops formed
of natives with foreign auxiliaries, difperfmg
them in numerous bodies over the country, and'
continually fhifting their quarters, are among
OF ENGLAND. 447
the methods that are ufed; which it does
not belong to our fubjed: to enumerate, an/
more than the extraordinary expedients em-
ployed by the Eaftern Monarchs for the fame
purpofes. But one caution very effcntial to
be mentioned here, and which the Govern-
ments we allude to, never fail to take before
every other, is to retrench from their unarmed
Subjects, a freedom which, tranfmitted to the
Soldiery, would be attended with fo fatal con-
fequences : hindering fo bad examples from be-
ing communicated to thole in whole hands their
power and life are trufted, is what every notion
of felf-prefervation fuggefts to them: every
weapon is accordingly exerted to fupprefs the
riling and fpreading of fo awful a contagion.
In general, it may be laid down as a maxim,
that, where the Sovereign looks to his army
for the fecurity of his perfon and authority, the
fame military laws by which this army is kept
together, mud be extended over the whole
Nation: not in regard to military duties and
exercifes ; but certainly in regard to all that
relates to the refpedt due to the Sovereign and
to his orders. The martial law, concerning
thefe tender points, muft be univerfal. The
jealous regulations concerning mutiny and con-
tempt of orders, cannot be feverely enforced on
448 THE CONSTITUTION
that part of the Nation which fecures the fub-
jection of the reft, and enforced too through the
whole fcale of military fubordination, from
the Soldier to the Officer, up to the very Head
of the military Syftem, while the more nu-
merous and inferior part of the People are left
t> enjoy an unreftrained freedom : that fecret
difpofition which prompts Mankind to refill
and counteract their Superiors, cannot be fur-
rounded by fuch formidable checks on the one
'fide, and be left to be indulged to a degree of
licentioufnefs and wantonnefs, on the other.
In a Country where an army is kept, capable
of commanding the obedience of the Nation,
this army will, both imitate for themfelves the
licentioufnefs above mentioned, and check it in
the People. Every Officer and Soldier, in fuck
a Country, claim a fuperiority in regard to other
individuals ; and in proportion as their affiftance
is relied upon by the Government, expect a
greater or lei's degree of fubmimon from the
reft of the People (tf).
(a) In the beginning cf the pafTage which is here ex-
amined, the Author fays, " Where the Sovereign is him-
" (elf the Genera:, and the principal Nobdity and Gentry
" of the Country, the chief GfHcers of the array, wher
the military force is placed under the command of
thofc who have the greuteii interelt in the fupport of
OF ENGLAND, 449
The fame Author concludes his above quot-
ed obfervations concerning the fecurity of the
" the civil authority, becaufe they have the greater!: fhare
' ! of that authority, a Handing army can never be dan-
" gerous to liberty. On the contrary, it may in fome
" cafes be favourable to liberty, &c. &c."- In a Coun-
try fo circumftanced, a {landing army can never be dan-
gerous to liberty : no, not the liberty Of thofe principal
Nobility and Gentry, efpecially if they have wit enough
to form combinations among themfelves againft the Sove-
reign. Such an union as is here mentioned, of the civil
and military powers, in the Ariftocratical body of the Na-
tion, leaves both the Sovereign and the People without re-
foiirce. If the former Kings of Scotland had imagined
to adopt the expedient of a Handing army, and had trufted
this army thus defrayed by them, to thofe Noblemen and
Gentlemen who had rendered themfelves hereditary Ad-
mirals, hereditary High Stewarts, hereditary High Confta-
bles, hereditary Great Chamberlains, hereditary Judices
General, hereditary Sheriffs of Counties, &c. they would
have but badly mended the diforders under which the
Government of their Country laboured : they would only
have fupplied thefe Nobles with frefh weapons againft
each other, againft the Sovereign, and againft the People.
If thofe Members of the Britifh Parliament who Come-
times make the whole Nation refound with the clamour
of their diffenfions, had an army under their command
which they migiit engage in the ttippoit of their preten-
tions, the red: of the People would not be che better for it.
Happily the fwords are feenred, and force is removed
from their Debates.
The Author we are quoting, has deemed a Government
Jo be a ampler machine, and an army a fimpler inftru-
G g
4$o THE CONSTITUTION
power of an armed Sovereign, by immediately
adding : " It is in fuch Countries only that it
" is unnecefiary that the Sovereign mould be
" trufted with any difcretionary power for
" fuppreffing even the wanton nefs of this li-
" centious liberty." The idea here expreffed ,
coinciding with thofe already difcuffed, I fhall
fay nothing farther on the fubjedt. My reafort
for introducing the above exprelTions, has been,
that they lead me to take notice of a remark-
able circumftance in the Englifh Government,
From the expreffion, it is unnecejfary the Sovereign
ftould he trufted with any difcretionary power, the '
Author appears to think that a Sovereign at the
head of an army, and whofe power is fecured
by this army, ufes to wait to fct himfelf in mo-
tion, till he has received leave for that purpofe,
that is, till he has been trufted with a power
for fo doing. This notion in the Author we
quote, is borrowed from the Heady and tho-
roughly legal Government of this Country ;
but the like law doctrine, or principle, obtains
under no other Government. In all Monarchies,
ment, than they in reality are. Like many other per-
form of great abilities, while ftruck with a certain pecu-
liar confederation, he has overlooked others no lefs impor-
tant.
OF ENGLAND. 451
(and it is the fame in Republics) the Exe-
cutive power in the State is fuppofed to pof-
fefs, originally and by itfelf, all manner of law-
ful authority : every one of its exertions is
deemed to be legal ; and they do not ceafe to be
fo, till they are flopped by fome exprefs and po-
fitive regulation. The Sovereign, and alfo the
civil Magiftrate, till fo flopped by fome poiitive
law, may come upon the Subject when they
choofe; they may queftion any of his actions 5
they may conftrue them into unlawful acts; and
inflict a penalty, as they pleafe : in thefe refpects
they may be thought to abufe, but not to ex-
ceed, their power. The authority of the Go-
vernment, in fhort, is fuppofed to be unlimited
fo far as there are no vifible boundaries fet up
againft it : behind and within thefe boundaries,
lies whatever degree of liberty the Subject may
poffefs.
In England, the very reverfe obtains. It is
not the authority of the Government, it is the
liberty of the Subject, which is fuppofed to be
unbounded. All the Individual's actions are
fuppofed to be lawful, till that law is pointed
out which makes them to be otherwife. The
onus probandi is here transferred from the Subject
to the Prince. The Subject is not at any time
to mew the grounds of his conduct. When the
Gg 2
452 THE CONSTITUTION
Sovereign or Magiftrate think proper to exert
themfelves, it is their bufinefs to find out and
produce the law in their own favour, and the
prohibition againft the Subject (#).
(a) I fhal! take the liberty to mention another fact re-
fpe&ing myfelf, as it may ferve to elucidate the above ob-
servations ; or at leafl my maimer of expreiTing them. I
remember when I was beginning to pay attention to the
operations of the Englim Government, I was under a pre-
poifemon of quite a contrary nature to that of the Gentle-
man whofe opinions have been above difcuffed : I ufed
to take it for granted that every article of liberty the
Subject enjoys in this Country, was grounded upon feme
pofithe la*- by which this liberty was infured to him.
In regard to the freedom of the prefs I had no doubt but
it was fo, and that there exifted lbme particular law, or
rather feries of laws or legiflative paragraphs, by which
this freedom was defined and carefully fecured : and as
the liberty of writing happened at that time to be carried
very far, and to excite a great deal of attention (the noife
about the Middlefex election had not yet fubftded), I par-
ticularly vv liked to fee thofe laws I fuppofed, not doubting
but there muft be fomething remarkable in the wording of
them. i looked into thofe law books I had opportu-
nities to come at, fuch as Jacob's and Cunningham's
Law Diclicnaries, Wood's hjlitates, and Judge Elack-
iione's Commentaries. I alio found means to have a fight
of Comyn's D:gcfi cf the Lav:: of England, and I was
again difappointed: this Author, though this Work confifts
of five folio Volumes, had not had, any more than the
Authors juit mentioned, any room to fpare for the interefi-
inpr law I was in fearch of. At length it occurred to
mc, though not immediately, that this Liberty of the
OF ENGLAND. 453
This kind of law principle, owing to the ge-
neral fpirit by which all parts of the Govern-
ment are influenced, is even carried fo far, that
any quibble, or trifling circumftance, by which
an Offender may be enabled to flep afide and
efcape, though ever fo narrowly, the reach of
the law, are fufficient to fcreen him from pu-
nifhment, let the immorality or intrinfic guilt
of his conduct be ever fo openly admitted (a).
Such a narrow circumfcription of the exer-
tions of the Government, is very extraordinary :
it does not exift in any Country but this ; nor
prefs was grounded upon its not being prohibited, that
this want of prohibition was the fole, and at the fame time
folid, foundation of it. This led me, when I afterwards
thought of writing fomething upon the Government of
this Country, to give the definition of the freedom of the
prefs which is contained in p. 296, 297 : adding to it the
important confideration of all actions refpecling publica-
tions being to be decided by a jury.
(a) A number of inilances, fome even of a ludicrous
kind, might be quoted in fupport of the above objerva-
tion, Even only a trifling flaw in the words of an Indict-
ment, is enough to make it void. The reader is alfo re-
ferred to the fact mentioned in the note, p. 18c, and to
that in p. 317, 318, of this Work.
I do not remember the name of that party Writer who,
having publifhed a cieaibnable writing in regard to which
he efcaped punilhrnen:, ufed afterwards to anfwer to his
friends, when they reproached him with his rafhnefs, /
hnsiv I was writing within an inch of the gallows. The law
G g 3
454 THE CONSTITUTION
could it. The (ituation of other Governments
is fuch that they cannot thus allow themfelves
to be ihut out of the unbounded fpace unoccu-
pied by any law, in order to have their motions
confined to that fpot which exprefs and prevU
oufly declared provifions have chalked out.
The power of thefe Governments being con-
ftantly attended with more or lefs precarioufnefs,
there muft be a degree of difcretion anfwerable
to it 0),
The foundation of that law principle, or
dodtrine,. which confines the exertion of the
power of the Government to fuch cafes only as
are exprcffed by a law in being, was laid when
the Great Charter was paffed : this reftricYion
was implied in one of thofe general impartial
articles which the Barons united with the
People to obtain from the Sovereign. The
Crown, at that time, derived from its foreign
being both afcertained and fuiclly adhered to, he had been
enabled to bring his words and portions i"o nicely within
compafs.
(a) It might perhaps alfo be proved, that the great leni-
ty ufed in England in the adminiftration of criminal juf-
tice, both in regard to the mildnefs, and to the frequent
remitting, of punifhments, is effentially connected with
the fame circumftance of the Jlability of the Government.
Experience fnews that it is neediefs to ufe any great degree
of harftinefs and feverity in regard to Offenders; and the
Supreme governing authority is under no neceflity of fhew-
OF ENGLAND. 455
:dominions, that {lability and inward flrength
in regard to the Engliih Nation, which is now
in a fecret hidden manner annexed to the Civil
branch of its Office, and which, though operat-
ing by different means, continues to maintain
that kind of confederacy againft it, and union
between the different Orders of the People.
By the article in Magna Chart a here alluded to,
the Sovereign bound itfelf neither to go, nor
fend 9 upon the Subject, otherwife than by the
Trial of Peers, and the Law of the land (a).
This article was however afterwards difre-
garded in practice, in confequence of the law-
ful efficiency which the King claimed for his
Proclamations, and efpecially by the inftitutiori
of the Court of Star Chamber, which grounded
its proceedings not only upon thefe Proclama-
tions, but alfo upon the particular rules it chofe
to frame within itfelf. By the abolition of this
Court (and alfo of the Court of High Com-
mimon) in the reign of Charles the Firft, the
above provifion of the Great Charter was put
In actual force; and it has appeared by the
sng the fubordinate Magiftracies any bad example in that
refpett.
(a) .... Nee fuper turn ibimus, nee fuper eum mittimus,
tiifi per legale judicium pari urn <vel per legem terra. Cap.
XXIX,
Gg 4
456 THE CONSTITUTION
event, that the very extraordinary reftriction
upon the governing authority we are alluding
to, and its execution, are no more than what the
intrinfic fituation of things, and the flrength of
the Conftitution, can bear (<z).
The law doctrine we have above defcribed,
and its being ftrictly regarded by the High
governing authority, I take to be the moft
characterise circumftance in the Englim Go-
vernment, and the moft pointed proof that can
be given of the true freedom which is the con-
fequence of its frame. The practice of the
Executive authority thus to fquare its motions
upon fuch laws, and fuch only, as are afcer-
tained and declared beforehand, cannot be the
refult of that kind of liability which the Crown
(a) The Court of Star Chamber was like z Court of
Equity in regard to criminal matters ; it took upon itfelf
to decide upon thofe cafes of offence upon which the ufual
Courts of Law, when uninfluenced by the Crown, refufed
to decide, cither on account of the filence of the laws in
being, or of the particular rules they had eftablifhed within
themfelves ; which is exactly the office of the Court of
Chancery (and ot the Exchequer) in regard to matters of
property. ( c ee back, p. i^S.) The great ufefulnefs of
Courts of this kind, has caufed the Courts of Equity in
regard to civil matters, to be fupported and continued;
but experience has fhewn, as is above obferved, that no
effential inconvenience can arife from the Subject being in-
dulged with the very great freedom he has acquired by the
total abolition of all arbitrary or provisional Courts in re-
pard to criminal matters.
O F E N G L A N D. 457
might derive from being fupported by an
armed force, or as the above mentioned Author
has exprelfed it, from the Sovereign being the
General of an army : fuch a rule of acting is
even contradictory to the office of a General :
the operations of a General eminently depend
for their fuccefs, on their being fudden, unfore-
feen, attended by furprize.
In general, that ftability of the power of the
Englifh Crown we have defcribed, cannot
be the remit of that kind of ftrength
which ariics from an armed force : the
kind of ftrength which is conferred by fuch
a weapon as an army, is too uncertain, too com-
plicate, too liable to accidents : in a word, it
falls infinitely Ihort of that degree of fteadinefs
which is neceffary to counterbalance, and at laft
quiet, thofe extenfive agitations in the People
which fornetimes feem to threaten the deftruc-
tion of order and Government. An army, if
its fupport be well directed, may be ufeful to
prevent this reftleiThefs in the People from be-
ginning to exift ; but it cannot keep it within
bounds, when it has once taken place.
If from general are;uments and confidera-
CD CD
tions, we pafs to particular fad:s, we {hall
actually find that the Crown, in England, does
6
45 8 THE CONSTITUTION
not rely for its fupport, nor ever has reliedj,
upon the army of which it has the command.
From the earlieft times, that is, long before the
invention of (landing armies among European
Princes, the Kings of England porTefTed an au-
thority certainly as full and extenfive as that
which they do now enjoy. After the weight
they derived from their poflefiions beyond fea
had been loft, a certain arrangement of things
began to be formed at home, which fupplied
them with a ftrength of another kind, though
not lefs folid : and they began to derive from
the Civil branch of their regal Office that fe-
cure power which no other Monarchs had ever
pofTeffed, except through the affiftance of Le-
gions and Prsetorian guards, or of armies of
JanhTaries, or of Strelitzes.
The Princes of the houfe of Tudor, to fpeak
of a very remarkable period in the Englifh
Hiftory, though they had no other vifible pre-
fent force than inconfiderable retinues of fer-
vants, were able to exert a power equal to that
of the moft abfolute Monarchs who ever di4
reign, equal to that of the Domitians or Com-
modufes, or of the Amuraths or Bajazets :
nay, it even was fuperior, if we confider the
fiow fteadinefs and outward ihow of legality
with which it was attended throughout.
o
OF ENGLAND.
459
The ftand which the Kings of the Houfe of
Stuart were able to make, though unarmed,
and only fupported by the civil authority of
their Office, during a long courfe of years,
againft the reitlefs fpirit which began to actu-
ate the Nation, and the vehement political and
religious notions that broke out in their time,
is ftill more remarkable than even the exorbi-
tant power of the Princes of the Houfe of
Tudor, during whofe reign prepoiTefiions of
quite a contrary nature were univerfal.
The Struggle opened with the reign of James
the Firft ; yet, he peaceably weathered the be-
ginning ftorm, and tranfmitted his authority
undiminished to his fon. Charles the Firft was
indeed at laft crufhed under the ruins of the
Constitution : but if we conlider that, after
making the important national conceffions con-
tained in the Petition of Right, he was able, Single
and unarmed, to maintain his ground without
lofs or real danger during a fpace of eleven years,
that is, till the year 1640 and thofe that fol-
lowed, we fhall be inclined to think that, had
he been better advifed, he might have avoided
the misfortunes that bcfel him at length.
Even the events of the reign of James the
Second afford a proof of that folidity which is
7
460 THE CONSTITUTION
annexed to the authority of the Englifh Crown.
Notwithstanding the whole Nation, not except-
ing the army, were in a manner unanimous
againft him, he was able to reign full four
years, ftanding fingle againft all, without
meeting with any open refiftance. Nor was
fuch juftifiable and neceffary refiftance eafily
brought about at length (a). Though it is not
to be doubted that the dethroning of James the
Second would have been effected in the iiTue,
and perhaps in a very tragical manner, yet, if
it had not been for the affiftance of the Prince
of Orange, the event would certainly have been
poftponed till a few years later. That autho-
rity on which James relied with fo much con-
fa) Mr; Hume is rather too anxious in his wifh to ex-
culpate James the Second. He begins the conclufive cha-
racter he gives of him, with repreienting him as a Prince
Kvbo/fi tve may fafely pronounce more unfortunate than criminal.
If we confider the folemn engagements entered into, not
by his predecefTors only, but by himfelf, which this Prince
endeavoured to break, how cool and deliberate his attack
on the liberties and religion of the People was, how un-
provoked the attempt, and in fhort how totally destitute
he was of any plea of i'elf- defence or neceffity, a plea to
which moil of the Princes who have been at variance with
their Subjects had fome fort of more 01 lefs diftant claim,
ive (hall look upon him as being perhaps the guiltieft Mo-
narch that ever exifted.
OF ENGLAND. 461
iidence, was not annihilated at the time it was,
otherwife then by a ready and confiderable
armed force being brought againft it from the
other fide of the Sea, like a folid Fortrefs, which,
though without any vifible out-works, requires,
in order to be compelled to furrender, to be
battered with cannon.
If we look into the manner in which this
Country has been governed fince the Revolu-
tion, we mall evidently fee that it has not been
by means of the army the Crown has under its
command, that it has been able to preferve and
exert its authority. It is not by means of their
Soldiers that the Kings of Great Britain pre-
vent the manner in which elections are carried
on, from being hurtful to them ; for, thefe Sol-
diers muft move from the places of election one
day before fuch elections are begun, and not re-
turn till one day after they are finifhed. It
is not by means of their military force that
they prevent the feveral kinds of civil Magi-
ftracics in the Kingdom from invading and lef-
fening their prerogative; for this military force
is not to act till called for by thefe latter, and
under their direction. It is not by means of.
their army that they lead the two Branches of
theLegiflature into that refpect of their regal au-
thority we have before defcribed ; fmce each
462 THE CONSTITUTION
of thefe two Branches, feverally, is pofTeffed with
an annual power of difbanding this army (#).
