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 n^rO I
 
 THE 
 
 CONSTITUTION 
 
 E N G L A N 
 
 O R 
 
 AN ACCOUNT 
 
 O F T H E 
 
 ENGLISH GOVERNMENT; 
 
 In which it is compared with the republican Form of 
 
 government, and occasionally with the 
 
 other monarchies in Europe* 
 
 By J. L. DE LOLME, Advocate, 
 
 CITIZEN of GENEVA. 
 A NEW EDITION. 
 
 Ponderibus libratafuis. 
 
 Ovid. Met. L. I. 13. 
 
 L O N DON: 
 
 Sold by G. KEARSLEY, in Fleet Street; and 
 J. RIDLEY, in St. James's Street. 
 1 m WW 
 
 MDCCLXXVII.
 
 117 
 L8St 
 
 mi 
 
 i
 
 CONTENTS. 
 
 Pa ge 
 Introduction j 
 
 CHAP. 
 
 J. Caufes of the Liberty of the Englijh Nation. 
 Reafons of the difference between the Government of 
 France, and that of England. In England, the great 
 power of the Crown, efpecially under the firji Norman. 
 Kings, created an union between the Nobility and the 
 People 6 
 
 II. A fecond advantage England had over France* 
 it formed one undivided State. 24 
 
 III. The Subject continued * - 4r 
 
 III. Of the Legiflative Power ! 6 1 
 
 IV. Of the Executive Power 72. 
 
 V. The boundaries which the Conjittution has fet to the 
 Royal Prerogative 75 
 
 VI. The fame fubj ell continued 
 
 VII. New Reftritlions 
 
 VIII. Of private Liberty, or the Liberty of Indivi- 
 duals 110 
 
 X. Of Criminal Jujlice - no 
 
 XI. The fame Subj ell continued 125 
 
 XII. The Subj eel concluded, Laws relative to Im- 
 prifonments 143 
 
 B O O K II. 
 
 I. Some Advantages peculiar to the Englijh Confiitu- 
 Hon. 1 . The Unity of the Executive Power 1 50 
 
 II. The Executive Power is more eajily confined when it 
 
 is ONE I7O 
 
 III. A fecond peculiarity of the Englijh Government. 
 The Divijion of the Legiflative Power 173 
 
 IV. A third Advantage peculiar to the Englijh Govern- . 
 ment. The bufinefs of propofing Laws lodged in the 
 Hands of the People - 18^.' 
 
 V. In which an Inquiry is made, whether it would be. 
 an Advantage to public Liberty that the Laws ft} mid 
 be enalled by the Votes of the People atlarge 1 35
 
 <i 
 
 t ] 
 
 CHAP. Page 
 
 VI. Advantages that accrue to the People from appoint- 
 ing Reprefentatives in 
 
 VII. The Subjee? continued. The Advantages that ac- 
 crue to the People from appointing Reprefentatives are 
 very incorJiderable> unlefs they alfo iniirely delegate 
 their Legijlative Authority to them 215 
 
 VIII. The Subject concluded. Eff eels that have re- 
 fused in the Englijh Government, from the People's 
 Power being completely delegated to their Reprefenta- 
 tives 111 
 
 IX. A farther DiJ advantage of Republican Govern- 
 ments.- The People are necejfarily betrayed by thofe in 
 whom they truft 226 
 
 X. Fundamental difference between the Englijh Govern- 
 ment , and the Governments jujl deferibea.-In Eng- 
 laml all Executive Authority is placed out of the hands 
 of thofe in whom the People put their confidence. 
 Ufefulnefs of the Power of the Crown 23 5 
 
 XI. The Powers which the People themf elves exercrfe. 
 The Election of Members of Parliament 243 
 
 XII. The Subjeel continued. Liberty of the Prefs. 246 
 
 XIII. The Subj eel continued 260 
 
 XIV. Right of Refinance 269 
 
 XV. Proofs drawn from falls of the truth of the Prin- 
 ciples laid down in this Work . - 1 The peculiar Man- 
 ner in which Revolutions have always been concluded 
 
 England 27 9 
 
 X VI. The Manner in which the Laws for the Liberty of 
 
 the Subj eel are executed in England 298 
 
 XVII. A more inward view of the Englijh Government 
 than has hitherto been offered to the Reader. Total dif- 
 ference between the Englijh Monarchy > as a Monarchy, 
 and all thofe with which we are acquainted 342 
 
 XVI I I. How far the examples of Nations that have lofi 
 their Liberty are applicable to England 369 
 
 XIX. CoKcluf:on.A few words on the Nature of the 
 Divifions that take place in England 39 2,
 
 THE 
 
 CONSTITUT ION 
 
 O F 
 
 ENGLAND. 
 
 INTRODUCTION. 
 
 HE fpirit of Philofophy which 
 peculiarly diftinguifhes ihe pre- 
 fent age, after having corrected 
 a number of errors fatal to So- 
 ciety, feemsnow to be dire&ed towards the 
 principles of Society itfelf; and we fee pre- 
 judices vanifti, which are difficult to over- 
 come, in proportion as it is dangerous to at- 
 tack them (a). This rifing freedom of fenti- 
 
 (a) As every popular notion, which may contribute 
 tft the fupport of an arbitrary Government, is at all time^ 
 
 I
 
 2 THE CONSTITUTION 
 
 ment, the neceffary forerunner of political 
 freedom, led me to imagi e that it would 
 not be unacceptable to the Public, to be made 
 acquainted with the principles of a Confti- 
 tution, on which the eye of curiofity feems 
 now to be univerfally turned; and which, 
 though celebrated as a model of perfection, 
 is yet but little known to its admirers. 
 
 I am aware that it will be deemed pre- 
 fumptuous in a Man who has pafled the 
 greateft part of his life out of England, to 
 attempt a delineation of the Englifh Govern- 
 ment ; a fyftem, which is fuppofed to be fo 
 complicated as not to be undei flood, or de- 
 veloped, but by thofe who have been initiated 
 in the myftcries of it from their infancy. 
 
 But, though a foreigner in England, yet as 
 a native of a free Country, I am no flranger 
 to thofe circumftances which conftitute or 
 characterife liberty : even the great difpropor- 
 tion between the Republic of which I am 
 
 Vigilantly protected by the whole ftrength of it, political 
 prejudices are, laft of all, if ever, lhaken oft' by a Nation 
 -fubjected to fuch a Government. A great change in this 
 refpetr, however, has of late taken place in France, 
 where this book was firft publiflied, and opinions are now 
 difcuflcd 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 Britifh Empire, has perhaps 
 only contributed to facilitate my political 
 inquiries. 
 
 As the Mathematician, the better to difco- 
 ver the proportions he inveftigates, begins with 
 freeing his equation from coefficients or fuch 
 other quantities as only perplex, without pro- 
 perly conftituting, it, fo it may be advantage- 
 ous to the invefligator of the caufes that pro- 
 duce the equilibrium of a Government, to have 
 previoufly 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 affect the external appearance of a 
 powerful Society, but have no effential con- 
 nection with the real principles of it. 
 
 It is upon the paffions of Mankind, that is, 
 upon caufes which are unalterable, that the 
 action of the various parts of a State depends. 
 The machine may vary as to its dimenfions, 
 but its movement and acting fprings (till 
 remain intrinfically the fame ; and that time 
 cannot in any fhape be confidered as loft, 
 which has been fpent in feeing them acl an4 
 move in a narrower circle. 
 
 One other confideration I will fuggeft, 
 
 B2
 
 4 THE CONSTITUTION 
 
 which is, that the very circuir.itancc of being 
 a Foreigner may of itfelf be attended, in ^his 
 cafe, with a degree of advantage. The Eng- 
 lifh themfclves (the observation cannot give 
 them any oiTence) havin? their eyes open, as I 
 may fay, upon their liberty, from their firfl 
 entrance into life, are perhaps too much fami- 
 liarifed with its enjoyment, to enquire, with 
 real concern, into its cau r es. H'.ving acquired 
 practical nr ions of their government, long 
 before they hart meditated on it, and thefe 
 notions being {lowly and gradually imbibed, 
 they at length beheld it without any high 
 degree of fenfibilfty ; and they feem to me, in 
 this refpeft, to be like the reclufe inhabitant 
 of a Palace, who is perhaps in the word: fitua- 
 tion for attaining a complete idea of the whole, 
 and never experienced the (Viking efFet of 
 its external ftrulhire and elevation ; or, if yoa 
 pleafe, like a Man who, having always had a 
 beautiful and cxtenfive fcene before his eyes, 
 continues for ever to view it with indif- 
 ference. 
 
 But a ftranger, beholding at once the va- 
 rious parts of a Conftitution difplayed before 
 him, which, at the fame time that it carries 
 liberty to its height, has guarded againft in- 
 conveniences fecmingly inevitable, beholding 
 6
 
 OF ENGLAND, 5 
 
 in fliort thofe things carried into execution, 
 which he had ever regards! as more deferable 
 than [joSible, he is {truck with a kind of ad- 
 miration ; and it is neceffary to be thus 
 ftrongly affected by objects, to be enabled 
 to reach the general principle which governs 
 them. 
 
 Not that I mean to infinuate that I have 
 penetrated with more acutenefs into the Con- 
 ftitution of England than others ; my only 
 defign in the above obfervations was to ob- 
 viate an unfavorable, though natural pre- 
 poiTeffion ; and if, either in treating of the 
 caufes which originally produced the Englifli 
 liberty, or of thofe by which it is ftill main- 
 tained, my obfervations fhould be found new 
 or fingular, I hope the Englifli reader will 
 not condemn them, but where they {hall be 
 found inconfiflent with Hiftory, or with daily 
 experience. Of my readers in general 1 
 al fo requeft, that they will not judge of 
 the principles I ihall lay down, but from 
 their relaiion jo thofe of human nature : a 
 confidcration which is almoft the only one 
 effential, and has been hitherto too much 
 negle&ed by the Writers on the fubjeft of 
 Government. 
 
 B 3 CHAP,
 
 THE CONSTITUTION 
 
 CHAP. I. 
 
 Caujes of the liberty of the EngUfi Nation. 
 
 . Reafons of the difference between the Go- 
 
 :ment of England, ami that of France. < 
 
 In E?\gland, the great pozver of the Crown, 
 
 be Norman kings, created an union 
 
 between the Nobility and the People. 
 
 WHEN the Romans, attacked on all 
 fides by the Barbarians, were reduced 
 to the neceflity of defending the centre of 
 their Empire, they abandoned Great Britain, 
 sll as kveral other of their diftant pro- 
 vinces. The lfland, thus left to itfelf, became 
 a prev to the Nations inhabiting the iliores 
 of the Baltic ; who, having firft deftroyed the 
 ancient inhabitants, and for a long time reci- 
 :\\y annoyed each ^ther, eilablifhed fe- 
 veial Sovereignties in the fouthern part of 
 Und, alterwards called England, which 
 at length were united, under Egbert, into one 
 Kingdom. 
 
 vxcfforsof this Prince, denominated. 
 1'iinccs, among whom Al- 
 fred the Great and Edward the Confeflbr arc 
 Blfi^cqter^ celebrated, reigned for about two 
 4
 
 OF ENGLAND. I 
 
 hundred years; but, though our knowledge 
 of the principal events of this early period 
 of the Enghfh Hiftory is in fome degree 
 exacT, yet we have but vague and uncertain 
 accounts of the Government which thefe 
 Nations introduced. 
 
 It appears to have had little more affinity 
 with the prefent Conflitution, than the gene- 
 ral relation, common indeed to all the Go- 
 vernments eilablifhed by the Northern Na- 
 tions, that of having a King and a Body of 
 Nobility ; and the ancient Saxon Government 
 is " left us in flory (to ufe the expreffbns of 
 " Sir William Temple on the fubjecl:) but 
 ." like fo many antique, broken, or defaced 
 ." pictures, which may dill reprefent fome- 
 " thing of the cuftoms and falhions of thofc 
 " ages, though little of the true lines, pro- 
 " portions, or refenablance." (a) 
 
 It is at the era of the Conqueft, that we 
 are to look for the real foundation of the 
 English Constitution. From that period, fays 
 Spelman, noviis fedorum nafcitur ordo. (b) 
 William of Normandy, having defeated Ha- 
 
 (a) See his Introdu&ion to the Hiftory of England. 
 
 (b) See Spelman, Of Parliaments. It has been a fa- 
 vourite thefis with many Writers, to prete'nd that the 
 Saxon Government was, at the time of the Conqueft, 
 
 b 4
 
 8 THE CONSTITUTION 
 
 rold, and made himfelf matter of the Crown, 
 fubverted the ancient fabric of the Saxon 
 
 by no means fubverted ; that William of Normandy le- 
 gally acceded to the Throne, and confequently to the en- 
 gagements, of the Sixon "Kings ; and much argument has 
 in particular been employed with re-ard to the word Con- 
 que/1, which, v was laid,' in the feudal lenie only meant 
 acqulfition. Thele opinions have been particularly inlifted 
 upon in times or popular oppofition; and indeed there 
 was a far greater probability ot fuccefs, in railing aniong 
 the People the notions familiar to them of legal claims 
 and long ettablifhed cuftoms, tha:i in arguing with ' therh 
 from the no lefs rational, but Ids determinate and fome- 
 what dangerous do&rines, concerning the original rights 
 of Mankind, and the lawfulnefs of at all times oppofing 
 force to an oppreiTive Gdvernmerir. ' 
 
 But if we confider, that the manner in which the 
 public Power is formed in a State, is fo very eflential a 
 part of its Government, and that a thorough change in 
 this refpec't was introduced into England by tbeConcjueft, 
 we mall not fcruple to allow that a new government was 
 cflablifhcd. Nay, as almofl 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 
 niay be faid to have been fuch a* is not perhaps to be 
 paralleled in the Hiftory of any other Country. 
 
 Some Saxon laws,' 'favourable' fo the liberty of the 
 people, were indeed as>ain eftabiiflied under the fuo 
 ceiiors of William; but the introduction of fomc new 
 modes or' proceeding in the Courts 6f Juftice,' and of a 
 fiw particular laws, cannot, fo long as the ruiing Power
 
 OF ENGLAND, 9 
 
 Legiflation : he exterminated, or expelled, 
 the former occupiers of lands in order to 
 diilribute their poffeflions among his fol- 
 lowers ; and eltabiifhed the feudal fyftem of 
 Government, as better adapted to his filia- 
 tion, and indeed the only one of which he 
 pofleffed a competent idea. 
 
 in the State ..remains the fame, be faid to be the intro- 
 duction of a new Government ; and, as when the laws in 
 queftion were again eftablilhed the public Power in 
 England continued in the fame channel where the Con- 
 queil has placed it, they were more properly modifica- 
 tions of the Anglo-Norman Conltitution, than they were 
 the abolition of it; or, fince they were again adopted 
 from the Saxon Legiflation, they were rather imitations 
 of that legiflation, than the refloration of the Saxon Go- 
 vernment. 
 
 Contented, however, with the two authorities I hare 
 above quoted, I fhall dwell no longer on a difcuffion of the 
 precife identity, or difference, of two Governments, that 
 is, of two ideal fyitems, which only exift in the con- 
 ceptions of Men. Nor do I wifh to explode a doclrine, 
 which, in the opinion of fome perfons, giving an addi- 
 tional fanction and dignity to the Enghlh Government, 
 contributes to increase their love and refpect. for it. It 
 will be iufficient ror my purpofe, if the* Reader (hall be 
 pleafed to grant that a material change was, at the time 
 of the Conqueft, effected in the Government then exilt- 
 ing, and is, in confequence, difpofed to admit the 
 proofs that will prefently be laid before him, of fuch 
 change having prepared the eftablifhment of the prefent 
 Englim Conltitution. "
 
 io THE CONSTITUTION 
 , This fort of Government prevailed alio in 
 aliv.oft all the cm rts-of Europe. But, 
 
 infiead of being iflied by dint of arms 
 
 and all at once, as in England, it had only 
 beea e'ftaUiihed, on; rfee Commit, and par- 
 ticularly in through a long feries of 
 flow fucceffive evenjtfs.; a difference of cjreum- 
 ftanccs this, from which confequences were 
 in tirre to arife, as important as they were at 
 firit difficult to be forefeen. 
 
 The German Nations who pailed fhe Rhine 
 to conquer Gaul, were in a great degree 
 independent. Their princes had no other title 
 to their power, but their own valour and the 
 free election of the People ; and a^ the latter 
 had acquired in their forefts but contracted 
 notions of fovereign authority, they followed 
 a Chief, lefs in quality of iubjects, than as 
 companions in conqueit. 
 
 Befides, this conqueil was not the irruption 
 of a foreipn army which only takes pofl'cflion 
 of fortified towns. It was the general inva- 
 sion of a whole People, in fearch of new ha- 
 bitations , and as the number of the Con- 
 querors bore a great proportion to that of 
 the conquered, who were at the fame time 
 enervated by long peace, the expedition was 
 no fooncr compleated than all danger was at
 
 OF ENGLAND. n 
 
 an end, and, of courfe, their union alfo. 
 After dividing among themfelves what lands 
 they thought proper to occupy, they fepi- 
 rated ; and though their tenure was at firft 
 precarious, yet, in this particular, they de- 
 pended not on the King, but on the general 
 affembly of the Nation (a). 
 
 Under the Kings of the firft race, the fiefs, 
 by the mutual connivance of the Leaders, at 
 firft became annual ; afterwards, held for life. 
 Under the defcendants of Charlemain, they 
 became hereditary: (b) and when at length 
 Hugh Capet effected his own election to the 
 prejudice of Charles of Lorrain, intending to 
 render the Crown, which in fact was a fief, 
 hereditary in his own family, (c) he eftablifhed 
 the hereditarifhip of fiefs as a general prin- 
 ciple ; and, from this epoch, authors dare the 
 
 (a) The fiefs were originally called, ierra jure benejlcii 
 conceffa ; and it was not till under Charles le Gros the 
 ttxmfief began to be in ufe. See Beneficium, Glojf. 
 Du Cange. 
 
 (b) dpud Francos vci-o, fenjim fedetentimque, jure haredi- 
 tario ad haredes tranjierunt feuda ; quod labente faculo nono 
 incipit. See Feudum Du Cange. 
 
 (c) Hottoman has proved beyond a doubt, in his Franco- 
 gallia, that under the two firft races of Kings, the Cro\Vn 
 of France was ele&ive. The Princes of the reigning fa- 
 mily had nothing more in their favour, than the cuftom 
 of chufing one of that houfe.
 
 12 THE CONSTITUTION 
 
 complete eftablifhment of the feudal fyftem 
 in France. 
 
 . On the other hand, the Lords who ave 
 their fuffrages to Hugh Capet, forgot not the 
 interefl: of their own ambition. They com- 
 pleated the breach of thofe feeble ties which 
 fubicted them to. the royal authority, and 
 became every. where independent. They left 
 the King no jurildi&ion either over them-: 
 Ufats, or their Vaflals; they referred the fight, 
 of waging war with each other ; they even 
 affumed the fame privilege, in certain cafes, 
 with regard to the King himfelf ; (a) fo that 
 if Hugh Capet, by rendering the Crown 
 hereditary, laid the foundation of the great- 
 nefs of his family, and of the Crown itfelf, 
 yet he added little to his own authority, 
 and acquired fcarcely any thing more 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 
 himfelf and one of his firft Barons, the latter had then 
 a right to take up arms againft the King : and the fub- 
 ordinate Vaflals were fo dependent on their immediate 
 Lords, that they weie obliged to follow them aga'.nft the 
 Lord Paramount. St. Louis, though the power of the 
 Gown MB in his time much increafed, was obliged to 
 confirm both this privilege of the firll Barons, and this 
 obligation of their Vaflals.
 
 O F E N G L A N D. 13 
 
 Sovereigns who then fWarmed in France, (tf) 
 
 But the eftablifhment of the feudal fyftem 
 in England, was an immediate and fudden 
 confequence of that conqueft which intro- 
 duced it. Befides, this conquer! was made b 
 a Prince who kept the greater part of his 
 army in his own pay, and who was placed 
 at the head of a People over whom he was 
 an hereditary Sovereign : circumftances, which 
 gave a totally different turn to the Govern- 
 ment of that Kingdom. 
 
 Surrounded by a warlike, though a con- 
 quered Nation, William kept on foot a part 
 of his army. The Engliih, 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 at enmity with each 
 other, lying under a reciprocal check, and 
 
 (b) " The Grandees of the Kingdom,'* fays Mezeray, 
 M thought that Hugh Capet ought to put up with all 
 " their infults, becaufe they had placed the Crown oa 
 his head : nay, fo great was their licentioumefs, that 
 *i on his writing to Audebert, Vifcount of Perigueux, 
 " ordering him to raife the liege he had laid -to Tours, 
 *' and a&ing him, by way of reproach, who had made 
 " him a Vifcount ? that Nobleman haughtily anfvvered, 
 " Not you % but tbofe voho made you a King. [Non pa? 
 " vous, maisccuxqui vous ont fair Roi.}"
 
 i 4 THE CONSTITUTION 
 
 equally fubdued by a fenfe of their unfor- 
 tunate refinance, found himfelf in the moft 
 favourable circumftances for becoming an 
 abfolute Monarch ; and his laws thus promul- 
 gated in the mid(t, as it were, of thunder and 
 lightning, impofed the yoke of defpotifm, 
 both on the vigors and the vauquifhed. 
 
 He divided England into fixty thoufand two 
 hundred and fifteen military fiefs, all held of 
 the Crown ; the pofleffors of which were, on 
 pain of forfeiture, to take up arms and repair 
 to his ftandard on the firft fignal : he fub- 
 jecled not only the common people, but even 
 the barons, to all the rigours of the feudal 
 Government. He even impofed on them his 
 tyrannical forefl: laws, (a) 
 
 He afiumed the prerogative of impofing 
 taxes : he inverted himfelf with the whole 
 executive power of Government : but what 
 was of the greateft confequence, he arrogated 
 to himfelf the moft extenlive judicial power 
 
 (a) He referred to himfelf an exclufijve privilege of 
 killing game throughout all England, and ena&ed the 
 fevered penalties on all who mould attempt it without his 
 permiffion. The fuppreifion, or rather mitigation, of 
 hefe penalties, was one of the articles of the Cbarta de 
 Forcjta, \s hich the Barons afterwards obtained by force 
 of arms. Nallus de cetero amlttat fifam, vel membra, fro 
 I'enatione nojira. Ch. dc Forcft, Art. 10,
 
 QF ENGLAND. 15 
 
 in the eftablifhment of the Court which was 
 called Aula Regis ; a formidable Tribunal, 
 which received appeals from all the Courts 
 of the Barons, and decided in the lad refort 
 on the eftates, honour, and lives of the Barons 
 themfclves, and which, being wholly com* 
 pofed of the great officers of the Crown* 
 removable at the King's pleafure, and having 
 the King himfelf for Prefident, held the firft 
 Nobleman in the Kingdom under the fame 
 controul as the meaneft fubject. 
 
 Thus, while the Kingdom of France, in 
 confequence of the flow and gradual forma- 
 tion of the feudal Government, found itfelf, 
 in the iflue, compofed of a number of parts, 
 fimply placed by each other, and without any 
 reciprocal adherence, the Kingdom of Eng- 
 land on the contrary, in confequence of the 
 fudden and violent introduction of the fame 
 fyftem, became a compound of parts united 
 by the ftrongeft ties; and the regal Autho- 
 rity, by the preffure of its immenfe weight, 
 confolidated the whole into one compact 
 indifibluble body. 
 
 It is to this difference in the original Con- 
 stitution of France and England, that is, in 
 the original power of therr Kings, that we 
 mult attribute the difference, fo little analo-
 
 x6 THE CONSTITUTION 
 
 gous to its caufe, of their prefent Conftitu-* 
 tions. It is this which furnifhes the folution 
 of a problem, which, I mull coniefs, for a 
 long time perplexed me, ar.d explains the 
 reafon why, of two neighbouring Nations, 
 {ituated almoft under the fame climate, and 
 having one common origin, the one has 
 attained the fummit of liberty, the other has 
 gradually funk under the mod abfolute Mo- 
 narchy. 
 
 In France the royal Authority was indeed 
 incor.fiderable i but this circumftance by no 
 means favoured general liberty. The Lords 
 were every thing j and the bulk of the Na- 
 tion were accounted nothing. All thofe wars 
 which were made on the King, had not liber- 
 ty for their object; for of this their Chiefs 
 already enjoyed but too great a ftiare: they 
 were the mere effects of private ambition or 
 caprice. The People did not engage in them 
 as aifociates in the fupport of a caufe common 
 to all; they were dragged, blindfold ami like 
 Saves, to the ftandard of their Leaders. In 
 the mean time, as the laws, by which their 
 Matters were VafTals, had no relation to thofe 
 by which they were themfelves bound as fub- 
 jects, the refiftance y of which they were made 
 the instruments, never produced any adyan-
 
 OF ENGLAND. 17 
 
 tageous confequence in their favour, nor did 
 it eftablifh any principle of freedom that was 
 in any cafe applicable to them. 
 
 The inferior Nobles, who fhared in the in- 
 dependence of the fuperior Nobility, added 
 alfo the effects of their own infolence to the 
 defpotifm of fo many Sovereigns ; and the 
 People, wearied out by fufferings, and ren- 
 dered defperate by oppreflion, at times at- 
 tempted to revolt. But, being parcelled out 
 into fo many different States, they could but 
 feldom agree, either in the nature, or the times, 
 of their complaints. The infurrections, which, 
 ought to have been general, were only fuc- 
 ceffive and particular. In the mean time the 
 -Lords, ever uniting to avenge their common 
 caufe as Matters, fell iwith irrefiftible advan- 
 tage on Men who were divided ; the People 
 were feparately, and by force, brought back 
 to their former yoke ; and Liberty, that pre- 
 cious offspring which requires fo many fa- 
 vourable circumftances to fofter it, was every 
 where ftifled 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- 
 " hommes) againft the people of Ghent," were crufhed 
 by the union of almort all the Nobility of France. See 
 Mezeray t Reign of Charles VI.
 
 iS THE CONSTITUTION 
 
 At length, when by conquefts, by cfcheats, 
 or bv Treaties, the feveral Provinces came to 
 be rc-wutcd (a) to the extend vc and conti- 
 nually increafmg dominions of the Monarch, 
 they became fubjeft to their new Matter, al- 
 
 (a) The word re-uuiott exprefle* 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 acrgrandife- 
 rnent of the Crown (a zeal which would not have been 
 blameable, if it had been exerted only in the fuppreflion 
 of lawlefs Ariflocracy) always contended, that when a 
 province once came into the pofleflion of the King, even 
 any private dominion of his before he acceded to the 
 Throne, it became re-unitcd for ever : the Ordotuutnce of 
 Moul'ms, in the year 1566, has fince given a thorough 
 fen&ion to thefe principles. The re-union of a pro- 
 vince might be occafioned, firft, by the cafe juit men- 
 tioned, of the acceflion of the pofleflbr of it to the 
 Throne: thus at the acceflion of Henry IV. (the lif- 
 ter of the late King being excluded by the Salic law) 
 Navarre and Beam were rc-unitcd. Secondly, by the 
 felony of the pofleflbr, when the King was able to en- 
 force by dint of arms, the judgment putted by the 
 Judges he had appointed : thus the fmall Lordfliip of 
 Rambouillet was feized upon by Hugh Capet, on which 
 authors remark that it was the lirft dominion that was re- 
 united; and the Dutchy of Normandy was afterwards 
 taken in the fame manner by Philip Auguftus from 
 John King of England, condemned for the murder of 
 Arthur Duke of Briuanny, Thirdly, by the M will of 
 the pofleflbr: Provence was re-unitcd in this manner, 
 I
 
 OF ENGLAND. 19 
 
 ready trained to obedience. The few privi- 
 leges which the Cities had been able to pre- 
 ferve, were little refpecled by a Sovereign 
 who had himfelf entered into no engagement 
 to that purpofe ; and, as the re-unions were 
 made at different times, the King was always 
 in a condition to overwhelm every new Pro- 
 vince that accrued to him, with the weight o 
 all thofe he already pofieffed. 
 
 under the reign of Lewis XI. Fourthly, by intermar- 
 riages : this was the cafe of the County of Champagne, 
 under Philip the Fair; and of Britanny, Imder Francis L 
 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 Cbarles the Bold, Duke of 
 that Province. Laftly, by purchafes : thus Philip of Va- 
 lois purchafed the Barony of Montpellier ; Henry IV. 
 the Marquifat of Saluces ; Lewis XIII. the Princi- 
 pality of Sedan, &c. 
 
 Thefe different Provinces, which, with, others unitedj 
 or re-united, 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 refpedt to the laws which they followed, and 
 1111 follow : the one are governed by the Roman law, 
 and are called Pays de Droit ecrit ; the others follow parti- 
 cular 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 privileges 
 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
 
 20 THE CONSTITUTION 
 
 As a farther coniequence of thefe dif- 
 ferences between the times of the rc-unions y 
 the feveral parts of the Kingdom entertained 
 no views of afMing each other. When fomc 
 one reclaimed its privileges, the others, long 
 fince reduced to fubjection, had already for- 
 gotten theirs. Befides, thefe privileges, by 
 reafon of the differences in the Governments 
 under which the Provinces had formerly been 
 held, were alfo almofl 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 exifted : each 
 Province, reftrained within its particular 
 bounds, only ferved to enforce the general 
 fubmiflion ; and the fame caufes which had 
 reduced that warlike, fpirited Nation, to a 
 yoke of fubjection, concurred alfo to keep 
 them under it. 
 
 Thus Liberty pcrifhed in France, becaufe 
 it wanted a favourable culture and proper 
 fituation. Planted, if I may fo esprefs my- 
 felf, but juft beneath the furface, it prefently 
 expanded, and fent forth ibme large fhoots ; 
 but having taken no root, it was foon plucked 
 up. In England, on the contrary, the feed 
 lying at a great depth, and being covered with 
 6
 
 OF ENGLAND. n 
 
 an enormous weight, feemed at firft to be 
 fmotheredj but it vegetated with the greater 
 force j it imbibed a more rich and abundant 
 .nourishment ; its Tap and juice became better 
 afiimilated, and it penetrated and filled up 
 with its roots the-whole ody of the foil. It 
 was the exceffive power of the King which 
 made England free, becaufe it was this very 
 excefs that gave rife to the fpirit of union, 
 and of concerted refiftance. PofTefTed of ex.- 
 tenfive demefnes, the King found himfelf in- 
 dependent ; veiled with the moll formidable 
 prerogatives, he crufhed at pleafure the molt 
 powerful Barons in the Realm : it was only 
 by clofe and numerous confederacies, there- 
 fore, that thefe could refill his tyranny j they 
 even were compelled to aflbciate the People 
 in them, and make them partners of public 
 Liberty. 
 
 Afiembled with their VarTals 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 injuflice of the public impofitions, on 
 the tyranny of the judicial proceedings, and, 
 above ajl, on the duelled, foreft laws,
 
 2* THE CONSTITUTION 
 
 Deftitute of an opportunity of cavilling 
 about the meaning of laws of which the terms 
 were precife, or rather difdaining the reiburce 
 of fophiftry, they were naturally led to exa- 
 mine into the firft principles of Society: they 
 enquired into the foundations of human au- 
 thority, and became convinced that Powei^ 
 when its object is not the good of thofe who 
 are fubject to it, is nothing more than the 
 right of tbejtrongeji, and may be reprefled 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 againft 
 the Lord paramount, in behalf of the Lord 
 of an upper fief, were likewife to be ad- 
 mitted againft the latter, in behalf of the 
 owner of an inferior fief. The fame maxims 
 were alfo to be applied to the pofTefTor of a 
 ftill lower fief: they further defcended to the 
 freeman, and to the pealant ; and the fpirit 
 of liberty, after having circulated through 
 the different branches of the feudal fubor T 
 dination, thus continued to flow through fuc- 
 ceflive homogeneous channels ; it forced to 
 itfelf a paffage into the remotett ramifica- 
 tions, and the principle of primeval equality
 
 OF ENGLAND. t 3 
 
 every where became diffufed and efiablifhed 
 A facred principle, which neither injuftice 
 nor ambition can erafe ; which exifts in every 
 breaft, and, to exert itfelf, requires only to 
 be awakened among the numerous and op- 
 prefied claffes of Mankind, 
 
 But when the Barons, whom their per- 
 fonal confequence had at firft caufed to be 
 treated with caution and regard by the So- 
 vereign, began to be no longer fo, when the 
 tyrannical laws of the Conqueror became ftill 
 more tyrannically executed, the confederacy, 
 for which the general oppreffion had paved 
 the way, inftantly took place. The Lord* 
 the VafTal,. the inferior "Vaflal, all united. 
 They even implored the affiftance of the 
 peafqnts and cottagers; and that haughty 
 averfion with which on the Continent the 
 Nobility repaid the induftrious hands which 
 fed them, was, in England, compelled to 
 yield to the preffing neceffitv of fetiing 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 necef- 
 fary fupporters of it. Inftructed by the 
 example of their Leaders, they fpoke and 
 
 C-4
 
 24 THE CONSTITUTION 
 flipulatcd conditions for themfelvcs : they in- 
 filled that, for the future, every individual 
 fhould be intitled to the protection of the 
 law ; and thus thofe rights with which the 
 Lords had itrengthened themfelves, in order 
 to oppofe the tyranny of the Crown, became 
 a bulwark which was, in time, to reftrain 
 their own. 
 
 CHAP. II. 
 
 
 
 A fecond advantage England had over France ; 
 it formed one undivided State, 
 
 IT was in the reign of Henry the Firft, 
 about forty years after' the Conqueft, 
 that we fee the above caufes begin to operate. 
 This Prince having afcended the Throae to 
 the exclufion of his elder brother, was' fen- 
 fible that he had no other means to maintain 
 his power than by gaining the affection of 
 his fubjefts j but, at the fame time, he per- 
 ceived that it rauft be the affection of the 
 whole Nation : he, therefore, not only miti- 
 gated the rigour of the feudal laws in favour 
 of the Lords, but alfo annexed as a con- 
 dition to the Charter 1 he granted, that the 
 Lords fhould allow the fame freedom to their 
 fefpeclivc VaiTals. Care was even taken ty
 
 OF ENGLAND. 25 
 
 aboliih thofe laws of the Conqueror which 
 lay heavieft: on the lowcft clafs of the 
 People (a). 
 
 Under Henry the Second, liberty took a 
 farther ftride ; and the ancient Tryal by jury, 
 a mode of procedure which is at prefent one 
 of the moll: valuable parts of the Englifh 
 law, made again, though imperfectly, its ap- 
 pearance. 
 
 But thefe caufes, which had worked but 
 filently and flowly under the two Henrys, who 
 were Princes in fome degree juft, and of 
 great capacity, manifefted 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 der 
 
 (a) Amongft others, the law of the Curfeu. It might 
 be matter of curious difcuflion to inquire what the Anglo- 
 Saxon Government would in procefs of time have become, 
 and of courfe the Government of England be at this time, 
 if the event of the Concjueft had never taken place ; 
 which, by conferring an immenfe as well as unufual 
 power on the Head of the feudal Syflem, compelled the 
 Nobility to contract a lading and fincere union with the 
 People. It is very probable that the Englifli Govern- 
 ment would at this day be the fame as that which long 
 prevailed in Scotland, where the King and Nobles en- 
 grailed, 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,
 
 -6 THd CONSTITUTION 
 gree of exeeflive feverity, he foon beheld a 
 general confederacy formed againft.him : and 
 here we mufl obferve anoiher circumliance, 
 highly advantageous, as well as peculiar to 
 England. 
 
 -England was not, like France, an aggre- 
 gation of a number of 'different Sovereignties : 
 k formed but one ftate, and acknowledged 
 but one Mafler, one general title : the fame 
 laws, the fame kind of dependence, confe- 
 quently the fame notions, the fame intcnefls, 
 prevailed throughout the whole. The extre- 
 mities of the kingdom could, at all times, 
 unite to give a check to the exertions of an 
 Urijufc power. From the river Tweed to 
 Poufmouth, from Yarmouth to the Land's 
 end, all was in motion: the agitation in- 
 creased from the difiance like the rolling 
 waves of an extenCve fea ; and the Monarch, 
 left to hirafelf, and deflitute of refources, faw 
 himfelf attacked on all fides by an univerfal 
 combination of his fubjects. 
 
 No fooner was the ftandard fet up againil 
 John, than his very courtiers forfook him. 
 In this fituarion, finding no part of his king- 
 dom lefs irritated againft him than another, 
 having no detached province which he could 
 'engage in his defence by promifes of pardon,
 
 O F E N GLAN D. 27 
 
 or of particular conceflions, the trivial though 
 never-failing rcfources of Government, he 
 was compelled, with feven of his attendants, 
 all that remained with him, to fubmit him- 
 felf to the difpofal of his fubjecb ; and he 
 fiorned at Runing Mead {a) the Charter of 
 the Foreft, together with the famous charter^ 
 which, from its fuperior and extenfive im- 
 portance, is denominated Magna Charta. 
 
 By the former, the mod tyrannical part of 
 the forefl: laws was aboliihed ; and by' the 
 latter, the rigour of the feudal laws #as 
 greatly mitigated in favour of the Lords. But 
 this Charter did not flop there; conditions 
 were alfo ftipulated in favour of the nu- 
 merous body of the people who had concurred 
 to obtain it, and who claimed, with fword in 
 hand, a mare in that fecurity it was meant to 
 eftablrfh. It was hence inftituted by the 
 Great Charter, that the fame fervices which 
 were remitted in favour of the Barons, mould 
 be in like manner remitted in favour of their 
 Vaflals. This Charter moreover eftablimed 
 an equality of weights and meafures through- 
 out England ; it exempted the Merchants 
 from arbitrary imports, and gave them liberty 
 
 (a) Anno 1215.
 
 28 THE CONSTITUTION 
 to enter and depart the Kingdom at pleafure : 
 it even extended to the lowed orders of the 
 State, fince it enacted, that the Villain^ or 
 Bondman, fhould not be fubjeft to the for- 
 feiture of his implements of tillage. L 
 by the twenty-ninth article of the fame 
 Charter, it was enacted, that no Subject 
 fhould be exiled, or in any fhape whatever 
 molefted, either in his perfon or effects, other- 
 wife than by judgment of his peers, and ac- 
 cording to the law of the land : (a) an ar- 
 ticle fo important, that it may be faid to 
 comprehend the whole end and defign of po- 
 lincal focieties ; and from that moment the 
 Engirfh 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 mod of 
 thofe fupports which were neceffary to infure 
 refpeft to it, though it did not fecure to the 
 
 (a) " Nullus liber homo capiatur, vel imprifoncn.r, 
 '* vel diflefietur dc libera te. emento fuo, vel libenatibiw 
 " vel liberis eonfuetudinibus fids; atir utlagerur, aut 
 " exuletur, aut aliquo modo dellruatur : nee fupcr eum 
 *' ibimus, nee fuper eum mittemus, nifi per legale ju- 
 '* dicium parium fuorum, vel per legem tcrr*. Nulli 
 vendemus, nulli negabimus, aut differemus, juftitiaro 
 *' Tel re&uiv." Magna Cbarta, chap. xxix.
 
 OF ENGLAND, 29 
 
 poor and friendlefs any certain and legal 
 methods of obtaining the execution of it, 
 (provifions thefe which numberlefs tranf- 
 greflions alone could, in procefs of time, 
 point out) yet it was a prodigious advance 
 towards the- eftabliftiment of public liberty. 
 Inftead of the general maxims refpe&ing the 
 rights of the People and the duties of the 
 Prince, (maxims againft which ambition per- 
 petually contends, and which it fometimes even 
 openly and abfolutely denies,) here was fubfli- 
 tuted a written law, that is, a truth admitted 
 by all parties, which no longer required the 
 fupport of argument. The rights and privi- 
 leges of the individual, as well in his perfon 
 as in his property, became fettled axioms. 
 The Great Charter, at flrft enacted with (q 
 much folemnity, and afterwards confirmed at 
 the beginning of every fucceeding reign, was, 
 as it were, a general banner perpetually fet 
 up for the union of all claries of the people ; 
 and the foundation was laid on which thofe 
 equitable laws were to rife, which offer the 
 fame afliftance to the poor and weak, as to 
 the rich and powerful, (a) 
 
 
 (a) The reader, to be more fully convinced of rhe 
 
 reality of the cauies to *-hich the liberty of England has 
 
 been here afcribed, as well as of die truth of the obfer-
 
 So THE CONSTITUTION 
 
 Under the Ion of Henry the Third, 
 
 the differences which arofe between the King 
 and the Nobles, rendered England a iccne 
 of confufion. Amidfr. the viciffnudes which 
 the fortune of war produced in their mutual 
 conflicts, the People became flill more and 
 more fenfible of their importance, and fo did in 
 confequence both the King and the Barons 
 alfo. Alternately courted by both parties, 
 they obtained a confirmation of the Great 
 Charter, and even the addition of new pri- 
 vileges, by the ilatutcs of Merton and of 
 Marlebridge. But I haften to reach the grand 
 
 Tations made at the fame time on the fituation of France, 
 needs only to compare the Great Chatter, fo extrnfive 
 in its provisions, and in which the Barons flipnlatcd in 
 favour even of the Bondn.an, with the treaty concluded 
 between Lewis the Eleventh, and ilveral of the Prince* 
 anil Peers of France, intitled, A Treaty made at St. Maur, 
 between tie Dukes rf Normandy, Calabre, Bretagne, Bour- 
 bonnois, Auvergr.c, Nemours ; the Counts of Charolois, Ar- 
 magnac, and St. Pol, and other Princes cf France, rijen 
 vp in fnpport of the public good, on the one part ; and King 
 Lewis the Eleventh on the other, October 29, 1465. In 
 this Treaty, which was made in order to terminate a war 
 which was called the war for the Public good, {pro bono 
 Publico) no provifion was made but concerning the par- 
 ticular power of a few Lords : not a word was infertcd 
 in favour of the people. This treaty may be feen a( 
 large in the pieces jttftificatives annexed to the Memoirts de 
 Pbillippe dt Comines,
 
 OF ENGLAND. gi 
 
 epoch of the reign of Edward the Firfl; a 
 Prince, who, from his numerous and prudent 
 laws, has been denominated the Englifb 
 Juftinian. 
 
 Poffeffed of great natural talents, and fuc- 
 ceeding a Prince whofe weaknefs and injuitice 
 had rendered his reign unhappy, Edward was 
 fenfible that nothing but a (trier, adminiflration 
 of JuHice could, on the one fide, curb a 
 Nobility' whom the troubles of the preceding 
 reign had rendered turbulent, and on the 
 other, appeafe and conciliate the people, by 
 fecuring the property of individuals. To this 
 end, he made jurifprudence the principal 
 .object of his attention; 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 Eng- 
 lifh laws arrived at once, Cf? quafi per faltum* 
 at perfection, and that there has been more 
 improvement made in them during the firfl 
 thirteen years of the reign of Edward, than 
 all the ages fince his time have done. 
 
 But what renders this sera particularly in- 
 terring is, that it affords the firfl inftance of 
 the admiflion of the Deputies of Towns and 
 'Boroughs into {a) Parliament. 
 
 (a) I mean their legal origin ; for the Earl of Leicefler,
 
 32 THE CONSTITUTION 
 
 Edward, continually engaged in wars either 
 again ft Scotland, or on the Continent, feeing 
 moreover his dcmefnes coniiderably dimi- 
 nifhcd, was frequently reduced to the moil 
 preffing neceflities. But though, in confe- 
 rence of the fpirit of the times, he fre- 
 quently indulged himfelf in particular ats cf 
 injuftice, yet he perceived that it was impoi- 
 fible to extend a general oppreiiion 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 en- 
 deavour to obtain through the confcnt of the 
 People, what his Predeceflbrs had hitherto 
 expected from their own power. The Sheriffs 
 were ordered to invite the Towns and Bo- 
 roughs of the different Counties to fend De- 
 puties to Parliament ; and it is from this sera 
 that we are to date the origin of the Houfe 
 of Commons, (a) 
 
 It mud be confeffed, however, that thefe 
 Deputies of the People were not, at firft, 
 pofleffed of any conrlderable authority. Thejr 
 
 who had ufurped the power during part of the pre- 
 ding reign, had 
 rnt before. 
 (a) Anno 1295. 
 
 ceding reign, had called fuch Deputies up to Parlia. 
 inent before.
 
 OF ENGLAND. 33 
 
 were far from enjoying thofe extenfive privi- 
 leges which, in thefe days, conftitute the 
 Houfe of Commons a collateral part of the 
 Government : they were in thofe times called 
 up only to provide for the wants of the King, 
 and approve of the refolutions taken by him 
 and the aflembly of the Lords, (a) But it 
 was neverthelefs a great point gained, to 
 have obtained the right of uttering their 
 complaints, aflembled in a Body and in a legal 
 way to have acquired, inftead of the dan- 
 gerous refourceof infurredlions, a lawful means 
 of influencing the motions of the Govern- 
 ment, and thenceforth to have become a part 
 of it. Whatever difadvantage might attend 
 the ftation at firfl allotted to them, it was 
 foon to be compenfated by the preponderance 
 
 (a) The end mentioned in the Summons fent to the 
 Lords, was, de arduis negotiis rcgni tra&aturi, & conjtlium 
 impenfuri; the Summons fent to the Commons was, ad 
 faciendum & confentiendum. The power enjoyed by the 
 latter was even inferior to what they might have expected 
 from the Summons fent to them: ".In moil of the an- 
 * cient Statutes they are not fo much as named ; and in 
 * feveral, even when they are mentioned, they are diftin- 
 ** guifhed as petitioners merely, the Afient of the Lords 
 ' ' being expreifed in contradiftineTion to the Requeft of 
 *' the Commons." See on this fubject the Preface to 
 the Colle&ion of the Statutes at large, by Ruffhead, and 
 the authorities quoted therein. 
 
 D
 
 34 THE CONSTlTUTlbN 
 
 the people neceflarily acquire, when they are 
 enabled to a& and move, with concert. (a) 
 
 And indeed this privilege, insignificant as 
 it might then appear, . pretlntly manifefted 
 itielf by the molt confiderable effects. In 
 fyite 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 moreover enacted, that 
 whatever fhould be done contrary to it, fhould 
 be null and void ; that it fhould be read twice 
 a year in all Cathedrals ; and that the penalty 
 of excommunication fhould be denounced 
 againfl: any one who fhould prefume to vio- 
 late it. ($) 
 
 At length., he converted into an eftablifhcd 
 law a privilege of which the Englifh had 
 
 . (a) France had indeed alfo her Aflemblics of the Ge- 
 neral Eftates of the Kingdom; but then it w;is only the 
 Deputies for the Towns within the particular domain v( 
 the Crown, that is, for a very fmall part of the N'aiit ;:, 
 who, under the name of the Third Efi?te % were aornii 
 in them ; and it is ealy to conceive that they acquired no 
 great influence in an aflemhly of Sovereigns who gave the 
 law to their Matter. Hence, when thefe difappeared, the 
 maxim became immediately eilablifhed, Tic will of tit 
 King ii tic will of tbt Lain/. In old French, S>vi i-cvt Jc 
 r la 1 . 
 (b) Conlirmationes Chartarum, cap. 2, 5, 4.
 
 OF ENGLAND. 35 
 
 hitherto had only a precarious enjoyment ; 
 and, in the ftatute deTallaglo nan 'concedendo, 
 he decreed, that no tax fnculcl be laid, nor 
 impofl levied, without the joint confent of 
 the Lords arid Commons, {a) A moft im- 
 portant Statute, which, in conjunction with 
 Magna Charta, forms the bails of the Eng- 
 lifh Conftitution. If from the latter the 
 Englilh are to date the origin of their li- 
 berty, from the former they are to date the 
 eftabftftrmeht 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 mud (top, 
 in order to take a diftant view, and contem- 
 plate the different profpeft which the reft of 
 Europe then prefented. 
 
 The efficient caufes of flavery were daily 
 operating and gaining ftrength: the inde- 
 
 (a) " Nullum tallagium vel auxilium, per nos, vel 
 ** hseredes noftros, in regno noftro ponatur feu levetur, 
 " fine voluntate & auenfu Archiepi&oporum, Epifcopo- 
 ' rum, Gomitum, Baronum, Militum, Burgeniium, &. 
 *' aliorum liberonmi horn' de regno noftro." Stat. Att* 
 34 Ed. I, 
 
 Da
 
 36 THE CONSTITUTION 
 
 pendcnce of the Nobles on the one hand, 
 the ignorance and weaknefs of the people on 
 the other, were il: ill extreme : the feudal go- 
 vernment Mill continued to diftufe opprefhon 
 and mifery ; and fuch was the confufion of it, 
 that it even took away all hopes of amend- 
 ment. 
 
 France, flill bleeding from the extrava- 
 gance of a Nobility incefTantly engaged in 
 groundlcfs wars, either with each other, or 
 with the King, was again defolated by the 
 tyranny of that fame Nobility, haughtily jea- 
 lous of their liberty, or rather of their 
 anarchy, {a) The People, opprefled by thofe 
 who ought to have guided and protected 
 them, loaded with infults by thofe who 
 exifled by their labour, revolted on all fides. 
 But their tumultuous infurrections had fcarce- 
 ly any other object than that of giving vent 
 
 (a) Not contented with opprefiion, they added infuk. 
 " When the Gentility," fays Mezeray, " pillaged and 
 *' committed exactions on the peafantry, they called 
 " the poor fufferer, in derifion, Jaques bonbommc (Good- 
 " man James). This gave rife to a furious fedition, 
 " which was called the Jaquerie. It began at Beauvais in 
 " the year 1357, extending itfelf into moft of the Pro- 
 " vinces of France, and was not appeafed, but by the 
 " deftruCrion of part of thofe unhappy victims, thou- 
 " fands of whom were flaughtered."
 
 OF ENGLAND, 37 
 
 to the anguifh with which their hearts were 
 full. They had no thoughts of entering into 
 a general 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 con- 
 ception of thofe different ranks and orders of 
 Men, of thofe diftincT: and oppofite privileges 
 and prerogatives, which are all neceffary in- 
 gredients of a free Conftitution. Hitherto 
 confined to the fame round of ruftic employ- 
 ments, they little thought of that compli- 
 cated fabric, which the more informed them- 
 felves cannot but with difficulty comprehend, 
 when, by a concurrence of favourable cir- 
 cumflances, the ftru&ure has at length been 
 reared, and ftands difplayed to their view. 
 
 In their fimplicity, they faw no other re- 
 medy for the National evils, than the general 
 eftabliihment of the regal power, that is, of 
 the authority of one common uncontrouled 
 Matter, and only longed for that time, 
 which, while it gratified their revenge, would 
 mitigate their fufferings, and reduce to the 
 fame level the oppreffors and the oppreffed. 
 
 The Nobility, on the other hand, bent 
 folejy on the enjoyment of a momentary i n , 
 
 D 3
 
 38 THE CONSTITUTION 
 
 dependence, irrecoverably loft the affecYion 
 of the only Men who might in time fupport 
 them ; and equally regardlefs of the dilates 
 of humanity 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 Nor- 
 mandy, Anjou, Languedoc, and Touraine, 
 united to the Crown : Dauphiny, Champagne, 
 and part of Guyenne, were foon to follow : 
 France was doomed at length to fee the reign 
 of Lewis the Eleventh ; to fee her general 
 Eftates firfl: become ufelefs, and be finally 
 abohihed. 
 
 It was the defliny of Spain alfo, to behold 
 her feveral Kingdoms united under one Head : 
 flie 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 Qcmquvfilj were collected into three Kingdoms ; thole 
 or Caftilc, Aragon, and Granada. Ferdinand the Fifth, 
 Kin of ArEgon, married Ifabella, Queen of Caftille : 
 they made i joint Conquelt of the Kingdom of Granada; 
 and ihel" three Kingdoms, thus united, defcended, in 
 15 16, to their gr:a idfon CharVs, and formed the Spanifli 
 Monarchy. At th'* aera, the Kings of Spain began to 
 be abtolute ; and the States of the Kingdoms of Caftille 
 and Leon, " afieui; !eJ at Toledo, in the month of No- 
 ** vcmbtr 1539, weie the lad in which the three orders
 
 OF ENG LAN D. 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 fubjeet to the arbitrary yoke of fuch 
 of her different Sovereigns as fhould be able 
 to maintain their power and independence. 
 In a word, the feudal tyranny which over- 
 fpread the Continent, did not compenfate, by 
 any preparation of diflant advantages, the 
 prefent calamities it caufed ; nor was it to 
 leave behind it, as it disappeared, any thing 
 but a more regular kind of Defpotifm. 
 
 *! met, that is, the Grandees, the Ecclefiaflies, and the 
 44 Deputies of the Towns." See Ferrera's general Hi/lory 
 of Spain. 
 
 (a) The Kingdom of France, as it flood under Hugh 
 Capet and his next Succeflbrs, may, with a great degree 
 of exad)nefs, be compared with the German Empire, aa 
 it exiits at prefent, and alfo exifted at that rime : but the 
 Imperial Crown of Germany having, through a conjunc- , 
 tion of circumftances, continued ele&ive, the German 
 Emperors, though veiled with more high-founding pre- 
 rogatives than even the Kings of France, laboured under 
 very efferitial disadvantages : they coufd not purfue a plan 
 of aggrandifement with the fame fteadinefs as a line of 
 hereditary Sovereigns ufually do ; and the right to elet 
 them, enjoyed by the greater Princes of Germany, pro- 
 cured them a fumcient power to protect themfelves, as 
 well as the lefl'er 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 depofited, and ftill continued to dcpofit, 
 the noble feeds of the fpirit of liberty, union, 
 and fober refiftance. So early as the times 
 of Edward, the tide was feen gradually to 
 fubfide; the laws which protect the perfoa 
 and property of the individual, began to 
 make their appearance ; that admirable Con- 
 ftitution, the refult of r a threefold power, 
 infenfibly arofe ; (a) and the eye might even 
 then difcover the verdant fummits of that for- 
 tunate region, which was deftined to be the 
 feat of Philofophy and Liberty, which are 
 infeparable companions. 
 
 (a) *' Now, in my opinion," fays Phillippe de Co- 
 mines, in times not much pofterior to thofe of Edward 
 the Firft, and with the fimplicity of the language of his 
 times, " among all the Sovereignties I know in the 
 *' world, that in which the public good is beft attended to, 
 *' and the lead violence exercifed on the people, is that 
 44 of England." Memoircs de Comities, torn. I. lib. v. 
 chap. xix.
 
 OF ENGLAND. 41 
 
 CHAPTER III. 
 
 The Subjecl continued. 
 
 r V^ H E Reprefentatives of the Nation, and 
 JL of the whole Nation, were now ad- 
 mitted into Parliament : the great point there- 
 fore was gained, that was one day to procure 
 them the great influence which they at pre- 
 fent poffefs ; and the fubfequent reigns afford 
 continual inftances of its fucceffive growth. 
 
 Under Edward the Second, the Commons 
 began to annex petitions to the bills by which 
 they granted fubfidies : this was the dawn 
 of their legiflative authority. Under Edward 
 the Third, they declared they would not, in 
 future, acknowledge any law to which they 
 had not exprefsly 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 re- 
 fufed to grant fubfidies before an anfwer had 
 been given to their petitions. In a word, every 
 event of any confequence was attended with 
 an increafe of the power of the Commons ; 
 increafes indeed but flow and gradual, but 
 5
 
 42 THE CONSTITUTION 
 
 peaceably and legally effected, and 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 
 intirely taken up with its wars againil 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 enacting new ones : and for thirty years 
 together, England prefents a wide fcene of 
 flaughter and defolation. 
 
 At length, under Henry the feventh, who 
 by his intermarriage with the houfe of York 
 united the pretenfions of the two families, a 
 general peace was re-eftablifhed, and the 
 profpeel of happier days feemed to open on 
 the Nation. But the long and violent agi- 
 tation, under which it had laboured, was 
 to be followed by a long and painful re- 
 covery. Henry, mounting the throne with 
 fword in hand, and in great meafure as a 
 Conqueror, had promites to fulfill, as well as 
 injuries to revenge. In the mean time, the 
 People, wearied out by the calamities they had 
 undergone, and longing only for repofe, ab- 
 I
 
 OF ENGLAND. 43 
 
 horred even the idea of refinance j and the 
 remains of an almoft exterminated Nobility 
 thus beheld themfelves left defencelefs, and 
 abandoned to the mercy of the Sovereign. 
 
 The Commons, on the other hand, accuf- 
 tomed to act only a fecond part in public 
 affairs, and finding themfelves bereft of thofe 
 who hitherto had been their Leaders, were 
 more than ever afraid to form, of themfelves, 
 an oppofition. Placed immediately, as well 
 as the Lords, un4er the eye of the King, 
 they beheld themfelves expofed to the fame 
 dangers. Like them, therefore, they pur- 
 chafed their perfonal fecurity at the expence 
 of public liberty; and, in reading the hif- 
 tory of the two fir ft Kings of the houfe 
 of Tudor, we imagine ourfeives reading the 
 relation given by Tacitus, of Tiberius and the 
 Roman Senate, (a). 
 
 The time, therefore, feemed to be arrived, 
 at which England mud fubmit, in its turn, 
 to the fate of the other Nations of Europe. 
 Ail thofe barriers which it had railed for the 
 defence of its liberty, feemed to have only 
 been able to poftpone the inevitable efle&s 
 of Power. 
 
 But the, remembrance of their ancient laws, 
 
 (a) ^uanih qtiis iHuJirlor^ tantb magisfalji ae fefttnantei*
 
 44 THE CONSTITUTION 
 
 of that great Charier fo often and fo folemnly 
 confirmed, was too deeply impreifed on the 
 minds of the Englifh, to be effaced by tran- 
 fitory evils. Like a deep and extenfive ocean, 
 which preferves an equability of temperature 
 admidfl: all the viciffitudes of feafons, Eng- 
 land ftill retained thofe principles of liberty 
 which were fo univerfally diffufed through all 
 orders of the People, and they required only 
 a proper opportunity to manifefl themfelves. 
 
