TUB 
 
 CONSTITUTION OF ENGLAND.

 
 THE 
 
 CONSTITUTION OF ENGLAND; 
 
 OR, 
 
 AN ACCOUNT OF 
 
 THE ENGLISH GOVERNMENT ; 
 
 REPUBLICAN FORM OF GOVERNMENT, 
 
 ANP THE 
 
 OTHER MONARCHIES IN EUROPE 
 
 BY 
 
 JOHN LOUIS DE LOLME, L.L.D., ADVOCATE, 
 
 CITIZEN OF GENEVA. 
 
 & *NTfo lEHhion, SclucatcD to tfte iUitg, 
 WITH PREFACE, SUPPLEMENTAL NOTES, AND INDEX, 
 
 BY 
 
 WILLIAM HUGHES HUGHES, ESQ. M.P. F.S.A. F.L.S. 
 
 BARRISTER AT LAW, OF THE HONOURABLE SOCIETY OF LINCOLN'S INN ; 
 
 ONE OF HIS MAJESTY'S JUSTICES OF THE PEACE FOR THE COUNTY OF 
 
 MIDDLESEX, AND CITIES OF WESTMINSTER AND OXFOHDJ 
 
 A VICE-PRESIDENT OF THE SOCIETY OF ARTS ; &C. &C. 
 
 Pomleribuslibrata suis 
 
 Ovio. Met. Lib. i. v. l.'j. 
 
 LONDON : 
 
 J. HATCHARD AND SON, 187, PICCADILLY; 
 
 H. SLATTER; I.VINCENT; OXFORD. 
 
 1834.
 
 [ENTERED AT STATIONERS' HALL.] 
 
 LONDON: 
 
 inOTSON AND PALMER, PRINTERS, SAVOY STREET, STRAND.
 
 \n 
 
 TO THE 
 
 KING'S MOST EXCELLENT MAJESTY. 
 
 SIRE, 
 
 I am emboldened to inscribe to your Majesty a 
 new and extended edition of the most approved 
 Treatise which has yet appeared on the Constitu- 
 tion of England, by the circumstance, that its 
 Author, most appropriately, dedicated to your 
 Majesty's illustrious Father the Edition of his work 
 which had received his last corrections in the 
 year 1784. 
 
 That the mild and paternal sway of your Ma- 
 jesty may be long- and prosperously continued over 
 a loyal and grateful people, is the sincere and 
 ardent prayer of, 
 
 Sire, 
 
 YOUR MAJESTY'S 
 Most humble and devoted Subject, 
 
 \V. HUGHES HUGHES. 
 
 Rydc, Isle of Wight, Jan. 1, 1834.
 
 THE 
 
 EDITOR'S PREFACE. 
 
 THE circumstance which suggested to the Editor his 
 present undertaking was the presentation of a copy of this 
 work, by one of his friends,* to the youthful queen of 
 Portugal, on the eve of her embarkation for Lisbon, in Sep- 
 tember last. The gift was accompanied by an address, in 
 which her majesty was reminded that. " De Lolme on the 
 " Constitution of England deserved to be written in letters 
 " of gold, and was worthy the consideration of every 
 " crowned head in Europe. 1 ' It occurred to the Editor, 
 that no edition of the work, extant, conveyed an adequate 
 idea of the present state of the English constitution ; and 
 that a new and extended edition would be considered a 
 desideratum by all classes of the public. 
 
 Editions of the work, since that published in 1784 which 
 received the last corrections of the Author, have from time 
 to time appeared, but the present is the only instance, it is 
 believed, in which an editor has thought fit to attach to his 
 supplemental notes the responsibility of his name. This 
 may account for the many imperfections of those editions, 
 not to insist on the glaring inaccuracies which abound in 
 the notes to some of them. Of these inaccuracies it has 
 
 * I. I. Briscoe, Ksq. M. P. for the eastern division of the county of 
 Surrev.
 
 viii THE EDITOR'S PREFACE. 
 
 been considered right to expose an instance in a note attached 
 to page 76 of this volume. No new edition, moreover, 
 has been published for twelve years, during which period 
 many most essential alterations have taken place. 
 
 The design of the Editor is simply to lay before the 
 reader, in the shape of notes, as occasion is presented 
 throughout the work, the most important changes effected in 
 our institutions in the course of the last fifty years, especially 
 by the union with Ireland in 1801 ; those alterations of the 
 civil, and ameliorations of thecriminal code, which have been 
 made in the last, and in the present reign ; and the several 
 acts for the amendment of the representation of the people in 
 parliament passed in 1832. The notes of the Editor are 
 distinguished from those of the Author, by numerical refer- 
 ences, and the word " Editor" attached to them. 
 
 Were he to follow the example of some of his predecessors, 
 the Editor would attempt to gratify the curiosity of the pub- 
 lic, frequently at the expense of truth, and occasionally at a 
 sacrifice of delicacy, by affecting to give particulars of the 
 life and character of the Author, of which, it is confessed, 
 few are known with any certainty. Considering, however, 
 how greatly mankind are indebted to the writer, whatever 
 may have been his faults, and that the Editor's concern is 
 with the work, and not the life of him who wrote it; 
 anxious, moreover, that the present edition should be pub- 
 lishe*d, as nearly as possible, at the same price as that which 
 received the Author's last corrections, he has determined 
 not to attempt anything in the way of biography. The 
 frontispiece is a faithful copy of the engraving prefixed to 
 the first edition of the work, published by the Author in 
 1775, and which he " respectfully inscribed to the right 
 " honourable Willoughby Bertie, earl of Abingdon, Baron 
 " Norreys of Rycote, Sic." 
 
 Of his qualifications for the task, the Editor would briefly 
 observe that, having been engaged in the diligent study of 
 the law, as a profession, for upwards of twenty-five years ; 
 and having by favour of the independent constituency, of the
 
 THE EDITORS PREFACE. IX 
 
 city of Oxford, occupied the honorable station he now fills, 
 as one of the representatives of that ancient and loyal city, 
 in three successive parliaments, he may be presumed not 
 entirely unqualified for the undertaking, on which he has 
 bestowed considerable labour and research. 
 
 Aware that of late years such works as the present 
 have been much read by those who have not had the ad- 
 vantage of a classical education, the Editor has annexed a 
 translation to every Latin quotation which occurs in the 
 work, and some account of the principal persons, and insti- 
 tutions, of antiquity, to which the Author has made refer- 
 ence. The Editor's anxiety has been to facilitate the perusal 
 of the work, and to promote, on the part of all his fellow- 
 countrymen, the study of a constitution which may well be 
 their pride, as it is the admiration of the civilized world. 
 
 W. HUGHES HUGHES. 
 
 Ryde> Isle of Wight, 
 Jan. 1, 1834.
 
 TO 
 
 THE KING. 
 
 SIRE, 
 
 THE approbation with which the public have been 
 pleased to favour this Work, together with the 
 nature of the subject, embolden me to lay the 
 present fourth and enlarged edition of the same at 
 your Majesty's feet, both as an homage and an 
 expression of the desire I entertain, that the book 
 may for a few minutes engage the attention of 
 a person of your deep and extensive knowledge. 
 
 Your Majesty's reign has, for many years past, 
 afforded proofs, in more respects than one, that, 
 though human wisdom may not always be able to 
 anticipate difficulties, yet, assisted by fortitude, it 
 can succeed in terminating them in a more favour- 
 able manner than it seemed at first possible to be 
 expected, or even in bringing them to a happy 
 issue. According to the common course of nature, 
 your Majesty has only yet seen the less consider- 
 able part of the years of which your reign is to be
 
 Xll DEDICATION. 
 
 composed i 1 that the part which now opens before 
 your Majesty may be attended with a degree of 
 satisfaction proportionate to your Majesty's public 
 and private virtues, to your disinterested govern- 
 ment, and religious regard for your royal engage- 
 ments, is the fond hope of 
 
 YOUR MAJESTY'S 
 
 Most humble and most devoted Servant, 
 And, these many Years, 
 
 Subject by Choice, 
 
 J. L. DE LOLME. 
 
 May, 1784. 
 
 1 This anticipation was fully realized. George the Third, who 
 was in the forty-sixth year of his age, and the twenty-fourth of his 
 reign, at this time, reigned upwards of fifty-nine years. EDITOR.
 
 ADVERTISEMENT. 
 
 THE Book on the English Constitution, of which a new 
 edition is here offered to the public, was first written in 
 French, and published in Holland. 2 Several persons have 
 asked me the question, How I came to think of treating 
 of such a subject ? One of the first things in this country, 
 that engages the attention of a stranger who is in the 
 habit of observing the objects before him, is the pecu- 
 liarity of its government : I had moreover been lately 
 a witness of the broils which had for some time prevailed 
 in the republic in which I was born, and of the revolution 
 by which they were terminated. Scenes of that kind, in 
 a state which, though small, is independent, and contains 
 within itself the principles of its motions, had naturally 
 given me some competent insight into the first real prin- 
 ciples of governments : owing to this circumstance, and 
 perhaps also to some moderate share of natural abilities, 
 
 9 ' This book was first published in France," are the only words of the note 
 annexed by our author to the first sentence of his " Introduction," which arc 
 not found in the first edition of the work published in this country in 1775. 
 In a note on p. 460, he moreover speaks of " the general observations on the 
 right of granting subsidies, which were formerly in the French irork." There 
 can be little doubt, therefore, that the statement here is inaccurate. EDITOR.
 
 XIV ADVERTISEMENT. 
 
 I was enabled to perform the task I had undertaken with 
 tolerable success. I was twenty-seven years old when I 
 came to this country : after having been in it only a year, 
 I began to write my work, which I published about nine 
 months afterwards ; and have since been surprised to 
 find that I had committed so few errors of a certain kind : 
 I certainly was fortunate in avoiding to enter deeply into 
 those articles with which I was not sufficiently acquainted. 
 The book met with rather a favourable reception on 
 the Continent ; several successive editions having been 
 made of it. And it also met here with approbation, even 
 from men of opposite parties : which, in this country, was 
 no small luck for a book on systematical politics. Allowing 
 that the arguments had some connexion and clearness, 
 as well as novelty, I think the work was of peculiar 
 utility, if the epoch at which it was published is consi- 
 dered ; which was, though without any design from me, 
 at the time when the disputes with the colonies were 
 beginning to take a serious turn, both here and in America. 
 A work which contained a specious, if not thoroughly 
 true, confutation of those political notions, by the help 
 of which a disunion of the empire was endeavoured to 
 be promoted (which confutation was moreover noticed 
 by men in the highest places), should have procured to 
 the author some sort of real encouragement ; at least the 
 publication of it should not have drawn him into any in- 
 convenient situation. When my enlarged English edition 
 was ready for the press, had I acquainted ministers that I 
 was preparing to boil my tea-kettle with it, for want of 
 being able conveniently to afford the expense of printing 
 it, I do not pretend to say what their answer would have- 
 been ; but I am firmly of opinion, that, had the like argu- 
 ments in favour of the existing government of this coun- 
 try, against republican principles, been shown to Charles 
 the First, or his ministers, at a certain period of his reign, 
 they would have very willingly defrayed the expenses of
 
 ADVERT1SMENT. XV 
 
 the publication. In defect of encouragement from great 
 men (and even from booksellers) I had recourse to a sul>- 
 scription ; and my having expected any success from such 
 a plan, shows that my knowledge of this country was at 
 that time very incomplete.* 
 
 * In regard to two subscribers in particular, I was, I confess, sadly disap- 
 pointed. Though all the booksellers in London had at first refused to have 
 any thing to do with my English edition (notwithstanding the French work 
 was extremely well known), yet soon after I had thought of the expedient 
 of a subscription, I found that two of them, who are both living, had begun 
 a translation, on the recommendation, as they told me, of a noble lord, whom 
 they named, who had, till a few years before, filled one of tLe highest offices 
 under the crown. . I paid them ten pounds, in order to engage them to drop 
 their undertaking, about which I understood they already had been at some 
 expense. Had the noble lord in question favoured me with his subscription, 
 I would have celebrated the generosity and munificence of my patron ; but 
 as he did not think proper so to do, I shall only observe that his recommend- 
 ing my work to a bookseller cost me ten pounds. 
 
 At the time the above subscription for my English edition was advertising, 
 a copy of the French work was asked of me for a noble earl, 3 then invested 
 with a high office in the state ; none being at that time to be found at any 
 bookseller's in London. I gave the only copy Ihad (the consequence was, that 
 I was obliged to borrow one, to make my English edition from): and I 
 added, that I hoped his lordship would honour me with his subscription. 
 However, my hopes were here again confounded. Asa gentleman who con- 
 tinues to fill an important office under the crown, accidentally informed me, 
 about a year afterwards, that the noble lord here alluded (o had lent him my 
 French work, I had no doubt left that the copy I had delivered had reached 
 his lordship's hand ; I therefore presumed to remind him, by a letter, that 
 the book in question had never been paid for ; at the same time apologizing 
 for such liberty from the circumstances in which my late English edition had 
 been published, which did not allow me to lose one copy. I must do his lord- 
 ship (who is moreover a knight of the garter) the justice to acknowledge, 
 that, no later than a week afterwards, he sent two half-crowns for me to a 
 bookseller's in Fleet-street. A lady brought them in a coach, who took a 
 receipt. As she was, by the bookseller's account, a fine lady, though not a 
 peeress, it gave me much concern that I was not present to deliver the re- 
 ceipt to her myself. 
 
 At the same tune I mention the noble earl's great punctuality, I think I 
 may be allowed to say a word of my own merits. I waited, before I pre- 
 sumed to trouble his lordship, till I was informed that a pension of four thou- 
 sand pounds was settled upon him (I could have wished much my own cre- 
 ditors had, about that time, shown the like tenderness to me) ; and I more- 
 over gave him time to receive the first quarter. 
 
 3 The allusion is understood to be to the earl of Rochford. EDITOR.
 
 XVI ADVERTISEMENT. 
 