There is another circum fiance, which, ab-
ftractedly of all others, makes it evident that the
executive authority of the Crown is not fupport-
ed by the army : I mean the very lingular fub-
je&ion 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 fupported by the army, the mU
litary profeffion, who, in regard to the other
profeftions, have on their fide the advantage of
prefent force, being now moreover counte-
nanced by the law, immediately acquire, or ra-
ther alTume, a general afcendency ; and the
Sovereign, far from wifhing to difcourage their
claims, feels an inward happinefs in feeing
that inftrument on which he refts his authority,
additionally ftrengthened by the refpedt of the
{a) The generality of the People have from early times
been fo little accuitomed to fee any difpiay of force ufed to
influence the debates cf the Parliament, that the attempt
made by Charles the Firft to feize the fi<ve Members, at-
tended by a retinue of about two hundred Servants, was
the a&oal {park that iet in a blaze the heap of combufti-
bles which the preceding contefts had accumulated. Th
Parliament, from that fact, took a pretence to make mili-
tary preparations in their turn ; and then the civil war
began.
OF ENGLAND. 463
People, and receiving a kind of legal fanction
from the general outward confent.
And not only the military profeffion at large,
but the individuals belonging to it, alfo claim
perfonally a'pre-eminence : chief Commanders,
Officers, Soldiers or Janiffaries, all claim in
their own fpheres, fome fort of exclufive privi-
lege : and thefe privileges, whether of an hono-
rific, or of a more fubftantial kind, are violent-
ly aflerted, and rendered grievous to the reft of
the Community, in proportion as the afiiftance
of the military force is more evidently necefifary
to, and more frequently employed bv, the Go-
vernment. Thefe things cannot be other-
wife.
Now, if we look into the facts that take place
in England, we fhall find that a quite different
order prevails from what is above defcribed.
All Courts of a military kind are under a cori-
ftant fubordination to the ordinary Courts of
Law. Officers who have abufed their private
power, though only in regard to their own Sol-
diers, may be called to account before a Court
of Common Law, and compelled to make pro-
per fatisfadtion. Even any flagrant abuie of
authority committed by Members of Courfs
Martial, when fitting to judge their cva
people, and determine upon cafes of a bare mi-
464 THE CONSTITUTION
litary kind, makes them liable to the animacU
verfion of the civil judge (#).
(a) A great number of inftances might be produced to
prove the above mentioned fubjeclion of the Civil to the
Military power. I fhall introduce one which is particularly-
remarkable : [ meet with it in the periodical publications
of the year 1746.
A Lieutenant of Marines, whofe name was Frye, had
been charged, while in the Weft Indies, with contempt of
orders, for having refufed, when ordered by the Captain
to afiift another Lieutenant in carrying another Officer pri<
foner on board the Ship : the two Lieutenants wanted to
have the Captain give the order in writing. For this Lieu-
tenant Frye was tried at Jamaica by a Court Martial, and
fentenced to fifteen years imprifonment, befides being de-
clared incapable, of ferving the King. He was brought
home ; and his cafe, after being laid before the Privy
Council, appearing in a juftinable light, he was releafed.
Seme time after he brought an afvion againft Sir Chaloner
Ogle, who had fat as Prefident to the above Court Martial,
and had a verdict in his favour for one thonfand pounds
damages (it was alfo proved that he had been kept four-
teen months in the moft fevere confinement before he was
brought to his Trial.) The Judge moreover informed him
that he was at liberty to bring his action againft any of
the Members of the faid Court Martial he could meet with.
The following part of the affair is ftill more remarkable.
Upon application made by Lieutenant Frye, Sir John
Willes, Lord Chief Juftice of the Common Pleas, ifi'ued
his Writ againft Admiral Mayne, and Captain Renione, two
of the perfons who had fat in the above Court Martial, who
happened to be at that time in England, and were Mem-
bers of the Court Martial that was then fitting at Dept~
O F E N G L A N D, 465
To the above facts concerning the pre-emi-
nence of the Civil over the Military Power at
large, it is needlefs to add that all offences corn-
ford, to determine on the affair between Admirals Mathews
and Leflock, of which Admiral Mayne was moreover Pre*
fident ; and they were arretted immediately after the break-
ing up of the Court. The other Members refented highly
what they thought the infult : they met twice on the fub-
jeft ; and came to certain Refolution: , which the Judge Ad-
vocate was directed to deliver to the Board of Admiralty, in
order to their being laid before the King. In thefe refolu-
tions they demanded " fatisfa&ion for the high infult on
" their Prefident, from all perfons, how high foever
*' in office, who have fet on foot this arrelt, or in any
" degree advifed or promoted it :" moreover complaining,
that, by the faid arreft, " the order, difcipline, and go-
" venment of his Majefty's armies by Sea was diilolved,
*' and the Statute 13 Car. II. made null and void."
The altercations on that account lafted fome months.
At length the Court Martial thought it neceffary to fub-
mit ; and they fent to Lord Chief Juflice Willes, a letter*
figned by the feventeen Officers, Admirals and Comman-
ders, who compofed it, in which they acknowledged that
* the refolutions of the 16 and 21 May were unjujl and un~
* ' warrantable, and do ajk pardon of his Lordjhip, and the
' whole Court of Common Pleas, for the indignity offered- te
* him and the Court,"
This letter Judge Willes read in the open Court, and di
reeled the fame to be regiftered in the Remembrance Of-
fice, " as a memorial to the prefent and future ages, that
whoever fet themfelves above the Law, will, in the end,
'' fad themfelves mif alien." The letter from the Court
Martial together with Judge Willes 1 ! acceptation, were in-
fersed in the next Gazette, 15th November 1746,
H h
4.66 THE CONSTITUTION
mitted by perfons of the military profeffion, in
regard to individuals belonging to the other
dalles of the People, are to be determined upon
by the Civil Judge. Any uie they may make
of their force, unlefs exprefly applied to, and
directed, by the Civil Magistrate, let the occa-
sion be what it may, makes them liable to be
convicted of murder for any life that may have
been loft. Pleading the duties or customs of
their profeffion in extenuation of any offence,
is a plea which the Judge will not fo much as
understand. Whenever claimed by the Civil
power, they muft be delivered up immediately.
Nor can it, in general, be laid, that the coun-
tenance fhewn to the military profeffion by
the Ruling power in the State, has constant-
ly been fuch as to inipire the bulk of the People
with a difpofition tamely to bear their acts of
oppreffion, or to raife in Magistrates and
Juries any degree of pre-posTeffion fufficicnt to
lead them always to determine with partiality
in their favour (#).
(a) The Reader may Tee in the publications of the year
1770, the clamour that was railed on account of a Genera]
in the army ;Gea. Ganfell) having availed himfelf of the
vicinity of his Soldiers to prevent certain Sheriff's Officers
from executing an arreif upon his perfon, at Whitehall.
It however appeared that the General had done nothing
more than put forth a few of his Men in order to perplex
OF ENGLAND. 467
The fubjedtion of the Military to the Civil
power, carried to that extent it is in England,
is another characteristic and diftinctive circum-
ftance in the Englifh Government.
It is fuiUciently evident that a King does not
look to his army for his fupport, who takes fo
little pains to bribe and unite it to his in-
tereft.
In general, if we confider all the different
circumftances in the Englifh Government, we
fhall find that the army cannot poffibly procure
to the Soverign any permanent ftrength, any
ftrength. upon which he can rely, and from it
expect the fuccefs of any future and diftant
meafures.
The public notoriety of the Debates in Par-
liament, induces ail individuals, Soldiers as
well as others, to pay ibme attention to poli-
tical Subjects : and the liberty of fpeakino-,
printing, and intriguing, being extended to
every order of the Nation by whom they are
furrounded makes them liable to imbibe every
and aftonifh the Sheriff 1 i Officers; and in the mean time
he took an opportunity for himfelf to flip cut of the way.
The violent clamour we mention was no doubt owino- to
the party fruit of the time ; bur it neverthelefs fhew3
what the notions of the bulk of the People were on the
(ubject.
H h 2
468 THE CONSTITUTION
notion that may be directly contrary to the views
of that Power which keeps them.
The cafe would be flill worfe if the Sove-
reign was engaged in a contefl with a very nu-
merous part of the Nation. The general con-
cern would increafe in proportion to the vehe-
mence of the Parliamentary Debates : Indivi-
duals, in all the different claffes of the Public,
would try their eloquence on the fame fubjects ;
and this eloquence would be in great meafure
exerted, during fuch interefting times, in mak-
ing converts of the Soldiery : thefe evils the
Sovereign could not obviate, nor even know,
till it fnould be in every refpedfc too late. A
Prince engaged in the contefl we fuppofe, would
fcarcely have completed his fir ft preparations,
his project would fcarcely be half ripe for
execution, before his army would be taken
from him. And the more powerful this army
might be, the more adequate, feemingly, from
its numbers, to the tafk it is intended for, the
more open it would be to the danger we men-
tion.
Of this, James the Second made a very re-
markable experiment. He had augmented his
army to the number of thirty thoufand. But
when the day finally came in which their fup-
port was to have been ufeful to him, fome defert-
cdto the enemy; others threw down their arms j
OF ENGLAND. 469
and thofe who contiuned to ftand together,
fhewed more inclination to be Spectators of,
than agents in, the conteft. In fhort, he gave
all over for loft, without making any manner of
trial of their affiftance (a),
(a) The army made loud rejoicings on the day of the
acquittal of the Bijhops, even in tha prefence of the King,
who had purpofecily repaired to Hounflow Heath on that
day. He had not been able to bring a fingle regimeut to
declare an approbation of his meafures in regard to the
Teft and penal Statutes. The celebrated ballad lero lero
Ullibulero, which is reported to have had fuch an influence
on the minds of the peop 1 ^ at that time, and of which
Bifhop Burnet fays, " never perhaps fo Jlight a thing had fo
" great an effect"'' originated in the army : " the whole army,
" and at laji People both in City and Country, tvere perpetually
" J*"g' n g *'"
To a King of England engaged in a project againft
public liberty, a numerous army, ready formed before
hand, mull, in the prefent fituation of things, prove a very
great impediment ; he cannot pufiibly give his attention to
the proper management of it : the lefs fo, as his meafures
for that purpofe mult often be contradictory to thofe he is
to purfue with the reft of the People.
If a King of England, wiihing to fet afide the prefent
Conftitution, and to aifimilate his power to that of the
other Sovereigns of Europe, was to do me the honour to
coniult me as to the means of obtaining fuccefs, I would
recommend to him, as his fir ft preparatory ftep, and before
his real project is even fufpefted, to difbind his army,
keeping only a ftrong guard, not exceeding twelve hundred
Men. This done, he might, by means of the weight and
advantages of his place, fet himfelf about undermining fuch
Hh 3
47 THE CONSTITUTION
From all the fads before introduced, it is
evident that the power of the Crown, in Eng-
land, bears upon foundations that are quite pe-
culiar to it, and that its lecurity and itrength
are obtained by means totally different from
thofe by which the fame advantages are lb in-
completely procured, and lb deeply payed for in
other Countries.
it is without the affiftance of an armed force
that the Crown, in England, is able to mani-
feft that fearlciiheis of particular individuals,
or whole dalles of them, with which it dif-
charges its le^al functions and duties. It is
without the affiilance ot an armed lorce, it is
conflitutional laws as he didlkes ; unrig as much temper
as he cm, that he may have the more rims to proceed.
And when at leng;h things fnculd be brought to a crifis,
then I would advife him to form another army, out of
thofe f iends or clafs of the People whom the turn and
incidents of the p:ececing conceits, will have linked and
rivetted to his interefl : with this army he might now take
hi* chance: the veil would depend on his generalfhip :
and even in a great meafure on his bare reputation in that
refpeff.
This advice to the King of England I fuppofe; I would,
however conclude With obferving to him, that his fituation
is as advantageous to the full, as that of any King upon
earth, ai d upon the whole, that all the advantages that
can pofiibly aiiie from the fuccefs of his plan, cannot make
jt worth his while to undertake it.
O F E N G L A N D. 471
able to counterbalance the exteniive and nnre-
llrained freedom of the People, it is able to ex-
ert that refilling ftrength which conftantly keeps
increasing in a fuperior proportion to the force
by which it is oppofed, that ballafting power
by which, in the midft of boifterous winds and
gales, it recovers and rights again the Veffel of
the State (V).
It is from the Civil branch of its Office, the
Crown derives that ftrength by which it fub-
dues even the Military power, and keeps it
in a ftate of fubjecYion to the Laws, unexampled
in any other Country. It is from an happy ar-
rangement of things it derives that uninter-
rupced fteadinefs, that invifible folidity, which
procures to the Subject both lb certain a pro-
tection, and fo extenfive a freedom. It is from
the Nation it receives the force with which it
(a) There is a number of circumflances in the Englifh
Government: which thofe perfons who w.fn for fpeculative
meliorations, fuch as Parliamentary reform, or other changes
of a like kind, do not perhaps think ot taking into con-
sideration, If fo, they are, in their proceedings, in danger
of meddling with a number of firings, the exigence of
which they do not lufpect. While they only mean refor-
mation and improvement, they are in danger of removing
the Talifman on which the exiftence of the Fabrick depends,
or, like King Nifus's daughter, of cutting off the fatal hair
with which the fate of the city is connected.
H h 4
472 THE CONSTITUTION
governs the Nation. Its refources are, accord.,
and not compulfion,- free action, and not fear,
and it continues to reign through the play, the
itruggle, of the voluntary paflions of thofe who
pay obedience to it (a).
CHAP. XVIII.
How far the examples of Nations who have loft their
liberty, are applicable to England.
EVERY Government, thofe Writers obferve
who have treated thefe fubjects, contain-
ing within itfelf the efficient caufe of its ruin,
a caufe which is efTentially connected with thofe
very circumstances that had produced its prof-
perity, the advantages attending the Englifh
Government cannot therefore, according to thefe
Writers, exempt it from that hidden defect
which is fecretly working its ruin ; and M. de
Montefquieu, giving his opinion both on the
effect and the caufe, fays, the Englifh
Conftitution will lofe its liberty, will perifh :
(a) Many perfons, fatisfied with feeing the elevation and
upper parts of a building, thir.k it immaterial to give a look
under ground, and notice the foundation. Thofe Readers
therefore v. ho choofe, may confider the long Chapter that
has juft been concluded, as a kind of foreign digreflion,
pr parenthefis, in the courfe of the Work,
OF ENGLAND. 473
f c Have not Rome, Lacedsmon, and Car-
" thage, perimed ? It will perifh when the
" Legiflative power mall have become more
" corrupt than the Executive."
Though I do by no means pretend that
any human eftablrfhment can efcape the fate
to which we fee every thing in Nature is fub-
jed:, nor am fo far prejudiced by the fenfe I
entertain of the great advantages of the Eng-
lifh Government, as to reckon amono- them
that of eternity ; I will however obferve in ge-
neral, that, as it differs by its ftructure and re-
fources from all thofe with which Hiftory
makes us acquainted, fo it cannot be faid to be
liable to the fame dangers. To judge of the
one from the other, is to judge by analogy
where no analogy is to be found ; and my re-
fpect for the author I have quoted will not
hinder me from faying, th2t his opinion has not
the fame weight with me on this occafion, that
it has on many others.
Having neglected, as indeed all fyflematic
Writers upon Politics have done, very at-
tentively to enquire into the real foundations
of Power, and of Government, among Man-
kind, the principles he lays down are not
always fo clear, or even fo juft, as we might
474 THE CONSTITUTION
have expedted from a Man of fo true a genius.
When he fpeaks of England, for infhnce, his
obfervations are much too general : and though
he had frequent opportunities of converting
with Men who had been perfonally concerned
in the public affairs of this Country, and he
had been himfelf an eye-witnefs of the opera-
tions of the Englifh Government, yet, when he
attempts to defcribe it, he rather tells us what he
conjectured than what he faw.
The examples he quotes, and the caufes of
diffolution which he aiTigns, particularly con-
firm this obfervation. The Government of
Rome, to fpeak of the one which, having gra-
dually, and as it were of itfelf, fallen to ruin,
may afford matter for exact reafoning, had no
relation to that of England. The Roman
People were nor, in the latter ages of the Com-
monwealth, a People of Citizens, but of Con-
querors. Rome was not a State, but the head
of a State. By the immenrky of its conquefis,
it came in time to be in a manner only an ac-
cefTory part of its own Empire. Its power be-
came fo great, that, after having conferred it, it
was at length no longer able to refume it : and
from that moment it became itfelf fubje<ftcd to
it, from the fame reafon that the Provinces them-
felves were fo. 5
OF ENGLAND. 475
The fall of Rome, therefore, was an event
peculiar to its fituation ; and the change of
manners which accelerated this fall, had alfo an
effect which it could not have had but in that
fame fituation. Men who had drawn to them-
felves all the riches of the World, could no lon-
ger content themfelves with the fupper of Fa-
bricius, and the cottage of Cicinnatus. The
People, who were matters of all the corn of
Sicily and Africa, were no longer obliged to
plunder their neighbours for their's. All poffi-
ble Enemies, befides, being exterminated,
Rome, whofe power was military, became to be
no longer an army ; and that was the asra of her
corruption ; if, indeed, we ought to give that
name to what was the inevitable coniequence
of the nature of things.
In a word, Rome was deftined to lofe her Li-
berty when Hie loft her Empire, and fhe was
deftined to lofe her Empire, whenever fhe
mould begin to enjoy it.
But England forms a Society founded upon
principles absolutely different. All liberty,
and power are not accumulated as it were
on one point, fo as to leave, every where
elfe, only flavery and mifery, confequently
only feeds of divifion and fecret animofity.
From the one end of the iftand to the other
476 T HE CONSTITUTION
the fame laws take place, and the fame intercfts
prevail : the whole Nation, befides, equally
concurs in the formation of the Government :
no part, therefore, has caufe to fear that the
other parts will fuddenly fupply the neceffary
forces to deftroy its liberty; and the whole have,
of courfe, no occafion for thofe ferocious kinds
of virtue which are indifpenfibly neceifary to
thofe who, from the fituation in which they have
brought themfelves, are continually expofed to
fuch dangers, and after having invaded every
thing, mufl abilain from every thing.
The fituation of the People of England,
therefore, effentially differs from that of the
People of Rome. The form of the Englifh
Government does not differ lefs from that of the
Roman Republic : and the great advantages it
has over the latter for preferving the liberty of
the People from ruin, have been defcribed at
length in the courfe of this Work.
Thus, for inftance, the total ruin of the Ro-
man Republic was principally brought about
by the exorbitant power to which feveral of its
Citizens were fucceffively enabled to rife. In
the latter age of the Commonwealth, thofe Ci-
tizens went lb far as to divide among them-
felves the dominions of the Republic, in much
the fame manner as they might have done lands
O F E N G L A N D. 477
of their own. And to them, others in a ftiort
time fucceeded, who not only did the fame,
but who even proceeded to that degree of ty-
rannical infolence, as to make ceffions to each
other, by exprefs and formal compacts, of the
lives of thoufands of their Fellow-citizens.