 England, befides, ftill continued to poffefs 
 the immenfe advantage of being one undi- 
 vided State. 
 
 Had it been, like France, divided into fe- 
 veral diflinft 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 a&ed in concert ; and the power 
 of withholding fubfidies, a power fo impor- 
 tant when it is that of difabling the Sove- 
 reign and binding him down to inaction, 
 would then have only been the definitive 
 privilege of irritating a Mafter who would 
 have eafily found means to obtain fupplics 
 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 com- 
 plying 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 foon to demand, as a tribute, a 
 gift he mu(t have been confident to obtain ; 
 and the outward form of confent would have 
 been left to the People only as an additional 
 means of opprefhng them without danger. 
 
 To no other caufes than the difadvantage 
 
 or fuch a fituation, are we to afcribe the low 
 
 condition in which the deputies of the People 
 
 to the Aflembly called the General Eftates of 
 
 France (a) were always obliged to remain. 
 
 Surrounded, as they were, by the particular 
 
 Eftates of thofe Provinces into which the 
 
 Kingdom had been formerly divided, they 
 
 never were able to flipulate conditions with 
 
 their Sovereign ; and, inftead of making their 
 
 power of granting fubfidies ferve to gain 
 
 them, in the end, a collateral lhare in legi- 
 
 ilation, they ever remained confined to the 
 
 naked privilege of the moft humble /application 
 
 and remonftrance. 
 
 Thefe. Eftates, however, as all the great 
 
 (a) See the Note, p. 34. ,
 
 46 THE CONSTITUTION 
 Lords of France were admitted into them, 
 began at length to appear dangerous ; and, as 
 the King could in the mean time do without 
 their ailiftance, they were let afide. But mod 
 of the particular Eftates of the Provinces are 
 preferved to this day : fome of thofe which, 
 for temporary reafons, had been abolifhed, 
 have been fmce reftored : nay, fo manageable 
 have popular Affemblies been found by regal 
 authority, when it has to do with many, that 
 this kind of Government is that which it has 
 been found mod expedient to affign to Corfica, 
 and Corfica has been made un Pays tTEtats. 
 
 But the King of England continued, even 
 in the time of the Tudors, to have but one 
 Affembly before which he could lay his 
 wants, and apply for relief. How great 
 foever the increafe of his power was, a fmgle 
 Parliament alone could furnilh him with the 
 means of exercifing it; and whether it was 
 that the members of this Parliament enter- 
 tained a deep fenfe of their advantages, or 
 whether private interefl exerted itfelf in aid 
 of patriotifm, they at all times vindicated the 
 right of granting, or rather refufmg, fubfi- 
 dies; and, amidit the general wreck of every 
 thing they ought to have held dear, they at 
 leaft clung obfUnately to the plank which
 
 OF ENGLAND. 47 
 
 was deftined to prove the initrument of their 
 prefervation. (a) 
 
 Under Edward the Sixth, the abfurd ty- 
 rannical laws againft High Treafon, mftituted 
 under Henry the Eighth, his predecefTor, 
 were abolifhed^ But this young and virtuous 
 Prince having foon.paiTed away, the blood- 
 thirfty Mary afroniftied the world with cruel- 
 
 (a) As the fatal advantages .which we have faid to ac- 
 crue to the Executive power, when it lias to treat with 
 diitinft feparate parts of the fame Nation, refult from the 
 very nature of things, they will obtain at all times and 
 places, and it may be laid down as an undoubted maxim, 
 that a Sovereign who depends, with regard tofupplies, on 
 feveral affemblies, in fac"t depends upon none. An Agent 
 for the American Colonies, in his examination before the 
 Houfe of Commons (A. 1766, p. 122) has even fuggezied 
 in three words the whole fubilance of what I have en- 
 deavoured to prove on that fubjecl:, when he faid, * The 
 *' granting aids to the Crown is the only means the 
 '' Americans have of rjcommendinc themselves 
 " to thbir Sovereign." ^Jothing, therefore, could 
 be move fatal to . Englifh liberty (and to American liberty 
 in the iifue) than the adoption of the idea, cherifhed by 
 the Americans, of having diftinc^ independent AflembKes 
 of their own, who mould treat immediately with the King, 
 and grant him fubfidjes, to the utter annihilation of the; 
 power of tho(e ancient, and hitherto fuccefsful, aflTertors of 
 general liberty, the Britifh parliament. A few more ideas 
 will, perhaps,, in fome fubfequeiit Chapter, be offered te 
 the Reader on this fubjeft, which few perfohs feem to con- 
 fider in its coriftitutional light.
 
 48 THE CONSTITUTION 
 
 tics, which nothing but the fanaticifm of a 
 part of her fubjects could enable her to exe- 
 cute. 
 
 Under the long and brilliant reign of 
 Elizabeth, 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 Henrys, yet 
 continued to fubfifl ; the inquifitorial Tri- 
 bunal of the High Commiffion was even in- 
 ftituted; and the yoke of arbitrary power 
 Jay ft ill heavy on the fubjett. But the ge- 
 neral affection of the people for a Queen 
 whofe former misfortunes had created fucfr 
 a general concern, the imminent dangers 
 which England, cfcaped, and the extreme 
 glory attending that reign, leffened the fenfc 
 of fuch exertions of authority as would, in 
 thefe days, appear the height of Tyranny, 
 and ferved at that time to juftify, as they 
 dill do to excufe, a Princefs whofe great 
 talents, thoughjioxJhex^njQcipkl^t-^tfirri? 
 ment, render her worthy of being ranked 
 among the greateft Sovereigns. 
 
 Under the reign of the Stuarts, the Nation 
 began to recover from its long lethargy.
 
 OF ENGLAND. 49 
 
 James the Firft, a Prince rather imprudent 
 than tyrannical, drew back the veil which 
 had hitherto difguifed fo many ufurpations, 
 and made an oftentatious difplay of what his 
 predeceffors had been contented to enjoy. 
 
 He was incefTantly afferting, 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 clamoroufly laid 
 claim, as their inheritance and birthright* 
 were no more than an effeft of the grace 
 and toleration of his royal anceftors (#) 
 
 Thofe principles, hitherto only filently 
 adopted in the Cabinet, and in the Courts 
 of Juflice, had maintained their ground in 
 confequence of this very obfcurity. Being 
 now announced from the Throne, and re- 
 founded from the pulpit, they fpread an uni- 
 versal alarm. Commerce, befides* with its at- 
 tendant arts, and above all that of printing, 
 diffufed more falutary notions throughout all 
 orders of the People ; a new light began tp 
 rife upon the Nation ; and that fpirit of op- 
 pofition frequently difplayed itfelf in this 
 reign, to which the Englifh Monarchs had 
 
 (a) See his Declaration made in Parliament, in thf 
 years 1610 and 1621. 
 
 E
 
 5 o THE CONSTITUTION 
 
 not, for a long time pad:, been accuftomed. 
 
 But the ftorm, which was only gathering 
 in clouds during the reign of James, began to 
 mutter under Charles the Firft, hisfuccefTor; 
 and -the fcene which opened to view, on the 
 accefTion of that Prince, prefented the molt 
 formidable afpect. 
 
 The notions of religion, by a Angular con- 
 currence, united with the love of liberty : 
 the fame fpirit which had made an attack on 
 the eftabliihed faith, now directed ufelf to 
 politics : the royal prerogatives were brought 
 under the fame examination as the doctrines 
 of the Church of Rome had been fnbmitted 
 to; and as a fuperftitious religion had proved 
 unable to fupport the teft, fo neither could 
 an authority pretended to be unlimited be 
 expected to bear it. 
 
 The Commons, on the other hand, were 
 recovering from the aftonifhment into which 
 the extinction of the power of the Nobles 
 had, at firft, thrown them. Taking a view 
 of the ftate of the Nation, and of their own, 
 they became fenfible of their whole ftrength j 
 they determined to make ufe of it, and to re- 
 prefs a power which feemed, for fo long 
 a time, to have levelled every barrier. Finding 
 among themfelves Men of the greatefl: capa- 
 
 3
 
 OF ENGLAND. 51 
 
 city, they undertook that important talk with 
 method and by constitutional means , and 
 Charles had thus to cope with a whole Na- 
 tion put in motion and directed by an affembly 
 of State fmen. 
 
 And here we mu(t obferve how different 
 were the effects produced in England, by 
 the annihilation of the power of the Nobi- 
 lity, from thofe which the fame event had 
 produced in France. 
 
 In France, where, in confequence of the 
 divifion of the People and of the exorbi- 
 tant power of the Nobles, the people were 
 accounted nothing, when the Nobles them- 
 felves were fuppreffed, the work was com- 
 pleated. 
 
 In England, on the contrary, where the 
 Nobles ever had vindicated the rights of the 
 People equally with their own ; in England, 
 where the people had fucceffively acquired 
 mod effectual means of influencing the Go- 
 vernment, and, above all, were undivided, 
 when the Nobles themfelves were call to the 
 ground, the body of the People ftood firm, 
 and maintained the public liberty. 
 
 The unfortunate Charles, however, was to- 
 tally ignorant of the dangers which furround- 
 ed him. Seduced by the example of the other 
 
 E 2
 
 > 
 
 52 THE CONSTITUTION 
 
 Sovereigns of Europe, he was not aware how 
 different, in reality, his fituauon was from 
 theirs : he had the imprudence to exert with 
 rigour an authority which he had no ulti- 
 mate refources to iupport : an union was at 
 laft effected in the Nation ; and he law his 
 enervated prerogatives diflipated with a 
 breath (a). By the famous Act, called the 
 Petition of Right, and another pofterior Acl", 
 to both which he afTented, the compulforv 
 loans and taxes, difguiied under the name of 
 Benevolences, were declared to be contrary to 
 law; arbitrary imprifonments, and the exer- 
 
 (a) It is here to be obferved, that when, under Charles 
 the Firft, the regal power was thus obliged to fubmit to 
 the power of the People, Ireland, then fearcely civilifcd, 
 ouly increafed the neceffities, and confequcntly the de- 
 pendance, of the King; while Scotland, through the 
 conjunction of fome peculiar circumilanccs, had thrown 
 off her obedience. And though thofe two States, even 
 at prefent, bear no proportion to the compact body o! 
 the Kingdom of England, and feein nerer to have }*?* 
 able, by their union with it, to procure to the King any 
 dangerous refources, yet the circum fiances which too k 
 pjacein both at the t ime of me devolution, or fince, lr^ 
 fnffieicmiy prove that it was no unfavourable circumftance 
 to Englifh liberty, that the great crifis of the reign or 
 Charles the Firft, and the great advance which the Cor- 
 (litution was to make at that rime, mould precede the pe- 
 riod at- which- the Jtti g Ehgfend might liave been, able 
 tu cull in the afllftaucc of two other Kino Hfct s. 
 
 7 
 
 *<^L^
 
 OF ENGLAND. 53 
 
 cife of the martial law, were abolifhed ; the 
 Court of High Commiffion, and the Star- 
 Chambeiy were fupprefled (#),- and- the Con- 
 stitution, freed from the apparatus of defpotic 
 powers with which theTudors had obfeured it, 
 was reftored to its antient luitre. Happy had 
 been the People, if their Leaders, after 
 having executed fo noble a work, had con 
 tented themfelves with the glory of being 
 the benefactors of their country. Happy 
 had been the King, if, obliged at laft to fub- 
 mit, his fubm'uTio n had been fincere , and if 
 he had become fufficiently fenfible that the 
 only refource he had left was the affection of 
 his fubjects. 
 
 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, ac- 
 cording to his notions, to fovereign authority. 
 His diicourfe and conduct betrayed his fecret 
 
 (a) The Star-chamber differed from all the other Courts 
 of Law in this: the latter was governed only by the com- 
 mon law, or immemorial cuftom, and Acls of Parliament ; 
 whereas the former often admitted for law the proclamar 
 tions of the King in Council, and grounded its judgments 
 upon them. The abolition of this Tribunal, therefore, 
 was juftly looked upon as a great victory over regal Au- 
 thority. 
 
 * 3
 
 54 THE CONSTITUTION 
 
 defigns -, diftruft took poffeffion of the Nation; 
 certain ambitious perfons availed thcmielves 
 of it to promote their own views ; and the 
 florm, which feemed to have blown over, 
 burft forth anew. The contending fanati- 
 cifm of perfecuting Sects, joined in the con- 
 flict between regal Haughtinefs and the am- 
 bition of individuals ; the tempfcft blew from 
 every point of the compafs ; the Conftitution 
 was rent afunder, and Charles exhibited in 
 his fall an awful example to the Univerfe. 
 
 The Royal power being thus annihilated, 
 the Englifh made fruitlefs attempts to fub- 
 flitute a republican Government in its flead. 
 " It was a curious fpe&acle," fays Montefquieu, 
 " to behold the vain efforts of the Englifh to 
 " eftablifh among themfelves a Democracy." 
 Subjected, at firfr., to the power of the prin- 
 cipal Leaders in the Eong 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, fhifting without end from one kind of 
 fubjection to another, they were at length 
 convinced, that to attempt to eftablifh liberty 
 in a great Nation, by making the people 
 interfere in the common bufinefs of Govern-
 
 OF E N G L A N D. t f| 
 
 ment, is of all attempts the moft chimerical ; 
 that the authority of all, with which Men 
 are there amufed, is in reality no more than 
 the authority of a few powerful individuals, 
 who divide the Republic among themfelves ; 
 and they at laft retted in the bofom of the 
 only Conflitution which is fit for a great 
 State and a free People j I mean that in which 
 a chofen number deliberate, and a {ingle 
 perfon executes ; but in which, at the fame 
 time, the general fatisfa&ion is rendered, by 
 the gelation and arrangement of things, a 
 neceiTary condition of the du ration of G overn- 
 ment. 
 
 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 iliena- 
 tion. He could not however bring himielf 
 to forgive them the inexpiable crime of which 
 he looked upon them to have been guilty. 
 He faw wkh the cleepeft concern that they 
 liill entertained their former notions with re- 
 gard to the nature of his prerogative; and, 
 bent upon the recovery of the ancient powers 
 of the Crown, he only waited for an oppor- 
 tunity to break thofe promifes which had pro- 
 cured his reftoration. v 
 
 E 4
 
 56 THE CONSTITUTION 
 
 But the very eagernefs of his meafurcs 
 fruftrated their fuccefs; his dangerous alliances 
 on the Continent, and the extravagant wars 
 in which he involved England, joined to the 
 frequent abufe he made of his authority, 
 betrayed him. The eyes of the Naiion were 
 foon opened, and faw into his projects ; when, 
 convinced at length that nothing but fixed 
 and irreliftible bounds can be an effectual 
 check on the views and efforts of Power* 
 they refolved finally to take away thofe rem- 
 nants of defpotifm which ftill made a pari 
 of the regal prerogative. d abaiv/" 
 
 The military fervices due to the Crown, 
 the remains of the ancient feudal tenures, had 
 been already aboliihed : the laws againft he- 
 retics were now repealed ; the Statute for 
 holding parliaments once at leaft in three 
 years was enacted ; the Habeas Corpus Act, 
 that barrier of the liberty of the Subject, 
 was eftablifhed ; and, fuch was the patriotifm 
 of the Parliaments, that it was under a King 
 the moft destitute of principle, that liberty 
 received its mod efficacious fupports. 
 
 At length, on the death of Charles, began 
 a reign which affords a moil exemplary 
 leflbn both to Kings and People. James the 
 Second, a prince of a more rigid difpoiition,
 
 OF ENGLAND. 57 
 
 though of a lefs comprehenfive understand- 
 ing, than his late brother, purfued flill more 
 openly the project which had already proved 
 fo fatal to his family. He would not fee that 
 the great alterations which had fucceflively 
 been effected in the Conftitution, rendered the 
 execution of it daily more and more imprac- 
 ticable : he imprudently fuffered himfelf to 
 be exafperated at a refiftance he was in no 
 condition to overcome ; and, hurried away by 
 a ipirit of defpotifm and a monkifti zeal, he 
 rn headlong againft the rock which was to 
 wreck his authority. 
 
 He not only ufed, in his declarations, the 
 alarming expreffions of Abfolute Power, and 
 Unlimited Obedience; he not only ufurped 
 to himfelf a right to difpenfe with the laws ; 
 but would have converted that deftru&ive 
 prfltenfion to the definition of thofe laws 
 which were held moft dear by the Nation, and 
 fought to abolilh a religion for which they 
 had fuffered the greateft calamities, in order 
 to eftabliih on its ruins a Religion which re- 
 peated Acts of the Legiflature had profcribed ; 
 and profcribed, not becaufe it tended Jsl 
 eitablifh in England the doctrines flf Tran- 
 fub ftantiation and P urgatory, doctrines in 
 tjiemfelves of no political moment, but be- 
 caufe the unlimited power of the Sovercig
 
 58 THE CONSTITUTION 
 had always been made, one o; its pri ncipal 
 jfinets . f, i, ; fV ^ : i,; f\:\ i.t f i( . 
 
 To endeavour therefore to revive fnch a 
 JWfeion,was not only a violation of the laws, 
 but was, by one enormous violation, to pave 
 itihliM>/or others of a (till more alarming 
 kind. Hence the Englifn, feeing that their 
 liberty Was attacked even in its firft principles, 
 bad fecourfe to that remedy which reafon 
 and nature point out to the People, when 
 he who ought to be the guardian of the 
 laws. becomes their deflroyer : they withdrew 
 the allegiance which they had fworn to James, 
 and thought themfelves abfolved from their 
 oath to a King who himfelf difregarded the 
 oath he had made to his People. 
 
 But, inftead of a revolution like that which 
 dethroned Charles the Firft, which was 
 eFe#ed by a great effufion of blood, and 
 threw the ftate into a general and terrible 
 convulhon, the dethronement of James proved 
 a matter of fhort and eafy operation. In con- 
 fequence of the progreffive information of the 
 People, and the certainty 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 uugle ihock ; and James,, 
 \yho, the moment before, was a Monarch-
 
 OF K N G L A N.n. . 59 
 
 furroundcd by fubjefls/ became at once a 
 ' fimple Individual in the midft of the Nation. 
 
 That whici contributes, above all, 'to di- 
 ftinguifh this event as lingular in thie annals 
 of Mankind, is the moderation, I may even 
 fay, the legality which accompanied it.-. As 
 if to dethrone a' King who fought to fet 
 himfelf above the Laws, had been a natural 
 confequence of, and provided for by the prin- 
 ciples of Government, every thing remained 
 in its place ; the Nation affembled regularly 
 t6 'el eft Reprefentacives ; the Throne was de- 
 clared vacant, and a new line of fucceflion 
 was eftablifhed. 
 
 Nor was this all; care was had to repair 
 the breaches that had been made in the Con- 
 flitution, as well as to prevent new ones; 
 and advantage was taken of the rare oppor- 
 tunity of entering into an original and exprefs 
 compaft between King and People. 
 
 An Oath was required of the new King, 
 more precife than had been taken by his pre- 
 decefibrs ; and it was confecrated as a per- 
 petual formula of fuch oaths. It was de- 
 termined, that to impofe taxes without the 
 confent of Parliament, as well as to keep up 
 a Handing army in time of peace, are contrary 
 to law. The power which the Crown had 
 conftantly claimed, of difpenfing, with the
 
 60 THE CONSTITUTION 
 laws, was abolifhed. It was enatted, that 
 the fubjeft, of whatever rank or degree, had 
 a right to prefent petitions to the King, (a) 
 Laftly, the key-ftone was put to the arch, by 
 the final eftablifhment of the Liberty of the 
 Prefs. (b) 
 
 The Revolution of 1689 is therefore the 
 third grand sera in the hiftory of the Con- 
 flitution of England. The great Charter had 
 marked out the limits within which the 
 Royal authority ought to be confined ; a few 
 outworks were raifed in the reign of Ed- 
 ward the Firft ; but it was at the Revolution 
 that the circutnvallation was compleated. 
 
 It was at this sera, that the true principles 
 of civil fociety were fully eftabliihed. By 
 
 (a) The Lords and Commons, previous to the Coro- 
 nation of King William and Queen Mary, had framed a 
 Bill which contained a declaration of the rights which 
 they claimed in hehalf ot the People, and was in con- 
 ference called the Bill of Rights. This Bill contained 
 the Articles above, z c well as fome others, and having 
 received afterwards the Royal aiicnt, became an Aft of 
 Parliament, under the title of Ji All declaring the Rights 
 and Liberties of the Sufyefl, and fettling the Succejjion of tbt 
 Crtnvn.A. 1 WjUiam and Mary, Sen"'. z. Lap. 2, 
 
 (l>) The liberty of the }>ref was, properly fpeaking, 
 eftablifhed only four years attet wards, in confluence o* 
 the refufal which the Parliament made at that time of con- 
 tinuing any longer the reftri&ions which had before been 
 fet upon it.
 
 0'f'NGi;&*i>. H 
 
 the expuluon or a King who had violated 
 his oath, the doctrine of Refinance, the ulti- 
 mate refource of an opprefled People, was con- 
 firmed beyond a doubt. By the exclufion 
 given to a family hereditarily defpotic, it was 
 finally determined, 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 fatal, becaufe falfe, notions, by which the 
 iCoyat authority had till then been fupported, 
 fell to the ground ; and in the room of it 
 were fubftituted the more folid and durable 
 foundations of the love of order, and a 
 fenfe of the neceflity of civil government 
 among Mankind. 
 
 rn. I r 
 
 CHAPTER IIL 
 
 Of the Legijlative Power, mukh ysri 
 
 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 facl, tha^ 
 their Lawyers generally reprefent the legif- 
 lative authority as efleatially attached to the 
 character of King ; and the plenitude of his 
 power feems to them necefTarily to flow from 
 the very definition of his title.
 
 6 2 THE CONSTITUTION 
 
 The Englifh, placed in more favourable 
 circumftances, have judged differently : 
 they could not believe that the deftiny of . 
 Mankind ought to depend on a play of 
 words, and on fcholaiiic 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 noithern Nations to 
 that of Cynbig. 
 
 In limiting therefore the power of their 
 King, they have acted more confidently with 
 the etymology of the word ; they have adled 
 alfo more confidently with rcafon, in not leav- 
 ing the laws to the difpofal of him who is 
 already inverted with the public power of the 
 State, that is, of him who, of all men, is 
 mod tempted to fet himfelf above them. 
 
 The bafis of the Englifh Conflitution, the 
 capital principle on which all others depend, 
 is that the Legiflative power belongs to Par- 
 liament alone ; that is, the power of efta- 
 bliming laws, and of abrogating, changing, 
 or explaining them. 
 
 The condiment parts of Parliament are 
 the King, the Houfe of Lords, and the 
 Houfe of Commons. 
 
 The Houfe of Commons, otherwife the 
 Affembly of the Reprefentatives of the Nation,
 
 OF ENGLAND. 6$ 
 
 is compofed of the Deputies of the different 
 Courities, 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 
 Cambridge, each of which fends two. 
 
 Laftly, fince the Aft of Union, Scotland 
 fends forty-five Deputies, who, added to thofe 
 jufl: mentioned, make up the whole number 
 of five hundred and fifty-eight. Thofe De- 
 puties, though feparately elected, do not folely 
 reprejent__di e Town or County that fends 
 them, as is the cafe with the Deputies of the 
 United Provinces of the Netherlands, or of 
 the Swifs Cantons , but, when they are once 
 admitted, they reprefent the whole body of 
 the Nation. 
 
 The qualifications required for being a 
 Member of the Houfe of Commons are, for 
 reprefenting a County, to be born a fubjeft 
 of Great Britain, and to be polfeffed of a 
 landed eltate of fix hundred pounds a year; 
 and of an eftate of three hundred, for repre- 
 fenting a Town, or Borough. 
 
 The qualifications required for being an 
 elector in a County, are, to be poffeffed, in 
 that County, of a Freehold of forty Ihillings
 
 *4 THE CONSTITUTION 
 
 a year, (a) With regard to electors in Towns 
 or Boroughs, they muft be Freemen of them , 
 a word which now fignifies certain qualifi- 
 cations expreffed 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 feal of England to the Sheriff of every 
 County, directing him to take the neceffary 
 fteps for the election of Members for the 
 County, and the Towns and Boroughs con- 
 tained in it. Three days after the reception 
 of the writ, the Sheriff muft, in his turn, 
 fend his precept to the Magistrates of the 
 Towns and Boroughs, to order them to make 
 their election within eight days after the re- 
 ception of the precept, giving four days 
 notice of the fame. And the Sheriff himfelf 
 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 muft have been poflefled by the, 
 elector one whole year at lead before the time of ele&ion, 
 except it has devolved to him by inheritance, by marriage, 
 by a laft will., or by a promotiou to au ofticc.
 
 OF ENGLAND. 65 
 
 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, ihall be incapable of ferving for that 
 place in Parliament. That if any perfon 
 gives, or promifes to give, any money, em- 
 ployment, or reward, 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 dif- 
 qualified to vote and hold any office in any 
 corporation ; the faculty however being re- 
 ferved to both, of procuring their indemnity 
 for their own offence, by difcovering fome 
 other offender of the fame kind* 
 
 It has been moreover eftablifhed, that no 
 Lord of Parliament, or Lord Lieutenant of 
 a County, has any right to interfere in the 
 elections of members ; that any officer of the 
 excife, cufloms, &c. who lhall prefume to in- 
 termeddle in elections, by influencing any voter 
 to give or withhold his vote, fhall forfeit one 
 hundred pounds, and be difabled to hold any 
 office. Laftly, all foldiers quartered in a place 
 Where an election is to be made, muft move 
 from it, at lead one day before the election, 
 to the diftance of two miles or more, and re- 
 
 F
 
 66 THE CONSTITUTION 
 
 turn not till one day after the election is 
 finifhed. 
 
 The Houfe of Peers, or Lords, is com- 
 pofed of the Lords Spiritual, who are the arch- 
 bifliops of Canterbury and of York, and the 
 twenty-four Bifhops ; of the Lords temporal, 
 whatever may be their refpecVive titles, fuch 
 as Dukes, Marquifes, Earls, &c. 
 
 Laftly, the King is the third component 
 part of Parliament ; it is even he alone who 
 can convoke it ; and he alone can diffolve, 
 or prorogue it. The effect of a di Ablution is, 
 that from that moment the Parliament com- 
 pleatly ceafes to exift ; the commi/Eon given 
 to the Members by their Conftituents is at 
 an end; and whenever a new meeting of 
 Parliament fhall happen, they mull be elected 
 anew. A prorogation is an adjournment to 
 a term appointed by the King ; till which 
 the exigence of Parliament is limply inter- 
 rupted, and the function of the Deputies 
 fufpended. 
 
 When the Parliament meets, whether it be 
 in virtue of a new fummons, or whether, 
 being compofed of Members formerly elected, 
 it meets again at the expiration of the term 
 for which it was prorogued, the King goes 
 to it in pcrfon, inverted with the infignia of 
 his dignity, and opens the feflion by laying
 
 t) F ENGLAND. 6 7 
 
 before the Parliament the ft ate of the public 
 uiTairs, and inviting them to take them into 
 eonfideration. This prcfence of the King, 
 either real or reprefented, is abfolutely requi- 
 site at a firffl meeting ; it is that which gives 
 life to the Lcgiflative Bodies, and puts them 
 in action. 
 
 The King, having concluded his declaration, 
 withdraws. The Parliament, which then Is: 
 legally intruded with the care of the Na- 
 tional concerns, enters upon its functions, and 
 continues to exift till it is prorogued or dif- 
 folved. The Houfe of- Commons, and that 
 of Peers, affemble feparately; the former* 
 under the prefidence of the Lord Chancellor; 
 the latter, under that of their Speaker : and 
 both feparately adjourn to fuch days as they 
 reflectively think proper to appoint* 
 
 As each of the two Houfes has a negative 
 on the propofitions made by the other, arid 
 there is, confequentlvj no danger of their 
 encroaching on each other's rights, nor on 
 thofe of the King, who has likewife his ne* 
 gative upon them both, any queflion judged 
 by them conducive to the public good, with-, 
 but exception, may be made the fubjecl: of 
 their refpeclive deliberations. Such are, for 
 inflance, new limitations or extenfions to be 
 
 F 2
 
 68 THE CONSTITUTION 
 
 given to the authority of the King; the efla- 
 bliihing of new laws, or making of changes 
 in thofe already in being. Laftly, the different 
 kinds of public provifions, or eftablifhraents, 
 the various abufes of adminiftration, and their 
 remedies, become, in every Seffion, the object. 
 of the attention of Parliamentisqkib SJsib 
 
 Here, however, an important observation 
 muft be made : all Bills for granting Money 
 mud have their beginning in the Houfe of 
 Commons ; the Lords cannot take this object 
 into their confideraiion but in confequence 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 
 never fuffered the Lords even to make any 
 change in the Money Bills which they have 
 fent to them, but they muft fimply and folely 
 either accept or reject them. 
 
 This excepted, every Member in each 
 Houfe may propofe whatever queftion he 
 thinks proper. If, after confidering it, the 
 matter is found to deferve attention, the per- 
 fon who has made the propofition, ufually 
 with fome others adjoined to him, is defired 
 to fet it down in writing. If, after a more 
 compleat difcuflion, the propofition is carried 
 in the affirmative, it is fent to the other 
 
 5
 
 OF ENGLA ND/: 6 9 
 Houfe, that they may, in their turn, take it 
 into confideration. If the latter reject the 
 Bill, it remains without any effecl : if they 
 agree to it, nothing remains wanting to its 
 compieat eftablifhment, but the Royal Affent. 
 
 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 cer- 
 tain 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 Affent. 
 
 When the Royal Affent is given to a 
 public Bill, the Clerk fays, le Roy le vent. 
 If the bill be a private Bill, he fays, fiit 
 fait comme il eft defire. If the Bill has fub- 
 fidies for its objet, he fays, le Roy r enter cie 
 Jes loyaux Subjecls t accepte leur benevolence, & 
 aujfi le veut* Laflly, if the King does not 
 thiuk 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 fingular, that the 
 King of England mould exprefs himfelf in 
 French in his Parliament. This cuftom was 
 
 F 3
 
 70 THE CONSTITUTION 
 
 introduced at the Comrucft, {a) and has been 
 continued, like other matters of form, which 
 ibraetimes lubfiit for ages after the Jubilance 
 has been altered ; and Judge Biackftone ex- 
 preffes himfelf, on this fubjec"r, in the following 
 words. " A badge, it rauft be owned, (now 
 " the only one remaining) of Conqucit ; and 
 li which one would wifh to fee fall into total 
 " oblivion, unlefs it be referved as a folemn 
 " memento to remind us that our liberties are 
 " mortal, having once been deftroyed 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 aiicnted, become 
 the exprcfiion of the will of the highefl: 
 power acknowledged in England : they have 
 the fame binding force as the Edits enregijires 
 have in France, (b) and as the Populifcita had 
 
 (a) William the Conqueror added to the other ch 
 he introduced, the abolition of the Engliih language in 
 :ili public, as well as judicial, tranfactions, and fubftitutcd 
 to it the French that Was fpoke in his time: hence the 
 mtmbcV of old Frerich words that arc met with in the 
 flyle of the Engliih laws. It was only under Edward III. 
 that the Kn-bih langu n to be re-eftablilhed in the 
 
 Court$ of JuiiJcc. 
 
 (7<) 'f'hey call in France, EiUts cnrtgjjlrL^ thofe Edicts 
 of tHc fiiig which have been rcgiflcied in' the Court of
 
 OF E N G L A N D. 71 
 
 In ancient Home : in a word, they are Laws. 
 And, though each of the conftituent parts of 
 the Parliament might, at fiffir, have prevented 
 the exigence of thefe laws, the united will of 
 all the three is now necelTary to repeal thera. 
 
 Parliament. The word Parliament does not however ex- 
 prefs in France, as it does in England, the Afl'embly of 
 the Eftates of the Kingdom. The French Parlemcns are 
 only Courts of Juftice ; that of Paris, which has the fuper- 
 intendence over all thofe eltablilhed in the Provinces, was 
 inftitutcd in the fame manner, and for the fame purpofes 
 as the Aula Regis was afterwards in England, viz. for the 
 adminilbration of public Juflicc, and for deciding the dif- 
 ferences between the King and his Barons : it was in con- 
 fequence of the Judgements they paffed, that the King 
 proceeded to feize the dominions of the feveral Lords or 
 Princes, and, when he was able to effect this, united them 
 to the Crown. The Parliament of Paris, as do the other 
 Courts of Law, ground its judgements upon the Edits or 
 Ordonnances ot the King, when it has once regillered them. 
 When thofe Ordounanees are looked upon as grievous to the 
 Subject, the Parliament refufes to regifter them ; but this 
 they do not from any pretention they have to a (hare in 
 the Legillative authority ; they only object that they are 
 not fatisiied that the Ordojmav.ee before them is really the 
 will of ihe King, and then proceed to make remenftrances 
 Sgainit it : fometimes the King defers to thefe ; or, if he 
 is refolvcd to put an end to all oppofition, he comes in 
 perfon into the Parliament, there holds what they call un 
 Lit de Jujtice, declares that the Ordonnance before them is 
 actually his will, and orders the proper Officer to regifter it. 
 
 F 4
 
 ,_ I'llh CONSTITUTION 
 
 C H A 1\ IV. 
 
 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 
 remains charged with the execution of them, 
 and is fupplied with the neceffary power for 
 that purpofc. 
 
 But whereas, in his political capacity of 
 one of the condiment psrts of the Parlia- 
 ment, that is, with regard to the mare al- 
 lotted to him of the legiflative authority, he 
 is Sovereign, and ohly needs allcdge his will 
 when he gives or refufes his aflent to the bills 
 prefented to him, charged with public admi- 
 niftration, he is no more than a Magiftrate, 
 and the laws, whether thofe that exifted be- 
 fore him, or thofe to which, by his affent, he 
 lias given being, muft direct his conduct, and 
 bind him equally with his fubjefts. 
 
 The firfl: prerogative of the King, in his 
 capacity of Supreme Magiftrate, has for its 
 objeel the adminiftration of Ju'ftice: 
 
 i. He is the fourcc of all judicial power 
 in the State ; he is the Chief of all the Tri- 
 bunals, and the Judges are only his fubfli- 
 tutcsj every thing is tranfacled iu his name j 
 
 11
 
 OF ENGLAND. 73 
 
 the Judgments mud be- with his Seal, and are 
 executed by his Officers. 
 
 2 . By a fiftion of the law, he is looked 
 upon as the univerfal proprietor of the king- 
 dom ; he is in confequence deemed dire&ly 
 concerned in all offences : hence profecutions 
 are to be carried on in his name in the Courts 
 of law. 
 
 3 . He can pardon offences, that is, remit 
 the puniftiment that has been awarded in 
 confequence of his profecution. 
 
 II. The fecond prerogative of the King 
 is, to be the fountain of honour , that is, the 
 diftributor of titles and dignities : he creates 
 the Peers of the realm, and difpofes of the 
 different offices, either in the Courts of law, 
 or elfewhere. 
 
 III. The King is the fuperintendent of 
 Commerce ; he has the prerogative of regu- 
 lating weights and meafures ; he alone can 
 coin money, and can give a currency to 
 foreign coin. 
 
 IV. He is the Supreme head of the Church. 
 In this capacity, he appoints the Biihops, and 
 the two Archbifhops; and he alone can con- 
 vene the Affembly of the Clergy. This af- 
 fembly is formed, in England, on the model 
 of the Parliament : the Bifhops form the 
 vpper Houfe; Deputies from the Diocefes,
 
 74 THE CONSTITUTION 
 and of the fcveral Chapters, form the lower 
 Houfe : the affent of the King is likewife ne- 
 ceffary to the validity of their Afts, or Ca- 
 nons; and the King Can prorogue, ordiflbhc, 
 the Convocation. 
 
 V. He is, in right of his Crown, the Ge- 
 neralitfuno of all fea or land forces whatever; 
 he alone can levy troops, equip fleets, build 
 fortrefTes, and fills all the polls in them. 
 
 VI. He is, with regard to foreign Nations, 
 the reprefentative, and the depofitary, of all 
 the power and collective majefty of the Na- 
 tion ; he fends and receives ambafladors; he 
 contracts alliances ; and has the prerogative 
 of declaring war, and of making peace, on 
 whatever 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 more ancient times, that every thing he 
 did was lawful ; but that he is above the. reach 
 of all Courts of law whatever, and that his 
 perfon is facrcu and inviolable. 
 
 6
 
 OF ENGLAND. 75 
 
 CHAP. V. 
 
 The Boundaries which the Co njl it id ion has fet 
 to the Royal Prerogative. 
 
 IN reading the foregoing enumeration of 
 the powers with which the laws of Eng- 
 land have intruded the King, we are at a 
 lofs to reconcile them with the idea of a 
 Monarchy, which, we are told, is limited. 
 Xhe King not only unites in himfelf all the 
 branches of the Executive power; he not 
 only difpofes, without controul, of the whole 
 military power in the State; he is moreover, 
 it feems, the Mailer of the Laws themfelves, 
 fince he calls up, and difmifles, at his will, 
 the Legiflative Bodies. We find him there- 
 fore, at firfl: fight, inverted with all the pre- 
 rogatives that ever were claimed by the moll: 
 abfolute Monarchs ; and we are at a lofs to 
 find that liberty which the Englifh feem fo 
 confident they poilefs. 
 
 But the Reprefentatives of the people (fill 
 have, ar.d that is faying enough, they ftill 
 have in their hands, now that the Conditu- 
 tion is fully eftablifhed, the fame powerful 
 weapon which has enabled their anceflors to 
 cftablifh it. It is ftill from their liberality 
 alone that the King can obtain fubfidies ; and 
 in thefe days, when every thing is rated by
 
 7 6 THE CONSTITUTION 
 
 pecuniary eftimation in thefe clays, when gold 
 is become the great moving fpring of affairs, 
 it may be fafely affirmed, that he who de- 
 pends on the will of others, with regard to lb 
 important an article, is, whatever his power 
 may be in other refpech, in a flate of real 
 dependance. 
 
 This is the cafe of 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 eftablifhment of ma- 
 nufactures, are become tacitly extinguifhed), 
 a branch of the excife, which under Charles 
 the Second was annexed to the Crown as an 
 indemnification for the military fervices it gave 
 up, and which under George the Firft has 
 been fixed to feven thoufand pounds, a duty 
 of two fhillings on every ton of wine im- 
 ported, the wrecks of mips of which the 
 owners remain unknown, whales and ftur- 
 geons thrown on the coaft, fwans fwimming 
 on public rivers, and a few other feudal re- 
 lics, compofe the whole appropriated revenue 
 of the King, and are all that now 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
 
 OF ENGLAND. 77 
 
 his Parliament he cannot maintain them. He 
 can beftow places and employments but 
 without his Parliament he cannot pay the 
 falaries attending on them. He can declare 
 war, but without his Parliament it is impof- 
 fible for him to carry it on. In a word, the 
 Royal Prerogative, deftitute, as it is, of the 
 power of impofing taxes, is like a vaft body 
 which cannot of itfelf accomplifli its motions; 
 or, if you will, it is like a Ihip compleatly 
 equipped, but from which the Parliament can 
 at pleafure draw off the water, and leave it 
 a-ground, or alfo fet it again afloat by grant- 
 ing fubfidies. 
 
 And indeed we fee, that, fince the eftablim- 
 ment of this right of the Representatives of 
 the People, to grant, or refufe, fubfidies to the 
 Crown,, their other privileges have been con- 
 tinually increafmg. Though thefe Reprefen- 
 tatives were not, in the beginning, admitted 
 into Parliament but upon the moll difadvan- 
 tageous terms, yet they foon found means, by 
 joining petitions to their money-bills, to have 
 a fhare in framing thofe laws by which they 
 were to be governed ; and this method of pro* 
 ceeding, which at firft was only tolerated by 
 the King, they afterwards converted into a 
 right, by declaring, under Henry the Fourth, 
 that they would not, thenceforward, come to
 
 78 THE CONSTITUTION 
 any refolutions with regard to fubfidies, before 
 the King had given a precife anfwer to their 
 petitions. 
 
 In fubfequent times we fee the Commons 
 continually fuccefsful, by their exertions of the 
 fame privilege, in their endeavours to lop off 
 the defpotic powers which Hill made a part 
 of the regal prerogative; whenever abules of 
 power had taken place, which they were 
 icrioufly determined to correct, they made 
 grievances and /applies, to ufe the expreflion of 
 Sir Thomas Wentworth, go hand in hand to- 
 gether, which always produced the redrefs of 
 them; and in general, when a bill, in confe- 
 quence of its being judged by the Commons 
 eflential to the public welfare, has been joined 
 by them to a money bill, it has feldom failed 
 to pap in that agreeable company. (<;) 
 
 (a) In relating this ufe, which the Commons have at 
 times made of their power of granting, or refufing, fub- 
 fidies, I only mean to (hew the great efficiency of that 
 power, which was the fubjeft of this Chapter. Thft 
 Houle of Lords have even found it neccifary (which con- 
 firms what is (aid here) to form, as it were, a confederacy^ 
 among themfelvcS, for the fecuriry of their Legiflative 
 authority, againft the ufe which the Commons might 
 make of this power of taxation ; and it has been maile a 
 fbinding order of their Houfc, to reject any bill wh-.ufo- 
 ever, to which a money-bill has been tacked.
 
 OF ENGLAND. 79 
 
 C HAPTER VI. 
 The fame Subjecl continued. 
 
 BU T 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 eftablifhment of 
 the ConfHtution, might prove too considerable 
 at prefent, when it is requifite only to fup- 
 port it. There might be danger, that, if the 
 Parliament ftiould ever exert their privilege 
 to its full extent, the Prince, reduced to 
 defpair, might rcfort to fatal extremities ; or 
 that the ConfHtution, which fubfifts only by 
 virtue of its equilibrium, might in the end be 
 fubverted. 
 
 Indeed this is a cafe which the prudence 
 of Parliament has forefeen. They have, in 
 this refpecl:, impofed laws upon themfelves ; 
 and without touching their prerogative itfelf, 
 they 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 refpecl: to the great 
 exertions of his power, does not abridge the
 
 So THE CONSTITUTION 
 
 influence of the Commons, but yet puts him 
 in a condition to fupport the dignity of the 
 Crown, and affords him, who is the firft Ma- 
 gistrate in the Nation, that independancc 
 which the laws iafure alfo to thofe Magif- 
 trates who are particularly intruded with the 
 adminiftration of Juft ice. (a) 
 
 This conduit of the Parliament provides an 
 admirable remedy for the accidental diforders 
 of the State. For though, by the wife diftri- 
 bution of the powers of Government, great 
 ufurpations are become in a manner imprac- 
 ticable* neverthelefs it is impoflible but that, 
 in confequence of the continual, though filent, 
 efforts of the Executive power to extend it- 
 felf, abufes will at length Aide in. But here 
 the powers, wifely kept in referve by the Par- 
 liament, afford the means of curing them. At 
 the end of each reign, the civil lift, and con- 
 fa^ The twelve Judges. Their commiflions, which in 
 former times were often given them durante bene placito T 
 ow mult always " be made quamdiufe bene gejjirint, and 
 " their falaries afcerrained ; but upon an addrefs of both 
 " Houfes it may be lawful to remove them." Stat. 13 
 Will. III. c. 2. In the firft year of the reign of his prei 
 fent Majefty, it has been moreover enafted, that the com- 
 niillions of the Judges (hall continue in force, notwith- 
 llanding the demifc of the King ; which has prevented 
 their being dependant, uith regard to their continuation 
 in office, on the Heir apparent.
 
 O F E N GL.A N,D. 81 
 fequently that kind of in.dependance which it 
 procured, are at an end. The fucceflbr finds 
 a Throne, a Sceptre, and a Crown s but he 
 does not find power, nor even dignity ; and 
 be pre a real pofTeffion of all thefe 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 firfl: principles. 
 
 England, therefore, by this means, enjoys 
 a very great advantage, and one that all free 
 States have fought to procure for themfelves; 
 I mean that of a periodical reformation* 
 But the expedients which Legiflators have 
 contrived for this purpofe in other Countries, 
 have always, when attempted to be reduced 
 into practice, been found to be productive 
 of the moft fatal confequences. The laws 
 which were made in Rome, to reft ore that 
 equality which is the elTence of a Democratic 
 cal Government, Were always found imprac- 
 ticable; the attempt alone endangered the 
 overthrow of the Republic : and the expe- 
 dient, which the Florentines called ripigliar il 
 Jiato, proved nowife happier in its confe- 
 quences* This was becaufe all thefe different 
 
 G
 
 $2 THE CONSTITUTION 
 
 remedies were destroyed beforehand, by the 
 very evils they were meant to cure ; and the 
 greater the abufes were, the more impoffible 
 it was to corred: them. 
 
 But the means of reformation which the 
 Parliament of England has taken care to re- 
 ferve to itfelf, is the more effectual, as it goes 
 lefs directly to its end. It does not oppofe 
 the usurpations of prerogative, as it were, 
 in front ; it does not encounter it in the 
 middle of its courfe, and in the fulleft flight 
 of its exertion : but it goes in fearch of it 
 to its fource, and to the principle of its 
 action. It does not endeavour forcibly to 
 overthrow it; it only enervates its fprings. 
 
 What increafes (till mote the mildnefs of 
 the remedy, is, that it is only to be applied 
 to the ufurpations themfelvcs, and pafles by, 
 what would be far more formidable to en- 
 counter, the obftinacy and pride of the 
 ufurpers. Every thing is tranlactcd with a 
 new Sovereign, who, till then, has had do 
 lharc in public affairs, and has taken no flep 
 which he may conceive himfclf obliged in 
 honour to fupport. In fine, they do not 
 urefl from him what the good of the State 
 requires he ftiould give up : it is he himfclf 
 fiho makes the facrifice.
 
 Dt ENGLAND. 4) 
 
 All thefe obfervations are remarkably con- 
 firmed by the events that followed the reign 
 of the two lad Henrys. Every barrier that 
 protected the People againft the excurfions of 
 Power had been broke through. The Parlia- 
 ment, in their terror, had even enacted that 
 proclamations, that is the will of the King, 
 fhould have the force of laws, (a) The Con- 
 ftitution feemed to be quite undone. Yet, on 
 the firft opportunity afforded by a new reign, 
 liberty began to make again its appearance (b). 
 And when the Nation, at length recovered 
 from its long fupinenefs, had, at the acceffion 
 of Charles the Firft, another opportunity of 
 a change of Sovereign, that enormous mafs 
 of abufes, which had been accumulating, or 
 gaining ftrength, during five fucceffive reigns, 
 Was removed, and the ancient laws reflored. 
 
 To which add, that this fecond reforma- 
 tio^ which was fo extenfive in its effects, and 
 might be called a new creation of the Con- 
 ftitution, was accomplished without producing 
 the leaft convulfion. Charles, as Edward 
 
 (a) Stat. 3 1 Hen. VIII. Chap. 3. 
 
 (b) The laws concerning Treafon, pafled under Henry 
 the Eighth, which Judge Blackitone calls " an amazing 
 *' heap of wild and new-fangled rreafons," and the fta- 
 tute juil mentioned, were repealed in the beginning of 
 the reign of Edward VI. 
 
 G2
 
 84 THE CONSTITUTION 
 
 had done in former times (a), aflented to 
 every regulation that was patted \ and what- 
 ever reluctance he might at firft manifeft, 
 yet the Aft called the Petition of Right (as 
 well as that which afterwards compleated the 
 work) received the Royal fanclion without 
 bloodlhed. 
 
 It is true, great misfortunes followed ; but 
 they were the effects of particular circum- 
 ftances. 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 no difficulty in 
 introducing political prejudices of even an 
 extravagant kind : thofe prejudices, having 
 had a hundred and fifty years to take root, 
 could not be (haken off but by a kind of 
 general convulfion ; the agitation continued 
 after the action, and was carried to excefs by 
 the religious quarrels which arofe at that 
 time. 
 
 (a) Or, which is equally in point, the Dolce of Somer- 
 fet his uncle, who was the Regent of the Kingdom, un- 
 der the name of Prote&or.
 
 OF ENGLAND. 85 
 
 CHAPTER VIII. 
 
 New Rcjlriftions* 
 
 THE Commons, however, have not in- 
 tirely relied on the advantages of the 
 great prerogative with which the Conftkution 
 has intrufted them. 
 
 Though this prerogative is, in a manner, 
 out of danger of an immediate attack, they 
 have neverthelefs lhewn at all times the 
 greateft jealoufy on its account. They never 
 fuffer, as we have obferved before, a money- 
 bill to begin any where but with themfelves ; 
 and any alteration that may be made in it, in 
 the other Houfe, is fure to be rejected. If 
 the Commons had not mofl: ftritly referred 
 to themfelves the exercife of a prerogative 
 on which their very exiftence depends, the 
 whole might at length have flidden into that 
 Body which they had fuffered to fhare in it 
 equally with them. If any other perfons 
 befides the Reprefentatives of the People, had 
 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 
 exifts for the advantage of the public (a). 
 
 (a) As the Crown has the undifputed prerogative of 
 afTenting to, and dinenting from, what bills it thinks pro? 
 
 S3
 
 86 THE CONSTITUTION 
 
 Befidcs, though this prerogative has of it- 
 felf, we may fay, an irrefiflible efficiency, 
 
 per, as well as of convening, proroguing, and diflblving, 
 the Parliament, whenever it pleafes, the latter have r.o 
 afllirance of having a regard paid to their Bills, or even of 
 being allowed to aflemble, but what may relult from the- 
 need the Crown ftands in of their afliftance : the danger, 
 jn 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; wheicas the Commons compleatly 
 vanilh, whenever a diiTolufibn takes place : there is, there - 
 toie, no exaggeration in what has been faid above, that 
 their <vay being depends on their power of granting fub- 
 fidies to the Crown. 
 
 Moved by thefe confidetations, and no doubt by a 
 fenfe of their duty towards their Cunitituents, to whom 
 this right of taxation originally belongs, the Houfe of 
 Commons have at all times been *ery careful left prece- 
 dents ftiould be eftabliftied, which might, in the mod 
 diftant manner, tend to weaken that right. Hence the 
 warmth, I might fay the rcfentment, with which they 
 have always rejected even the amendments propoied by 
 the Lords in their Money biiis. The Lords however 
 have not given up their pretention to make fuch amend- 
 ments ; and it is only by the vigilance and conltant pre- 
 determination of the Commons to reject all alterations 
 whatever made in their Money bills, without even exa- 
 mining them, that this pretention of the Lords is reduced 
 to be an ufelefs, and only dormant, claim. The firlt in- 
 stance of a mifunderftanding between the two Houfes, on 
 that account, was in the year 167 1 : and the reader may 
 fce at length, in Vol. I. of the Debates of the Houfe ef
 
 OF ENGLAND. 8 f 
 
 the Parliament has negleSed nothing that may 
 increafc it, or at Icafl: the facility of its 
 excrcife ; and though they have allowed the 
 prerogatives of the Sovereign to remain tindif- 
 puted, they have in feveral cafes endeavoured 
 to reftrain the ufe he might make of them, 
 by entering with him into divers exprefs and 
 folemn conventions for that purpofe (a). 
 
 Thus the King is indifputably inverted with 
 the exclufive right of affembling Parliaments ; 
 yet he muft aflfemble one, at lead once in 
 three years; and this obligation on the King, 
 which was, we find, infifted upon by the 
 People in very early times, has been fmce 
 confirmed by an A& paiTed in the lixteenth 
 year of the reign of Charles the Second. 
 
 Moreover, as the mod fatal confequences 
 might enfue, if laws which might molt, ma- 
 terially afFe& public liberty, could be enabled 
 in Parliaments abruptly and imperfectly fum- 
 moned, it has been eftablifhed that the Writs 
 
 Commons, the reafons that were at that time alledged on 
 both fides. 
 
 (a) Laws made to bind fiich Powers in a State, as have 
 no fuperior Power by which they may be legally com- 
 pelled to the execution of them (for inftance, the Crown, 
 as circumitanced in England) are nothing more than 
 conventions, or treaties, made with the Body of the 
 People. 
 
 G 4
 
 88 THE CONSTITUTION 
 for affembling a Parliament muft be iflued 
 forty days at lead before the firfl meeting of 
 it. Upon the fame principle it has alfo been 
 enacted, 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 muft be given, (a) 
 
 Again, the King is the head of the Church ; 
 but he can neither alter the eftablifhed re- 
 ligion, nor call individuals to an account for 
 their religious opinions, {b) He cannot even 
 profefs the religion which the Legiflature has 
 particularly forbidden ; and the Prince who 
 fhould profefs it, is declared incapable of 
 inheriting, pojfejjing, or enjoying, the Crown of 
 thefe Kingdoms, {c) 
 
 The King is the firfl Magiftrate; bin he 
 can make no change in the maxims and forms 
 confecrated by law or cuitom : he cannot 
 even influence, in any cafe whatever, the de- 
 
 (m) Stat, 30 Geo. II. c. 25, 
 
 (Jf) The Convocation, or aflembly of the Clergy, of 
 which the King is the head, can only regulate fuch affair* 
 as are merely Ecclefiarticul ; they cannot touch the Laws, 
 Culioms, and Statutes, of the Kingdom. Stat. 25 Hen, 
 VIII. c. 19. 
 
 (c) A. 1 Will, and M. gtat 2. c. 2.
 
 OF ENGLAND. 8 9 
 
 cifion of caufes between fubjedt and fubjeft ; 
 and James the Firft, affifting at the Trial of a 
 caufe, was reminded by the Judge, that he 
 could deliver no opinion, (a) Laftly, though 
 crimes are profecuted in his name, he cannot 
 refufe to lend it to any particular perfons who 
 have complaints to prefer. 
 
 The King has the privilege of coining mo- 
 ney i but he cannot alter the ftandard. 
 
 The King has the power of pardoning of- 
 fenders ; but he cannot exempt them from 
 making a compenfation to the parties injured. 
 It is even eftabliftied 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 Sen- 
 tence paired in confequence of fuch profecu- 
 tion, or whether it be granted after it, cannot 
 have any effet. (b) 
 
 (a) Thefe principles have fince been made an expref $ 
 article or an Act of Parliament j the fame which abolifhed 
 the Star Chamber. " Be it likevvife declared and ena&ed, 
 11 by the authority of this prefent Parliament, That 
 *' neither his Majeity, nor his Privy Council, have, or 
 " ought to have, any jurifdi&ion, power, or authority, to 
 " examine or draw into queftion, determine or difpofe of 
 * the lands, tenements, goods, or chattels, of any of the 
 44 fubje&s of this Kingdom.'' Stat. A. 16. ch, i. cap. 10, 
 
 (b) TJie method of profecution mentioned here, is
 
 9 o THE CONSTITUTION 
 
 The King has the military power ; but A ill, 
 with refpeft to this, he is not abfolute. It is 
 true, in regard to the Tea forces, as there is in 
 them this ineftimable advantage, that they 
 cannot be turned againft the liberty of the 
 Nation, at the fame time that they are the 
 furefl: bulwark of the Ifland, the King may 
 keep them as he thinks proper ; and in this 
 refpecl he lies only under the general reflraint 
 of applying to Parliament, to obtain the 
 means of doing it. But in regard to land 
 forces, as they may become an immediate 
 weapon in the hands of Power, for throwing 
 down all the barriers of public liberty, the 
 Kinff cannot raife them without the confentof 
 Parliamen t. The guards of Charles the Se- 
 cond were declared anti-conflitutional ; (a) and 
 James's army was one of the caufes of his 
 being at length dethroned, (b) ^ 
 
 In thefe times however, when it is become 
 a cuftom with Princes to keep thofe nurae- 
 
 called an appeal; it mull be fued within a year and a day 
 after the completion of the crime. 
 
 {a) He had carried them to the number of four thou- 
 fand Men, 
 
 (/>) A new fanction has been given to the above tc- 
 itriction, in the fixth Article of the Bill of Rights : " A 
 ** ftanding army, without the confent of Parliament, is 
 ** aeainft law. 
 I
 
 OF ENGLAND. 91 
 
 rous armies which ferve as a pretext and means 
 of opprefling the People, a State that would 
 maintain its independence, is obliged, in great 
 meafuie, to do the fame. The Parliament 
 has therefore thought proper to eftablilh a 
 (landing body of troops, which amounts to 
 about thirty thoufand Men, of which the King 
 has the command. 
 
 Put thi3 army is only eftablHhed for one 
 year : at the end of that term, it is, unlefs re-? 
 eftablilhed, to be ipfo faffo disbanded ; and 
 as the queftion would not then be, whether 
 the army {hall be diffolved, but whether it 
 fhall be eftablilhed anew, as if it had never 
 exifted, any one of the three branches of the 
 Legiflature may, by its diffent, hinder its con- 
 tinuance. 
 
 Befides, the funds for the payment of this 
 body of troops, are to be raifed by taxes that 
 never are eftablilhed for more than one year ; 
 (a) and it becomes like wife neceflary, at the 
 end of this term, again to eftablifh them, (b) 
 In a word, this inftrument of defence, which 
 
 (<*) The land tax, and malt tax. 
 
 (b) It is alio neceflary that the Parliament, when they 
 renew the At called the Mutiny- AB^ fhould authorife the 
 different Courts Martial tq punifh military offences, and 
 defertion. It can therefore refufe the King even the ne- 
 ceflary power of military difcipline,
 
 92 THE CONSTITUTION 
 
 the circumftanccs of modern times have caufed 
 to be judged neccflary, being capable, on the 
 other hand, of being applied to the moft dan- 
 gerous pufpofes, has been joined to the State 
 by only a (lender thread, the knot of which may 
 be flipped on the firfl appearance of danger, (c) 
 
 (r) To thefe laws, or rather conventions, between King 
 and People, I (hail 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 further ad- 
 vantage of being declared with more folemnity. 
 
 ** The arebbijbop or bijliop Jhall Jay, 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 in Parliament agreed on, and 
 " the laws and cuftoms of the fame ? The king or queen 
 " Jhall fay, I fole nnly promife fo to do. 
 