 After mentioning the advantages with which my work 
 has not been favoured, it is, however, just that I should 
 give an account of those by which it has been attended. 
 In the first place, as is above said, men of high rank have 
 condescended to give their approbation to it ; and I take 
 this opportunity of returning them my most humble ac- 
 knowledgments. In the second place, after the difficul- 
 ties, by which the publication of the book had been 
 attended and followed, were overcome, I began to share 
 with booksellers in the profit arising from the sale of it. 
 These profits I indeed thought to be but scanty and slow : 
 but then I considered this was no more than the com- 
 mon complaint made by every trader in regard to his 
 gain, as well as by every great man in regard to his emolu- 
 ments and his pensions. After a course of some years, the 
 net balance, formed by the profits in question, amounted 
 to a certain sum, proportioned to the size of the perform- 
 ance. And, in fine, I must add to the account of the many 
 favours I have received, that I was allowed to carry on the 
 above business of selling my book, without any objection 
 being formed against me from my not having served a 
 regular apprenticeship, and without being molested by the 
 
 inquisition. Several authors have chosen to relate, in 
 
 writings published after death, the personal advantages by 
 which their performances had been followed : as for me, I 
 have thought otherwise ; and, fearing that during the latter 
 part of my life I may be otherwise engaged, I have pre- 
 ferred to write now the account of my successes in this 
 country, and to see it printed while I am yet living. 
 
 I shall add to the above narrative (whatever the reader 
 may be pleased to think of it) a few observations of rather 
 a more serious kind, for the sake of those persons who, 
 judging themselves to be possessed of abilities, find they 
 are neglected by such as have it in their power to do them 
 occasional services, and suffer themselves to be mortified 
 by it. To hope that men will in earnest assist in setting 
 forth the mental qualifications of others, is an expectation
 
 ADVERTISEMENT. XV11 
 
 which, generally speaking, must needs be disappointed. 
 To procure one's notions and opinions to be attended to, 
 and approved by the circles of one's acquaintance, is the 
 universal wish of mankind. To diffuse these notions far- 
 ther, to numerous parts of the public, by means of the 
 press or by others, becomes an object of real ambition ; 
 nor is this ambition always proportioned to the real abilities 
 of those who feel it : very far from it. When the appro- 
 bation of mankind is in question, all persons, whatever 
 their different ranks may be, consider themselves as being 
 engaged in the same career ; they look upon themselves as 
 being candidates for the very same kind of advantage : 
 high and low, all are in that respect in a state of primeval 
 equality ; nor are those who are likely to obtain some 
 prize, to expect much favour from the others. 
 
 This desire of having their ideas communicated to, and 
 approved by, the public, was very prevalent among the 
 great men of the Roman commonwealth, and afterwards 
 with the Roman emperors ; however imperfect the means 
 of obtaining those ends might be in those days compared 
 with those which are used in ours. The same desire has 
 been equally remarkable among modern European kings, 
 not to speak of other parts of the world ; and a long cata- 
 logue of royal authors may be produced. Ministers, espe- 
 cially after having lost their places, have shown no less 
 inclination than their masters, to convince mankind of the 
 reality of their knowledge. Noble persons, of all denomi- 
 nations, have increased the catalogue. And, to speak of 
 the country in which we are, there is, it seems, no good 
 reason to make any exception in regard to it ; and great 
 men in it, or in general those who are at the head of the 
 people, are, we find, sufficiently anxious about the success 
 of their speeches, or of -the printed performances which 
 they sometimes condescend to lay before the public : nor 
 has it been every great man, wishing that a compliment 
 may be paid to his personal knowledge, that has ventured 
 to give such lasting specimens. 
 
 b
 
 XV11L ADVERTISEMENT. 
 
 Several additions were made to this work at the time I 
 gave the first English edition of it. Besides a more accu- 
 rate division of the chapters, several new notes and para- 
 graphs were inserted in it ; for instance, in the llth chapter 
 of the 2d book : and three new chapters, the 15th, 16th, 
 and 17th, amounting to about ninety pages, were added to 
 the same book. These three additional chapters, never 
 having been written by me in French, were inserted in the 
 third edition made at Amsterdam, translated by a person 
 whom the Dutch bookseller employed for that purpose : 
 as I never had an opportunity to peruse a copy of that 
 edition, I cannot say how well the translator performed his 
 task. Having now parted with the copy-right of the book, 
 I have farther added four new chapters to it (10, 11, B. I. 
 19, 20, B. II.) by way of taking a final leave of it ; and in 
 order the more completely to effect this, I may perhaps 
 give, in a few months, a French edition of the same (which 
 I cannot tell why I have not done sooner), in which all the 
 above-mentioned additions, translated by myself, shall be 
 inserted. 
 
 In one of the former additional chapters (the 17th, B. II.) 
 mention is made of a peculiar circumstance attending the 
 English government, considered as a monarchy, which is 
 the solidity of the power of the crown. As one proof of 
 this peculiar solidity, it is remarked, in that chapter, that 
 all the monarchs who ever existed, in any part of the world, 
 were never able to maintain their ground against certain 
 powerful subjects (or a combination of them) without the 
 assistance of regular forces at their constant command ; 
 whereas it is evident that the power of the crown, in Eng- 
 land, is not at this day supported by such means ; nor even 
 had the English kings a guard of more than a few scores of 
 men, when their power, and the exertions they at times 
 made of it, were equal to what has ever been related of the 
 most absolute Roman emperors. 
 
 The cause of this peculiarity in the English government, 
 is said, in the same chapter, to lie in the circumstance of
 
 ADVERTISEMENT. 
 
 the great or powerful men, in England, being divided into 
 two distinct assemblies, and, at the same time, in the prin- 
 ciples on which such a division is formed. To attempt to 
 give a demonstration of this assertion otherwise than by 
 facts (as is done in the chapter here alluded to) would lead 
 into* difficulties which the reader is little aware of. In 
 general, the science of politics, considered as an exact 
 science, that is to say, as a science capable of actual de- 
 monstration, is infinitely deeper than the reader suspects. 
 The knowledge of man, on which such a science, with its 
 preliminary axioms and definitions is to be grounded, has 
 hitherto remained surprisingly imperfect : as one instance 
 how little man is known to himself, it might be men- 
 tioned that no tolerable explanation of that continual 
 human phenomenon, laughter, has been yet given ; and 
 the powerful complicate sensation which each sex pro- 
 duces in the other, still remains an equally inexplicable 
 mystery. 
 
 To conclude the above digression (which may do very 
 well for a preface), I shall only add, that those speculators 
 who will amuse themselves in seeking for the demonstra- 
 tion of the political theorem above expressed, will thereby 
 be led through a field of observations, which they will at 
 first little expect ; and in their way towards attaining such 
 demonstration, will find the science, commonly called me- 
 taphysics, to be at best but a very superficial one, and 
 that the mathematics, or at least the mathematical reason- 
 ings hitherto used by men, are not so completely free from 
 error as has been thought.* 
 
 Out of the four chapters added to the present edition, 
 
 * Certain errors that are not discovered, are, in several cases, compensated 
 by others, which are equally unperceived. 
 
 Continuing to avail myself of the indulgence an author has a right to claim 
 in a preface, I shall mention, as a farther explanation of the peculiarity in the 
 English government above alluded to, and which is again touched upon in 
 the postscript to this advertisement, that a government may be considered as 
 a great ballet or dance, in which, as in other ballets, every thing depends on 
 the disposition of the figures.
 
 XX ADVERTISEMENT. 
 
 two (the 10th, and llth, B. I.) contain, among other things, 
 a few strictures on the Courts of Equity,; in which I wish 
 it may be found I have not been mistaken ; of the two 
 others, one (19th, B. II ) contains a few observations on 
 the attempts that may, in different circumstances, be made, 
 to set new limits to the authority of the crown ; and, in the 
 20th a few general thoughts are introduced on the right of 
 taxation, and on the claim of the American colonies in that 
 respect. Any farther observations I may make on the 
 English government, such as comparing it with the other 
 governments of Europe, and examining what difference in 
 the manners of the inhabitants of this country may have re- 
 sulted from it, must come in a new work, if I ever under- 
 take to treat these subjects. In regard to the American 
 disputes, what I may hereafter write on that account will 
 be introduced in a work which I may at some future time 
 publish, under the title of Histoire de George 'Trois, Roi 
 d* Angleterre, or, perhaps, of Histoire ff Angleterre^ depuis 
 CAnnte 176*5 (that in which the American stamp-duty was 
 laid) jusques a V Annte 178 , meaning that in which an 
 end shall be put to the present contest.* 
 
 * A certain book, written in French, on the subject of the American dis- 
 pute was, I have been told, lately attributed to me, in which I had no share. 
 
 Nov. 1781.
 
 ADVERTISEMENT. XXI 
 
 POSTSCRIPT. 
 
 Notwithstanding the intention above expressed, of making 
 no additions to the present work, I have found it necessary, 
 in this new edition, to render somewhat more complete the 
 17th chapter, Book II. On the peculiar foundations of 
 the English monarchy as a monarchy ; as I found its ten- 
 dency not to be very well understood ; and, in fact, that 
 chapter contained little more than hints on the subject men- 
 tioned in it: the task, in the course of writing, has in- 
 creased beyond my expectation, and has swelled the chapter 
 to about sixty pages above what it was in the former 
 edition, so as almost to make it a kind of separate book of 
 itself. The reader will now find, that, in several remark- 
 able new instances, it proves the fact of the peculiar stability 
 of the executive power of the British crown, and exhibits a 
 much more complete delineation of the advantages that 
 result from that stability in favour of public liberty. 
 
 These advantages may be enumerated in the following 
 order: I. The numerous restraints the governing authority 
 is able to bear, and the extensive freedom it can afford to 
 allow the subject, at its own expense: II. The liberty of 
 speaking and writing, carried to the great extent it is in 
 England : III. The unbounded freedom of the debates in 
 the legislature : IV. The power to bear the constant union 
 of all orders of subjects against its prerogatives : V. The 
 freedom allowed to all individuals to take an active part in 
 government concerns: VI. The strict impartiality with 
 which justice is dealt to all subjects, without any respect 
 whatever of persons : VII. The lenity of the criminal law, 
 both in regard to the mildness of punishments, and the 
 frequent remission of them: VIII. The strict compliance
 
 XXII ADVERTISEMENT. 
 
 of the governing authority with the letter of the law : 
 IX. The needlessness of an armed force to support itself 
 by, and, as a consequence, the singular subjection of the 
 military to the civil power. 
 
 The above-mentioned advantages are peculiar to the 
 English government. To attempt to imitate them, or 
 transfer them to other countries, with that degree of extent 
 to which they are carried in England, without at the same 
 time transferring the whole order and conjunction of cir- 
 cumstances in the English government, would prove unsuc- 
 cessful attempts. Several articles of English liberty already 
 appear impracticable to be preserved in the new American 
 commonwealths. The Irish nation have of late succeeded 
 in imitating several very important regulations in the 
 English government, and are very desirous to render the 
 assimilation complete ; yet, it is possible, they will find 
 many inconveniences arise from their endeavours, which do 
 not take place in England, notwithstanding the very great 
 general similarity of circumstances in the two kingdoms in 
 many respects ; and even also, we might add, notwithstand- 
 ing the respectable power and weight the crown derives 
 from its British dominions, both for defending its prero- 
 gative in Ireland, and preventing anarchy : I say, the simi- 
 larity in many respects between the two kingdoms ; for this 
 resemblance may perhaps fail in regard to some important 
 points : however, this is a subject about which I shall not 
 attempt to say any thing, not having the necessary in- 
 formation. 
 
 The last chapter in the work, concerning the nature of 
 the divisions that take place in this country, I have left in 
 every English edition as I wrote it at first in French. 
 With respect to the exact manner of the debates in parlia- 
 ment, mentioned in that chapter, I cannot well say more at 
 present than I did at that time, as I never had an oppor- 
 tunity to hear the debates in either house. In regard to 
 the divisions in general to which the spirit of party gives 
 rise, I did perhaps the bulk of the people somewhat more
 
 ADVERTISEMENT. XX111 
 
 honour than they really deserve, when I represented them 
 as being free from any violent dispositions in that respect : 
 I have since found, that, like the bulk of mankind in all 
 countries, they suffer themselves to be influenced by vehe- 
 ment prepossessions for this or that side of public questions, 
 commonly in proportion as their knowledge of the subject 
 is imperfect. It is, however, a fact, that political prepos- 
 sessions and party spirit are not productive, in this country, 
 of those dangerous consequences which might be feared 
 from the warmth with which they are sometimes manifested. 
 But this subject, or in general the subjects of the political 
 quarrels and divisions in this country, is not an article one 
 may venture to meddle with in a single chapter; I have 
 therefore let this subsist, without touching it. 
 
 I shall however observe, before I conclude, that an acci- 
 dental circumstance in the English government prevents the 
 party spirit, by which the public are usually influenced, 
 from producing those lasting and rancorous divisions in the 
 community which have pestered so many other free states, 
 making of the same nation, as it were, two distinct people, 
 in a kind of constant warfare with each other. The cir- 
 cumstance I mean is, the frequent reconciliations (com- 
 monly to quarrel again afterward) that take place between 
 the leaders of parties, by which the most violent and igno- 
 rant class of their partisans are bewildered, and made to 
 lose the scent. By the frequent coalitions between whig 
 and tory leaders, even that party distinction, the most 
 famous in the English history, has now become useless : the 
 meaning of the words has thereby been rendered so per- 
 plexed that nobody can any longer give a tolerable definition 
 of them ; and those persons who now and then aim at gain- 
 ing popularity by claiming the merit of belonging to either 
 party, are scarcely understood. The late coalition between 
 two certain leaders has done away, and prevented from 
 settling, that violent party spirit to which the administration 
 of Lord Bute had given rise, and which the American dis-
 
 XXIV ADVERTISEMENT. 
 
 putes had carried still farther. Though this coalition has 
 met with much obloquy, I take the liberty to rank myself 
 in the number of its advocates, so far as the circumstance 
 here mentioned. 
 
 May, 1784.
 
 CONTENTS. 
 
 Page 
 INTRODUCTION - - - - 1 
 
 BOOK I. 
 
 A Survey of the various Powers included in the English Constitu- 
 tion, and of the Laws both in Civil and Criminal cases. 
 
 CHAP. 
 
 I. Causes of the Liberty of the English Nation. Reasons 
 of the Difference hetween the Government of England 
 and that of France. In England, the great Power of 
 the Crown, under the Norman Kings, created an 
 Union hetween the Nobility and the People - 5 
 
 II. A second Advantage England had over France : it 
 
 formed one undivided State - jg 
 
 III. The Subject continued 33 
 
 IV. Of the Legislative Power 49 
 V. Of the Executive Power 62 
 
 VI. The Boundaries which the Constitution has set to the 
 
 Royal Prerogative 65 
 
 VII. The Same Subject continued 68 
 
 VIII. New Restrictions 73 
 
 IX. Of private Liberty, or the Liberty of Individuals - 87 
 
 X. On the Law that is observed in England, in regard to 
 
 Civil Matters 96 
 
 XI. The Subject continued. The Courts of Equity - 120 
 
 XII. Of Criminal Justice .... 135
 
 XXVI CONTENTS. 
 