But the great and conftant authority and weight
of the Crown, in England, prevent, in their
yery beginning, as we have feen, all misfortunes
of this kind ; and the reader may recollect what
has been faid before on that fubjedh
At lad the ruin of the Republic, as every
one knows, was completed. One of thofe
powerful Citizens we mention, in procefs of
time found means to exterminate all his com-
petitors : he immediately affumed to himfelf
the whole power of the State ; and eftublifhed
for ever after an arbi'rary Monarchy. But
fuch a fudden and violent eftablifhment of a
Monarchical power, with all the fatal confe-
quences that would refult from fuch an event,
are calamities which cannot take place in Eng-
land ; that fame kind of power we fee, is already
in being ; it is afcertained by fixed laws,
and eftablifhed upon regular and well-known
foundations.
Nor is there any great danger that that
power may, by means of thofe legal prero-
47$ THE CONSTITUTION
gatives it already pofTefTes, fuddenly afTumc..
others, and at laft openly make itfelf abiblute.
The important privilege of granting to the
Crown its neceffary fupplies, we have before
obferved, is veiled in the Nation : and how ex-
tensive foever the prerogatives of a King of
England may be, it conftantly lies in the power
of his People either to grant, or deny him, the
means of exercifing them.
This right pofieffed by the People of Eng-
land, conftitutes the great difference between
them, and all the other Nations that live under
Monarchical Governments. It likewife gives
them a great advantage over fuch as are formed
into Republican States, and confers on them a
means of influencing the conduct of the Go-
vernment, not only more effectual, but alfo
(which is more in point to the fubjedt of this
Chapter) incomparably more lafling and fecure
than thofe referved to the People, in the States
we mention.
In thofe States, the political rights which
ufually fall to the fhare of the People, are
thofe of voting in general Aflemblies, either
when laws are to be enacted, or Magi Urates
to be elected. But as the advantages arifing
from thefe general rights of giving votes 2
OF ENGLAND. 479
are never very clearly afcertained by the gene-
rality of the People, fo neither are the confe-
quences attending particular forms or modes of
giving theie votes, generally and completely
underftood. They accordingly never enter-
tain any fttong and conftant preference for one
method rather than another ; and it hence al-
ways proves but too eafy a thing in Republican
States, either by infidious propofals made
at particular times to the People, or by well-
contrived precedents, or other means, firfi: to
reduce their political privileges to mere cere-
monies and forms, and at laft, entirely to abolifli
them.
Thus, in the Roman Republic, the mode
which was conflantly in uie for about one
hundred and fifty years, of dividing the Ci-
tizens into Centur'ue when they gave their
votes, reduced the right of the greater part
of them, during that time, to little more
than a fhadow. After the mode of dividing:
them by Tribes had been introduced by the
Tribunes, the bulk of the Citizens indeed
were not, when it was ufed, under fo great
a difadvantage as before ; but yet the great
privileges exercifed by the Magiftrates in ail
the public afiemblies, the power they ailumed
of moving the Citizens cut of one Tribe into
4 So THE CONSTITUTION
another, and a number of other circumftances,
continued to render the rights of the Citizens
more and more ineffectual ; and in fadl we do
not find that when thofe rights were at laft en-
tirely taken from them, they expreffed any
very great degree of difcontent.
In Sweden (the former Government of
which paitook much of the Republican form)
the right allotted to the People in the Govern-
ment, was that of fending Deputies to the
General States of the Kingdom, who were to
give their votes on the refolutions that were to
be taken in that Affembly. But the privilege
of the People of fending fuch Deputies was,
in the firft. place, greatly diminifhed by feveral
effential difadvantages under which thefe De-
puties were placed with refpecl to the body,
or Order, of the Nobles. The fame pri-
vilege of the People was farther leffened by
their Deputies being deprived of the right of
freely laying their different propofals before
the States, for their affent or diffent, and attri-
buting the exciufive right of framing fuch
propofals, to a private Affembly which was
called the Secret Committee. Again, the right
allowed to the Order of the Nobles, of having
a number of Members in this Secret Com-
mittee double to that of all the other Or-
OF ENGLAND. 4 3i
ders taken together, rendered the rights of
the People dill more ineffectual. At the laft
Revolution thofe rights we mention have been
in a manner taken from the People ; and they
do not feem to have made any great efforts to
preferve them (#).
But the fituation of affairs in England is to-
tally different from that which we have juft
defcribed. The political rights of the People
are infeparably connected with the right of
Property with a right which it is as difficult
to invalidate by artifice, as it is dangerous to at-
tack it by force, and which we fee that the
mod arbitrary Kings, in the full career of
their power, have never offered to violate with-
out the greateft precautions. A King of Eng-
land who would enflave his People, muft be-
gin with doing, for his firft act, what all other
Kings referve for the laft; and he cannot at-
tempt to deprive his Subjects of their political
privileges, without declaring war againft the
whole Nation at the fame time, and attacking
(a) I might have produced examples of a number of
Republican States in which the People have been brought,
at one time or other, to fubmit to the lofs of their political
privileges. In the Venetian Republic, for inftance, the
right, now exclufively vefted in a certain number of fa-
milies, of enabling laws, and electing the Doge and other
Magistrates, was originally vefted in the whole People,
I i
482 THE CONSTITUTION
every individual at once in his moft permanent
and belt understood intereft.
And that means poffefTed by the People of
England, of influencing the conduit of the
Government, is not only in a manner fecure
againft any danger of being taken from them :
it is moreover attended with another advan-
tage of the greateft importance; which is that
of conferring naturally, and as it were necef-
farily, on thofe to whom they truft the care
of their interests, the great privilege we have
before defcribed, of debatinc; amonp- themfelves
whatever queftions they think conducive to the
good of their Condiments, and of framing
whatever bills they think proper, and in what
terms they choofe.
This privilege of ftarting new fubjedts of de-
liberation, and, in fhort, of propounding in the
bufinefs of lepiflation, which, in England,
is allotted to the Reprefentatives of the
People, fets another capital difference between
the Englifh Conflitution, and the government of
other free States, whether limited Monarchies
or Commonwealths, and prevents that which,
in thofe States, proves a molt effectual means
of fubverting the laws favourable to public li-
berty : I mean the undermining of thefe laws
by the precedents and artful practices of thofe
who are inverted with the Executive Power in
the Government.
OF ENGLAND. 483
In the States we mention, the aftive fhare, or
the bufinefs of propounding, in legislation, being
ever allotted to thofe perfons who are inverted
with the Executive authority, they not only pof-
fefs a general power, by means of invidious and
well timed propofals made to the People, of
getting thofe laws repealed which fet bounds
to their authority ; but when they do not choofe
openly to difcover their willies in that refpect,
or perhaps even fear to fail in the attempt, they
have another refource, which, though flower
in its operation, is not lefs effectual in the ifTue.
They neglect to exeeute thofe laws which they
diflike, or deny the benefit of them to the fe-
parate ftraggling individuals who claim them,
and in ihort introduce practices that are directly
derogatory to them. Thefe practices in a
courfe of time become refpectable Ufes, and at
length obtain the force of Laws,
The People, even where they are allowed a
fliare in legiflation, being ever pajfwe in the ex-
ercife of it, have no opportunities of framing
new provifions by which to remove thefe fpu-
rious practices or regulations, and declare what
the law in reality is. The only refource of the
Citizens, in fuch a flate of things, is either to
be perpetually cavilling, or openly to oppofe :
and always exerting themfelves, either too foon,
or too latCj they cannot come forth to defend
Ii 2
4 84 THE CONSTITUTION
their liberty, without incurring the charge, ei-
'ther of difaifettion, or of rebellion.
And while the whole clafs of Politicians, who
are conftantly alluding to the ufual forms of
limited Governments, agree in deciding that
freedom, when once loft, cannot be reco-
vered (a), it happens that the maxim principlh-
objla, which they look upon as the fafeguard of
liberty, and which they accordingly never ceafe
to recommend, befides its requiring a degree
of watchfulnefs incompatible with the fituation
of the People, is in a manner impracticable.-
But the operation of preferring grievances*
which in other Governments is a conftant fore-
runner of public commotions, that of framing
new law remedies, which is fo jealouOy fecured
to the Ruling power of the State, arc, in Eng-
land, the conftitutional and appropriated offices
of the Reprefentatives of the People.
How long foever the People may have re-
mained in a (late of fupinenefs as to their moil
valuable interefrs, whatever may have bed:
the neglect and even the errors of their Re-
prefentatives, the inftant the latter come either
to fee thefe errors, or to have a fenfe of their
duty, they proceed, by means of the privilege
() " Ye free Nations, remember this maxim : Free-
dom may be acquired, but it cannot be recovered^'
KiuJ/ims Social Compad, Chap. VIII.
< ,j
OF ENGLAND, 4?S
we mention, to fet afide thofe abufes or prac-
tices which, during the preceding years, had
become to hold the place of the laws. To
how low ibever a ftate public liberty mav happen
to be reduced, they take it where they find it,
lead it back through the fame path, and to the
fame point, from which it had been compelled
to retreat ; and the ruling power, whatever its
lifurpations may have been, how far ibever it
may have overflowed : ls banks, is ever brought
back to its old limits.
To the exertions of the privilege we men^
tion, were owing the frequent confirmations
and elucidations of the Great Charter that took
place in different reigns. By means of the
fame privilege the Act was repealed, without
public commotion, which had enacted that the
King's proclamations mould have the force of
law : by this Act public liberty feemed to
be irretrievably loft ; and the Parliament who
palfed it, feemed to have done what the Danifh
Nation did about a century afterwards. The
fame privilege procured the peaceable abolition
of the Court of Star Chamber : a Court which,
though in itfelf illegal, had grown to be lb re*
fpecled through the length of time it had been
fuffered to exift, that it feemed to have for ever-
li 3
486 THE CONSTITUTION
fixed and rivetted the unlawful authority it
conferred on the Crown. By the fame means
the power was fet afide which the Privy Coun-
cil had affumed of imprifoning the Subject
without admitting to bail, and even mentioning
any caufe : this power was in the firft inftance
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 manr
ner, by frefh declarations, and, in the end, by
the celebrated Habeas Corpus Act (<z),
(a) The cafe of the General Warrants may alfo be
mentioned as an inftance. The iffuing of fuch Warrants,
with the name of the perfons to be arrefted left blank,
was a praclice that had been followed in the Secretaries of
State's office for above fixty years. In a Government
differently conilituted, that is, in a Goverrment in which
the Magiftrates, or Executive Power, fliould have been
poffefTed of the Key of Legiflation, it is difficult to fay how
the conteft might have been terminated : thefe Magiftrates
would have been but indifferently inclined to frame and
bring forth a declaration by which to abridge their affumed
authority. In the Republic 01 Geneva, the Magiftracy,
inftead of refcinding the judgment againft M. Rouffeau, of
which the Citizens complained, bad rather openly to avow
the maxim, that Handing TJfes were valid derogations to
the written Law, and ought to fuperfede it. This rendered
the clamour more violent than before.
OF ENGLAND. 487
And I ihall take this opportunity to make
the Reader obferve, in general, how the Dif-
ferent parts of the Englifh Government mu-
tually amft and fupport each other. It is be-
caufe the whole executive authority in the
State is veiled in the Crown, that the People
may without danger delegate the care of their
liberty to Reprefenr/itives : it is becaufe they
mare in the Government only through thefe
Reprefentatives, that they are enabled to poffefs
the great advantage ariling from framing and
propofing new laws : but for this purpofe, it is
again abfolutely necefTary that the Crozvn, tnat
is to fay, a Veto of extraordinary power, fhould
exift in the State.
It is, on the other hand, becaufe the balance
of the People is placed in the right of granting
to the Crown its neceffary fupplies, that the
latter may, without danger, be intrufled with
the great authority we mention ; and that the
right, for inftance, which is vefted in it of
judging of the proper time for calling and dif-
folving Parliaments (a right abfolutely necef-
fary to its prefervation) may exiit without pro-
ducing ipfo farJo, the ruin of public Liberty.
The mod lingular Government upon Earth, and
which has carried fartheft the liberty of the in-
u 4
48S THE CONSTITUTION
dividual, was in danger of total deftru&ion,
when Bartholomew Columbus was on his paf-
fage to England, to teach Henry the Seventh
the way to Mexico and Peru (a).
As a conclufion of this fubject (which might
open a field for fpeculations without end)
I fhall take notice of an advantage peculiar to
the Englim Government, and which, more
than any other we could mention, mull: con-
tribute to its duration. Ail the political paf-
fions of Mankind, if we attend to it, are fatis-
fied and provided for in the Englim Govern-
ment; and whether we look at the Monarchical,
or the Ariflocratical, or the Democratical part
of it, we find all thofe powers already fettled
in it in a regular manner, which have an un-
avoidable tendency to arife at one time or other,
in all human Societies.
If we could for an inftant fnppofe that the
Englifh form of Government, inftcad of hav-
ing been the effecl: of a lucky concurrence of
fortunate circumftances, had been eilablifhed
from a fettled plan by a Man who had dif-
covered, beforehand and by reaibning, all thofe
(a) As affairs are fituated in England, the diffolution
of a Parliament on the part of the Crown, is no more
than an appeal either to the People themfelves, or to
another Parliament.
OFENGLAND. 489
advantages refulting from it which we now per-
ceive from experience, and had undertaken to
point them out to other Men capable of judg*
ing of what he faid to them, the following is,
moft likely, the manner in which he would
have expretfed himfelf.
' Nothing is more chimerical, he would have
' laid, than a flate either of total equality, or
* total liberty, amongft Mankind. In all fo-
' cieties of Men, fome Power will neceifarily
' arife. This Power, after gradually becoming
* confined to a fmaller number of perfons, will,
* by a like necefiity, at laft fall into the hands
' of a fingle Leader; and thefe two effects (of
f which you may fee conftant examples in Hif-
' tory) arifing from the ambition of the one
' part of Mankind, and from the various affec-
' tions and paffions of the other, are abfolutely
1 unavoidable.
6 Let us, therefore, admit this evil at once,
6 lince it is impoffible to avoid it. Let us, of
' ourfelves, eftabliih a Chief among us, fince
' we mull, fome time or other, fubmit to one :
* we fhall by this means effectually prevent
* the conflicts that would arife among the
< competitors for that ftation. But let us,
above all, eftablifh him fingle ; left, after
f fucceflively railing himfelf on the ruins of
490 THE CONSTITUTION
c his Rivals, he mould finally eftablifh himfelf
f whether we will or not, and through a train
* of the moft difadvantageous incidents.
c Let us even give him every thing we can
* pofiibly give without endangering our fe-
f curity. Let us call him our Sovereign; let
* us make him confider the State as being; his
< own patrimony ; let us grant him, in fhort,
s fuch perfonal privileges as none of us can
c ever hope to rival him in, and we fhall find
f thofe things which we were at firft inclined
6 to confider as a great evil, will be in reality
c a fource of advantages to the Community.
( We fhall be the better able to fet bounds to
c that Power which we fhall have thus afcer-
' tained and fixed in one place. We fhall have
the more interefled the Man whom we fhall
' have put in poffemon of lb many advantages,
' in the faithful difcharge of his duty. And we
* fhall have thus procured for each of us, a
c powerful prote&or at home, and for the
c whole Community, a defender againft foreign
c enemies, fupcrior to all poffible temptation
* of betraying his Country.
c You may alio have obferved (he would
< continue), that in all States, there naturally
< arifes around the perfon, or perfons, who are
in veiled with the public power, a clafs of
OF ENGLAND, 491
( Men, who, without having any actual fhare
c in that power, yet partake of its luftre : who,
c pretending to be diilinguiihed from the reft
f ot the Community, do from that very cir-
c cumftance, become diilinguiihed from it ;
c and this diilinction, though only matter of
f opinion, and at firfl thus furreptitiouily ob-
( tained, yet may become in time the fource of
' very grievous effect's.
c Let us therefore regulate this evil which
c we cannot entirely prevent. Let us eflablifh
c this clifs of Men who would otherwife grow
' up among us without our knowledge, and
f gradually acquire the moil pernicious privi-
t leges. Let us grant them diflinclions that are
1 viiible and clearly afcertnined : their nature
c will by this means, be the better underflood,
' and they will of courfe, be much lefs likely
c to become dangerous. By this means alfo,
( we fhall preclude all other perfons from the
( hopes or ufurping them. As, to pretend to
6 diftinttions can thenceforward be no lono-er
o
* a title to obtain them, every one who fhall
( not be exprefsly included in their number,
c muft continue to confefs himfelf one of the
* People ; and jufl as we faid before, let us
choofe ourfelves one Mailer that we may not
have fifty, fo let us again fay here, let us
4$z THE CONSTITUTION
i eftablifh three hundred Lords, that we may
' not have ten thouiand Nobles.
' Befides, our pride will better reconcile
e itfelf to a fuperiority which it will no longer
* think of disputing. Nay, as they will them-
f felves fee us to be beforehand in acknow-
* ledging it, they will think themfelves under
' no neceffity of being infolent to furnifh us a
' proof of it. Secure as to their privileges, ail
' violent meafures on their part for main-
( taining, and at laft perhaps extending them,
' will be prevented : they will never combine
c together with any degree of vehemence, but
c when they really have caufe to think them-
4 felves in danger; and by having made them
* indifputably great Men, we mall have a chance
4 of often feeing them behave like modeft and
* virtuous Citizens.
* In fine, by being united in a regular Af-
* fembly, they will form an intermediate Body
* in the State, that is to fay, a very ufeful part
* of the Government.
c It is alfo neceffary, our Lawgiver would
1 farther add, that We, the People, fhould
1 have an influence upon Government : it is
1 neceffary for our own fecurity ; it is no
' lefs neceffary for the fecurity of the Govern-
' ment itfelf. But experience muff have
< taught you, at the fame time, that a great
OF ENGLAND. 493
* body of Men cannot act, without being,
' though they are not aware of it, the inllru-
' ments of the defigns of a fmall number
c of perfons; and that the power of the Pco-
' pie is never any thing but the power of a
e few Leaders, who (though it may be impof-
' fible to tell when or how) have found means
( to fecure to themfclves the direction of its
* exercife.
' Let us, therefore, be alfo beforehand with
' this other inconvenience. Let us effect
' openly what would, otherwife, take place
' in fecret. Let us intruft our power, before
' it be taken from us by addrefs. Thole whom
' we fhall have exprefsly made the depcfitaries
' of it, being freed from any anxious care
' about fupporting themfelves, will have no
* object but to render it ufeful. They will
* Hand in awe of us the more, becaufe they
' will know that they have not impofed upon
' us : and inftead of a fmall number of Leaders,
' who would imagine they derive their whole
' importance from their own dexterity, we
' ihall have exprefs and acknowledged Re-
' prefentatives, who will be accountable to us
* for the evils of the State.