 " Arebbijbop or b-Jbop. Will you to your power caufe 
 " law and julVice, in mercy, to be executed in all your 
 " judgments? King or queen. I will. 
 
 ft Arcbbljhcp or bjjbop. Will you to the utmofl of 
 " yoiir power maintain the laws of God, the true pro- 
 " feflion of the gofpel, and the proteftant reformed 
 " religion eflablifhed by the law? And will you prc- 
 ** ferve unto the bilhops and clergy of this realm, and 
 u to the churches committed to their charge, all fuch 
 " rights and privileges as by law do or (hall appertain 
 " unto them, or any of them ? King or queen. All this 
 " I promife to do. 
 
 " Alter tbis /be king or queen, laying bis or her ba>id upon 
 " the holy gcfpeUt Jhall Jay , The things which I have here
 
 OF ENGLAND. 93 
 
 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 poflible that the 
 King might not at all times refpedl: ; as the 
 check which the Commons have on his pro- 
 ceedings, by a refufal of fubfidies, affe&s too 
 much the whole State, to be exerted on every 
 particular abufe of his power; and laftly,. as 
 even this means might, in fome degree be 
 eluded, either by breaking the promifes which 
 procure fubfidies, or by applying them to ufes 
 different from thofe for which they were ap- 
 pointed, the Conftitution has befides fupplied 
 the Commons with a means of immediate op- 
 pofition to the mifcondut of Government, by 
 giving them a right to impeach the Miniflers. 
 It is true, the King himfelf cannot be ar> 
 . raigned before Judges; becaufe, if there were 
 1 any that could pafs fentence upon him, it 
 would be they, and not he, who muft finally 
 poffefs the executive power : but, on the other 
 hand, the King cannot a6t without Miniflers; 
 it is therefore thefe Miniflers, that is, thefe in- 
 difpenfable inflruments, whom they attack. 
 
 *' before promifed I wilf perform and keep : fo help me 
 " God. And thenjball kij's the book." 
 
 6
 
 $4 THE CONSTITUTION 
 
 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 dorie 
 contrary to the public weal, they profecute 
 thofe who have been either the inftruments, 
 or the advifers, of the meafure. (a) 
 
 But who lhall be the Judges to decide in 
 fuch a caufe ? what Tribunal will flatter itfeff, 
 that it can give an impartial dccifion, when 
 it (hall fee prefented at its bar the Govern- 
 ment itfclf as the accufed, and the Reprekn- 
 tatives of the People as the accufers ? 
 
 It is before the Houfe of Peers that the 
 Law has directed the Commons to carry their 
 accufation ; that is, before Judges whofe dig* 
 city, on the one hand, renders them inde- 
 pendent, and who, on the other, have a 
 great honour to fupport in that awful function 
 where they have all the Nation for fpeclators 
 of their conduct. 
 
 (a) It was upon thefe principles that the Commons, in 
 the beginning of this century, impeached the Karl of 
 Orford, who had advifed the Treaty of Partition, and the 
 Lord Chancellor Somcrs, who had affixed the great Seal 
 to it.
 
 O F E N G L A N D. 05 
 
 When the impeachment is brought to the 
 Lords, they commonly order the perfon ac- 
 cufed to be imprifoned. On the day appointed, 
 the Deputies of the Houfe of Commons, with 
 the perfon impeached, make their appear- 
 ance : the impeachment is read in his prefence; 
 Counfel are allowed him, as well as time, %o 
 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 com- 
 municated in print to the public. 
 
 But whatever advantage the law grants to 
 the perfon impeached for his j unification, it 
 is from the intrinflc 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 conducl, to alledge the com- 
 mands of the Sovereign ; or, pleading guilty 
 with refpeel: to the meafures imputed to him, 
 to produce the Royal pardon, (a) It is againft 
 the Admmiftration itfelf that the impeach- 
 ment is carried on j it fhould therefore by no 
 
 (<*) 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 
 pardon in bar to that impeachment : great altercations 
 enlued on that fubjecf, which were terminated by the dif- 
 folution of that Parliament. It has been fince enacted, 
 (Stat, iz and 13 W. III. c. 2.) " that no pardon under
 
 9 6 THE CONSTITUTION 
 
 means interfere : . the King can neither flop 
 nor fufpend its courfe, but, is forced to be- 
 hold, as an inactive fpeclator, the difcovery of 
 the fhare which he may himfelf have had in 
 the illegal proceedings of his fervants, and to 
 hear his own fentencc in the condemnation of 
 his Minifters. 
 
 An admirable expedient ! which, by re- 
 moving and punifhing corrupt Minifters, 
 affords an immediate remedy for the evils of 
 the State, and ftrongly marks out the bounds 
 within which Power ought to be confined; 
 which takes away the fcandal of guilt and au- 
 thority united, and calms the people by a 
 great and awful act of Juftice : an expedient, 
 in that refpecl efpedally, fo highly ufeful, that 
 it is to the want of the like, that Machiavel 
 attributes the ruin of his Republic. 
 
 the great feal can be pleaded in bar to an impeachment 
 ** by the Heufe of Commons." 
 
 I onceafked a Gentleman very learned in the laws of 
 this Country, if the King could remit the punifhment of 
 a Man condemned in confequence of an impeachment of 
 the Houfe of Commons; he anfwered me, the Tories 
 will tell you the King can, and the Whigs he cannot. 
 But it is not perhaps very material that the queftion fhould 
 be decided : the great public ends are attained when a 
 corrupt Miniller is removed with difgrace, and the whol? 
 Syitera of bis proceedings unveiled to the public eye.
 
 OF ENGLAND. 97 
 
 But all thefe general precautions to fecure 
 the rights of the Parliament, that is, thofe 
 of the Nation itfelf, againft the efforts of the 
 executive Power, would be vain y if the Mem- 
 bers themfclves remained expofed to them. 
 Being unable openly to attack, with any fafety 
 to itfelf, the two legiflative bodies, and by a 
 forcible exertion of its prerogatives, to make, 
 as it were, a general affault, it would, by 
 fubdivkikig the fame prerogatives, gain an 
 entrance, and fometimes by intereft, and at 
 others by fear, guide the general will by in- 
 fluencing 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 thofe 
 CommiJfa,ies who are always ready to find 
 thofe guilty, whom the wantonnefs of ambi- 
 tion points out, nor thofe fecret imprifon- 
 mencs, which are, in other Countries, the 
 ufual expedients of Governments As the forms 
 and maxims of the Courts of Juftice are 
 ftriftly prefcribed, and every individual* 
 has an invariable right to be judged accord- 
 ing to Law, he may obey without fear the 
 dictates of public virtue. And, what crowns 
 
 H
 
 9 S THE CONSTITUTION 
 
 all thefe precautions, is its being a fundamental 
 maxim, " That the freedom of fpeech, and 
 <{ debates and proceedings in Parliament, 
 * { ought not to be impeached or queftioned 
 *' in any Court or place out of Parliament." 
 Bill of Rights, Art. 9. 
 
 The legiflators, on the other hand, have 
 not forgot that intereft, as well as fear, may 
 impofe filence on duty. To prevent its effects 
 it has been enacted, that all perfons con- 
 cerned in the management of any taxes creat- 
 ed fince 1692-, commiffionsrs of prizes, na- 
 vy, victualling-office, &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 1705, or having. a 
 penfion under the Crown, during pleafure, or 
 for any term of years, are 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 accepting 
 a new commiflion, his feat becomes void ; 
 though fuch Member is capable of being re- 
 elected. 
 
 Such are the precautions hitherto taken by 
 the Legiflators for preventing the undue in- 
 fluence of the great prerogative of difpofing
 
 OF ENGLAND, 99 
 
 of rewards and places; precautions which 
 have been fuccefiively taken, according as 
 circumftances have fhewn them to be necef- 
 fary, and which are owing to caufes power- 
 ful enough to produce the eftabfifhment of 
 i;ew ones, whenever circumftances fliall point 
 out the neceffity of them {a). 
 
 (a) Nothing can be a better proof of the efficacy of 
 the caufes that produce the liberty of the Ehglilh, arid 
 which will be explained hereafter, than thofe victo- 
 ries which the Parliament from iime to time gains over 
 itfdf, and in which the Members, forgetting all views 
 of private ambition, only think of their intereft as - 
 fubje&s. 
 
 Since this was firft written, an excellent regulation has 
 been made for the decifion of controverted elections. 
 Formerly the Houfe decided them in a very fummary 
 manner, and the witnefles were not examined upon 
 oath; but, by an Aft pafTed this Seflion, the decifion 
 is now to be left to a Jury, or Committee, of fifteen 
 Members, thus formed. Out of the Members prefent, 
 who muft not be lefs than one hundred, 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 or- 
 der to fecure the necefTary number of an hundred 
 Members, all other bufinefs in the Houfe is to be fuf- 
 pended, till the above operations are compleated. 
 
 H 2
 
 roo THE CONSTITUTION 
 
 CHAP. IX. 
 
 Of private Liberty or the Liberty of Individual?. 
 
 WE have hitherto only treated of gene- 
 ral liberty, that is, of the rights of 
 die Nation as a Nation, and of its fhare in the 
 Government. It now remains that we fliould 
 treat particularly of a thing without which 
 this general liberty, being ablblutely frultrated 
 in its object, would be only a matter of often- , 
 tation, and even could not long fubfjft ; I 
 mean the liberty of individuals. 
 
 Private Libert) r according to thedivifion 
 of the Engliih Lawyers, con fills, firft, of the 
 right of Property, that is, of the right of en- 
 joying exclufively the gifts of fortune, and all 
 the various fruits of one*s induftry. Second- 
 ly, of the right of Perfonal Security. Third- 
 ly, of the Loco-motive Faculty, taking the 
 word Liberty, in its more confined fenle. 
 
 Each of thefe rights, fay again the Englifh 
 Lawyers, is inherent in the perfon of every
 
 OF ENGLAND- ioj 
 
 Englifbrnan they are to him as an inheri- 
 tance, and he cannot be deprived of them, but 
 by virtue of a fentence paffed according to the 
 Jaws of the land. And indeed, as this right 
 of inheritance is exprefled in English by one 
 word, {birth-right) the fame as that which ex- 
 preffes the King's title to the Crown, it has a 
 in times of oppreflion, been often oppofed to 
 him as a right, doubtlefs of a lefs extent, but 
 of a fanclion equal to that of his own. 
 
 One of the principal effects of the right of 
 Property is, that the King can take from his 
 fubjecls no part of what they poffefs ; he 
 jnult wait till they themfelves grant it him : 
 and this righr, which, as we haveieen before, 
 is, by ks coniequences, the bulwark that pro- 
 tects a-H the others, has moreover the imme- 
 diate effecT: of preventing one of the chief 
 caufes of oppreflion. 
 
 In regard to the attempts to which the right 
 of property might be expoted from one indi- 
 vidual to another, I believe I (hall have faid 
 every thing, when I have obferved, that there 
 is no Man in England who can oppofe the ir- 
 refittible power of the Laws, 'that, as the 
 Judges cannot be deprived of their employ- 
 ments but on an accuiation by Parliament, 
 the effect of intereft with the Sovere ; gn, op 
 
 H 3
 
 102 THE CONSTITUTION 
 
 with thofe who approach his perfon, cannot 
 poflibly influence their decifions, that, as the 
 Judges themfelves have no power to pafs fen- 
 tence, till the matter of fact has been fettled 
 by Men nominated, we may almoft fay, at 
 the common choice of the parties, all private 
 views, andconfequently all refpect of perfons, 
 arc bammed from the Courts of Jullice. 
 However, that nothing may be wanting 
 which may help to throw light on the fu ob- 
 ject I have undertaken to treat, I fhall relate, 
 in general, what is the law in civil matters, 
 that has taken place in England. 
 
 When the Pandects were found at Amalphi, 
 the Clergy, who were then the only Men that 
 were able to underftand them, did not neg- 
 lect that opportunity of increafing the influ- 
 ence they had already obtained, and caufed 
 them to be received in the greater part of 
 Europe. England, which was deftined to 
 have a Conltitution fo different from that of 
 other States, was to be farther diftinguifhed 
 by its rejecting the Roman Laws. 
 
 Under William the Conqueror, and his 
 immediate fuccefibrs, a multitude of foreign 
 Ecclefiaftics flocked to the Court of England. 
 Their influence over the mind of the Sove- 
 reign, which might in other States be confii
 
 OF ENGLAND. 103 
 
 dered as matter of little importance, was not 
 fo in a Country where the Sovereign being 
 all-powerful, to obtain influence over him, was 
 to obtain power itfelf. The Englifh Nobi- 
 lity faw, with the greateft jealoufy, Men of 
 a condition fo different from their own, vcft- 
 ed with a power to the attacks of which they 
 were immediately expofed, and thought that 
 they would carry that power 10 the height, 
 if they were ever to adopt a fyftem of laws, 
 which thofe fame jMen fought to introduce, 
 and of which they would neceffarily become, 
 both the depofiicaries and interpreters. 
 
 It happened, therefore, by a fomewhat An- 
 gular conjunction of circumftances, that to the 
 Roman laws brought over to England by 
 Monks, the idea of Ecclefiaftical power be- 
 came affbciated, in the fame manner as the idea 
 of Defpotifm was afterwards affociated with 
 the Religion of the fame Monks, when favour- 
 ed by Kings who endeavoured to eftablifh a, 
 defpotic 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 H. de- 
 clared in the french of thofe times, " Puree que le 
 " roialme d'Engleterre n'etoit devant ces heures, ne 
 ' al'entent du Roy notre Seignior, & Seigniors &\\ 
 
 H 4
 
 104. THE CONSTITUTION 
 
 phen, whofe intereft ic was to conciliate their 
 affections, went lb far as to prohibit the ftudy 
 of them. 
 
 The general difpofition of things eftablifh- 
 ing, as we have ieen, a great communication 
 between the Nobility and the People, the 
 averfion to the Roman laws gradually fpread 
 itfelf far and wide , and thofe laws, whofe 
 wifdom in many cafes, and particularly their 
 extenfivenefs, ought naturally to have procured 
 them admittance when the Englilh laws them- 
 lelves were as yet but in their infancy, expe- 
 rienced the moft fteady oppofnion from the 
 Lawyers; and as thofe who fought to intro- 
 duce them, frequently renewed their attempts, 
 there at length arofe a kind of general com- 
 bination amongft the Laity, toconSne them 
 to Univerlities and Monafteries (). 
 
 " Parlement, unques ne fera rule ne governe par la 
 " ley civil." viz. Inafmuch as the Kingdom of Eng- 
 land was not before this time, nor according to the in- 
 tent of the King our Lord, and Lords of Parliament, 
 ever fhall be, ruled or governed by the civil law, In 
 Rich. Parlamento WefimonaJierii t Fib. 3, Anno. 2. 
 
 {a) It might perhaps be (hewn, if it belonged to the 
 fubjeft, that the liberty of thinking in religious mat- 
 ters, which has all at times remarkably prevailed in Eng- 
 land, is owing to much the fame caufes as its political 
 liberty : both perhaps are owing to this, that the fame 
 Men, whofc intereft it is in other Countries that the
 
 OF ENGLAND. 105 
 
 This oppofition was carried To far, that For- 
 tefcue, Chief Juftice of the King's bench, and 
 afterwards Chancellor, under Henry VI. wrote 
 a Book intitled de Laudibus Legum Anglia^ in 
 which he propofes to demonftrate the fuperi- 
 crity of the Englifh Jaws over the Civil ; and^ 
 that nothing might be wanting in his argu- 
 ments on this fubject, he gives them the ad- 
 vantage of a fuperior antiquity, and traces 
 their origin to a period much anterior to the 
 foundation of Rome. 
 
 This fpirit has been even preferved to much 
 more modern times ; and when weperufethe 
 many paragraphs which Judge Hale has writ- 
 ten 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 
 
 people fhpu-ld be influenced by prejudices of a politi- 
 cal or religious kind, have been in England forced to 
 inform and unite with them. I (hall here take occa- 
 fion to obferve, in anfwer to the reproach made to the 
 Englifh, by Prefident Henault, in his much-efleemed 
 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 peo- 
 ple; they only prove the equilibrium between the 
 then exifting Setts : there was none but what might 
 become the prevailing one, whenever the Sovereign 
 thought proper to declare for it; and it was not Eng- 
 land, as people may think at firft fight, it was only its 
 Government which changed its religion. 
 
 0*
 
 io6 THE CONSTITUTION ' 
 
 no power bv irtue of any deference due to 
 the orders or Juftinian, (a truth, which cer- 
 tainly had no need of proof J we plainly fee 
 that this Chief Juftice, who was alfo a very 
 great Lawyer, had, in this refpect, retained 
 ibmewhat of the heat of party. 
 
 Even at prefent the Engliih Lawyers attri- 
 bute the liberty they enjoy, and of which, 
 other Nations are deprived, to their having 
 rejected, while thofe Nations have admitted, 
 the Roman law; which is miftaking the effect 
 for the caufe. It is not becaufe: the Englifh 
 have rejected the Roman laws that they are 
 free j but it is becaufe they were free, or at 
 JeaiT, becaufe there exiited among them 
 caufes which were, in procefs of time, to 
 make them fo, that they have been able to 
 reject the Roman laws. But even though 
 they had admitted thefe laws, the fame cir* 
 cumftances that have enabled them to reject 
 the whole, would have likewife enabled them 
 to reject thofe parts which did notfuit them ; 
 and they would have feen, that in is very 
 polTible to receive the decifions of the Civil 
 law en the fubject of the fervitutcs urb.incu 6? 
 rujlictr, without adopting its principles with 
 refpect to the power of the Emperors (a). 
 
 {a) What particularly frightens the Englifli Lawyer^ 
 5
 
 OF ENGLAND. 107 
 
 Of this the Republic of Ho. H would af- 
 ford a proof, if there were not the (till more 
 (hiking one, of 1 the Emperor of Germany, 
 who, though in the opinion of his People he 
 is the fucccffor to the very Throne of the 
 Cafars, has not by a great deal fo much pow- 
 er as a King of England ; and the reading of 
 the feveral treaties which deprive -him of the 
 power of nominating the principal officers of 
 the Empire, furficiendy mews, that a fpirit of 
 unlimited fubmiffion to Monarchical power is 
 no necefTiry confequence of the ad million of 
 the 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 Law. 
 
 The Unwritten Law 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 Legiflature. 
 It receives its force from immemorial cuftom, 
 and, for the mod part, derives its origin from 
 A6ts of Parliament posterior to the Conqueft, 
 particularly thofe anterior to the time of Rich* 
 ard the firft, the originals of which are loft. 
 
 is L. 1. Lib. I. Tit. 4. Dig. 2>uod Principi placuerit 
 tegis habet vigorem.
 
 10S THE CONSTITUTION 
 
 The printipal objects fettled by the Com- 
 mon Law, are the rules of defcent, the diffe- 
 rent methods of acquiring property, the vari- 
 ous forms required for rendering contracts va- 
 lid ; in all which points it differs from the Civil 
 Law. Thus, by the Common Law, lands dc- 
 fcend to the eldeft fon, to the exclufion of all 
 his brothers and filters ; 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, 
 tradition is moreover neceffary, &c. 
 
 The fourccfrom which the decifions of the 
 Common Law are drawn, is what is called 
 frateritorum memoria event or urn, and is found 
 in the collection of judgments that have been 
 pafied from time immemorial, and which, as 
 well as the proceedings relative to them, are 
 carefully prefer ved under the title of Records. 
 In order that the principles eftablifhed by this 
 jeries of judgments may be known, extracts 
 of them are published under the name of 
 Reports ; and thefe reports reach, by a regu- 
 lar feries, lb far back as the reign of Edward 
 the Second, inclufively. 
 
 Befides this collection, which is pretty vo- 
 luminous, there are alfo fome ancient Authors 
 of great authority among Lawyers j fuch as
 
 OF ENGLAND. 109 
 
 Gldnvil, who wrote u rider the reign of Henry 
 the Second , ftraBon, who wrote under Henry 
 the Third j Fleta, and Littleton. Among 
 more modern Authors, is Sir Edward Coke, 
 Lord Chief Jufticeof the King's bench under 
 James the Fu-ft, Who has written four books 
 of Institutes and is at prefent the Oracle of the 
 Common Law. 
 
 The Common Law moreover comprehends 
 fome particular cuftoms, which are fragments 
 of the ancient Saxon laws, tfcaped from the 
 difatter of the Conqueft ; fuch as that called Ga* 
 velkind) in the County of Kent, by which lands 
 are divided equally between the Sons ; and 
 that called Borough Enghjh, by which, in fome 
 particular diftricts, lands defcend to the 
 youngeft Son. 
 
 The Civil Law is likewife comprehended 
 under the Unwritten Law, beca-ufe it is of 
 force only fo far as it has been received by im- 
 memorial cuftom. It is followed in the Ec- 
 clefiaftical Courts, in the Courts of Admiralty, 
 and in the Courtsof the two Univerfities ; but 
 k is there nothing more than lex fub lege gr avioriy 
 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 their controul.
 
 no THE CONSTITUTION 
 
 Laftly, the written Law is the collection 
 oF the various Acts of Parliament the origi- 
 nals of which are carefully preferved, efpeci- 
 ally fince the reign of Edward the Third* 
 Without entering into the dillinctions made 
 by Lawyers with refpect 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 cbferve, that, 
 being the refult of the united wills of the 
 Three Conftituent parts of the Legislature, 
 they, in all cafes, fuperfede both the Com- 
 mon Law and all former Statutes, and the 
 Judges muft take cognifance of them, and de- 
 cide in conformity to them, even though they 
 had not been alledged by the parties (a). 
 
 (o) Unlefs they be private A8.s. 
 
 CHAP. X. 
 
 Of Criminal Juftice. 
 
 E are now to treat of an article, which, 
 though it does not in England, and 
 indeed mould not in any State, make part of 
 the powers which are properly Confticutional, 
 that is, of the reciprocal rights by means of 
 
 w
 
 O F l N GLAND. in 
 
 which the Powers that concur to form the Go- 
 vernment constantly balance each other, yec 
 eflentially interefts the fecurity of Individuals, 
 and, in the ifiue, the Constitution itfelf; I 
 mean to fpeak of Criminal Juftice. Eut, pre- 
 vious to an expdfition of the laws of England 
 on this head, it is neceffary to defire the 
 Reader'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 repel more effectually foreign attacks; the 
 Oiher 3 to maintain domeftic tranquillity. 
 
 To accomplifh the former point, each indi- 
 vidual furrenders a lhare of his property, and 
 Sometimes, to a certain degree, even of his 
 liberty : but, though the power of thofe who 
 are the Heads of the State may thereby be 
 rendered very confiderable, yet it cannot be 
 laid, that liberty is, after all, in any high de- 
 gree endangered, becaufe, fhould ever the 
 Executive Power turn againft the Nation a 
 ftrength which ought to be employed folely for 
 its defence, this Nation, if it were really free, 
 by which I mean, unreftrained by political pre- 
 judices, would be at no lofs for providing the 
 means of its fecuficy. 
 
 With regard to the latter object, that is,
 
 ii2 THE CONSTITUTION 
 
 the maintenance of domeftic tranquillity, eve- 
 ry individual tnuft, exclufive of new renuncia- 
 tions of his natural liberty, moreover furren- 
 der, which is a matter of far more dangerous 
 confequence, a part of his perfona] fecurity. 
 
 The Legiflative power, being, from the 
 nature of human affairs, placed in the alter- 
 native, either of expofing individuals to dan- 
 gers which it is at the fame time able extremely 
 todiminifh, or of delivering up the State to the 
 boundlefs calamities of violence and anarchy, 
 finds itfelf compelled to reduce all its mem- 
 bers 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 defcncelefs, to the exertion 
 ef the comparatively immenfe power of the 
 Executors of the laws. 
 
 Nor is this all ; for, inftead of that power- 
 ful re-ac~tion 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 refiftance. It is there- 
 fore in regulating fo dangerous a power, and 
 in guarding leit it mould deviate from the 
 real end of its inftitution, that lcgiflation 
 ought to exhauft all its efforts. 
 
 But here it is of great importance to obfcrve,
 
 OF ENGLAND. n 3 
 
 that the more powers a Nation has referved 
 to itfelf, and the more it limits the authority 
 of the Executors of the laws, the more induf- 
 trioufly ought its precautions to be multiplied. 
 
 In a State where, from a feries of 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, undiftinguifh- 
 able by him, finds a kind of fafety in his own 
 infigniBcance. With refpecl: to the few who 
 furround him, as they are at the fame time the 
 inftruments of his greatnefs, they have nothing 
 to dread but his momentary caprices ; a dan- 
 ger this, 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 obstacles at every ftep, even 
 their flrongeft pafiions are continually put in 
 motion-, and that portion of public authority, 
 depofited with them to be the inftrument of 
 national tranquillity, eafily becomes a moft 
 formidable weapon. 
 
 Let us begin with the moft favourable fup- 
 pofition, and imagine a Prince whofe inten- 
 tions are in every cafe thoroughly upright; let 
 us even fuppofe, that he never lends an ear to 
 the fuggeftions of thofe whofe intereft it is t% 
 
 I
 
 H4 THE CONSTITUTION 
 
 deceive him ; neverthelefs, he will be fubject 
 to error : and this error, which, I will farther 
 allow, l'olely proceeds from his attachment to 
 the public welfare, yet may very poflibly hap- 
 pen to prompt him to aft as if his views were 
 directly oppofite. 
 
 When opportunities mail 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 earneft 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 Natioa 
 refts, and that thofe acts, fo laudable when 
 we only confiJer the motive of them, make a 
 breach at which tyranny will one day enter. 
 
 Yet 'farther, he will not even underftand 
 the complain's that will be made againfthrm. 
 To infift upon them will appear to him to 
 the laft degree injurious : pride, when per- 
 haps he is lead aware of it, will enter the 
 lifts; what he began with calmnefs, he will 
 profecute with warmth; and if the laws fhali 
 not have taken every poflible precaution, he 
 may think he is acting a very honeft part^ 
 whiie he treats as enemies of the State, Men
 
 O F E N G L A N D. 115 
 
 whofc only crime will be that of being more 
 fagacious than himfelf, or of being in a better fi- 
 tuation forjudging of the refults 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 to occur. Ex- 
 perience, on the contrary, evinces, that the 
 happieft difpofitions are not proof againft the 
 allurements 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 eve- 
 ry boundary. 
 
 Openly, to level every barrier, at once to 
 aflume the abfolute Mafter, are, as we faid 
 before, fruitlefs talks. 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 fo far as they are 
 brought ifito action by private individuals. 
 Sometimes a Citizen, by the force and perfe- 
 ferance of his complaints, opens the eyes of 
 the Nation ; at other times, fome member of 
 the Legislature 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 tTrofe who, ujdr
 
 n6 THE CONSTITUTION 
 
 And he will the more afluredly do fo, as. 
 from the error fo ufual among rulers, he will 
 think that the oppofition he meets with, how- 
 ever general, wholly depends on the activity 
 of but one or two leaders 5 and amidft the cal- 
 culations he will make, both of the fmallnefs 
 of the obftacle which offers to his view, and 
 of the decifive nature, of the fingle blow he 
 thinks he needs to ftrike, he will be urged on 
 by the defpair of ambition on the point of be- 
 ing baffled, and by the moft violent of all ha- 
 treds, that which was preceded by contempt. 
 
 In that cafe which I am frill confidering, of 
 a really free Nation, the Sovereign muft be 
 very careful that military violence does not 
 make the fmalleft part of his plan: a breach of 
 thefocial compact like this, added to the hor- 
 ror of the expedient, would infallibly endanger 
 his whole authority. But on the other hand, 
 as he has refolved to fucceed, he will in de- 
 fect of other refources, try the utmoft extent 
 of the legal powers which the Conftitution 
 has intruded with him ; and if the laws have 
 not in a manner provided for every poffible 
 cafe, he will avail hrmfetf of the imperfect 
 precautions themfelves that have been taken* 
 as a cover to his tyrannical proceedings; he 
 
 whatever appellation and in whatever Government it 
 jnay be, are at the head of public affairs.
 
 OF ENGLAND. 7 
 
 will purfuefteadily his particular object, while 
 his profeffions breathe nothing but the general 
 welfare, and deftroy the afifertors of the laws, 
 under the very (belter of the forms contrived 
 for their fecurity (). 
 
 This is not all; independently of the im- 
 mediate mifchief he may do, if the Legifla- 
 ture do not interpofe in time, the blows will 
 reach the Constitution itfelf j and the confter- 
 nation becoming general amongft the People, 
 each individual will find himfelf enflaved in 
 a State which yet may ft ill exhibit all the 
 common appearances of liberty. 
 
 Not only, therefore, the fafety of the indivi- 
 dual, but that of the Nation itfelf, requires the 
 utmoft precautions in the eftablifhment of that 
 neceffary, but formidable, prerogative of dif- 
 penfing punilhments. The firft to be taken, 
 even without which it is impoflible to avoid 
 the dangers above fuggefted, is, that it never 
 be left to the difpofal, nor, if it be poflible, ex- 
 pofed to the influence, of the Man who is the 
 depofitary of the public power, 
 
 {a) If there were any perfon whp charged me with, 
 calumniating human Nature, for it is her alone I am 
 aecufing here, I would defire him to caft his eyes on the 
 Hiftory of a Lewis XI. of a Richelieu, and above all, 
 on that of England before the Revolution : he would 
 fee the arts and activity of Government increafe, in pro- 
 portion as it gradually loft its means of oppreffion. 
 
 is
 
 u8 THE CONSTITUTION 
 
 The next indifpdnfable precaution is, that 
 neither fhall this power be veiled in the Legif- 
 lative Body ; and this precaution, fo necefiary 
 alike under every mode of Government, be- 
 comes doubly fo, when only a fmall part of the 
 Nation has a (hare in the Legiflative power. 
 
 If the judicial authority were lodged in the 
 legiflative part of the People, not only the 
 great inconvenience mull enfue of its thus be- 
 coming independent, but alfo that word of 
 evils, the fupprefiion of the fole circumitance 
 which can well identify this part of the Na- 
 tion with the whole, that is, a common 
 fubjedlion to the rules which they prefcribe. 
 The Legiflative Body, which could nor, 
 without ruin to itfelf, eftablifli, openly and 
 by direct laws, diftinclions in favour of its 
 Members, would raife them by its judgments; 
 and the People, in electing reprefentatives, 
 would give themfelves Matters. 
 
 The judicial power ought therefore abfo- 
 lutely to nfide in a fubordinate and depen- 
 dant body; dependant, not in its particular 
 acls, with regard to which it ought to be a 
 fancluary, but in its rules and in its forms, 
 which the legifhtive authority mull prefcribe. 
 How is this body to be compofed ? In this re- 
 fpect farther precautions mull be taken. 
 
 In a State where the Prince is abfolute
 
 OF ENGLAND. 119 
 
 Matter, numerous Bodies of Judges are moft 
 convenient, inafmuch as they reftrain, in a 
 considerable degree, that refpecl: of perfons 
 which is one inevitable attendant on that mode 
 of Government. Befides, thefe bodies, what- 
 ever their prerogatives may be, being at bot- 
 tom in a ftate of the greateft weaknefs, have 
 no other means of acquiring the refpect of the 
 people than their integrity, and their conftancy 
 in obferving certain rules and forms: nay, 
 thefe circumftances united, in fome degree 
 overawe 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 underiiood to be, 
 and in fact is, fubject to the laws., numerous Bo- 
 
 (a) This is meant to allude to the French Parlemens, 
 and particularly that of Paris, the head of all the others, 
 which forms fuch a confiderable Body as to have been 
 once fummoned as a fourth Order to the General Ef- 
 tates of the kingdom. The weight of that Body, in- 
 creafed by the circumftance of the Members holding 
 their places for life, has conftantly been attended with 
 the advantage juft mentioned, of placing them above 
 being overawed by private individuals in the admini- 
 ftration either of civil or criminal Juftice : it has even 
 rendered them fo difficult to be managed by the Court, 
 that the Minifters have been at times obliged to ap- 
 point particular Judges, or Commijfaries, to try fuch 
 . Men as they had refolved to ruin. 
 
 Thefe, however, are only local advantages, and re- 
 
 14
 
 izo THE CONSTITUTION 
 
 dies of Judicature would be repupnant to 
 the fpirit of the Conftitution, which requires, 
 that all powers in the State moukl be a> much 
 confined as the end of their institution can al- 
 low j not to add, that in the viciffitudes in- 
 cident to luch a State, they might exert a 
 very dangerous influence. 
 
 Befides, that awe which is natural'y infpired 
 by fuch Bodies, and is fo ufeful when it is ne- 
 ceflary to flrengthcn the feeblenefs of the laws, 
 would not only be fuperfluous in a State where 
 the whole power of the Nation is on their fide, 
 but would moreover have the miichievou: ten- 
 dency to introduce another fort of fear than 
 that which men muft be taught to entertain. 
 Thofe mighty Tribunals, lam willing to fup- 
 pofe, would prefcrve, in all fituarions of affairs, 
 that integrity which diftinguifhes them in 
 States of a different Conflitution; they never 
 would inquire after the influence, (fill lefs the 
 political fentiments, of thofe whofe fate they 
 
 lative to the nature of the French Government, which 
 is an uncontrouled Monarchy, with confiderable re- 
 mains of Ariftocracy. But in a free State, fuch a power- 
 ful Body of Men, veiled with the power of deciding on 
 the life, honour, and property, of the Citizens, would, 
 as will be prefently fhewn, be productive of very dan- 
 gerous political confequences ; and the more fo, if fuch 
 Judges had, as is the cafe all over the world except in 
 the Britifli dominions, the power of deciding both up- 
 on the matter of law, and the matter of faft. 
 
 #
 
 OF ENGLAND. i2t 
 
 were called to decider but thefe advantages 
 not being founded in the neceflity of things, and 
 the power of fuch Judges feeming to exempt 
 them from being fo very virtuous, Men 
 would be in danger of taking up the fatal 
 opinion, that the Ample exact obfervance of 
 th li ws 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 
 confequences of even a lawful condudl ; and, 
 though encouraged by the law, might deferc 
 himlelf when he came to behold ifcs Mi-? 
 nitfers. 
 
 In the affembly of thofe who fit as his 
 Judges, the Citizen might pofiibly defcry no 
 enemies; but neither would he fee any man 
 whom a fimilarity of circumftances might en- 
 gage to take a concern in his fate : and their 
 rank, efpecially when joined with their num- 
 bers, would appear to him, to lift them above 
 that which overawes injuftice, where the law 
 has been unable to fecure any other check, I 
 mean the reproaches of the Public. 
 
 And thefe his fears would be confiderably 
 heightened, if, by an admiffion of the Jurif- 
 prudence received among certain Nations, he 
 beheld thofe Tribunals, already fo formidable,
 
 122 THE CONSTITUTION 
 
 wrap themfclves up in myftery, and be made, 
 as it were, inacceflible {a). 
 
 He could not think, without difmay, of 
 thofe vaft 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 focie- 
 ty of other Men, or of thofe long and fecret 
 examinations, in which, abandoned wholly to 
 himfelf, he will have nothing but a pafiive de- 
 fence to oppofe to the artfully varied queflions 
 of Men whofe intentions he mail at lead fuf- 
 
 (a) An allufion is made here to the fecrecy with 
 which the proceedings, in the adminiftration cf criminal 
 Juftice, are to be carried on, according to the rules of the 
 civil law, which in that refpeft are adopted over all Eu- 
 rope. As foon as the prifoner is committed, he is de- 
 barred of the light 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- 
 ivvers in writing, and he ftands alone before them in 
 iboie private room in the prifon. The witnefTes are to 
 be examined apart, and he is not admitted to fee them 
 till their evidence is clofed,-' they are then confronted to- 
 gether before all the Judges, to the end that the witnef- 
 fes may fee if the prifoner is really the Man they meant 
 in giving their refpettive evidences; and that the pri- 
 foner may objecl to fuch of them as he (hall think pro- 
 per: this done, the depositions of fuch witnefTes as are 
 adjudged upon trial to be exceptionable, are fet afide : 
 the depofitions of the others are to be laid before the 
 Judges, as well as the anfwers of the prifoner, who haj
 
 OF ENGLAND. 123 
 
 peel, and in which his fpirit, broken down by 
 folitude, fhall receive no fupport, either from 
 the counfels of his friends, or the looks of thofe 
 who (hall offer up vows for his deliverance. 
 
 The fccurity of the individual, and the 
 confcioufnefs of that fecurity, being then equal- 
 ly eflential to the enjoyment of liberty, and 
 neceffary for the prefervation of it, thefe two 
 points muft never be left out of fight in the 
 eflablimment of a judicial power , and I con- 
 ceive that they necefiarily lead to the follow- 
 ing 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 coiirfe 
 of the proceedings, 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 prir 
 foner is fo completely delivered up into the hands of 
 the Judges, who even can detain him almoftat pleafure 
 by multiplying or delaying his examinations, that, 
 -whenever it is adopted, Men are almoft as much afraid 
 of being accufed, as of being guilty, and efpecially 
 grow very cautious how they interfere in public matters. 
 We fhall fee prefently how the Trial by Jury, peculiar 
 to the Englifh Nation, is admirably adapted to the na- 
 Sure of a free State. 
 
 6
 
 124 THE CONSTITUTION 
 
 In the firft place I (hall remind the reader 
 of what has been laid down above, chat the 
 judicial authority ought never to refide in an 
 independent Body; ftill lefs in him who is 
 already the trultee of the Executive power. 
 
 Secondly, the party accufed ought to be pro- 
 vided wjth every pofiible means of defence. 
 Above all things, the whole proceedings cugh't 
 to be public. The Courts, and their difre r 
 rent forms, muft be luch as to infpire refpect, 
 but never terror ; and the cafes ought to be 
 fo accurately afcerraincd, the limits fo clearly 
 marked, as that neither the Executive power, 
 nor the Judges, may ever hope to tranfgrefs 
 them with impunity. 
 
 In fine, fince we muft abfolutely pay a price 
 for the advantage of living in fociety, not 
 only by relinquifhing fome fiiare of our natural 
 liberty (a furrender which, in a wifely framed 
 Government, a wife Man will make without 
 reluctance) but even alfo by refigning part of 
 even our perfonal fecurity, in a word, fince 
 all judicial power is an evil, though a necef- 
 fary one, no care mould be omitted to reduce 
 as far as pofiible 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, 
 
 3
 
 OF ENGLAND. 125 
 
 and the law is to refign him over to the judg- 
 ment of a few perfons, that is, to fpeak plain- 
 ly, to a decifion in fome fenfe arbitrary, it is 
 necefTary that this law fhou'd narrow as far as 
 pofliblethis fphere of peril, and fo order mat- 
 ters, that when the fubiedt mall happen to be 
 fummoned to the decifion of his fate by the fal- 
 lible confcience of a few of his fellow creatures, 
 he may always find in them advocates, and 
 never adverfaries. 
 
 CHAP. XI. 
 
 The fame Subjecl continued. 
 
 AFTER having offered to the reader, in 
 the preceding Chapter, fuch general 
 confiderations as 1 thought neceflary, in order 
 to convey a jufter idea of the ipirit of the 
 criminal Judicature in England, and of the 
 advantages peculiar to it, I now proceed to 
 exhibit the particulars. 
 
 When a perfon is charged with a crime, the 
 Magiftrate, who is called in England a Juflice 
 of the Peace, i flues a warrant to apprehend 
 him j but this warrant can be no more than an 
 order for bringing the party before him : he 
 mult then hear him, and take down in writ-
 
 1*6 THE CONSTITUTION 
 
 ing his anfwers, together with the different in- 
 formations, 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 fufpe<5l him of it, he mufl 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 ; unlefs in capital cafes ; for then he 
 muft, for fafer cuftody, be really committed 
 to prifon, in order to take his trial at the next 
 Seflions. 
 
 But this precaution of requiring the exa- 
 mination of an accufed perfon, previous to his 
 imprifonment, is not the only care which 'the 
 law has taken in his behalf j it has farther 
 ordained that the accufation againft him 
 lhould be again difcufied, before he can be 
 expofed to the danger of a trial. Ar. every 
 feflion the Sheriff' appoints what is called the 
 Grand Jury. This AfTembly muft be com- 
 pofed of more than twelve Men, and lefs 
 than twenty-four ; and is always formed out 
 of the moft confiderable perfons in the Coun- 
 ty. Its function is to examine the evidence that 
 has been given in fopport of every charge; 
 if twelve of thofe perfons do not concur ir*
 
 OF ENGLAND, 127 
 
 the opinion that an accufation is well ground- 
 ed, the party is immediately difchargedj if, on 
 ' the contrary, twelve of the grand Jury find 
 the proofs fufficient, the prifoner is faid to be 
 indicted, 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 caufing the bill of in- 
 dictment to be read in his prefence, muft afk 
 him how he will be tried : to which the pri- 
 foner anfwers, by God and my Country ; by 
 which he underftood to claim to be tried by a 
 Jury, and to have all the judicial means of de- 
 fence to which the law intitles him. The She- 
 riff then appoints what is called the Petty Ju- 
 ry: this muft be compqfed of twelve Men, 
 chofen of the County where the crime was com- 
 mitted, and pofleffed of a landed income often 
 pounds by the year : their declaration finally de- 
 cides on the truth or falfhood of the accufation. 
 
 As the fate of the prifoner thus intirely de- 
 pends on the Men who compofe this Jury r 
 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,
 
 128 THE CONSTITUTION 
 
 Thefe challenges are of two kinds. The 
 firft, which is called the challenge to the array, 
 has for its object to have the whole pannel fee 
 afide: it is propofed by the prifoner when he 
 thinks that the Sheriff who formed the pannel 
 is not indifferent in the caufe ; for inftance, if 
 he thinks he has an intereftin the profecution, 
 that he is related to the profecutor, or in ge- 
 neral to the party who pretends to be injured. 
 
 The fecond kind of challenges are called, 
 to the Polls, (in capita) : they are exceptions, 
 propofed again ft the Jurors, feverally, and are 
 reduced to four heads by Sir Edward Coke. 
 That which he calls propter honoris refpcclum, 
 may be propofed againft a Lord impannelled 
 on a jury, or he might challenge himfelf. 
 That propter defeclum takes place when a Ju- 
 ror is legally incapable of ferving that office, 
 as, if he was an alien; if he had not an eftate 
 fufficient to qualify him, &c. That propter 
 deliclum 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 affetlum 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
 
 OF- ENGLAND. 129 
 
 his counfel, attorney, or of the fame fociety 
 or corporation with him, &c. (a) 
 
 In fine, in order to relieve even the ima- 
 gination of the prifoner, the law allows him, 
 independently of the feveral challenges above 
 mentioned, to challenge peremptorily, that is 
 to fay, without fhewing any caufe, twenty 
 jurors fuccefiively (b). 
 
 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 rh$ 
 rules of the Civil law, the witness deliver 
 their evidence in the prefence of the prifoner. 
 the latter may put queftions to them ; he may 
 alfo produce witnefles in his behalf, and have 
 them examined upon oath. Laftly, he is al- 
 lowed to have a Counfel to a (Tift him, not 
 only in the difcuflion of any point of law 
 which may be complicated with the fact, but 
 alfo in the investigation of the fact itfelf, and 
 
 (a) When the' prifoner is an alien, one half of the 
 Jurors muft alfo be aliens: a Jury thus formed is called 
 a Jury de medietate lingua. 
 
 () When thofe feveral challenges reduce too much 
 the number of Jurors on the panne), which is forty- 
 eight, new ones are named on a writ of the Judge, who 
 are named the Tales, from thofe words of the wjrlf. de^ 
 cem or eSio tales. 
 
 K
 
 ' igo THE CONSTITUTION 
 
 who points out to him the queftions he ought 
 to aflt, 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 (b) t accufations which 
 fuppofe a heat of party and powerful accufers, 
 the law has provided for the accufed party 
 farther fafeguards. 
 
 Firit, no perfon 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 aflift him 
 through the whole courfe of the proceedings. 
 4. That his witness may not be kept away, 
 the Judges muft grant him the fame compul- 
 five procefs to bring them in, which they 
 ifTue to compel the evidences againft him. 
 5*. A copy of his indictment muft be delivered 
 
 (a) This laft article however i$ not eftablifhed by 
 law, except in cafes of treafon ; it is done only through 
 cuftom and the indulgence of the Judges. 
 
 (b) The penalty of a mifprifion of treafon is, th 
 forfeiture of all goods, and imprifonment for life. 
 
 9
 
 OF ENGLAND. 131 
 
 to him ten days at lead before the trial, in 
 prefence of two witnefles, and at the expence 
 of five (hillings ; 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 wicneflfcs who 
 are intended to be produced again (I him (a). 
 
 When, either in cafes of high treafon, or of 
 inferior crimes, the profecutor and the prifoner 
 have clofed their evidence, and the witnefTes 
 haveanfv\ered to the refpefHve queftions both 
 of the Bench, and of the Jurors, one of the 
 Judges makes a fpeech, in which he Aims up 
 the fads which have been advanced on both 
 fides. He points out to the Jury what more 
 precifely conftitutes the hinge cf the queftion 
 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 they have agreed unani- 
 moufly among themfelves, unlefs the Court 
 give a permiffion to the contrary. Their decla- 
 
 () Stat. 7 Will. III. c. 3. and 7 Ann. c. 21. The lat- 
 ter was to be in force only after the death of the late 
 Pretender. 
 
 K 2
 
 132 THE CONSTITUTION 
 
 ration or verdict {verediflutri) mutt (unlefs they 
 choofe to give a fpecial verdict) pronounce ex- 
 prefsly, ei r her that the prifoner Jsguilty,.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 muftbeunanimous. 
 And as the main object of the institution 
 of the Trial by a Jury is to guard accufed per- 
 fons againft all decifions whatfoever by Men 
 inverted with any permanent official autho- 
 rity 0), it is not only a faded principle, 
 that the opinion which the Judge delivers 
 has no weight but fuch as the Jury choofe 
 to give it, b ut their verdict muft befides _com- 
 prehend the_wJioje_maixejjii_tri.il i and^ decide 
 as well upon the fact, a^upon th^^ointof 
 l aw that may ari(e ou ToTu : in other words, 
 they mud pronounce both on the commiffion 
 of a certain faCt, and on the reafon which, 
 makes fuch fact to be contrary to law (b). 
 
 (a) " Laws," as Junius fays extremely well, ** are 
 intended, not to truft to what Men will do, but to 
 " guard againit what they may do." 
 
 {Jb) Unlefs they choofe to give a Special verdid. 
 " When the Jury," fays Coke, " doubt of the law, 
 " and intend to do that which hjuft, they find xhc/pecial 
 " matter, and the entry is, Et fuper tota materia petunt 
 " difcrelionem Jufticiariorum" Inft. iv. p. 41. Thefe 
 words of Coke, we may obferve, confirm beyon d 
 a doubt th e power of the Jury to determine on the
 
 OF ENGLAND. 133 
 
 This is even fo efiential a point, that a bill 
 of indictment muft exprefsly be grounded 
 upon thofe two objects. Thus, an indictment 
 for treafon muft charge, that the alledged facts 
 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 indict- 
 ment for robbery muft charge, that things 
 were taken with an intention to rob, {animo 
 furandi) &c. &c. (a) 
 
 Juries are even fo uncontroulable in their 
 verdict:, fo apprehenfive has the Conllitution 
 been, left precautions to reftrain them in the 
 exercife of their function, however fpecious in 
 the beginning, might in the iffue be converted 
 
 whole matter i n trial : a power which in all conftitu- 
 tional views is necefTary ; and the more fo, fince a pri- 
 foner cannot in England challenge the Judge, as he can 
 under the Civil law, and for the fame caufes as he can 
 a witnefs. 
 
 (a) The principle that a Jury is to decide both on the 
 fact, and the criminality of it, is fo well nderftood, 
 that if a verdict were fo framed as only to have for its 
 object the bare exiftenceof the fact laid to the charge of 
 the prifoner, no punifhment could be awarded by the 
 Judge in confequence of it. Thus, in the profecution 
 of Woodfall, for printing Junius's letter to the King, 
 the Jury brought in the following verdict, guilty of 
 printing and publijbing, only; the confequence of which 
 was the difcharge of the prifoner.
 
 134 THE CONSTITUTION 
 
 to the very destruction of the ends of that 
 in'litution, 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 facts alledged on both 
 fides, from their probability, from the credi- 
 bility of the witn?fles, and even from all fuch 
 circumftances as he may have a private know- 
 ledge of. Lord Chief Juftice Hale exprcfles 
 himfelf on this fubject, in the following terms, 
 in his Hiftory of the Common Law of Eng- 
 land. Chap. 12. | til 
 
 " In this recefs of the Jury, they are to 
 " confiier their evidence i to weigh the credi- 
 *f bility of the witneffes, and the force and 
 " efficacy of their teftimon : es; wherein (as I 
 " before faid) (hey are not precifely bound to 
 4< the rules of the Civil law, viz. to have 
 11 two witneffes to prove every fact, unlefs it 
 M be in cafes of treafon, nor to reject one 
 " witnefs I ecaufe he is fingle, or always to 
 * believe two witneffes, if the probability of 
 " the fact does upon other circumftances 
 M reafonably encounter them ; for the Trial 
 *' is not here fimply by witneffes, but by 
 ' Jury : nay, it may fo fall out, that a Jury 
 *' upon their own knowledge may know a
 
 O F E N G L A N D. i 35 
 
 " thing to be falfe that a witnefs fwore 
 to be true, or may know a witnefs to be 
 " incompetent or incredible, though nothing 
 *' be objected . againft him, and may give 
 M their verdict accordingly" (#). - ** 
 
 If the verdict pronounces not guilty, the " a ^T 
 prifoner is fet at liberty, and cannot, on any fPU*^^ 
 prerence, be tried again for the fame offence. ^trufA^- 
 If the verdict declares him guilty, then, and 0( <=^ fy^r> 
 not till then, the Judge enters upon his function j *S)*c4 
 as a Judge, and pronounces the punifhment 
 which the law appoints (b). But, even in this 
 cale, he is not to judge according to his own 
 
 {a) The fame principles and forms are obferved in ci- 
 vil matters ; only peremptory challenges are not allowed. 
 
 {b) When the party accufed 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 refpefts. In the firft place, as to the number of 
 the Jurors : all the Peers are to perform the fundion of 
 fuch, and they muft be fummoned at leaft twenty days 
 beforehand. II. When the Trial takes place during the 
 fefiion, 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 perfans at leaft, is to decide. 
 
 K 4
 
 136 THE CONSTITUTION 
 
 difcretion only ; he mud ftrictly adhere to the 
 letter of the law , no conftructive extenficta can 
 be admitted; and however criminal a fact might 
 in itfelf be, it would pafs unpunifhed if it were 
 found not to be pofitively 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 
 inftantly ftop, 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 de- 
 pends the fafety of the individual (a). 
 
 To all thefe precautions taken by the law 
 for the fafery of the Subject, one circumftance 
 mult 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 Gial} give here an inftance of the fcruple with 
 which the Englifh Judges proceed upon occasions of this 
 kind. Sir Henry Ferrers having been arretted by vir- 
 tue of a warar.t, in which he was termed a Knight, 
 though he wrs 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 manflaugh-, 
 " ter." See Croke's Rep. P. IN. p. 371.
 
 O F E N G L A N D. 13; 
 
 torture (a). Without repeating here what has 
 been faid on this fubjett by the admirable Au 
 thor of the Treatife on Crimes and Punijhments, 
 I (hill only obferve, that the torture, in itfelf 
 fo horrible an expedient, would, more efpeci- 
 ally in a free State, be attended with the moll 
 fatal confequences. It was absolutely neceffary 
 to preclude, by rejecting it, all attempts to 
 make the purfuic of guilt an inftrument of 
 vengeance againft the innocent. Even the 
 convicted criminal muft be fpared, and a 
 practice at all rates exploded, which might 
 fo eafily be made an inftrument of endlefs 
 vexation and perfecution (b). 
 
 (a) Coke fays (In;L III. p. 35.) that when John Hol- 
 land, Duke of Exeter, and William de la Pooje, 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) Judge Fofter relates, from Whitlock, that the 
 IJifhop of London having faid to Felton, who had af- 
 faifiinated the Duke of Buckingham, " If you will not 
 '< confefs, you muft go to the Rati;" the Man replied, 
 c If it muft be fo, I know not whom I may accufe in 
 " the extremity of the torture; Bifhop Laud perhaps, 
 " t or any Lord at this Board." 
 
 " Sound fenfe, (adds Fofter) in the mouth of an 
 " Enthufiaft and a Ruffian 1" 
 
 Laud having propofed the Rack, the matter was. 
 fhortly debated at the Board, and it ended in a re- 
 ference to the Judges, who unanimoully refolved that 
 the Rack could not be legally ufed.
 
 i 3 S THE CONSTITUTION 
 
 For the further prevention of abufes, it is 
 an invariable ufage, that the trial be public. 
 The prilbner neither makes his appearance, 
 nor pleads, but in places where every body 
 may have free entrance \ and the witneffes 
 \vh(" they give their evidence, the Judge 
 wh'n he delivers his opinion, the Jury when 
 they give their verdict, are all under the pub- 
 lic eye. Laftly , the Judge cannot change either 
 the place or the kind of punifhment prefcribed 
 by legal fentence ; and a Sheriff who mould 
 take away the lite of a Man in a manner diffe- 
 rent from that which the law prefcribes, would 
 be profecuted as guilty of murder (a). 
 
 In' a word, the Conftitution of England 
 being a free Conftitution, demanded from that 
 circumftance alone, (as I fhould 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 infticution. 
 
 By means of it, the Judicial authority is not 
 
 (a) And if any ether pcrfon but the Sheriff", even the 
 Judge himfelf, were to caufe death to be inflitted upon 
 a Man, though convifted, it would be deemed an homi- 
 cide. Sec Blackftone, L. iv. ch. 14.
 
 OF ENGLAND. 139 
 
 only placed out of the hands of the Man 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 re- 
 ceived the per million to that purpofe, of tnofe 
 who are kt apart to adminifter the laws; but 
 thefe latter are alfo reftrained in a manner ex- 
 actly alike, and cannot make the law fpeak, 
 but when, in their turn, thsy have likswife 
 received permifilon. 
 
 And thofe perfons to whom the law has thus 
 cxclufively delegated the prerogative of deci- 
 ding that a punifliment is to be inflicted, 
 thofe Men without whofe declaration the 
 Executive and the Judicial powers are both 
 thus bound down to inaction, do not form 
 among themfelves a permanent Body, who 
 may have had time to ftudy how their power 
 can ferve to promote their private views ; they 
 are Men felected at once from among the peo- 
 ple, 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- 
 tices of fuch as, in the face of fo many difcou- 
 ragements, might flill perlifl in making the Ju-
 
 i4o THE CONSTITUTION 
 
 dicial power fubfervient to their own views, and 
 on the other excludes all perfonal refcncments, 
 the fole affection which remains to influence 
 the integrity of thofe who alone are intitled to 
 put the public power into action, during the 
 fhort period of iheir authority, is, that their 
 own fate as fubjects, is effentially connected 
 with that of the Man whofe doom they are 
 going to deciJe. 
 
 In fine, fuch is the happy nature of this infti* 
 tution, that the Judicial power, a power fo for- 
 midable in itielf, which is to difpofe without 
 finding any refinance, of the property, honour, 
 and life of individuals, and which, whatever 
 precautions may be taken to reftrain it, muft 
 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 
 nobody (a). 
 
 In all thefe obfervations on the advantages 
 of the Englifli criminal laws, I have only 
 confidered it as connected with the Cqnftitu- 
 
 tion, which is a free one; and it is in this 
 
 \ 
 
 (a) The confequence of this Inftitution is, that no 
 Man in England ever meets the Man of whom we may 
 fay, " That Man has a power to decide on my death 
 " or life." If we could for a moment forget the ad- 
 vantages of that Inftitution, we ought at leaft to admire 
 the ingenuity of it, 
 2
 
 OF ENGLAND, 141 
 
 View alone that I haVe compared it with the 
 Jurifprudence received in other States. Yet, 
 abftractedly from the weighty conftitutional 
 confideraticns which I have fuggefted, I think 
 there are Mill other interesting grounds of pre- 
 eminence on the fide of the laws of England. 
 
 They do not permir, 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 prifon, or on 
 his Trial, they never for an inftant refufe free 
 accefs to thofe who have either advice, or com- 
 fort, to give him : they even allow him to fum- 
 mon all who may have any thing to fay in his 
 favour. Laftly, what is of very great impor- 
 tance, the witneffes againft him mult deliver 
 their teftimony in his prefence he may crofs- 
 examine them ; and, by one unexpected ques- 
 tion, confound a whole fyftemof calumny : in- 
 dulgences thefe all, denied by the laws of 
 other Countries. 
 
 Hence, though an accufed perfon may be 
 expoied to have his fate decided by perfons 
 (the Petty Jury) who poffefs not, perhaps, all 
 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
 
 i 4 2 THE CONSTITUTION 
 
 with which the law, as we have feen, has pro- 
 vided him. It* a Juryman does not poffefs that 
 expertnefs which is the refulc of long practice, 
 yet neither does he bring to judgment that hard- 
 nefs of heart which is, more or lefs, alio, a con- 
 fequence of it ; and bearing about him the prin- 
 ciples, let me fay, the unimpaired inftinct of 
 humanity, he trembles while he exercifes the 
 awful office to which he finds himklf called, 
 and in doubtful cafes always decides f i r mercy. 
 It is to be farther obferved, that in the 
 ufual courfe of things, the 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 Verdict : 
 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 the King; which feldom fails to produce 
 at lead a mitigation of the punifhment : that, 
 though a Man, once acquitted, can never 
 under any pretence whatfoever, be again 
 brorght into peril for the lame offence, yet a
 
 O F E N G t A N D. 143 
 
 new Trial would be granted, if he had been 
 found guilty upon proofs ftrongly fu {peeled of 
 being falfe. (Blakft. L. iv. c. 27.) Lailly, 
 what diftinguifhes the Jaws of England from 
 thofe of other Countries in a very honourable 
 manner, is, that as the torture is unknown to 
 tnem, fo neither do they know any more grie- 
 vous punifliment than the fimple deprivation 
 of life. 
 
 Alhthefe 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 impunity. 
 