 CHAP. Page 
 
 XIII. The Subject continued - - 147 
 
 XIV. The Subject concluded. Laws relative to Imprison- 
 
 ment. - 165 
 
 BOOK II. 
 
 A View of the Advantages of the English Government, and of the 
 Rights and Liberties of the People ; and a Confirmation, by 
 reference to facts, of the Principles stated in fhe Work. 
 
 CHAP. 
 
 I. Some Advantages peculiar to the English Constitution. 
 
 The Unity of the Executive Power 171 
 
 II. The Subject concluded. The Executive Power is more 
 
 easily confined when it is ONE 187 
 
 III. A Second Peculiarity. The Division of the Legislative 
 
 Power 190 
 
 IV. A Third Advantage peculiar to the English Govern- 
 
 ment. The Business of proposing Laws, lodged in 
 the hands of the People 198 
 
 V. In which an Inquiry is made, whether it would be an 
 Advantage to public liberty, that the Laws should 
 be enacted by the Votes of the People at large 208 
 VI. Advantages that accrue to the People from appointing 
 
 Representatives - 220 
 
 VII. The Subject continued. The Advantages that accrue 
 to the People from their appointing Representatives 
 are very inconsiderable, unless they also entirely trust 
 their Legislative Authority to them - 223 
 
 VIII. The Subject concluded. Effects that have resulted 
 in the English Government, from the People's 
 Power being completely delegated to their Represen- 
 tatives - 229 
 IX. A farther Disadvantage of Republican Governments. 
 The People are necessarily betrayed by those in 
 whom they trust 234 
 X. Fundamental Difference between the English Govern- 
 ment and the Governments just described. In
 
 CONTENTS. XXVII 
 
 CHAP. Page 
 
 England, all Executive Authority is placed out 
 of the Hands of those in whom the People trust. 
 Usefulness of the power of the Crown 242 
 
 XI. The Power which the People themselves exercise. 
 
 The Election of Members of Parliament 248 
 
 XTI. The same Subject continued. Liberty of the Press 250 
 
 XIII. The Subject continued 262 
 
 XIV. Right of Resistance . 269 
 XV. Proofs, drawn from Facts, of the Truth of the Princi- 
 ples laid down in the present Work. 1. The 
 peculiar Manner in which Revolutions have always 
 been concluded in England 282 
 
 XVI. Second Difference. The Manner after which the Laws 
 
 for the Liberty of the Subject are executed in Eng- 
 land 297 
 
 XVII. A moi - e inward View of the English Government 
 
 than has hitherto been offered to the Reader in the 
 Course of this Work. Very essential Differences 
 between the English Monarchy, as a Monarchy, and 
 all those with which we are acquainted 335 
 
 Second Part of the same Chapter 370 
 
 XVIII. How far the Examples of Nations who have lost their 
 
 Liberty are applicable to England - 415 
 
 XIX. A few Additional Thoughts on the Attempts that at 
 particular Times may be made to abridge the Power 
 of the Crown, and some of the Dangers by which 
 such Attempts may be attended 439 
 
 XX. A few additional Observations on the Right of Taxa- 
 tion, which is lodged in the Hands of the Represen- 
 tatives of the People. What kind of Danger this 
 Right may be exposed to 450 
 
 XXI. Conclusion. A few words on the Nature of the Divi- 
 sions that take place in England - 462
 
 THE 
 
 CONSTITUTION 
 
 OF 
 
 ENGLAND, 
 
 INTRODUCTION. 
 
 THE spirit of philosophy which peculiarly distin- 
 guishes the present age, after having corrected a 
 number of errors fatal to society, seems now to be 
 directed towards the principles of society itself; 
 and we see prejudices vanish which are difficult to 
 overcome, in proportion as it is dangerous to at- 
 tack them.* This rising freedom of sentiment, the 
 necessary fore-runner of political freedom, led me 
 to imagine that it would not be unacceptable to the 
 public to be made acquainted with the principles of 
 a constitution on which the eye of curiosity seems 
 now to be universally turned, and which, though 
 celebrated as a model of perfection, is yet but little 
 known to its admirers. 
 
 I am aware that it will be deemed presumptuous 
 
 * As every popular notion which may contribute to the support 
 of an arbitrary government is at all times vigilantly protected by 
 the whole strength of it, political prejudices are last of all, if ever, 
 shaken off by a nation subjected to such a government. A great 
 change in this respect, however, has of late taken place in France, 
 where this book was first published ; and opinions are now discussed 
 there, and tenets avowed, which, in the time of Louis the Four- 
 
 B
 
 <2 THE CONSTITUTION 
 
 in a man, who has passed the greatest part of his 
 life out of England, to attempt a delineation of the 
 English government ; a system which is supposed 
 to be so complicated as not to be understood or de- 
 veloped, but by those who have been initiated in 
 the mysteries of it from their infancy. 
 
 But, though a foreigner in England, yet, as a na- 
 tive of a free country, I am no stranger to those 
 circumstances which constitute or characterise li- 
 berty. Even the great disproportion between the 
 republic of which I am a member (and in which I 
 formed my principles) and the British empire, has 
 perhaps only contributed to facilitate my political 
 inquiries. 
 
 As the mathematician, the better to discover the 
 proportions he investigates, begins with freeing 
 his equation from coefficients, or such other quanti- 
 ties as only perplex without properly constituting 
 it ; so it may be advantageous, to the inquirer after 
 the causes that produce the equilibrium of a govern- 
 ment, to have previously studied them, disengaged 
 from the apparatus of fleets, armies, foreign trade, 
 distant and extensive dominions ; in a word, from 
 all those brilliant circumstances which so greatly 
 affect the external appearance of a powerful society, 
 but have no essential connexion with the real prin- 
 ciples of it. 
 
 It is upon the passions of mankind, that is, upon 
 
 teenth, would have appeared downright blasphemy ; it is to this an 
 allusion is made above. 4 
 
 4 This note appears in the first Edition of the work, published in 
 this country in 1775, and was written by the Author as if in an- 
 ticipation of the French revolution of the year 1789. EDITOR.
 
 OF ENGLAND. 3 
 
 causes which are unalterable, that the action of the 
 various parts of a state depends. The machine 
 may vary as to its dimensions ; but its movement 
 and acting 1 springs still remain intrinsically the 
 same ; and that time cannot be considered as lost 
 which has been spent in seeing them act and move 
 in a narrower circle. 
 
 One other consideration I will suggest, which is, 
 that the very circumstance of being a foreigner may 
 of itself be attended, in this case, with a degree of 
 advantage. The English themselves (the observa- 
 tion cannot give them any offence) having their 
 eyes open, as I may say, upon their liberty, from 
 their first entrance into life, are perhaps too much 
 familiarised with its enjoyment, to inquire, with 
 real concern, into its causes. Having acquired 
 practical notions of their government long before 
 they have meditated on it, and these notions being 
 slowly and gradually imbibed, they at length behold 
 it without any high degree of sensibility ; and they 
 seem to me, in this respect, to be like the recluse 
 inhabitant of a palace, who is perhaps in the worst 
 situation for attaining a complete idea of the whole, 
 and never experienced the striking effect of its ex- 
 ternal structure and elevation ; or, if you please, 
 like a man who, having always had a beautiful and 
 extensive scene before his eyes, continues for ever 
 to view it with indifference. 
 
 But a stranger, beholding at once the various 
 parts of a constitution displayed before him, which, 
 at the same time that it carries liberty to its height, 
 has guarded against inconveniences seemingly in- 
 evitable ; beholding in short those things carried 
 
 B 2
 
 4 THE CONSTITUTION 
 
 into execution which he had ever regarded as more 
 desirable than possible, is struck with a kind of ad- 
 miration ; and it is necessary to be thus strongly af- 
 fected by objects, to be enabled to reach the general 
 principle which governs them. 
 
 Not that I mean to insinuate that I have pene- 
 trated with more acuteness into the constitution of 
 England than others ; my only design, in the above 
 observations, was to obviate an unfavourable, though 
 natural prepossession ; and if, either in treating of 
 the causes which originally produced the English 
 liberty, or of those by which it continues to be 
 maintained, my observations should be found new 
 or singular, I hope the English reader will not con- 
 demn them, but where they shall be found inconsis- 
 tent with history, or with daily experience. Of 
 readers in general I also request, that they will not 
 judge of the principles I shall lay down, but from 
 their relation to those of human nature ; a conside- 
 ration which is almost the only one essential, and 
 has been hitherto too much neglected by the writers 
 on the subject of government.
 
 OF ENGLAND. 
 
 BOOK I. 
 
 A SURVEY OF THE VARIOUS POWERS INCLUDED IN 
 THE ENGLISH CONSTITUTION, AND OF THE LAWS 
 BOTH IN CIVIL AND CRIMINAL CASES. 
 
 CHAPTER I. 
 
 Causes of the Liberty of the English Natio7i t 
 Reasons of the Difference between the Govern- 
 ment of England and that of France. In Eng- 
 land, the great Power of the Crown, under 
 the Norman Kings, created an Union between 
 the Nobility and the People. 
 
 WHEN the Romans, attacked on all sides by the 
 barbarians, were reduced to the necessity of defend- 
 ing the centre of their empire, they abandoned 
 Great Britain, as well as several other of their 
 distant provinces. The island, thus left to itself, 
 became a prey to the nations inhabiting- the shores 
 of the Baltic ; who, having first destroyed the an- 
 cient inhabitants, and for a long time reciprocally 
 annoyed each other, established several sovereignties 
 in the southern part of the island, afterwards called
 
 6 THE CONSTITUTION 
 
 England, which at length were united, under 
 Egbert, into one kingdom. 
 
 The successors of this prince, denominated the 
 Anglo-Saxon princes, among whom Alfred the 
 Great and Edward the Confessor are particularly 
 celebrated, reigned for about two hundred years : 
 but, though our knowledge of the principal events 
 of this early period of the English history is in 
 some degree exact, yet we have but vague and 
 uncertain accounts of the nature of the govern- 
 ment which those nations introduced. 
 
 It appears to have had little more affinity with 
 the present constitution, than the general relation, 
 common indeed to all the governments established 
 by the northern nations, that of having a king 
 and a body of nobility ; and the ancient Saxon 
 government is " left us in story" (to use the ex- 
 pressions of Sir William Temple on the subject) 
 " but like so many antique, broken, or defaced 
 " pictures, which may still represent something of 
 " the customs and fashions of those ages, though 
 " little of the true lines, proportions, or resem- 
 " blance."* 
 
 It is at the aera of the conquest that we are to 
 look for the real foundation of the English con- 
 stitution. From that period, says Spelman, 5 no- 
 vus seclorum nascitur ordo.^ William of Nor- 
 
 * See his Introduction to the History of England. 
 
 f See Spehnan, Of Parliaments. It has been a favourite thesis 
 with many writers, to pretend that the Saxon government was, at 
 the time of the conquest, by no means subverted; that William 
 
 ' 5 A new series of ages arises. EDITOR.
 
 OF ENGLAND. 
 
 mandy, having- defeated Harold, and made him- 
 self master of the crown, subverted the ancient 
 
 of Normandy legally acceded to the throne, and, consequently, to 
 the engagements of the Saxon kings : and much argument has in 
 particular been employed with regard to the word conquest, which, it 
 hasheen said, in the feudal sense, only meant acquisition. These 
 opinions have been particularly insisted upon in times of popular 
 opposition : and, indeed, there was a far greater probability of 
 success, in raising among the people the notions (familiar to them) of 
 legal claim sand long-established customs, than in arguing with them 
 from the no less rational, but less determinate, and somewhat 
 dangerous doctrines, concerning the original rights of mankind, 
 and the lawfulness of at all times opposing force to an oppressive 
 government. 
 
 But if we consider that the manner in which the public power 
 is formed in a state is so very essential a part of its government, 
 and that a thorough change in this respect was introduced into 
 England by the conquest, we shall not scruple to allow that a 
 new government was established. Nay, as almost the whole landed 
 property in the kingdom was at that time transferred to other hands, 
 a new system of criminal justice introduced, and the language of 
 the law moreover altered, the revolution may be said to have been 
 such as is not perhaps to be paralleled in the history of any other 
 country. 
 
 Some Saxon laws, favourable to the liberty of the people, were 
 indeed again established under the successors of William : but the 
 introduction of some new modes of proceeding in the courts of 
 justice, and of a few particular laws, cannot, so long as the ruling 
 power in the state remains the same, be said to be the introduction 
 of a new government ; and as, when the laws in question were again 
 established, the public power in England continued in the same 
 channel where the conquest had placed it, they were more properly 
 new modifications of the Anglo-Norman constitution than they 
 were the abolition of it ; or, since they were again adopted from 
 the Saxon legislation, they were rather imitations of that legisla- 
 tion, than the restoration of the Saxon government. 
 
 Contented, however, with the two authorities I have above quoted, 
 I shall dwell no louger on a discussion of the precise identity, or
 
 8 THE CONSTITUTION 
 
 fabric of the Saxon legislation : he exterminated, 
 or expelled, the former occupiers of lands, in or- 
 der to distribute their possessions among his fol- 
 lowers ; and established the feudal system of go- 
 vernment, as better adapted to his situation, and 
 indeed the only one of which he possessed a com- 
 petent idea. 
 
 This sort of government prevailed also in almost 
 all the other parts of Europe. But, instead of being 
 established by dint of arms, and all at once, as in 
 England, it had only been established on the con- 
 tinent, and particularly in France, through a long 
 series of slow successive events : a difference of 
 circumstances this, from which consequences were 
 in time to arise as important as they were at first 
 difficult to be foreseen. 
 
