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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
UNIVERSITY OF CALIFORNIA LIBRARY
Los Angeles
This book is DUE on the last date stamped below.
Form L9-Series 4939
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