( But above all, by forming our Govern-
* ment with a fmall number of perfons, we mall
3
494 THE CONSTITUTION
' prevent any diforder that may take place iii
' it, from ever becoming dangeroufly exten-
' five. Nay more, we fhall render it capable
* of ineftimable combinations and refources,
c which would be utterly impoffible in that
' Government of all, which never can be any
' thing but uproar and confufion.
c In Ihort, by exprefsly divefting ourfelves
' of a power of which we mould, at beft,
c have only an apparent enjoyment, we fhall
c be entitled to make conditions for ourfelves :
' we will infift that out liberty be augmented ;
' we will, above all, referve to ourfelves the
c right of watching and cenfuring that admi-
c niftration which will have been eftablifhed
< by our own confent. We fhall the better
1 fee its faults, becaufe we fhall be only Spefta-
e tors of it; we fhall correct them the better,
c becaufe we fhall not have perfonally concurred
' in its operations (a).'
(a) He might have added, " As we will not feek
' to counteract nature, but rather to follow it, we fhall
" be able to procure ourfelves a mild Legiflation.
" Let us not be without caufe afraid of the power of
" one Man ; we ihall have no need either of a Tarpeian
" rock, or of a Council of Ten. Having exprefily
" allowed to the People a liberty to enquire into the
conduct of Government, and to endeavour to cor-
reft it, we fhall need neither State-prifons, nor fecret
(t Informers."
OF ENGLAND. 493
The Englim Constitution being founded upon
fuch principles as thofe we have juft defcribed,
no true companion can be made between it,
and the Governments of any other States ;
and fince it evidently infures, not only the li-
berty, but the general fatisfadtion in all re-
fpedts, of thofe who are fubjed: to it, in a much
greater degree than any other Government
ever did, this consideration alone affords fuf-
ficient ground to conclude, without looking
farther, that it is alio more likely to be pre-
ierved from ruin.
And indeed we may obferve the remarkable
manner in which it has been maintained in the
midft of fuch general commotions as feemed
unavoidably to prepare its destruction. It rofe
again, we fee, after the wars between Henry
the Third and his Barons; after the ufurpation
of Henry the Fourth ; and after the long and
bloody contentions between the Houfes of
York and Lancaster. Nay, though totally
destroyed in appearance after the fall of
Charles the Firft, and though the greateft ef-
forts had been made to eftablifli another form
of government in its (lead, yet, no fooner was
Charles the Second called over, than the Con-
ftitution was re-eftablifhed upon all its ancient
foundations.
49$ THE CONSTITUTION
However, as what has not happened at
one time, may happen at another, future
Revolutions (events which no form of Go- 4
vernment can totally prevent) may perhaps
end in a different manner from that in which
pad ones have been terminated. New com-
binations may poffibly take place among the
then ruling Powers of the State, of fuch a
nature as to prevent the Conftitution, when
peace fhall be reftored to the Nation, from fet-
tling again upon its ancient and genuine foun-
dations ; and it would certainly be a very bold
ailertion to decide, that both the outward
form, and the true fpirit of the Englifh Go-
vernment, would again be preferved from
deftruftion, if the fame dangers to which they
have in former times been expofed, fhould
again happen to take place.
Nay, fuch fatal changes as thofe we men-
tion, may be introduced even in quiet times, or
at leaft, by means in appearance peaceable and
conftitutional. Advantages, for inftance, may
be taken by particular factions, either of the
feeble temper, or of the mifcondudt, of fome
future King. Temporary prepofTeflions of the
People may be made ufe of, to make them con-
cur in doing what will prove afterwards the
ruin of their own liberty. Plans of apparent
OF ENGLAND. 497
improvement in the Conftitution, forwarded
by Men who, though with good intentions,
ihall proceed without a due knowledge of the
true principles and foundations of Govern-
ment, may produce effects quite contrary to
thofe which were defigned, and in reality pre-
pare its ruin (a). The Crown, on the other
hand, may, by the acquifition of foreign do-
minions, acquire a fatal independency on the
People : and if, without entering into any
farther particulars on this fubject, I were re-
() Inftead of looking for the principles of Politics
in their true fources, that is to lay, in the nature of
the affe&ions of Mankind, and of thofe fecret ties by
which they are united together in a ftate of Society,
Men have treated that fcience in the fame manner as
they did natuial Philofophy in the times of Ariftotle,
continually recurring to occult caufes, and principles,
from which no ufeful confequence could be drawn.
Thus, in order to ground particular affertions, they
have much ufed the word Conllitution, in a perfonal
fenfe, the Conftitution loves, the Conftitution forbids,
and the like. At other times they have had recourie
to Luxury, in order to explain certain events ; and at
others, to a ftill more occult caufe, which they have
called Corruption ; and abundance of companions
drawn from the human Body, have been alfo ufed for
the fame piupoies : continued inftances of fuch defective
arguments and confiderations occur in the Works of M.
de Montefquieu ; though a man of fo much genius, and
from whofe writings fo much information is neverthelefs
to be derived. Nor is it only the obfeurity of the
K k
498 THE CONSTITUTION
quired to point out the principal events which
would, if they were ever to happen, prove im-
mediately the ruin of the Englifh Government,
I would fay, The Englifh Goverment will be
no more, either when the Crown fhall become
independent on the Nation for its fupplies, or
when the Reprefentatives of the People fhall
begin to ihare in the Executive authority (#).
CHAP. XIX.
A few additional thoughts on the attempts that may
at particular times may be made to abridge the
pczver of the Crown, and fome of the dangers by
zvhlchfuch attempts may be attended.
THE power of the Crown is fupported by
deeper, and more numerous, roots, than
the generality of people are aware of, as has
writings of Politicians, and the impoffibility of applying
their fpeculative Dodtrines to practical ufes, which prove
that fome peculiar and uncommon difficulties lie in the way
of the znvefligation of political truths ; but the remark-
able perplexity which Men in general, even the ableft,
labour under when they attempt to defcant and argue
upon abftract queftions in politics, alfo juftifies this ob-
feryatioa, and proves that die true firfl principles of thi*
Science, whatever they are, lie deep both in the human
feelings, and undemanding.
[a) And if at any time, any dangerous changes w-re
to take place in the Englifh ConiUtution, the perni-
OF ENGLAND. 499
been obferved in a former Chapter ; and there
is no caufe anxioufly to fear that the wrefting
any capital branch of its prerogative, may be
effected, in common peaceable times, by the
mere theoretical fpeculations of Politicians*
However, it is not equally impracticable that
fome event of the kind we mention may be
brought about through a conjunction of feveral
circumftances. Advantage may, in the firft
place, be taken of the minority, or even alfo
the inexperience or the errors, of the perfon
invefted' with the kingly authority. Of this
a remarkable inftance happened under the reign
of King George the Firft, while that Bill, by
which the number of Peers was in future to be
limited to a certain number was under confider-
arion in the Houfe of Commons, to whom it had
been fent from that of the Lords, where it had
been palled. So unacquainted was the King at
that time with his own intereft, and with the
conftitution of that Government over which he
was come to prefide, that having been per-
fuaded by that party who wifhed fuccefs to the
Bill, that the objection made againft it by the
Houfe of Commons, was only owing to an
opinion they entertained of the Bill beino- dif-
cious tendency of which the People were not able at firft
to difcover, reftridlions on the Liberty of the Prefs, and
a. the Power of Juries, will give them the firft information.
K k 2
5oo THE CONSTITUTION
agreeable to him, that he was prevailed upon
to fend a mcffage to them, to let them know
that fuch an opinion was ill-grounded, and
that fhould the Bill pafs in their Houfe, it
would meet with his affent (a). Confidering
the prodigious importance of the confequences
of fuch a Bill, the fad: is certainly very re-
markable ()
With thofe perfonal difad vantages under
which the Sovereign may lie for defending
his authority, other caufes of difficulty may
concur: fuch as popular difcontents of long
continuance in regard to certain particular
abufes oi* influence or authority. The gene-
rality of the Public bent, at that time, both
upon remedying the abufes that are complained
of, and preventing the like from taking place
in future, will perhaps wifh to fee that branch
of the prerogative which gave rife to them,
taken from the Crown : a general difpofition
to applaud fuch a mcafure, if efTe&ed, will
be manifefted from all quarters; and at the
fame time Men may not be aware that the only
material confequence that may arife from de-
priving the Crown of that branch of power
{a) See the Collection of Parliamentary Debates ; I do
?>ot remember exactly what Volume.
U) This Bill has been mentioned in page 398.
OF ENGLAND. 501
which has caufed the public complaints, will
perhaps be the having tranfpofed that branch
of power from its former feat to another, and
having truiled it to new hands, which will be
Hill more likely to abufe it than thole in which
at was formerly lodged.
In general, it may be laid down as a maxim,
that Power, under any form of Government,
mult exiit, and be trulted fomewhere. If the
Conftitution does not admit of a King, the go-
verning authority is lodged in the hands of Ma-
giflrates. If the government, at the fame time
it is a limited one, bears a Monarchical form,
thofe ihares of power that are retrenched
from the King's prerogative, moll likely con-
tinue to fubfiit, and are veiled in a Senate, or
AlTembly of great Men, under fome other name
of the like kind.
Thus, in the Kingdom of Sweden, which,
having been a limited Monarchy, may fupply
examples very applicable to the Government
of this Country, we find that the power of con-
voking the General States (or Parliament) of
that Kingdom, had been taken from the Crown;
but at the fame time we alio find that the Swe-
difh Senators had invelled themfelves with that
effential branch of power which the Crown
had loft. J mean here to fpeak of the Govern-
Kk 3
$02 THE CONSTITUTION
ment of Sweden as it flood before tfle lafl rc
volution,
The power of the Swedifh King to confer of-
fices and employments, had been alfo very much
abridged. But what was wanting to the power
of the King, the Senate enjoyed : it had the
nomination of three perfons for every vacant
office, out of whom the king was too choofe one,
The king of Sweden had but a limited
power in regard to pardoning offenders ; but the
Senate like wife porTeifed what was wanting to
that branch of his prerogative ; and it appoint-
ed two perfons, without the confent of whom
the King could not remit the punifhment of
any offence.
The King of England has an exclufive power
in regard to foreign affairs, war, peace, trea-
ties ; in all that relates to military affairs ; he
has the difpofal of the exifling army, of the
fleet, &c, The King of Sweden had no fuch
extenfive powers; but they neverthelefs exifled :
every thing relating to the above mentioned
objects was tranfadted in the ArTembly of the
Senate; the majority decided; the King was
pbliged to fubmit to it ; and his onlv privilege
ponfifted in his vote being accounted two (<z.)
(a) The Swedifh Senate was ufually compofed of
fixtsgn Members. In regard to affairs of (icalier
OF ENGLAND. 503
If we purfue farther our enquiry on the fub-
ject, we fhall find that the King of Sweden
could not raife whom he pleafed to the office of
Senator, as the King of England can, in regard
to the office of member of the Privy Council ;
but the Swedifh States, in the Affembly of
whom the Nobility enjoyed moft capital ad-
vantages, pofTefled a mare of the power we
mention, in conjunction with the King; and
in cafes of vacancies in the Senate, they elected
moment, they formed themfelves into two divifions, in
either of thefe when they did fit, the prefence of feven
Members was required for the effe&ual tranfafting of bu-
fineis : in affairs of importance, the affembly was formed
of the whole Senate ; and the prefence of ten Members was
required to give force to the refolutions. When the King
could not, or would not, take his feat, the Senate pro-
ceeded neverthelefs, and the majority continued to be
equally decifive.
As the Royal Seal was neceffary for putting in execution
the refolutions of the Senate, King Adolphus Frederic,
father to the prefent King, tried by refufing to lend the
fame, to procure that power which he had not by his
fufferagc, and to flop the proceedings of the Senate.
Great debates, in confequence of that pretenfion, arofe,
and continued for a while; but, at laft, in the year 1756,
the King was over-ruled by the Senate, who ordered a feal
to be made, that was named the King's Seal, which they
affixed to their official refolutions, when the King rcfufed
to lend his own.
5o 4 THE CONSTITUTION
three perfons, out of whom the King was to
return one.
The King of England may, at all times,
deprive his Minifters 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 Se-
nators, and thofe perfons in general who had a
/hare in the Adminiftration.
The King of England has the power of
diffolving, or keeping affembled as long as
he pleafes, his Parliament. The King of
Sweden had not that power ; but the States
might, of themfeves, prolong their duration
as they thought proper.
Thofe perfons who think that the preroga-
tive of a King cannot be too much abridged,
and that Power lofes all its influence on the
difpofitions and views of thofe who pofTefs~it,
according to the kind of name ufed to exprefs
thofe offices by which it is conferred, may be
fatisfied, no doubt, to behold thofe branches
of power that were taken from a King, diflri-
buted to feveral Bodies, and lhared in by the
Reprefentatives of the People : but thofe who
think that Pc>wer, when parcelled and diffufed,
|s never fo well reprelTed and regulated as
OF ENGLAND. 505
when it is confined to a fole indivifible feat,
that keeps the Nation united and awake,
thofe who know that, names by no means alter-
ing the intrinfic nature of things, the Reprefen-
tatives of the People, as foon as they are veiled
with independent authority, become ipfo fafto
its Mailers, thofe perfons, I fay, will not think
it a very happy regulation in the former Confli-
tution of Sweden, to have deprived the King
of prerogatives formerly attached to his office,
in order to veft the fame either in a Senate,
or in the Deputies of the People, and thus to
have trufled with a fhare in the exercife of the
public power, thofe very Men whofe Confli-
tutional office mould have been to watch and
reflrain it.
To the indivifibility of the governing autho-
rity in England, the community of interefl
which takes place among all orders of Men, is
owing ; and from this community of interefl
riles, as a neceffary confequence, the liberty en-
joyed by all ranks of fubjedts. This obfervatlon
has been infilled upon at length in the courfe
of this Work. The Ihorteft reflection on the
frame of the human heart, fuffices to convince
vis of its truth, and at the fame time mani-
fefls the danger that would refult from making
any changes in the form of the exifling Go-
506 THE CONSTITUTION
vernment by which this general community
of intereft might be leilened, unlefs we are
at the fame time alfo determined to believe, that
partial Nature forms Men in this Ifland, of
quite other fluff than the felfifh and ambitious
one of which flie ever made them in other
Countries (a).
{a) Such regulations as may capitally affeft, through
their confequences, the equipoife of a Government, may
be brought about, even though the promoters themfelves
of thofe regulations are not aware of their tendency.
At the fame time the Bill was palled in the lali century, by
which it was enabled that the Crown fhould give up its
prerogative of diffolving the Parliament then fitting, the
generality of People had no thought of the calamitous
ponfequences that were to follow : very far from it.
The King himfelf certainly felt no very great apprehen-
fion on that account ; elfe he would not have given his
afient : and the Commons themfelves, it appears, had but
very faint notions of the capital changes which the Bill
would fpeedily effect in their political fituation.
When the Crown of Sweden was, in the firft inftance,
ftripped of all the different prerogatives we have men-
tioned, it does not appear that thofe meafures were ef-
fected by fuuden, open provifions for that purpofe :
it is very probable they had been prepared by indirect
regulations formerly made, the whole tendency of which
fcarcely any body perhaps could forefeee at the time they
\vere framed.
When the Bill was in agitation, that has been men-
tioned in page 398, and 499, by which the Houfe of Peers
was in future to be limited to a certain number that was
pot to be exceeded, the great conftitutional confequences
OF ENGLAND. 507
But paft experience does not by any means
allow ns to entertain fo pleafing an opinion.
of the Bill werefcarcely attended to by any body. The
King himfelf certainly faw no harm in it, fince he fenf
an open meffage to promote the paffing of it : a mea-
fure which 4 cannot fay how far it was in itfejf regular.
The Bill was, it appears, generally approved out of doors.
Its fate was for a long time doubtful in the Houfe
of Commons; nor did they acquire any glory with the bulk
of the People by finally rejecting it : and Judge Blackftone,
as I find in his Commentaries, does not ieem to have
thought much of the Bill and its being rejected, as he
only obferves that the Commons " wiflied to keep the
door of the Houfe of Lords as open as poffible. 1 ' Yet,
no Bill of greater conftitutional importance was ever agi-
tated in Parliament; fince the confequences of its be-
ing paiTed, would have been the freeing the Houfe of
Lords, both in their Judicial and Legiflative capacities,
from all conftitutional check whatever, either from the
Crown, or the Nation, Nay, it is not to be doubted
they would have acquired, in time, the right of electing
their own Members: though it would be ufelefs to point
out here by what feries of intermediate events the mealure
might have been brought about. Whether there exifted
any actual project of this kind, among the firft framers of
the Bill, does not appear: but a certain number of
the Members of the Houfe we mention, would have thought
pf it foon enough, if the Bill in queltion had been enacted
into a law ; and they would certainly have met with fuccefs,
had they been but contented to wait, and had thev taken
time. Other equally important changes in the fubftance,
and perhaps the outward form, of the Government, would
haye followed.
8
5o8 THE CONSTITUTION
The perufal of the Hiftory of this Country will
ihew us, that the care of its Legiflators for the
welfare of the fubjed:, always kept pace with the
exigencies of their own lituation. When, thro*
the minority, or eafy temper of the reigning
Prince, or other circumftances, the* dread
of a fuperior Power began to be overlooked,
the public caufe was immediately deferted in a
greater or lefs degree, and purfuit after private
iufluence and lucrative offices took the place of
patriotifm. When, under the reign of Charles
the Firft, the authority of the Crown was for a
while utterly annihilated, thofe very Men who,
till then, had talked of nothing but Magna
Charta and Liberty, inftantly endeavoured openly
to trample both under foot.
Since the time we mention, the former Con-
ftitution of the Government having been re-
ftored, the great outlines of public liberty have
indeed been warmly and fcrioufly defended :
but if any partial unjufl laws or regulations
have been made, efpecially fince the Revo-
lution of the year 1689, if any abufes in-
jurious to particular claffes of individuals have
been fufTered to continue (facts into the truth
of which I do not propofe to examine here), it
will certainly be found upon enquiry, that thofe
laws and thofe abufes were fuch as that from
O F E N G L A N D. 509
them the Members of the Legiflature well
knew, that neither they, nor their friends,
would ever be likely to fufTer.
If through the unforefeen operation of fomc
new regulation made to reftrain the royal pre-
rogative, or through fome fudden public revo-
lution, any particular bodies or clafTes of indi-
viduals were ever to acquire a perfonal indepen-
dent mare in the exercife of the governing
authority, we mould behold the public virtue
and patriotifm of the Legislators and Great Men
immediately ceafe with its caufe, and Arifto-
cracy, as it were watchful of the opportunity,
burft out at once, and fpread itfelf over the
Kingdom.
The Men who are now the Minifters,
then the Partners of the Crown, would in-
Jftantly fet themfefves above the reach of
the law, and foon after enfue the fame privi-
lege to their feveral fupporters or depen-
dants.