 The German nations who passed the Rhine to 
 conquer Gaul were in a great degree independent ; 
 their princes had no other title to their power, but 
 their own valour and the free election of the 
 people ; and, as the latter had acquired in their 
 forests but contracted notions of sovereign autho- 
 rity, they followed a chief less in quality of subjects, 
 than as companions in conquest. 
 
 difference, of two governments ; that is, of two ideal systems, 
 which only exist in the conceptions of men. Nor do I wish to ex- 
 plode a doctrine, which, in the opinion of some persons, giving an 
 additional sanction and dignity to the English government, con- 
 tributes to increase their love and respect for it. It will be suf- 
 ficient for my pin pose, if the reader shall be pleased to grant that 
 a material change was, at the time of the conquest, effected in the 
 government then existing, and is accordingly disposed to admit the 
 proofs that will presently be laid before him, of such change having 
 prepared the establishment of the present English constitution.
 
 OK ENGLAND. 9 
 
 Besides, this conquest was not the irruption of 
 a foreign army, which only takes possession of 
 fortified towns ; it was the general invasion of a 
 whole people in search of new habitations ; and, 
 as the number of the conquerors bore a great pro- 
 portion to that of the conquered, who were at the 
 same time enervated by long peace, the expedition 
 was no sooner completed than all danger was at 
 an end, and of course their union also. After di- 
 viding among themselves what lands they thought 
 proper to occupy, they separated ; and though their 
 tenure was at first only precarious, yet, in this par- 
 ticular, they depended not on the king, but on the 
 general assembly of the nation.* 
 
 Under the kings of the first race, the fiefs, by the 
 mutual connivance of the leaders, at first became 
 annual ; afterwards, held for life. Under the de- 
 scendants of Charlemagne, they became heredi- 
 tary, -f 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, he 
 
 * The fiefs wei'e originally called terra jure beneficii concessce; 6 
 and it was not till under Charles le Gros that the term ^/"began 
 to be in use. See BENEFICIUM, Gloss. Du fange. 
 
 f Apud Francos vero, sensim pedetentimque, jure htereditario 
 ad htf redes subinde transierunt feuda ; quod labente seculo nono 
 incepit.i See FEUDUM, Du Gauge. 
 
 j Hotoinan has proved beyond a doubt, in his Franco-Gallia, 
 
 6 Lands granted by right (vested in the ci'own) of gratuitous dona, 
 tion. EDITOR. 
 
 " The custom slowly and progressively prevailed among the 
 Franks, that the fiefs passed by hereditary right directly to the heirs. 
 This commenced in the course of the ninth century. EDITOR.
 
 10 THE CONSTITUTION 
 
 established the hereditaryship of fiefs as a general 
 principle ; and from this epoch authors date the 
 complete establishment of the feudal system in 
 France. 
 
 On the other hand, the lords who gave their 
 suffrages to Hugh Capet forgot not the interest of 
 their own ambition. They completed the breach 
 of those feeble ties which subjected them to the 
 royal authority, and became every where indepen- 
 dent. They left the king no jurisdiction, either 
 over themselves, or their vassals ; they reserved the 
 right of waging war with each other ; they even 
 assumed the same privilege, in certain cases, with 
 regard to the king himself;* so that if Hugh Capet, 
 by rendering the crown hereditary, laid the founda- 
 tion of the greatness of his family, and of the crown 
 itself, yet he added little to his own authority, and 
 acquired scarcely any thing more than a nominal 
 superiority over the number of sovereigns who then 
 swarmed in France, t 
 
 that, under the two first races of kings, the crown of France was 
 elective. The princes of the reigning family had nothing more in 
 their favour than the custom of choosing one of that house. 
 
 * The principal of these cases was, when the king refused to 
 appoint judges to decide a difference between himself and one of 
 his first harons; the latter had then a right to take up arms against 
 the king ; and the subordinate vassals were so dependent on their 
 immediate lords, that they were obliged to follow them against the 
 lord paramount. St. Louis, though the power of the crown was in 
 his time much increased, was obliged to confirm both this privilege 
 of the' first barons, and this obligation of their vassals. 
 
 f " The grandees of the kingdom," says Mezeray, " thought 
 " that Hugh Capet ought to put up with all their insults, because 
 " they had placed the crown on his head : nay, so great was their 
 " licentiousness, that, on his writing to Audebert, viscount of Peri-
 
 OF ENGLAND. 11 
 
 But the establishment of the feudal system in 
 England was an immediate and sudden consequence 
 of that conquest which introduced it. Besides, this 
 conquest was made by a prince who kept the greater 
 part of his army in his own pay, and who was 
 placed at the head of a people over whom he 
 was an hereditary sovereign, circumstances which 
 gave a totally different turn to the government of 
 that kingdom. 
 
 Surrounded by a warlike, though a conquered 
 nation, William kept on foot part of his army. The 
 English, and after them the Normans themselves, 
 having revolted, he crushed both; and the new 
 king of England, at the head of victorious troops, 
 having to do with two nations lying under a reci- 
 procal check from the enmity they bore to each 
 other, and, moreover, equally subdued by a sense 
 of their unfortunate attempts of resistance, found 
 himself in the most favourable circumstances for 
 becoming an absolute monarch ; and his laws, thus 
 promulgated in the midst, as it were, of thunder 
 and lightning, imposed the yoke of despotism both 
 on the victors and the vanquished. 
 
 He divided England into sixty thousand two 
 hundred and fifteen military fiefs, all held of the 
 crown ; the possessors of which were, on pain of 
 forfeiture, to take up arms, and repair to his 
 standard on the first signal : he subjected not only 
 
 " gueux, ordering him to raise the siege he had laid to Tours, and 
 " asking him, by way of reproach, who had made him a viscount ? 
 " that nobleman haughtily answered, not you, but those who made 
 " you a king, [Ce n'est pas vous, niais ceux qui vous out fait 
 " roi.]"
 
 12 THE CONSTITUTION 
 
 the common people, but even the barons, to all 
 the rigours of the feudal government : he even im- 
 posed on them his tyrannical forest laws.* 
 
 He assumed the prerogative of imposing taxes. 
 He invested himself with the whole executive 
 power of government. But what was of the 
 greatest consequence, he arrogated to himself the 
 most extensive judicial power by the establishment 
 of the court which was called Aula Regis, a for- 
 midable tribunal, which received appeals from all 
 the courts of the barons, and decided, in the last 
 resort, on the estates, honour, and lives of the 
 barons themselves ; and which, being wholly com- 
 posed of the great officers of the crown, removable 
 at the king's pleasure, and having the king himself 
 for president, kept the first noblemen in the king- 
 dom under the same controul as the meanest sub- 
 ject. 
 
 Thus, while the kingdom of France, in conse- 
 quence of the slow and gradual formation of the 
 feudal government, found itself, in the issue, com- 
 posed of a number of parts simply placed by each 
 other, and without any reciprocal adherence, the 
 kingdom of England on the contrary, from the 
 
 * He reserved to himself an exclusive privilege of killing game 
 throughout England, and enacted the severest penalties on all who 
 should attempt it without his permission. The suppression, or 
 rather mitigation of these penalties, was one of the articles of the 
 Charta de Foresta, which the barons afterwards obtained by force 
 of arms. Nullus de ccetero amittat viiam, vel membra, pro vena- 
 Hone nostrd. 8 Ch. de Forest. Art. 10. 
 
 8 No man from henceforth shall lose either life or member for 
 killing of our deer. Translation given in RufFlietul's Statutes at 
 large. EDITOR.
 
 OF ENGLAND. 13 
 
 sudden and violent introduction of the same sys- 
 tem, became a compound of parts united by the 
 strongest ties ; and the regal authority, by the 
 pressure of its immense weight, consolidated the 
 whole into one compact indissoluble body. 
 
 To this difference in the original constitution of 
 France and England, that is, in the original power 
 of their kings, we are to attribute the difference, 
 so little analogous to its original cause, of their 
 present constitutions. This furnishes the solution 
 of a problem which, I must confess, for a long 
 time perplexed me, and explains the reason why, 
 of two neighbouring nations, situated almost under 
 the same climate, and having one common origin, 
 the one has attained the summit of liberty, the 
 other has gradually sunk under an absolute mo- 
 narchy. 
 
 In France, the royal authority was indeed in- 
 considerable ; but this circumstance was by no 
 means favourable to the general liberty. The 
 lords were every thing ; and the bulk of the nation 
 were accounted nothing. All those wars which 
 were made on the king had not liberty for their 
 object ; for of this the chiefs already enjoyed too 
 great a share : they were the mere effect of private 
 ambition or caprice. The people did not engage 
 in them as associates in the support of a cause 
 common to all ; they were dragged, blindfold, and 
 like slaves, to the standard of their leaders. In 
 the mean time, as the laws, by virtue of which 
 their masters were considered as vassals, had no 
 relation to those by which they were themselves 
 bound as subjects, the resistance, of which they
 
 THE CONSTITUTION 
 
 were made the instruments, never produced any 
 advantageous consequence in their favour, nor did 
 it establish any principle of freedom that was ap- 
 plicable to them. 
 
 The inferior nobles, who shared in the inde- 
 pendence of the superior nobility, added the effects 
 of their own insolence to the despotism of so many 
 sovereigns ; and the people, wearied out by suffer- 
 ings, and rendered desperate by oppression, at 
 times attempted to revolt. But, being parcelled 
 out into so many different states, they could never 
 perfectly agree either in the nature or the times 
 of their complaints. The insurrections, which 
 ought to have been general, were only successive 
 and particular. In the mean time, the lords, ever 
 uniting to avenge their common cause as masters, 
 fell with irresistible advantage on men who were 
 divided : the people were thus separately, and by 
 force, brought back to their former yoke ; and 
 liberty, that precious offspring, which requires so 
 many favourable circumstances to foster it, was 
 everywhere stifled in its birth.* 
 
 At length, when by -conquests, by escheats, or 
 by treaties, the several provinces came to be re- 
 united^ to the extensive and continually increasing 
 
 * It may be seen in Mezeray, how the Flemings, at the time 
 of the great revolt which was caused, as he says, " by the inveterate 
 " hatred of the nobles (les gentils-hommes) against the people of 
 " Ghent," were crushed by the union of almost all the nobility of 
 France. See Mezeray, Reign of Charles VI. 
 
 t The word re-union expresses in the French law, or history, 
 the reduction of a province to an immediate dependence on the 
 crown.
 
 OF ENGLAND. 15 
 
 dominions of the monarch, they became subject 
 to their new master, already trained to obedience. 
 The few privileges which the cities had been able 
 to preserve were little respected by a sovereign 
 who had himself entered into no engagement for 
 that purpose ; and, .is the re-unions were made at 
 different times, the king was always in a condition 
 to overwhelm every new province that accrued to 
 him, with the weight of all those he already pos- 
 sessed. 
 
 As a farther consequence of these differences 
 between the times of the re-unions, the several 
 parts of the kingdom entertained no views of as- 
 sisting each other. When some reclaimed their 
 privileges, the others, long since reduced to sub- 
 jection, had already forgotten theirs. Besides, 
 these privileges, by reason of the differences of 
 the governments under which the provinces had for- 
 merly been held, were also almost everywhere dif- 
 ferent : the circumstances which happened in one 
 place thus bore little affinity to those which fell 
 out in another ; the spirit of union was lost, or 
 rather had never existed ; each province, restrained 
 within its particular bounds, only served to ensure 
 the general submission ; and the same causes which 
 had reduced that spirited nation to a yoke of sub- 
 jection, concurred also to keep them under it. 
 
 Thus liberty perished in France, because it 
 wanted a favourable culture and proper situation. 
 Planted, if I may so express myself, but just be- 
 neath the surface, it presently expanded, and sent 
 forth some large shoots ; but, having taken no 
 root, it was soon plucked up. In England, on
 
 10 THE CONSTITUTION 
 
 the contrary, the seed, lying at a great depth, and 
 being covered with an enormous weight, seemed 
 at first to be smothered ; but it vegetated with 
 the greater force ; it imbibed a more rich and 
 abundant nourishment ; its sap and juice became 
 better assimilated, and it penetrated and filled up 
 with its roots the whole body of the soil. It was the 
 excessive power of the king which made England 
 free, because it was this very excess that gave rise 
 to the spirit of union, and of concerted resistance. 
 Possessed of extensive demesnes, the king found 
 himself independent : invested with the most for- 
 midable prerogatives, he crushed at pleasure the 
 most powerful barons in the realm. It was only 
 by close and numerous confederacies, therefore, 
 that these could resist his tyranny ; they even were 
 compelled to associate the people in them, and 
 make them partners of public liberty. 
 
 Assembled with their vassals in their great halls, 
 where they dispensed their hospitality, deprived 
 of the amusements of more polished nations ; na- 
 turally inclined, besides, freely to expatiate on 
 objects of which their hearts were full ; their 
 conversation naturally turned on the injustice of 
 the public impositions, on the tyranny of the ju- 
 dicial proceedings, and, above all, on the detested 
 forest laws. 
 
 Destitute of an opportunity of cavilling about 
 the meaning of laws, the terms of which were 
 precise, or rather disdaining the resource of so- 
 phistry, they were naturally led to examine the 
 first principles of society ; they inquired into the 
 foundations of human authority, and became con-
 
 OF ENGLAND. 17 
 
 vinced, that power, when its object is not the 
 good of those who are subject to it, is nothing- 
 more than the right of the strongest, and may be 
 repressed by the exertion of a similar right. 
 
 The different orders of the feudal government, 
 as established in England, being connected by 
 tenures exactly similar, the same maxims which 
 were laid down as true against the lord para- 
 mount, in behalf of the lord of an upper fief, 
 were likewise to be admitted against the latter, in 
 behalf of the owner of an inferior fief. The same 
 maxims were also to be applied to the possessor 
 of a still lower fief : they farther descended to the 
 freeman, and to the peasant : and the spirit of 
 liberty, after having circulated through the dif- 
 ferent branches of the feudal subordination, thus 
 continued to flow through successive homogeneous 
 channels ; it forced a passage into the remotest 
 ramifications ; and the principle of primeval 
 equality became every where diffused arid esta- 
 blished: a sacred principle, which neither injustice 
 nor ambition can erase ; which exists in every 
 breast, and, to exert itself, requires only to be 
 awakened among the numerous and oppressed 
 classes of mankind ! 
 
 But when the barons, whom their personal con- 
 sequence had at first caused to be treated with 
 caution and regard by the sovereign, began to be 
 no longer so, when the tyrannical laws of the 
 Conqueror became still more tyrannically executed, 
 the confederacy, for which the general oppres- 
 sion had paved the way, instantly took place. The 
 lord, the vassal, the inferior vassal, all united.
 