 CHAP. XII. 
 
 the Suhjett concluded. Laws relative to Im* 
 prifomnsnt. 
 
 BU T what completes the fenfe of inde- 
 pendance, which the laws of England 
 procure to every individual, (a fenfe which
 
 i 4 4 THE CONSTITUTION 
 
 is the nobleft advantage attendant on 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- 
 fcribing, 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 againfl the Executive Power that 
 the Legiflature has, above all, directed its 
 efforts : 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 
 afiume the function ; and which, having thus 
 all the efficacy of more odious means without 
 the dangers of them, was the moll 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 unjuflly imprifoned, were the writs of main- 
 prize , de odio cif alia, and de hom'im replegiando. 
 Thofe writs, which could not be refilled, were 
 an order to the Sheriff of the County in which 
 a perfon had been confined, to inquire into the
 
 OF ENGLAND, rjj 
 
 caufes of his confinement; and, according to 
 the circumftances of his cafe, either to dis- 
 charge him purely and fimply, or upon bail. 
 
 But the moft ufeful method, and which 
 even, by being mod general and certain, has 
 tacitly abolifhed all the others, is the wric of 
 Habeas Corpus, fo called becaufe it begins with 
 the words Habeas corpus ad fubjiciendum. This, 
 writ, being a writ of high prerogative, muft 
 iffue from the Court of King's Bench : its 
 effects extended equally dver every County 5 
 and the King by it required, or was under- 
 ftocd to require, the perfon who held one 
 of his fubjects in cuftody, to carry him before 
 the Judge, with the date of the confinement, 
 and the caufe of it, in order to difcharge 
 him, or continue to detain him, according as 
 the Judge mail decree^ 
 
 But this writ, which might be a refource in 
 cafes of violent imprifonment effected by indi- 
 viduals, or granted at their requeft, was but 
 a feeble one, or rather was no refource at all, 
 againftthe prerogative of the Prince, efpecially 
 under the reigns of the Tudors, and in the be- 
 ginning of thofe of the Stuarts. And even, in 
 the firft years of Charles the Firft, the Judge* 
 of the King's Bench, who in confequence of the 
 fpirit of the times, and of their holding their
 
 146 THE CONSTITUTION 
 
 places durante bene placito y were conftantly de- 
 voted to the Court, declared, " that they 
 " could not, upon an habeas corpus^ either bail 
 c * or deliver a prifoncr, though committed 
 < without any caufe affigned, in cafe he was 
 <c committed by the fptcial command of the 
 " King, or by the Lords of the Privy Council." 
 
 Thofe principles, and the mode of proce- 
 dure which refulted from them, attracted the 
 attention of Parliament ; and in the Ad called 
 the Petition of Right, pafled in the third year 
 of the reign of Charles the Firft, it was enacted, 
 that no perfon mould be kept in cuftody* in 
 confequence of fuch iniprifonnients. 
 
 But the Judges knew how to evade the 
 intention of this Act: 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 obtain- 
 ed the full effect of an open denial of Juftice. 
 
 The Legiflature again imerpofed, and in the 
 Act pafled in the fixceenth year of the reign of 
 Charles the Firft, the fame in which the Star- 
 Chamber was fupprefied, it was enacled, that 
 " if any perfon be committed by the King 
 <l ivmfelf in perfon, or by his Privy Council, 
 u or by any of the members thereof, he fhall 
 " have granted unto him, without any delay
 
 OF ENGLAND. 147 
 
 ' upon any pretence whatfoever, a writ of 
 <c Habeas Corpus-, and that the Judge fhall 
 " thereupon, within three Court days after 
 " the return is made, examine and deternrne 
 " the legality of fuch imprifonment." 
 
 This Act feemed to preclude every poffi- 
 bility of future evafion : yet it was evaded ftill ; 
 and by the connivance of the Judges, the per-* 
 fon who detained the priibner could without 
 danger, wait for a fecond, and a third wrir* 
 called an Ali&s and a Pluries, before he pro- 
 duced him. 
 
 All thefe different artifices gave at s length 
 birth to the famous Act of Habeas Cor pus , 
 pafled in the thirtieth year of the reign of 
 Charles the Second, which in England is con- 
 fidered as a fecond great Charter, and has 
 definitely fuppreffed all the refources oi 
 oppreflion {a). 
 
 The principal articles of this act are, To 
 fix the different terms allowed for bringing 
 a prifoner: thofe terms are proportioned to 
 the diftance - and none can in any cafe exceed 
 twenty days. 
 
 2. That the Officer and Keeper neglecting 
 
 (a) The real title of the AQ. is, An Af for better 
 f: curing the Subjecl, and for prevention of imprifonmenti 
 beyond the Seas. 
 
 L 2
 
 US THE CONSTITUTION" 
 
 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 realon 
 ; or authority, (fpecified in the ad) (hall for 
 the firft offence forfeit one hundred pounds, 
 and for the fecond, two hundred, to the 
 party grieved, and be di fabled to hold hrs 
 office. 
 
 3. No perfon, once delivered by Habeas 
 Corpus, fhall be recommitted for the fame 
 offence, 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 fefiion, be indicted in that term or 
 fefiion, or elfe admitted to bail ; unlefs the 
 King's witnefies cannot be produced at that 
 time : and if acquitted, or if not indicted 
 and tried in the fecond term or fefiion, he 
 fhall be difcharged of his imprifonment for 
 fuch imputed offence. 
 
 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.
 
 OF ENGLAND. i 4g 
 
 6. No inhabitant of England (except per- 
 fons contracting, or convicts praying to be 
 tranfported) fliall be fent prifor.er 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 afliftants, fliall 
 forfeit to the party grieved a fum not lefs 
 than five hundred pounds, to be recovered 
 with treble cofts j mall be difabled to bear any 
 office of truft or profit; fball incur the 
 penalties of framunire (the imprifonment for 
 life, and forfeiture of all goods and rents of 
 lands during life) and (hall be incapable of 
 the King's pardon.
 
 i5o THE CONSTITUTION 
 
 BOOK II. 
 
 CHAP. I. 
 
 Some advantages peculiar to the Engl'ijh Con- 
 ftitution. i. The Unity of the Executive 
 Power. ' 
 
 WE have feen, in former Chapters, 
 the refources of the different parts 
 of the Engiifh Government for balancing 
 each other, and how their reciprocal actions 
 and re-actions produce the freedom of the 
 Conftitution, which is no more than an equi- 
 librium between the ruling powers of the State. 
 I now propofe to (hew, that the particular 
 nature and functions of thefe fame conftituent 
 parts of the Government, which give it fo 
 differenc an appearance from that of other 
 free States, ' are moreover attended with pe- 
 culiar and very great advantages, which have 
 not hitherto been lufficient'y obferved.
 
 OF ENGLAND- 151 
 
 The firft peculiarity of the Englifh 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- 
 preffion, of the Executive power, and hav- 
 ing invariably and for ever fixed it there. 
 By this very circumftance, alfo, has the depo- 
 fitum of it been rendered facred and inex- 
 pugnable, by making one great, very great, 
 Man in the State, has an effectual check , 
 been put to the pretenfions of thofe who 
 otherwife would drive to become fuch, and 
 diforders have been prevented, which, in all 
 Republics, ever brought on the ruin of liberty, 
 and before it was loft, obftructed the enjoy- 
 ment of it. , 
 
 If we cad our eyes on all the States that 
 ever were free, we fh all fee that the People 
 in them, ever turning their jealoufy, as it 
 was natural, againft the Executive power, 
 but never thinking of the means of limit- 
 ing it that has fo happily taken place in 
 England (a), have never employed any other 
 expedient befides that obvious one, of truft- 
 ing it to Magiftrar.es whom they appointed 
 
 {a) The rendering that power dependent on the 
 people for its fupplies. See on this fubjeft Chap- 
 ter VI. B. I. 
 
 L 4
 
 }5 i THE CONSTITUTION 
 
 annually, which was in great meafure to keep 
 to themfelves the management of it. Whence 
 it refulted, that the People, who, whatever 
 nay be the frame of the Government, al- 
 ways pofiefs, after all, the reality of power, 
 uniting thus in themfelves with this reality 
 ci" power the actual exercife of it, in form as 
 well as fad, 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 indi- 
 viduals. 
 
 In a State which is fmall and poor, an 
 arrangement tff this kind is not attended with 
 any great inconveniences, as every individual 
 is taken up with the care of providing lor his 
 own fubfiitencc; as great objects of ambition 
 are wanting; and as evils, cannot, in fuch a 
 State, ever become much complicated. In a 
 State that drives for aggrandifement, the dif- 
 ficulties and danger attending the puriuit 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 lad, thofe exterior motives 
 come to ceafe, and the pafiions, and even the 
 virtues, which they excited, thus become 
 reduced to a flace of inaction, the Pepplq
 
 OF ENGLAND. 153 
 
 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 reftore him 
 to that ftate of exertion, which habit, he finds, 
 has rendered neceifary to him, and toexercife 
 a power which, fmall as it is, yet flatters his 
 vanity. 
 
 As the preceding events cannot but have 
 given an influence to a certain number of Ci- 
 tizens, they avail themfelves of the general 
 difpofition of the people^ to promote their 
 private views*, the legiflative power is thence- 
 forth continually in motion ; and it is ill in- 
 formed and faliely directed, almoft every exer- 
 tion of it is attended wjth fome injury either 
 to the laws, or the State. 
 
 This is not all ; as thofe who compofe the 
 general Affemblies cannot, in confequence of 
 their numbers, entertain any hopes of grati- 
 fying their private ambition, or in general, 
 their private paflions, they at lead feek to 
 gratify their political caprices, and they accu- 
 mulate the honours and dignities of the 
 State on fome favourite whom the public 
 voice happens to raife at that time. 
 
 But, as in fuch a State there can be, from
 
 I$4 THE CONSTITUTION 
 
 the irregularity of the movement-,, no fuch 
 thing as a lettied courfe of nqafures, it hap- 
 pens that Men never can exactly tell the 
 preient (late of public affairs. The power thus 
 given away is already grown very great, be- 
 fore thofe by whom it was given fo much 
 as fufped it ; and he himfelf who enjoys 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 recovered fight of him than 
 they fee their favourite become their Matter, 
 and difcover the evil, only to find that it is 
 patt ren.edy. 
 
 As this power, thusfurreptitiouflv acquired, 
 is deftirute of the fupport both of the law, 
 and of the ancient courfe of things, and is 
 even but indifferently refpecled by thole who 
 have fubje&ed themfelves to it, it cannot be 
 maintained but by abufing it. The People at 
 laft fucceed in forming fomewhere a centre 
 of union; they agree in the choice of a 
 Leader ; this Leader in his turn rifes , in his 
 turn alio he betrays his engagements ; power 
 produces its wonted effeds, and the protector 
 becc mes a Tyrant. 
 
 2
 
 OF ENGLAND. i 55 
 
 This is not all; the fame caufes which 
 have given a Mailer to the State, give it two, 
 give it three. All thofe rival powers endea- 
 vour to fwallow up each other ; the State 
 becomes a icene of quarrels and endlefs 
 broils, and is in a continual convulfion. 
 
 If amidit fuchdiforders the People retained 
 their freedom, the evil muft indeed be very 
 great, to take away all the advantages of 
 it; but they are flaves, and yet have not 
 what in other Countries makes amends for 
 political iervitude, I mean tranquillity. 
 
 In order to prove all thefe things, if proofs 
 were deemed neceffay, I would only refer the 
 reader to what every one knows of Pififtra- 
 tus and Megacles, of Marius and Sylla, of 
 Caefar and Pompey. However, I cannot. 
 avoid tranflating a part of the fpeech which 
 a Citizen of Florence addreffed once to the 
 Senate : the reader will find in it a kind of 
 ^bridged ftory of all Republics ; at leaft of 
 thofe which, by the fhare allowed to the Peo- 
 ple in the Government, deferved the name, 
 and which, befices, have attained a certain 
 degree of extent and power. 
 
 ts Ami that nothing human may be perpe- 
 " tnal and liable, it is the will of Heaven,
 
 156 THE CONSTITUTION 
 
 44 that in all States whatfoever, there fhould 
 44 arife certain destructive families, who are 
 y the bane and ruin of them. Of this our 
 44 Republic can afford as many and more 
 44 deplorable examples than any other, as it 
 * 4 owes its misfortunes not only to one, but 
 *' to feveral of fuch families. We had at firft 
 f the Buonddmonti and the Hubert'i. We had 
 I' afterwards the Donati and the Cerchi , and 
 44 at prefent, (fhameful and ridiculous con- 
 44 dud!) we are waging war among ourfches 
 44 for the Ricci and the Albizzi. 
 
 44 When in former times the Ghibelins 
 44 were fuppreffed, every one expected that 
 * the Guelfs, being then fatisfkd, would have 
 44 chofen to live in tranquillity , yet, but a 
 ** little time had elapfed, when they again 
 44 divided themfelves into the factions of the 
 4 ' Whites and the Blacks. When the Whites 
 44 were fuppreffed, new parties arofe, and new 
 44 troubles followed. Sometimes, battles were 
 44 fought in favour of the Exiles j and at other 
 44 times, quarrels broke out between the No- 
 44 bility and the People. And, as if refolved 
 44 to give away to others what we ourfelves 
 ** neither could, nor would peaceably enjoy, 
 4C we committed the care of our liberty, 
 
 3
 
 OF ENGLAND, 15^ 
 
 < at fometimes to King Robert, and at others 
 " to his brother, and at length to the Duke 
 M of Athens, never fettling nor refting in 
 ' any kind of Government, as not knowing 
 cc either how to enjoy liberty, or fupport 
 " fervitude" (a). 
 
 The Engliih Conftitution has prevented 
 the pOflibility of misfortunes of this kind. 
 Not only, by diminifliing the power, or rather 
 the a&ual exercife of the power, of the Peo- 
 ple (), and making them fliare in the 
 Legifiature only by their Reprefentatives, 
 the irrefiftible violence has been avoided of 
 thofe numerous and general Afiemblies, 
 which, on whatever fide they throw their 
 weight, bear down every thing. Befides, 
 as the power of the People, when they have 
 any power and know how to ufe it, is at all 
 times really formidable, the Conftitution has 
 fet a counterpoife to it* and the Royal autho- 
 rity is this counterpoife. . 
 
 In order to render it equal to fuch a func- 
 tion, the Conftitution has, in the firft place, con- 
 
 (a) Seethe Hiftory of Florence, by Machiavel, L, III. 
 
 {h) We fhall fee in the fequel, that this diminution 
 of the exercife of the power of the People has been at- 
 tended with a great increafe of their liberty.
 
 i^S THE CONSTITUTION 
 
 ferred on the King, as we have feen before, 
 the exclufive prerogative oi' calling and dif- 
 miiTing the Iegiflative Bodies, and of putting 
 a negative on their refolutions. 
 
 Secondly, ic has alfo placed on the fide of 
 the King the whole Executive power in the 
 Nation. 
 
 Laftly, in order to effect ftill 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 fubic&s; he is univerfal 
 proprietor of the whole Kingdom; he be- 
 llows all the dignities and places ; and he is 
 not to be addrelTed but with the exprefiions 
 and outward ceremony of almoft oriental 
 Tiumility. Befides, his perfon is facred and 
 inviolable *, and any attempt whatfoever 
 againft 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 
 of the People, and that of the Crown, would
 
 OF ENGLAND. 159 
 
 have been to facrifice 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 fidei 
 of the latter, has at leaft been in appearance 
 made up, by conferring on the King all 
 that fore of ftrength 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 which refills both 
 by its weight and the depth of its hold, 
 infures a falutary fteadinefs to the vefifel 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 
 lt'fiened the pofiibility of the evils we have 
 delcribed before , ic has even totally prevent- 
 ed them, by rendering it impofiible for 
 any Citizen even to rife to any dangerous 
 greatnefs. 
 
 And to begin with an advantage by which 
 the people eafily fufFer themfelves to be in- 
 fluenced, I mean that of birth, it is. impofii- 
 ble for it to produce in England effects in 
 any degree dangerous : for though there are
 
 ifc> THE CONSTITUTION 
 
 Lords who, befides their wealth, may alfd 
 boaft of an illuftriojs defcent, yet that ad J 
 vantage, being expofed to a continual compa- 
 nion with the fplendor of the Throne, dwindles 
 almoft to nothing , and in the gradation 
 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 England 
 is even formed upon tha^ 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 diftin6tion to 
 themfelves to hold the different menial offices 
 in his Houfhold. If we therefore were 
 to fet afide the extenfive and real power of 
 the King, as well as the numerous means he 
 pofleffes of fatisfying the ambition and hopes 
 of individuals, and were to confider only the 
 Majefty of his title, and that ftrength, founded 
 On public opinion, which refuhs from it, we 
 
 (a) This, by Stat, of the 31ft of Hen. VIII. extendi 
 to the fonj, grandfons, brothers, under, and nephews, 
 of the reigning King. ,
 
 OF ENGLAND. iSi 
 
 
 ffiould find thatad vantage foconfiderable, 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 fubor_ 
 
 dmate 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 fituation might incline them to difown 
 it* much more does it influence the minds of 
 the people. And if, notwithftanding the Value 
 which every Englifhman ought to put upon 
 himfelf as a Man, and a free Man, there were 
 any whofe eyes are fo 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 Majefty. 
 
 The only Man therefore, who, to thofe who 
 are unacquainted with the Conftitution of Eng- 
 land, might at firft fight appear in a condition 
 to put the Government in danger, would be a 
 Man who, by the greatnefs of his abilities and 
 public fervices, 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 foever this" enthufiafm of 
 xhe public may be, barren applaufe is the only; 
 
 M
 
 \6i THE CONSTITUTION 
 
 fruit which the Man whom they favour can 
 expect from it. He can hope neither for a 
 Dictatorlhip, nor a Confulfhip, nor in general 
 for any power under the fhelter of which 
 he may at once fafely unmafk that ambition 
 with which we might fuppofe him to be 
 actuated, or, if we fuppofe him to have been 
 hitherto free from any, grow infenfibly corrupt. 
 The only door which the Conftitution leaves 
 open to his ambiiion, of whatever kind ic 
 may be, is a place in theadminiftration during 
 the pleafure of the King. If, by the conti- 
 nuance of his fer vices, and the prefer vation 
 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 great- 
 nefs, is at the fame time a great ftep towards 
 the lofs of that power which might render 
 him formidable. 
 
 In the firft place, the People feeing that 
 he is become much lefs dependent on their 
 favour, begin, from that very moment, to 
 lefien 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
 
 OF ENGLAND. 16*3 
 
 whofe interefts are frequently, oppofite to 
 theirs, they immediately conclude that this 
 great and new dignity cannot have been ac- 
 quired but through a fecret agreement to 
 betray them. Their favourite, thus fuddenly 
 transformed, is going, they make no doubt, 
 to adopt a conduct intirdy contrary to that 
 which hitherto has been the caufe of his ad- 
 vancement and high reputation, and in the 
 compafs of a few hours completely renounce 
 thofe principles which he has fo long and fo 
 loudly profeffed. In this certainly the People 
 are miftaken , but yet neither would they be 
 wrong, if they feared that a zeal hitherto lb 
 warm, foconitant, I will even add, fo fincere, 
 when it concurred with, his private intereft, 
 would, by being thenceforth often in oppo- 
 fition to it, be gradually much abated. 
 
 Nor is this all , the favourite of the people 
 does not even find in his new acquired dig- 
 nity, all the increafe of greatnefs and eclat 
 that might at firil be imagined. 
 
 Hitherto he was, it is true, only a private 
 individual ; but then he was the object in 
 which the whole Nation interefted themfclves; 
 his actions and dilcouifes were fet forth in 
 all the public pj-ints ; and he every where 
 met with applaufe and acclamation. 
 
 M 2
 
 #4 THE CONSTITUTION 
 
 All thefe tokens of public favour are, t 
 know, fomctimtrs acquired very lightly; but 
 they never Iaft long, whatever people may 
 fay, unlefs real fervices are performed ; now, 
 the title of Benefactor of the Nation, when 
 deferved and univerfaily beftowed, is certainly 
 a very fine title, and which does nowife 
 require the afliftance of outward pomp to fee 
 it off. Befides, though he was only a Mem- 
 ber of theSrrfrrffK body of the Legiflature, 
 we mud 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 
 eftablifhed and fixed by known laws, that 
 uncertainty is taken from his luftre which is of 
 lb much value in thofe things which depend 
 on imagination ; and his price falls, juft be- 
 caufe it is afcertained. 
 
 Befides, he is a I ,ord , but then there are fe- 
 veral Men who pofiefs but i'mall abilities and 
 few eftimable qualifications, who alfo are 
 Lords; his lot is, neverthelcfs, to be feated 
 among them , the law places him exactly on the 
 fame level with them j and all that is real in his 
 greamefs, is thus loft in a crowd of dignities,, 
 hereditary and conventional. 

 
 OF ENGLAND. t6$ 
 
 And thefe are not the only lofles which the 
 favourite of the People is to, fuffer. Indepen- 
 dently of thofe great changes which he defcries 
 at a diftance, he feels around him alterations 
 no lefs vifible, and ftill more painful. 
 
 Seated formerly in the AITembly of the Re- 
 prefentatives of the People, his talents and con- 
 tinual fuccefs had fcon raifed him above the le- 
 vel of his fellow Members, and, 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 AfTembly of perfons 
 inverted with a perpetual and hereditary title, 
 he finds Men hitherto his fuperiors, Men 
 who fee with a jealous eye the eminent talents 
 of the homo nevus, and who are firmly refolved, 
 that after having been the leading Man in the 
 Houfe of Commons* he fhall not be the Brit 
 in theirs. 
 
 In a word, the fuccefs of the favourite of 
 the People were brilliant, and even formida- 
 ble; but the Conftitution, in the very reward 
 it prepares for him, makes him find a kind of 
 Oltracifm. His advances were fudden, and his 
 courfe rapid ; he was, if you pleafc, like a 
 fprrenr, ready to bear down every thing before 
 
 M 3
 
 166 THE CONSTITUTION 
 
 it; but then this torrent is compelled, by the 
 general 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 ftep 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. 
 
 Bnt thofe who give him this counfel, have 
 not fufficientlv examined it. Without doubt, 
 there are Men in England, who in their pre- 
 fcnt purluit of a project which they think 
 eiTential to the public good, would be capable 
 of refufing lor a while a place which wculd 
 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 lolid 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 would be fo) his obflinate refolu-
 
 OF ENGLAND. 167 
 
 tion 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, woujd inftantly rile 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 (<z). 
 
 In fine, even though we were to fuppofe 
 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 objeft, that no Man in 
 England can poflibly entertain fuch views as thofe I have 
 fuppofed here : this is precifely what I intended to prove. 
 The efTential advantage of the Englifh Government 
 above all thofe that have been called free, and which in 
 many refpeds were but apparently fo, is, that no perfon 
 in England can entertain fo much as a thought of his 
 ever rifing 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- 
 roughly convinced, that they ihall (in reality as well as 
 in name) continue to be Subjetts; and are thus compel- 
 led really to love, to defend, and to promote thofe laws 
 which fecure the liberty of the Subjeft. This obferva- 
 t;on will be again infilled upon afterwards. 
 
 M 4
 
 j6*8 THE CONSTITUTION 
 
 would not of themfelves be able to confer on 
 him the lcafl: executive authority, mult (or ever 
 rerrjain mere fhowy unfubftantial advantages. 
 Finding all the active powers in the State con- 
 centered in that very feat of power, which we 
 fuppofc him inclined to attack, and there fe- 
 cured by the moft formidable provifions, his 
 influence mutt always 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 lee it, however great it might 
 have at firft appeared, decline and die away. 
 God forbid, however, that I mould mean 
 thit the People of England are fo fatally tied 
 down to inaction, by the nature of their 
 Government, that they cannot, in times of 
 oppreflion, find means of appointing a Leader. 
 No; I only meant to fay that the laws of Eng- 
 land open no d or to thofe accumulations of 
 power, which have been the ruin of fo many 
 Republics; that they offer to the ambitious no 
 pofilble means of taking advantage of the inad- 
 vertence, or even the gratitude, of the People, 
 i j make themfelves their Tyrants ; and that the
 
 OF ENGLAND. iB 9 
 
 public power, of which the King has been made 
 the exclufive depoficary, muft remain unfbaken 
 in his hands, (p long as things continue to keep 
 in their legal order; which, it may be obferved, 
 is a ftrong inducement to him conftantly 
 to endeavour to maintain them in it (a). 
 
 (a) There are feveral events, in the Englifh Hiftory, 
 which put jn a very ftrong light this idea of the {labi- 
 lity which the power of the Crown gives to the State. 
 
 The firft is the facility with which the great Duke of 
 Marlborough, and his party at home, were removed 
 from their feveral employments. Hannibal, in circum- 
 ltances nearly fimilar, had continued the war, againft the 
 will of the Senate of Carthage: Ca?far had done the fama 
 in Gaul; and when at laft his commiflion was exprefsly 
 required from him, he marched his army to Rome, and 
 eftabliflied a military defpotifm. But the Duke, though 
 furrounded, as well as thofe Generals, by a victorious 
 army, and by Allies in conjunctions with whom he had 
 carried on fuch a fuccefsful war, did not even hefitateto 
 deliver up his commiflion. He knew that all his foldi- 
 ers were infuperably prepofl'efled in favour of that Power 
 againft which he muft have revolted: he knew that the 
 fame prepofiefiions were deeply > rooted in the minds of 
 ihe whole Nation, and that every thing among them 
 concurred to fupport that Power : he knew that 
 the very nature ot the claims he muft have fet up ? 
 would inftantly have made all his Officers and Captains 
 turn themfelves againft him, and, in fhort, that in art 
 cnterprize of this nature, the arm of the fea he had to 
 repafs, was the fmalleit of the obfiacles he would have 
 to encounter. 
 
 The other event I fhall mention here, is that of the Re- 
 \olurion of J689. If the long eftabliflied power of the 
 Crown had not beforehand prevented the people from
 
 ] 7 o THE CONSTITUTION 
 
 CHAP. II. 
 
 The Subjccl concluded. The Executive power 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 ib exprefs my- 
 felf, in this coacerX'ation, of all the branches 
 of the Executive authority, is the greater fa- 
 cility it affords of reftraining it. 
 
 In thofe States where the execution of the 
 laws is intruded to fevcral different hands, 
 and to each with different titles and prero- 
 gatives, fuch divifion, and the changeablenefs 
 of meafures which mull be the confequence 
 of it, constantly hide the true caufe of the 
 evils c f the State : in the endlels fluctua- 
 tion of things, no political principles have 
 time to fettle among the People, and public 
 
 accufloming thcmfelvcs to fix their eyes on fome parti- 
 cular Citizens, and in general had not prevented all 
 Men in the State from attaining any too considerable 
 degree of power "and greatnefs, the expulfion of James 
 might have been followed by events fimilar to thofe 
 which took place at Rome after the death of Caefar.
 
 OF ENGLAND. 171 
 
 misfortunes happen, without ever leaving 
 behind them any ufefal leffon. 
 
 Sometimes military Tribunes, and at others, 
 Confuls, bear an abfolute fway j ibmetimes 
 Patricians ufurp every thing, and at othe'r 
 times, thofe who are called Nobles {a)\ 
 fometimes the People are oppreflfed by De- 
 cemvirs, and at others, by Dictators. 
 
 Tyranny, in fuch States, does "not always 
 beat down the fences that are fej around it ; 
 but it leaps over them. When men think it 
 confined to one place, it ftarts up again in 
 another ; - it mocks the efforts of the People 
 not becaufe it is invincible, but becaufe it is 
 unknown ; f ized by the arm of a Hercules, 
 it efcapes with the changes of a Proreirs. 
 
 But the indivinbiiity 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) The capacity of being admitted to all places of 
 public truft, at laft gained by the Plebeians, having 
 rendered ufelefs the eld diftinclion between them and the 
 Patricians, a coalition was then effected between the 
 great Plebeians, or Commoners, who got imp thefe 
 places, and the ancient Patricians : hence a new Clafs 
 of Me,n arofe, who were called Noblles and Nehilitas. 
 Thefe are the words by which Livy^ after that period, 
 conftantly diftinguifh.es thofe Men and families who 
 were at the head of the State. 
 
 5
 
 syi THE CONSTITUTION 
 
 has alio given a permanence and a regularity 
 to the precautions chey have taken to re- 
 train it. 
 
 Conftantly turned towards that ancient for- 
 trefs, the Royal power, they have made it, for 
 feven centuries, the object of their fear ; with 
 a watchful jealoufy they haveconfidered all its 
 parts ihey haveobferved all its outlets they 
 have even pierced the earth to explore its fe- 
 cret avenues, and fubterraneous works. 
 
 United in their views by the greatnefs of 
 thedanger, they regularly formed their attacks. 
 They eftablifhed their works, firft at a diftance; 
 then brought them fucceflively nearer , and, 
 in (hort, raifed none but what fcrved after- 
 wards as a foundation or fupport to others. 
 
 After the great Charter was eftablifhed, forty 
 fucctffive confirmations ftrengthened it. The 
 Act called the Petition of Rigkt 9 and that 
 pafled 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 ineiti- 
 mable advantage of knowing with certainty 
 the general feat of the evils they had to defend 
 jthemfclves againftj and each calamity, eacj?
 
 OF ENGLAND. i 73 
 
 particular eruption, by pointing out fome 
 Weak place, has ever gained a new bulwark 
 to 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 vaft, 
 but their nature is at length known : it has 
 been made the indivifible and inalienable at- 
 tribute of one psrfon alone, but then all 
 other perfons, of whatever rank or degree, 
 become really interested to reftrain it within 
 its proper bounds. 
 
 CHAP. III. 
 
 A fecond Peculiarity. The Divifion of the Le-> 
 giflative Power. 
 
 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 indivi- 
 fibility of the Executive power, viz. "the obligation it 
 lays upon the greateft: Men in the State, fmcerely to 
 unite in a common caufe with the people, will be more 
 amply difcufled hereafter, when a more particular com- 
 parifon between the Englifh Government and the Re- 
 publican form, fhall be offered to the Reader.
 
 174 THE CONSTITUTION 
 
 reader more fenfible of ihe advantages of this 
 divifion, it is neceflary to defire him to attend 
 to the following confiderations. 
 
 It is, without doubt, abfolutely neceflary, 
 for fecuring the Constitution of a State, to re- 
 strain the Executive power ; but it is Still more 
 neceflary to restrain the Legislative. What 
 the former can only do by fuccefTive fteps (I 
 mean fubvert the laws) and through a longer 
 or Ihorter train of enterprizes, the latter does 
 in a moment. As its will alone can give being 
 to the laws, its will alone can alfo annihilate 
 them: and, if I may be permitted the exprcf- 
 fion, the Legiflative power can change the 
 Constitution, as God created the light. 
 
 In order therefore to infure Stability to the 
 Constitution of a State, it is indifpenfably 
 necefTary to reftrain the Legislative authority. 
 But here we muSt obferve a difference between 
 the Legislative and Executive powers. The 
 latter may be confined, and even is the more 
 eafily fo, when undivided : the Legislative, 
 on the contrary, in order to its being re- 
 strained, Should abfolutely be divided. For, 
 whatever laws it may make to restrain itfelf, 
 they never can be, relatively to it, any thing 
 more than fimple refolutions : as thofe bars 
 which it might erect to Stop its own motions,
 
 OF ENGLAND, 175 
 
 muft then be within it, and reft upon it, they 
 can be no bars. In a word, the fame kind of 
 impofijbility is found, to fix the Legiflative 
 power, when it is one, which Archimedes ob- 
 jected againft his moving the Earth. 
 
 And fuch a divifion of the Legislature not 
 only renders it poflible for it to be reftrained, 
 fince each of thofe parts into which it is 
 divided, can then ierve as a bar to the mo- 
 tions of the others ; but it even makes it to 
 be actually reftrained. If it has been divided 
 into only two parts, it is probable that they 
 will net in all cafes unite, either for doing, or 
 undoing : if it has been divided into three 
 parts, the chance that no changes will be made, 
 is thereby greatly increafed. 
 
 Nay more ; as a kind of point of honour 
 will naturally take place between thefe dif- 
 ferent parts of the Legiflature, they will there- 
 by be led to offer to each other only fuch pro- 
 portions as will at lead be plaufible ; and 
 all very prejudicial changes will thus be pre- 
 vented, as it were, before their birth. 
 
 If the Legiflative and Executive powers dif- 
 fer fo greatly with regard to the neceflity of 
 their being divided, in order to their being 
 reftrained, they differ no lefs with regard to the 
 other confequences arifing from fuch divifion.
 
 176 THE CONSTITUTION 
 
 The divifion of the Executive power ne- 
 cefiarily intro-iuces actual oppofitions, even 
 violent ones, between the different parts into 
 which it has been divided , and that part 
 which in the ifiue fuceeds fo far as to abforb, 
 and unite it itfclf, all the others, immediately 
 fets itfclf above the laws. But t^iole oppofi- 
 tions which take place, and which the public 
 good requires fhould take place, between the 
 different parts of the Legiflature, never are 
 any thing more than oppofitions between con- 
 trary opinions and intentions ; all is tranfacted 
 in the regions of the understanding * and the 
 only contention that arifes is wholly carried on 
 with thofe inoffenfive weapons, alTents and 
 difients, ayes and noes. 
 
 Befides, when one of thefe parts of the Le- 
 giflature is i'o iuccefsful 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 propofition rejected, the 
 worfl that can refult from it, is, that a law is 
 not made at that time ; and the lofs which 
 the State fullers thereby, reaches no farther 
 than the temporary fetting afide of fome more 
 or lefs ufeful fpcculation. 
 
 In a word, the refult of a divifion of the Ex-
 
 O F fe N G L A N D. 177 
 
 ecutive power, is either a more or lefs fpeedy 
 eftablifliment of the right of the ftrongeft, or 
 a continued ftate of war (a): that of a divi- 
 fion of the Legiflative power, is either truth, 
 or general tranquillity. 
 
 The following maxim will therefore be 
 admitted. That the laws of a State may be 
 permanent, it is requifite that the Legiflative 
 power mould be divided: that they may 
 have weight, and continue in force, it is necef- 
 fary that the Executive power fhould 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 Englifii Legiflature down to our times, 
 to find a proof of them. He would be 
 furprized to fee how little variation there has 
 been in the laws of this Country, efpecially 
 in the whole courfe of the laft century, 
 though, it is mod important to obferve, the 
 Legiflature 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 
 Swede 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 exiftence, a civil war almoft immediately followed* 
 
 N
 
 i 7 8 THE CONSTITUTION 
 
 ftate of action, and, no difpaffionate Man will 
 deny, has continually promoted the public 
 good. Nay, if we except the Act palled under 
 William III. by which it had been enacted, 
 that Parliaments mould 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 lhall not find that any 
 law, which can really be called Conftitutional, 
 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 fubver- 
 fionsof the Conftitutional laws of fome ancient 
 Republics, with the imprudence of fome of 
 the laws pafled in their afiemblies(tf), and 
 with the ftill greater inconfideratenefs with 
 which they fometimes repealed the moft fa- 
 lutary regulations, as it were the day after 
 they had been enacted, if we call to mind 
 the extraordinary means to which the Le- 
 gislature of thefe Republics, at times fenfible 
 how its very power was prejudicial to itfelf and 
 to the State, was obliged to have recourfe, in 
 
 (a) The Athenians, among other laws, had enafted 
 one to forbid applying a certain part of the public re- 
 venues to any other ufe than the expences of the 
 Theatres and public Shows.
 
 OF ENGLAND. 179 
 
 order, if pofiible, to tie his own hands (a), 
 we mall remain convinced of the great ad- 
 vantages which attend the conftitution of the 
 Englifli Legiflature (). 
 
 Nor has this divifion of the Englifli Legifla- 
 ture been attended (which is indeed a very for- 
 tunate circumftance) with any actual divifion of 
 the Nation : each conftituent part of it pof- 
 feffes 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 diftinctions 
 which are calculated to gain the reverence of 
 the People, has been allot ed to thofe parts of 
 the Legiflature, which could not poffefs their 
 
 (a) In fome ancient Republics, when the Legiflature 
 wifhed to render a certain law permanent, and at the 
 fame time miftrufted their own future wifdom, they 
 added a claufe to it. which made it death to propofe the 
 revocation of it. Thofe who afterwards thought fuch 
 revocation r.ecefTary to the public welfare, relying on 
 the mercy of the People, appeared in the public Affem- 
 bly with a halter about their necks. 
 
 () We fliall perhaps haveoccafion to obferve, hereafter, 
 that the true caufe of the equability of the operations of 
 the Englifli Legiflature, is theoppofition that happily 
 takes place between the different views and interefts of 
 the feveral bodies that compofe it ; a confideration this, 
 without which all political inquiries are no more than 
 airy fpeculations, and which is the only one that caa 
 lead to nfeful practical conclufions. 
 
 N 2
 
 180 THE CONSTITUTION 
 
 confidence, in fo high a degree as the others ; 
 and the inequalities in point of real ftrength 
 between 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- 
 jefty of the kingly title : the two Houfcs 
 are, in appearance, no more than Councils 
 intirely dependent on him ; they are bound to 
 follow his pL-rfon; they only meet, as it 
 feems, to advil'e him; and never addrefs him 
 but in the mod folcmn and refpectful man- 
 ner. 
 
 But as the Nobles, who form the fecond 
 order f the Legiflature, bear, in point of 
 both 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, againft 
 thofe who, when they fpeak of General Eflates of France, 
 ' dare call the people, the //></ Eftate." At Rome, 
 where all the order we mention was inverted, 
 where the fafces were laid dowh at the feet of the Peo- 
 ple, and where the Tribunes, whofe function, like 
 that of the King of England, was to oppofe the eftablifli- 
 ment of the new laws, were only a fubordinate kind of 
 Magiflracy, many diforders followed. In Sweden, and 
 in Scotland, (before the union) faults of another kind 
 prevailed: in the former kingdom, for inftance, an 
 overgrown body of two thoufand Nobles frequently 
 over-ruled both King and People.
 
 OF ENGLAND. 181 
 
 as a compenfation, the advantage of perfonal 
 honours, and of an hereditary title. 
 
 Befides, the eftablilhed ceremonial gives to 
 their Affembly 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 
 manner confidered as the King's Council, and 
 it is in the place where they aiTemble that his 
 Throne is placed. 
 
 When the King comes to the Parliament, the 
 Commons are fent for, and make their appear- 
 ance at the bar of the Houfe of Lords. It 
 is moreover before the Lords, as before their 
 Judges, that the Commons bring their im- 
 peachments. When, after pairing 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 tht?ir 
 bills to them, only by fome of the Afliftants 
 of their Houfe (b). When the nature of the 
 
 (a) The Speaker of the Houfe of Lords mull come 
 down from his woolpack to receive the bills which the 
 Members of the Commons bring to their Houfe. 
 
 {b) The twelves Judges, and the Matters of Chan- 
 cery. There is alfo a ceremonial eftablilhed with regard 
 to the manner, and marks of refpedl, with which thofe 
 two of them, who are fent with a bill to the Commons, 
 are to deliver it.
 
 iSz THE CONSTITUTION 
 
 alterations which one of the two HouTes de- 
 fires to make in a bill fent to it by the other, 
 renders a conference between them neceflary, 
 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, muft be depoficed in the 
 Houfe of Lords, there to remain till the Royal 
 pleafure is fignified. 
 
 Befides, the Lords are Members of the Le- 
 giflature by virtue of a right inherent in their 
 perfons, and they are fuppofed to fit in Parlia- 
 ment on then- own account, and for the fuo- 
 port of their own interefts. In confequencc 
 of this they have the privilege of giving their 
 votes by prcxies(a); and, when any of them 
 diflent from the refolutions of their Houfe, 
 they may enter a proteft againft them, con- 
 taining the reafons of their diffent. In a 
 word, as this part of the Legiflature is deftin- 
 ed frequently to balance the power of the Peo- 
 ple, what it could not receive in real ftrength, 
 it has received in outward fplendor and great- 
 
 (a) The Commons have not that privilege, becaufe 
 they are themfelves/nwVi for the People. See Coke's 
 Inft. iv. p-4.
 
 OF ENGLAND- 183 
 
 nefs ; fo that, when it cannot refift by its 
 weight, itoverawes by its apparent magnitude. 
 In fine, as thefe various prerogatives -by 
 which the component parts of the Legiflature 
 are thus made to balance each other, are all 
 intimately connected with the fortune of State, 
 and flourifh and deca.y according to the vicifti- 
 tudes of public profperity and adverfity, it will 
 follow that, though particular oppofnions may 
 at particular times take placeamong thole parts, 
 there never can arife any, when the general 
 v/elfare is really in queftion. And when, to 
 refolve the doubts that may arife in political 
 fpeculations of this kind, we call 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 paffed, and of thofe which have been 
 rejected, as well as of the arguments that have 
 been urged on both fides, v/e (hall remain 
 convinced of the goodnefs of the principles on 
 which the Englifh Legiflature is formed. 
 
 N4
 
 184 THE CONSTITUTION 
 
 CHAP. IV. 
 
 A third Advantage peculi.ir to the Englifh Go- 
 vernrHent. The Bufwefs of propofmg Laws, 
 lodged in the Hands of the Peo L le. 
 
 A Third circumftance which I propofe to 
 (how to be peculiar to the Englifh 
 Government, is the manner in which the 
 offices or the three component parts of the 
 Legislature have been divided among them, 
 and regulated. 
 
 If the Reader will be pleafed to obferve, he 
 will find thai in mod of the ancient frt j e States, 
 the (hare of the People in the bufinefs of Le- 
 gislation, was to approve, or reject", the pro- 
 positions which were made to them, and to .Jve 
 the final ian&ion to the laws. The (unction 
 of thofe Perfons, or in general thole Bodies, 
 who were intruded with the hxeastive power, 
 was to prepare and frame the Laws, anil then 
 to propofe them to the People : and, in a word, 
 they pofieffcd that branch of the Legislative 
 power which may be called the initiative that 
 is, the prerogative of putting that power in 
 action {a). 
 
 (a) This power of previous confidering and approv- 
 ing fuch lawi as were afterwards to be propounded to 
 
 3
 
 OF ENGLAND. 185 
 
 This initiative, or exclufive right of pro- 
 posing, in Legiflativeafiemblies, attributed to 
 the Magiftrates, is indeed very ufeful, and per- 
 haps even neceflary, in States of a republican 
 form, for giving a permanence to the laws, as 
 well as for preventing the diforders and drug- 
 gies for power which have been mentioned be- 
 fore; bur upon examination we fhall find that 
 this expedient is attended with inconveniences 
 of little lefs magnitude than the evils it is 
 meant to remedy. 
 
 Thefe Magiil rates, or Bodies, at firft indeed 
 
 the People, was, in the firft times of the Roman Re- 
 public, conftantly exercifed by the Senate : laws were 
 made, PopulijuJJli, ex aucloritate Senatus. Even in cafes 
 of elections, the previous approbation and aucloritas 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 
 auclores non erant facli. Cic. pr. 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 propofitions muft 
 be difcufled in the little Council, which is ccmpofed of 
 twenty-feven Members, before they are laid before the 
 Council of the two hundred, in whom refides the fove- 
 reignty of the whole Canton. And in Geneva, the law 
 is, " that nothing {hall be treated in the General Council, 
 " or Aflembly of the Citizens, which has not been pre- 
 " 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-jkiu
 
 186 THE CONSTITUTION 
 
 apply frequently to the Legiflature for a grant 
 of iuch branches of power as they dare not of 
 themfelves affume, or for the removal of fuch 
 obftacles to their growing authority as they 
 do not yet think it fafe for them peremptorily 
 to fet afide. But when their authority has 
 at laft gained a fufficient degree of extent 
 and liability, as farther manifeftautions of 
 the will of the Legiflative power could 
 then only create obftructions to the exercife 
 of it, they begin to confider this Legiflutiv e 
 power as an enemy whom they muft take 
 great care never to roufe. They confequently 
 convene the Affembly as feldom as they can. 
 "When they do it, they carefully avoid pro- 
 pofmg any thing favourable to public liberty. 
 Soon they even tntirely ceafe to convene the 
 AfTembly at all-, and the People, after thus 
 Jofing the power of legally afferring their 
 rights, are expofed to that which is the 
 higheft degree of political ruin, the lofs of 
 even the remembrace of them ; unlefs 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 intended ends, but in States
 
 OF ENGLAND. 187 
 
 of confiderable extent, have always been 
 found, in the event, to give rife to diforders 
 of the fame kind with thofe which were at firfi: 
 intended to be prevented. 
 
 But as the capital principle of the Englilh 
 Conftitution totally differs from that which 
 forms the bafis of Republican Govern- 
 ments, fo is it capable of procuring to the 
 People advantages that are found to be unat- 
 tainable in the latter. It is the People in Eng- 
 land, or at lead thofe who reprefent them, 
 who poffefs the initiative in Legiflation, that 
 is to fay, who perform the office of framing 
 laws, and propofing them. And among the 
 many circumftances in the Englifh Govern- 
 ment, which would appear intirely new to the 
 Politicians of antiquity, that or feeing the per- 
 fon intruded with the Executive power bear that 
 (hare in Legiflation which they lctoked upon as 
 being neceflfarily the lot of the People, and the 
 People that which they thought the indifpenf- 
 able office, of its Magiftrates, would not cer- 
 tainly be the leaft 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, 
 he is hereby poffeffed of a prerogative which
 
 188 THE CONSTITUTION 
 
 in fa<5t is the fame with that which I have juft 
 now reprcfented as being fo dangerous. 
 
 To this I anfwer, that all circumftances 
 ought to combine together. Doubtlefs, if the 
 Crown had been under no kind of dependence 
 whatever on the people, it would long fince 
 have exempted itfelf from the obligation of 
 calling their Reprefentatives together ; and the 
 Britifti Parliament, like th-. j National Afiem- 
 blies of feveral other Kingdoms, would have 
 no exiftence but in Hiftory. 
 
 But, as we have above feen, the neceflities 
 of the State, and the wants of t;he Sovereign 
 himfelf, put him under a neceflity 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 meafure 
 necefiary, and the exclufive right, when an 
 Affembly 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- 
 fides his own wants, it would be at moil 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
 
 O F E N G L A N D. i8 9 
 
 careful not to touch any points which might 
 materially affect his authority. 
 
 Befides, as all his conceflions would be 
 made, or appear to be made, of his own mo- 
 tion, and would in fome 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 feprefented 
 by him as grants of the moll important nature, 
 and for which he expects the utmoft gra- 
 titude. Laftly, it would alio be his province 
 to make restrictions and exceptions to laws 
 thus propofed by himfelf; he would alfo be 
 the perfon who was 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 exiftence of the Houfe of 
 Commons, bills were prefented to the King under the 
 form of Petitions. Thofe to which the King aflented, 
 were regiftered among the rolls of Parliament, with hi 
 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 mould in future make the Sta- 
 tute before the end of every Seffion. Laftly, as even 
 that became, in procefs of time, inefficient, the prefent 
 method of framing bills was eftablifhed ; that is to fay, 
 both Houfes now frame the Statutes in the very form 
 and words in which they are to ftand when they have 
 received the Royal aflent.
 
 i 9 o THE CONSTITUTION 
 
 But the Parliament of England is not, as 
 we faid before, bound down to wait pafiively 
 and in filence for fuch laws as the Executive 
 power may condefcend to propofe to them. 
 At the opening of every Seffion, they of 
 themfelves take into their hands the great 
 book of the State i they open all the pages 
 of it, and examine 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 infufficiency, 
 they remedy the evil by additional provi- 
 fions (a). 
 
 Nor do they proceed with lefs regularity 
 and freedom, in regard to that important ob- 
 
 (a) No popular Affembly ever enjoyed the privilege 
 of ftarting, canvaffing, and propofing new matter to 
 fuch a degree as the Englifh Commons. In France, 
 when their General Eftates were allowed to fit, their 
 remonftranccs were little regarded, and the particular 
 Eftates of the Provinces dare now hardly prefent any. 
 In Sweden, the Power of propofing new fubjecls was 
 lately lodged in an Affembly, called the Secret Commit- 
 tee, compofed of Nobles, and a few of the Clergy ; and 
 is now pofl'efled by the King. In Scotland, until the 
 Union, all propofitions laid before the Parliament, were 
 made by the perfons called the Lords of the Articles, 
 With regard to Ireland, all bills mull be prepared by 
 the King in his PriVy Council, and to be laid before 
 2
 
 OF ENGLAND. 191 
 
 ject, 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 refolurion with regard to them, 
 till they fee the fafety of the Subject com- 
 pletely provided for. In a word, the making 
 of laws is not, in fuch an arrangement of 
 things, a gratuitous contract, in which the 
 People are to take juft what is given them, 
 and as it is given them : it is a contract in 
 which they buy and fay, and in which they 
 themfelves fettle the different conditions, and 
 furnifh the words to exprefs them. 
 
 The Englim Parliament have given a (till 
 greater extent to their advantges on fo im- 
 portant a fubject. They have not only 
 fecured to themfelves a right of propofing 
 laws and remedies, but they have alfo 
 
 their Parliament by the Lord Lieutenant, for their af- 
 fent or diffent: only they are allowed to difcufs, among 
 them, what they call Heads of a bill, which the Lord 
 Lieutenant is defired afterwards to tranfmit to the King, 
 who fele&s out of them what claufes he thinks proper, 
 or fets the whole afide; and is not expecled to give, at 
 any time, any precife anfwerto them. And in repub- 
 lican Governments, Magiflrates never are at reft till 
 they have intirely fecured to themfelves the important 
 privilege of prop ojlng ; nor does this follow merely from 
 their ambition; it is alfo a confequence of the fituation 
 they are in, from the principles of that mode of Govern- 
 ment.
 
 192 THE CONSTITUTION 
 
 prevailed on the Executive power to renounce 
 all claim to do the fame. It is even a con- 
 ftant rule, that neither the King, nor his Privy- 
 Council, can make any amendments to the 
 bills preferred by the two Houfes; but the 
 King i* merely to accep: or reject them : a pro- 
 vision this, which, if we pay a little attention 
 to the fubject, we (hall find to have been alfo 
 neceffary for completely fecuring the freedom 
 and regularity of their deliberations (a), 
 
 I indeed confefs that it feems very natural, 
 in the modelling of a State, to intruft this 
 very important office of framing laws, to 
 thofe perfons who may be fuppoicd to have 
 before acquired experience and wifdom in the 
 
 () The King indeed at times fends meflages to either 
 Houfe; and nobody, I think, can wifh that no means 
 of intercourfe mould exifl between him and his Parlia- 
 ment : but thefe meflages are always exprefled in very 
 general words j they are only made to defire the Houfe 
 to take certain fubjefts into their confideration ; no 
 particular articles or claufes are exprefled ; the Com- 
 mons are not to declare, at any fettled time, any fo r 
 lemn acceptation or rejection of the proposition made 
 by the King ; and, in ftiort, the Houfe follows the 
 fame mode of proceeding, with refpeft to fuch meflages; 
 as they ufually do with regard to petitions prefented by 
 private individuals. Some Member makes a motion 
 upon the fubjett exprefled in the King's meflage ; a bill 
 i-i framed in the ufual way ; it may be dropt at every 
 flage of it; and itjs never the propofal of the Crown, 
 but the motions of fome of their own Members, which 
 the Houfe difcufs, and finally accept or reject.
 
 OF ENGLAND.! 4 
 
 management of public affairs. But eventi 
 have unfortunately demonstrated, that public 
 employments and power improve the under- 
 ftanding of Men in a lefs degree than they 
 pervert their views ; and it has been found 
 in the ifiue, that the effect of a regulation 
 which, at firft: fight, feems fo perfectly con- 
 fonant with prudence, is to confine the 
 People to a mere pafEve and defenfive 
 fhare in Legiflation, and to deliver them up 
 to the continual enterprifes of thofe who, at 
 the fame time that they are under the greateft 
 temptations to deceive them, poflfefs the moft 
 powerful means of effecting it* 
 
 If we caft our eyes on the Hiftory of the 
 ancient Governments, in thofe times when 
 theperfons entruiled with the Executive power 
 were dill in a ftate of dependance on the 
 Legiflature, and confequently frequently obli- 
 ged to have recourfe to it, we ihall fee al- 
 moft continual inftances-of felfiih and infi- 
 dious laws propofed by them to the Afienv- 
 blies of the people. 
 
 And thofe Men in whofe wifdom the law 
 had at firft placed fo much confidence, be- 
 came, in the ifiue, fo loft to all fenfe of 
 fhame and duty, that when arguments were 
 found to be no longer fufficient, they ha4 
 
 O
 
 i 9 4 THE CONSTITUTION 
 
 reeourie to force ; the lcgiflativc Affemblies 
 became fo many fields of battle, and their 
 power, a real calamity. 
 
 I know very well, however, that there arc 
 other important circumftances beftdes thofe 
 I have juft mentioned, which would prevent 
 diforders of this kind from taking place in 
 England, (a) But, on the other hand, let us 
 call to mind, that the perfon who, in England, 
 is inverted with the Executive authority, 
 u-nkes in himfclf the whole public power and 
 majefty. Let us reprcfent to ourfelves the 
 great and folc Magiftrate of the Nation, 
 prefling the acceptance of thofe laws which 
 he had propofed, with a vehemence, fuited 
 to the ufual importance of his defigns, 
 with the warmth of Monarchical pride, which 
 muft meet with no rcfuial, and exerting for 
 that purpofc all his immenfe refources. 
 
 It was therefore a matter of indifpcnfablc 
 necemty, that things mould be fettled in Eng- 
 land in the manner that they arc. As the 
 moving fprings of the Executive power ar$ 
 in the hands of the King, a kind of facred 
 
 4 , 
 
 (t.) I pauiculaily mean here, the circumfbnee of the 
 People having intirely delegated their power to their Repre- 
 fentatives : the confequefieee of which Inftitution will br 
 rtifbtfled in the next Chapter.
 
 OF ENGLAND. (Jg 
 
 depo/itum, fo are thofe of the Legiilative 
 poiver, in the hands of the two Houfes. The 
 King muft abftain from touching them, in 
 the fame manner as all the fubjecls of the 
 kingdom arc bound religioufly to fubmit to 
 his prerogatives. When he fits in Parlia- 
 ment, he has left, we may fay, his execu- 
 tive power without doors, and can only af- 
 fent or diffent. If the Crown had been al- 
 lowed to take an a&ive part in the bufinefs 
 of making laws, it would foon have ren- 
 dered nfelefs 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 fhould be enacted by the 
 
 Fotes cf the People at large. 
 
 
 
 BU T k will be faid, whatever may be 
 the wifdom of the Englifti Laws, how 
 great foever their precautions may be with, 
 regard to the farety of the individual, the 
 People, as they do not exprefsly enaftthem, 
 cannot be looked upon as a free People. The 
 Author of the Social Contract carries this opi- 
 
 O 2
 
 i 9 6 THE CONSTITUTION 
 
 nion even farther: he fays, that, " though 
 " the people of England think they are free, 
 ," they are much miftaken; they are fo only 
 " during the election of Members for Par- 
 " liament : fo foon as thefe are elected, the 
 " People are ilaves they are nothing." (a) 
 Before I anfwer this objection, I fhall ob- 
 serve that the word Libtrty is one of thofe 
 which have been mofl mifunderftood or mif- 
 
 Thus, at Rome, where that chfs of Citi- 
 zens who were really the Matters of the 
 State, were fenfible that a lawful regular au- 
 thority, once milled to a fingle Ruler, would 
 put an end to their tyranny, they taught the 
 People to believe,- that, provided thole who 
 exercifed a military power over them, and 
 overw helmed them with infults and mifery, 
 went by the names of Confutes, Diftatcres, 
 Patricii, iSobifes, in a word, by any other ap- 
 pellation than the horrid one of Rex t thev 
 were free, and that fuch a valuable fituati- 
 on mull be preferved at the price of every 
 calamity. 
 
 In the fame manner, certain Writers of the. 
 
 t prcfent age, milled by their inconfiderate 
 
 admiration of the Governments of ancierv. 
 
 M XouffVau't Social Contract, chap x*. 
 

 
 OF ENGLAND. 10; 
 
 times, ami, perhaps alio by a defire of preferr- 
 ing lively conrrafts to what they call the dege- 
 nerate manners of our modern times, have 
 cried up the governments of Sparta andRome, 
 as the only ones fit for us to imitate. In 
 their opinions, the only proper employment 
 of a free Citizen, is, to be cither incejfmtly af- 
 fembkdin t be forum, or preparing for war. B&~ 
 ing valiant, inured to hardjhips, 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 the Society 
 of which we are Members, and with an ardent 
 dove of glory, which is likewife nothing more 
 than an ardent defire of committing fiaughtcr 
 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 diftinct meaning, and per- 
 petually repeated, but without defining them, 
 the words dajlardlinffs, corruption, greainefs of 
 
 (a) I have ufed the above expreflions in the fame fnfe in 
 which they were ufed in the ancient Commonwealths, and 
 they dill are by moft of the Writers who dtferibe their 
 Governments. 
 
 03
 
 i 9 8 THE CONSTITUTION, 
 
 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. 
 
 And while they thus mifapprehended the 
 -only rational defign of civil focieties, they 
 miftook no lefs the true end of the particular 
 inftitutions by which they were to be regu- 
 lated. They were fatisfied when they faw 
 the few who really governed every thing in 
 the State, at times perform the illufory cere- 
 mony of ailembling the body of the People, 
 that they might appear to confult them : and 
 the mere giving of votes, under any difad- 
 vantage in the manner of giving them, and 
 how much foever the law might be after- 
 wards neglected 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 legiflative Afiembly, has not 
 made the law that has patted in it; he has
 
 OF EN G i A N D. 199 
 
 only contributed, or feemed to contribute 
 towards enacting it, for his thoufandth,or even 
 ten thoufnndth, marc : he has had no oppor- 
 tunity of making his objections to the pro- 
 pofed law, or of canvafling it, or of propof- 
 ins reftridtions to it, and he has only been 
 allowed to exprefs his afl'ent or diffent. When 
 a law pafles 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 muft neverthelefs fubmit 
 to it. 
 