Perfonal and independent power being be-
come the only kind of fecurity of which Men
would now fhew themfelves ambitious, the
Habeas Corpus Aft, and in general all thofe laws
which Subjects of every rank mention with love,
and to which they look up for protection and
fafety, would be fpoken of with contempt, and
6
5 io THE CONSTITUTION
mentioned as remedies fit only Countrymen
and Cits : it even would not be long before
thev were fet afide, as obftructing the wife and
falutary fteps of the Senate.
The pretenfions of an equality of right in
all Subjects, of whatever rank and order, to
their property and to perfonal fafety, would
foon be looked upon as an old fafhioned doc-
trine, which the Judge himfelf would ridicule
from the Bench. And the liberty of the prefs,
now lb univerfally and warmly vindicated,
would, without lofs of time, be cried down
and fupprelTed, as only ferving to keep up the
infolence and pride of a refractory people.
And let us not believe that the miftaken
People, whofe Reprefentatives we now behold
making fuch a firm {land a gain ft the indhifiblt
power of the Crown, would, amidft the gene-
ral devaluation of every thing they hold dear,
eaaly find Men equally difpofed to reprefs the
encroaching, while attainable, power of a Se-
nate and Body of Nobles.
The time would be no more when the People,
upon whatever Men they let their choice fall,
are lure to ii:.o. them ready fincerely to join in
the fupport of every important branch of pub-
lie liberty.
Prefem or expected, perfonal power and in-
OF ENGLAND, 511
dependence on the laws, being now the con-
fequence of the truft of the People, wherever
they ihould apply for fervants, they would
only meet with betrayers. Corrupting as it
were every thing they Ihould touch, they
could confer no favour upon an individual
but to deftroy his public virtue ; and to repeat
the words ufed in a former Chapter, " their
" railing a Man would only be immediately
" infpiring him with views directly oppofite
" to their own, and fending him to increale the
" number of their enemies."
All thefe considerations ftrongly point out
the very great caution which is neceffary to be
ufed in the difficult buflnefs of laying new re-
ftraints on the governing authority. Let there-
fore the lefs informed part of the People,
whofe zeal requires to be kept up by viflble
objects, look if they choofe upon the Crown
as the only feat of the evils they are expofed to ;
miftaken notions on their part are lefs dan-
gerous than political indifference, and they
are more eafily directed than roufed, but at
the fame time, let the more enlightened part
of the Nation conftantly remember, that the
Conftitution only fubfifts by virtue of a proper
equilibrium, by a line being drawn between
Power and Liberty.
Made wife by the examples of feveral other
5 i2 THE CONSTITUTION
Nations, by thofe which the Hiftory of this
very Country affords, let the People in the
heat of their ftruggles in the defence of liberty,
always take heed, only to reach, never to over-
ihoot, the mark, only to reprefs, never to
transfer and diffufe Power.
Amidft the alarms that may, at particular
times, arife from the really awful authority
of the Crown, let it, on the one hand, be re-
membered, that even the power of the Tu-
dors was oppofed and fubdued, and on the
other let it be looked upon as a fundamental
maxim, that, whenever the profped: of per-
fonal power and independence on the go-
verning authority, fhall offer to the view of
the Members of the Legiilature, or in gene-
ral of thofe Men to whom the People muft
trull, even Hope itfelf is deftroyed. The
Hollander, in the midft of a ftorm, though
trufting to the experienced flrength of the
mounds that protect him, lhudders no doubt
at the fight of the foaming Element that fur-
rounds him ; but they all gave themfelves over
for loft, when they thought the worm had got
into their dykes (a).
[a) Such new forms as may prove deftrucYive of the
real fubftance of a Government, may be unwarily a-
dopted, in the fame manner as the fuperftitious notions
OF ENGLAND. 513
CHAP. XX.
A few additional Obfervations on the right of Taxation
which is lodged in the hands of the Reprefentaiives
of the People. What kind of danger this Right
may be expofed to.
THE generality of Men, or at lead of Po-
liticians, feem to confider the right of
taxing themfelves, enjoyed by the Englifh Na-
tion, as being no more than a means of fecur-
ing their property againft the attempts of the
Crown ; while they overlook the nobler and
more extenfive efficiency of that privilege.
The right to grant fubfidies to the Crown,
poffeffed by the People of England, is the
fafe-guard of all their other liberties, religious
and civil : it is a regular means conferred on
them by the Conftitution, of influencing the
motion of the Executive power ; and it forms
the tie by which the latter is bound to them,
In fhort, this privilege is a fure pledge in
their hands, that their Sovereign, who can
difmifs their Reprefentatives at his pleafure?
and pra&ices defcribed in my Work, intitled Memorial.-
of Human Superjlitiop, may be introduced into a Religion,,
fa as to entirely fubvert the true fpirit of it,
L X
jr4 THE CONSTITUTION
will never entertain thoughts of ruling with-
out the afiiftance of thefe.
If, through unforefeen events, the Crown
could attain to be independent on the People
in regard to its fupplies, fuch is the extent of
its Prerogative, that fro;:: that moment, all
the means the People poiTefs to vindicate their
liberty, would be annihilated. They v lid
have no refource left, except indeed that un-
certain and calamitous one, of an appeal to
the fvvord ; which is no more, after all, than
what the mofl enilaved Nations enjoy.
Let us fuppofe, for inftance, that abufes of
power mould be committed, which, either by
their immediate operation, or by the precedents
they might eftablim, mould undermine the li-
berty of the fubjeft. The People, it will be
faid, would then have their remedy in the Le-
gislative power pofieffed by their Reprefcnta-
tives. The latter would, at the flrft opportu-
nity, interfere, and frame fuch Bills as would
prevent the like abufes for the future. But here
we muft obierve, that the AfTent of the Sove-
reign is neceiTary to make thole Bills become
L a w s ; and if, as w e h a ve j u ft n o w fa ppo fe d ,
he had no need of che fupport of the Com-
mons, how could they obtain his ailent to laws
thus purpofdy framed to abridge his authority ?
OF ENGLAND. 515
Again, let us fuppofe that, inftead of con-
tenting itfelf with making flow advances to
defpotifm, the Executive power, or its Mini-
(rers, mould at once openly invade the liberty
of the fubjedt. Obnoxious, men, Printers for
inflance, or political Writers, are deftroyed,
either by military violence, or, to do things
with more fecurity, with the forms of law.
Then, it will be faid, the Reprefentatives of the
People would impeacli the perfons concerned
in thofe meafures. Though unable to reach a
King who perfonally can do no wrong, they at
kail would lay hold of thofe Men who were the
immediate inftruments of his tyrannical pro-
ceedings, and endeavour, by bringing them to
condign punimment, to deter future Judges or
Minifters from imitating them. All this I
grant ; and I will even add, that circum-
stanced as the Reprefentatives of the People
now are, and having to do with a Sovereign
who can enjoy no dignity without their af-
fiftance, it is moll likely that their endea-
vours in the purfuits of fuch laudable objedts
would prove fuccefsful. But if, on the contrary,
the King, as we have fuppofed, flood in ro
heed of their affiflance, and moreover knew
th?.t he fhould never want it, ic is impoffible
to think that he would -then fuffer himfelf to
T, 1 2
5*6 THE CONSTITUTION
remain a tame fpectator of their proceedings.
The impeachments thus brought by them
would immediately prove the fignal of their
difmiflion ; and the King would make hafte, by
difTolving them, both to revenge what would
then be called the infolence of the Commons,
and to fecure his Minifters.
But even thofe are vain fuppofkions : the
evil would reach much farther ; and we may
be affured that if ever the Crown was to be in
a condition to govern without the afiiftance of
the Reprefentatives of the people, it would
difmifs them for ever, and thus rid itfelf of an
Affembly which, while it continued to be a
clog on its power, could no longer be of
any fervice to it. This Charles the Firft at-
tempted to do when he found his Parliaments
grew refractory, and the Kings of France really
have done, with refpedt to the General Eftates
of their Kingdom.
And indeed if we confider the extent of the
Prerogative of the King of England, and
efpecially the circumftance of his completely
uniting in himfelf all the executive and active
powers in the State, we (hall find that it is no
exaggeration to fay, that he has power fuf-
ficient to be as arbitrary as the Kings of France,
were it not for the right of taxation, which,
OF ENGLAND. 517
in "England is poffeffed by the People ; and
the only constitutional difference between the
French and Englifh Nations is, that the former
can neither confer benefits on their Sovereign,
nor hinder his meafures ; while the latter, how
extenfive foever the Prerogative of their King
may be, can deny him the means of exert-
ing it.
But here a moft important obfervation is to
be made; and I entreat the reader's attention to
the fubjecl. This right of granting fubfidies
to the Crown, can only be effectual when it
is exercifed by one Affembly alone. When fe-
veral diflinct Affemblies have it equally in
their power to fupply the wants of the Prince,
the cafe becomes totally altered. The com-
petition which fo eafily takes place between
thofe different Bodies, and even the bare confei-
oufnefs which each entertains of its inability to
hinder the meafures of the Sovereign, render it
impoffible for them to make any effectual con-
ftitutional ufe of their privilege. tc Thofe dif-
* ferent Parliaments or Eftates (to repeat the
" obfervation introduced in the former part
u of this Work) having no means of recom-
*' mending themfelves to their Sovereign, but
*' their fuperior readinefs in complying with
S c his demands, vie with each other in grant-
LI 3
5x8 THE CONSTITUTION
" ing what it would not only be fruitlefs, but
" even dangerous to refufe. And the King,
" in the mean time, foon comes to demand
ec as a tribute, a gift which he is confident to
(t obtain." In fhort, it may be laid down as a
maxim, that when a Sovereign is made to de-
pend, in regard to his fnpplies, on more Ai-
femblies than one, he, in fat, depends upon
none. And indeed the King of France is not
independent on his People for his neceiTary
iupplies, any othervvife than by drawing the
fame from feveral different AiTcmblies of their
Reprefentatives : the latter have in appearance
a right to refufe all his demands : and as the
Englim call the grants they make to their
Kings, Aids or Subfidies, fo do the Eitates of
the French provinces call their's Dons gratttits,
or free gifts.
What is it, therefore, that conftitutes the
difference between the political (ituation of the
French and Englim Nations, fince their rights
thus feem outwardly to be the fame? The diffe-
rence lies in this, that there has never been in
England more than one Afiembly that could fup-
ply the w?nts of the Sovereign. This has always
kept him in a Mate, not of a feeming, but of a
rf~l dependence on the Reprefentatives of the
people for hi>> r.eceffary fupplics ; and how low
OF ENGLAND. 519
foever the liberty of the Subject may, at par-
ticular times, have funk, they have always
found themfelves pofferTed of a moft effectual
means of reftoring it, whenever they have
thought proper fo to do. Under Henry the
Eighth, for inftance, we find the Defpotifm of
the Crown to have been carried. to an aftonifh-
ing height : it was even enacted that the Pro-
clamations of the King ihould have the force
of law; a thing which even in France, never
was fo exprefly declared : yet, no fooner did
the Nation recover from its long (late of fu-
pinenefs, than the exorbitant power of the
Crown was reduced within its conflitutional
bounds.
To no other caufe than the difadvantage of
their fituation, are we to afcribe the low condi-
tion in which the Deputies of the People in the
Affembly called the General Eftates of France,
were always forced to remain.
Surrounded as they were by the particular
Eftates of thole Provinces into which the
Kingdom had been formerly divided, they
never were able to ftipulate conditions with
their Sovereign ; and inftead of making their
right of granting fubfidies to the Crown ferve
to gain them in the end a Ihare in Legislation,
they ever remained confined to the naked pri-
LI4
520 THE CONSTITUTION
vilegc of " humble Supplication and Remonr
<< tfrance."
Thofe Eftates, however, as all the great
Lords in France were admitted into them, be-
gan at length to appear dangerous ; and as
the King could in the mean time do without
their affiftance, they were fet ande. But feve-
ral of the particular Eftates of the Provinces
are preferved to this day : fpme, which for
temporary reafons had been abolifhed, have
been reftcred : nay, fo manageable have po-
pular Affemblies 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 moft convenient to aflign to
Corfica; and Corfica has been made un pays
d' Etats (a).
(a) An idea of the manner in which the b,ufinefs
cf granting fupplies to the Crown, was conducted by:
the States of the province of Britanny, under the reign,
of Lewis the Fourteenth, may be formed from feveral
lively itrokes to be met with in the Letters of Mad. de
Sevigne, whofe Eftate lay in that Province, and who
had often affiled at the holding of thofe States. The
granting of fupplies' was not, it feems, looked upon
as any ferious kind of bufinefs. 1 he whole time the
States were fitting, was a continued fcene of feftivity
and entertainment j the canvaffing of the demands of
the Crown was chiefly carried on at the table of the
Nobleman who had been deputed from Court to hold
OF ENGLAND, $i\
That the Crown in England mould, on a
Hidden, render itfelf independent on the Com-
mons for its fupplies, that is, mould on a fud-
den fucccfsfully affume to itfelf a right to lay-
taxes on the fubject, by its own authority, is
not certainly an event in any degree likely to
take place, nor indeed that mould, at this pre-
fent time, raife any kind of political fear. But
it is not equally impracticable that the right
of the Reprefentatives of the People might be-
the States ; and every thing was commonly decided
by a kind of acclamation. In a certain AfTembly of
thofe States, the Duke of Chaulnas, the Lord Deputy,
had a prefent of fifty thoufand crowns made to him, as
well as a considerable one for his Duchefs, befides ob-
taining the demand of the Court: and the Lady we quote
here, commenting fomewhat jocularly on thefe grants,
fays, Ce riejl pas que nous foyons riches; mats nous fommes
bonnetes, nous anions du courage, & entre midi & une heure,
nous ne fa-vons rien refufer a nos amis. " It is not that we
*f are rich ; but we are civil, we are full of courage, and,
" between twelve and one o'clock, we are unable to deny
*' any thing to our friends."
The different Provinces of France, it may be obferved,
are liable to pay feveral taxes befides thofe impofed on
them by their own States. Dean Tucker, in one of his
Traces, in which he has thought proper to quote this Work,
has added to the above inftance of the French Provinces,
that of the States of the Auftrian Netherlands, which is
very concufive. And examples to the fame purpofe might
be fupplied by all thofe Kingdoms of Europe in which
Provincial States are held.
522 THE CONSTITUTION
come invalidated, by being divided in the man-
ner that has been juft defcribed.
Such a divifion of the right of the People
might be effected feveral different ways. Na-
tional calamities for inflance, unfortunate fo-
reign wars attended with lofs of public credit,
might fuggeft methods for railing the neceffary
fupplies, different from thofe which have hi-
therto been ufed. Dividing the Kingdom into
a certain number of parts, which fhould fe-
verally vote fubfidies to the Crown, or evert
diflincl: afTeffments to be made by the different
Counties into which England is now divided,
might, in the circumftances we fuppofe, be
looked upon as advifeable expedients ; and
thefe being once introduced, might be con-
tinued afterwards.
Another divifion of the right of the People,
much more likely to take place than thofe juft:
mentioned, might be fuch as might arife from
acquisitions of foreign dominions, the inhabi-
tants of which fhould in time claim and obtain
a right to treat directly with the Crown, and
grant fupplies to it, without the interference of
the Britifh. Legiflature.
Should any Colonies acquire the right we
mention ihould, for inflance, the American
Colonies have acquired it, as they claimed it,
OF ENGLAND, 523
k is not to be doubted that the confequences
that have refulted from a divifion like that we
mention in molt of the Kingdoms of Europe,
would alio have taken place in the Britilh do-
minions, and that that fpirit of competition
which has been above defcribed, would in time
have manifefted itfelf between the different
Colonies. This deiire of ingratiating themfelves
with the Crown, by means of the privilege
of granting fupplies to it, has even been openly
conierTed by an Agent of the American Pro-
vinces (a), when, on his being examined by
the Houle of Commons, in the year 1766,
he faid, " the granting Aids to the Crown, is the
i( only means the Americans have of recommending
(i themfelves to their Sovereign." And the events
that have of late years taken place in America,
render it evident that the Colonies would not
have fcrupled going any lengths to obtain fa-
vourable conditions at the expence of Britaia
and the Britilh Leo-iflature,
That a limilar fpirit of competition might
be raifed in Ireland, is alio fufficiently plain
from certain late events. And Ihould the
American Colonies have obtained their de-
mands, and at the fame time fheuH IrehncJ
And America have increafed in wealth to a ccr-
[a) Doftor Franklin.
524 THE CONSTITUTION
tain degree, the time might have come at
which the Crown might have governed Eng-
! with the fupplies of Ireland and America
Ireland with the fupplies of England and of
the Amer :an Colonies and the American Co-
lonies with the money of each other, and of
England and Ireland.
To this it may be objected, rhat the fupplies
granted by the Colonies, even though joined
with thofe of Ireland, never could have rifen
to fuch a height as to hi e counterbalanced
the importance of the Englifh commons.
I anfwer, in the firft place, that there would
have been no neceffity that the aids granted
by Ireland and America mould have rifen to
an equality with thofe granted by the Britim
parliament : it would have been fufficient, to
produce the effecTs we mention, that they had
only borne a certain proportion with thefe lat-
ter, fo far as to have conferred on the Crown
a certain degree of independence, and at the
fame time have railed in the Englifh Commons
a correfpondent fenfe of felf-diffidence in the
exercife of their undoubted privilege of grant-
ing, or rather rsfufing, fubfidies to the Crown,
Here it mull be remembered, that the right
of granting, or refufmg, fupplies to the Crown,
is the only ultimate, forcible, privilege the
O F E N G L A N D. 525
Britiih Parliament poffefs : by the Conftitution
they have no other, as hath been obferved in
the beginning of this Chapter : this circum-
ftance ought to be combined with the abfolute
exclufivenefs of the executive powers lodged in
the Crown with its prerogative of difTenting
from the Bills framed by Parliament, and even
of diffolving it (a).
(a) Being with Doclor Franklin at his houfe in Craven-
ftreet, fome months before he went back to America,
I mentioned to him a few of the remarks contained ia
this Chapter, and in general, that the claim of the
American Colonies dire&ly clafhed with one of the
vital principles of the Englifh Conftitution. The observa-
tion, I remember, ftruck him very much : it led him af-
terwards to fpeak to me of the examination he had under-
gone in the Houfe of Commons ; and he concluded with
lending me the volume of the Collection of Parliamentary
Debates, in which an account of it is contained. Finding
'he conftitutional tendency of the claim of the Americans
to be a fubjett not very generally underftood, I added a
few paragraphs concerning it, in the Englifh Edition I
ibme time after gave of this work ; and on publishing
a third Edition of the fame, I thought it might not
be amifs to write fomething more compact on th
fubjeft, and have accordingly added the prefent new
Chapter, into which I have transferred the few additional
paragraphs I mention, leaving in the place where they
ftood (pag. 45.) only the general obfervations on the right
of granting fubfidies, which were formerly in the French
work Several of the ideas, and even expreflions con-
526 THE CONSTITUTION
I mall mention in the fecond place, a re-
markable fact in regard to the fubjedt we are
treating (which may ferve to ihevv that Poli-
ticians are not always confiftent, or even fa-
gacious in their arguments), which is, that
the fame pcrfons who were the moft ftrenuous
advocates for granting to the American Co-
lonies their demands, were at the fame time
the moft fanguine in their predictions of the
future wealth and greatnefs of America, and
at the fame time alfo, ufed to make frequent
complaints on the undue influence which the
Crown derives- from the fcanty fupplies granted
to it by the kingdom of Ireland (a).