 18 THE CONSTITUTION 
 
 They even implored the assistance of the peasants 
 and cottagers ; and the haughty aversion with 
 which on the continent the nobility repaid the in- 
 dustrious hands that fed them, was, in England, 
 compelled to yield to the pressing necessity of 
 setting bounds to the royal authority. 
 
 The people, on the other hand, knew that the 
 cause they were called upon to defend was a cause 
 common to all ; and they were sensible, besides, 
 that they were the necessary supporters of it. In- 
 structed by the example of their leaders, they 
 spoke and stipulated conditions for themselves : 
 they insisted that, for the future, every individual 
 should be entitled to the protection of the law ; 
 and thus did those rights with which the lords had 
 strengthened themselves, in order to oppose the 
 tyranny of the crown, become a bulwark which 
 was in time to restrain their own. 
 
 CHAPTER II. 
 
 A second Advantage England had over France : 
 it formed one undivided State. 
 
 IT was in the reign of Henry the First, about 
 forty years after the conquest, that we see the 
 above causes begin to operate. This prince, hav- 
 ing ascended the throne to the exclusion of his 
 elder brother, was sensible that he had no other
 
 OF ENGLAND. 19 
 
 means to maintain his power than by gaining the 
 affection of his subjects ; but at the same time he 
 perceived that it must be the affection of the whole 
 nation : he, therefore, not only mitigated the rigour 
 of the feudal laws in favour of the lords, but 
 also annexed as a condition to the charter he 
 granted, that the lords should allow the same free- 
 dom to their respective vassals. Care was even 
 taken to abolish those laws of the Conqueror 
 which lay heaviest on the lower classes of the 
 people.* 
 
 Under Henry the Second, liberty took a farther 
 stride ; and the ancient trial by jury, a mode of 
 procedure which is at present one of the most va- 
 luable parts of the English law, made again, though 
 imperfectly, its appearance. 
 
 But these causes, which had worked but silently 
 and slowly under the two Henries, who were 
 princes in some degree just, and of great capacity, 
 manifested themselves at once under the despotic 
 reign of king John. The royal prerogative, and 
 the forest laws, having been exerted by this prince 
 
 * Amongst others, the law of the Curfeu. It might be matter 
 of curious discussion to enquire what the Anglo-Saxon govern- 
 ment would in process of time have become, and of course the 
 government of England be at the present time, if the event of the 
 conquest had never taken place ; which, by conferring an immense 
 as well as unusual power on the head of the feudal system, com- 
 pelled the nobility to contract a lasting and sincere union with the 
 people. It is very probable that the English government would 
 at this day be the same as that which long prevailed in Scotland 
 (where the king and nobles engrossed, jointly or by turns, the 
 whole power of the state) ; the same as in Sweden, the same as in 
 Denmark, countries whence the Anglo-Saxons came. 
 
 C 2
 
 20 THE CONSTITUTION 
 
 to a degree of excessive severity, he soon beheld 
 a general confederacy formed against him : and 
 here we must observe another circumstance, highly 
 advantageous, as well as peculiar, to England. 
 
 England was not, like France, an aggregation 
 of a number of different sovereignties : it formed 
 but one state, and acknowledged but one master, 
 one general title. The same laws, the same kind 
 of dependence, consequently the same notions, the 
 same interests, prevailed throughout the whole. 
 The extremities of the kingdom could, at all times, 
 unite to give a check to the exertions of an unjust 
 power. From the river Tweed to Portsmouth, 
 from Yarmouth to the Land's End, all was in 
 motion : the agitation increased from the distance, 
 like the rolling waves of an extensive sea ; and 
 the monarch, left to himself, and destitute of re- 
 sources, saw himself attacked on all sides by an 
 universal combination of his subjects. 
 
 No sooner was the standard set up against 
 John, than his very courtiers forsook him. In 
 this situation, finding no part of his kingdom less 
 irritated against him than another, having no de- 
 tached province which he could engage in his 
 defence by promises of pardon or of peculiar con- 
 cessions, the trivial though never-failing resources 
 of government, he was compelled, with seven of 
 his attendants, all that remained with him, to sub- 
 mit himself to the disposal of his subjects, and he 
 signed at Runirig-Mead* the charter of the Forest, 
 together with that famous charter, which, from its 
 
 * Anno 121o.
 
 OF ENGLAND. 21 
 
 superior and extensive importance, is denominated 
 Magna Charta. 
 
 By the former the most tyrannical parts of the 
 forest laws were abolished; and by the latter, the 
 rigour of the feudal laws was greatly mitigated in 
 favour of the lords. But this charter did riot stop 
 there ; conditions were also stipulated in favour 
 of the numerous body of the people who had con- 
 curred to obtain it, and who claimed, with sword in 
 hand, a share in that security it was meant to esta- 
 blish. It was hence instituted by the Great Charter, 
 that the same services which were remitted in 
 favour of the barons should be in like manner 
 remitted in favour of their vassals. This charter 
 moreover established an equality of weights and 
 measures throughout England; it exempted the mer- 
 chants from arbitrary imposts, and gave them liberty 
 to enter and depart the kingdom at pleasure : it 
 even extended to the lowest orders of the state, 
 since it enacted, that the villain, or bondman, 
 should not be subject to the forfeiture of his imple- 
 ments of tillage. Lastly, by the thirty-ninth 
 article of the same charter, it was enacted, that no 
 subject should be exiled, or in any shape what- 
 ever molested, either in his person or effects, other- 
 wise than by judgment of his peers, and according 
 to the law of the land ;* an article so important, 
 
 * " Nullus liber homo capiatur, vel hnprisonetur, vel dissesiatur 
 " de libero tenemento suo, vel libertatibus, vel liberis consuetudi- 
 " nibus suis ; aut utlagetur, aut exuletur, aut aliquo modo destru- 
 " atur ; nee super eum ibimus, nee super euro niittemus, nisi per 
 " legale judicium pariuin suoruin, vel per legem terrse. Nulli
 
 22 THE CONSTITUTION 
 
 that it may be said to comprehend the whole end 
 and design of political societies : and from that 
 moment the English would have been a free people, 
 if there were not an immense distance between the 
 making of laws, and the observing of them. 
 
 But though this charter wanted most of those 
 supports which were necessary to ensure respect to 
 it, though it did not secure to the poor and friend- 
 less any certain and legal methods of obtaining the 
 execution of it (provisions which numberless trans- 
 gressions alone could, in process of time, point 
 out); yet it w r as a prodigious advance towards the 
 establishment of public liberty. Instead of the ge- 
 neral maxims respecting the rights of the people 
 and the duties of the prince (maxims against which 
 
 " vendemus, nulli negabimus, aut differemus, justitiam vel rectum." 9 
 Magna Chart, cap. xxix. 
 
 9 No freeman shall be taken, or imprisoned, or be disseised of 
 his freehold, or liberties, or free customs, or be outlawed, or exiled, 
 or any otherwise destroyed ; nor will we pass upon him, nor con- 
 demn him, but by lawful judgment of his peers, or by the law of 
 the land. We will sell to no man, we will not deny or defer to any 
 man, either justice or right To this translation, given in Ruff- 
 head's Statutes at Large, the following note is annexed. " The 
 " words above, marked in italics, do by no means express the sense 
 " of the original. The two verbs, ibimusttad miff emus, evidently 
 " stand in contradistinction to each other, and are indeed much 
 " easier expounded than translated ; therefore we cannot do better 
 " than recur to Lord Coke's Exposition, which is as follows : ' No 
 " ' man shall be condemned at the king's suit, either before the 
 " ' king in his bench, where the pleas are cor am. rege, (and so are 
 " ' the words nee super eum ibimus, to be understood), nor before 
 " ' any other commissioner or Judge whatever (and so are the 
 " ' words nee super eum mittemus, to be understood).'" EDITOR.
 
 OF ENGLAND. 23 
 
 ambition perpetually contends, and which it some- 
 times even openly and absolutely denies), here was 
 substituted a written law, that is, a truth admitted 
 by all parties, which no longer required the support 
 of argument. The rights and privileges of the 
 individual, as well in his person as in his property, 
 became settled axioms. The Great Charter, at 
 first enacted with so much solemnity, and after- 
 wards confirmed at the beginning of every succeed- 
 ing reign, became like a general banner perpetually 
 set up for the union of all classes of the people ; 
 and the foundation was laid on which those equita- 
 ble laws were to rise, which offer the same assis- 
 tance to the poor and weak, as to the rich and 
 powerful.* 
 
 Under the long reign of Henry the Third, the 
 differences which arose between the king and the 
 nobles rendered England a scene of confusion. 
 Amidst the vicissitudes which the fortune of war 
 produced in their mutual conflicts, the people be- 
 came still more and more sensible of their impor- 
 
 * The reader, to be more fully convinced of the reality of the 
 causes to which the liberty of England has been here asciibed, as 
 well as of the truth of the observations made at the same time on 
 the situation of the people of France, needs only to compare the 
 Great Charter, so extensive in its provisions, and in which the 
 barons stipulated in favour even of the bondman, with the treaty 
 concluded at St. Maur, October 29, 1465, between Louis XI. and 
 several of the princes and peers of France. In this treaty, which 
 was made in order to terminate a war that was called the war for 
 the public good (pro bono publico), no provision was made but 
 concerning the particular power of a few lords : not a word was in- 
 serted in favour of the people. It may be seen at large in the 
 pieces justijicalives annexed to the Mt moires de Philippe de Co- 
 mines.
 
 24 THE CONSTITUTION 
 
 tance, and so did, in consequence, both the king 
 and the barons also. Alternately courted by both 
 parties, they obtained a confirmation of the Great 
 Charter, and even the addition of new privileges, 
 by the statutes of Merton and of Marlebridge. 
 But I hasten to reach the grand epoch of the reign 
 of Edward the First, a prince who, from his nu- 
 merous and prudent laws, has been denominated the 
 English Justinian. 
 
 Possessed of great natural talents, and succeed- 
 ing a prince whose weakness and injustice had ren- 
 dered his reign unhappy, Edward was sensible that 
 nothing but a strict administration of justice could, 
 on the one side, curb a nobility whom the troubles 
 of the preceding reign had rendered turbulent, and, 
 on the other, appease and conciliate the people, by 
 securing the property of individuals. To this end, 
 he made jurisprudence the principal object of his 
 attention ; and so much did it improve under his 
 care, that the mode of process became fixed and 
 settled ; Judge Hale going even so far as to affirm, 
 that the English laws arrived at once, et quasi per 
 saltum, 10 at perfection, and that there was more im- 
 provement made in them during the first thirteen 
 years of the reign of Edward, than in all the ages 
 since his time. 
 
 But what renders this sera particularly interesting, 
 is, that it affords the first instance of the admission 
 of the deputies of towns and boroughs into parlia- 
 ment,* 
 
 * I mean their legal origin ; for the earl of Leicester, who had 
 
 10 And as though hy a leap. EDJTOR.
 
 OF ENGLAND. 25 
 
 Edward, continually engaged in wars, either 
 against Scotland or on the continent, seeing more- 
 over his demesnes considerably diminished, was fre- 
 quently reduced to the most pressing necessities. 
 But, though, in consequence of the spirit of the 
 times, he frequently indulged himself in particular 
 acts of injustice, yet he perceived that it was impos- 
 sible to extend a general oppression over a body of 
 nobles, and a people, who so well knew how to 
 unite in a common cause. In order to raise subsi- 
 dies, therefore, he was obliged to employ a new 
 method, and to endeavour to obtain, through the 
 consent of the people, what his predecessors had 
 hitherto expected from their own power. The 
 sheriffs were ordered * to invite the towns and bo- 
 roughs of the different counties to send deputies 
 to parliament ; and it is from this sera that 
 we are to date the origin of the house of commons. 11 
 
 It must be confessed, however, that these depu- 
 
 usurped the power during part of the preceding reign, had called 
 such deputies up to parliament before. 
 * Anno 1295. 
 
 11 Although the first writ of summons of knights of shires to 
 parliament, extant on record, which comes near to the fonn now so 
 long in use, is in the 49lh year of Henry III., and the first regular 
 summons we meet with, directed to the sheriff for the election of 
 citizens and burgesses, is in the 23rd of Edward I., there is the 
 strongest presumptive evidence that the commons were a part of the 
 parliament soon after the conquest, or at least very early in the reign 
 of Henry III. The 25th of Edward I., which confirms Magna 
 Charta and the Charter of the Forest, recites, that they " were 
 ' made by common assent of all the realm,'' and a statute of the 
 15th of Edward III., found in the appendix, " consisting of obso- 
 " lete and curious acts,'* annexed to vol. ix. of Ruffhead's Statutes 
 at Large, speaks yet more strongly, that Magna Charta and former
 
 26 THE CONSTITUTION 
 
 ties of the people were not, at first, possessed of 
 any considerable authority. They were far from 
 enjoying those extensive privileges which, in these 
 days, constitute the house of commons a collateral 
 part of the government : they were in those times 
 called up only to provide for the wants of the king, 
 and approve the resolutions taken by him and the 
 assembly of the lords.* But it was nevertheless a 
 
 * The end mentioned in the summons sent to the lords, was de 
 arduis negotiis regni tractaturi, et consilium impensuri : 12 the requi- 
 sition sent to the commons was, ad faciendum et consentien- 
 dum. 13 The power enjoyed by the latter was even inferior to what 
 they might have expected from the summons sent to them. " In 
 " most of the ancient statutes they are not so much as named ; and 
 " in several, even when they are mentioned, they are distinguished 
 " as petitioners merely, the assent of the lords being expressed in 
 " contradistinction to the request of the commons. 1 ' See on this 
 subject the preface 14 to the Collection of the Statutes at large, by 
 Ruffhekd, and the authorities quoted therein. 
 
 statutes, which it confirms in all points, were made " par le roy, ses 
 piers, et la communalte de la terre pur commun profit de poeple" 
 (by the king, his peers, and the commonalty, or commons, of the 
 land, for the general advantage of the people.) Testimony so 
 derived is surely more to be regarded than the partial construction 
 of modern writers. EDITOR. 
 