 This is not all ; for though we fhould 
 fuppofe, that to give a vote is the eilential 
 conftituent of liberty, yet fuch liberty could 
 only be faid to laft for a fingle moment, after 
 which it becomes neceffary to truft intirely to 
 the dilcretion of other perfons,, that is, ac- 
 cording to this doctrine, to be no longer free. 
 It becomes neceffary, for initance, for the 
 Citizen who has given his vote,to rely on the 
 honcfty of thofe.who collect the fuffrages ; 
 and more than once have falfe declarations 
 been made of them. 
 
 The Citizen muft alfo truft to other per- 
 
 03
 
 2Q0 THE CONSTITUTION. 
 
 fons for the execution of thofe things which 
 have been refolved upon in common : and 
 when the Afiembly ihall have feparated, and 
 he lhail find himfelf alone, in the prefence 
 of the Men who are inverted with the pu- 
 blic power, of the Confuls, for inftance, or 
 of the Dictator, he will have but little fecu- 
 rity for the continuance of his liberty, if he 
 Has- only that of having contributed by his 
 fuffrage towards enacting a law which they 
 ^re determined to neglect. 
 
 What then is Liberty ? Liberty, I would 
 anfwer, fo far as it is poflible for it to exift 
 in a Society of Beings whofe interefts are 
 almoft perpetually oppofed to each other, 
 confifts in this, that, rcery Man, while he rc- 
 fpecls the perjons cf others , and allows them 
 quietly to enjoy the produce of their indu/lry, 
 le certain himfelf likewife to enjoy the pro- 
 duce of his own induftry, and that his per- 
 r ,n be alfo fecure. But to contribute by 
 one's fuffrage to procure thefe advantages 
 to the Community, to have a mare in erta- 
 blifhing that order, that general arrangement 
 of things, by means of which an indivi- 
 dual, loft as it were in the croud, is effectual- 
 ly protected, to lay down the rules to be ob- 
 served by thofe who, being inverted with a
 
 OF ENGLAND. 201 
 
 confulerablc power, arc charged with the de- 
 fence of: individuals, and provide that they 
 ibouid never tranfgrefs them, thefe arc 
 functions, are acts, of Government, but not 
 conltituent parts of Liberty. 
 
 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: 
 to live in a ftate where the laws are equal 
 for all, and fure to be executed, (whatever 
 may be the means by which thefe advantages 
 are attained) is to be free. 
 
 Be it fo ; we grant that to give one's fuf- 
 frage is not liberty itfelf, but only a means 
 of procuring it, and a means which may de- 
 generate into mere form; we grant alfo, that 
 it is poflible that other expedients might be 
 found for that purpofe, and that, for a Man 
 to decide that a State with whofe Government 
 and interior administration he is unacquaint- 
 ed, is a State in which the People are Jlavcs, 
 are not ting, merely becaufe the Comitia of an- 
 cient Rome are no longer to be met with 
 in it, is a fomewhat precipitate decifion. 
 But ftill we mult continue to think that li- 
 berty would be much more compleat, if the 
 People at large were exprefsly called upon to 
 give their opinion concerning the particular 

 
 202 THE CONSTITUTION. 
 
 provifions by which it is to be fecured, and 
 that the Engliih 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 efta- 
 blifhing,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 thefc 
 duties, had neither any ambition, nor any 
 other private pafiions, which fuch employ- 
 ment might put in motion, and fornim the 
 means of gratifying, in a word, if looking 
 upon their function as a mere tafk of duty, 
 they never were 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 indivi- 
 dual to have a mare in the government of 
 the community of which he is a member"; or 
 rather, I ought to fay, in fuch a Society, and 
 among fuch Beings, there would be no occa- 
 sion for any Government. 
 
 But experience teaches us that many more
 
 OF ENGLAND. 203 
 
 precautions, indeed, are neceffary to oblige 
 Men to be juil towards each other : nay, the 
 very firft expedients that may be cxpedted to 
 conduce to fuch an end, fupply the mod 
 fruitful fourceof 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 adminiftrators of them : in- 
 stituted at firft for the protection of all, they 
 foon are made only to defend theufurpations 
 of a few; and as the People continue to re- 
 fpect them, while thofe to whofe guardian- 
 fhip they were intrufted make little account 
 of them, they at length have no other effect 
 than that of fupplying the wantof 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 
 themfelves to it, to render ineffectual the fi- 
 lent, powerful, and ever active confpiracy 
 of thofe who govern, requires a. degree of
 
 04 THE CONSTITUTION. 
 
 knowledge, and a fpirit of perfeverance, 
 which are not to be expected from the multi- 
 tude. 
 
 The greater part of thofe who compofe 
 this multitude, taken up with the oareof pro- 
 viding for their fubfiftence, have neither fuf- 
 ficient leifure, nor even, in confequence of 
 their more imperfe<ft education, the degree 
 of information requifite for functions of this 
 kind. Nature, bcfides, who is fparing of 
 her gifts, has bellowed upon only a few Men 
 an underftanding 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 muft 
 trail to thofe who have more abilities than 
 themfelves for the execution of thingswhich, 
 at the fame time that they fo materially 
 concern t'icm, require fo many qualifications 
 to perform them with- any degree of fuffi- 
 ciency. 
 
 To thefe considerations, of themfelves fo 
 material, another muft be added, which is, 
 if pofiible,offlill greater weight. Thisis, that 
 the multitude, in confequence of their very 
 being a multitude, are incapable of coming 
 taany mature refolufion. 
 
 Thofe who compofe a popular Affembjj',
 
 OF ENGLAND, 205 
 
 arc not actuated, in the courfc of their deli- 
 berations, by any clear and predfe view f 
 any prefent or perfonal intereft. As they fee 
 themfelves loft, as it were, in the croud of 
 thofe who are called upontoexercife the fame 
 function with themfelves, as they know that 
 their particular 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 inquire 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 
 enter upon a laborious tafk, when they know 
 that it will notanfwer any purpofe. 
 
 It is, however, with difpofitions of this 
 kind, and each relying on all, that the Af- 
 fembly of the People meets. But as very 
 few among them have previoufly confidered 
 the fubjects on which they are called to de- 
 termine, very few carry along with them any 
 opinion or inclination, or at leaft any in- 
 clination of their own, and to which they 
 arc refolved to adhere. As however it is ne- 
 ceffary at laft to come to fome refolution, 
 the major part of them, are determined by 
 reafons which they would blufh to pay any
 
 206 THE CONSTITUTION 
 
 regard to, on much lefs ferious occafions. 
 An unufual fight, a change of the ordinary- 
 place of the Aflembly, a fudden difturbance, 
 a rumour, are, amidft the general want of a 
 fpirit of decifion, the Jufficicns ratio of the de- 
 termination of trie greateft part ; (*) and 
 from this affemblage of feparate wills thus 
 formed haftily and without reflection, a gene- 
 ral will refults, which is alfo void of re- 
 flection. 
 
 If, amidft thefe difadvantages,the Aflembly 
 were left to tbemfclves, and no body had an 
 intereft to lead them into error, the evil, 
 though very great, would not however be 
 extreme, becaufe fuch an aflembly never 
 being called but to determine upon an affir- 
 mative or a negative, that is, never having 
 but two cafes to choofe between, there 
 would be an equal chance for their choo- 
 ling cither; and it might be hoped that 
 at every other turn they would take the 
 right fide. 
 
 But the combination of thofe who (hare 
 
 (a) Every one knowi of how much importance it was in 
 the Roman commonwealth to affemble the People, rather in 
 one place than another. In order to change intirely the na- 
 ture of their refolutions, it was often fufficient to hide froib 
 tbcm, or let them fee, the Capitol.
 
 OF ENGLAND. 207 
 
 either in the excrcife of the public Power, 
 or in its advantages, do not allow themfelves 
 to fit down in inaction. They wake, while 
 the People fleep. Intirely taken up with the 
 thoughts of their own power, they live but 
 to increafe it. Deeply verfed in the manage- 
 ment of public bufinefs, they fee at once all 
 the pomble confequences of meafures. And 
 as they have the exclufive 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 fome 
 event or other that may finally determine 
 them. 
 
 It is they who convene the AfTembly, and 
 diffolve it ; it is they who offer propofitions 
 to it, and harangue. Ever acli vc in turn- 
 ing to their advantage every circumftance 
 that happens, they equally avail themfelves 
 of the tractablenefs of the People during pu- 
 blic calamities, and its heedleffnefs in times 
 of profperity. When things take a diffe- 
 rent turn from what they expected, they 
 difmifs tnc AfTembly. By prefenting to it 
 many propofitions at once, and which are to 
 be voted upon in the lump, they hide what 
 is deftined to promote their private views,, 
 1
 
 zoS THE CONSTITUTION. 
 
 or give a colour to it by joining it with 
 things which they know will take hold of 
 the minds of the People, (a) By prefentirrg 
 in their fpeeches, arguments and facls which 
 Men have no time to examine, they lead 
 the People into grofs,and yet decifivc errors; 
 and the common-places of rhetoric, fupported 
 by their perfonal influence, ever enable then* 
 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 queftion, fee the confequen- 
 ces of the decifivc flep which is juft going t6 
 be taken, being loft in the croud, cannot 
 make their feeble voices to be heard in the 
 midft of the univerfal noife and confufion. 
 They have it no more in their power to (top 
 the general motion, than a Man in the midit 
 of an army on a march, has it in his power 
 to avoid marching. ''In the mean time, the 
 
 (a) It was thus the Senate, at Rome, atributed to trftif 
 the power of hying ta*es. They promifed in the time of 
 the war again* the Veiente*, to give a pay to fuch CrtitW 
 at would inlilt ; and to that end they eltabliihed a rribtlt*. 
 The people folely taken up with the idea of not going W 
 war at their own expence, were tranfported with fo much 
 joy, that they crouded at the door of the Senate, laying hold 
 of the hands of the Senators, called them their Fathers ffihit 
 unquam accept urn afltbe tantogauJiioraditur : etneurfum itaque 
 Curiam efe, frthenfatafque exeuntium manu;, Patrei vert 
 appaUatos, &c. See Tit. Liv. L. it.
 
 OF ENGLAND ieg 
 
 People are giving their fufFrages i a majority 
 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 exult* 
 ing among themfelves. (a) 
 
 (a) I might confirm all thefe things by numberlefs inftan- 
 ces from ancient Hittory ; but, if I am miy be allowed, id 
 this cafe, to draw examples from my own Country, fif celt- 
 brare domefiica fafta, I mall relate fals which will be no left 
 to the purpofe. In Geneva, in the year 1707, a law was 
 enacted, that a General Aflembly of the People mould Be held 
 every five years, to treat of the affairs of the Republic ; but 
 the Magiftrates, who dreaded thefe AfTemblies, foon obtained 
 from the Citizens themfelves the repeal of the law ; and 
 the fiift refolution of the Peopie, in the firft of thefe periodi- 
 cal AfTemblies (in the year 1711,) was to aboli'fh them fc'r 
 ever. The profound fecrecy with which the Magistrates pre- 
 pared their propofal to the Citizens on that fubjeft, and the 
 fuuden manner in which the latter, when afTembled, were 
 acquainted with it, and made to give their votes upon it, have 
 indeed accounted but imperfeclly for this ftrange determination 
 of the People : and the confternation which feized tlie whole 
 Affembly when the refult of the fufFrages was proclaimed, has 
 confirmed many in the opinion, that forhe unfair means had 
 keen ufed. The whole tranfaftion has been kept fecret to 
 this day ; but the common opinion on this fubjeft, which lias- 
 adopted by M. Roufleau in his Litres de la Montagne, is th.'s : 
 the Magiitrates, it is faid, had privately inftru&ed the Secre- 
 taries in whofe ears the Citizens were to <ivfiijper their f6f- 
 frages ; when a Citizen faid, approbation, be was undefftdod 
 to approve the propofal of the Magiftrates ; when he faid* 
 rej*8ion v he was understood to reject the periodical Ajfembliss. 
 In the year 1738, the CJtizeai ena&ed at price into Iavrs a
 
 *$ THE CONSTITUTION 
 
 In a word, thofe who arc acquainted with 
 Republican Governments, andingcncral, who 
 IfgoW- the manner in which affairs arc tranf- 
 Ljdin numerous Aflemblies, will notferu- 
 ple to affirm, that the few who are united 
 together, who take an active part in public 
 afi'airs, and whofe {ration makes them con- 
 ipicuous, 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 fkill, they 
 
 final 1 Code of forty- four Articles, by one (ingle lin? of which 
 <hey bound themfelves for ever to eleft the four Syndics (the 
 Chief* of the Council of the twenty-five) in the fame Coun- 
 cil, whereas they were before free in their choice. They at 
 tiiat time fuffcred alio the word e.pfrxt-vid to be flipped into 
 tlie law mentioned ia the Note (a) p.:85,which was tranferib- 
 
 ed from a former Code ; the confequence of which was to 
 render the Magistrates abfolute matters of the Legiilature. 
 
 The Citizens had thus been fucceffively (tripped of all tbeir 
 pditical rights, and had little more left to them than' the 
 pleafure of being called a Sovereign Ajfembfy, when they met 
 (which idea, it mull be confeflcd, preferred among them a 
 fpirit f refinance which it would have been dangerous for 
 
 . the Magistrates to provoke too far) and the power of at leail 
 refufing to elett the four Syndics. Upon this privilege the Ci- 
 tizens have, a few years ac;o, made their Jaft Hand : and a 
 Angular conjunction of circumftances having happened at the 
 lame time, to raife and preferve among them, during three 
 years, an uncommon fpirit of union and perfeverance, they 
 .bare in the iflue fucceeded in a great meafure to repair the 
 injuries which they had been made to do to themfelves, for 
 thtfc lad two hundrsd years and more.
 
 OF ENGLAND. ft, J 
 
 tari at all times direct, at their pleafure^ 
 the general resolutions ; that, as a conie- 
 quence of the very nature of things, there 
 is no propofal, however abfurd, to which 
 a numerous ailembly 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 of lots, or cafting dice., 
 than by the fuflrages of a multitude; 
 
 1 
 
 CHAPTER VI. 
 
 Advantages that accrue to the People from dp* 
 pointing Reprefentativesi 
 
 >"$ 
 
 HOW then mall the People remedy the 
 difadvantages that necefTarily attend 
 their fltuation ? How mail they refill the 
 phalanx of thofe who haveerigrofiect to them-* 
 felves all the honours, dignities! and pow,er, 
 in the State ? 
 
 It will be by employing for their defence 
 the fame means by which their adverfaries 
 carry on their attacks. It will be by uiing the 
 fame weapons as they do, the fame order, the 
 
 fame kind of difciplinc* 
 
 r ft n . 
 
 They are a fmall number, andconiequentiy
 
 iti THE CONSTITUTION 
 
 eafily united; a fmall number mull therefore 
 be dppbfed to them, that a like union may 
 alfo be obtained. It is becaufe they arc a 
 fmall number,that they can deliberate on every 
 occurrence, and never come to any refolu- 
 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 
 number, and you will obtain the like ad- 
 vantages. 
 
 Befides, thofe who govern, as a farther con- 
 fcquence of their being few, have a more 
 confiderable fhare, 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 acYing an offenfive part againft them, 
 they impofe on themfelves an obligation of 
 conquering. They, in fhort, who are all 
 alive from the mod powerful incentives, and 
 aim at gaining new advantages, have to do 
 with a multitude, who, wanting only to pre- 
 ferve what they already poflefs, are unavoid- 
 ably liable to long intervals of inactivity and
 
 OF ENGLAND. %i % 
 
 fupincnefs. But the People, by appointing 
 Reprefentatives, immediately gain to their 
 caufe that advantageous activity which they 
 before flood in need of to put them on a 
 par with their adverfaries ; and thofc paffions 
 become excited in their defenders, by which 
 they themfelves cannot poffibly be actuated, 
 
 Exclufiveiy 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 
 intrufled. Diftinguifhed from the bulk of the 
 Nation, and forming among themfelves a fe- 
 parate Affembly, they will afiert the rights of 
 which they have been made the Guardians, 
 with all that warmth which the efprit de corps 
 is ufed to infpire. (a) Placed on an elevated 
 theatre, they will endeavour to render them-- 
 felves ftill more confpicuous; and the art and 
 ambitious activity of thofe who govern, will 
 now be encountered by the vivacity and pcr- 
 fevcrance of opponents actuated by the love of 
 glory. 
 
 Laftly, as the Reprefentatives of the People 
 
 (a) If it had not been for an incentive of this kind, the 
 Englifli Commons would not have vindicated their right of 
 taxation with fo much vigilance as they have done, againft 
 all enterurizes, often perhaps involuntary, of the Lordi. 
 
 p'3
 
 HI THE CONSTITUTION 
 
 will naturally be feledted from among thofe 
 Qitizens who are moft favoured by fortune, 
 and will have confequently much to preferve, 
 they will, even in the midft of quiet times, 
 Jceep a watchful eye on the motions of Power, 
 ^Vs the advantages they poftefs will naturally 
 create a kind of rivalfhip between them and 
 thofe who govern, the jealoufy which they 
 will conceive againft the latter, will give them, 
 an exquifite degree of feniibility on every 
 incrcafe of their authority. Like thofe de- 
 licate inftruments which difcover the opera- 
 tions 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 fa 
 exprefs myfelf, the barometers that will dif- 
 cover, in its firft beginning, every tendency 
 to a change in the Conftitution. (<z) 
 
 (a) All the above reafoning effentially requires, that the 
 Reurefentatives of the People lioiild be complentiy united in 
 }ntreft wi'h the People W- <bll Toon fee that this union 
 rial! ohtains in the Englifh Confhlution, and m.iy be called, 
 ihe waiter piece of it.
 
 OF ENGLAND. 2 pj 
 
 CHAP. VII. 
 
 The Suhjecl continued The Advantages that 
 accrue to the People from their appointing 
 Reprefentatives, are very inconfiderahle, un- 
 kfs they alfo intirdy tmjl their Legijialivc 
 
 Aithority to them* 
 
 
 
 TH E obfervations made in the prece- 
 ding Chapter are fo obvious, that the 
 People themfelves, in popular Governments, 
 have always been fenfible of the truth of 
 them, and never thought it poffibleto remedy, 
 by themfelves alone, the difadvantages ne- 
 ceflarily attending their iituation. Whenever 
 theoppreffionsoftheirMagiftrateshave forced 
 them to refort to fome uncommon exertion of 
 their legal powers, they have immediately put 
 themfelves under the direction of thofe few 
 Men who had been inftrumental in inform- 
 ing and encouraging them ; and when the 
 nature of the circumftances has required any 
 degree of firmndfs and perfeverance in their 
 conduct, they never have been able to attain 
 the ends they propofed to themfelves, but by 
 means of the moft implicit deference to thofe 
 ^Leaders whom they had thus appointed. 
 
 r 4
 
 2i6 THE CONSTITUTION 
 
 But as thcfe Leaders, thus haftily chofen, 
 are eafily intimidated by th,e cqntinual dif- 
 piny which is made before them of the terrors 
 p.f Power, as that unlimitedconfidenge whicr| 
 fhe People nqw repofe in them, only takes 
 place when public liberty is in the utmoft 
 danger, and cannot be kept up other wife 
 than by an extraordinary conjunction of cir- 
 cumstances, 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 ihort 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 forgetting fameperfons 
 appointed,whofe peculiar office it mould be to 
 protect them, and whom the Conftitution 
 mould thenccforwards recognize, It is thus 
 that the People of Laceda^mon obtained their 
 Ephori, and that of Rome, their Tribunes, 
 
 We grant this, will it be faid j but the 
 Roman People never allowed their Tribunes 
 to conclude any thing definitively ; they, on 
 the contrary, referved totheqifelves the right 
 of 'ratifying (a) any refolutians the latter mould 
 take, But this, I anfwer,w as the very circum- 
 
 (?) Sc RuuHliu's Social Contrail.
 
 OF ENGLAND. ai 7 
 
 ftance that rendered this inftitution of Tri- 
 bunes totally ineffectual in the event. Tho 
 People thus wanting to interfere with their own 
 opinions, in the refolutions of thofe on whom 
 they had, in their wifdom, determined intirely 
 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 ifllie every bene- 
 ficial end of their former provifions ; and 
 while they meant to preferve an appearance 
 of their fovereignty, (a chimerical appearance, 
 fince it was under the direction of others that 
 they intended to vote) they fell back into 
 all thofe inconveniences which we have be- 
 fore mentioned. 
 
 The Senators, the Confuls, the Dictators, 
 and the other great Men in the Republic, 
 whom the People were prudent enough tp 
 fear, and fimple enough to believe, continue^ 
 ftill to mix with them, and play off theif 
 political artifices. They continued to make 
 fpeeches to them, (a) and flill availed them- 
 
 (a) Valerias fyfaximus relates, that the Tributes of thf 
 people hay^pg offered to propofe fome regulations ir. regard 
 to ttie'price of coin, in a time of great icarcity, Scjpio N3- 
 f\ca overruled the Affembly merely by faying, " Silen,co 
 *.* Romai.s j I know better than you what is expedient foy 
 V thf Republic. Which woids were |io fooner hea^J, b,Jf
 
 lift THE CONSTITUTION 
 
 felves of their privilege of changing at their 
 pleafuic the place and form of the public 
 meetings. When they did not find it poffible 
 by fuch means to diredt the refolutions of the 
 AiTemblies,they'pretended that the omens were 
 not favourable, and under this pretext, or o- 
 thersof the fame kind they diilblvedthem. (a) 
 And the Tribunes, when they had fucceeded 
 fo far as to effect an union among themfelves, 
 thuswereobliged to fubmit to the mortification 
 of feeing thofe projects which they had purfued 
 with infinite labour, and even through the 
 greatelt dangers, irrecoverably defeated by the 
 moft defpicable artifices. 
 
 When, at other times, they faw that a 
 confederacy was carrying on with uncommon 
 warmth againft them, and defpaired of fuc- 
 
 ' the People, than they (hewed by a (Hence foil of vene- 
 V lation, that they %vere more affefted by his authority, than 
 " liy the ntcefllty of providing for their own fubfiftence.'" 
 Taeete, quafo, Quirites. Plus enim ego quam <vo$ qui J rei' 
 public* expeJiat iulelligo. %ud voce audita, omnef pleno <ve- 
 nerationis filentio, major em ejus autoritatis quam alimentorurft 
 fuorum curam egerunt. 
 
 (a) Quid enim majus eJJ, fide jure Augurum qu*rimus, 
 Tnlly, who himfelf was an Augur, and a Senator into 
 bargain,, quam poffe a fummis imperii* & fumtnis potejla- 
 ; Comiiiatus fif Concilia, -vcl wfiituta dlmittrre, <vcl ha- 
 re kinder e 1 Quid graviut, quam rem fufceptamdirimi, Ji 
 jwwtf dw]ur ALiur.i (id ctt, alium diem) dixerit I Sec* Da 
 Lib. II. $ U.
 
 (&T ENGLAND, il9 
 
 ceeding by employing expedients of the 
 above kind, or were afraid of diminifhing 
 their efficacy by a too frequent ufe of them, 
 they betook themfelves to other ftratagems. 
 They then confered on the Confuls, by the 
 means of a fhort form of words for the oc- 
 casion, (a) an abfolute power over the lives 
 of the Citizens, or even appointed a Dicta- 
 tor. The People, at the light of the Stat* 
 mafquerade which was difplayed before them, 
 were fure to fink into a ftate of confterna- 
 tion ; and the Tribunes, however clearly 
 they might fee through the artifice, alfo tretrw 
 bled in their turn, when they thus beheld 
 themfelves left without defenders, (b) 
 
 At other times, they brought falfe accufa-= 
 tions againft the Tribunes before the AiTem-r 
 bly itfelf ; or, by privately flandering them 
 to the people, they totally deprived them of 
 their confidence. It was through artifices of 
 this kind that the People were brought to be- 
 Jiold,without concern, the murder of Tiberius' 
 
 (a) Vide fit Conful ne quid detritnenti Reffublica capiat. 
 
 (by " The Tribunes of the People," fays Livy, whq 
 was a great admirer of the Ariftocratical power, " and ihe 
 ' People themfelves, durft neither lift up their eyes,, nor even, 
 i* mutter, in the prcfence of the Dilator." Nee ad-vcrsit$ 
 piftatori am vim, aut Tribimi fUbis, ant if fa Pkbs, aUcUcre 
 fculos, aut ^j/ffnfj eudfbaqt. see Tit. Liv. I- vi. $ 16,
 
 zzo THE CONSTITUTION 
 
 Gracchus, the only Roman that was a real 
 patriot, 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 people, that nobody could 
 be found among them who wo uld even lend 
 him a horfe to fly from the fury of the No- 
 bles ; and he was at lad compelled to lay 
 violent hands upon himfelf, while he in- 
 voked the wrath of the Gods on his incon- 
 ftant fellow-Citizens. 
 
 At other times, they raifed divifions among 
 the People. Formidable combinations mani- 
 fested themfelves, on a fudden, at the eve of 
 important tranfactions ; and all moderate 
 Men avoided attending Aflemblies, where 
 they faw that all was to be tumult and con- 
 fufion. 
 
 In fine, that nothing might be wanting to 
 the infolence with which they treated the 
 Aflemblies of the People, they fometimes 
 falfified 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) ' 
 
 (4) The reader withrefpefl to aU'tlieiboTe obfarVai>' ~
 
 OF ENGLAND. ul 
 
 CHAPTER VIII. 
 
 The Subject concluded. Effefis that have refulted, 
 in the Englijh Government, from the People* s 
 Power being compkatly delegated to their 
 Reprefentatives. 
 
 BU T when the People have intirely 
 trufted their power to a moderate num- 
 ber of perfons, affairs immediately take a 
 far different turn. Thofe who govern are 
 from that moment obliged to leave off all 
 thofe ftratagems which had hitherto enfured 
 their fuccefs. Inftead of thofe Affemblies 
 which they affefted to defpife, and were per- 
 petually comparing to ftdfms, or to the cur- 
 rent of the Euripus, (a) and in regard to 
 
 tions, may fee Plutarch's Lives, particulai ly the Lives of the 
 two Gracchi. I mull add, thar I have avoided drawing any 
 inftance from thofe Affemblies in which one half of the peo- 
 ple 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 rhe heji period of the Republic. 
 
 (a) Tully makes no end of his fimiles on this fubjecl. 
 S^uod enim fret urn, quern Euripum, tot mot us, t ant as S? tarn 
 cartas habere put at is agitationes fiuBuum, quantas perturbU' 
 lionet & quantos afius babet ratio Comitiorum ? See Orat. pro 
 Mursena. Concio, fays he in another place, que ex irtpe* 
 rii'tHmit conjlat, &c. De Amicma, s$.
 
 /Hfc TrfE CONSTltUtlOtf 
 
 Which they* confequently, thought themfel- 
 Ves 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 educa- 
 tion and knowledge, and their inferiors only 
 
 in point of rank and form. They, in confe - 
 quence, foon find it neceflary to adopt quite 
 different methods ; and, above allj become very 
 careful not to talk to them any more about 
 the facred 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, obfervc conftant rules, in a word^ 
 proceed with form, they come to look upon 
 them with refpect, from the very fame reafon 
 which makes themthemfelves to be reverenced 
 by the people* 
 
 The Reprefentatives of the People, on the 
 other hand, do not fail foon to procure for 
 thcmfelves every advantage that may enable 
 them effectually to ufc the powers with which 
 they have been intruded, and to adopt every 
 rule of proceeding that may make their refohi- 
 tions to be trulv the refult of reflection and de- 
 liberation. Thus it was that the R cprcfenta- 
 tivesof the Englifh Nation, foon after 'their
 
 OF ENGLAND, j 
 
 tfrfl: eftablifhmcnt, became formed into a fepa- 
 rate Aifembly; 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 : laftly, they infifted on thence- 
 forth framing them themfelves. 
 
 In order to prevent any poffibilityof furprife 
 in the courfe of their proceedings, it is a fetr- 
 tied rule with them, that every proportion, or 
 bill, muft be read three times, a$ different 
 prefixed days, before it can receive a final 
 fanction : and before each reading of the bill, 
 as well as at its firft introduction, an exprefs 
 refolution muft be taken to continue it under 
 confideration. If the bill be rejected, in any 
 one of thofe feveral. operations, it muft be 
 vdropped, and cannotbe propofed again during 
 the fame Seffion. (a) 
 
 (a) It is moreover a fettled rule in the Houfe of Com- 
 mons, that no Member Is to fpeak more than once in the fame 
 day. When the number and nature ef the claufes of a Bill 
 require that it fhouid be difcuffed in a freer manner, a Com- 
 mittee is appointed for that purpofe, who are to make their re- 
 port afterwards to the Houfe. When the fubjecT: is f import- 
 ance, this Committee is formed of the whole Houfe, which 
 ftill continues to fit in the fame place, but in a lefs folemij 
 manner, and under another Prefident, who is called the 
 chairman of the Committee. In order to form the Houfe again,
 
 124 THE CONSTITUTION 
 
 The Commons iiave been, above all, 
 jealous of the freedom of fpeech in their 
 afifembly. They have exprefly ftipulated, aft 
 We have above mentioned, that none of their 
 words or fpeeches mould be queflioned in any 
 place out of their Houfe. In fine, in order 1 
 to keep their deliberations free from every 
 kind of influence, they have not allowed 
 their Prefident to give his vote, or even his 
 opinion : they moreover have fettled it as a 
 rule, not only that the King could riot fend 
 to them any exprefs propofals about laws, 
 or other fubjects, but evert that his name 
 mould never be mentioned in the delibe- 
 rations, (a) 
 
 But the circumftance which, of all others, 
 Conftitutes the fupcrior 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 every 
 Member has it in his power to propofe new 
 fubjects, and to argue and canvafs the quef- 
 
 the mace it replaced on the Table, and the Speaker goes a* 
 gain into hit chair. 
 
 (a) If any perfon were to mention in his fpeech, whit 
 th King njcifbes Jhould be, would be glad to fee, &c. he would 
 h immediately calUdto order t for attempting winflnenct tht 
 debate.
 
 OF ENGLAND. 225 
 
 tions that arife, is that fuch a Conftitution 
 is the only one that is capable of the immenfe 
 advantage, and of which I do not know if 
 I have been able to convey an adequate idea 
 to my readers when I mentioned it before, 
 (a) I mean that of putting into the hands 
 of the People the moving fprings of the 
 Legiflative authority. 
 
 In a Conftitution where the People at largo 
 exercife the function of enacting the Laws, 
 as it is only to thofe perfons upon whom the 
 Citizens are accuftomed to turn their eyes, 
 that is, to the very Men who govern, that 
 the AlTembly have either time or inclination 
 to liften, they acquire, at length, as has con- 
 ftantly been the cafe in all Republics, the 
 exclufive right of propofing, if they pleafe, 
 when they pleafe, in what manner they pleafe. 
 A prerogative this, of fuch extent, that it 
 would fuffice to put an AfTembly formed of 
 Men of the greateft parts, at the mercy of a 
 few dunces, and renders compleatly illufo.ry 
 the boafted power of the People. Nay 
 more, as this prerogative is thus placed in 
 the very hands of the adverfaries of the Peo- 
 ple, it forces the People to remain expofed 
 to their attacks, in a condition perpetually 
 
 '- 
 
 (a) See Chap. iv. of thi* Book*
 
 2i6 THE CONSTITUTION 
 
 paflive, and takes from them the only legal 
 means by which they might effectually oppofe 
 their ufurpations. 
 
 To exprefs the whole in a few words. A 
 representative Conftitution 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 necefiarily productive, in the event, of the 
 misfortune, of the political calamity, of truft- 
 ing the care and the means of repreffing the 
 invafions of power, to the Men who have the 
 enjoyment of power. 
 
 CHAP. IX. 
 
 A farther Difadvantage of Republican G0- 
 vcrnments. The People are necejfarily betrayed 
 by thofe in whom they trujl, 
 
 BUT thofe general affemblies of a Peo- 
 ple who were made to determine upon 
 things which they neither underftood nor exa- 
 mined, that general confufion in which the 
 Ambitious could at all times hide their arti- 
 fices, and carry on their fchemes with fafety, 
 were not the only evils attending the ancient 
 Commonwealths. There was a more fecret
 
 OF ENGLAND. 227 
 
 defeat, and a defect that (truck 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 expreflly chofen, nor thofe whom 
 fome perfonal advantages enabled to govern 
 the Aflemblies, (for the only ufe, I muft 
 repeat it, which the People ever make of 
 their power, is to give it away, or allow it 
 to be taken from them) could poffibly be 
 united to them by any common feeling of 
 the fame concerns. As their influence ptit 
 them, in a great mcafure, upon a level with 
 thole who were inverted with the executive 
 power, they caredlittle to reftrain oppreffions 
 ut of the reach of which they faw themfel- 
 ves placed. Nay, they feared they mould 
 thereby leflen a power which they knew was 
 one day to be their own ; if they had not even 
 already an adtual fhare in it. (0) 
 
 Thus, at Rome, the only end which the 
 Tribunes ever purfued with any degree of 
 
 (a) How could it be expecled, that Men who entertained 
 views of being Praetors, would endeavour to reftrain the 
 power of the Prxtors, that Men who aimed at being ene 
 day Confuls, would wifh to limit the power of the Cn- 
 fuls, that Men whom their intereft with the People made 
 fure of getting into the Senate, would ferioufly edeavour 
 to confine the authority of the Senate ?
 
 228 THE CONSTITUTION 
 
 fincerity and pcrfeverance, was to procure to 
 the People, that is, to thcmfelves, an admif- 
 fion to all the different dignities in the Re- 
 public. After having obtained a law for 
 admitting the Plebeians to the Confulfhip, 
 they procured for them the liberty of inter- 
 marrying with the Patricians. They after- 
 wards got them admitted to the Dictator^ 
 fliip, to the office of military Tribune, to the 
 Cenforfhip : in a word, the only ufc they 
 made of the power of the People, was to in- 
 creafe prerogatives which they called the pre- 
 rogatives of all, but which they and their 
 friends alone, were ever likely to enjoy. 
 
 But we do not find that they ever cm- 
 ployed the power of the People in thing* 
 really beneficial to the People. We do not 
 find, that they ever fet bounds to the terrible 
 power of its Magistrates, that they ever re- 
 preffed that clafs of Citizens who knew how 
 to make their crimes pafs uncenfured, in a 
 word, that they ever endeavoured, on the one 
 handi to regulate, and on the other, to 
 ftrengthen, the judicial power ; precautions 
 thefet without which men might ftruggle to 
 the end of time, and never attain true li- 
 berty, (a) 
 
 (a ) Without fuch precautions, laws rnuft always be, ac 
 Mr. Pope exprefles it, * 
 
 u gt iii for the lliong too weak, the weak too ftrong.
 
 OF* ENGLAND. 229 
 
 And indeed the judicial power, that Cure 
 criterion of the goodnefs of a Government, 
 was always, at Rome, a mere inftrument of 
 tyranny. The Confuls were, at all times 
 invefted with an abfolute power over the lives 
 of the Citizens. The Dictators poffefledthe 
 fame right : fo did the Praetors, the Tribunes 
 of the People, the judicial Commiffioners 
 named by the Senate, and fo, of confequence, 
 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 theTarpeian rock, 
 fufficiently (hews that it well knew how to 
 exert its power upon occafion. 
 
 It even may be faid, that, at Rome, the 
 power of life and death, or rather the right 
 of killing, was annexed to every kind of 
 authority whatever, even to that which refults 
 from mere influence, or wealth ; and the only 
 confequence of the murder of the Gracchi, 
 which was accompanied by the flaughter of 
 three hundred, and afterwards of four thou- 
 fand unarmed Citizens, whom the Nobles 
 knocked on the head, was to engage the Senate 
 to ereel: a Temple to Concord. The Lex Por- 
 tia de tergo c ilium, which has been fo much 
 celebrated, was attended with no other effect 
 but that, of more compleatly fecuring againft 
 
 0.3
 
 130 THE CONSTITUTION 
 
 the danger of a retaliation, fuch Confuls, 
 Prsetors, Quseftors, &c. as, like Verres, 
 caufed the inferior Citizens of Rome to be 
 fcourged with rods, and put to death upon 
 crofles, through mere caprice and cruel- 
 ty. 0) 
 
 In fine, nothing can more compleatly ftieur 
 to what degree the Tribunes had forfaker* 
 the interefts of the People, whom they were 
 appointed to defend, than that they had al- 
 lowed the Senate to inveft itfelf with the power 
 of taxation : they even fuffered it to affume 
 to itfelf the power, not only of difpen- 
 fing with the laws, but alfo of abrogating 
 them, (a) 
 
 (a) If we turn our eye* to Lacedaemon, we (hall fee, 
 from feveral inftances of the juftice of the Ephori, that 
 matters were little better ordered there.- And in Athens 
 itfelf, which is the only one of the ancient Common- 
 wealth* in which the people feem to have enjoyed any de- 
 gree of real liberty, we fee the Magiftrates proceed nearly 
 in the fame manner as they now do among the Turks : and 
 I think no other proof needs be given of this than the ftory 
 of the Barber in the Piraeus, who having fpread about 
 the Town the news of the overthrow of the Athenians in 
 Sicily, which he had heard from a ft ranger who had flop- 
 ped at his (hop, was put to the torture, by the command 
 of the Archons, became he could not tell the name of his 
 author. See PJut. Life of NUias. 
 
 (a) There are frequent inftances of the Confuls taking 
 pway from thtCapitol the tables of the laws pafled under their
 
 OF ENGLAND. 23l 
 
 In a word, as a neceffary confequence of 
 the comtnunicabiHty of power, a circumftance 
 efTentially inherent in the republican form of 
 government, it is impoffible for it ever 
 to be reftrained within certain rules. Thofc 
 who are in a condition to controul it, from 
 that very circumftance, become its defend- 
 ers. Though they may have rifen, as we 
 may fuppofe, from the humbled ftations, and 
 fiich as feemed totally to preclude them from 
 all ambitious views, they have nofooner reach- 
 ed 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 fincerity, than to fee the 
 laws impartially executed : their only tiew 
 at prefent is to fet themfelves above them ; 
 and feeing themfelves raifed to the level of a 
 clafs of Men who poffefs all the power, and 
 
 predeceflbrs. Nor was this, as we might at firft be tempted 
 to believe, an a6l f violence which fuccefs alone could 
 juftify i it was a confequence of the acknowledged power 
 enjoyed by the Senate, cujus erat gravij/imum judicium de 
 iure legum, as we may fee in feveral places in Tully. 
 Nay, the Augurs themfelves, as Tully informs us, enjoyed 
 that privilege. " If laws have not been laid before the 
 " people, in the legal form, they (the Augurs) may fup- 
 '* prefs them ; as was done wjth refpeft to the Lex Tetia 
 t* by the decree of the College, and to the leges Li-vix, 
 ** by the advice ef Philip, who v^as Con ful and Augur,"
 
 g"a 3 2 THE CONSTITUTION 
 
 enjoy all the advantages, in the State, they 
 make hade to afibciate themfelves to them. (a) 
 Perfonal power and independence on the 
 laws, being, in fuch States, the immediate 
 confequence of the favour of the People, they 
 are under an unavoidable neceffity of being 
 betrayed. Corrupting, asit were, every thing 
 they touch, they cannot mow a preference to 
 a Man, but they thereby attack his virtue; 
 they cannot raife him, without immedi- 
 ately lofing him, and weakening their own 
 caufe ; nay, they infpire him with views 
 
 Legem, fi non jure rogata eft, tollere pojJUnt ; ut Tetiam, 
 decreto Collegii ; ut Li*vias, confUio Pbilippi, Confulis & Au- 
 guris. See de Legib. Lib. ii. 12. 
 
 (a) Which always proves an e3fy 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 draw over to their own party any Man 
 who happens to acquire a confiderable influence among 
 them ; and this they are (and indeed mult be) the more 
 attentive to do, in proportion as the nature of the Govern- 
 ment is more democratical. 
 
 The Conftitution of Rome had even made exprefs 
 provifions on that fubjefit. Not only the Cenfon could 
 at once remove any Citizen into what Tribe they pleafed, 
 and even into the Senate, (and we may eafily believe, that 
 they made a political ufe of this their privilege) but it was 
 alfo a fettled rule, that all perfons who had been piomoted 
 10 any public office by the People, fuch as the Conful- 
 fliip, the Edilefliip, or Tribunefhip, became, ipfo faio, 
 members of the Senate. See Middleton's Dijertation on the 
 Rtman Senate.
 
 OF ENGLAND. 233 
 
 directly opposite to their own, and fend 
 him to join and increafe 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 thefe offices, were 
 immediately received into the Senate, as has 
 been juft now obferved. Their families, from 
 that period, formed, in conjunction with the 
 ancient Patrican families, a new combination 
 of Men, (a) whih was compofed of no par- 
 ticular clafs of Citizens, but of all thofe 
 in general who had influence enough to 
 gain admittance into it, fo that a fingle 
 overgrown head was now to be fecn in the 
 Republic, which, being formed of all thofe 
 who had either wealth or power of any- 
 kind, and difpofing at will of the laws and 
 power of the people (6) foon loft all regard 
 Co moderation and decency. 
 
 Every Conflitution, therefore, whatever 
 
 (a) See the Note (a) chap. n. of this book. 
 
 (b) It was, in feveral refpecls a misfortune for the people of* 
 Rome, whatever may have been faid to the contrary by the 
 Writers on this fubjeel, that the diftinction between the Patri- 
 cians and the Plebeians was ever abolifhed j though, to fay 
 she truth, this was an event which could not be prevented.
 
 234 THE CONSTITUTION. 
 
 may be its form, which docs not provide for 
 inconveniences of the kind above mentioned, 
 is a Conftitution cfTentially imperfect. It is 
 in Man himfelf that the fourccof the evils to 
 be remedied, lies ; general precautions there- 
 fore can alone prevent them. If it be a fatal 
 error intirely to rely on the juftice and equity 
 of thofe who govern, it is an error no lefs 
 fatal to imagine, that while virtue and mo- 
 deration are the conftant companions of 
 thofe who oppofe the abufes of Power, all 
 ambition, all love of dominion, have retired 
 to the other party. 
 
 Though wife Men fometimes may, ledaftray 
 by the power of names, and the heat of po- 
 litical contentions, lofe fight of what ought 
 to be their real end, they neverthelefs know 
 that it is not againft the sfppii, the Coruncanii, 
 the Cethet>i, but againft all thofe who can 
 influence the execution of the laws, that pre- 
 cautions ought to be taken ; that it is not 
 the Conful, the Praetor, the Archon, the Mi- 
 nifter, the King, whom we ought to dread, 
 nor the Tribune, or the Reprefentative of the 
 People, on whom they ought implicitly rely; 
 but that all thofe perfons, without diftin&ion, 
 ought to be the objects of our jealoufy, who, 
 by any methods, and under any names what-
 
 OF ENGLAND. 235 
 
 foever, have acquired the means of turning 
 again It each individual the collective ftrength. 
 of all, and have fo ordered things around 
 themfelv'es, that whoever attempts to refift 
 them, is fure to find himfelf engaged alone 
 again ft a thoufand. 
 
 CHAPTER X. 
 
 Fundamental difference between the Englijh 
 Government and the Governments juji de- 
 Jcribed. In England all Executive Authority is 
 placed out of the kands of thofe inwhom tbePeople 
 trujl. Ufefulnefs of the Power of the Crown. 
 
 IN what manner then, has the Englifh. 
 Conflitution 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 People have given up 
 their power, to make them effectual and laft- 
 ting 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 fub- 
 jecting them themfelves to thofe laws ; and, 
 for that purpofe, by excluding them from 
 all fhare in the execution of them.
 
 236 THE CONSTITUTION. 
 
 Thus, the Parliament can eftablifh as nu- 
 merous a Handing army as it pleafes ; but 
 immediately 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 advantages and glory arifing 
 from the difpofal of it. The Parliament may 
 even, if you pleafc, repeal the laws on which 
 the fafety of the Subject is grounded ; but it 
 is not their own caprices and arbitrary hu- 
 mours, it is the caprice and paflions of other 
 Men, which they will have gratified, when 
 they mail have thus overthrown the columns 
 of public liberty. 
 
 And the Englifh Conftitution has not only 
 excluded from any marc in the Execution of 
 the laws, thofe in whom the People trull for 
 the enadling of them, but it has alfo taken 
 from them what would have had the fame 
 pernicious influence on their deliberations, 
 the hope of ever invading that executive 
 authority, and arrogating it to themfelves. 
 
 This authority has been made in England 
 one fingle, indivifiblc prerogative ; it has. 
 been made for ever the unalienable attribute
 
 OF ENGLAND. 2$7 
 
 of one perfori, marked out and afcertained 
 beforehand by mod folemn laws and long- 
 eftablifhed cuftom ; and all the active forces 
 in the State have been left at his difpofal. 
 
 In order to fecure this prerogative (till fur- 
 ther againft all pombility of invafions from 
 individuals, it has been heightened and 
 ftrengthened by every thing that can at- 
 tract and fix the attention and reverence of 
 the people. The power of conferring and 
 taking away places and employments has alfo 
 been added to it, and ambition itfelf has thus 
 been interefted in its defence. 
 
 A flvare in the Legiflative power has alfo 
 been given to the Man to whom this pre- 
 rogative has been delegated : a paffive lhare 
 indeed, and the only one that can, with 
 ikfety to the State, be trufted to him, but by- 
 mean* of which he is enabled to defeat 
 every attempt againft his conftitutional au- 
 thority. 
 
 Laftly, he is the only felf-exifting and in- 
 dependent Power in the State. The Gene- 
 rals, tbc Minifters of State, are fb only by 
 the continuance of his pleafure : he would 
 even difmifs the Parliament themfelves, if 
 ever he faw them begin to entertain dan- 
 gerous defigns ; and he needs only fay one
 
 2 3 8 THE CONSTITUTION 
 
 word to difperfe every power in the State 
 that may threaten his authority. Formida- 
 ble prerogatives thefe ; but with regard to 
 which we mall be inclined to hy afide our 
 apprehenfions, if we reflect, on the one hand, 
 on the great privileges of the people by 
 which they have been counterbalanced, and 
 on the other, on the happy cnfequences that 
 rcfult 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 moft eflential advantage, which 
 they would vainly endeavour to obtain under 
 the government of many, they can give their 
 aJJonfidence, without giving power over them- 
 felves, and againft themfelves ; they can ap- 
 point Truftees, and yet not give themfelves 
 Mafters. 
 
 Thofe Men to whom the People have 
 delegated the Power of framing the Laws, 
 arc thereby made fure to feel the whole 
 preflure of them. They can increafe the pre- 
 rogatives of the executive authority, but they
 
 OF .ENGLAND, 239 
 
 cannot inveft 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 exiftence, to 
 the need in which that Power ftands of their 
 afliftance ; and they know that they would 
 no fooncr have abufed the truft of the Peo- 
 ple, and compleated the treacherous work, 
 than they would fee themfelves difiblved, 
 fpurned, like inftruments now fpent, and 
 become ufelefs. 
 
 This fame difpofition of things alfo pre- 
 vents in England, that effential defect, inhe- 
 rent in the Government of many, which has 
 keen defcribed 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 poffeffion they are, 
 not only by thofe who have good reafon to 
 hope that they fhall at fome future time fhare 
 in the exerecife of them,but alfo by the whole 
 croud of thofe Men who, in confequence of 
 the natural difpofition of Mankind to ever- 
 rate their own advantages, fondly imagine,
 
 i 4 o THE CONSTITUTION 
 
 cither that they ftiall one day enjoy feme 
 branch of this governing authority, or that 
 they arc even already, in fome way or other, 
 afibciated to it. 
 
 But as this authority has been made, in 
 England, theindivifiblc, unalienable attribute 
 of one alone, all other perfons in the State 
 are ipfofaffo, interefted to confine it within 
 its due bounds. Liberty is thus made the 
 common caufe of all : the laws that fecure 
 it are fupported by Men of every rank and 
 order ; and the Habeas Corpus Act, for in- 
 ftance, is as zealoufly defended by the firft 
 Nobleman in the Kingdom, as by the mean- 
 eft 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 authori- 
 ty, that a Court-intrigue, or a caprice, may 
 at every inftant confound him with the multi- 
 tude, and the rancour of a fucceffur long 
 kept out, fend him to linger in the fame 
 jail which his temporary paffions might tempt 
 him to prepare for others. 
 
 In confequence of this difpofition of things,
 
 OF ENGLAND. 241 
 
 great men, therefore^ are made to join in a 
 common caiife with thePeople, for reftraining 
 the exceffes of the governing Power ; and, 
 which is no lefs efTential to the public wel- 
 fare, they are alfo, from this fame caufe, 
 compelled to reftrain the excefs of their own 
 private power or influence, and a general 
 fpirit of juftice is thus diffufed through 
 all parts of the State. 
 
 The wealthy Commoner, the Reprefenta- 
 tive of the People, the potent Peer, always 
 having before their eyes the view of a formi- 
 dable 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 
 iffiie, retaliate an hundred fold upon them 
 their acts of violence, are compelled, both 
 to wifh only for equitable laws, and to obferve 
 them with a fcrupulous exactnefs. 
 
 Let then the People dread (it is neceflary 
 to the prefervation of their liberty) but let 
 them never entirely ceafe to love, theThrone, 
 that folc and indivisible feat of all the active 
 powers in the State. 
 
 Let them know that it is that, which, by 
 lending an immenfc ilrength to the arm of 
 Juftice, has enabled her to bring to account as 
 well the molt powerful, as the mcaneft often- 
 
 R
 
 2 4 a THE CONSTITUTION 
 
 dcr, which has fupprefTed, and, if I may fo 
 cxprefs myfclf, weeded out all thofe tyrannies, 
 fomctimes confederated with, and fometimes 
 adverfe to, each other, which incefTantlr tend 
 to fpring in the middle of civil focieties, and 
 are the more terrible, in proportion as they 
 feel themfelves to be lefs firmly eftablifhed. 
 
 Let them know that 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, ihook the founda- 
 tions of whole States, has changed into in- 
 trigues the conflicts, the outrages of ambition, 
 and that thofe contentions which, in the pre- 
 fent times, afford them only matter of amufe- 
 ment, are the volcanos which fct in flames 
 the ancient Commonwealths. 
 
 That it i 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 the latter, the 
 caufe of the powerful to that of the hclp- 
 lefs, the caufe of the Man of extenfive in- 
 fluence and connections, to that of him who 
 is without friends. 
 
 It is the Throne above all, it is this jea- 
 loui Power, which makes the People furc
 
 of England. y^ 
 
 that its Reprcfentatives never will be any 
 thing more than its Reprefentatives ; and it is 
 the ever-fubfifting Carthage which vouches 
 to it for the duration of their virtue. 
 
 CHAP. XI. 
 
 The Powers which the People themfehes exercife. 
 The Eleflion of Members of ParlUmtnt* 
 
 THE Englifh Conftitutiori having ef- 
 fentially connected the fate of the Men 
 to whom the People truft their power, with 
 that of the People themfelves, really feems, 
 by that caution alone, to have procured the 
 latter a compleat fecurity. 
 
 However, as the viciflitude of human affairs 
 may, in procefs of time, realize events which 
 at firft had appeared moltimpropable, itmight 
 happen that the Minifters of the Executive 
 power, notwithstanding the interefl they them- 
 felves have in the prefervation of public li- 
 berty, and in fpite of the precautions expref* 
 ily taken in order to prevent the effecT: of 
 their influence, mould, at length employ 
 fuch efficacious means of corruption as might 
 bring about a furrendcr of fome of the laws 
 
 R %
 
 144 THE CONSTITUTION 
 
 Upon which this public liberty is founded. 
 And though we Ihould fuppofe that fuch a 
 danger would really be chimerical, it might 
 at lead happen, that, conniving at a vicious 
 adminiftration, and being over liberal of the 
 produce of the labours of the People, the Re- 
 prefentatives of the People might make them 
 fuffer many of the evils which attend worfc 
 forms of Government. 
 
 Laftly, as their duty does not confiir. only 
 in preferving their conftitucnts againfl the 
 calamities of an arbitrary Government, but 
 moreover in procuring them the bed admini- 
 ftration poflible, 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 necefTary, that the Confti- 
 tution mould furnifh a remedy for all the 
 above cafes ; now, it is in the right of elect- 
 ing Members of Parliament, that this reme- 
 dy lies. 
 
 When the time is come at which the 
 commillion which the People had given to 
 their delegates expires, they again alTcmblcin 
 their fevcral Towns or Counties : on thefe 
 occafipps they have it in their power to elett
 
 OF ENGLAND. i 45 
 
 again thofe of their Reprefcntatives whole 
 former conduct they approve, and to reject 
 thofe who have contributed to give rile to 
 their complaints. ^ A fimplc remedy this, and 
 which nly requiring, in its application, a 
 knowledge of matters of fact, is entirely 
 within the reach of the abilities of the Peo- 
 ple : but a remedy, at the lame time, which 
 is the moft effectual that could be applied ; 
 for, as the evils complained of arifc merely 
 from the peculiar difpofitions of a certain 
 number of individuals, to fet afidc thofe indi- 
 viduals, is to pluck up the evil by the roots, 
 
 But I perceive, that, in order to make the 
 reader fenlible of the advantages that may 
 accrue to the people of England, from their 
 right of election, there is another of their 
 rights, of which it is abfolutely neceffary that 
 I Ihould firft give an account. 
 
 R3
 
 246 THE CONSTITUTION 
 
 CHAPTER XII. 
 
 ?he Subjeft continued. Liberty of the Prcfs. 
 
 AS the evils that may be complained of 
 in a State do not always arifc merely 
 from the defect of the laws, but alfo from the 
 non-execution of them, and this non-executi- 
 on of fuch a kind that it is often impoffible 
 to fubject it to any exprefs punifhment, or 
 even to afcertain it by any previous definition, 
 Men, in feveral States, have been led to feek 
 for an expedient that might fupply the una- 
 voidable deficiency of legiflative provifions, 
 and begin to operate, as it were, from the 
 point at which the latter begin to fail. I 
 mean here to fpeakof the Cenforial power; a 
 power which may produce excellent effects, 
 but the exercife of which (contrary to that 
 of the legiflative power) mull be left to the 
 People themfelves. 
 
 As the propofed end of Legiflation is not, 
 according to what has been above obferved, 
 to have the particular intentions of indi- 
 duals, upon every cafe, known and complied 
 with, but folely to have what is mod con- 
 ducive to the public good on the occafions 
 that arife, found out and eftablifhcd, it is
 
 OF ENGLAND. a*y 
 
 not an cfTential requifite in legislative opera- 
 tions, that every individual fliould be called 
 upon to deliver his opinion ; and iince this 
 expedient, which at firft fight appears fo na- 
 tural, of feeking out by the advice of .all 
 that which concerns all, is found liable, when 
 carried into practice, to the greater! incon- 
 veniences, we mull not hcfitate to lay it 
 afide intirely. But as it is the opinion of 
 individuals alone, which conftitutes the check 
 ofacenforial power, this power cannot pombly 
 produce its intended effedt, any farther than 
 this public opinion is made known and de- 
 clared : the fentiments of the people are the 
 only thing in queftion here ; and it is of 
 confequence neceifary, that the people fliould 
 fpeak for themfelves; and manifefl thofe fenti- 
 ments. A particu lar Court of Cenfure there- 
 forccflentially frustrates its intended purpofe; 
 it is attended, befides, with very great in- 
 conveniences. 
 
 As the ufe of fuch a Court is to determine 
 upon thofe cafes, only, which lie out of the 
 reach of the laws, it cannot be tied down to 
 any precife regulations. As a further confe- 
 quence of the nature of its functions, it can- 
 not even be Subjected to any conftitutional 
 check ; and it continually prefents to the eye, 
 
 R 4
 
 148 THE CONSTITUTION 
 
 the view of a power intirely arbitrary, and 
 which, in its different exertions, may affect 
 in the moft cruel manner, the peace and 
 happinefs of individuals, (a) It is attended, 
 befides, with this very pernicious confe- 
 quence, that, by dictating to the people their 
 judgments of Men or meafures, it takes from 
 them that freedom of thinking, which is the 
 nobleftprivilege, as well as the firmeftfupport 
 of Liberty. 
 
 We may therefore look upon it as a farther 
 proof of the foundnefs of the principles on 
 
 (a) M. de Montefquieu, and M. Roufleau, ami indeed 
 all the Writers I hare met with on this fubjeel, beftow 
 vatt encomiums on the Cenforial Tribunal that had been 
 inflituted at Rome ; they hare not been aware that this 
 power of Cen in re, lodged in the hands of peculiar Magi* 
 ftrates, with other difcretionary powers annexed to it, was ' 
 no other than a piece of Statecraft, like thoie defcribed in the 
 preceding Chapters, and had been contrived by the Senate s t 
 an additional means of fecuring its authority. Sir Thomas 
 More has alfo adopted fimilar opinions on the fubjeft j am! 
 he is lb far from allowing the people to canvafs the ailiom 
 of their Rulers, that in his Syftem of Polity, which he calls 
 An Account of Utopia (the happy Region, %Z and Tyn>,-) he 
 make$ it death for individuals to talk about the conducl 
 of Government. 
 
 I feel a kind of pleafure, I muft confefs, to ob&rve, on this 
 occafion, that though I have been called by fame an advocate 
 for Power, I have carried my ideas of Liberty faithtr than 
 many Writers who have mentianed that word with muh 
 entbufia/m.
 
 OF ENGLAND. 449 
 
 which the Englifh conftitution is founded, 
 that it has allotted to the People thcmfclves 
 the province of openly canvaffing and arraign- 
 ing the conduct of thofe who arc inverted 
 with any branch of public authority ; and 
 that it has thus delivered into the hands 
 of the People at large, the exercifc of the 
 Cenforial power. Every Subject in Eng- 
 land has not only a right to prefent peti- 
 tions to the King, or the Houfes of Par- 
 liament, but he has a right alfo to lay his 
 complaints and obfervations before the Pub- 
 lic, by means of an open prefs. A for- 
 midable right this, to thofe who rule Man- 
 kind, and which, continually difpelling the 
 cloud of majefty by which they are fur- 
 rounded, brings them to a level with the reft 
 of the people, and flrikes at the very being 
 of their authority. 
 