Had the American Colonies fully obtained
their demands, both the eflence of the prefent
Englim Government, and the condition of
the Englifh People, would certainly have been
altered thereby : nor would fuch a change
tained in this Chapter, made their appearance in the
Public Advertifer t about the time I was preparing the firft
Edition : I fent them myfelf to that Newfpaper, under
the fignature of Ad-vena. I mention this for the fake of
thofe perfons who may perchance remember having feea
the {ketch I allude to.
[a\ For inftance, the complaints made in regard to the
penfions on the Iriih eitabliihment.
OF ENGLAND. 527
have been inconfiderable, but in proportion as
the Colonies fhould have remained in a ftate of
national poverty (a~).
fa) When I obferve that no Man who wimed for the
prefervation of the form and fpirit of the Englilh Consti-
tution, ought to have defired that the claim of the Ame-
rican Colonies might be granted them, neither do I meaa
to fay that the American Colonies mould have given up
their claim. The wifdom of Minifters, in regard t
American affairs, ought to have been constantly employed
in making the Colonies ufefu> to this Country, and at the
fame time in hiding their fubjection from them (2
caution which is, after all, snore or lefs ufed in every
Government udoh earth) ; it ought to have been exerted
in preventing the oppofite interefts of Britain, and of Ame-
rica, from being brought to an iffue, to an/ fuch claming
dilemma as would render difobedience on the one hand,
and the refort to {orce.. on the other, ahaoft furely un-
avoidable. The 'generality of people fancy that Ministers
ufe a great dep'.h of thought, and much ft recall in their
operations ; wheieas the truth is, that Minifters in all
Countries, ttever think but of providing foi: prefent, im-
mediate, contingencies ; in doing which they conftandy
follow die open track before them. This method does
very well for the common eouife of human affairs, and
even, is the fafeft ; but whenever cafes and cir tumftances of
a nr;w and unknown nature occur, fad blunders and uproat
arf; the confequences. The celebrated Coatit Oxenfliern,
Chancellor of Sweden, one day when his Son: was expreff-
ing to him his diffidence of his own abilities, and the
dread with which he thought of ever engaging in the ma-
nagement of public affairs, made the following Latin an-
fwer to him ; Nefcis mi jili, quam parvd cum fapientia re*
gitur mundm (You do not know, my fon, with what lit-
tle Wifdom the World is governed.)
S*8 THE CONSTITUTION
CHAP. XXI.
Conclufion. A few words on the nature of the JDi-
viftons that take place in England.
1 Shall conclude this Work with a few ob-
fervations on the total freedom from vio-
lence with which the political difputes and
contentions in England are conducted and
terminated, in order both to give a farther
Matters havicng come to an eruption, it was no longer
to be expe&ed they could be compromifed by the pallia-
tive offers fent at different times from this Country to
America. When the Earl of Carlifle folicited to be at
the head of the folernn Commiffion that failed for the
purpofe we miention, he did not certainly fhew modefty
equal to that of the Son of Chancellor Oxenftiern. It
has been faid that, in that ftage of the conteft, the Ame-
ricans could not think that the propofals thus fent to them
were lerioufly meant : however, this cannot have been
the principal caufe of the mifcarriage of the commiffion.
The fat is, that after the Americans had been once made
to open theii.' eyes on their political fituation, and rendered
fenfible of die local advantages of their Country, it was
become in a manner impoffible to have flruck with them
any bargain at which either Nation would have afterwards
caufe to rejoice, or even to have made any bargain at
all. It would be needlefs to fay here any thing more on
the fubjeft of the American conteft.
The motto of one of the Englifh Nobility, mould have
been that of Minifters, in their regulations for rendering
the Cclor.ies ufeful to the Mother Country, Faire fans
dire. 6
OF ENGLANI). $29
proof of the foundnefs of the principles on
which the Englifii Government is founded,
and to confute in general the opinion of
foreign Writers or Politicians, who, milled by
the apparent heat with which thofe difputes
are fometirhes carried on, and the clamour to
which they give occaiion, look upon England
as a perpetual fcene of civil broils and dif-
fenlions.
In fact if we confider, in the fir ft place,
the conftant tenor of the conduct of the
Parliament, we mall fee that whatever differ-
ent views the feveral Branches that compofe it
may at times purfue, and whatever ufe they
may accordingly make of their privileges, they
never go, in regard to each other, beyond
the terms, not only of decency, but even of
that general good underftanding which ought
to prevail among them.
Thus the King, though he preferves the
ftyle of his Dignity, never addreffes the two
Houfes but in terms of regard and affection ;
and if at any time he chufes to refufe their
Bills, he only fays that he will confider of
them (le Roy s'adz'ifera) ; which is certainly a
gentler expreffion than the word Veto*
The two Houfes on their part, though very
jealous, each within their own walls, cf the
M m
53
o
THE CONSTITUTION
freedom of fpeech, are, on the other hand,
careful that that liberty ihall never break out
into unguarded expreffions with regard to the
perfon of the King. It is even a conftant rule
amono-ft them never to mention him, when
thev mean to blame the adminiilration ; and
thofe things which they may choofe to cenfure,
even in the Speeches made by the King in
perfon, and which are plainly his own acts,
are never confidered but as the deed of his
Minifters, or in general of thofe who have ad-
vifed him.
The two Houfes are alfo equally attentive
to prevent every ftep that may be inconiiftcnt
with that refpeft which they mutually owe to
one another. The examples of their differ-
ences with each other are very rare, and were
for the molt part mere mifundcrftandings.
Nay, in order to prevent all fubjer. of alterca-
tion, the cuftom is, that when one of the
two Houfes refufes to confent to a Bill pre-
fented by the other, no formal declaration is
made of fuch refufal ; and that Houfe whole
Bill is rejected, learns its fite only from their
hearing no more of it, or by what the Mem-
bers may be told as private perfons.
In each Houfe, the Members take care,
even in the heat of debate, never to go be-
8
OF ENGLAND. 531
yond certain bounds in their manner of fpeak-
in of each other : if thev were to ofFend in
that refpecl:, they would certainly incur the
cenfure of the Houfe. And as reafon has
taught Mankind to refrain, in their wars,
from all injuries. to each other that have no
tendency to promote the main object of their
contentions, fo a kind of Law of Nations
(if I may fo exprefs myfelf) has been intro-
duced among the perfons who form the Par-
liament and take a part in the debates : they
have difcovered that they may very well be of
oppofite parties, and yet not hate and perfe-
cute one another. Coming frefh from debates
carried on even with confiderable warmth, thev
meet without reluctance in the ordinary inter-
couife of life ; and, fufpending all hoftilities,
they hold every place out of Parliament to be
neutral ground.
In regard to the generality of the Peo-
ple, as they never are called upon to come
to a final deciiion with refpedt to any public
meafures, or exprefsly to concur in fupport-
ing them, they preferve themfelves flill more
free from party fpirit than their Reprefenta-
tives themfelves fometimes are. Confidering,
as we have obferved, the affairs of Govern-
ment as only matter of fpeculation, they ne-
M m 2
53 2 THE CONSTITUTION
ver have occafion to engage in any vehement
contefls among themfelves on that account.
Much lefs do they think of taking an active
and violent part in the difference!; of particular
factions, or the quarrels of private individuals.
And thofe family feuds, thofe party animofities,
thofe victories and confequent outrages of
factions alternately fuccefsful ; in fhort, all
thofe inconveniences which in fo many other
States have conftantly been the attendants of
libertv, and which Authors tell us we muit,
fubmit to, as the price of it, are things in very
great meafure unknown in England.
But are not the Englifh perpetually making
complaints againfl the Adminiflration ? and
do they not fpeak and write as if they were
continually expofed to grievances of every
kind ?
Undoubtedly, I mail anfwer, in a Society of
Beings fubjedt to error, difTatisfactions will
neceflarily arife from fome quarter or other;
and in a free Society, they will be openly ma-
nifefted by complaints. Befides, as every Man
in England is permitted to give his opinion
upon all fubjects, and as, to watch over the
Adminiflration, and to complain of griev-
ances, is the proper duty of the Rcprefenta-
tives of the People, complaints muft necef-
OF ENGLAND. 533
farily be heard in fuch a Government, and
even more frequently, and upon more fubjects,
than in any other.
But thofe complaints, it mould be remem-
bered, are not, in England, the cries of op-
preffion forced at laft to break its filence.
They do not fuppofe hearts deeply wounded.
Nay, I will go farther, they do not even fup-
pofe very determinate fentiments ; and they
are often nothing more than the firft vent which
Men give to their new, and yet unfettled con-
ceptions.
The agitation of men's minds is not there-
fore in England what it would be in other
Stares : it is not the fymptom of a profound
and general difcontent, and the forerunner of
violent commotions. Forefeen, regulated, even
hoped for by theConftitution, this agitation ani-
mates all the different parts of the State, and is
to be considered only as the beneficial viciffi-
tude of the feafons. The governing Power being
dependant on the Nation, is often thwarted,
but fo long as it continues to deferve the af-
fection of the People, can never be endangered.
Like a vigorous Tree which ftretches its
branches far and wide, the flighted breath can
put it in motion ; but it acquires and exerts at
every minute a new degree of force, and refrfts
M m 3
S34- THE CONSTITUTION
the Winds, by the ftrength and elafticity of its
fibres, and the depth of its roots.
In a word, whatever Revolutions may at
times happen among the perfons who conduct
the public affairs in England, they never oc-
cafion the fhorteft ceffation of the power of
the Laws, nor the fmalleft diminution of the
fecurity of individuals. A Man who fhould
have incurred the enmity of the moft power-?
ful Men in the State what do I fay ! though
he had, like another Vatinius, drawn upon him-
felf the united deteftation of all parties, might,
under the protection of the Laws, and by keep-
ing within the bounds required by them, con-
tinue to fet both his enemies and the whole
Nation at defiance.
The limits prefcribed to this book do not
admit of entering into any farther particulars
on the fubject we are treating here ; but if we
were to purfue this enquiry, and examine into
the influence which the Englifh Government
has on the manners and cufroms of the People,
perhaps we mould find that, inflead of infpiring
them with any difpofition to diforder cr anar-
chy, it produces in them a quite contrary ef-
fect, As they fee the higheit Powers in the
State, conilantly fubmit to the Laws, and they
receive, themfclves, fuch a certain protection
OF ENGLAND, 535
from thofe laws, whenever they appeal to them,
it is impofiible but they mud infenfibly contract
a deep-rooted reverence for them, which can
at no time ceafe to have fome influence on their
adtions. And, in fadt, we fee that even the
lower clafs of the People, in England^ notwith-
standing the apparent exceifes into which they
are fometimes hurried, poffefs a fpirit of juftice
and order, fuperior to what is to be obferved in
the fame rank of Men in other Countries. The
extraordinary indulgence which is mewn to ac-
cufed perfons of every degree, is not attended
with any of thofe pernicious confequences which
we might at firft be apt to fear from it. And it
is perhaps to the nature of the Engliih Coirfti-
tution itfelf (however remote the caufe may per-
haps feem) and to the fpirit of juftice it conti-
nually and infenfibly difFufes throughout ail or-
ders of the People, that we are to attribute the
lingular advantage pofTeffed by the Engliih Na-
tion, of employing an incomparably milder
mode of adminiftering Juftice in criminal mat-
ters than any other Nation, and at "he fame time
of affording perhaps fewer initances of violence
or cruelty.
Another confequence which we might o 1
ferve here, as flowing alfo from the prlnci
of the Engliih Government, is the moderate
M 111 ...
536 THE CONSTITUTION
behaviour of all thofe who are invefted with any
branch of public authority. And if we look
at the conduct of all public Officers in England,
from the Minifler of State, or the Judge, down
to the loweft officers of Juftice, we find a fpirit
of forbearance and lenity prevailing in England,
among all perfons in power, which cannot but
create fome furprize in thofe who have vifitec}
other Countries.
One circumftance more I fhall obferve here,
as peculiar to England, which is the confbnt
attention of the Legiflature in providing for
the interefts and welfare of the People, and the
indulgences fhewn by them to their very preju-
dices. Advantages thefe, which are no doubt
the confequence of the general fpirit which ani-
mates the whole Englifh Government, but are
alio particularly owing to that circumflance
peculiar to it, of having lodged the active part
of Legiflation in the Hands of the Represen-
tatives of the Nation, and committed the care
of alleviating the grievances of the People
to perfons who either feel them, or fee them
nearly, and vvhofe lure ft path to advancement
and plorv is to be active in finding remedies for
fc> J o
them.
Not that I mean, however, that no abufes.
fake place in the Englifh Government, and
O F E N G L A N D. 537
that all poflible good laws are made in it, but
that there is a conflant tendency in it, both to
correct the one, and improve the other. And
that all the laws that are in being, are certainly
executed, whenever appealed to, is what I look
upon as the character iftic and undifputed advan-
tage of the En glim Conilitution. A Confti-
tution the more likely to produce all the effects
\ye have mentioned, and to procure in general
the happinefs of the People, in that it has taken
Mankind as they are, and has not endeavoured
to prevent every thing, but to regulate every
thing: I mall add, the more difficult to dis-
cover, becaufe its form was complicated, while
its principles were natural and limple. Hence
it is that the Politicians of Antiquity, fenfible
of the inconveniences of the Governments they
had opportunities of knowing, wifhed for the
eftablifhment of fuch a Government, without
much hopes of ever feeing it effected (a) : nay,
Tacitus, the belt Judge of them all, confidered
it as a project entirely chimerical (b). Nor was
it becaufe he had not thought of it, had not
(a) " Statuo efTe optime conftitutam Rempublicam quas
f< ex tribus generibus illis, regali, optimo, & populari,
" modice confufa." Cic. Fragm.
(b) " Cun&as Nationes Sc Urbes, Populus, aut Priores,
? c aut Singuli, regunt. Dele&a ex his & conilituta Rei-
53$ THE CONSTITUTION
reflected on it, that he was of this opinion : he
had fought for fuch a government, had had a
glimpfe of it, and yet continued to pronounce
it impracticable.
LctAis not, therefore, afcribe to the confined
views or Man, to his imperfect fagacity, the
tiifcovcry of this important fecret. The world
might have grown old, generations might have
fucceeded generations, ftill feeking it in vain.
It has been by a fortunate conjunction of cir-
cumilances, I fhall add, by the affiftance of a
favourable fituation, that Liberty has at lafl
been able to erect herfelf a Temple.
Invoked by every Nation, but of too delicate
a nature, as it mould feem, to fubfifl in Societies
formed of fuch imperfect beings as Mankind,
lhe fhewed, and but jufl fhe wed herfelf, to the
ingenious Nations of antiquity who inhabited
the fouth of Europe. They were conftantly
miftaken in the form of the worfhip they paid to
her. As they continually aimed at extending
dominion and conqueft over other Nations, they
were no lefs miftaken in the fpirit of that wor-
ship; and though they continued for ages to pay
" publics forma, lsudari f;.cilius quam evenire ; vel fi
" evenk, haud diutmna efle poteit." -*. Tac. Ann.
lib. iv.
OF ENGLAND. 539
their devotions to her, me (till continued, with
regard to them, to be the unknown Goddefs.
Excluded, fince that time, from thofe places
to which flic had feemed to give a preference,
driven to the extremity of the Weftern World,
banifhed even out of the Continent, me has
taken refuge in the Atlantic Ocean. There it
is, that, freed from the danger of external dis-
turbance, and affifted by a happy pre-arrange*
ment of things, fhe has been able fully to dif-
play the form that fluted her; and fhe has found
fix centuries to have been necefiary to the com-
pletion of her Work,
Being fneltered, as it were, within a Citadel,
fhe there reigns over a Nation which is the
better entitled to her favours as it endeavours
to extend her Empire, and carries with it, to
every part of its dominions, the bleflings of in-
duftry and equality. Fenced in on every fide,
to ufe the expreffions of ChamberlaY.ee, with a
wide and deep ditch, the fea, guarded with ftrong
outworks, its mips of war, and defended by
the courage of her Seamen, fhe prefer ves that
important tecret, that facred lire, i'o difficult to
be kindled, and which, if it were once excin-
guifhed, would perhaps never be lighted again.
When the World mail have been again laid
wafle by Conquerors, me will ftill continue to
54 THE CONSTITUTION, &c.
fhew Mankind, not only the principle that
ought to unite them, but, what is of no lefs im-
portance, the form under which they ought to
be united. And the Philofopher, when he con-
siders the conftant fate of civil Societies amongft
Men, and cbferves the numerous and powerful
caufes which feem as it were unavoidably to con-
duct them all to a ftate of incurable political
Slavery, takes comfort in feeing that Liberty
has at length difclofed her fecret to Mankind,
and fecured an Afvlum to herfelf.
INDEX.
N D E X,
AMERICA'S Colonies, their claim of voting fuppl'es
^-* to the crown, hurtful, if ebtaiiud, to tiie Engliih
conftitution, 522, 1527. What ought to have been the
general conduct of minifteis in regard to the colonies,
527, ,-28.
Appeal, in cafe of murder, its effects, and to whom allow-
ed, 89.
Army-, rcilrictions on the power of the king in regjrd to
the keeping of ir, 90, qi. The appropriated funds for
the p tying of the fame, 91. If not in England, a mean*
of fupponing the authority of the crown, 444, ^.n,
pajfim* How little its affilfance was ufeful to James II*
468, 469. See Military Povjct and Crown.
Arrejl, method of, in civil caufes by the Engiifb laws, 1 13,
116. By the Roman laws, 1 1 6, 118. The alterations
in the E:ii;li!h law in that refpec~r, 1 19.
JJfe?nblies, popular, the difad vantages they lie under in re-
gard to their coming to any d-.Tib rate well weighed reL>-
lution, 249, 2$j. The advantages a few dift.ir.r'iifh-d
citizens have over them, 2^1, 257, 22, 263, 26;.Tully's
pafiagc concerning them, 266. See People, Common'
ivealt/js, Home.
Athens, the people do not fcem to have really enjoyed much
liberty in that republic, 275. An inftancc or the pro-
ceedings of the magiftrates, ioid.
.Aula Regis, what kind of court, 15. The cout of Com-
mon Picas difmembered from it, 111. The cou t of
King's Bench may be conlidered as the remains of it,
118.
Author, occafional perfonal remarks of his, 377, 426, 444.,
452. His Memorials of Human Sup.erJlitiou quoted, r 1 3.
His conversation with Dr. Franklin, 525.
B.
Barons, originallv in a great meafu<e independent on the
crown, in France, 12. Not lb in England, 15 21.
INDEX.
Unite in a common caufe with the people, 2|, 23, 338,
454> 4^5*
Beauch:iv:p, lord, procures the palling of a bill for limiting
perion; 1 arrells, 1 19.