 12 Concerning weighty affairs of the kingdom to deliberate and 
 afford counsel. EDITOR. 
 
 13 To do and consent. EDITOR. 
 
 14 The following are among the interesting notes attached to this 
 preface, to the whole of which, though long, the editor concurs in 
 directing the attention of the reader. " Throughout the reign of Ed. 
 " I. the assent of the commons is not once expressed in any of the 
 " enacting clauses ; nor in the reigns ensuing, till the 9th of Ed. 
 " III., nor in any of the enacting clauses of 16 R. II. Nay, 
 " even so low as H. VI., from the beginning till the 8th 
 " year of his reign, the assent of the commons is not once ex-
 
 OF ENGLAND. 27 
 
 great point gained, to have obtained the right of 
 littering their complaints, assembled in a body and 
 in a legal way to have acquired, instead of a dan- 
 gerous resource of insurrections, a lawful and re- 
 gular mean of influencing the motions of the go- 
 vernment, and thenceforth to have become a part of 
 it. Whatever disadvantage might attend the station 
 at first allotted to the representatives of the people, 
 it was soon to be compensated by the preponde- 
 rance the people necessarily acquire, when they are 
 enabled to act and move with method, and espe- 
 cially with concert.* 
 
 And indeed this privilege of naming representa- 
 tives, insignificant as it might then appear, pre- 
 sently manifested itself by the most considerable ef- 
 fects. In spite of his reluctance, and after many 
 
 * France had indeed also her assemblies of the general estates of 
 the kingdom, in the same manner as England had her parliament > 
 but then it was only the deputies of the towns within the particular 
 domain of the crown, that is, for a very small part of the' nation, 
 who, under the name of the third estate, were admitted in those 
 estates ; and it is easy to conceive that they acquire no great influ- 
 ence in an assembly of sovereigns who gave the law to their lord 
 paramount. Hence, when these disappeared, the maxim became 
 immediately established, The will of the king is the will of the 
 law: in old French, Que veut le roy, ce veut la lay. 
 
 " pressed in any enacting clause.'' " See also Hen. VII., where 
 " many statutes are said to be made by the advice antiasseni of the 
 " lords spiritual and temporal, and at the supplication of the 
 " commons ; at other times, at the request, sometimes the prayer, 
 " of the commons.'' " Some of our ancient statutes run in the form 
 " of petition and answer, such as Articuli Cleri, 9 Ed. II. Stat. 
 " 1." EDITOR.
 
 23 THE CONSTITUTION 
 
 evasions unworthy of so great a king-, Edward was 
 obliged to confirm the Great Charter ; he even 
 confirmed it eleven times in the course of his reign. 
 It was moreover enacted, that whaterer should be 
 done contrary to it, should be null and void ; that 
 it should be read twice a year in all cathedrals ; and 
 that the penalty of excommunication should be de- 
 nounced against any one who should presume to 
 violate it.* 
 
 At length he converted into an established law 
 a privilege of which the English had hitherto had 
 only a precarious enjoyment ; and, in the statute 
 de tallagio non concedendo, he decreed, that no 
 tax should be laid, nor impost levied, without the 
 joint consent of the lords and commons.t A most 
 important statute this, which, in conjunction with 
 Magna Charta, forms the basis of the English 
 constitution. If from the latter the English are 
 to date the origin of their liberty, from the former 
 they are to date the establishment of it : and as 
 the Great Charter was the bulwark that protected 
 the freedom of individuals, so was the statute in 
 question the engine which protected the charter 
 
 * Confirmationes Chartarum, cap. 2, 3,4. 
 
 f " Nullum tallagium vel auxilium, per nos, vel haeredes 
 " nostros, in regno nostro ponatur sen levetur, sine voluntate et 
 " assensu archiepiscopovum, episcoporum, comitum, baronum, 
 " militum, burgensium, et aliorum liberorum hominum de regno 
 " nostro." 15 Stat. an. 34 Ed. I. 
 
 15 No tallage or aid shall be taken or levied by us or our heirs in 
 our realm, without the good will and assent of archbishops, bishops, 
 earls, barons, knights, burgesses, and other freemen of the land. 
 Translation given in Ruffhead's statutes at large. EDITOR.
 
 OF ENGLAND. 29 
 
 itself, and by the help of which the people were 
 thenceforth to make legal conquests over the au- 
 thority of the crown. 
 
 This is the period at which we must stop, in 
 order to take a distant view, and contemplate the 
 different prospect which the rest of Europe then 
 presented. 
 
 The efficient causes of slavery were daily ope- 
 rating-, and gaining- strength. The independence 
 of the nobles on the one hand, the ignorance and 
 weakness of the people on the other, continued to 
 be extreme : the feudal government still continued 
 to diffuse oppression and misery ; and such was 
 the confusion of it, that it even took away all hopes 
 of amendment. 
 
 France, still bleeding from the extravagance of 
 a nobility incessantly engaged in groundless wars, 
 either with each other, or with the king, was 
 again desolated by the tyranny of that same nobi- 
 lity, haughtily jealous of their liberty, or rather of 
 their anarchy.* The people, oppressed by those 
 who ought to have guided and protected them, 
 loaded with insults by those who existed by their 
 labour, revolted on all sides. But their tumultuous 
 insurrections had scarcely any other object than 
 
 * Not contented with oppression, they added insult. " When 
 ' the gentry/' says Mezeray, " pillaged and committed exactions 
 ' on the peasantry, they called the poor sufferer, in derision, 
 ' Jaqites bonhomme (goodman James). This gave rise to a furious 
 ' sedition, which was called the Jaquerie. It began at Beauvais in 
 ' the year 1357, extending itself into most of the provinces of 
 ' France, and was not appeased hut by the destruction of part of 
 ' those unhappy victims, thousands of whom were slaughtered."
 
 30 THE CONSTITUTION 
 
 that of giving vent to the anguish with which their 
 hearts were filled. They had no thoughts of enter- 
 ing into a general combination ; still less of chang- 
 ing the form of the government, and laying a re- 
 gular plan of public liberty. 
 
 Having never extended their views beyond the 
 fields they cultivated, they had no conception of 
 those different ranks and orders of men, of those 
 distinct and opposite privileges and prerogatives, 
 which are all necessary ingredients of a free consti- 
 tution. Hitherto confined to the same round of 
 rustic employments they little thought of that com- 
 plicated fabric, which the more informed themselves 
 cannot but with difficulty comprehend, when, by a 
 concurrence of favourable circumstances, the struc- 
 ture has at length been reared, and stands displayed 
 to their view. 
 
 In their simplicity they saw no other remedy 
 for the national evils than the general establishment 
 of the regal power, that is, of the authority of 
 one common uncontrolled master, and only longed 
 for that time, which, while it gratified their 
 revenge, would mitigate their sufferings, and re- 
 duce to the same level both the oppressors and the 
 oppressed. 
 
 The nobility, on the other hand, bent solely on 
 the enjoyment of a momentary independence, irre- 
 coverably lost the affection of the only men who 
 might in time support them ; and, equally regard- 
 less of the dictates of humanity and of prudence, 
 they did not perceive the gradual and continual 
 advances of the royal authority, which was soon to 
 overwhelm them all. Already were Normandy,
 
 OF ENGLAND. 31 
 
 Anjou, Languedoc, and Touraine, re-united to the 
 crown : Dauphin^, Champagne, and part of Gui- 
 enne, were soon to follow : France was doomed at 
 length to see the reign of Louis the Eleventh ; to 
 see her general estates first become useless, and be 
 afterwards abolished. 
 
 It was the destiny of Spain also to behold her 
 several kingdoms united under one head ; she was 
 fated to be in time ruled by Ferdinand and Charles 
 the Fifth.* And Germany, where an elective 
 crown prevented the re-unions,^ was indeed to 
 
 * Spain was originally divided into twelve kingdoms, besides 
 principalities, which, by treaties, and especially by conquests, were 
 collected into three kingdoms; those of Castile, Aragon, and 
 Granada. Ferdinand the Fifth, king of Aragon, married Isabella, 
 queen of Castile ; they made a joint conquest of the kingdom of 
 Granada ; and these three kingdoms, thus united, descended, in 
 1516, to their grandson Charles V. and formed the Spanish monar- 
 chy. At this sera, the kings of Spain began to be absolute ; and 
 the states of the kingdoms of Castile and Leon, " assembled at 
 " Toledo, in the month of November, 1539, were the last in which 
 " the three orders met ; that is, the grandees, the ecclesiastics, and 
 " the deputies of the towns." See the History of Spain, by Fer- 
 reras. 
 
 f The kingdom of France, as it stood under Hugh Capet and 
 his next successors, may, with a great degree of exactness, be com- 
 pared with the German empire : but the imperial crown of Germany 
 having, through a conjunction of circumstances, continued elective, 
 the emperors, though vested with more high-sounding prerogatives 
 than even the kings of France, laboured under very essential dis- 
 advantages : they could not pursue a plan of aggrandisement with 
 the same steadiness as a line of hereditary sovereigns usually do ; 
 and the right to elect them, enjoyed by the greater princes of 
 Germany, procured a sufficient power to these, to protect them- 
 selves, as well as the inferior lords, against the power of the 
 crown.
 
 32 THE CONSTITUTION 
 
 acquire a few free cities ; but her people, parcelled 
 into so many different dominions, were destined to 
 remain subject to the arbitrary yoke of such of her 
 different sovereigns as should be able to maintain 
 their power and independence. In a word, the 
 feudal tyranny which overspread the continent did 
 not compensate, by any preparation of distant ad- 
 vantages, the present calamities it caused ; nor was 
 it to leave behind it, as it disappeared, any thing 
 but a more regular kind of despotism. 
 
 But in England, the same feudal system, after 
 having suddenly broken in like a flood, had de- 
 posited, and still continued to deposit, the noble 
 seeds of the spirit of liberty, union, and sober re- 
 sistance. So early as the time of Edward the tide 
 was seen gradually to subside : the laws which 
 protect the person and property of the individual 
 began to make their appearance ; that admirable 
 constitution, the result of a threefold power, insen- 
 sibly arose ;* and the eye might even then discover 
 the verdant summits of that fortunate region that 
 was destined to be the seat of philosophy and li- 
 berty, which are inseparable companions. 
 
 * " Now, in my opinion/' says Philippe cle Comines, in times 
 not much posterior to those of Edward the First, and with the 
 simplicity of the language of his times," among all the sovereign- 
 " ties I know in the world, that in which the puhlic good is hest 
 " attended to, and the least violence exercised on the people, is 
 " that of England." Me moires de Comities, livre v. chap- xviii.
 
 OF ENGLAND. ,'i'3 
 
 CHAPTER III. 
 
 The Subject continued. 
 
 THE representatives of the nation, and of the 
 whole nation, were now admitted into parlia- 
 ment : the great point therefore was gained, that 
 was one day to procure them the great influence 
 which they at present possess ; and the subsequent 
 reigns afford continual instances of its successive 
 growth. 
 
 Under Edward the Second, the commons be- 
 gan to annex petitions to the bills by which they 
 granted subsidies: this was the dawn of their le- 
 gislative authority. 
 
 Under Edward the Third, they declared they 
 would not in future acknowledge any law to which 
 they had not expressly assented. Soon after this, 
 they exerted a privilege, in which consists, at this 
 time, one of the great balances of the constitution : 
 they impeached, and procured to be condemned, 
 some of the first ministers of state. 16 Under Henry 
 
 16 Of the exercise, by the democratic branch of our constitution, 
 of the inquisitorial power of impeachment, which so eminently con- 
 tributes to the preservation of public liberty, we have no formal 
 record in the rolls of parliament prior to the 50th year of the 
 reign of Edward 111., when Lord Latimer was impeached by the 
 commons, and, being, after regular process in the house of peers, 
 convicted of mal- administration, dismissed by the king from all 
 ministerial employment. Lord Neville was also accused by the 
 Commons, and banished from court. A persuasion of the increas- 
 ing influence of the lower house (for it was about this time that tilt- 
 peel's and the commons began to deliberate in different halls or 
 
 D
 
 34 THE CONSTITUTION 
 
 p 
 
 the Fourtli, they refused to grant subsidies before 
 an answer had been given to their petitions. In 
 a word, every event of any consequence was at- 
 tended with an increase of the power of the com- 
 mons ; increases indeed but slow and gradual, 
 but which were peaceably and legally effected, and 
 were the more fit to engage the attention of the 
 people, and coalesce with the ancient principles of 
 the constitution. 
 
 Under Henry the Fifth, the nation was entirely 
 taken up with its wars against France ; and in 
 the reign of Henry the Sixth began the fatal con- 
 tests between the houses of York and Lancaster. 
 The noise of arms alone was now to be heard ; 
 during the silence of the laws already in being, no 
 thought was had of enacting new ones : and for 
 thirty years together England presents a wide scene 
 of slaughter and desolation. 
 
 At length, under Henry the Seventh, who, by 
 his intermarriage with the house of York, united 
 the pretensions of the two families, a general 
 peace was re-established, and the prospect of hap- 
 pier days seemed to open on the nation. But the 
 long and violent agitation under which it had la- 
 boured was to be followed by a long and painful 
 recovery. Henry, mounting the throne with 
 sword in hand, and in great measure as a con- 
 queror, had promises to fulfil, as well as injuries 
 to avenge. In the mean time, the people, wearied 
 
 apartments) was manifested in the following reign, by the uncon- 
 stitutional attempts of Richard II. and his ministers to influence the 
 elections. EDITO R.
 
 OF ENGLAND. . 33 
 
 out by the calamities they had undergone, anjl 
 longing only for repose, abhorred even the idea of 
 resistance ; so that the remains of an almost exter- 
 minated nobility beheld themselves left defenceless, 
 and abandoned to the mercy of the sovereign. 
 
 The commons, on the other hand, accustomed 
 to act only a second part in public affairs, and 
 finding themselves bereft of those who had hither- 
 to been their leaders, were ..more than ever afraid 
 to form, of themselves, an opposition. Placed 
 immediately, as well as the lords, under the eye 
 of the king, they beheld themselves exposed to 
 * the same dangers. Like them, therefore, they 
 purchase^! their personal security at the expense 
 of^mblic liberty ; and in reading the history of the 
 first two kings of the house of Tudor, we imagine 
 ourselves reading the relation given by Tacitus of 
 Tiberius and the Roman senate.* 
 
 The time, therefore, seemed to be arrived, at 
 which England must submit, in its turn, to the 
 fate of the other Nations of Europe. All those 
 barriers which it had raised for the defence of its 
 liberty seemed to have only been able to postpone 
 the inevitable effects of power. 
 