 And indeed this privilege is that which 
 has been obtained by the Nation, with the 
 greateft difficulty, and lateft in point of time, 
 at the expence of the Executive power. Free- 
 dom was in every other refpect already efta- 
 blilhed, when the Englifh were ftill, with 
 regard to the public expreffion of their fenti- 
 ments, under reftraints that may be called 
 defpotic. Hiftory abounds with inftances of
 
 a$o THE CONSTITUTION 
 
 the feverity of the Court of Star-Chamber, a- 
 gainft thofe who prefumed to write on politi- 
 cal fubjects. It had fixed the number of 
 printers and printing-preffes, and appointed 
 a Licenfer, without whole approbation no book 
 could be published. Befides, as this Tribu- 
 nal decided matters by its own (ingle authori- 
 ty, without the intervention of a Jury, it 
 was always ready to find thofe pcrfons guilty, 
 whom the Court was pleafcd to look upon 
 as fuch ; nor was it indeed without ground 
 that Chief Juftice Coke, whofe notions of 
 liberty were fomewhat tainted with the pre- 
 judices of the times in which he lived, con- 
 cluded the elogiums he has bellowed on this 
 Court, with faying, that " thcrightinlYitution 
 " and orders thereof being obferved, it doth 
 " keep all England in quiet.'' 
 
 After the Court of Star-Chamber had been 
 abolifhed, the Long Parliament, whole con- 
 duct and afTumed power were little better qua- 
 lified to bear a fcrutiny, revived the regula- 
 tions againft the freedom of the prefs. Char- 
 les the Second, and after him James the Se- 
 cond, procured further renewals of them. 
 Thefe latter acts having expired in the year 
 1692, were, at this aera, although pofterior 
 to the Revolution, continued for two years
 
 OF ENGLAND. 25I 
 
 longer; fo that it was not till the year 1694, 
 that, in confequence of the Parliament's re- 
 fufal to continue the prohibitions any longer, 
 the freedom of the prefs, (a privilege which 
 the Executive power could not, it feemed, 
 prevail upon iticlf to yield up to the people) 
 was finally eftablifhed. 
 
 In vyhat then docs this liberty of the 
 prefs precifely confift ? Is it a liberty left t? 
 every one to publifh any thing that comes 
 into his head ? to calumniate, to blacken, 
 whomsoever he pleafes ? No ; the fame laws 
 that protect the perfon and the property of 
 the individual, do alfo protect his reputation; 
 and they decree againft libels, when really fo, 
 punishments of the fame kind as are eftablifh- 
 ed in otherCountries. But, "on the other hand, 
 they do not allow, as in other States, that 
 a Man lhould 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 na- 
 ture criminal, and who is declared guilty of 
 fo doing by twelve of his equals, appointed 
 to determine upon his cafe, with the precau- 
 tions we have before defcribed. 
 
 The liberty of the prefs, as eftablifhed in 
 JLngland, confifts therefore, to define it more
 
 i 5 2 THE CONSTITUTION 
 
 precifely, in this, that neither the Courts of 
 Juflicc, nor any other Judges whatever, are 
 authorifed to take any notice of writings in- 
 tended for the prefs, but arc confined to thofc 
 which arc actually printed, and muft, in thefe 
 cafes, proceed by the Trial by Jury. 
 
 It is even this latter circumftance which 
 more particularly constitutes the freedom of 
 the prefs. If the Magiftratcs, though con- 
 fined in their procecdings,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- 
 feverancc, that they might, at length, fuc- 
 ecd in compleatly ilriking 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 inftanoe of the Go- 
 vernment itfelf, their fole office is to declare 
 the punifliment eftablifhed by the law : it is 
 to the Jury alone that it belongs to determine 
 on the matter of law, as wcUas^on th_mattcr 
 of fact; that is, to determine, not only whe- 
 ther the writing which is the fubject of the
 
 OF ENGLAND. i 5s 
 
 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 
 indictment, bux^alfo, jvhether^its ~con t en t s 
 ^ajre^cjjminal. 
 
 And though the law in England does not 
 allow a Man, profecuted for having published 
 a libel, to offer to fupport by evidence the 
 truth of the facts contained in it, (a mode of 
 proceeding which would be attended with 
 moft mifchievous confequences, and is every 
 where prohibited) yet* (<z) as the indictment 
 is to exprefs that the facts zxefalfc, malici- 
 ous, &c. and the Jury, at the fame time, ar# 
 fole matters of their verdict, that is, may 
 ground it upon what confederations they 
 pleafe, it is very probable that they would 
 acquit the accufed party, if the facts afferted 
 in the writing before them, were matter of 
 undoubted truth, and of a general evil ten- 
 dency. 
 
 And this would ftill more likely be the cafe 
 if the conduct of the Government itfelf was' 
 arraniged ; becaufe, bciides this conviction 
 which we fuppofc in the Jury, of the cer- 
 
 (a) In anions for damages between individuals , the cafe 
 if I raiftake not, is different, and the defendant is allowed 
 to produce evidence of the fails afferted by hint.
 
 454 THE CONSTITUTION 
 
 tainty of the facts, they would alfo be deter- 
 mined by their fenfeof a principle generally 
 admitted in England, and which, in a late 
 celebrated caufe, has been ftrongly infilled 
 upon, viz. That, " though to fpeak ill of 
 " individuals was deferring of reprehenfion, 
 " yet, the public acts of Government ought 
 " to lie open to public examination, and 
 " that it was a fervice done to the State, to 
 ts canvafs them freely, (a) 
 
 And indeed this extreme fecurity with 
 which every man in England is enabled to 
 communicate his fentiments to the Public, 
 and the general concern which matters rela- 
 tive to the Government are always fure to 
 create, has wonderfully multiplied all kinds 
 of public papers. Befides thole which, being 
 publifhed at the end of every year, month, 
 or week, prefent to the reader a recapitula- 
 tion of every thing interesting that may have 
 been done or faid during their refpective pe- 
 riods, there are feveral others which, making 
 their appearance everyday, or every other day, 
 communicate to the public the feveral meafu- 
 res taken by the Government, as well as the 
 
 () See Serjeant Glynn's Speech for Woodfall in the pro- 
 fecution againft the latter, by the Attorney- General, for 
 punijhing Junius'* letter to the King. s
 
 OF ENGLAND. a # 
 
 different caufes of any importance, whether 
 civil or criminal, that occur in the Courts of 
 Juftice, and {ketches from the fpeeches either 
 of the Advocates or the Judges, concerned in 
 the management and decifion of them. Du- 
 ring the time theParliament continues fitting, 
 the votes or refolutions of the Houfe of 
 Commons, are daily publifhed by authority ; 
 and the moft interefting fpeeches in both 
 Houfes, are taken down in ihort-hand, and 
 communicated to the Public, in print. 
 
 Laftly, the private anecdotes in the Metro- 
 polis, and the Country, concur alio 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 eagernefs, every individual thus be- 
 comes acquainted with theState of theNation, 
 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 iupplemental 
 power, or check, which, we have above faid, 
 is fo ufeful to remedv the unavoidable in-
 
 *$6 THE CONSTITUTION 
 
 fufficiency of the laws, and keep within their 
 refpective bounds all thofe perfons who enjoy 
 any fhare of public authority. 
 
 As they are thereby made fenfible, that all 
 their actions arc expofed to public view, 
 they dare not venture upon thofe ac~ts of 
 partiality, thofe fecret connivances at the ini- 
 quities of particular perfons; or thofe vcxa-- 
 tious practices, which the Man in office is but 
 too apt to be guilty of, when, exercifing his 
 office at a diftancc 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 abufc in which perfons in power may, in 
 fuch a ftate of things, be tempted to indulge 
 thcmfelves, they are convinced that their irre- 
 gularities will be immediately divulged. The 
 Juryman, for example, 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 invhnce, 
 to choofc between his duty, and the furrender 
 of all his former reputation. 
 
 It will, I am aware, be thought that I 
 fpeak in too high terms, of the effects produ- 
 ced by the public news-papers. I indeed
 
 OF ENGLAND: ijf 
 
 eonfefs 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 
 never happens that a fubject in which the 
 laws, or in general the public welfare, are 
 really concerned, fails to calls forth fomc able 
 writer, who, under one form or other, com- 
 municates to the public his obfervations and 
 complaints. I mall add here, that, though 
 an upright Man, who may labour for a while 
 under a ftrong popular prejudice, may, fup- 
 ported by the confeioumefs of his innocence, 
 endure with patience the fevereft imputati- 
 ons, a guilty Man, hearing nothing in the re- 
 proaches of the public but what he knows 
 to be true, and already upbraids himfelf with, 
 is very far from enjoying any fuch comfort;' 
 and that, when a man's own confeience 
 takes part againft him, the molt defpicabie 
 Weapon is fufHcient to wound him to the 
 quick, (a) 
 
 (a) I (hall take this oceafion to obferve, that the liberty 
 of the prefs is io far from being injurious to the reputa- 
 tion of individuals, (as fome perfons have complained) that 
 it is, on the contrary, its fureft guard. When there exifts 
 no means of communication with the Public, every one. is 
 expofed, without defence, to the fecret fhafrs of malignity 1 
 and envy. The Man in office lofes his reputation, the Mer- 
 chant his credit, the private individual his character, with- 
 eut {9 much as knowing, either who are hi* enemies, g*
 
 2 5 3 THE CONSTITUTION 
 
 Even thofe perfons, whofe greatnefs feems, 
 moft to fet them above the reach of public cen- 
 fure, are not thofe who lead feel its effects. 
 They have need of the fuffrages of that vul- 
 gar whom they affect to defpife, and who are, 
 after 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, 
 People ! zvhat toils do we not undergo, in 
 order to gain your applaufe ! 
 
 I confefs, that in a State where the People 
 dare not fpeak their fentiments, but with a 
 view to plcafc the cars of their rulers, it is 
 poflible that cither the Prince, or thofe to 
 whom he has truftcd his authority, may fome- 
 times miftake the nature of the public fenti- 
 ments, or that, for want of that affection 
 of which they arc rcfufed all public marks, 
 they may reft contented with infpiring ter- 
 ror, and make themfelves amends, in behold- 
 ing the overawed multitude fmother their 
 complaints. 
 
 But when the laws give a full fcope to the 
 
 which way they carry on their attacks. But when there 
 exVfts a free prefs, an innocent Man immediately brings th* 
 matter into open day, and crushes his adversaries, at orfce, 
 by a challenge given to all, to lay before the public the 
 grounds of their ftveral imputations.
 
 OF ENGLAND. S9 
 
 people fur the expreffion of their fentimcnts, 
 thole who govern cannot conceal from them- 
 felves the difagreeable truths which refound 
 from all fides. They are obliged to put up 
 even with ridicule ; and the coarfeft jefts 
 are not always thofe which give them the 
 lead uneafinefs. Like the lion in the fable, 
 they mull bear the blows of thofe enemies 
 whom they defpife the moft ; and they are, at 
 length, flopped fhort in their career, and com- 
 pelled to give up thofe unjuft purfuits which 
 they find to draw upon them, inftead of that 
 admiration which is the propofed end and 
 reward of their labours, nothing but mortifi- 
 cation and difguft. 
 
 In fhort, whoever confiders what it is that 
 constitutes the moving principles of what we 
 call great affairs, and the invincible fenfibili- 
 ty of Man to the opinion of his fellow crea- 
 tures, will not hefitate to affirm that, if it 
 were poffible for the liberty of the prefs to 
 exift in a defpotic government, and (what is 
 not lefs difficult) for it to exift without 
 changing the constitution, 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 
 
 S
 
 *6o THE CONSTITUTION. 
 
 found, which, rendered refpe&able by the 
 ancient religion of the people, might enfure 
 fafcty to thofe who fhould bring thither their 
 obfervations of any kind, and that from 
 thence printed papers fhould iflue, which, 
 under a certain feal, might be equally ref- 
 pctftcd, and which, in their daily appear- 
 ance, fhould examine and freely difcufs the 
 conduct of the Cadis, the Bafhaws, the Vizir, 
 the Divan, and the Sultan himfelf, that 
 would introduce immediately fome degree of 
 liberty. 
 
 CHAPTER XIII. 
 
 The Subjetf continued. 
 
 ANOTHER effecT:, and a very confidera- 
 ble one, of the liberty of the prefs, is, 
 that it enables the People effectually to exert 
 thofe means which the Conftitution has be- 
 ftowed on them, of influencing the motions 
 of the Government. 
 
 It has been obferved before, how it came 
 to be a matter of impoflibility for any large 
 number of Men, when obliged to adt in a 
 body, and upon the fpot, to take any well- 
 weighed refolution. But this inconvenience,
 
 OF ENGLAND. a 6i 
 
 which is the inevitable confequcncc of their 
 ikuation, does in no wife argue a perfonal 
 inferiority 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 mad* 
 the effential differences between Men ; and 
 whatever appellation a fmall number of per- 
 fons, 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 dif- 
 guife which may fall off on the firft occafion ; 
 and more than once has it happened, that 
 from the middle of a multitude in appearance 
 contemptible, there have been feen to rife ac 
 once Viriatuses, or Spartacuses. 
 
 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 
 difadvantages. Through itsaffiftance every in- 
 dividual may, at his leifure and in retire- 
 ment, inform himfelf of every thing that 
 relates to the queftions on which he is to take 
 a refolution. Through its affiftance, a whole
 
 162 THE CONSTITUTION 
 
 Nation, as it were holds a Council, and de- 
 liberates ; flowly indeed, (for a Nation can- 
 not be informed like an aifembly of Judges) 
 but after a regular manner, and with certain- 
 ty. Through its aiTiftance, all matters of 
 facl are, at length, made clear ; and, by 
 means of the conflict of the different an- 
 fwers and replies, nothing at la ft remains, 
 but the found part of the arguments, (a) 
 
 (a) This right of publicly difcuffing political fubjecls, 
 is alone a great advantage to a People who enjoy it} and if 
 the Citizens of Geneva, for inftance, have preferved their 
 liberty better than the people have been able to do in the 
 other Commonwealth! of Switzerland, it is, I think, owing 
 to the extenfive right they pofTcfs, of making public remon- 
 strances *o their Magirtrates. Tq thefe remonftrances the 
 Magiftrates, for inftance the Council of Twenty -fi<vt, to 
 which they are ufually made, are obliged to give an anfwer. 
 If this anfwer does not fatisfy the remonftrating Citizens, 
 they take time, perhaps two or three weeks, to make a 
 reply to it, which muft alfo be antwered ; and the num- 
 ber of Citizens who go up with each new remonftrance, 
 jncrcafes, according as they ate thought to have reafon on 
 their fide ; thus, the remonftrances, which were made fome 
 years ago, on account of the fentence againft the cele- 
 brated M. Roufleau, and were delivered at fiiftby only forty 
 Citizens, were afterwards often accompanied by about nine 
 hundred. This circumftance, together with the ceremony 
 with which thole lemonftiances, (or Rtf>refentations t as they 
 more commonly call them) are delivered, has rendered them 
 a great check on the conduct of the Magistrates : they even 
 have been itill more ufeful to the Citizens of Geneva, as a 
 preventative, than as a remedy j and nothing is more likely
 
 OF ENGLAND. 263 
 
 Hence, though good Men may not think 
 themfelves obliged to concur implicitly in the 
 runiultuary rcfolutions of aPeople 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 eflfential to add) all errors 
 concerning facts have been removed, fuch 
 perfeverance appears to me a very refpectablc 
 decifion ; and it is then, though only then, 
 that we may fafely fay, * the voice of the 
 " People is 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 Ad- 
 ministration ? It is, as has been faid above, 
 by means of the right they have of 
 electing their Reprefentatives ; and the fame 
 method of general intercourfe that has in- 
 formed them with regard to the objects of 
 their complaints, will likewife enable them 
 to apply the remedy to them. 
 
 Through this means they are acquainted 
 with the nature of the fubjects that have been 
 
 to deter the Magiftrates from taking a ftep of any kino*, 
 than the thought that it will give rife to a. Repreftntatiin. 
 
 s 4
 
 264 THE CONSTITUTION 
 
 deliberated upon in the Affembly of their 
 Reprefentatives ; 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 thofc 
 who would vote conftantly for the advance- 
 ment of pernicious 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 the greateft 
 part of thofe whom their fituation in life 
 renders fit to fill a place in that Houfe. 
 And availing themfelves of the fcveral va- 
 cancies that happen, and flill more of the 
 opportunity of a general election, they purify 
 either fucceflively, or at once, the Legislative 
 Affembly ; and thus, without any commo- 
 tion or danger to the State, they effect: a 
 material reformation in the views of the Go- 
 vernment, 
 
 I am aware that fome perfons will doubt 
 of thefc patriotic and fyftematic views, which 
 I attribute to the People of England, and will 
 object: to me the diforders that fomctimes 
 [WbpWJ at Elections, J3ut this reproach,
 
 OF ENGLAND. $6$ 
 
 which, by the way, comes with but little 
 propriety from Writers who would have the 
 People tranfact every thing in their own per- 
 fons, this reproach, I fay, though tr.ue to a 
 certain degree, is not however To much fo as 
 it is thought by certain pcrfons who have 
 taken only a fuperficial furvey of the ftatc 
 of things. 
 
 Without doubt, in a Conftitution in which 
 all important caules of uneafmefs 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 Hate of inactivity, to elect Reprefenta- 
 tives, they have not examined, beforehand, 
 the merits of thofe who alk them their votes ; 
 and the latter have not had, amidft the general 
 tranquility-, any opportunity to make them* 
 felves known to them. 
 
 The Elector, perfuaded, at the fame time, 
 that the perfon whom he will elect, will be 
 equally interested with himfelf in the fupport 
 of public liberty, does not enter into laborious 
 difquifitions, and from which he fees he may 
 exempt himfelf. Obliged, however, to give 
 the preference to fome body, he forms his 
 choice on motives which would not be exe- 
 cutable) if \t were not that fome motives are
 
 266 THE CONSTITUTION. 
 
 neceffary to make a choice, and that, at this 
 inftant, he is not influenced by any other : 
 and indeed it mull be confeffed, that, in the 
 ordinary courfe of things, and with Electors 
 of a certain rank in life, that Candidate 
 who gives the beft entertainment, has a 
 great chance to get the better of his com- 
 petitors. 
 
 But if the mcafures of Government, and 
 the reception of thofe meafures in Parliament, 
 by means of a-too complying Houfe of Com- 
 mons, mould ever be fuch as to fpread a 
 ferious alarm among the People, the fame 
 caufes which have concurred to eftablifh 
 public libevtv, would, no doubt, operate 
 again, and likewife concur in its fupport. A 
 general combination would then be formed, 
 both of thofe Members of Parliament who 
 have remained true to the public caufc, and 
 of perfons of every order among the Peo- 
 ple. Public meetings, in fuchcircumftanccs, 
 would be appointed, general fubferiptions 
 would be entered into, to fupport the ex- 
 pences, whatever they might be, of fuch 
 a neceiTary oppofition ; and all private and 
 unworthy purpofes being fupprefTed by the 
 fenfe of the National danger, the choice of 
 the electors would then be wholly determi-
 
 OF ENGLAND. 267 
 
 ned by the confidcration 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 impri- 
 fonments. Thus was it, that, under Charles 
 the Second, the People, when recovered from 
 that enthufiafm of affection with which they 
 received a King fo long perfecuted, at laft 
 returned to him no Parliaments but fuch as 
 were compofedof a majority of Men attached 
 to public liberty. Thus it was, that, perfe- 
 vering in a conduct which the circumftances 
 of the times rendered neceflary, the People 
 baffled the arts of the Government ; and 
 Charles diiTolved three fucceffive Parliaments, 
 without any other effect but that of having 
 thofe fame Men re-chofen, and fet again in 
 oppofition to him, of whom he hoped he 
 had rid himfelf for ever. 
 
 Nor was James the fecond happier in his 
 attempts than Charles had been. This Prince 
 foon experienced that his Parliament was 
 actuated by the fame fpirit as thofe which 
 had oppofed the defigns of his late brother; 
 and having fuffered himfelf to be led into 
 meafures of violence, inftead of being better 
 taught by the" difcovery he made of their
 
 i6S THE CONSTITUTION 
 
 fentiments, his feign was terminated by 
 that cataftrophe with which every one is ac- 
 quainted. 
 
 Indeed, if we combine the right enjoyed 
 by the People of England, of electing their 
 Reprefentatives, with the whole of the Eng- 
 lifh Government, we fhall become continually 
 more and more fenfible of the excellent effects 
 that may refult from that right. All Men 
 in the State are, as has been before obferved, 
 really interefted in the fupport of public li- 
 berty ; nothing but temporary motives, and 
 fuch as are peculiar to themfclves, can poffi- 
 bly induce the Members of any Houfe of 
 Commons to connive at meafures deftrudtive 
 of 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 fafely 
 be pronounced beforehand, that a Houfe of 
 Commons, compofed of a new fet of perfons, 
 will, from this circumftance alone, be in the 
 interefts of the People. 
 
 Hence, though the complaints of the Peo- 
 ple do not always meet with a fpeedy and im- 
 mediate redrefs (a celerity which would be 
 the fymptom of a fatal unftcadinefs in the 
 Conflitution, and would fooner or later bring
 
 OF ENGLAND. 2 fy 
 
 on its ruin) yet, when we attentively eonrt- 
 dcr the nature and the refources of this 
 Conftitution, we fhall not think it too bold 
 an affertion, to fay, that it is impoffible 
 but that complaints in which the People 
 perfevere, that is, to repeat it once more, 
 well-grounded complaints, will fooner or later 
 be redreiled. 
 
 CHAPTER XIV. 
 Right of Refijlancc. 
 
 BUT all thefe privileges of the People, 
 confidered in themfelves, are but feeble 
 defences againft the real ftrength of thofe who 
 govern. All thofe provifions, all thofe reci- 
 procal Rights, neceflarily fuppofe that things 
 remain in their legal and fettled courfe j 
 what would then be the refource of the Peo- 
 ple, if ever the Prince, fuddenly freeing him- 
 felf from all reftraint, and throwing himfelf 
 as it were out of the Conftitution, mould 
 no longer refpc& either the perfon or the 
 property of the fubjecl, and either mpuld 
 make no account of his conventions with hi*
 
 270 THE CONSTITUTION 
 
 Parliament, or attempt to force it implicitly to 
 fubmit to his will ? It would be refinance. 
 
 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 favou r of this 
 doctrine by the Laws of England, and that 
 reliftance is looked upon by them as the 
 ultimate and lawful refource againft the vio- 
 lences of Power. 
 
 It was refinance that gave birth to the great 
 Charter, that lafting foundation of Englifh Li- 
 berty; and the excefTcs of a Power eftablimed 
 by force, were alfo rcflrained by force, (a) 
 
 (a) Lord Lyttclton fays extremely well in his PerHan 
 Letters, " If the privileges of the People of England be 
 *' conceflions from the Crown, is not the power of the 
 " Crown itfelf, a conctflion from the People?" It might 
 be faid with equal truth, and lomewhat more in point 
 to the fubjefl of this Chapter, If the privileges of the 
 People were an incroachment on the power of Kings, the 
 power itfelf of Kings wa>, at firft, an incroachment (to 
 matter whether effecled by furpriie) on the natural liberty of 
 the People.
 
 OF ENGLAND. 271 
 
 It has been by the fame means that,' at diffe- 
 rent times, the People have procured the con- 
 firmation of it. Laftly, it has alfo been the 
 refinance to a King who made no account 
 of his own engagements, that has, in the 
 ifTue, placed on the Throne the family which 
 is now in poffeffion of it. 
 
 This is not all ; this refource which, till 
 then, .had only been an act of force, op- 
 pofed to other acls of force, was, at that 
 xra, recognized by the Law itfelf. Th* 
 Lords and Commons, folemnly afTembled, 
 declared that " King James the Second, ha- 
 " ving endeavoured to fubvert the Conftitu- 
 u tion of the Kingdom, by breaking the 
 " original contract between Kingand People, 
 ' and having violated the fundamental laws, 
 " and withdrawn himfelf, had abdicated the 
 *? Government ; and that the Throne was 
 " thereby vacant." (a) 
 
 And left thole principles to which the 
 Revolution thus gave a fanction, mould, in 
 procefs of time, become mere arcana of State, 
 exclufively appropriated, and only known, to 
 a certain clafs of Subjects, the fame Act we 
 have juft mentioned, expreily infured to iu- 
 
 (a) The Bill of Rights has (ince given a new fan&ica 
 t all thefe principles.
 
 *7* THE CONSTITUTION 
 
 dividuals the right of publicly preferring 
 complaints againfl the abufes of Govern- 
 ment, and moreover, of being provided with 
 arms for their own defence. Judge Black- 
 ftone cxprcfles himfelfinthe following terms, 
 in his Commentaries on the Laws of Eng- 
 land. (B. I. ch. i. p. 140.) 
 
 " And hftly, to vindicate thofe rights, 
 (c when actually violated or attacked, the 
 <e fubjects of England are entitled, in the 
 M firft place, to the regular administration 
 " and free courfe of juftice in the Courts 
 u of law ; next, to the right of petitioning 
 u the King and Parliament for rcdrefs of 
 " grievances ; and, laftly, to the right of 
 " having and ufing arms for felf-preferVation 
 " and defence." 
 
 Laftly, this right of oppofing violence, in 
 whatever fliape, and from whatever quar- 
 ter, it may come, is fo generally acknow- 
 ledged, that the Courts of law have fome- 
 times grounded their judgments upon it. I 
 fliall relate on this head a fact which is fonie- 
 what remarkable. 
 
 A Cpnftable, being out of his precinct, 
 arretted a woman whofe name was Anne De- 
 kins ; one Tody took her part, and in the 
 heat of the fray, killed the afMant of the
 
 OF ENGLAND. 
 
 Conftablc. Being profecuted for murder, he 
 alledgcd in his defence, that the illegality of 
 the imprifonment was a fumcient provocation 
 to make the homicide excufablc, and intitle 
 him to the benefit of his Clergy, The Jury 
 haying fettled the matter of facl, left the 
 criminality of it to be decided by the Judge, 
 by returning a fpecial verdifl. Th e caufc 
 was adjourned to the King's Bench, and 
 thence again to Serjeant's Inn, for the opinion 
 of the twelve Judges. Irlere follows the 
 opinion delivered by Chief Juftice Holt, in 
 giving judgment. 
 
 " If one be imprifoned upon an unlawful 
 " authority, it is a fumcient provocation 
 cf to all people, out of compamon, much 
 " more fo when it is done under colour of 
 {i juftice ; and when the liberty of the fub- 
 " ject is invaded, it is a provocation to -all 
 " the fubjecls of England. A Man ought 
 x< to' be concerned for Magna Charta and 
 " the laws ; and if any one againft law im- 
 " prifon a Man, he is an -offender againft 
 iC Magna Charta." ,After fome debate, oc- 
 casioned 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 was guilty of 
 
 t
 
 2 7 4 THE CONSTITUTION 
 
 Manslaughter, and he was admitted to the 
 benefit of* Clergy, (a) 
 
 But it is with refpect to this right of an ulti- 
 mate refiftairce, that the advantage of a fret 
 prefs appears in a moft confpicuous light. 
 As the moft important rights of the People, 
 without the profpect of a refiftance which 
 over-awes thofe who mould attempt to violate 
 them, are mere Shadows, fo this right of 
 reftjling, itfelf, is but vain, when there exifts 
 no means of effecting a'general union between 
 the different parts of the People. 
 
 Privateindividuals, unknown to each other, 
 are forced to bear in Silence thofe injuries in 
 which they do not fee other people take a 
 concern. Left to their own individual Strength, 
 they tremble before the formidable and ever- 
 ready power of thofe who govern; and as the 
 latter well know, nay, are apt to over-rate 
 the advantages of their own Situation, they 
 think 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 
 are communicated, the whole Nation forms, 
 
 (a) See Reports of Cafes aigued, debated, and adjudged, 
 in Banct Regin*, in the time of the late Queen Annej
 
 OF ENGLAND. 274 
 
 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 caufc 
 of all, and that to attack the lowed 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 a<ft 
 In their own perfons, it is impoffible 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 
 eftablifhed among them* You wifli 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; 1 
 you wifh an union, a coalition, which cannot 
 be obtained but by a flow and peaceable 
 procefs, forbear therefore continually to fhake 
 the vefTel. 
 
 Nay farther, it is a contradiction', that thd
 
 276 THE CONSTITUTION 
 
 Feoplc mould act, and at the fame time retain 
 any real power. Have they, for inftance, 
 been forced by the weight of public oppref- 
 fions to throw off the reftraints of the law, 
 from which they no longer received protec- 
 tion, they prelently find themfelvcs at once 
 become fubject to the command of a few 
 Leaders, who arc the more abfolute in pro- 
 portion as the nature of their power is lefs 
 clearly afcertained : nay, perhaps they muft 
 even fubmit to the toils of war, and to mili- 
 tary discipline. 
 
 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 fomc 
 party ; nor can this party be without a Head. 
 The Citizens thus grow divided among them- 
 iclves, and contract the pernicious habit of 
 fubmitting 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 as they 
 at fir ft governed their votes, make little ac- 
 count of a People, with one part of whom 
 they know how to curb the other. 
 
 But when the moving fp rings of Govern-
 
 OF ENGLAND. 2?7 
 
 mentareplaced 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 conflder things fpeculatively, and 
 are, if I may be allowed the expreflion, only 
 fpectators of the game, they acquire juft 
 notions of things ; and as thefe notions, a- 
 midft the general quiet, get ground and 
 fpread themfelves far and wide, they at 
 length entertain, on the fubject of their liber- 
 ty, but one opinion. 
 
 Forming thus, as it were, one body, the 
 People, at every inftant, has it in its power 
 to flrike the decifive blow which is to level 
 every thing. Like thofe mechanical powers 
 the greatefl efficiency of which exifts at the 
 inftant which precedes their entering into 
 action, it has an immenfe force, juflbecaufe 
 it does not yet exert any ; and in this ftate 
 of ftillnefs, but of attention, confifts its true 
 momentum. 
 
 With regard to thofe who (whether from 
 per'fonal privileges, or by virtue of a com- 
 million from the People) are intruded with 
 the active part of Government, as they, in 
 the mean while, fee themfelves expofed to pu- 
 blic view, and obferved as from a diftance by 
 
 T 3
 
 i 7 8 THE CONSTITUTION 
 
 Men free from the fpirit of party, and who 
 place in them but a conditional truft, they 
 are afraid of exciting a commotion which, 
 though it would not be the deftruction of all 
 power, yet would furely and immediately 
 be the deftruction of their own. And if we 
 might fuppofe that, through an extraordinary 
 conjunction of circumftances, they fhould re- 
 folvc* among themfelves upon the facrifice 
 of the laws on which public liberty is 
 founded, they would no fooner lift up their 
 eyes towards that extenfive Aflembly which 
 views them with a watchful attention, than 
 they would find their public virtue return up- 
 on them, and would make hafte to refume 
 that plan of conduct out of the limits of 
 which they can expect nothing but ruin and 
 perdition. 
 
 In fhort, as the body of the People cannot 
 act: without either fubjecting themfelves to 
 fomc Power, or effecting a general deduc- 
 tion, the only fhare they can have in a Go- 
 vernment with advantage to themfelves, is 
 not to interfere, but to influence; to be able 
 to act, and not to act. 
 
 The power of the People is not when they 
 ftrike, but when they keep in awe : it is 
 when they can overthrow every thing, that
 
 OF ENGLAND. 27* 
 
 they never need to move ; and Manlius in- 
 cluded all in four words, when he faid to the 
 People of Rome, Oftcndite bellum, pacem 
 babebitis* 
 
 Mi 
 
 CHAP. XIV. 
 
 Proofs, drawn from Fafis, of the truth of the 
 Principles kid down in the prefent PVorh-~ 
 1. fhe peculiar Manner in which Revolu- 
 tions have always been concluded in w- 
 land, 
 
 IT may not be fufficient to have proved , 
 by arguments the advantages of the Eng- 
 lifh Conftitution : it will perhaps be afked, 
 whether the effects correfpond to the theory > 
 To this queftion (which I confefs is ex- 
 tremely proper) my anfwer is ready ; it is the 
 fame which was once made, I believe, by a 
 Lacedemonian, Come and fee. 
 
 If we perufe the Englifh Hiftory, we mail 
 be particularly ftruck with one circumftance 
 to be obferved in it, and which diftinguifhes 
 moft advantagcoufly the Englifh Government 
 from all other free governments; I mean the 
 
 T 4
 
 *So THE CONSTITUTf&N 
 
 manner in which Revolutions and public 
 commotions have always been terminated in 
 England. 
 
 If we read with fome attention thcHiftory 
 of other free States, we fhall fee that the pu- 
 blic difTenfions that have taken place in them," 
 have conftantly been terminated by fettlements 
 in which the interqfts only of a Jeiv were 
 really provided for ; while the grievances of 
 the many were hardly, if at all, attended to. 
 In England the very reverfehas happened, and 
 we find Revolutions always to have been ter- 
 minated by extenfive and accurate provifions 
 tor fecuring the general liberty. 
 
 The Hiftory of the ancient Grecian Com* 
 monwcalths, but above all of the Roman 
 Republic, of which more compleat accounts 
 have been left us, afford ftriking proof of the 
 former part of this obfervation, 
 
 What was, for inftance, the confequence 
 of that great Revolution by which the Kings 
 vrere driven from Rome, and in which the 
 Senate and Patricians acted as the advifers 
 and leaders of the People ? The confeqi ence 
 was, we find in Dionyfius of Halicarnaftus, 
 and Livy, that the Senators immediately 
 afiumed all thofe powers, lately fo much 
 Complained of by themfclves, which the Kings
 
 OF ENGLAND. ,g r 
 
 had cxercifed. The execution of their future 
 decrees was entrufted to two Magi Urates taken 
 from their own body, and entirely dependant 
 on them, whom theycalled Confuh, and who 
 were made to bear about them all theenfigns 
 of power which had formerly attended the 
 Kings. Only, care was taken that the axes 
 and fafces, the fymbols of the power of life and 
 death over the Citizens, which the Senate 
 then 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 thofe Men who had the moft 
 intereft at that time among the People, and 
 admitted them as Members into their own 
 Body ; (b) which indeed was a precaution they 
 could not prudently avoid taking. But the 
 interelts of the great Men in the Republic 
 being thus fettled, the Revolution ended. 
 The new Senators as well as the old, took care 
 not to leffen, by making provisions for the 
 
 (a) " Omnia jura (Rigum) omnia iufignia, primi Confides 
 tenuere ; id modd cautum eft ne fi ambo fafces haberent, 
 duplicatus terror videretur. Tit. Li<v L. ii. . i. 
 
 (b) Thefe new Senators were called conjeripti : hence the 
 name of Patres Ctnfcripti, afterwards indiiciiminately ^ivtfl 
 te the whole Senate. Tit> Uv. ibid,
 
 aH THE CONSTITUTION 
 
 liberty of the People, a power which was now 
 become their own. Nay, they prefently 
 flrctched this power beyond its former tone ; 
 and the punifhments which theConful inflict- 
 ed in a military manner on a number of thofc 
 who ftill adhered to the former mode of Go- 
 vernment, and even upon his own children, 
 taught the People what they had to expeclfor 
 the future, if th.y prcfumed to oppofe the 
 power of thofe whom they had thus unwarily 
 made their Mailers. 
 
 Among the oppreffivc laws, or ufages, which 
 the Senate, after the expulfion of the Kings, 
 had permitted to continue, thofe which were 
 moft complained of by the People, were thofc 
 by which the Citizens who could not pay 
 their debts with the intereft, (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 ex- 
 crcifed by Creditors on thofe unfortunate 
 Men, whom the private calamities caufed by 
 the frequent wars in which Rome was enga- 
 ged, rendered very numerous, at laft roufed the 
 body of the People : they abandoned both the 
 City, and their inhuman fellow Citizens, and
 
 OF ENGLAND. 8 3 
 
 retreated to the other fidof the River Anio. 
 
 But this fecond 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, 
 was^for the future to protect the Citizens; and 
 they were inverted with a certain number of 
 prerogatives for that purpofe. This Inftitu- 
 tion, it muft however be confeffed, would 
 have, in the iflue, proved very beneficial to 
 the People, at leaft for a long courfe of time, 
 if certain precautions had been taken with 
 refpect to it, which would have much lcfTened 
 the future perfonal importance of the new 
 Tribunes: (a) but thefe precautions the latter 
 did not think proper to fuggeft; 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, () ' 
 
 As the Senate and Patricians, in the early 
 ages of theCommonwealth,kept clofely united 
 together, the Tribunes, for all their perfonal 
 
 ( a) Their number ought to have been much greater ; and 
 
 they never ought to have accepted the power left to each ofthem! 
 
 of flopping by this (ingle opposition the proceedings of allthe reft, 
 
 (a) A number of feditions were afterwards railed upon the 
 
 fame account.
 
 *8 4 THE CONSTITUTION 
 
 privileges, were not able, however, during the 
 firft times after their creation, to gain an ad- 
 mittance cither to the Confulfhip, or into the 
 Senate, and thereby to feparate their condition 
 any farther from that of the People. This 
 fituation of theirs, in which it was to be wiftied 
 they might always have been kept, produc- 
 ed at firft excellent effects, and caufed their 
 conduct to anfwer in a great meafure the ex- 
 pectations of the People. The Tribunes 
 complained loudly of the exorbitancy of the 
 powers pofTeflfed by the Senate and Confuls ; 
 and here we muft obferve that the power ex- 
 crcifed by the latter over the lives of the Citi- 
 zens, had never been yet fubjected, (which 
 will probably furprife the Reader) to any 
 known laws, though fixty years had already 
 elapfed fince the expulfionof the Kings. The 
 Tribunes therefore infilled, that laws mould 
 be made in that refpect, which the Confuls 
 fhould thenceforwaidsbe bound to follow; and 
 that they fhould no longer be left, in the exer- 
 cife of their power over the lives of the Citi- 
 zens, to their own caprice andwantonncfs.(a) 
 
 () ** Qoi Popuius in fe jus dederir, co Confulem ufu- 
 " turn ; non ipfos libiclinem ac Iicentiam fuam pro lege h*- 
 V bituros." Tit. Liv, L. iii. . 9.
 
 OF ENGLAND. t lj 
 
 Equitable as thefe demands were, the Senate 
 and Patricians ppofed them with great 
 warmth, and either by naming Dictators, or 
 calling in the afliftancc of the Priefts, or by 
 other means, they defeated for nine years to- 
 gether, all the endeavours of the Tribunes. 
 However, as the latter were at that time in ear- 
 ner!, the Senate was at laft obliged to comply; 
 and the Lex lertntilla was pafTed, by which 
 it was enacted that a general Code of Laws 
 mould be made. 
 
 Thefe beginnings feemed to promife great 
 fuccefs to the caufe of the People ; but unfor- 
 tunately for them, the Senate found means to 
 have it agreed, that theofficeof Tribune mould 
 be fet afideduring the whole time thattheCode 
 ihould be framing; they moreover obtained, 
 that the ten Men, called Decemvirs, to whom 
 the charge of compoling that Code was to be 
 given, Ihould be taken from the body of the 
 Patricians: the fame caufes, therefore, pro- 
 duced again the fame effects, and the power of 
 theSenate andConfulswas left in the newCode, 
 or laws of the twelve Tables, as undefined as 
 before. As to the laws abovementioned, con- 
 cerning debtors, which never had ceafed to be 
 bitterly complained of by thePeople, and with 
 regard to which fomefatisf action ought in com-
 
 iU THE CONSTITUTION* 
 
 mon 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 trufted the framing of the new laws to a 
 new kind of Magiftratcs, called Decemvirs* 
 was that, by fufpending the ancient office of 
 Conful, they might have a pretence for fuf- 
 pending alfo the office of Tribune, and there- 
 by rid themfelves of the People, during the 
 time that the important bufincfs of framing the 
 Code mould be carrying on : they even, in or- 
 der the better to fecure that point, placed the 
 whole power in the Republic, in the hands of 
 thefe new Magiftrates. But theSenate and Pa- 
 tricians experienced then, in their turn, the 
 dangerof entruftingMen with an uncontrouled 
 authority* As they themfelves had formerly 
 betrayed the truft which the People had placed 
 in them, fo did the Decemvirs, on this occa- 
 iion, 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 well as the 
 Plebeians. Both parties therefore unitedjagainft 
 them, and the Decemvirs were expelled from 
 the City*
 
 OF ENGLAND. f 8? 
 
 The former dignities of the Republic were 
 rcftored, and with them the office of Tribune. 
 Thofe from among the People who had been 
 moft inftrumental in deftroying the power of 
 the Decemvirs, were, as it was natural, raifed 
 to the Tribuneffiip ; and they entered upon 
 their offices poffefled of a prodigious degree of 
 popularity. The Senate and the Patricians 
 were, at the fame time, funk extremely low 
 in confequence of the long tyranny which had 
 juft expired; and thofe two circumftances unit- 
 ed, afforded the Tribunes but too eafy an op- 
 portunity of making the prefent Revolution 
 end as the former ones had done, and con- 
 Verting it to the advancement of their owa 
 power. They got new perfonal privileges to 
 be added to thofe which they already pofTef- 
 fed, and moreover procured a law to Jae enact- 
 ed, by which it was ordained, that the refolu- 
 tions taken by the (SomitiaTributa (an AfTem* 
 bly in which the Tribunes were admitted to 
 propofe new laws) fhould be binding upon 
 the whole Commonwealth : by which they 
 at once raifed to themfelves an imperium in im- 
 perio, and acquired, as Livy expreffes it, a 
 moft active weapon, (a) 
 
 (a) Acerrlmum telum*
 
 48$ THE CONSTITUTION 
 
 From that time great commotions arofe it! 
 the Republic, which, like all thofe before 
 them, ended in promoting the power of a. few. 
 Propofals for eafing 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 thcfe 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 afatal,though 
 fomewhat remote tendency to public liberty. 
 Their real aims were at the Confulfhip, at 
 the Priefthood, and other offices of Executive 
 power, which they were intended to controul, 
 and not to mare. To thcie views they con- 
 tinually made the caufe of the People fub- 
 fervient: I mall relateamongotherinftances, 
 the manner in which they procured to them- 
 felves an admittance to the office of Conful. 
 
 Having during feveral years, feized every 
 opportunity of making fpeeches to the Peo- 
 ple on that fubjedt, and even excited feditions 
 in order to overcome the oppofition of the 
 Senate, they at laft availed thcmfelves of the
 
 OF ENGLAND. 289 
 
 icircumfipnce of an interregnum (a time, du* 
 ling which there were no other Magiftrates 
 in the Repub'ic befides themfelves) and pro- 
 pofed to the Tribes, whom they had afTem* 
 bled, to enatt the three following laws : 
 the firft for fettling the rate of intereft of 
 money ; the fecond for ordaining that no 
 Citizen mould be poffefled 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 evidently appeared, 
 fays Livyj which of the laws in agitation were 
 moft agreeable to the People, and which, to 
 thofe who propofed them ; for the Tribes ac- 
 cepted the law* concerning the intereft of 
 money, and the lands ; but as to that con- 
 cerning the Plebeian Confulfhip, they rejected 
 it : and both the former articles would from 
 that moment have been fettled, if the Tri- 
 bunes had not declared, that the Tribes Were 
 called either to accept, or reject, all their three 
 propofals at once, {a) Great commotions en- 
 
 (a) *' Ab Tribunis, velut per interregnum, concilia 
 '* Plebtishabito, apparuit quae ex proroulgatis Plebi, quse 
 ""JaftWiVbs, gratiora eFent ; nam de fcenore atque agro 
 " rogationes jubebaot, deplebeioConfula'uantiquabanr-; 
 -*' Si pcrfefla utraque res elTer, ni Tribuni ie in omnia, 
 
 u
 
 i 9 o THE CONSTITUTION 
 
 fuecl thereupon, for a whole year ; but at laic 
 the Tribunes, by their perfeverance in infill- 
 ing that the Tribes fhould vote on their three 
 yoga! ions, jointly, obtained their ends, and 
 overcame both the opposition 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 tire Republic. But when all their views 
 of that kind were accomplished, the Republic 
 did not for all this enjoy more quiet, nor 
 was the intereft of the People better attended 
 to than before. New ftrugglcs then arofe for 
 aClual admifliion to thofe places ; for procu- 
 ring them to relations, or friends ; for govern- 
 ments of provinces, and commands of armies. 
 A few Tribunes, indeed, did at times apply 
 themfelves ferioufly, out of real virtue and 
 love of their duty, to remedy the grievances of 
 the People; but both their fellow Tribunes, as 
 we may fee in Hiflory, and the whole body 
 of thofe Men upon whom the People had, at 
 different times, bellowed Confulmips, iEdile- 
 {hips, Cenforiliips, and other dignities without 
 number, united together with the utmoft ve- 
 
 fitnul confulere Pletem dlxiflcnt." Tit. Liv. L. vi. 
 39-
 
 OF ENGLAND. 291 
 
 hemence againft them; and the real Patriots, 
 fuch as Tiberius Gracchus, Caius Gracchus, 
 and Fulvius, conftantly perifhed in the at- 
 tempt. 
 
 I have been fomevvhat explicit on the effects 
 produced by the different Revolutions that 
 have happened in the Roman Republic, be- 
 caufe its Hiftory is much known to us, and 
 we have, either inDionyiius of Halicarnaffus, 
 or Livy, confiderable monuments of the more 
 ancient part of it. But the Hiftory of the 
 Grecian Commonwealths would alfo have 
 fupplied us with a number of facts to the 
 fame purpofe. The Revolution, for inftance, 
 by which the Pifijlratidx were driven out of 
 Athens that by which the Four hundred, and 
 afterwards the Thirty, were eftabliilied, as 
 well as that by which the latter were in their 
 turn expelled, all ended in fecuring the power 
 
 of a few. The Republic of Syracufe, that 
 
 of Corcyra, of which Thncydides has left 
 us a pretty full account, and that of Flo- 
 rence, of which Machiavel has written the 
 Hiftory, alfo prefents 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 by thofe who acted as their 
 
 U 2
 
 2 9 z THE CONSTITUTION 
 
 defenders, were, in the iffue, moft carelefsly 
 attended to, or even totally difregarded.(rt) 
 
 But if we turn our eyes towards the Eng- 
 lifh Hilior)', fcenes of a quite different kind 
 will offer themfelves to our view; and we 
 fliall find, on the con'rary, that Revolutions 
 in England have always been terrri "mated by 
 making fuch provifions, and only fuch, as all 
 orders of the People were really and indis- 
 criminately to enjoy. 
 
 Moft extraordinary facts, thefe! and which, 
 from ail the other circum fiances that accom- 
 panied them, we fee, all along, to have been 
 owing to the impoffibilitv (a point that has 
 been fo much infifled upon in former Chap- 
 ters) in which thole who poffeffed the confi- 
 dence of the People, were, of transferring to 
 themfelves any branch of the Executive au- 
 thority, and thus feparating their own condi- 
 tion from that of the reft of the People. 
 
 Without mentioning the compacts which 
 
 (a) Th: Revolutions which have formerly happened 
 in France, have all ended like thofe above mentioned: 
 of this a remarkable intfance may be (cen in the note(<) 
 p. 29, 30. of this Work. The fame things are alfo to 
 be obferved in rhe~Hi!lory of Spain, Denmark, Sweden 
 Scotland, &". but I have avoided mentioning States of 
 a Monarchical form, till fome obfervitions are made, 
 wlrkh the Reader will find in the XVJJth Chapter.
 
 OF ENGLAND. i 9J 
 
 were made with the firfl: Kings of the Nor- 
 man line, let us only caft our eyes on Magna 
 Cbarta, which is (till the foundation of Enp> 
 lifh liberty. A number of circumftanccs, 
 which have been defcribed in the former part 
 of this work, concurred at that time to 
 ftrengthen the Regal power to fuch a degree, 
 that no Men in the Mate could entertain a 
 hope of fucceeding in any other view than 
 that pf 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 provifions made by that 
 Great Charter ! All the objects for which 
 Men naturally wifh to live in a ftate of So- 
 ciety, were fettled in its thirty-eight Articles. 
 The judicial authority was regulated. The 
 perfon and property of the indivdual were 
 fecured. The fafety of the Merchant and 
 ftrangcr was provided for. The higher clafs 
 of Citizens gave up a number of opprefiive 
 privileges which they had long fince accus- 
 tomed themfelves to look upon as their un- 
 doubted rights. {a) Nay, the implements 
 
 {a) All poffeflbrs of lands took the engagement to 
 efiablifh in behalf of their Tenauts and Vaffals (erga 
 fuos) the fame liberties which they demanded from the 
 ltfng,~Mag> Char. Cap. xxxviii. 
 
 U 3
 
 *94 THE CONSTITUTION 
 
 of tillage of the Bondman, or Slave, were alfo 
 fecured to him ; and for the firft time per- 
 haps in the annals of the World, a civil war 
 was terminated by making ftipulations in fa- 
 vour of thofe unfortunate men to whom the 
 avarice and lull of dominion inherent in hu- 
 man Nature, continued, over the greateft part 
 of the Earth, to deny the common rights of 
 Mankind. 
 
 Under Henry the Third great disturbances 
 arcfc; and they were all terminated by folemn 
 confirmations given to the Great Charter. 
 Under Edward I. Edward II. Edward III. and 
 Richard II. thofe who were intrufted with the 
 care of the intereils of the People, loft no 
 opportunity 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 ccafed 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 Act of Sett'e- 
 ment, provifions which the Reader may ice in
 
 OF ENGLAND. 295 
 
 the fecond Volume of the Parliamentary Hijiory 
 of England. Struck with the wifdom of the 
 conditions demanded by the Commons, the 
 Authors of the Book juft mentioned, obferve, 
 perhaps with fome 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 AfTembly in which every 
 one could propofe what matters he pleafed, 
 and freely difcufs them: they had no poffi- 
 bility left of converting, either thtfe 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 ftipulate ufeful 
 conditions with that Power by which they 
 faw themfelves at every inftant expofed to 
 be diflblved and difperfed, and induftrioufly 
 applied themfelves to infure the fafety of the 
 whole People, as it was the oply means they 
 had of procurng their own. 
 
 In the long contentions which took place 
 between the Houfesof York and Lancafter, 
 the Commons remained fpectators 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 
 
 U 4
 
 296 THE CONSTITUTION 
 
 whether under Edward rhe Fourth, under 
 Richard the Third, or Henry the Seventh, by 
 whom ths-.fe quarrels were terminated, they 
 continually availed themfelves of the import- 
 ance of the fervices which they were able to 
 perform to the new elfablimed Sovereign, for 
 obtaining effectual conditions in favour of the 
 whole body of the People, 
 
 At the acceflion of James the Firir, 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 acceflion of Charles the Firft, 
 difcontents of a very ferious nature began to 
 take place, and they were terminated in the 
 firft inftance, by the Act: called the Petition of 
 Right, which is ftill looked upon as a mofr. 
 precile and accurate delineation of the rights 
 of the People.(rt) 
 
 (a) The difarders which took place in the latter part 
 of the reign of that Prince, are indeed, a compleat con- 
 tradiction of the aftvrtion which is the fubjecl of the pre- 
 sent Chapter; but they, at the fame time, areaaolefj 
 convincing confirmation of the truth of the principles laid 
 down in the courfe of this Work. The above-mentioned 
 difo#ders took rife from that day in which Charles the Firft 
 gave up the power of diflblving hi? Parliament j that i
 
 OF ENGLAND. 297 
 
 At the Reftoration of Charles the Second, 
 the Constitution being re-eftablifhed upon its 
 former principles, the former confequences 
 produced by it, began again to take place ; 
 and we fee at that rera, and indeeed during 
 the whole courfe of that Reign, a continued 
 feries of precautions taken for fecuring the 
 general liberty. 
 
 Laftly, the great event which took place 
 in the year 1689, affords a ftriking confirm- 
 ation of the truth of the obfervation made 
 in this Chapter. At this sera the political 
 wonder again appeared of a Revolution ter- 
 minated by a feries of public Acts, in which 
 no interefts but thofe of the People at large 
 were confidered and provided for j no elaufe, 
 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- 
 clufion. Indeed, if any thing is capable of 
 conveying to us an adequate idea of the 
 foundnefs, as well as peculiarity, of the 
 principles on which the Englifh Government 
 
 
 from the day in which the Members of that Affembly ac-. 
 quired an independent, perfonal, lafting authority, which 
 they foon began to turn againft the People who had 
 whi them 10 it,
 
 29* THE CONSTITUTION 
 
 is founded, it is the .attentive pcrufal of the 
 Syftem of public Compacts to which the 
 Revolution of the year 1689 g ave *&> of 
 the Bill of Rights with all its different 
 claufes, and the feveral Acts which under 
 two fubfequent Reigns, till the acceffion of 
 the Houfe of Hanover, were made in order 
 to ftrengthen it. 
 
 CHAPTER XVI. 
 
 Second Difference. The Manner after which 
 the Laws for the Liberty of the Subjecl are 
 executed in England. 
 
 THE fecond difference which I fpoke 
 of, between the Englifh Government, 
 and that of other free States, concerns the 
 important object of the execution of the 
 Laws. On this article, alfo, we fhall find 
 the advantage to lie on the fide of the Eng- 
 lilh Government ; and if we make a com- 
 panion between the Hiftory of thofe States, 
 and that of England, it will lead us to the
 
 OF ENGLAND. 299 
 
 following obfcrvation, viz. That, though 
 in other free States the laws concerning the 
 liberty of the Citizens were imperfect, yet, 
 the execution of them was ft ill more defec- 
 tive. In England, on the contrary, the 
 laws for the fecurity of the Subject, are not 
 only very extenfive in their provifions, but 
 the manner in which they are executed, car- 
 ries thefe advantages ftill farther ; and Eng- 
 lifh Subjects enjoy no lefs liberty from the 
 fpirit both of juftice and mildnefs, by which 
 all branches of the Government are influ- 
 enced, than from the accuracy of the laws 
 themfelves. 
 
 The Roman Commonwealth will here 
 again fupply us with examples to prove the 
 former part of the above aflfertion. When I 
 faid, 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 degree, or when 
 their concurrence was neceflary to carry 
 into effect certain relblutions, or meafures, 
 that were particularly interefting to the Men 
 in power, the latter could not, with any 
 prudence, openly profefs a contempt for the
 
 300 THE CONSTITUTION 
 
 political wifhcs of the People; and fome 
 declarations exprefTed in general words, in 
 favour of public liberty, were indeed added 
 to the laws that were enafted on thofe occa- 
 fions. But thefe declarations, and the prin- 
 ciples which they tended to eftablifh, were 
 afterwards even openly diiregarded in prac- 
 tice. 
 
 Thus, when the People were made to vote, 
 about a year after the expulfion of the Kings, 
 that the Regal Government never fhould be 
 again eftablilhed in Rome, and that thofe 
 who mould, endeavour to re (lore it, fnould 
 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 Kings, of appealing to the People 
 from the lentences of death paffed upon 
 them. No punifhment (which will furprife 
 the Reader) was decreed againft thofe who 
 fhould violate this law; and indeed the Con- 
 fute, as we may fee in Dionyfius of Hali- 
 carnaffus and Livy, concerned themfelves 
 but litrle about the appeals of the Citizens, 
 and in the more than military exercife of 
 their functions, fported with rights which 
 they ought to have refpe&ed, however inrw 
 perfectly and loofely they had been fecured.
 
 OF ENGLAND. 301 
 
 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 fliall, 
 among many instances, relate one which will 
 fhew upon what flight grounds the Citizens 
 were expofed to have their lives taken away. 
 Spurius Melius being accufed of endea- 
 vouring to make himfelf King, was fum- 
 moned by the Mafler of the Horfe, 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 expulfion cf the Decemvirs, a law was alfo 
 enacted that no Magiftrate fhould be created from whom 
 an appeal could not be made to the People (MagiJIratus 
 fine provocatione. Tit. Liv. L. III. 55.) by which the 
 People meant to abolifh the D'dt.-itorfhip: but, from the 
 fal which will juft now be related, and which happened 
 about ten years afterwards, we fee that thii law was not 
 better obferved thwth; oth'is had been.
 
 302 THE CONSTITUTION 
 
 having thereupon exprefTed a great indigna- 
 tion, 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 befoie the Dic- 
 tator, when fummoned to do fo by the Matter 
 of the Horfe.(tf) 
 
 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 : and we not only find it frequently 
 violated by the different Magiftrates of the 
 Republic; but the Senate alfo, notwith- 
 ftanding this law, at times made formidable 
 examples of the Citizens. Of this we have 
 an initance 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 againft fo fevere an 
 
 (a) " Tumuhmntem deinde multitudinem, incerta 
 exiflimatione fafli, ad concionem vocari juflit, & M<r- 
 Uum jure c/tfum pronunciavjt, ttiamfi rtgni crimine infant 
 futrit t qui <vocatas a Magijlro tquitxm, ad Dictator im 
 nan vtn>JJit. u Tit. Li v. L. iv. f i :.
 
 OF ENGLAND. 303 
 
 rxertion of public juftice on Roman Citizens; 
 the Senate, fays Valerius Maximus, never- 
 thelefs perfifted in its refolution. (a) 
 
 All thefe laws for fecuring the lives of the 
 Citizens, had hitherto been enacled without 
 any mention being made of a punilhment 
 againft thofe who fhould violate them. At 
 laft the celebrated Lex Portia was paiTed, 
 which fubjedted to banifhment thofe who 
 fhould caufe a Roman Citizen to be fcourged 
 and put to death. From a number of inftan- 
 ces pofterior to this law, we fee that it was 
 not better obferved than thofe before it had 
 been : Caius Gracchus, therefore, caufed the 
 Lex Sempronia to be enacled, by which a 
 new fanction was given to it. But this fecond 
 law did not fecure his own life, and that of hi& 
 friends, better than the Lex Portia had done 
 that of his brother, and thofe who had fup- 
 
 (a) Val. Max. L. II. C. 7. The Author does not 
 mention the precife number of thofe who were put to 
 death on this occifton; he only fays that they were exe- 
 cuted fifty at a time, in different fucceffive days; but other 
 Authors make the number of them amount to four thou- 
 fand. Livy fpeaks of an whole Legion. Lrgio Campana 
 CK*: Rbegium occupwverat, obfefl'a, deditione faSld fecuri 
 percujfa eft. Tit. Liv. L.'xv.Epir I have here fol- 
 lowed Pclybius, who fays thst only three hundred were 
 taken and b.ough; to Rome.
 