Bills, ho. delibeiated upon and framed, 6j, 68, 226, 234,
268. See Commons and Parliament.
Bit of Riglt-y an account of, , 59. Remarkable impar-
tia iy -r.d univerfality ot its proviiions, 342.
Blacijlone, judge, quoted, 69, 82, 145, i 02 , 187, 362,
5 ho.
Burnet, bifhop, quoted, 367, 59;, 469.
C.
Cafar, public fpeech of his quoted, 382, 3S3.
Cenforial power, that eftabliihed in Rome only a fenatorial
artifice, 393. See Prefs, l.berty of the.
Ccnfj'S, .n Rome, might remove a man from one tribe into
another, 277, and elect fenators, ibid. See Rome.
Chart ary, court of, Its office in regard to the flaming of
writ;, 129, 1,0. See Equity, courts of.
Charles I. iketch of his reign, 48, 52. Maintains his
ground tlrven years againff. the violent, political, and
rehgr'us ipint or nis times, 459, His a :empt to ieize
the five members ; the period of the beginning ot the
ci' il war?, 462.
Civil Engiifh law?, divided into unwritten, rmd written
law, 107. The fources of the unwritten law, 107, 100.
How far the civu 1 :w is a part or" rhe fame, 110. What
the wrhten law is, ibid. Peculiarities of the Englifli civil
laws, 113, 12 . Refinements and fubtiities in them,
120, '22, 128, 13c, 1 3 j, 134, 135, 136. Compared
with the old Reman civi! laws, 127, 128.
Civil power in England, how fuperior to the military, 462,
472.
Civil Roman laws, the conuatit diflike of the Englifh
1 nvvers for the-v, 10;, ic-6. Formalities in the ancient:
Romanians, 124, 127. Divided into civl and prato-
rial laws, i<2, I4.3. The different collections of them,
14 '.. Sec Prator.
Coke, iir Edward, quoted, 145, 176, 187, 227, 295.
Comities, Phi ip de, quuted, 30, 40.
Commons, Englifh, their fir ft origin, under Henry HI. and
Edward I. 3, 32. How inconliderabie their weight at
INDEX.
fir ft, 33. This loon increafes, 34. Farther advances,
41, 4: . How the houfe is conftitutcd, 61, 62. Vindi-
cate the right of taxation again ft the attempts of the
crown, 4c, :i. And of the lord*, 85. Their exiff-
ence wholly depends upon that right, ibid. The fir ft:
inftance of a mifunder [landing between them and the
lords in regard to money bills, 80. Commonly grant
the king's revenue for life, 79. See Taxation, They
cannot vote by proxy, 2:7. Enjoy a freedom of de-
bate fupcrior to that ever poflefTed by any popuh.r af-
femblv, 2; 5. See Propounding. They are debarred
from any fharo in the txecut ve authority, 28c, 281.
Are thence 1 d ro ferve the people faithfully, 283, 284.
Striking; inflances of this in the laws they have framed
at particular times, 3,0, 359, 32. And in their
watching ftei wards on their execution, 363. Have im-
peached the icrvanis of ;he cro*n and judges-, 363,
366. Their proceedings in the cafe of fir John Coven-
try, 367. Sec Parliament and Rcprcfentative. Abridge
their own perional privileges, 37c. In what thefc privi-
leges now confift, ibid. Do ftrict juftice on their own
members, 371, 37 3. On what occafion thry repealed the
ftatute Dc Hxrctico Comburcndo., 384. Their attacks on
the crown's prerogative defeated bv the lords, 39-, 398.
They in their turn defeat the like attempts from the
lores, 39-, 39S.
Commomveahbsy the people in them apt to be mifled by
favourite 1- ne'er?, 198, 200. The divilion of the exe-
cutive authority that takes place in them, makes it very
difficult to lay it tinder proper rcftrair.ts, 215, 216.
The people unavoidably betravc-d by thofe whom they
truft with power, 27], 277, 2-8, 284. Revolution
always corn luded in them in \ diladvantageous manner
to public libcrry, 325. See Rev Nations. The laws to
fecure the liber.)' of the citizens, befides being imper-
fect, are not even carefully executed, 343, &c feq. See
Rome. Cmnot fubfift without certain arbitrary power-,
contrary to the liberty or the citizens, 421, 422. Dj
not admit the liberty of fpeakirtg and writing, and per-
haps cannot, 429, 42b. Refpect of perfor.s cannot bz
prevented in them in the adminiftration of jufiice, 441,
4-i2. The power of the government f ppofed by law
to be unbounded till flopped by fome pofuive and de-
t H D X.
clared regulation, 4.^1, & feq. By what m^ans ccrm-
monwealths generally lofe their liberties, 481. Real
gre.tr difficulry for the people in them to prcferve their
rights 482, 484. See Rome, and Geneva.
Conqucfi, the, is the real zera or the formation of the prefent
Lnglifli government, 7.
Conjl'itutinn Knglifi), the cei'as of its formaricn, 40, 59.
B'.inrr different from that of all other free ftates, cannot
fail into ruin from the fame caufes, 473. Caufes that
operate tor i s piefei vation, 481, 47. Endangered by
the offer- of Columbus to Henry VII. 487, 488. Far-
ther reafons of its future pieftrvation, 488, 4' 4. How
it rifes again, nf er being in a manner overwhe'mned, 495.
Danger- to which it m -y be expofed, 49^, 497. In
what circumibmres it may he looked upon as annihil-
ated, 498. Middling with it, upon the fcote of im-
provement, may prove very dangerous experiments,
471, 506, 507. S e Croivn. Would have been altered
bv grauiing the American* their claims, 522, 527. See
Taxation. Seems to dirTuf- a fpirit of order and juftice
aniong the lower cl iTcs of people, 534, 3 5. Such a
one uiflicd for by the politicians of antiquity, 557,
53^-
Conluly the sera of their creat on, and nature of their office,
336. Unr t drained power, 545. See Rome.
Corona' inn oath, 92.
Coventry, fir John, his cafe, f6;. Ref ntmen- of the com-
mons, and bill thev pals, ibid. An obfervation on that
bill, ;6 9 , ; 7 _ .
Com is of law, in Eiv/l nd, the'r names and function?, in,
112. Kept by p '.lament under ftr-ft rules, 37;, 376.
The great imputiality of thtir proceedings, 376, 379,
A tew i> m..rkab!e alliances, 377, ^79, 380. See Lav.',
and "Jurv.
Cro-r.-jodl, his fruitlefs attempts to form a popular affembly
obedient to him, 4^0, 432.
Crc\v?.', its power much fuperior in England after the Con-
quelf. to what it was in Fr.nce, 10, 2c. The borons
co r .' j.clled to unite with the communal. y, to reftmin its
puver, 21, 24. Irs prefent conftitutional prerogative,
7-2, 7:. Reitraints it lies under, 87, 91. Sec King.
Totally dependent on tlav peo. le for its fnpplics, 74, 77.
Vietulr-.;i"s of its power in preventing any citizen or pj-
INDEX,
pular leader from acquiring a degree of power danger-
ous to public liberty, 202 206. Inftances of it, 214.
Is not to make open propofais to parliament, for their
aflent or diffent, 239, 240. May fend them mefiages,
and to what effect, 237. Its name nor to be introduced
to influence debates, 269. Unites in itfelf the whole
executive authority, 281, 28:1. Thereby produces an
Union in a common ciufe among all orders of fubjects,
285 287. Is like an ever-fubfifting Carthage that main-
tains the virtue of the representatives ot the people,
288. Farther illuitration of the fame fact 356, & leq.
367 370. The power of Crowns has not produced thefe
effects in other countries, 388. Numerous inftances of
this, 388 391. The liability of the executive power
of the Englifh crown, 391,- 392. Is a grear peculiarity
of it, ibid. Is not a fubject to be explained here other-
wife than by facts, 393-395* Its power alternately
defended by the two lv ufes, 3^.5, 396. The fecret for-
bearance of the two h'>ufes not to invade its preroga-
tive, 399, 400. Very remarkable inftances of this, 403
409. Its whole authority centres in the fovereign, the
privy council only to advife him, or witnefs his opera-
tions, 404. Its fecure power rendered confpicuou* in
the facility with which it difmifles <rreat men irom their
employments, 409, 412. Not fo in other monarchies,
ibid. The facility with which it difmifles the parlia-
ment, 413 41^. This facility rendered remarkable by
the facts that take place in other monarchies, ibid.
Never waged war ag-unft, except by p*erfons who pofi-
tively laid claim to it, or at lead: upon national grounds,
416, 417. Its power more fecure in itfelf, but not fo
indelibly annexed to the perfon of an individual as in
other countries, 418. The fecret caufes of its peculiar
liability is a fubjeel; more properly beb ngin? to philo-
sophy than to politics, 419. Great advantages refult
from this liability, 42c. I. The numerous reftraints it
is able to bear, and great freedom it c..n allow the fub-
jec~t at its expense, 421 124. II. The liberty of
fpeaking and writing, ca*ried >o the great extent it is
in England, 424 428. III. The unlimited freedom of
debate in parliament, 429, 434, 435. IV. The union
among all orders of fubjects in defence of public liberty,
43ii 43^' V* ^^ e unlimited freedom allowed to the
N n
I N D E X.
people, of meddling with government affairs, 438440.
VI. The impartiality with whkh juftice is dealt, with-
out refpe&o f peribns, 440 444. VII. Needleflhefs of
an armed force to fupport its power, 397, 444, & feq.
456 472. VI1L Its ftridt refpecf eren for the letter of
the law, 451, 456. IX. The leuity ufed in the admini-
flration of criminal juftice may perhaps be afcribed in
great part to the general feeurity the ftable power of the
crown gives to the whole machine of government, 454.
The great power the crown formerly derived from its
dominions beyond fea, fupplied afterwards by hidden cir-
cumftances at home, 455, 458. Inftances of this great
power without the fupport of an armed force, 458, 462.
It keeps the military power in a furprizing ftate of fub-
ieftion to the law, 462 467. Inttancea of this, ibid.
Really could not, in the general fituation of things, de-
rive any affiftance from a itanding army againft the peo-
pie* 467, 468. The method it mould adopt for fetting
afide the pre fen t conftitution, 469, 470. Its power is
wholly annexed to the civil branch of its office, 458,
471. Hints concerning its effectual foundations, 471,
472. Prevents the Englifii conftitution from being de-
(1 roved in the fame manner the Roman republic was,
477. The great ufefulnefs of its veto power, 487.
Confiderations on the attempts to abridge its prerogative,
498. In what circumlfances thefe attempts might be
brought to fucceed, 499, 500. A comparifon between its
prerogative, and that of the kings of Sweden, before the
lalt revolution, 501 504. The abridging of its prero-
gative might not anfwer the expectations of thofe poli-
ticians who wifh for it, 501, & feq. Sketches of the
dangers to public liberty that might arife therefrom, 505,
511. The rule to be followed in purfuing fuch attempts,
511, 512. How dependent on the people for its fup-
plies, fee Taxation.
Cunningham's Law Dictionary quoted, 129, 152.
D
Dthate, freedom of, fecurcd by the bill of rights, 97. See
Propounding. How conducted in the Englifh parliament,
66 68, 267 269. The unlimited freedom exercifed
in the Englifh parliament nor followed by any b*d conic.
qu:nces, and why, 434, 435.
INDEX.
Dictators, their great power, 264, 346. Their abfolute
power was often ufeful, 421, 422. See Rome.
DifoUtion of the parliament, its effects, 65. Eafily effected
by the crown in England, 414, 415.
Douglas, earls of, cauiea to be flain by king James II. of
Scotland, 411.
E.
EdivardL furnamed the Englifll Juffihiah, 31.
Elections, laws relating to them, 63, 64, 98. GrenvilWshWX
for deciding contefted elections, 99. Advantages arifing
from the right of the people to elect reprefentatives, 289,
290, 308 314. See People.
Elizabeth, queen, the inquifitorial court of High Commijfiort
eftabliflied during her reign, 46.
Emancipation of. tons, in Rome, manner of, 140, 141.
England, the power of the king becomes very great at the
aera of the conqucft, 13. The lords or barons much de-
pendent on the crown, 15. Are thence compelled to
unite in a common caufe with the people, 21 -i\. Dif-
ferent from France, in that it formed one compact united
kingdom, 26. This circumilance favours the eftablifh-
ment of public liberty, ibid. A peculiarity of its go-
vernment, viz. the advantageous manner to public liberty
in which revolutions have conftantly been concluded,
324, 337343. See Revolutions. The flriclnefs with
which laws favourable to the liberty of the fubject are
executed, 343', & feq. 357, & feq. See Commons. Re-
markable impartiality in the courts of law, 376 378.
Inttances quoted, 377, 380. Farther ftricturcs on the
fame fubject, 442 444. The people may be faid in Eng-
land to be inverted with both the judicial and cenf'rial
powers, 428, 429. Singular law doclrine concerning the
authority" of government, and the liberty of the fubject,
451 457. The people's iituation different from that of
the people in Rome, 475, 476. See People. The ba-
lance of the people in government is connected with the
right of property, 481. See Taxation. Di virions among
the people never carried very far, 532, 534. The lower
clafs pofl'eiled of a conliderable fpirit of order and juftice,
534^ S35-
Equity, courts of, an enquiry into the meaning of the word,
attd their real office, 137, 138. A court of this kind ex-
N n z
INDEX.
jfted in Rome,. 138, 139. See P rector. Remedies af*
forded by the Englifli courts of equity, 147, 144. How
thefe courts were fii ft inftituted, ibid. The opposition
they meet, 145. Their method of proceeding to enforce
appearance, and fubmiffion to their decrees, 145, 146.
Are kept within much more uricf bounds than the prae-
/ar'jequity court was in Rome, 150 152. Farther de-
finition of th'tir effice, 152, H4.
Executive power, lodged in the king, is more eafily repreffed
when confined to a fole indiviiible feat, 215, & fcq. is"
taken out of the hands of the reprefentatives of the
people, 280, 281. Great advantages thence ariling, 280,
285. See C,mvn.
F.
Fair fans dire, the motto quoted, 528.
Favourite of the people, how prevented in the Engliih con*
flitution from acquiring a power dangerous to public li-
berty, 2 6, & feq. , See Commonwealths.
Fclton, his anl.wer to the bifhop of London, ;8i.
Feudal government introduced in France through a long
feries of events and years, 10. Is introduced fuddenly
and at once; in England by the Conqueit, 13. Conie*
quences of thefe differences, 15.
France, the ftudal government was eflablifhed in it in a
very flow manner, and how, 10, 11. The crown was at
firft elective, n. The authority of the king originally
very inconfiderable, 12, 16, 17. The lords or barons
were in great meafure independent on the crown, ibid.
Thefe cireumfiances prejudicial to the liberty of the peo-
ple, ibid. 18 20. Is formed by an aggregation of
many different fovereignties, 18, 19. See Reunions. The
remarkable treaty by which the war for the public good
was terminated, :o. General eftates, how conltituted, 34.
The third eftate or commons never polTefTed or any
weight, ibid. A remarkable infurrection, 36. The con-
Ititution of France about the time of Hi!gh Capet, much
the fame with that of the German empire at prefenr, 39.
.What they call Edits enngifires y 70. French parliament,
what, ibid. Late king's expedient for difmifling the par-
liament of Paris, 413, 414. The jealoufy of the crown
againft that aflembly, 432, 433. Companion between the
INDEX.
French and Englifh constitution in regard to the right of
tax;.. Ion, 45, 516 520.
Frankiin, Dr. quoted, 523, 521;.
French language introduced inro the Englifh laws by William
the Conqueror, 69. Is ftiil ufed by the king in declaring
his intention to the parliament, 68. judge Biackftone's
paffage on that fubjecl, ibid.
G.
George I. king, led into an imprudent ftep, 398, 499,
General warrants, fet afide, 486.
Geneva, republic of, mentioned, 230,25^,307,486.
Germany.) by what caufe the growth of the power of the
crown has been checked there, 39. Its prefent ftate
compared with thai or France in the time of Hugh Capet,
ibid.
Grecian commonwealths, revolutions in them only favour-
able to the particular interefts ot leaders and dema-
gogues, 336. The reproach made them by Cselar, 382,
383.
Gracchi, how forfaken by the people, 265.
Grand Jury, its office, 170.
Guife, duke of, flain by order of K. Henry III. of France,
411, 412.
H.
Habeas Corpus ae*r, when paiTed, and for what purpofe,
192. The tenor of it, 192 194. The particular occa-
sion of it, 362. ExpieMions ot judge Blacklrone on the
fubject, ibid. Quoted by Junius, ibid. On what occaiion
fufpended, and with what caution, 424. By what means
finally fettled, 4S6.
Hale, Judge quoted, 31. His defcription of the office of a
Jury, 17*.
Hemy I. grants a charter to his iubjects, what condition he
annexes to it, 24.
Henry VIII. his great power, 45. Was unfupported by a
[landing army, 390.
Holt, judge, remarkable opinion delivered by him, 318.
Hugh Capet, the fiift nereditary king in Fiance, 11, The
haughty aofwer of a French lord to him, 13.
N n 3
I N D X.
fluvic, Mr. a few words on the character given by him of
James II. 460.
Jacob's law ditfionary quoted, 128, 152.
James I. liberty begins to revive in his reign, 47. Hi$
lofty notions concerning regal authority, ibid. Keeps
his ground againfr the refllefs fpirit of the times, 459.
James II. how his dethronement was etre:tec:, 55, 57.
Was inexcufeable in his conduct, 460. A few more words
on the manner of his being dethroned, 4^9, 460. Re-
ceives no manner of aliiftance from his numerous army,
4Q>', 469.
Jcjuits, how expelled from Spain, 415, 416.
Impeachment, public, what, and its effects, 93, 94. The
king's pardon no bar to the proiecution ot an impeach-
ment, 95. Can it prevent the execution of the judg-
ment? ibid. Inftances ot mini!icts and judges impeached
by the commons, 93, 94, 363 366.
In.prifonmcnt, the method formerly uied for liberating im-
prisoned pcrfons, 189. They were inefficient againft
the power of the privy council, 190. A new force given
them by the petition of rights, ibid. Evaded again by
means of an alias and a pluries, 191. Habeas corpus act,
192.
John, king, grants the great charter, 26, 27.
John/on, Dr. Samuel, his opinion concerning the office of
the courts of equity, examined, 137.
Journaloi the commons. Their addrefs to the crown in
regard to the printing" of the fame, 408.
Judges, how they may be removed fvom their offices, 79.
Tiieir office in criminal caufes is only to direct the jury,
and afterwards to pronounce the law, 179, i8o % Decide
in Fel-on's cafe the torture cannot be ufed, 18 !. Cannot
alter the mode of punilhment, 182. Inftances of judges
impeached, 363 366. Sec Courts,
Judicial power, in regard to criminal matters, the neceffary
cautions in eftabiiibing iuch power, 154, & feq. Should
not be tiufud, efpecially in a free ftute, to any too
powerful perfi ns or bedie?, 163, & feq. Allufions to the
foreign courts of law, 164, 167. See Trial. May be
faid in England to be in the hands of nobody, 1F4. Lodg-
ed in the peo; le, 428, 429.