 But the remembrance of their ancient laws, of 
 that great charter so often and so solemnly con- 
 firmed, was too deeply impressed on the minds of 
 the English to be effaced by transitory evils. Like 
 
 * Quanta quis illuslrior, tanto magis falsi ac festinantes. 1 " 1 
 
 17 The higher each person's rank, the greater deception he prac- 
 tised, and the more he struggled for the foremost place in bondage. 
 EDITOR. 
 
 D <2
 
 35 THE CONSTITUTION 
 
 a deep and extensive ocean, which preserves an 
 equability of temperature amidst all the vicissi- 
 tudes of seasons, England still retained those prin- 
 ciples of liberty which were so universally diffused 
 through all orders of the people ; and they re- 
 quired only a proper opportunity to manifest them- 
 selves. 
 
 England, besides, still continued to possess the 
 immense advantage of being one undivided state. 
 
 Had it been, like France, divided into several 
 distinct dominions, it would also have had several 
 national assemblies. These assemblies, being con- 
 vened at different times and places, for this and 
 other reasons, never could have acted in concert ; 
 and the power of withholding subsidies, a power 
 so important when it is that of disabling the sove- 
 reign, and binding him down to inaction, would 
 then have only been the destructive privilege of 
 irritating a master who would have easily found 
 means to obtain supplies from other quarters. 
 
 The different parliaments, or assemblies of these 
 several states, having thenceforth no means of re- 
 commending themselves to their sovereign, but 
 their forwardness in complying with his demands, 
 would have vied with each other in granting what 
 it would not only have been fruitless, but even 
 highly dangerous, to refuse. The king would not 
 have failed soon to demand, as a tribute, a gift 
 he must have been confident to obtain ; and the 
 outward forms of consent would have been left to 
 the people only as additional means of oppressing 
 them without danger. 
 
 But the king of England continued, even in the
 
 OF ENGLAND. 37 
 
 time of the Tudors, to have but one assembly 
 before which he could lay his wants and apply for 
 relief. How great soever the increase of his power 
 was, a single parliament alone could furnish him 
 with the means of exercising it ; and whether it 
 was that the members of this parliament enter- 
 tained a deep sense of their advantages, or whether 
 private interest exerted itself in aid of patriotism, 
 they at all times vindicated the right of granting, 
 or rather refusing, subsidies ; and amidst the gene- 
 ral wreck of every thing they ought to have held 
 dear, they at least clung obstinately to the plank 
 which was destined to prove the instrument of 
 their preservation. 
 
 Under Edward the Sixth, the absurd tyrannical 
 laws against high-treason (instituted under Henry 
 the Eighth) were abolished. But this young and 
 virtuous prince having soon passed away, the 
 blood-thirsty Mary astonished the world with cruel- 
 ties, which nothing but the fanaticism of a part of 
 her subjects could have enabled her to execute. 
 
 Under the long and brilliant reign of Elizabeth, 
 England began to breathe anew : and the protes- 
 tant religion, being seated once more on the 
 throne, brought with it some more freedom and 
 toleration. 
 
 The Star-chamber, that effectual instrument of 
 the tyranny of the two Henries, yet continued to 
 subsist : the inquisitorial tribunal of the high 
 commission was even instituted ; and the yoke of 
 arbitrary power lay still heavy on the subject. But 
 the general affection of the people for a queen, 
 whose former misfortunes had created such a ge-
 
 38 THE CONSTITUTION 
 
 neral concern, the imminent dangers which Eng- 
 land escaped, and the extreme glory attending 
 that reign, lessened the sense of such exertions of 
 authority as would, in these days, appear the 
 height of tyranny, and served at that time to 
 justify, as they still do to excuse, a princess whose 
 great talents, though not her principles of govern- 
 ment, render her worthy of being ranked among 
 the greatest sovereigns. 
 
 Under the sway of the Stuarts, the nation be- 
 gan to recover from its long lethargy. James the 
 First, a prince rather imprudent than tyrannical, 
 drew back the veil which had hitherto disguised 
 so many usurpations, and made an ostentatious 
 display of what his predecessors had been contented 
 to enjoy. 
 
 He was incessantly asserting, that the autho- 
 rity of kings was not to be controlled any more 
 than that of God himself. Like Him, they were 
 omnipotent; and those privileges to which the peo- 
 ple so clamorously laid claim as their inheritance 
 and birthright, were no more than an effect of the 
 grace and toleration of his royal ancestors.* 
 
 Those principles, hitherto only silently adopted 
 in the cabinet, and in the courts of justice, had 
 maintained their ground in consequence of this 
 very obscurity. Being now announced from the 
 throne, and resounded from the pulpit, they 
 spread an universal alarm. Commerce, besides, 
 with its attendant arts, and, above all, that of 
 
 * See his declarations made in parliament, in the years 1610 
 and 1G21.
 
 OF ENGLAND. 39 
 
 printing-, diffused more salutary notions through- 
 out all orders of the people ; a new light began to 
 rise upon the nation ; and the spirit of opposition 
 frequently displayed itself in this reign, to which 
 the English monarchs had not, for a long time 
 past, been accustomed. 
 
 But the storm, which was only gathering in 
 clouds during the reign of James, began to mutter 
 under Charles the First ; and the scene which 
 opened to view, on the accession of that prince, 
 presented the most formidable aspect. 
 
 The notions of religion, by a singular concur- 
 rence, united with the love of liberty : the same 
 spirit which had made an attack on the established 
 faith, now directed itself to politics : the royal 
 prerogatives were brought under the same exami- 
 nation as the doctrines of the church of Rome had 
 been submitted to ; and as a superstitious religion 
 had proved unable to support the test, so neither 
 could an authority, pretended to be unlimited, 
 be expected to bear it. 
 
 The commons, on the other hand, were reco- 
 vering from the astonishment into which the ex- 
 tinction of the power of the nobles had, at first, 
 thrown them. Taking a view of the state of the 
 nation, and of their own, they became sensible of 
 their whole strength : they determined to make 
 use of it, and to repress a power which seemed, 
 for so long a time, to have levelled every barrier. 
 Finding among themselves men of the greatest 
 capacity, they undertook that important task with 
 method and by constitutional means; and thus
 
 40 THE CONSTITUTION 
 
 had Charles to cope with a whole nation put in 
 motion and directed by an assembly of statesmen. 
 
 And here we must observe how different were 
 the effects produced in England, by the annihi- 
 lation of the power of the nobility, from those 
 which the same event had produced in France. 
 
 In France, where, in consequence of the divi- 
 sion of the people, and of the exorbitant power 
 of the nobles, the people were accounted nothing- 
 when the nobles themselves were suppressed, 
 the work was completed. 
 
 In England, on the contrary, where the nobles 
 had ever vindicated the rights of the people equally 
 with their own, in England, where the people 
 had successively acquired most effectual means of 
 influencing the motions of the government, and 
 above all were undivided, when the nobles them- 
 selves were cast to the ground, the body of the 
 people stood firm, and maintained the public 
 liberty. 
 
 The unfortunate Charles, however, was totally 
 ignorant of the dangers which surrounded him. 
 Seduced by the example of the other sovereigns 
 of Europe, he was not aware how different, in 
 reality, his situation was from theirs : he had the 
 imprudence to exert with rigour an authority 
 which he had no ultimate resources to support : 
 an union was at last effected in the nation ; and 
 he saw his enervated prerogatives dissipated with 
 a breath.* By the famous act, called the Petition 
 
 * It might here be objected, that when, under Charles the 
 First, I he regal power wus obliged to submit to the power of the
 
 OF ENGLAND. 41 
 
 of Right, and a posterior act, to both which he 
 assented, the compulsory loans and taxes, dis- 
 guised under the name of benevolences, were de- 
 clared to be contrary to law ; arbitrary imprison- 
 ments, and the exercise of martial law, were 
 abolished ; the court of high commission, and the 
 star-chamber, were suppressed ;* and the constitu- 
 tion, freed from the apparatus of despotic powers 
 with which the Tudors had obscured it, was re- 
 stored to its ancient lustre. Happy had been the 
 people, if their leaders, after having executed so 
 
 people, the king possessed other dominions besides England, viz. 
 Scotland and Ireland, and therefore, seemed to enjoy the same 
 advantage as the kings of France, that of reigning over a divided 
 empire or nation. But, to this it is to be answered, that, at the 
 time we mention, Ireland, scarcely civilized, only increased the ne- 
 cessities, and consequently the dependence, of the kirg; while 
 Scotland, through the conjunction of peculiar circumstances, had 
 thrown off her obedience. And though those two states, even at 
 present, bear no proportion to the compact body of the kingdom of 
 England, and seem never to have been able, by their union with 
 it, to procure to the king any dangerous resources, yet the cir- 
 cumstances which took place in both at the time of the Revolu- 
 tion, or since, sufficiently prove that it was no unfavourable circum- 
 stance to English liberty, that the great crisis of the reign of 
 Charles the First, and the advance which the constitution was to 
 make at that time, should precede the period at which the king of 
 England might have been able to call in the assistance of two other 
 kingdoms. 
 
 * The star-chamber differed from all the other courts of law in 
 this : the latter were governed only by the common law, or im- 
 memorial customs, and acts of parliament ; whereas the former 
 often admitted for law the proclamations of the king and council, 
 and grounded its judgments upon them. The abolition of this 
 tribunal, therefore, was justly looked upon as a great victory over 
 regal authority.
 
 4<2 THE CONSTITUTION 
 
 noble a work, had contented themselves with the 
 glory of being- the benefactors of their country. 
 Happy had been the king, if, obliged at last to 
 submit, his submission had been sincere, and if 
 he had become sufficiently sensible that the only 
 resource he had left was the affection of his sub- 
 jects. 
 
 But Charles knew not how to survive the loss of 
 a power he had conceived to be indisputable : he 
 could not reconcile himself to limitations and re- 
 straints so injurious, according to his notions, to 
 sovereign authority. His discourse and conduct 
 betrayed his secret designs ; distrust took posses- 
 sion of the nation j certain ambitious persons 
 availed themselves of it to promote their own 
 views ; and the storm, which seemed to have blown 
 over, burst forth anew. The contending fanati- 
 cism of persecuting sects joined in the conflict 
 between regal haughtiness and the ambition of 
 individuals ; the tempest blew from every point of 
 the compass ; the constitution was rent asunder ; 
 and Charles exhibited in his fall an awful example 
 to the universe. 
 
 The royal power being thus annihilated, the 
 English made fruitless attempts to substitute a 
 republican government in its stead. " It was a 
 " curious spectacle," says Montesquieu, " to be- 
 " hold the vain efforts of the English to establish 
 " among themselves a democracy." Subjected, at 
 first, to the power of the principal leaders in the 
 long parliament, they saw that power expire, only 
 to pass without bounds into the hands of a pro- 
 tector. They saw it afterwards parcelled out
 
 OF ENGLAND. 43 
 
 among the chiefs of different bodies of soldiers ; 
 and thus shifting without end from one kind of 
 subjection to another, they were at length con- 
 vinced, that an attempt to establish liberty in a 
 great nation, by making the people interfere in 
 the common business of government, is, of all at- 
 tempts, the most chimerical ; that the authority 
 of all, with which men are amused, is in reality 
 no more than the authority of a few powerful in- 
 dividuals, who divide the republic among them- 
 selves ; and they at last rested in the bosom of the 
 only constitution which is fit for a great state and a 
 free people ; I mean that in which a chosen number 
 deliberate, and a single hand executes ; but in 
 which, at the same time, the public satisfaction is 
 rendered, by the general relation and arrangement 
 of things, a necessary condition of the duration of 
 government. 
 
 Charles the Second, therefore, was called over ; 
 and he experienced on the part of the people that 
 enthusiasm of affection which usually attends the 
 return from a long alienation. He could not, 
 however, bring himself to forgive them the inex- 
 piable crime of which he looked upon them to have 
 been guilty. He saw with the deepest concern 
 that they still entertained their former notions 
 with regard to the nature of the royal prerogative ; 
 and, bent upon the recovery of the ancient powers 
 of the crown, he only waited for an opportunity 
 to break those promises which had procured his 
 restoration. 
 
 But the very eagerness of his measures frustrated 
 their success. His dangerous alliances on the
 
 44 THE CONSTITUTION 
 
 continent, and the extravagant wars in which he 
 involved England, joined to the frequent abuse he 
 made of his authority, betrayed his designs. The 
 eyes of the nation were soon opened, and saw into 
 his projects ; when, convinced, at length, that no- 
 thing but fixed and irresistible bounds can be an 
 effectual check on the views and efforts of power, 
 they resolved finally to take away those remnants 
 of despotism which still made a part of the regal 
 prerogative. 
 
 The military services due to the crown, the re- 
 mains of the ancient feudal tenures, had been al- 
 ready abolished : the laws against heretics were 
 now repealed ; the statute for holding parliaments 
 once at least in three years was enacted ; the 
 Habeas Corpus act, that barrier of the subject's 
 personal safety, was established ; and such was the 
 patriotism of the parliaments, that it was under a 
 king the most destitute of principle that liberty 
 received its most efficacious supports. 
 
 At length, on the death of Charles, began a 
 reicm which affords a most exemplary lesson both 
 to kings and people. James the Second, a prince 
 of a more rigid disposition, though of a less com- 
 prehensive understanding, than his late brother, 
 pursued still more openly the project which had 
 already proved so fatal to his family. He would 
 not see that the great alterations which had suc- 
 cessively been effected in the constitution rendered 
 the execution of it daily more and more impracti- 
 cable : he imprudently suffered himself to be ex- 
 asperated at a resistance he was in no condition to 
 overcome ; and, hurried away by a spirit of despot-
 
 OF ENGLAND. 45 
 
 ism and a monkish zeal, he ran headlong against the 
 rock which was to wreck his authority. 
 
 He not only used in his declarations the alarming 
 expressions of absolute power and unlimited obedi- 
 encehe not only usurped to himself a right to 
 dispense with the laws ; but moreover sought to 
 convert that destructive pretension to the destruc- 
 tion of those very laws which were held most dear 
 by the nation, by endeavouring to abolish a religion 
 for which they had suffered the greatest calamities, 
 in order to establish on its ruins a mode of faith 
 which repeated acts of the legislature had pro- 
 scribed, and proscribed, not because it tended to 
 establish in England the doctrines of transubstanti- 
 ation and purgatory, doctrines in themselves of no 
 political moment, but because the unlimited power 
 of the sovereign had always been made one of its 
 principal tenets. 
 