 304 THE CONSTITUTION 
 
 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 laws to cure. I fhall here 
 mention a fact which affords a remarkable 
 inftance of the wantonnefs with which the 
 Roman Magiftrates had accuftomed them- 
 ie Ives to take away the lives of the Citizens, 
 A Citizen, named Memmius, having put 
 up for the Confulihip, and publickly can- 
 Vafllng 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 Tribune even carried his in- 
 folence fo far, as Cicero informs us, as to 
 give to this act of cruelty, tranfacted in the 
 prefence of the whole People affembled, the 
 outward form of a lawful act of public Juf- 
 tice. (a) 
 
 (a) The fatal forms of words (truriatuscarmina) ufcd 
 by the Reman Mzgiftrates, when they ordered a Man to 
 be put to d ath, refounded (fays Tully in his fpeech/r 
 Rabirio)\n the Afiembly of the People, in which the 
 Cenfors had forbidden the corr.mon Executioner ever to 
 appear. I Lifior colhgamanus. Caput obnul it t>. Arboreta* 
 ftliti fufpeiuiitc. Memmius being a confiderable Citi- 
 zen, as we may conclude from his canvafiing with fuc-
 
 OF ENGLAND. 305 
 
 Nor were the Roman Magiflrates fatisfied 
 with committing acts of injultice in their 
 political capacity, and for the fupport of the 
 power of that Body of which they made a 
 part. Avarice and private rapine were at 
 lafl added to political ambition. The Pro- 
 vinces were firfl opprefled 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 
 enacted to put a Hop to it. By this law, 
 an action was given to the Citizens and Allies 
 for the recovery of the money extorted from 
 them by Magiflrates, or Men in power; 
 and the Lex Junta afterwards added the pe- 
 nalty of banifhment, to the obligation of 
 making reflitution. 
 
 But here another kind of diforder arofe. 
 The Judges proved as corrupt, as the Ma- 
 giflrates had been oppreffive. They equally 
 betrayed, in their own province, the caufe of 
 the Republic with which they had been in- 
 
 cefs for the Confullhip, all the great men in the Repub- 
 lic took the alarm at the atrocious aftion of the Tribune : 
 the Senate, the next day, iflued out its folemn mandate 
 to the Confuls, to provide that the Republic jbould receive 
 no detriment j and the Tribune was killed in a pitched 
 batttle that was fought at the foot of the Capitole. 
 
 X
 
 jo6 THE CONSTITUTION 
 
 trufted ; and rather chofe to fhare in the plun- 
 der of the Confute, the Praetors, and the 
 Proconfuls, than put the laws in force againft 
 them. N 
 
 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 compo- 
 fing their Affemblies. But the malady lay 
 too deep for common legal provifions to re- 
 medy. The guilty Judges employed the 
 fame refources in order to avoid conviction, 
 that the guilty Magistrates had done ; and 
 thofe changes at which we are amazed, 
 which were made in the conftitution of the 
 judiciary Bodies,() inftead of obviating the 
 
 (a) The Judges, (over the Aflembly of whom the 
 Praetor ufually prefided) were taken from the body of the 
 Senate, till fome years after the lad Punic War; when 
 the Lex Sempronia, propofed by Ciius S. Gracchus, en- 
 a3ed that they fhould in future be taken from th< 
 Equeflrian Order. The Conful Cspio procured after- 
 wards a law to be enabled, by which the Judges were to 
 be taken from both orders, equally. The Lex Servilim 
 foon after put the Equeflrian Order, aga : n in poffeffion of 
 the Judgments ; and the Lex Livid rellorcd themintirely 
 to the Senate. The Lex Plavtia ena&ed afterwards, 
 that the Judges fhould be taken from the three Orders 
 the Senacoriaa, Equeflrian, and Plebeian* The Lex
 
 OF ENGLAND. 307 
 
 corruption 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 Grac- 
 chi, that no Man who had money to give, 
 could be brought to puniihment.(^) Cicero 
 fays, that in his time, the fame opinion was 
 become fettled and univerfally received -, (b*) 
 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 laft took place. The horrid vexations, 
 and afterwards the acquittal, of Aquillius, 
 Proconful of Syria, and of fome others who 
 had been guilty of the fame crimes, drove 
 the Provinces of Afia to defperation : and it 
 was then, that that terrible war of Mithri- 
 
 Cornelia, framed by the Di&ator Sylla, enafted again 
 that the Judges mould be intirely taken from the body 
 of the Senate. The Lex Jurtlia ordered anew, that they 
 fhould be.taken'from the three Orders. Pompey made 
 afterwards a change in their number, which he fixed at 
 feventy five, and in the manner of ele&ipgthem. And 
 laftly, Caefar intirely reflored the Judgments to the Or- 
 der of the Senate. 
 
 (*) A pp. de Belli Civ. (h) Aft. in Verr. I. i . 
 
 X 2
 
 308 THE CONSTITUTION 
 
 dates arofe, which was ufhered in by the 
 death of eighty thoufand Romans, maflacred 
 in one day, in all the Cities of Afia.(^) 
 
 The Laws and public Judgments not only 
 thus failed of the end for which they had 
 been eftablifhed : they even became, at laft, 
 new means of oppreffion added to thofe 
 which already exifted. Citizens pofiefled of 
 wealth, perfons obnoxious to particular Bo- 
 dies, or the few Magiftrates who attempted 
 to item the torrent of the general corruption, 
 were accufed and condemned ; while Pifo, 
 of whom Cicero, in his fpeech againft him, 
 relates things which make the Reader fhud- 
 der wich horror, and Verres, who had been 
 guilty of enormities of the fame kind, ef- 
 caped unpunimed. 
 
 Hence a war arofe (till 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 Social war, a very exprefiive 
 account both of the unfortunate condition of 
 
 (a) Appian.
 
 OF ENGLAND. 309 
 
 the Republic, and of the perverfion that had 
 been made of the methods taken to remedy 
 
 it. " An hundred and ten years are not 
 
 yet elapfed (fays he) fince the law for the 
 recovery of money extorted by Magiftrates 
 was firft propounded by the Tribune Cal- 
 purnius Pifo. A number of other laws to 
 the fame effect, continually more and more 
 fevere, have followed : but fo many per- 
 fons have been accufed, fo many condemned, 
 fo formidable a war has been excited in 
 Italy by the terror of the public Judgments, 
 and when the laws and Judgments have 
 been fufpended, fuch an opprefilon and plun- 
 der of our Allies has prevailed, that we may 
 truly fay, that it is not by our own ftrength, 
 but by the weaknefs of others, that we con- 
 tinue to exift."(#) 
 
 I have entered into thefe particulars with 
 regard to the Roman Commonwealth, be- 
 caufe the facts on which they are grounded, 
 are remarkable of themfelves, and yet no 
 juft conclufion could be drawn from them, 
 unlefs a feries of them were prefented to 
 the Reader. Nor are we to account for 
 thefe facts, by the luxury which prevailed 
 in the latter ages of the Republic, by the 
 
 () See Cic. de Off. I/. II. 7
 
 jio THE CONSTITUTION 
 
 corruption of the manners of the Citizens, 
 their degeneracy from their ancient princi- 
 ples, and fuch like loofe general phrafes, 
 which may perhaps be ufeful to exprefs the 
 manner itielf in which the evil became ma- 
 nifested, but by no means account for the 
 caufes of it. 
 
 The above diforders arofe from the very 
 nature 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 re- 
 mained no other effectual Power in the State 
 that might render it neceffary for them to 
 keep within the bounds of juftice and de- 
 cency. And, in the mean time, as the 
 People, who were intended as a check over 
 that Body, continually gave a lhare in this 
 Executive authority to thofe whom they 
 intrufted with the care of their interefts, they 
 increafed the evils they complained of, as it 
 were at every attempt they made to remedy 
 them i and inftead of raifing up Opponents 
 to thofe who were become the enemies of 
 their liberty, as it was their intention to do, 
 they continually iupplied them with new 
 Aflbciates.
 
 OF ENGLAND. 311 
 
 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, ma- 
 nifefted itfelf in To remarkable a manner. 
 We may trace the fymptoms of the great 
 political defect here mentioned, in the ear- 
 lieft ages of the Commonwealth, as well as 
 in the laft ftage of its duration. In Rome, 
 while fmall and poor, it rendered vain what- 
 ever rights or power the People porTerTed, and 
 blafted all their endeavours to defend their 
 liberty, in the fame manner as, in the more 
 iplendid ages of the Commonwealth, it ren- 
 dered the moft falutary regulations utterly 
 fruitlefs, and even inftrumental to the am- 
 bition and avarice of a few. The prodi- 
 gious fortune of the Republic, in fhort, did 
 not create the diforder, it only gave full 
 fcope to it. 
 
 But if we turn our view towards the Hi- 
 flory of the Englifh Nation, we fhall fee 
 how, from a Government in which the above 
 defects did not exift, different confequences 
 have followed : how cordially all ranks of 
 Men have always united together to lay 
 
 X 4
 
 312 THE CONSTITUTION 
 
 under proper reftraints this Executive power, 
 which they knew could never be their own. 
 In times of public Revolutions, the greateft 
 care, as we have before obferved, was taken 
 to afcertain the limits of that Power ; and 
 after peace had been reftored to the State, 
 thofe who remained at the head of the Na- 
 tion, continued to manifeft an unwearied 
 jealoufy in maintaining thofe advantages 
 which the united efforts of all had obtained. 
 
 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 paffed 
 Upon him by his peers : and fo great was 
 'slfeifrwards the general union in maintaining 
 this law, that the Trial by Jury, that admira- 
 ble mode of proceeding which fo effectually 
 1 ecu res the Subject againft all the invafions 
 of Power, even (what feemed fo difficult to 
 attain) againft thofe which might be made 
 under the fanction of Judicial authority, has 
 keen preferved to this day. It has even been 
 preferved in all its original purity, though 
 the fame has been fucceflively fuffered to 
 decay, and then to be loft, in the other 
 Countries of Europe, where it had been for-
 
 OF ENGLAND. jpj 
 
 merly known. (a) Nay, though this privi- 
 lege of being tried by one's peers, was at 
 firft a privilege of Conquerors and Matters, 
 exclufively appropriated to thofe parts of Na- 
 tions which had originally invaded and fub- 
 dued the reft by arms, it has in England been 
 fucceffively extended to every Order of the 
 People. 
 
 And not only the perfon, but alfo the pro- 
 perty of the individual, has been fecured 
 againft all arbitrary attempts from the Exe- 
 
 (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 inftitutiouj we fee in 
 Hale's Hiftoryof the Common Laiv of England, that the 
 unanimity among Jurymen was notrequired in Normandy 
 for making a verdicl, a good verdift ; but when Jurymen 
 difTented, 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 
 origin, on|y 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. See Rsbinfon s State of Sweden. And in 
 Scotland, the vicinity of England has not been able to 
 preferve to the Trial by Jury its genuine ancient form : 
 the unanimity among Jurymen is not required there, as 
 I have been told, to form a Verdicl; but the majority 
 is decifive.
 
 3 i4 THE CONSTITUTION 
 
 cutive power, and the latter has been fuc- 
 ceflively reftrained from touching any part 
 of the property of the Subject, even under 
 pretence of the neceftities of the State, any 
 otherwife than by the free grant of the Re- 
 prefentatives, of the People. Nay, fo true 
 and perfevering has been the zeal of thefe Re- 
 prefentatives, in alTerting on that account the 
 interefts of the Nation, from which they 
 could not feparate their own, that this privi- 
 lege of taxing thcmfelves, (which was in the 
 beginning grounded on a mod precarious 
 tenure, and only a mode of governing adopt- 
 ed by the Sovereign for the fake of his own 
 convenience) has become, in length of time, 
 a fettled right of the People, which the Sove- 
 reign has found it at laft neceflary 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 j they have, in procefs of time, 
 fucceeded in converting it into a regular and 
 constitutional means of influencing^ th e mo- 
 tions of the Executive Power. By means 
 of this Right, they have gained the advan- 
 tage of being conftantly called to concur in 
 the meafures of the Sovereign, of having the
 
 OF ENGLAND. 315 
 
 greateft attention fhewn by him to their re- 
 quefts, as well as the higheft regard paid to 
 any ^engagements that he enters into with 
 them. Thus has it become at laft the pecu- 
 liar happinefs of Englifh Subjects (to what-, 
 ever other People, either ancient or modern, 
 we compare them) to enjoy a fhare in the Go- 
 vernment of their Country, by electing Re- 
 prefentatives, who, by reafon of the peculiar 
 circumftances they are placed in, and the ex- 
 tenfive rights they polfefs, are both willing 
 faithfully to ferve thofe who have appointed 
 them, and able to do it. 
 
 And indeed the Commons have not relied 
 fatisfied .with eftablifliing, 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 cares, (a) and taken every 
 opportunity of giving them new life and 
 vigour. 
 
 Thus, under Charles the Firfl, when at- 
 
 (a) The firft operation of the Commons, at the begin- 
 ning of a Seflion, is to appoint four grand Committees. 
 The one is a Committee of Religion, another of Griev- 
 ances, another of Courts of Juftice, and another of Trade: 
 they are to be {landing Committees during the whole 
 SeiSon,
 
 16 THE CONSTITUTION 
 
 tacks of a mod alarming nature had been 
 made on the privilege of the People to grant 
 free fupplies to the Crown, the Commons 
 vindicated, without lofs of time, that great 
 right of the Nation, which is the Conftitu- 
 tional bulwark of all others, and haftened to 
 oppugn', jn their beginning, every precedent 
 of a practice that muft in the end have pro- 
 duced the ruin of public liberty. . 
 
 They even extended their care to abufes 
 pf every kind. The judicial authority, for 
 inftance, which the Executive Power had 
 imperceptibly afifumed to itfelf, both with 
 rrfpecft to the perfon and property of the in- 
 dividual, was abrogated by the At which 
 abolifned the Court of Star- Chamber , and 
 the Crown was brought back to its true Con- 
 ilituti >nal c ftice, viz. the countenancing, and 
 fupporting" with its fbength, the execution 
 of the Laws. 
 
 The fubkquent endeavours of the LegifJa* 
 ture have carried even to a fiiil greater extent 
 the above privileges of the People : thty have 
 moreover iucceeded in reftraining the Crown 
 rrom any attempt to feize and confine, even 
 for the ihoiteft time, the perfon of the Sub- 
 , ur.lefs it be in the. cafes afcertained by the 
 Law, of which the Judges of it are to decide
 
 OF ENGLAND. 317 
 
 Nor has this extenfive unexampled free- 
 dom, at the expence of the Executive Power, 
 been made, as we might be inclinable to 
 think, the exclufive appropriated privilege cf 
 the great and powerful. It i9 to be enjoyed 
 alike by all ranks of Subjects: nay, it was- 
 the injury done to a common Citizen that 
 gave exiftence to the Act which has com- 
 pleated the fecuricy of this interefting branch 
 of public liberty. " The oppreffion of an 
 " obfeure individual," ,fay Judge Black- 
 ftone, " gave rife to. the famous Habeas Corpus 
 " Act:'* Junius has quoted this obfervation 
 of the Judge , and the fame is well worth 
 repeating a third time, for the juft idea ic 
 conveys of that readinefs of all Orders of 
 Men to unite in defence of common liberty, 
 which is a characteriftic circumftance in the 
 Englifh Government, (a) , 
 
 And this general union, in favour of pub- 
 lic liberty, has not been confined to the fra- 
 
 (a) The individual here alluded to was one Francis 
 Jenks, who having made a motion at Guildhall, in the 
 year 1676, to petition the King for a new Parliament, 
 was examined before the Privy Council, and afterwards 
 committed to the Gatehoufe, where he was 'kept about 
 two months, through the delays made by the fevera* Judges 
 to whom he applied, irj granting him a Haheas Csrj>u: 
 -See the State Tr : als, Vol. vii. Anno 1676.
 
 318 THE CONSTITUTION 
 
 ming cf laws for its fecurity. It has operated 
 with no If fs vigour in bringing to punifhment 
 fuch as have ventured to infringe them ; and 
 the Sovereign has constantly found it neceiTary 
 to give up the violators of thofe laws, even 
 when his own fervants, to the Juflice of their 
 Country. 
 
 Thus we find, fo early as the reign of Ed- 
 ward the Fii ft, 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 condition to pay, 
 we may indeed conclude that, in thofe early 
 ages of the Coi ftitution, the remedy was 
 applied rather late to the diforder ; but yet 
 it was at laft applied. 
 
 Under Richard the Second, examples of 
 the fame kind were renewed. Michael dela 
 Pole, Earl of Suffolk, who had been Lord 
 Chancellor of the kingdom, the Duke of Ire- 
 land, and the Archbifhop of York, having 
 
 {a) Sir Ralph de Her.gham, Chief Juflice of the 
 King's Bench, was fined 7000 marks ; Sir Thomas 
 Wayland, Chief Juflice of the Common Pleas, had his 
 whole eftate forfeited ; and" Sir Adam de Stratton, Chief 
 Baron of the Exchequer, fined 34000 marks.
 
 OF ENGLAND. 319 
 
 abufed their power by carrying on defigns 
 that were fubverfive of public liberty^ were 
 declared guilty of High-treafon , and a num- 
 ber of Judges who, in their judicial capacity, 
 had acted as their inftruments, were involved 
 in the fame condemnation, (a) 
 
 Under the reign of Henry the Eighth, Sir 
 Thomas Empfon, and Edmund Dudley, who 
 
 (a) The moft confpicuoui among thefe Judges were 
 Sir Robert Belknap, and Sir Robert Trefilian, Chief 
 Jufiice of the King's Bench. The latter had drawn 
 up a firing of queftions calculated to confer a defpotic 
 authority on the Crown, or rathei on the Minifters 
 above named, who had found means to render them- 
 felves intire Mailers of the perfon of the King. Thefc 
 queftions Sir Robert Trefilian propofed to the Judges, 
 who had been fummoned for that purpofe, and they 
 gave their opinions in favour of them. One of thefe 
 opinions of the Judges, among other?, 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 fubje&s of debate they think proper: 
 the Commons were to be reftrained, under pain of 
 being punifhed as traitors, from proceeding upon any 
 artides befides thofe limited to them by the King. All 
 thofe who had had a hand 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 banifhed, at theinterceffion of the 
 Bifhops. -See the Pari. Hiftory of England. ' Vol. I,
 
 3 20 THE CONSTITUTION 
 
 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 experi- 
 enced, that neither his high dignity, nor 
 great perfonal qualifications, could fcreen 
 him from having the fevered cenfure palled 
 upon him, for the corrupt practices of which 
 he had fuffered himfelf to become guilty. 
 And under Charles the Firft, the Judges ha- 
 ving attempted to imitate the example of the 
 judges under Richard the Second, by deliver- 
 ing opinions fubverfive of the rights of the 
 People* found the fame fpirit of watchfulnefs 
 in the Commons, as had proved the ruin of 
 the former. Lord Finch, Keeper of the 
 Great Seal, was obliged to fly beyond fea. 
 The Judges Davenport and Crawley were 
 imprifoned; and Judge Berkley 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 Jultice of the King's-Bench, Sir Francis 
 North, Chief Juftice of the Common Pleas, 
 Sir Thomas Jonts, oae of the Judges of the
 
 OE ENGLAND. 321 
 
 -KingVB?nch, and Sir Richard Wefton, one 
 of the Barons of the Exchequer, were im- 
 peached by the Commons, for partialities 
 fliewn by them in the admin iteration of juf- 
 tice ; and Chief Jufttce Scroggs, againft 
 whom fome pofitive charges were well pro- 
 ved, was removed from his employments. 
 
 The feveral examples offered here to the 
 Reader, have been taken from feveral different 
 periods of the Englilh 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 per- 
 haps be related to the fame purpofe -, though 
 the whole number of thofe to be met with, 
 will, upon enquiry, be found the fmaller as 
 the danger of infringing the laws has always 
 been indubitable. 
 
 So much regularity has even, (from all 
 the circumftances above mentioned) been in- 
 troduced into the operations of the Executive 
 Power in England, fuch an exact Juftice 
 have the People been accuftomed, in confe- 
 quence, to expect from that quarter, that 
 even the Sovereign, for his having once fuf- 
 
 Y
 
 322 THE CONSTITUTION 
 
 fered himfelf perfpnally to violate the fafety 
 of the fubject, did not efcape fcvere ccnfure. 
 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- 
 indulgence with regard to inferiors, which 
 whole clafles of individuals in certain Coun- 
 tries almoft think that they have a right to) 
 excited a general ferment. " This event 
 (fays Bifhop Burnet) put the Houfe of Com- 
 mons in a furious uproar.. ..It gave great, ad- 
 vantages to all thofe who oppofed the Court ; 
 and the names of the Court and Country party, 
 which till now had feemed to be forgotten, 
 were again revived. "(a) 
 
 Thefe are the limitations that have been 
 fer, in the Englifh Government, on the ope- 
 rations of the Executive Power: limitations 
 to which we find nothing comparable in any 
 other free Slates, ancient or modern ; and 
 which are owing, as we have feen, to that 
 
 (a) See Burnet's Hiftory, Vol. I. Anno 1669. -An 
 Aft of Parliament was made on this occafion, for giving 
 a farther extent to the provisions before made for the per- 
 fonal fecurity of the Subject; which is Hill called the 
 Coventry Aft.
 
 OF ENGLAND. 323 
 
 verycircumftance which feemed at firft fight 
 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 pecu- 
 liar ftrength and ftability of the Executive 
 Power in England, another moft advantage- 
 ous confequence has followed (which has been 
 before taken notice of, 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 un- 
 remitted 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 bounda- 
 ries that have juft now been defcribed, the 
 Crown, we muft obferve, has preferved its 
 Prerogative undivided. It ft ill poffeffes its 
 whole effective ftrength, and is only tied by 
 its own engagements, 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- 
 
 Y 2
 
 324 THE CONSTITUTION 
 
 thority within fuch well defined limits, can 
 have no expectation that it will continue to 
 confine itfelf within them, any longer than they 
 themfelves continue, by the juftice of their 
 own conduct, to deferve that fupport of the 
 People which alone can make them appear 
 of any confequence in the eye of the Sove- 
 reign, no probable hopes that the Crown 
 will continue to obferve thofe laws by which 
 their wealth, dignity, and liberty, are pro- 
 tected, any longer than they themfelves alfo 
 continue to obferve them. 
 
 Nay more, all thofe claims of their rights 
 which they continue to make againft the 
 Crown, are encouragements which they give 
 to the reft of the People to afTert their own 
 rights againft them. Their conftant oppo- 
 fition to all arbitrary proceedings of that 
 Power, is a continual declaration they make 
 againft any acts of oppreflion, which the fu- 
 perior advantages they enjoy, might intice 
 them to commit on their inferior fellow fub- 
 jects. Nor was that fevere cenfure, for in- 
 ftance, which they concurred in parting on an 
 unguarded violent action of their Sovereign, 
 only a reftraint put on the perfonal actions of 
 future Englifh Kings : no, it was a much 
 more extenfive provifion for the fecuring of
 
 OF ENGLAND. 325 
 
 public liberty; it was a folemn engagement 
 entered into by all the powerful M^n 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 tenour of the con- 
 duct even of the two Houfes of Parliament, 
 mews us 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 cautieus not 
 to aflfume any distinction that might alienate 
 from them the affections of the reft of the 
 Peop!e,(<z) Whenever thofe privileges which 
 were necelTary 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 
 
 (a) In all cafes of public offences, dwn to a firnpl* 
 breach of the peace, the Members of the Houfe of Com- 
 mons have no privilege whatever above the reft of the 
 People: they may be committed to prifon by any Juf- 
 tice of the peace ; and are dealt with afterwards in the 
 fame manner as any other Subjects. With regard to 
 civil matters, their only privilege is to be free from Ar- 
 refts 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 jjuft debt during that time*
 
 326 THE CONSTITUTION 
 
 that influence which they derived from their 
 fituation, to any oppreflive purpofes, they 
 themfelves have endeavoured to bring to pu- 
 nifhment. 
 
 Thus, we fee, that, in the reign of James 
 the Firft, Sir Giles Mompeflbn, 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 greatefl: 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 
 during life. 
 
 In the fame reign, Sir John Bennet, who 
 was alio a Member of the Houfe of Commons, 
 having been found to have been guilty of 
 feveral corrupt practices, in his capacity 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, 
 ^lember for Knarefborough, having been de- 
 tected in felling protections, experienced like- 
 wife the indignation of the Houfe, and was 
 expelled.
 
 OF ENGLAND. 317 
 
 In fine, in order as it were to make it com- 
 pleatly notorious, that neither the condition 
 of Reprefentative of the People, nor even any 
 degree of influence in their Houfe, could ex- 
 cufe any one of them from ftrictly obferving 
 the rules of juftice, the Commons did on one 
 occafion pafs the moll fevere cenfure they had 
 power to inflict, upon their Speaker himfelf> 
 for having, in a (ingle inflance, attempted to 
 convert the, difcharge of his duty as Speaker, 
 
 into a means of private emolument. Sir 
 
 John Trevor, Speaker of the Houfe of Com- 
 mons, 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 
 u regard to the pafling of the Orphan Bill" 
 was voted guilty of a High crime and mif- 
 demeancur, and expelled the Houfe. Even 
 the inconfiderable fum of twenty guineas 
 which Mr. Hungerford, another Member pf 
 that Houfe, had been weak enough to accept 
 on the fame fcore, was looked upon as defer- 
 ving the notice of the Houfe; and he was 
 likewife expelled, (a) 
 
 {a) Other examples of th attention of the Houfe of 
 Commons to the condu& of their Members, might be
 
 328 THE CONSTITUTION 
 
 If we turn cur view towards the Houfe of 
 Lords, we fhall find that they alfo have con- 
 ftantly taken care, that their peculiar privi- 
 leges fhould not prove impediments to the 
 common juftice which is due to the reft of the 
 People.(tf) They have conftantly agreed to 
 every juft propofal that has been made to them 
 on that fubjec~t by the Commons : and in- 
 deed, if we confider the numerous and op- 
 preffive privileges claimed by the Nobles in 
 mod other Countries, and the vehement fpirit 
 with which they are commonly afTerted, we 
 fhall think it no fmall praife to the body of 
 the Nobility in England (and alfo to the na- 
 
 produced, either before, or after, that which is men- 
 tioned here. The Reader may, for inftance, fee the re- 
 lation of their proceedings in the affair of the South Sia 
 Company Scheme ; and a few years afcer, in that of the 
 Charitable Corporation', a fraudulent fcheme particularly 
 oppreffive to the poor, for which feveral Members were 
 expelled, 
 
 (a) In csfe of a public offence, or even a fimple breach 
 pf the peace, a Peer may be committed, till he finds 
 bail^ by any Juftice of the peace : and Peers arc to be 
 tried by the common courfe cf law, for alleffenccs under 
 felony. With regard to civil matters, they are at all 
 times free from arrtfts ; but execution may behadjgainft 
 their effefts, in the fame manner as againft tfiofe of 
 pther Subjecls.
 
 OF ENGLAND. 329 
 
 ture of that Government of which they make 
 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 necefTary to 
 the accomplifbment of the end and conftitu- 
 tional defign of that Houfe. 
 
 In the exercife of their Judicial authority 
 with regard to civil matters, the Lords have 
 manifefted a fpirit of equity nowife inferior to 
 that which they have fliewn in their Legifla- 
 tive capacity. They have, in the difcharge 
 of that function, (which of all others is fo 
 liable to create temptations) fhewn an un- 
 corruptnefs really fuperior to what any judi- 
 cial Affembly in any other Nation can boaff. 
 Nor do I think that I run any rifk of being 
 contradicted, when I fay that the conduct of 
 the Houfe of Lords, in their civil judicial 
 capacity, has conftantly been fuch as has kept 
 them above the reach of eyen fufpicion or 
 flander. 
 
 Even that privilege which they enjoy, of 
 exclufively trying their own Members, in cafe 
 of any accufation that may affect their life 
 (a privilege which we might at firft fight 
 think repugnant to the idea of a regular Go- 
 vernment, and even alarming to the reft of 
 
 *>
 
 330 THE CONSTITUTION 
 
 the People,) lias conftantly been made ufe of 
 by the Lords to do juftice to their fellow 
 Subjects; and if we caft our eyes either on 
 the collection of the State Trials, or on the 
 Hiftory of England, we fhall 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 Houfes 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 thofe two Bodies entertain of the 
 power of the Crown. The fame motive has 
 alfo engaged them to exert their utmoft en- 
 deavours to put the Courts of Juftice under 
 proper reftraints: a point of the higheft im- 
 portance to public liberty. 
 
 They have, from the earlieft times, pre- 
 ferred complaints againft the influence of the 
 Crown over thefe Courts, and at lad procured 
 JLaws to be enacted in order to prevent it: all 
 which meafures, we muft obferve, were ftrong 
 declarations that no Subjects were to think 
 themfelves exempt from fubmitting to the
 
 OF ENGLAND. &i 
 
 uniform courfe of the Law. And the fevere 
 examples which they have concurred to make 
 on thofe Judges who had rendered themfelves 
 the inftruments of the paflions of the So- 
 vereign, or of the views of his Minifters, are 
 alfo awful warnings to the Judges who have 
 fucceeded them, never to attempt to deviate 
 in favour of any, the molt powerful, indi- 
 viduals, from that (trait line of Juftice, which 
 the joint Wifdom of the three branches of 
 the Legiflature, has once marked out to 
 them. 
 
 This lingular fituation of the Englifh Judges 
 relatively to the three Condiment 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 
 Minifters of Juftice) has at laft created fuch 
 an impartiality in the diftribution cf 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 
 in them, as are not to be paralleled in any 
 other Government. Philip de Comines, fo 
 long as three hundred years ago, commended
 
 332 THE CONSTITUTION 
 
 in flrong terms the exactnefs with which 
 Juftice is done in England to all ranks of 
 Subjects; (a) and the impartiality with 
 which the fame is adminiftered in thefe days, 
 will, with ftill more reafon, create the furprile 
 of every Stranger who has an opportunity of 
 obferving the cuftoms of this Country. (^) 
 
 (a) See page 40 of this Work. 
 
 () A little after I came to England for the firft time 
 (if the Reader will give me leave to make mention of 
 myfelf in this cafe) an attion was brought in a Court 
 of Juftice againft a Prince very nearly related to the 
 Crown ; and a Noble Lord was alfo, much about that 
 time, engaged in a law-fuit for the property of fome va- 
 luable lead-mines in Yorkfhire. I could not but obferve, 
 that in both thefe cafes a decifion was given againft the 
 two moft powerful parties; though I 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 inflances of that kind. But what 
 I was much furprifed at, I confefs, was that nobody 
 appeared to be in the lead fo, not even at the ftriclnefs 
 with which the ordinary courfe of the law had, parti- 
 cularly in the former cafe, been adhered to, and that 
 thofe proceedings which I was difpofed to confider as 
 great inflances of Juftice, to the production of which 
 fome circumftanefs peculiar to the times, at lead fome 
 uncommon virtue or fpirit on the part of the Judges, 
 muii have more or lefs co-operated, were looked upon, 
 by all thofe whom I heard fpeak about it, as being no- 
 thing moic than the common and expected courfe of
 
 OF ENGLAND. 333 
 
 Indeed, to fuch a degree of impartiality 
 has the administration of public Jnftice been 
 brought in England, that it is faying nothing 
 beyond the exact truth, to affirm that any 
 violation of the laws, though perpetrated by 
 Men of the moft extenfive influence, nay, 
 though committed by the fpecial direction of 
 the very firft Servants of the Crown, will be 
 publicly and compleatly redreffed. And the 
 very loweft of fubjects will obtain fuch re- 
 drefs, if he has but fpirit enough to {land 
 forth, and appeal to the laws of his Coun- 
 try. Moft extraordinary circumftances thefe ! 
 which thofe who know the difficulty that 
 there is in eftabliming juft laws among Man- 
 kind, and in providing afterwards for their 
 due execution, only find credible becaufe they 
 are matters of fact, and can only begin to- 
 account for when they look up to the conlH- 
 tution of the Government itfelf j 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 Legiftature, the 
 circumftances in which thofe two AfTemblies 
 
 things. This circumftance became a ftrong induce- 
 ment to me to inquire into the nature of a Government 
 by which fuch effe&s were produced.
 
 334 THE CONSTITUTION 
 
 arc placed in relation to the Crown, and to 
 each other, and the fituation in which all 
 the three find themfelves with refpedt to the 
 whole Bod)^ of the People, (a) 
 
 (a) The afTertion above made with refpe& to the 
 impartiality with which Juftice is, in all cafes, admi- 
 nifteredin England, not being of a nature to be proved 
 by alledging fingle fads, I have entered into no par- 
 ticulars on that account. However, I have fub- 
 joined here two cafes which, I think, cannot but ap- 
 pear remarkable to the Reader. 
 
 The firft is the cafe of the profecution commenced 
 in the year 1763, by fome Journeymen Printers, againft 
 the King's MeiTengers, for apprehending and impri- 
 foning them for a fhort time, by virtue of a General 
 Warrant from the Secretaries of State ; and that which 
 was afterwards carried on by another private individual, 
 
 againft one of the Secretaries themfelves. In thefe 
 
 actions, all the ordinary forms of proceeding ufed in 
 cafes of aftions between private Subjefts, were ftriclly 
 adhered to ; and both the Secretary of State, and the 
 Meflengers, were, in the end, condemned. Yet, 
 which it is fit the Reader fhould obferve, from all the 
 circumftances that accompanied this affair, it is difficult 
 to propefe a cafe in which Minifters could, of them- 
 felves, be under greater temptations to exert an undue 
 influence to hinder the ordinary courfe of Juftice. 
 Nor were the Ads for which thofe Minifters were con- 
 demned, Afts of evident oppreffion, which nobody 
 could be found to juftify. They had done nothing but 
 . follow a praftice of which they found feveral prece- 
 dents eftablifhcd in their Offices ; and their cafe, if
 
 OF ENGLAND. 335 
 
 In fine, a very remarkable circumftance in 
 the Englifh Government, (and which alone 
 evinces fomething peculiar and excellent in 
 its Nature) is that fpirit of extreme miidnefs. 
 
 I am well informed, was fuch, that moll: individuals, 
 under fimilar circumftances, would have thought them- 
 selves authorifed to have acted as they had done. 
 
 The fecond cafe I propofe to relate, affords a fingu- 
 lar inftance of the confidence with which all Subjects 
 in England claim what they 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 Arfeft executed in the reign of Queen Anne, in 
 the year 1708, on the perfon of the Ruffian Ambaffa- 
 dor, by taking him out of his Coach for the fum of 
 fifty pounds. And the confequenccs that followed this 
 fact are ftill more remarkable. The Czar highly re- 
 fented this affront, and demanded that the Sheriff of 
 Middlefex, and all others concerned in the Arreft, 
 ihould be punifhed with inftant death. " But the 
 ** Queen," (to the amazement of that defpotic Court, 
 fays Judge Blackftone, from whom I borrow this fact) 
 " the Queen directed the Secretary of State to inform 
 " him, that fhe could inflict no puniftiment upon any, 
 " the meaneft, of Her Subjects, unlefs warranted by 
 '* the law of th land." An act was afterwards paiTed 
 to free from arrefts the perfon s of foreign Miniflersj 
 and fuch of their Servants 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 AmbafTador 
 extraordinary commiffioned to deliver it.
 
 336 THE CONSTITUTION 
 
 With which Juftice in criminal cafes, is ad- 
 miniftered in Eng ] and; a point with regard 
 to which England differs from all other 
 Countries in the World. 
 
 When we confider the punifhments in ufe 
 in the other States of Europe, we wonder 
 how Men can be brought to treat their fel- 
 low-creatures with fo much cruelty ; and the 
 bare confideration of thofe punifhments would 
 fufficiently convince us (fuppofing we did 
 not know the fact from other circumftances) 
 that the Men in thcfe States who frame the 
 laws, and prefide over their execution, have 
 little apprehenfion that either they,- or their 
 friends, will ever fall victims to thofe laws 
 which they thus rafhly eftablifh. 
 
 In the Roman Republic, circum fiances of 
 the fame nature with thofe juft mentioned, 
 were alfo 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 
 operation of any too fevere laws, or practice, 
 not only allowed themfelves great libeitie*, 
 as we have fecn, in difpofing of the lives of 
 the inferior Citizens, but had alfo introduced 
 into ike exercife of the illegal powers they
 
 OF ENGLAND. 337 
 
 afiumed to themfelves in that refpect, a great 
 degree of cruelty, (a) 
 
 Nor were things more happily conducted 
 in the Grecian Republics. From their De- 
 mociatical nature, and the frequent Revolu- 
 tions to which they were fubject, we naturally 
 expect to fee that authority to have been ufed 
 with mildnefs, which thofe who enjoyed it 
 mult have known to have been but precarious j 
 yet, fuch were the effects of the violence at- 
 tending thefe very Revolutions, that a fpirit 
 both of great irregularity and cruelty had 
 taken place among the Greeks, in the exer- 
 cife of the power of inflicting punifhments. 
 The very harfh laws of Draco are well known, 
 of which it was faid, that they were not wriN 
 ten with ink, but with blood. The fevere 
 laws of the Twelve Tables among the Ro- 
 mans, were in great part brought over from 
 Greece. A nd it was an opinion commonly 
 
 (a) The common manner in which the Senate or- 
 dered Citizens to be put to death, was by throwing 
 them head-long from the top of the Tarpeian Rock. 
 The Confuls, or other particular Magiftraf.es, fome- 
 times caufed Citizens to expire upon a crofs ; or, which 
 was a much more common cafe, ordered them to be 
 fcourged to death, with their heads fafiened between 
 the two branches of a fork $ which they called cervictrn 
 fore* infer ire, 
 
 %
 
 33 THE CONSTITUTION 
 
 received in Rome, that the cruelties practifed 
 by the Magi ft rates on the Citizens, v/ere only 
 imitations of the examples which the Greeks 
 had given them, (a) 
 
 In fine, the ufe of Torture, that method 
 of adminiftering Juflice 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 Juflice. And 
 the fame practice continues, in thefe days, to 
 prevail on the Continent of Europe, in con- 
 fequence of that general arrangement of things 
 which creates there fuch a carelefTnefs about 
 remedying the abuies of public Authority. 
 
 But the nature of that fame Government 
 which has procured to the People of Eng- 
 land all the advantages we have before de- 
 fcribed, has, with ftill morereafon, freed them 
 from th" moll oppreffive abufes which pre- 
 vail in other countries. 
 
 That wantonnefs in difpofing of the deareft 
 
 (a) Caefar exprefsly reproaches the Greeks with this 
 faft, in his fpeech in favour of the accomplices of 
 
 Catiline, wheh .alluft has tranfmitted to us.-? Sed 
 
 (onent Ah tempore, Qracitt morem imitati, (Majores 
 nollri) vtrbtribus animadvertebant in ci-vtity at condtmnatis 
 yhtmum Jufplicium fumpum.
 
 OF ENGLAND. 3$9 
 
 rights of Mankind, thofe infults upon hu- 
 man Nature, of which the frame of the Go- 
 vernments eftablifhed in other States, unavoid- 
 ably becomes more or !efs productive, are en- 
 tirely banifhed from a Nation which "has the 
 happinefs of having its interefts taken care 
 of, by Men who continue to be them- 
 felves expofed to the preflure of thofe laws 
 which they concur in making, and of every ty- 
 rannic practice which they fuffer to be intro- 
 duced, by Men whom the advantages which 
 they poifefs above the reft of the People, 
 render only more expofed to the abufes they 
 are appointed to prevent, only more alive 
 to the dangers again ft which it is their duty 
 to defend the Community. 
 
 Hence we fee that the ufe of Torture has, 
 from the earlieft times, been utterly unknown 
 in England. And all attempts to introduce 
 it, whatever might be the power of thofe 
 who made them, or the circumftances in 
 which they renewed their endeavours* have 
 been ftrenuoufly oppofed, and defeated, (a) 
 
 {a) The Reader may on this fubjeft fee again the 
 Note in page 157 of this Work, where theoppofition 
 is mentioned, that was made to the Earl of Suffolk, 
 and the Duke of Exeter, when they attempted to in- 
 troduce the praftice of Torture: this even was ont 
 
 Z z
 
 w Uo THE CONSTITUTION 
 
 Hence alfo arofe that remarkable forbear- 
 ance in the h nglrfh Laws, to ufe any cruel 
 feverity in the punifhments which experience 
 fhewed it was necefTary for the prefervation 
 of Society to eltablifh : and the utmoft ven- 
 geance of thefe laws, even againft the moft 
 enormous Offenders, never extends beyond 
 the fimple deprivation of life, (a) 
 
 Nay, fo anxious has the Englifh Legifla- 
 ture been to eftablifh mercy, even to con- 
 victed Offenders, as a fundamental principle 
 of the Government of England, that they 
 
 of the caufes for which the latter was afterwards im- 
 peached. The Reader is alfo referred to the fol- 
 lowing Note, in which the folemn declaration is related, 
 which the Judges gave againft the practice of Torture, 
 in the cafe of Felton, who had aflaifinated the Duke of 
 Buckingham. 
 
 (a) A very fingular inftance occurs in the Hifiory 
 cf the year 1605, of the care of the Englifh Legiflature 
 not to fuffer precedents of cruel practices to be in- 
 troduced. During 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 pe- 
 tition the King, that the execution might be (laid, in 
 order to confider of fome extraordinary punifhment to 
 be inflicled upon them ; but this motion was rcjecled. 
 A propofalof the fame kind was alfo made in the Houfe 
 of Lords, where it was dropped. See the Parliamentary 
 Hiftory of England, Vol. V. Anno 160$.
 
 OF ENGLAND. 341 
 
 made it an exprefs article of that great pub- 
 lic Compact which was framed at the im- 
 portant sera of the Revolution, that " no 
 * cruel and unufual punilhments fhculd be 
 " ufed." (a) They even endeavoured, by- 
 adding a claufe for that purpofe to the Oath 
 which Kings were thenceforwards to take 
 at their Coronation, as it were to render it 
 an everlafting obligation of Englifh Kings, to 
 make Juftice to be " executed with mer- 
 cy." f 
 
 (a) See the Bill of Rights, Art. x. " Exceffive 
 bail ought not to be required* nor exceffive fines im- 
 pofed ; nor cruel and unufual punifhments inflicled." 
 
 (t>) Thofe fame difpofitions of the Englifh Legifla- 
 ture, which have led them to take fuch precautions in 
 favour even of convifled offenders, have fiill mors en- 
 gaged them to make provifions in favour of fuch per- 
 fons as are only fufpefted and accufed of having com- 
 mitted offences of any kind. Hence the zeal with 
 vhich they have availed themfelves of every important 
 occafion, fuch, for inftance, as that of the Revolu- 
 tion, to procure new confirmations to be given to the 
 institution of the Trial by Jury, to the laws on im- 
 prifonments, and in general to that extraordinary fy Item 
 of criminal Jurisprudence, of which a defcription has 
 been given in the firft part of this Work, to which 
 I refer the Reader. 
 
 z 3
 
 342 THE CONSTITUTION 
 
 CHAPTER XVII. 
 
 A more inward View of the EngHJh Government 
 than has hitherto been offered to the Reader, 
 Total difference between the Englijh Mo- 
 narchy, as a Monarchy^ and all thqfe with 
 'which we are acquainted. 
 
 THE Doctrine constantly maintained 
 in this Work (and which has, I think, 
 been fufficiently fupported by facts and com- 
 parifons drawn from the Hiftory of other 
 Countries) is, that the remarkable liberty 
 enjoyed by the Engliih 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 
 Executive authority ; which authority is cx- 
 clufively vetted, and firmly fecured, in the 
 Crown. Hence the anxious care with which 
 thefe Men continue to watch the exercife of 
 that authority. Hence their perseverance in 
 obfcrving every kind of engagement which 
 themfelves may have entered into with the 
 reft of the People. 
 
 But here a confideration of a mofl: im- 
 portant kind prefents itfelf. How comes the
 
 OF ENGLAND. 343 
 
 Crown, in England, thus conftantly to prc- 
 ferve to itfelf (as we fee it does) the whole 
 Executive authority in the State, and more- 
 over to infpire the great Men in the Nation 
 with that conduct 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 thofeMen whom their wealth, 
 or their perfonal power of any kind, have 
 raifed above the reft of the Peop'e, have' 
 formed combinations among themfclves to 
 oppofe the power of the Monarch. But 
 their views, we mufi. obferve, in forming 
 thefe combinations, were not by any means 
 to fet general and impartial limitations to the 
 Sovereign authority. They endeavoured to 
 render themfelves intirely independent of that 
 authority; or even utterly to annihilate it, 
 according to circumftances. 
 
 Thus we fee that in all the States of an- 
 tient Greece, the Kings were at laft deftroyed 
 and exterminated. The fame events hap- 
 pened in Italy, where in remote times there 
 exifted for a while feveral kingdoms, as we 
 leara both from the antient Historians, and
 
 344 THE CONSTITUTION 
 
 the Poets. And in Rome, we even know 
 the manner in which fuch a revolution was 
 brought about. 
 
 In more modern times, we fee the nume- 
 rous Monarchical Sovereignties which had 
 been raifed in Italy on the ruins of the Ro- 
 man Empire, to have been fucceffively de- 
 ftroyed by powerful factions , and circum- 
 flances of much the fame nature have at 
 different times taken place in the Kingdoms 
 eftablifhed in the other parts of Europe. 
 
 In Sweden, Denmark, and Poland, for in.- 
 fiance, we find that the Nobles have com- 
 monly reduced their Sovereigns to the con- 
 dition of fimple Prefidents over their AfTem- 
 b'ies, of mere oflenfible Heads of the Go- 
 vernment. 
 
 In Geimany, and in France, Countries 
 where the Monarchs being pofTefied of confi- 
 derable demefnes, were better able to main- 
 tain their power than the Princes juft men- 
 tioned, the Nobles waged war againft them 
 fometimes fingly, and fometimes jointly; 
 and events fimjlar to thefe have fucceflively 
 happened in Scotland, Spain, and the mo- 
 dern Kingdoms of Italy. 
 
 In fine, it has only been by means of (land- 
 ing forces that the Sovereigns of moll of 
 the Kingdoms we have mentioned, have been
 
 OF ENGLAND. 34^ 
 
 able in a courfe of time to aflcrt the prero- 
 gatives of their Crown. And it is only by 
 continuing to keep up fuch forces, that, like 
 the Eaftern Monarchs, and indeed like all 
 the Monarchs that ever exifted, they con- 
 tinue to be able to fupport their authority. 
 
 How therefore can the Crown of Eng- 
 land, without the affiftance of any armed 
 force, maintain, as it does, its numerous pre- 
 rogatives ? how can it, under fuch circum- 
 ftances, preferve to itfelf the whole Exe- 
 cutive 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 Englifli King is not in the lead indebted 
 to his army for the prefervation of his autho- 
 rity, (a) 
 
 If we could fuppofe that the armies of the 
 Kings of Spain, or of France, for inftance, 
 were, through fjme very extraordinary cir- 
 cumftance, all to vaniih in one night, the 
 power of thefe Sovereigns, we muft not 
 doubt, would, ere fix months, be reduced to 
 a mere fhadow. They would immediately 
 
 (a) Henry VIII. kept no (landing army.
 
 346 THE CONSTITUTION 
 
 fee their prerogatives (however formidable 
 they may be at prefent) invaded and difmem- 
 "bered(tf) : and fuppofing that regular Go- 
 vernments continued to exift, they would be 
 reduced to have little more influence in 
 them, than the Doges of Venice, or of Ge- 
 noa, poilefs in the Governments of thefe Re- 
 publics.^) 
 
 Kow therefore, to repeat the queftion 
 once more, which is one of the moft intereft- 
 ing that can occur in politics, how can the 
 Crown in England, without the afliftance of 
 any armed force, avoid thofe dangers to which 
 all other Sovereigns are expofed ? 
 
 How can it, without any fuch force, ac- 
 compliih 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 (un- 
 known 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 what- 
 ever, from ever entertaining any views befides 
 
 {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 
 enjey, before the laft Revolution in that Country.
 
 OF ENGLAND. 347 
 
 thofe of fetting juft and general limitations to 
 * the exercife of its authority? How can it in- 
 force the laws upon all Subjects, indifferently, 
 without injury or danger to itfelf ? How can 
 it, in fine,' imprefs the minds of all the great 
 Men in the State with fuch a lading jealoufy 
 of its power, as to neceffitate them, even in 
 the exercife of their undoubted rights and pri- 
 vileges, to continue to court and deferve the 
 affection of the reft of the People ? 
 
 Thofe great Men, I ihall 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 indiviiibility of the 
 power of the Crown. 
 
 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 
 fubject of Government have confined them- 
 felves, or rather, that I have followed a track 
 intirely different from that which thofe Writers 
 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 
 kind, fo do the principles from which its truth 
 is to be demonftrated, totally differ from, what
 
 34* THE CONSTITUTION 
 
 is commonly looked upon as the foundation 
 of the fcience of Politics. To lay thefe prin- 
 ciples here before the Reader, in a manner 
 compleatly fatisfactory to him, would lead us 
 into philofophical difcuffions on what really 
 conftitutes the bafis of Governments and Pow- 
 er amongft Mankind, both extremely long, 
 and in a great meafure foreign to the fubje<5c 
 of this Book. I fhall 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. 
 
 A s I chiefly propofed to fhew how the ex- 
 teniive 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 effential difference 
 between thofetwo 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 truft. With regard to 
 the remote caufe of that fame liberty, that is 
 to fay, the liability of the power of the Crown 
 by which this executive authority is fo fe- 
 cured, I mould perhaps have beep filent, had
 
 OF ENGLAND. 349 
 
 I not found it abfolutely neceffary to mention 
 it here, in order to obviate the objections 
 which the more reflecting part of my Read- 
 ers might otherwife have made, both to fe* 
 veral of the obfervations before offered to 
 them, and to a few others which are foon to 
 follow. 
 
 Befides, I fhall confefs here, I have been 
 fevcral times under appreheniions, in the 
 courfe of this Work, left the generality of 
 my Readers, milled by the iimilarity of names, 
 fhould put a too extenfive conftrudtion upon 
 what I faid with regard to the ufefulnefs of 
 the power of the Crown in England; left 
 they mould think, for inftance, that I attri- 
 buted the fuperior advantages of the Englifh 
 mode of Government over the Republican 
 form, merely to its approaching nearer to the 
 nature of the Monarchies eftablifhed in the 
 qther parts of Europe, and that I looked upon 
 every kind of 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 af- 
 fection, or, if you pleafe, prepofftffion, in 
 favour of that form of Government under 
 which I was born ; and as I am fenfible 
 pf its defects, {q dp I know how to fer, a
 
 350 THE CONSTlTUTrONT 
 
 value upon the advantages by wh'ch it com- 
 penfates for them. 
 
 I therefore have, as it were, made hafte to 
 avail myfelf of the firft opportunity of ex- 
 plaining my meaning on this fubjecl, of 
 indicating that the power of the Crown in 
 England ftands upon foundations intirely dif- 
 ferent from thofe on which the fame Power 
 refts in other Countries, and of engaging 
 the Reader to obferve (which for the prcfent 
 will fufficej that as the Englifh Monarchy 
 differ. In its nature from every other, fo all 
 that is faid here of its advantages, is pecu- 
 liar and confined to it. 
 
 But to come to the proofs of the folidity 
 accruing to the power of the Crown in Eng- 
 land, from the co-exiftence of the two Af- 
 femblies which concur to form the Englifli 
 Parliament, I fhall firft point out to the Rea- 
 der feveral open Acts of thefe two Houfes, 
 by which they have by turns effectually de- 
 feated the attacks of each other upon its 
 prerogatives. 
 
 Without looking farther back for exam- 
 ples than the reign of Chatles the Second, 
 we fee that the Houfe of Commons had, in 
 that reign, begun to adopt the method of 
 adding (or taking, as it is commonly ex- 
 prefleJ) fuch bills as they wanted more par-
 
 OF ENGLAND. 35 x 
 
 ticularly to have pafled, to their money bills. 
 This forcible ufe they made of their un- 
 doubted privilege of granting money, would, 
 if fuffered to grow into common practice, 
 have totally deftroyed the sequilibrium that 
 ought to fubfift between them and the Crown. 
 But the Lords took upon themfelves the talk 
 of maintaining that a:quilibrium : they com- 
 plained with great warmth of the feveral 
 precedents that were made by the Com- 
 mons, of the practice we mention : they in- 
 filled that Bills fhould be framed " in the 
 " old and decent way of Parliament " and 
 at laft have made it a (landing crder of the 
 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 intirely confined, if we may credit the 
 Historians 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 queftioned whether the legis- 
 lative Affembjies have a right to form a re-
 
 352 THE CONSTITUTION 
 
 folution, without the exprefs and declared 
 concurrence of the body of the People. But 
 both the Crown and the Nation were deli- 
 vered from the danger of eftablifhing fuch 
 a precedent, by the interpofition of the 
 Lords, who threw out the bill on the firlt 
 reading. 
 
 In the reign of King William the Third, 
 afew 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 Bur- 
 net's Hiftory of his own times, they enter- 
 tained 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 
 Hopped in their Houfe, till they had procured the right 
 of taxing, themfelves, their own eftates ; and to have 
 a Committee of Lords and Commons appointed to con- 
 fer together concerning the State of the Nation ; M which 
 Committee," fays Bifhop Burnet, ** would foon have 
 grown to have been a Council of State, that would 
 have brought all affairs under their infpeclion, and ne- 
 ver had been propofed but when the Nation was ready to 
 break into civil wars." See Burnet's Hiftory, AnnQ 
 1693,
 
 OF ENGLAND. 353 
 
 Parliament every year ; but the bill, after it 
 had paffed in their Houfe, was rejected by 
 the Commons, (a) 
 
 Again, we find, a little after the acceflion 
 of King George the Firft, an attempt was 
 alfo made by a party in the Houfe of Lords, 
 to wren: from the Crown a prerogative which 
 is one of its fineft flowers ; and is, befides, 
 the only check it has on the dangerous views 
 which that Houfe (which may ftop both mo- 
 ney bills and all other bills) might be brought 
 to entertain j 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 accordingly prefented, and carried, in 
 the Houfe of Lords, for limiting the mem- 
 bers of that Houfe to a fixed number, be- 
 yond which it mould 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 Houfe of Commons have in 
 their turn made to reftrain, farther than it now 
 is, the influence of the Crown arifing from 
 the diftributiOn of preferments and other ad- 
 vantages, have been checked by the Houfe 
 of Lords ', and all place-bills have, from the 
 
 A a 
 
 (a) Nov. 38, 1693.
 
 354 THE CONSTITUTION 
 
 beginning of this Century, conftantly mif- 
 carried in that Houfe. 
 
 Nor have thefe two powerful AfTemblies 
 only fucceeded thus in warding off the open 
 attacks of each other, on the power of the 
 Crown. Their co-exiltence, and the prin- 
 ciples upon which they are feverally framed, 
 have been productive of another effect 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- 
 fions, the oppofite views of the other ; like 
 thofe pofitive and negative equal quantities, 
 (if I may be allowed the comparifon) which 
 deitroy 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, we fhall find that that 
 event has conftantly been attended with open 
 invafions of the Royal authority, or fome- 
 times with complete and fettled divifions of 
 it. In England, on the contrary, whether we 
 j look at the reign of Richard II. or that of 
 
 Henry VI. or of Edward VI. we fhall feethat
 
 OF ENGLAND. 353. 
 
 the Royal authority has been quietly exercifed 
 by the Councils that were appointed to afiift 
 thofe Princes ; and when they came of age, 
 the fame has been delivered over to them 
 undiminifhed. 
 
 But nothing fo remarkable can be alledged 
 on this fubjecl:, as the manner in which thefe 
 two Houfes have acted upon thofe occafions 
 when, the Crown being without any prefent 
 pofleflbr, they had it in their power, both to 
 fettle it on what perfon they pleafed, and to 
 divide and diftribute its prerogatives as they 
 might have thought proper* Circumftances 
 of this kind have never failed in other King- 
 doms to bring on adivifion of the authority of 
 the Crown, or even of the State itfelf. In 
 Sweden, for inftance, (to fpeak of that king- 
 dom which has borne the greater! outward 
 refemblance to that of England) when Queen 
 Chriftina was put under a neceflity of ab- 
 dicating 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 Prefident over it. 
 
 After the death of Charles the Twelfth, 
 
 A a 1
 
 356 THE CONSTITUTION 
 
 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 Princefs Ulrica, and the Prince 
 her Hufband. But the Senate, as in the 
 former inflance, affumed to itfelf the autho- 
 rity which had lately belonged to the Crown. 
 The power of aflembling the States, of ma- 
 king war and peace, and treaties with foreign 
 powers, the difpofal of places, the admini- 
 ftration of the public revenue, the command 
 of the army and of the fleet, were vefted in 
 that Body. Their number was to confift of 
 fixteen members. The majority of votes 
 was to be decifive upon all occafions. The 
 only privilege of the new King, was to have 
 his vote reckoned for two : and if on any oc- 
 cafions he mould refufe to attend their meet- 
 ings, the bufinefs was neverthelefs to be 
 done as effectually and definitively without 
 him. 
 