Junius'* letter, quoted, 176, 362.
I N D E X*
Jury, how they are to fliape their verdicSt, 175. Mull decide
both upon the faft and the criminality of it, 176. What
rules muft follow in their opinions, 178. Judge Hales'*
remarkable paffage in that fefpect, ibid. Ufually pay a
great regard to the judge's direction, 186. The effect of
their recommending to mercy, ibid. See Trial and Ju-
dicial Power.
Jujiice, impartiality of its adminiftration in England, 376
380, 442, 443. See Lavj and Judicial Power.
K..
King, his prerogative by the conftitution 72, 73. The
reftridiion let by law upon the exercife of the fame, 87
91, Commonly granted a revenue for life, 79. Not to
interfere, nor his privy^council, in the decifion of caufes
either civil or criminal, 88, It is difpuied whether he
can remit the profecution of a fentence awarded in. con-
fequence of an impeachment, 95. Not to be named in
debates, 26g. The laft inftance of one ufing hjs negative
voice, 405. See Croivn.
Laws. See Legijlation. Difficulty in procuring juft ones,
248. A very necefl'ary caution in framing them, 279, 280.
Law, criminal, how ftruTtly the letter of it is adhered to
in England, without any extenfion, 180, 318, 45 3 T
Great mildnefs of it, 185187. See Punijhments.
Legijlative power, how formed in England, 61, & feq, Adr
vantages arifing from its being divided, 218, & feq. Re-
markable conltartcy in its ^operations in England, 223,
Not lb in the ancient commonwealths, ibid. See Par-
liament.
Legijlation, the bufinefs of, conducted in England upon,
quite different principles from what it is in the republican
governments, 229. The manner in which laws are fram-
ed in commonwealths, 229, 230. Inconveniency of it,
231. The manner in which laws are framed in England,
232. Advantages of the fame, 234230, See P,o-
founding. Would it be an advantage if laws were en*
a&ed by the people at large, 2^.0, 246 2^6. See
People.
Liberty, the word much mifapplied or mifunderftcoi, 241,
244. A truer definition ot the fame, 245, 246. How
the provisions to (ecure it ihould be dirccled, 279.
N n 4
INDEX.
Singular law doctrine in England concerning the liberty
of the fubject, 4; i -457.
Livy quoted, 253, 264, 329, 332, 334, 346, 347,
348.
Lords, the houfe of, how conftituted, 65. Not fuffered by
the commons to frame, or even alier a money-bill, 67.
Make it a (landing order to reject all money-bills to
which bills of another nature have been tacked, 77, 78,
396. Have not given up their claim in regard to alrrring
mo ey -bills, 86. The grtat pre-eminence, allowed them
in p' int of ceremony over the commons, 226, 227. Can
vote by proxy, ibid. Unite in a common caufe with the
people, againfl the power of the crown, 21, 22, 49, 50,
285 287, 363 370. Abridge their own perfonal privi-
leges, 373. Their impartiality in their judicial capa-
city, 374, 375. Cannot be charged with having abufed
their privilege of trying their own members, 374, 3^5.
Defeat the attempts of the commons on the crown's pre-
rogative, 395 398. Their wn attempts defeated by
the commons, 397, 398. A bill is framed to limit
their number, 398, 499. The great importance of
th.it bill generally overlooked, co6, 507. See Par~
Vament and Peers,
Lyttleton, lord, quoted, 315.
M.
Macbiavefs Hiflory of the Republic of Florence, quoted,
2 o.
Magna Charta, when and how obtained, .6, 27. An ac-
count of it, 27 z > Remarkable extenlivenefs and
impartiality of its provifions, 338.
Marlborough, eafily difmiffed from his employments, 214,
409, 410.
Martial, courts, a remarkable difpute between one and a
couitoflaw, 464, 465.
Martial law, mull be univerfal, where the authority of the
government is fupported by a {landing army, 447, 448.
Members of the houfe of commons, their perfonal privi-
leges, 370. Inftance of fome punifhed by their own
houfe, 371, 372. Set Commons.
Military power, a caufe of anxiety to thofe fovereigns whofe
authority is fupported by it, 446 448. Cannot in fuch
c;ife be fubjected to the civil power, 462, 463. Its need-
leflhefs to fupport the power of the crown in England,
I N D EX.
390, 456 462. The furprifmg fubjecYion of it to the
civil power in England, 390, 462 467. See Cro-zvn.
Mtni/ter, equally interefted with other fubje&s in maintain-
ing the laws concerning perfonal fecurity, 285. A dif-
earded one in other countries, the caufe of fome anxiety
or jealoufy to the government, 412. Not fo in England,
412, 440.
Monarchies, revolutions always concluded in them by pro-
vifions for the advantage of great men and leaders, not
of the people, the f ime as in commonwealths, 337, 402,
435 "437* The executive power of the crown in all an-
cient or modern monarchies, wanting that peculiar frabi-
lity of the Englifli crown, 388. Numerous inftances of
it, 388 391. Not fee u red otherwife than by Handing
armies ibid. The monarchs are afraid of powerful fub-
jecis, 411, 412. Cannot do without fome arbitrary
means of afferting their authority, 422. Very jealous
of the liberty of the prefs, and perhaps are really obli-
gated to be fo, 424, 425. Extremely averfe, out or fear
for their own fecurity, to calling popular aflemblies to
take advice and affiftance from, 429 433. yelped of
perfons in the administration of juflice cannot be pre-
vented in them, 441, 442. Anxious precautions taken
in them in regard to the military power, 446448.
Their law doctrine concerning the executive authority of
the government, 451, 454. The military fuperior to the
civil power, 462, 463.
Money Bills, not to be altered by the lords, 67, 86. Not
to be tacked to other bills, 77, 78, 396. See Taxation.^
Montcfiuieu, quoted, 293, 472.
More's Utopia, quoted, 293.
O.
OJlrac'ifm, an arbitrary unjuft expedient, but perhaps ne-
cefl<iry in the republic of Athens, 422.
Oxenflurn, chancellor, his words to his fon, 527.
Parliament, Englifh, the confiitution of, 61 70. How to
be called, 63, 87. How bills are pafTed, fee Bill,
Proceedings in parliament not to be queftioned in any
other place or court, 97. The fecret bent of that af-
INDEX.
fembly to forbear invading the prerogative of the crown,
405*7409. By the conffitution, force is removed from
thejr cebates, 449, Cautious conduct of the three
branches towards each other, 529, 531. See Commons
and Crotvn. i
Parliam ?tts, French, what they are, 70. That of Paris,
the motives of its fir ft inftitution, ibid. Is only an aflem-
bly of a juaiciary nature, ibid. What kind of fhare it
claims in legiflation, ibid. The great weight of that
afTembly, 163. Difficult to be managed by the crown,
ibid. How the late king difmiffed ir, 413, 414. Pre-
cautions taken by the prefent king in relloring it, 433.
See France*
Parliamentary Hiftory of England, a fuperficial obfervation
of its authors, 340.
Pardon, the prerogative of, lodged in the king, 72. Can-
not be pleaded as a bar to an impeachment being canied
on, 95. Doubtful whether it can flay the execution of
a fentence awarded in confequence of an impeachment,
ibid. Often granted on the recommendation of a jury,
186".
Peers, how to be tried ? 179. Have few real perfonal pri-
vileges above the fubject, 373. See Lords.
People, how milled by favourites or demagogues, 198 200.
How influenced or deceived by the magiftrates, or great
men in commonwealths, 250 257. Should act through
reprefentatives, 246. 259. Should entirely delegare the
Jegiflative authority to thefe, 26c 27.'. How and in
what circumftances only, the right of rejifiancs may be
ufefully exdted by them, 320 324. See Commonwealths,
and England. May be faid in England to poffefs both
the judicial and cenforial powers, 428,429. The free-
dom they enjoy of interfering in government matters,
438 440.
Pope, Mr. quoted, 2-0.
J.ex Porcia de tergo civium, 274. 318.
Praemunire, the different meanings of the word, 194.
Prator, his office in Rome, 116. Aflumes the office of a
judge of equity, 139. His provifions, 139 142. Their
power very arbitrary, 147. When firit retrained, 147 ?
IJ 9- ...
P; ffs, liberty of the, is a real cenfori.il power lodged in tht
people, 29 1, 292. Much more effe&ctai jthan the one
I N T> x.
eftablifhed in Rome, 293. And more ufeful by far to
the community, 293, 294. How difficultly this liberty
wS gained at the expence of the executive power, 294,
295. A licencer appointed upon the prefs by the ftar-
ch amber, 2,5. By the long parliament, ibid. By
Charles L . ..id James II. Finally eftab'.ifhed in the
year u 4, and how, 296. A definition of it, 296, 297.
Actions reflecting the lame not to be decided without a
jury, 297, 298. How extentive its ufe has become, 299.
300. Very great political advantages arifing from the
lame, 301 305. Is farther ufetul, combined with the
other rights of the people, 305 308. Such as the right
of election, 308, 309. How ufeful a fupport to the right
of refinance, 319, 320. Is not allowed in common-
wealths, andwh). 425,426. Nor in monarchies, 424,
425. Its being tolerated in England to fo high a degree,
depends on the liability of the executive power of the
crow r n, 427. By its means the cenforial power may be
faid to be lodged in the people, 4.28, 429. The real
foundation on which it re its in England, 452, 453. Er-
ror of the author, at firft, in this ielpef, ibid.
Prijoner, how to be committed, 169, 170. When once
acqu.tted, cannot be tried again for the fame offence, 179.
See Trial.
Privy council, its power abridged by the fame act which
aboliihed the itar-chamber, 88. Its real office in the
Engiifh government, 404. How formed, ibid.
Prorogation, its effects, 65. The term not to be afterwards
fhortcned, 87.
Propounding, in legiflation the privilege of, referved to the
executive power in commonwealths, 229 231. Allotted
in the Engiifh conftitution to the reprefentatives of the
people, 232 2^6. How the fame was formerly fettled in
Frame, Sweden, Scotland, and Ireland, 235. Great ad-
vantages accruing to public liberty from this right being-
lodged in the reprefentatives of the people, 232 240,
269 271. Its remarkable advantages for preferving the
Engiifh conftitution, and inftances of it, 482 486.
PuniJbmentSy the judge cannot alter the mode of, 182. Nor
the fheiiff, ibid. Do not extend beyond the fimple de-
privation of life, 187. Their mildneis in England, 381.
Not fo among the Greeks and Romans, 381, 382. At-
tention of the Engiifh legiflature in that refpet, 385, 386.
INDEX.
R.
Reprcfcntati'veS) qualifications for being one, 6z. Advan-
tages that .iccrUv ro the people from acting through re-
prcfentatives, t.b 25 , 259. More hurtful than bene-
ficial when their intereft is not in reality united wih that
of the people, 259. The people fhould entireh delegate
the legiflative authority'to tht m, 261 267. The fedate
manner in wh'ch in England they debate the fubjecls and
vote, 268. Do not allow he fpeaker to have a vote, 269.
Nor the king's name to be introduced in debates, ibid.
Are debarred from all executive authority, 28b, 281.
Capital advantages ihence arihng, 280, & feq. 2S7, 288.
See Commons and Peple.
Refiftnnce^ right of, admitted by the Englifh laws, 314 3 16.
Opinion of judge Blackllone quoted, 317. Re . ognized
even by the courts of law, 318. Is in a great meafure
an ufelefs right, unief- combined with the liberty of the
prefs, 319 320. What circumftr.nces are required for
its being Lift full) exerted, 3 o 324.
Revolutions have always been concluded in England in an
advantageous manner to public -ibcrty , 324. A leiies of
inftances, 337 343. Not fo in the Roman common-
wealth, 37.;. A feries of inftances during t fie whole
time of its duration, 324 336. The f me dTdvantage
obra ns in the Greek republcs, ,36. And in the limited
monarchies of Europe, fuch as Scotland, Sweden, &c
337, 400402, 435437.
Revolution of the year 1^89. How accompli fhed and im-
proved, 59, 342. 343, 403. See Revolutions.
Re-unions, of particular provinces to the crown, in Fnmce,
1 8, 19. I he manner of thefe re-unions, and doctrine of
the French lawyers in that reflect, ibid.
Rome, wrong m ions of liberty the patricians and fenare
give to the people, 241. The fenate inverts itfelf with
the power of laying taxes, and on what oceafion, 253.
The tribunes do not enact laws without the concurrence
of the people. 261. The influence of fenators and great
men over the people, and their artifices, .62 20^, 267.
The people, and e^en the tribunes, greatly over-awed by
a dictator, 261. The people betrayed by thofe in whom
they milled, 272. The tribunes not earneft in the de-
fence of public iiberty, 273. The fenate, confuls, and
i 1st d e x*
dictators, poiTelTed >>f an arbitrary power over the lives cf
the citizens, 274. AfT'me occalionally a power to take
from the Capitol, and fet alide the laws enabled by the
people, 275, 276. Who we're called nobilts, 216, 278*
The cenfo.rial power only a piece of enatorial craft, 293.
Revolutions conftantly concluded in a difadvantageous
manner to public liberty, 325. A feries of inftances,
32^ 336. The laws concerning the liberty of the citi-
zens were not flrirUy executed. 344.. A feries of in-
ftances, 345, & feq. Remarkable inlt nice of infolence and
cruelty of a magistrate, 349. The rapacioufnefs of the
men in power in regard to the allies and lubjecls of tho
republic, 350. Corruption of the judges, 351, 352.
Remarkable changes of the formation of them, ibid. A
remarkable palfage of Tuily in regard to the dif >rders
that took place in the republic, 354. A ftiort fketch of
their real caufe, 355, 356. Dangers to which both its
liberty and empire were expofed, 474, 475. How the
final overthrow of the republic was operated, 476, 477.
The political rights allotted to the people, 479.
Roufjeau cjunted, 225, 241, 261, 29;, 4^4.
Rnjjian ambailador, the cafe of his an eft, 380.
S.
Saxon government, abolished in England by the Norman
Conquefl", 7. Paffages of fir William Temple, and Spei-
man, on that fubjeel:, ibid. How far reftored fince the
Conquefr, 8, 9.
Scotland, the number of reprefentfitives it fends to Parlia-
ment, 62. The lords of the articles, what affbmbly, 233*
The authority of the crown commonly invaded by the
nobles, 402. The bill that had been framed for fettling
the crown on the houfe of Hanover, 402, 403. No ad-
vantageous expedient to have trufted the nobility with
the command of a ftaiuling army, ,149.
Secretary ot (late, cafe of an attion brought ;igain(t one, by a
private individual, 379.
Senate, Roman, how formed, 277. See Rome. Their
conduct at the expulfion of the kirgs, 52 , 326. See
Revolutions. The great p wcr they arT.nned over the
lives of the citizens, 274, 347.
Sev.'vne, mad. de, quoted, 52c, 521.
5
t N D E X.
Smithy Dr. Adam, his opinion on liberty, and on the effeSti
produced by a landing army examined, 444' 450.
Farther obfervations on the fame fubjectin general, 457
472.
Spain, how that monarchy was formed, 38. The expedi-
ent ufcd by the prefent king for difmiffing the Jefuits,
415, 416.
Spclman, quoted, 7.
Star-Chamber, the court of, how conftituted, 51. Sup-
pieffed the liberty of the prefs, 295. Exp'reifions of
fir Edward Coke concerning it, ibid. Was a kind of
a court of equity in regard to criminal matters, 455,
456. By what means abolifhed, 485.
Statute de herctko comburendo, on what reafon repealed, 384,
That for allowing parliaments to meet 01 themfelves, re-
pealed, 406.
Svjedoii an account of the Revolutions that hare taken place
in its government, and of the reftraints at times put on
the authority of the crown, 400, 401. The difadvantages
of the body of the people in the legiflature, 480. An
account of its government before the laft Revolution,
501504.
Swift, dean, quoted, 410.
T.
Tacitus, quoted, 43, C37.
Taxation, right of, when firft fecured to the lords and com-
mons, 35. Poffeffed in England by a fingle parliament,
not feveral affemblies as in France, 44, 45. Is rendered
thereby a much more efficacious check upon the crown,
ibid. All taxes or money bills rauft originate in the
houfe of commons, as well as the alterations in fuch bills,
67. The great conftitutional efficiency of that right,
74 -4. The exiftence of the commons wholly depends
upon the fame, 85. The advantages ofr this right
of the commons, when combined with the right of
propounding law remedies, 235, 236. How firmly it fe-
cures all the other rights of the people, and the whole
cbnfiitution againfl the attempts of the crown, 4S1, & feq.
487. Is the conftitutional balance of the people againft
the crown, 513. At the fame time the only forcible
one, 514, 515, 527. Rendered ineffectual when lodged
I N D EX.
in fevcral difKnc*l provincial affemblies 4;, 517 5 2d.
How might grow to be fo divided in England, 522.
The granting the Americans their claims would have al-
tered the Englifh conftitution, 522 527.
Temple, Cr William, quoted, 7.
Torture, attempted to be introduced in the reign of Henry
VI. by the dukes of Exeter and of Suffolk, 181. De-
cided to be illegal by the judges, ibid.
Treafon, high, ftatutes concerning it repealed, 46, 82. How
trials for cafes of treafon are to be conducted, 174, 175.
Tribunes, betray the caufe of the people, 272 27c;. The
asra of their creation, 322. Their intereited public con-
duct, 32S 336. See Rome.
Trial by jury revived in the reign of Henry II. 25. How
to be conducted, 171, & feq. Muft be public, 182.
Great advantages of this infHtution, 185, 184. How
ftrictly preferved in England, 357, 358. Not fo in Nor-
mandy, Sweden, and Scotland, 358. See Judicial Power
and Jury.
Trials, the manner in which ptifoner* are tried in foreign
countries, 166, 167.
Tucker, dean, 521.
Tudors, the great power of the princes of that houfe, 43, 45,
458. Were not alii tied by any armed force, 390, 45 S.
Tully, quoted, 125, 142, 263, 266, 276, 349, 354, 537.
V.
Valjlein, duke of, caufed to be flain by the emperor Ferdi-
nand II. 41 1.
Perdi3 7 how to be expreffed, 176. A fpecial one, what,
ibid. A paffage of Coke on the fubject., ibid.
W.
William the Conqueror, fets afide the Saxon, and fubftitutes
the feudal government, 7, &: feq. PofTefTed of an uncom-
monly great authority, 14. What regulations he intro-
duces into England, 13 ic.
Writers, political, their ill-judged expreffions and notions,
24 1 243. Their unwife admiration of the ctnforial
power in Rome, 293. Have not penetrated into the real
foundation of the fcience of politics, 473. Have treated
INDEX.
It was an occult kind of fcience, as natural philofophy
was, in the time of Ariftotle, 497. Anecdote of one,
453*
Writs, their importance in the Englifh courts of law, 127,
130 1 33. Compared to the Roman Aftioms lcgis t 127*
The difficulty in creating new writs, 132, 133.
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