 But in England, the Revolution of the year 
 1689 was terminated in a manner totally dif- 
 ferent. Indeed, thofe prerogatives deftruc- 
 tive of public liberty, which the late King 
 had afllimed, were retrenched from the 
 Crown i and thus far the two Houfes agreed: 
 but as to proceeding to transfer to other
 
 OF ENGLAND. 557 
 
 hands any part of the authority of the Crown* 
 no propofal was even made about it. Thofe 
 prerogatives which were taken from the 
 Crown, were annihilated and made to ceafe 
 to exift in the State ; and all the Executive 
 authority that was thought neceflary to be 
 continued in the Government, was, as be- 
 fore, left undivided in the Crown, (a) 
 
 In the fame manner was the whole autho- 
 rity of the Crown transferred afterwards to 
 
 (a) This remarkable circumftance of the power of the 
 Crown in England being conftantly preferved undivided, 
 whatever Revolutions may have arifen, throws a farther 
 light on the obfervation before made, on the advanta- 
 geous manner to public liberty in which Revolutions 
 have always been terminated in England. In other li- 
 mited Monarchies, the Men who were at the head of 
 the Nation, finding it in their power, upon thofe occa- 
 fions, toaflumetothemfelves theexercife of the Sovereign 
 Authority, conftantly did fo, and as constantly left that 
 authority in the fame undefined extent as before ; juft as 
 we have feen that it always happened in the ancient Com- 
 monwealths, and from the very fame reafons. But in 
 England, each Member in each Houfe of Parliament, 
 feeing, on the occafions we mention, that the Executive 
 authority muft, in the iflue, fall fomewhere undivided, 
 and continue fo ; and that neither perfonal advantages 
 of any kind, nor the power of any fa&ion, but the law 
 alone, could thenceforwards be a reftraint upon its ac- 
 tions, ferioufly applied themfelves to frame with care 
 thofe laws on which their own liberty was afterwards to 
 depend, and to limit that Power which they faw they 
 
 Aa3
 
 358 THE CONSTITUTION 
 
 the Princefs who fucceeded King William 
 the Third, and who had no other claim to it, 
 but what was conferred on her by Parliament. 
 And in the fame manner again it was fettled, 
 a long time beforehand, on the Princes of 
 Hanover who have fince fucceeded her. (a) 
 
 could neither transfer to themfdves and their party, nor 
 render themfelves independent of. 
 
 It will not be improper to add here, as a farther proof of 
 the indivilih lity of the power of the Crown (which haa 
 been above faid to refult from the peculiar frame of the 
 EngliihParliament)thatnopartoftheExecutiveamhority 
 of the King is veftedinhis Privy Council, as we have feen 
 it was in the Senate of Sweden : all centers in the Sove- 
 reign ; the votes of the members are not even counted, 
 if I am well informed : and in faft the conftant flyleof 
 the Law, is the King in Council, and rot the King and 
 Council. A provifo is indeed fometimes added to fomc 
 bills, that certain a&s mentioned in them are to be tranf- 
 acied by the King in his Council : but this is only a pre- 
 caution taken in the view that the moll important affairs 
 of a great Nation may be tranfacled with proper folem- 
 nitv, and to prevent, for inilance, all objtdions that 
 might, in procefs of time, be dr^wn from the uncer- 
 tainty whether the King had aflented, or net, to cer- 
 tain particular transactions. 
 
 (a) If the Reader wanted a farther confirmation as to 
 the peculiarity of the conduct of the Englifh Parliament, 
 in preferving the authority of the Crown undivided, 
 though the latter lay, as it were, at their difpofal, he 
 need only compare the Afts by which they fettled it on 
 the Houfe of Hanover, with that framed for the fama 
 turpofe'by the Scotch Parliament, a few years before
 
 OF ENGLAND. 359 
 
 Nay, one moft extraordinary fact, and to 
 which I defire the Reader to give his atten- 
 tion, Notwithftanding all the Revolutions 
 we mention, and though Parliament has fat 
 every year fince the beginning of this cen- 
 tury, though they have conftantly enjoyed 
 the moft unlimited freedom, both as to the 
 fubjects and the manner of their deliberati- 
 ons, and numberlefs propofals have in confe- 
 quence been made, yet fuch has been the ef- 
 ficiency of each Houfe, in deftroying, pre- 
 , venting, or qualifying, 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 ; and the laft Bill, re- 
 jected by a King of England, has been that 
 rejected by King William the Third, in the 
 year 1692, for Triennial Parliaments.(^) 
 
 the Union, By this Al the power of the Crown in 
 Scotland was to be difmembered, in much the fame. 
 manner, as we have feen it has been in Sweden. See 
 Parliamentary Debates, Vol. iii, 
 
 () He affented a few years afterwards to that Bill, 
 after feveral amendments had been made in it. 
 
 The obfervation above made on the conftant tenour- 
 of the proceedings of the Englilh Parliament, with re- 
 lation to the Crown, is rendered ftill more remarkable 
 when we coniider the events which have of late years 
 ^ taken place in France ; and when we fee the late King 
 |q have a,t'laft taken a moft ferious alarm at the proceed-.
 
 3 fo THE CONSTITUTION 
 
 And this peculiar fecurity of the Executive 
 authority of the Crown in England, has not 
 only freed the State from thofe difturba icef 
 to which other Monarchies were unavoida- 
 bly expofed before the ufe of Handing armies, 
 and enabled it to produce all thofe advanta- 
 geous effects to public liberty which we have 
 mentioned in the courfe of this Work : but 
 
 ings of his Parliament of Paris, (an ArTembly which is 
 far from having the fame vnpoitance in the Kingdom 
 of France, as the Englifh Parliament has in England) 
 and to have in the end applied to his army in order to 
 difperfeit. And though the prefent King has thought 
 proper tore-eflablifh that Parliament, ameafure which 
 was highly prudent in the beginning of his reign, yet, 
 every precaution has at the fame time been taken to ren. 
 der it dumb for ever. 
 
 To thefe obfervations on the fecurity of the power of 
 the Crown, another of great importance is to be added, 
 which is alfo founded upon fa&s, and which Theory 
 would equally juftify : this is, that the Crown cannot 
 depend upon the fecurity we mention, any longer than 
 it continues to fulfill its engagements with the Parlia- 
 ment, and with the Nation ; of this the misfortunes 
 of Charles the lirft, and the Revolution of the year 
 16S9, arc convincing a well as awful proof*. And in 
 general the imminent dangers and perplexities in which 
 the Kings of England have conftantly involved them- 
 felvcs whenever they have attempted to itcp beyond the 
 limits of the law, manifeftly mow, thr.t all that can be 
 faid of the greatnef; and fecurity of their power is to be 
 underftood, not of the capricious power of the Man^ 
 but of the lawful authority of the Head of the State.
 
 OF ENGLAND. 361 
 
 fhis fame fecurity has alfo procured to Eng- 
 land, confidered as a free State, other advan- 
 tages which would really have been totally 
 unattainable in the other free States before 
 mentioned, whatever degree of public virtue 
 we might even fuppofe to have belonged to 
 thole who acted in them as the Leaders of 
 the People. 
 
 The one is the extraordinary freedom 
 which the People of England enjoy at the 
 expence of the governing authority. In the 
 Roman Commonwealth, for inftance, we fee 
 the Senate to have been veiled with a num- 
 ber of powers totally deftruclave of the liber- 
 ty of the Citizens j and the continuance of 
 thefe powers, was, no doubt, in a great mea- 
 fure owing to the treacherous remifihefs of 
 thofe Men in whom the People trufted for 
 repreffing them, or even to their determined 
 refolution not to abridge thofe prerogatives. 
 Yet, if we attentively confider the conftant 
 fituation of affairs in that Republic, we fhall 
 find, that though we might fuppofe thefe 
 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 intire fecurity. The right enjoyed 
 by the Senate, of fuddenly naming a Dicta- 
 tor, with a power unreflrained by any law, or 
 of inverting the. Confuls with an authority
 
 36a THE CONSTITUTION 
 
 of much the fame kind, and the power it 
 afTumed of making ar times formidable ex- 
 amples of arbitrary Juflice, were refources 
 of which the Republic could not, perhaps, 
 with f.fety have been totally deprived ; and 
 though thefe were for the moft part ufed to 
 deftroy the juft liberty of the People, vet, they 
 were alfo very often the means of preferving 
 the Commonwealth. 
 
 Upon the fame principle we mould pof- 
 fibly find that the Oftracifm, that arbitrary 
 method of banifhing Citizens, was a neceflary 
 rcfource in the Republic of Athens. A Ve- 
 netian Noble would perhaps alfo confefs, 
 that however terrible the State-Inquifition 
 eftablrfhed in Tiis Pvcpublic may be, even to 
 the Nobles themfelves, yet, it would not be 
 prudent intirely to abolim it. And we do 
 not know but a Miniller of State in France, 
 though we might fuppofe him ever fo vir- 
 tuous and moderate a Man, would fay the 
 fame with regard to the fecret imprifon- 
 ments, the lettres de cachet, and other arbi- 
 trary 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 confefs that the expedients we mention 
 have in numberlefs inftances been moft hor*
 
 OF ENGLAND. 3^ 
 
 ribly proftituted to gratify the wantonnefs 
 and private revenge of Minifters, or of thofe 
 who had any intereft with them ; but ftill 
 perhaps he would continue to give it as his 
 opinion, that the Crown, notwithftanding its 
 apparently immenfe ftrength, cannot avoid 
 recurring at times to expedients of this kind; 
 much lefs could it publicly and abfolutely 
 renounce them. 
 
 It is therefore a mofl: advantageous cir- 
 cumftance in the EngHfh Government, that 
 its fecurity renders all fuch expedients unne* 
 cefTary ; and that the Reprefentatives of the 
 People have not only been conftantly willing 
 to promote the public liberty, but that the 
 general fituation of affairs has alfo enabled 
 them to carry their precautions fo far as they 
 have done. And indeed, when we confider 
 what prerogatives the Crown, in England, 
 has fin ce rely renounced, that in confequence 
 of the independence conferred on the Judges 
 and the method of Trial by Jury, it is de- 
 prived of all means of influencing the fettled 
 courfe of the law both in civil and criminal 
 matters, that it has renounced all power of 
 feizing the property of individuals, and even 
 of retraining in any manner whatfoever and 
 for the fhorteft time, the liberty of their per- 
 fons, we do not know what we ought moil
 
 3 6 4 THE CONSTITUTION 
 
 to admire, whether the public virtue of thofe 
 who have deprived the fupreme Executive 
 Power of all thofe dangerous prerogative , or 
 the nature of that fame Power, which has 
 enabled it to give them up without ruin to u- 
 felf, whether the happy frame of the Eng- 
 lifh Government, which makes thofe in whom 
 the people truft, continue fo faithful in the 
 difcharge of their duty, or the folidity of that 
 Government, which really can afford to leave 
 ro the- People fuch an extenfive degree of 
 freedom. 
 
 .Again, the Liberty of the prefs, that great 
 advantage enjoyed by the Enghfh 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 conftantly 
 kept in thofe Monarchies upon every kind of 
 publication ; and a jealous attention is paid 
 even to the loofe and idle fpeeches of indivi- 
 duals. Much unneceflary trouble (we may 
 be apt at firft to think) is taken upon this 
 fubject; but yet if we confider how uniform 
 the conduct of all thofe Governments is, how 
 confl.ant and unremitted their cares are in thofe 
 refpects, we fhall be convinced, without 
 looking farther, that there muft be fome ne- 
 ceffity for their precautions.
 
 OF ENGLAND. 365 
 
 * In Republican States, for reafons which 
 are at the bottom the fame as in the before- 
 mentioned Governments, the People are alfo 
 kept under the greater!: reftraints by thofe who 
 are at the head of- the State. In the Ro- 
 man Commonwealth, for inftance, the liberty 
 of writing was curbed by the fevereft laws :(#) 
 with regard to the freedom of fpcech, 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 Citizens, upon certain occafions, com- 
 municated their political opinions to the Con- 
 fuls, or to the Senate. In the Venetian Re- 
 public, the prefs is moll ftrictly watched: 
 nay, to forbear to fpeak in any manner what- 
 foever, on the conduct of the Government, 
 is the fundamental maxim which they incul- 
 cate on the minds of the People throughout 
 their dominions, {b) 
 
 (a) The Law of the Twelve Tables had eftablifhed- 
 the punifhment of death againft the author of a Libel : 
 nor was it by a Trial by J ur y t ^ iat tne y determined 
 what was to be called a Libel. Si quis carmen oc- 
 
 CENTASSIT, ACTITASSIT, CONDIDISSIT, O^UOD AL- 
 TERI FLAGITIUM FAXIT, CAPITAL ESTO. 
 
 () Of this I have myfelf feen a proof fomewhat lin- 
 gular, which I beg leave of the Reader to relate. 
 Being, in the year 1768, at Bergamo, the firft Town 
 q the Venetian State, as you come into it from the State
 
 366 THE CONSTITUTION 
 
 With refpeft therefore to this point, if 
 may again be looked upon as a moft advan- 
 tageous circumftance in the Englifh Govern- 
 ment, that thofe who have been at the head 
 of the People, have not only been conftantly 
 difpofed to procure the liberty of the People, 
 but a!fo that they have found it poflible for 
 them to do fo ; and that the {lability of the 
 Government has admitted of that extenfive 
 
 of Milan, I took a walk in the evening in the neigh- 
 bourhood of the Town ; and wanting to know the name 
 of feveral places which I faw at a diftance, I flopped a 
 young Countryman to afk him information. Finding 
 him to be a fenf.ble young Man, I entered into feme 
 farther converfation with him ; and as he had himfelf a 
 great inclination to fee Venice, he afked me, whether 
 I propofed to go there ? I anfwered, that I did : on 
 which he immediately warned me when I was at Venice 
 not to fpeak of the Prince (del Prencipe) an appellation 
 affumed by the Venetian Government, in order, as I 
 fuppofe, to convey to the People a greater idea of their 
 union among themfelves. As I wanted to hear him 
 talk farther on the fubjeft, I pretended to be intirely 
 ignorant in that refpeel, and afked for what reafon I 
 muft not fpeak of the Prince ? But he (after the man- 
 ner of the common People in Italy, who, when flrongly 
 affe&ed by any thing, rather chufe to exprefs themfelves 
 by fome vehement gefture, than by words) ran the edge 
 of his hand, with great quicknefs, along his neck, 
 meaning thereby to exprefs, that being llrangled, or 
 having one's throat cut, was the inftant conference of 
 taking fuch a liberty.
 
 OF ENGLAND. 367. 
 
 freedom of fpeakingand writing which the 
 People of England enjoy. A mod advanta- 
 geous privilege, this ; which affording to 
 every Man a means of laying his complaints 
 before the Public, procures him ahnoft a 
 certainty of redrefs againft any act of oppref- 
 iion that he may have been expofed to : and 
 which leaving, moreover, to every Subject 
 a right to give his opinijn on all public mat- 
 ter?, and by thus influencing the fentiments 
 of the Nation, to influence thofe of the Le- 
 giflature itfelf (which is fooner or later 
 obliged to pay a deference to them) procures 
 to him a fort of Legiflative authority of a 
 much more efficacious and beneficial nature 
 than any formal right he might enjoy of 
 voting by a mere yea or nay^ upon general 
 proportions fuddenly offered to him, and 
 which he could have neither a (hare in fra- 
 ming, nor any opportunity of objecting to 
 and modifying. 
 
 . A privilege which, by raifing in the Peo- 
 ple a continual fenfe of their own fecurity, 
 and affording them undoubted proofs that the 
 Government, whatever may be its form, is 
 ultimately deftined to infure the happi- 
 nefs of thofe who live under it, is both 
 one of the greateft advantages of Freedom, 
 and its fureft chara&eriftic. The kind of 
 fecurity as to their perfons and poffeffions,
 
 368 THE CONSTITUTION 
 
 which Subje&s who are totally deprived of 
 that privilege, enjoy at particular times, un- 
 der other Governments, perhaps may intitlc 
 them to look upon themil-lves as the well- 
 adminiftered property of Matters who rightly 
 underftand their own interefts ; but it is the 
 right of canvaiTing without fear the conduct 
 of thofe who are placed at their head, which 
 conftitutes a free Nation, (a) 
 
 In fine, what compleats all thofe advantages 
 which refult from the fecurity of the fupreme 
 Executive authority in England, is the nature 
 of the means by which this fecurity is ob- 
 tained : means which are totally different 
 from thofe by which the fame advantage is 
 fo incompleatly procured, and fo dearly paid 
 for, in other Monarchies -, and which have 
 equally preferved the Englifh from the two op- 
 pofite calamities, of anarchy dignified with the 
 name of liberty, and of total political flavery, 
 dignified with the name of public tranquillity. 
 
 It is from a happy general arrangement of 
 tilings, that the Power which governs in Eng- 
 
 (a) If we confider the great advantages to public li- 
 berty which refult from the institution of the Trial by 
 Jury, and from the Liberty of the Prefs, we fhall find 
 England to be in reality a more Democratical State 
 than any other we ate acquainted with. The Judi- 
 cial power, and the Cenfo/ial power, are veiled in 
 the People.
 
 OF ENGLAND. 369 
 
 land, derives that advantageous folidity whxh 
 procures to the People both fo great a de- 
 gree of fecurity, and fo extenfive a degree of 
 freedom. It is from the Nation itfelf that 
 it receives the force with whirh it governs 
 the Nation. Its iupport is harmony, and not 
 violence, confent, and not terror ; and it 
 continues to reign through the voluntary paft 
 fions of thole who are fubjedt to it. 
 
 
 
 ' ' .. 1 . 
 
 
 CHAPTER XVIII. 
 
 How far the examples of Nations that have left 
 
 their liberty , are applicable to England. 
 
 
 
 ALL Governments having in themfelves, 
 fay thofe who have written upon that 
 fubjecl:, the principle of their deftru&ion (a 
 principle inherent in thofe very eaufes to 
 which they owed their profperity) the ad- 
 vantages of the Government of England 
 cannot, according to thefe Writers, exempt 
 it from that hidden fault which is fecreriy 
 working its ruin ; and M. de Montefquieu, 
 pronouncing at the fame time, both concern- 
 ing the effect, and the caufe, fays, that " the 
 ' Conftitution of England will lofe its 
 
 Bb
 
 37 o THE CONSTITUTION 
 
 " liberty, will perifh. Have not Rome* 
 " Lacedremon, and Carthage, perifhed ? It 
 " will perifh when the Legiflative power 
 * fhall have become more corrupt than the 
 Executive." 
 
 Though I do by no means pretend that 
 any human eftablifhment cart efcape the fate 
 to which we fee every thing in Nature is 
 fubject, nor am fo far prejudiced by the fenfe 
 I entertain of the great advantages of the 
 Englifh Government, as to reckon among 
 them that of eternity, I will however ob- 
 ferve in general, that, as it differs by its 
 ftrufture and refources from all thofe with 
 which Hiftory makes us acquainted, fo it 
 cannot be faid to be liable to the fame dan- 
 gers. To judge of the one from the other, 
 is to judge by analogy, where no analogy is 
 to be found ; and my refpect for the Au- 
 thor I have quoted will not hinder me from 
 faying, that his opinion has not the fame 
 weight with me on this occafion, that it has 
 on many others. 
 
 Having neglefled, as indeed all fyftema- 
 tic Writers upon Politicks have done, at- 
 tentively to inquire into the real nature of 
 Government?, of Power, and of Liberty, 
 among Mankind, the principles he lays down 
 are not always fo clear, or even fo juit, as
 
 OF ENGLAND. 371 
 
 we might have expected from a Man of fo 
 rea! a genius. When he- fpeaks of. England, 
 for inftance, his obfervations are much too 
 general ; and though he had frequent op- 
 portunities of converfing with Men who had 
 been perfonally concerned in the public af- 
 fairs of this Country, and hid been him- 
 felf an eye-witnefs of the operations of the 
 Englifh Government, yet, when he attempts 
 to defcribe ir, he rather tells us what he con- 
 jectured, than what he faw. 
 
 The examples he cites, and the caufes of 
 diflblution which he affigns, particularly con- 
 firm this obfervation. The Government of 
 Rome, to fpeak of that 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 not, in the latter ages 
 of the Commonwealth, a People of Citizens, 
 but of Conquerors. Rome was not a State, 
 but the head of a Scate. By the immenfity 
 of its conquefts, it came in time to be in a 
 manner only an acceflbry part of its own Em- 
 pire. Its power became fo great, that after 
 having conferred ir, it was at length no longer 
 able to re fume it : and from that moment it 
 became itfelf fubj eel: to it, from the fame rea- 
 fon that the Provinces themfelves were fo. 
 
 Bb2
 
 372 THE. CONSTITUTION 
 
 The fall of Rome, therefore, was an event 
 peculiar to its fituation ; and the change of 
 manneis which accelerated this fall, had alfo 
 an effect, which it couid not have had but in 
 that fame fituation. Men who had drawn to 
 themfclves all the riches of the World, could 
 no longer content themfelves with the fupper 
 of Fabricius, and the cottage of Cincinna- 
 ti. The Peop.e, who were mailers of all 
 the corn of Sicily and Africa, wPfe no longer 
 obliged to plunder irr.ir neighbours for theirs. 
 All poffible Enemies,, befides, being exter- 
 minated, Rome, whofe power was military, 
 was no longer an army ; and that was the 
 moment of her corruption : if, indeed, we 
 ought to give that name to what was the in- 
 evitable confluence of the nature of things. 
 
 In a word, Rome was deftined to lofe her 
 Liberty when fhe loft her Empire ; and fhe 
 was deftined to bfe her Empire, whenever 
 flie fhould begin to enjoy it. 
 
 But England forms a Society founded upon 
 principles abfolutely different. All liberty, 
 and power, are not accumulated, as it were, 
 in 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 Ifland to the other 
 the fame laws take place, and the fame in- 
 tertfts prevail: the whole Nation, befides,
 
 OF ENGLAND. 373 
 
 equally concurs in the formation of the Go- 
 vernment: no parr, 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 thoie ferocious kinds of virtue which are 
 indifpenfably necefTary to thofe who, from 
 the fituation in which they have brought 
 themfelves, are continually expofed to fuch 
 dangers. 
 
 The fituation of the People of England, 
 therefore, effentially differs from that of the 
 People of Rome. The form of the Englifli 
 Government does not differ lefs from that of 
 the Roman Republic ; and the great advan- 
 tages 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 
 Roman Republic was principally brought 
 about by the exorbitant power to which fe- 
 veral of its Citizens were fucceffively enabled 
 to rif -. In the latter age of the Common- 
 wealth, thofe Citizens went fo far as to di- 
 vide among themfelves the dominions of the 
 Repjblic, in much the fame manner as they 
 might have done lands of tru-ir own. And 
 to them, others in a fhort time fucceeded, 
 who not only did the fame, but who even- 
 
 Bb 3
 
 374 THE CONSTITUTION 
 
 
 
 proceeded to that degree of tyrannical info- 
 lence, as to make cefllons 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 
 very beginning, as we have feen, all misfor- 
 tunes of this kind , and the Reader may re- 
 collect: what has been faid before on that 
 fubjedt. 
 
 At laft the ruin of the Republic, as every 
 body knows, was compleated. One of thofe 
 powerful Citizens we mentiop, in proctfs of 
 time found means to exterminate all his com- 
 petitors: he immediately aflumed to himfelf 
 the whole power of the State ; and eftablifhed 
 for ever afcer an arbitrary Monarchy. But 
 fuch a fudden and violent eftablifhment of 
 a Monarchical power, with all the fatal con- 
 fequences that would refult from fuch an 
 event, are calamities which cannot take place 
 in England : 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 danger that that power 
 may, by the means of thofe legal prero- 
 gatives it already pofiefles, fudden ly aflume 
 others, and at laft openly make itfelf aby
 
 OF ENGLAND. 375 
 
 folute. The important privilege of grant* 
 ing to the Crown its neceflary fupplies, we 
 have before obferved, is veiled in the Na- 
 tion : and how extenfive foever the prero- 
 gatives of a King of England may be, it 
 conftantly lies in the power of his People ei- 
 ther to grant, or deny him, the means of 
 exercifing them. 
 
 This right pofieifed by the People of Eng* 
 land, conftitutes the great difference between 
 them, and all the other Nations that live un- 
 der 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 Government, not only more effectual, 
 but alfo (which is more in point to the fub- 
 ject of this Chapter) incomparably more laft- 
 ing and fec'ure, than thofe referred to the 
 People in the States we mention. 
 
 In thofe States, the political rights which 
 ufually fall to the (hare of the People, are 
 thofe of voting in general AiTemblies, either 
 when laws are to be enacted, or Magiftrates 
 to be elected. But as the advantages arifing 
 from thefe general rights of giving votes, 
 never are very clearly afcertained by the Peo- 
 ple, fo neither are the 'confequences attending 
 particular forms or modes of giving thefe 
 
 B 4-
 
 3*6 THE CONSTITUTION 
 
 votes, generally and compleatly underftood 
 by them. They, in confequence, never en- 
 tertain any ftrpng and conftant preference 
 for one method rather than another j and it 
 hence always prove* but too eafy a thing in 
 Republican States, either by infidious pro- 
 gftfik made at particular tinvr s to the People, 
 or by well-contrived precedents, or other 
 means, firft, to reduce their political pri- 
 ces to mere ceremonies and forms, and 
 at laft, intirely toabolifti them. 
 
 Thus, in the Roman Republic, the mode 
 whieh was conftantly in ule for about one 
 hundred and fifty years, of dividing the Ci- 
 tizers into Ccaturite when they gave their 
 votes, reduced the right of the greater part 
 of them, during that time, to little more 
 than a madow, After the mode of dividing 
 them by Tribes had been introduced by the 
 Tribunes, the bulk of the Citizens indeed 
 were nor, when it was ufed, under fo great 
 a diladvantage as before -> but yet the great 
 privileges exercifed by the M^giftrares in all 
 the public Alfem'olies, the power they af- 
 fumed of moving the Citizens out of one 
 Tribe into another, and a number of other 
 circumftance% continued to render the rights 
 of the Citizens more and rw r * ineffectual ; 
 and in fad we do not find th.3t when thele
 
 OF ENGLAND. 377 
 
 rights were at laft intirely taken from them, 
 they exprefled any great degree of difcontent. 
 
 In Sweden (the former Government of 
 which partook much of the Republican form) 
 the right allotted to the People in the Govern- 
 ment, was that of fending Deputies to the 
 States of the Kingdom, who were to give 
 their votes on the refolutions that were to be 
 taken in that Aflembly. But the privilege of 
 the People of fending fuch Deputies was, 
 in the fiFft place, greatly diminilhed by feveral 
 effential difadvantages under which thefe De- 
 puties were placed with refpect to the Body, 
 or Order , of the Nobles. The fame pri- 
 vilege of the People was farther leffened by 
 depriving their Deputies of the right of freely 
 Jaying their different propofals before the 
 States, for their affent, or dhTent, and attri- 
 buting the exclufive 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 ha- 
 vins: a number of Members in this Secret 
 Committee double to that of all the other Or- 
 ders taken together, rendered the rights of 
 the People ft ill more ineffectual. At the laft 
 Revolution thofe rights have been in a manner 
 taken from them -, and they do not feem to 
 have made any great efforts to preferve them. (a) 
 
 (*) I might have produced examples without num.-
 
 378 THE CONSTITUTION 
 
 But the fkuation of affairs in England is 
 totally different from that which we havejuft 
 defcribed. The political rights of the Peo- 
 ple are inseparably connected with theright 
 of Property, with a right which it is as diffi- 
 cult to invalidate by artifice, as it is dangerous 
 to attack it by force, and which we fee that 
 the moft arbitrary Kings, in the full career of 
 their power, never have offered to violate 
 without the greateft precautions. A King 
 of Lngl.nd, who would enflave his People, 
 muft begin with doing, for his firft act, what 
 all other Kings referve for the laft ; and he 
 cannot attempt to deprive his Subjects of their 
 political privileges, without declaring waF 
 againfl the whole Nation at the fame time, 
 and attacking every individual at once in 
 his moft permanent and befl underftood in- 
 tereft. 
 
 And the means poffefTed by the People of 
 England of influencing the conduct of the 
 Government, is not only in a manner fecure 
 againfl any danger of being taken from them : 
 
 ber, of Republican States in which the People have 
 been brought, at one time or other, to fubmit to the 
 total lofs of their political privileges. In the Venetian 
 Republic, for inftance, the right, now exclusively veiled 
 in a certain number of families, of enabling laws, and 
 elecling the Doge and other Magiftrates, was originally 
 veiled in the whole People.
 
 OF ENGLAND. 379 
 
 k is moreover attended with another advan- 
 tage of the greateft importance ; which is 
 that of conferring naturally, and as it were 
 necefiarily, on thofe to whom they truft the 
 care of their intereits, the great privilege we 
 have before defcribed, of debating among 
 themfelves whatever queftions they think 
 conducive to the good of their Conftituents, 
 and of framing whatever bills they think 
 proper, and in what terms they chufe. An 
 effential privilege this, which gives them a 
 molt effectual means of providing for the 
 fafety of all the other rights of the People, 
 and enables them to check in their beginning 
 all attempts of practices that might be dan- 
 gerous to public liberty, and even to pro- 
 cure thofe to be abolifhed that have al- 
 ready in any manner whatfoever been efta- 
 blifhed. 
 
 How long foever the People may have 
 remained in a ftate of fupinenefs as to 
 their mod valuable interefts, whatever may 
 have been the neglect and even the er- 
 rors of their Representatives, the inftant 
 the latter come either to fee thefe errors, 
 or to have a fenfe of their duty, they be- 
 gin, by means of the privilege we men- 
 tion, effectually to repair the loffes of pub- 
 Jic liberty j they inform both themfelves
 
 5 8o TtfE CONSTITUTION 
 
 and the body of the people with refpedt to 
 the main and effential objects of their inte- 
 refts ; they take the neceffary precautions 
 for preventing thofe abufes of which they 
 complain from being continued, and others 
 of the fame kind from being eftablifhed ; and 
 the governing Power (whatever dangerous 
 advantages it may at firft fight appear to 
 poffefs) is thus conftantly, either confined, or 
 brought back, to its ancient limits, (a) 
 
 And I fhall take this opportunity to make 
 the Reader obferve, in general, how the dif- 
 ferent parts of the Englifh Government mu- 
 tually afuft and fupport each other. It is be- 
 caufe the whole Executive authority in the 
 State is veiled in the Crown, that the Peo- 
 ple may without danger commit the care of 
 their liberty to Reprefentatives : it is be- 
 caufe they fhare in the Government only 
 through thefe Reprefentatives, that they are 
 enabled to poflefs the great advantage of fra- 
 ming and propofing new laws : but for this 
 purpofe, it is again abfolutely neceflary that 
 
 (a) The Reader m-iy remember that among the Acts 
 of which the Parliament obtained the abolition in the 
 beginning of cbc reign of Edward VI. that Act was com - 
 prifed which had enacted, that the Proclamations of the 
 Crown fhould have the force of Law. The Parliament 
 who had paiTed that Aci, fcemed to have done at that 
 tiir.e, what the Danifh Nation did a century afterwards.
 
 OF ENGLAND.. . 3 Zt 
 
 the Crozwt, that is to fay, a Veto of extraor- 
 dinary power, mould exift in the State. 
 
 It is, on the other hand, becaufe the ba- 
 lance of the People is placed in the right of 
 granting to the Crown its necefiaiy fupplies, 
 that the latter may, without danger, be in- 
 tra fled 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 difiblving Parliaments (a right 
 absolutely neceffary to its prefervation) may 
 exift without producing, ipfo falo> the ruin 
 of public Liberty. The fineft Government 
 upon Earth, or rather that which has hither- 
 to been founded' upon principles the mod 
 confonant with human Nature, was in dan- 
 ger of total deftruclion, when Bartholomew 
 Columbus was on his'pafTage 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 pe- 
 culiar to the Englim Government, and 
 which, more than any other we could men- 
 
 {a) As affairs are fituated in England, thediffolution 
 of a Parliament on the part of the Crown, is no more 
 than an appeal either to the People themfeives, ex to 
 another Parliament.
 
 382 THE CONSTITUTION 
 
 tion, muft contribute to its duration. AH the 
 political pafiions of Mankind, if we attend 
 to it, are fatisfied and provided for in the 
 Englifh Government; and whether we look at 
 the Monarchical, or the Ariftocratical, or 
 the Democratical part of it, we find all thofe 
 powers already fettled in it in a regular man- 
 ner, which have an unavoidable tendency to 
 arife, at one time or other, in all human So- 
 cieties. 
 
 If we could for an inftant fuppofe that 
 the Englifh form of Government, inftead of 
 having been the effecl of a lucky concur- 
 rence of fortunate circumltances, had been 
 eftablifhed from a fettled plan by a Man who 
 had difcovered, beforehand and by reafoning, 
 all thofe advantages refulting from it which 
 we now perceive from experience, and had 
 undertaken to point them out to other Men 
 capable of judging of what he faid to them, 
 the following is, no doubt, the manner in 
 which he would have fpoken to them. 
 
 Nothing is more chimerical, he would 
 have faid, than a ftate of either total equality, 
 or total liberty asiongft Mankind. In all 
 focieties of Men, fome Power will necef- 
 farily arife. This Power, after gradually 
 becoming confined to a fmaller number of 
 perfons, will, by a like neceflky, at lafl fall
 
 OF ENGLAND. 383 
 
 into the hands of a fingle Leader; and thefe 
 two effects (of which you may fee conflant ex- 
 amples in HiftoryJ flowing from the ambi- 
 tion of one part of Mankind, and the various 
 affections and pafiions of the other, are abfo- 
 Jutely unavoidable. 
 
 Let us, therefore, admit this evil at once, 
 fince it is impofiible to avoid it. Let us, of 
 ourfelves, eftablifh a Chief among us, fince 
 we muft, fome time or other, fubmit to one : 
 we mall by this means effectually prevent the 
 conflicts that would arife among the compe- 
 titors for that (ration. But let us, above all, 
 eftablifh him fingle ; left, after fucceflively 
 raifing himfelf on the ruins of his Rivals, he 
 mould eftablifh himfelf, whether we will or 
 not, and through a train of the moft pernicious 
 combinations. 
 
 
 Let us even give him every thing we can 
 poflibly give without endangering our fecu- 
 rity. Let us call him our Sovereign , let us 
 make him coniider the State as being his own 
 patrimony ; let us grant him, in fhort, fuch 
 perfonal privileges as none of us can ever 
 hope to rival him in, and we fhall find that 
 what we were at ruff inclined to confider as a 
 great evil, will be in reality a fource of advan- 
 tages to the community, we fhall be the 
 better able to fet bounds to that Power which
 
 /3 8 + THE CONSTITUTION 
 
 we fhall have thus fixed and afcertained in 
 one place ; we fhall have the more interefted 
 the Man whom we fhall have put in poflef- 
 fion of fo many advantages, in the faithful 
 difcharge of his duty ; and we fhall have 
 thus procured for each of us, a powerful 
 protector at home, and for the whole Com- 
 munity, a defender againft foreign enemies 
 fuperior to all pofiible temptation of betraying 
 his Country. 
 
 You 1 may alfo have obferved, he would 
 continue, that in all States, there naturally 
 arifes around the perfon, or perfons, who are 
 lied with the public power, a clafs of 
 Men, who, without having any actual fhare 
 in that power, yet partake of its luitre : who, 
 pretending to be diftingurfhed from the reft 
 of the Community, do, from that very circum- 
 stance, become diftinguifhed from them: and 
 this difl:ndtion, though only matter of opi- 
 nion, and at firft thus furreptitioufly obtained, 
 yet, becomes at lafl the fource of very grievous 
 effects. 
 
 Let us therefore regulate this evil which 
 we cannot intirely prevent. Let us eflablifh 
 this clafs of Men who would otherwife grow 
 up among us without our knowledge, and 
 gradually acquire the mod pernicious privi- 
 leges : let us grant them diftinctions that are
 
 OF ENGLAND. 385 
 
 vifible and clearly afcertained : their extent 
 will, by this means, be the better underftood, 
 and they will of courfe be much lcrfs likely 
 to become dangerous. By this means alfo, 
 we mall preclude all other perfons from the 
 hopes of ufurping them. As to pretend to 
 diiti notions can. thenceforward be no longer a 
 title to obtain them, every one who (hall 
 not bs exprefsly included in their number, 
 muit continue to confefs himfelf one of the 
 People ; and juft as we faid before, let us 
 chufc ourfeives one Mailer that we may not 
 have fifty, fo let us again fay on this occafioi 
 let us eftablifh three hundred Lords, that w 
 may not have ten thoufand Nobles. 
 
 Befides, our pride will better reconcile 
 itfelf to a fuperiority which it will no longer 
 think of difputing. Nay, as they will them- 
 felves fee us to be beforehand in acknow- 
 ledging it, they will think themfelves under 
 no Heceffity of being infolent to furnifh us a 
 proof of it. Secure as to their privileges, all 
 violent meafures on their part for maintain- 
 ing, and at laft perhaps extending them, will 
 be prevented ; they will never combine to- 
 gether with any degree of vehemence, but 
 when they really have caufe to think them- 
 felves in danger; and by having made them 
 indifputably great Men, we ihall have a 
 
 C c
 
 3 S6 THE CONSTITUTION 
 
 chance of often feeing them behave like mo- 
 del! and virtuous Citizens. 
 
 Jn 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. 
 
 It is alfo neceffary, our Lawgiver would 
 farther add, that we, the People, mould have 
 an influence upon the Government : it is 
 necefTary f r our own fccurity ; it is no lefs 
 neceffary for the fecurity of the Government 
 itfelf. But experience muft have taught you, 
 at the fame time, that a great body of Men 
 cannot adT, without being, though they are 
 not aware of it, the inftruments of the de- 
 figns of a fmall number of perfons; and that 
 the power of the People is never any thing 
 but the power of a few Leaders, who (though 
 it may be impoffible to tell when, or how) 
 have found means to fecure to themfelves 
 the direction of its exercife. 
 
 Let us, therefore, be alfo befoiehand with 
 this other inconvenience. Let us effcft 
 openly- what would, otherwife, take place 
 in fecret. Let us intruft our power, before 
 it be taken from us by addrefs. Thofe whom 
 we mall have exprefsly made the depofitaries 
 of it, being freed from any anxious care 
 about fupporting themfelves, will have no 
 object but to render it ufeful. They will
 
 OF ENGLAND. 387 
 
 (land in awe of us the more, becaufe t'ney 
 will know that they have not impofed upon 
 lis-, and inftead of a fmall number of Lead- 
 er?, who would imagine they derive their 
 whole importance from their own dexterity, 
 we mall 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 of a fmall number of perfons, we (hall 
 prevent any diforder that may take phce in 
 it, from ever becoming dangerouQy extenfive. 
 Nay more, we fhall render it capable of in- 
 eftimable combinations and refources, which 
 would be utterly impoffible in that Govern- 
 ment of all, which never can be any thing 
 but uproar and confufion. 
 , In ihort, by exprefsly divefting ourfelves of 
 a power of which we fhould, at bed, have 
 had only an apparent enjoyment, we (hall 
 be intitled to make conditions for ourfelves : 
 we will infill that our liberty be augmented i 
 we will, above all, referve to ourfelves the 
 right of watching and cenfuring that adtnini 
 ftration which will have been tftablimed 
 only by our own confent. We mail the 
 better fe"e its defects, becaufe we fnall be 
 only its Spectators j we fhall correct them the 
 
 Cc %
 
 388 THE CONSTITUTION 
 
 better, becaufe we fhall be independent of 
 
 The Englifh Conftitution being founded 
 upon fuch principles as thofe we havejuft 
 defcribed, no true comparifon can be made 
 between it, and the Governments of any other 
 States-, and fince it evidently infures, not 
 only the liberty, but the genera! fatisfaclion 
 in all refpe&s of thofe who are fubjecT: to ir, 
 in a much greater degree than any other Go- 
 vernment ever did, this confideration alone 
 affords fufficient ground to conclude, without 
 looking farther, that it is a!fo much more 
 likely to be preferved from ruin. , 
 
 And indeed we may obf^rve the remarka- 
 ble manner in which it has been maintained 
 in the mic'fl: of fuch general commotions as 
 feemed unavoidably to prepare its deflruc- 
 tion. It rofe again, we fee, after the wars 
 between Henry the Third and his Parens , 
 afier the ufurpation of Henry the Fourth ; 
 
 (a) He might have added> As we will not feek to- 
 counter aft nature, but rather to follow it, we fhall be 
 able to procure ourfelves a mild Legiflation. Let ui 
 not be without caufe afraid of the power of one Man : 
 we fhall have no need either of a Tarpcian rock, or of 
 a Council of Ten. Having exprefsly alloyed to the 
 People a liberty to enquire into the conduft of Govern- 
 ment, and to endeavour to correft it, wc fhall need 
 neither Staic-prifons, nor fecret Informers.
 
 OF ENGLAND. 389 
 
 and after the long and bloody contentions 
 between the Houfes of York and Lancafler. 
 Nay, though totally deftroyed in appearance 
 after the fall of Charles the Firft, and though 
 the greateft efforts had been made to eftablilh 
 another form of government in its ftead, 
 yet, no fooner was Charles the Second called 
 over, than the Conftitution was re-eftablimed 
 upon all its ancient foundations. 
 
 However, as what has not happened at 
 one time, may happen at another, future 
 Revolutions (events which no form of Go- 
 vernment can totally prevent) may perhaps 
 end in a different manner from that in which 
 pafl ones have been terminated. New com- 
 binations may pofllbly take place among the 
 then ruling Powers of the State, of fuch a 
 nature as to prevent the Conftitution, when 
 peace mail be reftored to the Nation, from fet- 
 tling again upon its ancient and genuine foun- 
 dations , and it would certainly be a very bold 
 affertion to decide that both the outward 
 form, and the true fpirit of the Englifh Go- 
 vernment, would again be preftrved from 
 deduction, if the fame dangers to which 
 they have in former times, been expofed, 
 mould again happen to take place. 
 
 Nay, fuch fatal changes as thofe we men- 
 tion, may be introduced even in quiet times, or 
 
 C c 3
 
 390 THE CONSTITUTION 
 
 at leaft, by means in appearance constitutional. 
 Advantages, for inftance, may be taken by 
 particu'ar fa&ions, either of the feeble tem- 
 per, or of the mifconduct, of fome future 
 King. Temporary prepofTefT:ons of the Peo- 
 ple 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 
 improvement in the Constitution, forwarded 
 by Men who fhall proceed without a dee 
 knowledge of the true principles and founda- 
 tions of Government, may produce effects 
 quite contrary to thofe which were intended, 
 and in reality prepare its ruin, (a) The 
 
 (a) Inftead of looking for the principles of Politics 
 in their true fources, that is to fay, in the nature of 
 .the affeftions 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 natural Philofophy in 'the times of Ariftotle, 
 continually recurring to occult caufes and principles 
 from which no ufeful confequence could be drawn. 
 Thus, in erder to ground particular aflertions, they 
 have much ufed the word ConiHtution, in a perfonal 
 fenfe, the Ccnjlitution loves, the Ccnfiitution forbids, 
 and the like. At other times, they have had reccurfe 
 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 comparifons, 
 drawn from the human Body, have been alfo ufed for 
 the fame purpofes. Nor is it only the obfeurity of the
 
 OF ENGLAND. 391 
 
 Crown, on the other hand, may, by the ac- 
 quifition of foreign dominions, acquire a fatal 
 independency on the People : and if, with- 
 out entering into any farther particulars on 
 this fubject, I were required to point out the 
 principal events which would, if they were 
 ever to happen, prove immediately the ruin 
 of the Englifh Government, I would anfvver, 
 the Englifh. Government will be no more, 
 either when the Crown mall become inde- 
 pendent on the Nation for its fupplies, or 
 when the Representatives of the People ihall 
 begin to mare in the Executive authority, (a) 
 
 writings of Politicians, and the impoffibility of ap- 
 plying their fpeculative Doctrines to practical ufes, 
 that proves that fome peculiar and uncommon difficul- 
 ties attend the inveftigation of political truths; but the 
 fingular perplexity which Men in general, even the 
 ableft, labour under when they attempt to difcufs ab- 
 ftratt queftions in politics, alfo juflifies this obferva- 
 tion, and proves that the true firft principles of this 
 Science, whatever they are, lie deep in both the hu- 
 man heart and underflanding. 
 
 (a) And if at any time, any dangerous changes were 
 to take place in the Englifh Conftitution, the perni- 
 cious tendency of which the People were not able at 
 iirfl. to difcover, reftri&ions on the Liberty of the Prefs, 
 and on the Power of Juries, will give them firit in- 
 formation, 
 
 Cc4
 
 ' 35 THE CONSTITUTION 
 
 CHAPTER XIX. 
 
 Conclufim. A few words on the nature of the 
 Divi/ions that take place in England. 
 
 I Shall conclude this Work with a few 
 obfervations on the total freedom from 
 violence with which the political debates and 
 contentions in England are conducted and 
 terminated, in order both to pive a farther 
 proof of the foundnefs of the principles on 
 which the Englim Government is founded, 
 and to confute, in general, the opinion of 
 foreign Writers or Politicians who, milled by 
 the apparent heat with which thefe debates 
 arc fometimes carried on, and the rumours to 
 which they give occafion, look upon England 
 as a perpetual fecne of civil broils and dif- 
 fenfions. 
 
 In fac% if we confider, in the firit place, 
 the conftant tenour of the conduct of the 
 Parliament, we mall fee that vvhatever differ- 
 ent plans the feveral Crd.rb that compofe it, 
 may at times purfue, and whatever ufe they 
 may, in confequence, make of their privi- 
 leges, they never go, with regard to each 
 pther, beyond the terms, not only of de?
 
 OF ENGLAND. 393 
 
 eency, but even of that general good under- 
 Handing which ought to prevail among them. 
 
 Thus the King, though he preferves the 
 ftyle of his Dignity, never addrefles 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; which is certainly a gentler exprefr 
 lion than the word Veto. 
 
 The two Houfes on their part, though very 
 jealous, each within their own walls, of the 
 freedom of Speech, are, on the other hand, 
 extremely 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 among them never to mention 
 him, when they mean to blame the admini- 
 flration ; and thofe things which they may 
 chufe to cenfure, even in the Speeches made 
 by the King in perfon, and which are plainly 
 his own afts, are never confidered but as the 
 faults of his Miniflen, or in general of thofe 
 who have advifed him. 
 
 The two Houfes are alfo equally attentive 
 to prevent every flep that may be inconfiflent 
 with that refpect which they mutually owe to 
 one another. The examples of their differ- 
 ences with each, other, are very rare, and were
 
 394 THE CONSTITUTION 
 
 for the moll part mere mifunderftandings. 
 Nay, in order to prevent all fu eject of" alter- 
 cation, the cuflom is, that when one of the 
 two Houfes refufes to confent to a Bill pre- 
 fented by the other, no formal declaration is 
 mae'e of fuch refufal; and the Houfe whofe 
 Bill is reiefted, lean.s its fate only from their 
 hearing no more of it, or by what the Mem- 
 bers may be told as private pcrfons. 
 
 Jn each Houfe, the Members take care, 
 even in the heat of debate, never- to go be- 
 yond certain bounds in their manner of fpeak- 
 ing of each other j and if they were to offend 
 in that refpect, they would certainly incur the 
 cenfnre 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 object of their 
 contentions, fo a kind of Law of Nations 
 (if I may fo exprefs myfelf) has been intro- 
 duced smong the perfons who form the 
 Parliament, and take a part in the de- 
 bates: they have difcovered that they may 
 very well be of opposite parties, and yet, 
 not hate and perfecute one another. Coming 
 frefh from debates carried on even with con- 
 fiderable warmth, they meet without reluc- 
 tance in the ordinary intercourfe of life ; and
 
 OF ENGLAND. 39 $ 
 
 fufpending all hoftilities, they hold every place 
 out of Parliament, to be neutral ground. 
 
 With regard to the generality of the Peo- 
 ple, as they never are called upon to come 
 to a final decifion with refpect to any public 
 meafures, or exprefsly to concur in fupport- 
 ing them, they preferve themfelves {till more 
 free from party fpirit than their Keprefenta- 
 tives themfelves fometimes.are. Confidering, 
 as we have obferved, the affairs of Govern- 
 ment as only matter of fpeculation, they ne- 
 ver have occafion to engage in any vehement 
 contefls among themfelves on that account. 
 JMuchlefs do they allow themfelves to take 
 an ailive and violent part in the differences of 
 particular factions, or the quarrels of private 
 individuals. And thofe family feuds, thofe 
 party animofities, thofe victories and confe- 
 quent outrages of alternately fuccefsful fac- 
 tions, in fhort, all thofe inconveniences which 
 in fo many other States have conftantly been 
 the attendants of liberty, and which Authors 
 tell us we rauft fubroit to as the price of it, 
 are things totally unknown in England. 
 
 But are not the Engliih perpetually ma- 
 king complaints againft the Adminiflration ? 
 and do they not fpeak and write as if they 
 were continually expofed to grievances of 
 every kind ?
 
 -96 THE CONSTITUTION 
 
 Undoubtedly, I anfvver, in a Society of 
 Beings fubjecl to error, difiatisfaclions, from 
 one quarter or other, will neceflarily arife ; 
 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, an J as, to watch over the 
 Adminiilration, and to complain of griev- 
 ances, is the proper duty of the Keprefenta- 
 tives of the People, complaints muft ne- 
 ceilarily be heard in fuch a Government, and 
 even more frequently, and upon more fub- 
 jets, than in any other. 
 
 But thofe complaints, it mould be remem- 
 bered, are not, in England, the cries of op- 
 prefllon 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 unfettied con- 
 ceptions. 
 
 The agitation of men's minds is not there- 
 fore in England what it would be in other 
 States , it is not the fymptom of a profound 
 and general difcontent, and the forerunner of 
 violent commotions. Forefeen, regulated, even 
 hoped for by the Constitution, it animates
 
 OF ENGLAND. 397 
 
 all parts of the State, and is to be con- 
 fidered only as the beneficial viciffitnde of the 
 feafons. The Power which governs, being 
 dependant on the Nation, but poffeffing at 
 the fame time the general affection of the 
 l'eople> is often thwarted, but never endan- 
 gered. Like a vigorous Tree which flretches 
 its branches far and wide, the ilighteft breatli 
 puts it in motionj but it acquires and exerts 
 at every inftant a new degree of force, and 
 refills the Winds, both by the ftrength and 
 elaiticity of its fibres, and the depth of its 
 roos. 
 
 In a word, whatever Revolutions may at 
 tim s happen among the perfons who conduct 
 the public affairs in England, they never oc- 
 cafion the ihortell ceffation of the power of 
 the Laws, nor the fmalleft: diminution of the 
 fecurity of individuals. A Man who ihould 
 have incurred the enmity of the moft power- 
 ful Men in the State what do 1 fay ? though 
 he had, like another Pafimtts, drawn upon 
 himfelf the united deteftation of a ] l parties, 
 he might, under the protection of the Laws, 
 and by keeping within the bounds prefcribed 
 by them, continue to fet both his enemies 
 and the whole Nation at defiance. 
 
 The limits prefcribed to this book do nor.
 
 3 9 3 THE CONSTITUTION 
 
 allow us to enter into any farther particulars 
 on the fubject we are treating here ; but if 
 we were to make an inquiry into the in^ 
 fluence which the Englifh Government has 
 on the manners and cuftoms of the People 
 of England, perhaps we ihould find that, 
 inftead of infpiring them with any difpofition 
 to diforder or anarchy, it produces on them 
 a quite contrary effect. As they fee the 
 higheft Powers in the State constantly fub- 
 mit to the Laws, and they receive, them- 
 felves, fuch a certain protection from thefe 
 laws, whenever they appeal to them, it is 
 impoflible but they mull infenfibly contract 
 a deep-rooted attachment and relpect for 
 them, which can at no time ceafe to have 
 fome influence on their actions. And in 
 fact, we fee that even the lower clafs of the 
 People, in England, notwithftanding the 
 apparent exceffes into which they are fome- 
 times hurried, poflefs 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 fhewn 
 to accufed perfons of every degree, is not 
 attended with any of thofe pernicious con- 
 fequences which we might at firft be apt to 
 fear from it. And it is perhaps to the na~
 
 OF ENGLAND. 599 
 
 ture of the Engliih Government itfelf (how- 
 ever remote the caufe may Teem) and to 
 the fpirit of Juftice it continually and infen- 1 
 fibly diffufes throughout all orders of the 
 People, that we are to attribute the fingular 
 advantage poffefTd by the Englifh Nation, 
 of employing an incomparably milder mode 
 of adminiftering Juftice in criminal matters, 
 than any other Nation, and at the fame time 
 of affording perhaps fewer inftances of vio- 
 lence or cruelty. 
 
 Another confequence which we might ob- 
 ferve here, as flowing alfo from the princi- 
 ples of the Englifh Government, is the mo- 
 derate behaviour of all thofe who are in- 
 veiled with any branch of public authority. 
 And if we look at the conduct of all public 
 Officers in England, from the Minifter of 
 State, or the Judge, down to the loweft 
 officers o{ Juftice, we find a fpirit of for- 
 bearance and lenity prevailing in England, 
 among all perfons in power, which cannot 
 but create the greateft iurprife in thofe who 
 have vifited other Countries. 
 
 One circumftance more I (hall obferve 
 here, as peculiar to England, which is the 
 conftant attention of the Legiflature in pro- 
 viding for the interefts and welfare of the
 
 400 THE CONSTITUTION 
 
 People, and the indulgences fhewn by thenl 
 to their very prejudices. Advantages thefe, 
 which are no doubt the confequence of the 
 general fpirit which animates the whole 
 Englifh Government, but are aifo particu- 
 larly owing to that circumftance peculiar to 
 it, of having lodged the active part of Le- 
 giflation in the hands of the Reprefentatives 
 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 whofe fureft path to advance- 
 ment and glory is to be active in finding re- 
 medies for them. 
 
 Not that I mean, however, ' that no abufes 
 rake place in the Englifh Government, and 
 that all pofiible good laws are made in it, 
 but that there is a conftant 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 ap- 
 pealed to, is what Ilook upon as the cha- 
 racteriftic and undifputed advantage of the 
 Englifh Conftitution. A Conftitution the 
 more likely to produce all the effects we have 
 mentioned, and to procure in general the 
 happinefs of the People, in that it has taken 
 Mankind as they are, and has not endea-
 
 OF ENGLAND. 401 
 
 Voured to prevent every thing, but to regu- 
 late every thing. I fhall add, the more dif- 
 ficult to difcover, becaufe its form was com- 
 plicated, while its principles were natural 
 and fimple. Hence it is that the Politicians 
 of Antiquity, fenfible of the inconveniences 
 of the Governments they had opportunities 
 of knowing, wilhed for the eftabiifhment 
 of fuch a Government, without much hopes 
 of ever feeing it effected : (a) nay, Tacitus, 
 the bell Judge of them all, confidered it as 
 a project: intirely chimerical, (b) Nor was 
 it becaufe he had not thought of --it, had not 
 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. 
 
 Let us not therefore afcribe to the con- 
 fined views of Man, to his imperfect faga- 
 city, the difcovery of this important fecret. 
 
 () " Statuo efleoptime conftitutam Rempublicam 
 " qua; ex tribus generibus illis, regali, Optimo, & po- 
 " pulari, modice confufa-" Cic. fragm. 
 
 () " Cunclas Nationes & Urbes, Populus, aut 
 " Priores, atuSinguli, regunt. Dele&a ex his & con- 
 " ftituta Republic* forma, laudari facilius, quam eve- 
 " nire; vel /i evenit, haud diuturna ette potelt." 
 Tac. Ann. L. iv. 
 
 Dd
 
 4<* THE CONSTITUTION 
 
 The world might have grown old, genera- 
 tions might have fucccedcd generations, (till 
 feeking it in vain. It has been by a fortunate 
 conjunction of circumftances, I will add, by 
 the affiftance of a favourable fituation, that 
 Liberty has at laft been able to erect herfelf 
 a Temple. 
 
 Invoked by every Nation, but of too de- 
 licate a nature, as it fhould feem, to fubfift 
 in Societies formed of fuch imperfect beings 
 as Mankind, me (hewed, and but juft mewed, 
 herfelf, to the ingenious Nations of antiquity 
 that 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 conquefl 
 over other Nations, they were no lefs miftaken 
 in the fpirit of that worfhip ; and though 
 they continued for ages to pay their devotions 
 to her, (he ftill continued, with regard to 
 them, to be the unknown Goddefs. 
 
 Excluded, fince that time, from thofe places 
 to which me had feemed to give a preference, 
 driven to the extremity of the Weftern 
 World, baniftied even out of the Continent*, 
 fhe has taken refuge in the Atlantic Ocean'. 
 Jc is there, thar, freed from the danger of
 
 OF ENGLAND. 403 
 
 external difturbance, and affifted by a happy 
 pre-arrangement of things, (he has been able 
 fulfy todifplay the form that fuited her , and 
 fhe has found fix centuries to have been ne- 
 ceflfary to the completion of her Work* 
 
 Being flickered, as is were, within a Cita- 
 del, fhe there reigns over a Nation which 
 is the better entitled to her favours as it en- 
 deavours to extend her Empire, and carries 
 with it, to every part of its dominions, the 
 bleflings of induftry and equality. Fenced 
 in on every tide, to ufe the expreffions ot 
 Chamberlayne, with a wide and deep ditch, 
 the fea, guarded with ftrong outworks, itg 
 mips of war, and defended by the courage 
 of its Seamen, it preferves that important 
 fecret, that facred fire, which is fo difficult 
 to be kindled, and which, if it were once 
 extinguished, would perhaps never be lightec} 
 again. When the World fhall have again 
 been laid wafte by Conquerors, it will ftill 
 continue to (hew Mankind, not only the prin- 
 ciple that ought to unite them, but what is 
 of no lefs importance, the form under which 
 they ought to be united. And the Phi- 
 Jofopher, when he reflects on what is con- 
 stantly the fate of civil Societies amongft
 
 44 THE CONSTITUTION, &c. 
 
 Men, and obferves with concern the numerous 
 and powerful caufes which feem, as it were, 
 unavoidably to conduct them all to a ftate of 
 incurable political Slavery, takes comfort in 
 feeing that Libeity has at laft difclofed her 
 fecret to Mankind, and fecured an Afylum 
 to herfelf. 
 
 THE END; 
 
 ' S
 
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