 To endeavour therefore to revive such a religion, 
 was not only a violation of the laws, but was, by 
 one enormous violation, to pave the way for others 
 of a still more alarming nature. Hence the Eng- 
 lish, seeing that their liberty was attacked even in 
 its first principles, had recourse to that remedy 
 which reason and nature point out to the people, 
 when he who ought to be the guardian of the laws 
 becomes their destroyer ; they withdrew the alle- 
 giance which they had sworn to James, and thought 
 themselves absolved from their oath to a king who 
 himself disregarded the oath he had made to his 
 people. 
 
 But, instead of a revolution like that which de- 
 throned Charles the First, which was effected by
 
 46 THE CONSTITUTION 
 
 a great effusion of blood, and threw the state into 
 a general and terrible convulsion, the dethronement 
 of James proved a matter of short and easy opera- 
 tion. In consequence of the progressive information 
 of the people, and the certainty of the principles which 
 now directed the nation, the whole were unani- 
 mous. All the ties by which the people were bound 
 to the throne were broken, as it were, by one single 
 shock ; and James, who, the moment before, was 
 a monarch surrounded by subjects, became at once 
 a simple individual in the midst of the nation. 
 
 That which contributes, above all, to distinguish 
 this event as singular in the annals of mankind, is 
 the moderation, I may even say, the legality, which 
 accompanied it. As if to dethrone a king, who 
 sought to set himself above the laws, had been a 
 natural consequence of, and provided for by, the 
 principles of government, every thing remained in 
 its place ; the throne was declared vacant, and a 
 new line of succession was established. 18 
 
 18 One cannot but be struck with the delicacy of manner with 
 which our author (a foreigner be it recollected) alludes to this 
 most memorable event in the annals of this country. He says, 
 " A new line of succession was established," and such, and no 
 more, was literally the case. James's attachment to the Romish 
 religion, and love of arbitrary power, caused the nation entirely to 
 abandon him ; whereupon, he abdicated the throne, and quitted 
 the country. The nation, passing over Edward, the only son of 
 James, as being a Papist, and therefore disqualified from governing 
 a Protestant empire, invited William, Prince of Orange, who had 
 married Mary, the eldest daughter of James, and was a firm Pro- 
 testant and a friend of civil and religious liberty, to be their sove- 
 reign ; and, at the death of William and Mary without issue, Anne, 
 the second daughter of James, succeeded to the throne. How dif-
 
 OF ENGLAND. 47 
 
 Nor was this all ; care was had to repair the 
 breaches that had been made in the constitution, 
 as well as to prevent new ones ; and advantage 
 was taken of the rare opportunity of entering into 
 an original and express compact between king and 
 people. 
 
 An oath was required of the new king, more 
 precise than had been taken by his predecessors : 
 and it was consecrated as a perpetual formula of 
 such oaths. It was determined, that to impose 
 taxes without the consent of parliament, as well as 
 to keep up a standing army in time of peace, are 
 contrary to law. The power, which the crown 
 had constantly claimed, of dispensing with the laws, 
 was abolished. It was enacted, that the subject, of 
 whatever rank or degree, had a right to present 
 petitions to the king.* Lastly, the key-stone was 
 
 * The lords and commons, previous to the coronation of king 
 William and queen Mary, had framed a bill which contained a de- 
 claration of the rights which they claimed in behalf of the people, 
 and was in consequence called the Bill of Rights. This bill con- 
 tained the articles above, as well as some others ; and, having re- 
 ceived afterwards the royal assent, became an act of parliament, under 
 the title of An Act declaring the Rights and Liberties of the Subject, 
 and settling the Succession of the Crown. A. 1 William and 
 Mary, sess. 2. cap. 2. 
 
 ferent is this transaction, dispassionately considered, to an absolute 
 act of election by the people, for which the propagators of revolu- 
 tionary doctrines assert that it forms a precedent. We see in the 
 revolution, as this event is designated, merely such a departure 
 from the strict principles of hereditary succession as the exigency 
 of the crisis not only justified but imperatively required, or, as has 
 been well observed, " A deviation from one of the articles of the 
 " constitution, requisite to prevent the subversion of the whole." 
 EDITOR.
 
 48 TllK CONSTITUTION 
 
 put to the .arch, by the final establishment of the 
 liberty of the press.* 
 
 The revolution of 1689 is therefore the third 
 grand aera in the history of the constitution of Eng- 
 land. The Great Charter had marked out the 
 limits within which the royal authority ought to 
 be confined ; some outworks were raised in the 
 reign of Edward the First ; but it was at the revo- 
 lution that the circumvallation was completed. 
 
 It was at this sera that the true principles of civil 
 society were fully established. By the expulsion of 
 a king who had violated his oath, the doctrine of 
 resistance, that ultimate resource of an oppressed 
 people, was confirmed beyond a doubt. By the 
 exclusion given to a family hereditarily despotic, 
 it was finally determined that nations are not the 
 property of kings. The principles of passive obe- 
 dience, the divine and indefeasible right of kings 
 in a word, the whole scaffolding of false and super- 
 stitious notions, by which the royal authority had 
 till then been supported, fell to the ground ; and 
 in the room of it were substituted the more solid 
 and durable foundations of the love of order, and 
 a sense of the necessity of civil government among 
 mankind. 
 
 * The liberty of the press was, properly speaking, established 
 only lour years afterwards, in consequence of the refusal which the 
 parliament made at that time to continue any longer the restric- 
 tions which had before been set uuon it.
 
 OF ENGLAND. 49 
 
 CHAPTER IV. 
 
 Of the Legislative Power. 
 
 IN almost all the states of Europe, the will of the 
 prince holds the place of law ; and custom has so 
 confounded the matter of right with the matter of 
 fact, that their lawyers generally represent the 
 legislative authority as essentially attached to the 
 character of king ; and the plenitude of his power 
 seems to them necessarily to flow from the very 
 definition of his title. 
 
 The English, placed in more favourable circum- 
 stances, have judged differently : they could not 
 believe that the destiny of mankind ought to depend 
 on a play of words, and on scholastic subtilties ; 
 they have therefore annexed no other idea to the 
 word king, or roy> a word known also to their 
 laws, than that which the Latins annexed to the 
 word rex, and the northern nations to cyning. 
 
 In limiting therefore the power of their king, 
 they have acted more consistently with the etymo- 
 logy of the word ; they have acted also more con- 
 sistently with reason, in not leaving the laws to the 
 disposal of the person who is already invested with 
 the public power of the state, that is, of the person 
 who lies under the greatest and most important 
 temptations to set himself above them. 
 
 The basis of the English constitution, the capital 
 principle on which all others depend, is, that the 
 legislative power belongs to parliament alone : that
 
 50 THE CONSTITUTION 
 
 is to say, the power of establishing- laws, and of 
 abrogating 1 , changing, or explaining them. 
 
 The constituent parts of parliament are, the king, 
 the house of lords, and the house of commons. 
 
 The house of commons, otherwise the assembly 
 of the representatives of the nation, is composed of 
 the deputies of the different counties, each of which 
 sends two ; 19 of the deputies of certain towns, of 
 which London (including Westminster and South- 
 wark) sends eight 20 other towns, two or one ; C1 and 
 
 19 By 2 Will. IV. cap. 45, (A.D. 1832,) intituled, " An act to 
 amend the representation of the people in England and Wales," it 
 was enacted, that in all future parliaments there should be six 
 knights of the shire, instead of four, for Yorkshire (two for each 
 of the three Ridings), and four for Lincolnshire (two for the parts of 
 Lindsey, and two for those of Kesteven and Holland) ; that twenty- 
 five English counties therein named should be divided into two 
 divisions, and return two knights of the shire for each division ; that 
 there should he three knights of the shire for each of seven English 
 counties therein named, and two knights of the shire, instead of one, 
 for each of the counties of Carmarthen, Denbigh, and Glamorgan ; 
 and that the Isle of Wight should, for the purposes of that act, 
 be a county of itself, and return one knight of the shire. EDITOR. 
 
 20 By the act referred to in the last note, Greenwich, Tower 
 Hamlets, Finsbury, Marylebone, and Lambeth, are, for the pur- 
 poses of that act, constituted boroughs to return two members each. 
 Therefore the number of metropolitan members, which was eight 
 when De Lolme wrote this treatise, has been augmented to eigh- 
 teen. EDITOR. 
 
 21 Of the towns thus entitled, previously to the passing of the 
 act referred to in the last two notes, fifty-six were entirely disfran- 
 chised, and thirty deprived of one of their two members by that 
 act ; which, at the same time, created forty-three new boroughs, 
 twenty-two of them to return two members, and twenty-one, one 
 member, each ; the act also deprived the borough of Weymouth 
 and Melcombe Regis of two of its four members. EDITOR.
 
 OF ENGLAND. 51 
 
 of the deputies of the universities of Oxford and 
 Cambridge, each of which sends two. 
 
 Lastly, since the act of union, Scotland sends 
 forty five deputies ; 22 who, added to those just men- 
 tioned, make up the whole number five hundred 
 and fifty-eight. 23 Those deputies, though separately 
 elected, do not solely represent the town or county 
 that sends them, as is the case with the deputies 
 of the United Provinces of the Netherlands, or 
 
 22 By sec. 1, of 2 & 3 Will. IV. cap. 65, (A.D. 1832,) inti- 
 tuled, " An act to amend the representation of the people of Scot- 
 land," it was enacted, that, from and after the end of the then 
 present parliament, and in all future parliaments to be assembled, 
 there should be fifty-three representatives returned for Scotland to 
 the commons house of parliament. EDITOR. 
 
 3 By 39 & 40 Geo. III. cap. 67, (A.D. 1800,) intituled, " An 
 act for the union of Great Britain and Ireland," it was enacted, as 
 part of the fourth article of union, that one hundred commons, (two 
 for each county of Ireland, two for the city of Dublin, two for the 
 city of Cork, one for the university of Trinity College, and one for 
 each of the thirty-one most considerable cities, towns, and bo- 
 roughs,) be the number to sit and vote on the part of Ireland in 
 the house of commons of the parliament of the United Kingdom. 
 From that time, therefore, the lower house has consisted of six 
 hundred and fifty-eight members. By sec. 1 1, of 2 & 3 Will. IV. 
 cap. 88, (A.D. 1832,) intituled, " An act to amend the repre- 
 sentation of the people of Ireland," it was enacted, that the city of 
 Limerick, the city of Waterford, the borough of Belfast, the county 
 of the town of Galway, and the university of Dublin, should each 
 respectively return one member to serve in each future parliament, 
 in addition to the member which each of the said places was then by 
 law entitled to return. Notwithstanding this addition of five members 
 to serve for Ireland, and the addition of eight for Scotland, (as re- 
 ferred to in the last note,) the total number of the house remains 
 the same, England and Wales returning thirteen fewer members 
 than they did previously to the passing of the English Refonn 
 Act. EDITOR. 
 
 E 2
 
 52 THE CONSTITUTION 
 
 of the Swiss Cantons ; but, when they are once 
 admitted, they represent the whole body of the 
 nation. 
 
 The qualifications required for being- a member 
 of the house of commons are, for representing a 
 county, 24 to be born a subject of Great-Britain, and 
 to be possessed of a landed estate of six hundred 
 pounds a-year ; and of three hundred, for repre- 
 senting- a town or borough. 
 
 The qualifications required for being an elector 
 in a county are to be possessed, in that county, 
 of a freehold of forty shillings a year. * With 
 
 * This freehold must have heen possessed by the elector one 
 whole year at least before the time of election, except it has 
 devolved to him by inheritance, by marriage, by a last will, or by 
 promotion to an office. 25 
 
 24 This qualification, not having been altered by the English 
 Reform Act, is considered equally to be required, for representing 
 a division, or riding, of a county. EDITOR. 
 
 25 This qualification for a county voter in England and Wales 
 is not altered by the Reform Act, which, however, makes the follow- 
 ing very important alterations. It takes away the right of voting 
 for counties, and for cities being counties of themselves, in respect 
 of freeholds for life, from all persons except those in actual and 
 bona fide occupation ; or except the same shall have come by mar- 
 riage, marriage-settlement, devise, or promotion to any benefice or 
 office ; or be of the clear yearly value of not less than 10, above 
 charges, reserving however any such right of voting then existing. 
 It extends the right to every person seised of property of copyhold, 
 or any other tenure, except freehold, for his own life, or the life of 
 another, or any larger estate, of the clear yearly value of not less 
 than 10, above charges : also, to every person entitled, as lessee 
 or assignee, to any lands or tenements for the unexpired residue of 
 any term originally created for a period of not less than sixty years, 
 (whether determinable on a life or lives or not) of the clear yearly
 
 OF ENGLAND. ,53 
 
 regard to electors in towns and boroughs, they 
 must be freemen of them ; a word which now 
 signifies certain qualifications expressed in the par- 
 ticular charters. 26 
 
 value of not less than 10, above charges, or of any term originally 
 created for a period of not less than twenty years, (whether so de- 
 terminahle or not,) of the clear yearly value of not less than 50, 
 above charges ; or who shall occupy, as tenant, any lands or tene- 
 ments, for which he shall be bona fide liable to a yearly rent of not 
 less than 50 ; but no sub-lessee or assignee of any underlease is 
 to have such right unless in the actual occupation of the premises. 
 No person whatever is to vote for a county, in respect of any free- 
 hold house, &c., occupied by himself, which would confer on him 
 the right to vote fora city or borough, or in respect of copyholds or 
 leaseholds, which would confer on him, or any oilier person, such 
 right to vote. No person, moreover, is to be entitled to vote unless 
 duly registered according to the provisions therein contained, and 
 no person to be registered in any year, as a freeholder, copyholder, 
 customary tenant, or tenant in ancient demesne, unless he shall 
 have been in actual possession, or receipt of rents and profits for 
 his own use, for six calendar mouths, or, as such lessee or assignee, 
 or occupier and tenant as aforesaid, for twelve calendar months ; 
 with a reservation in favour of property coming by descent, suc- 
 cession, marriage settlement, devise, or promotion to any benefice 
 in a church, or by promotion to any office. The qualifications of 
 county voters hi Scotland and Ireland is also essentially altered by 
 the respective acts for amending the representation of the people 
 in those parts of the United Kingdom, but being made similar, as 
 far as circumstances would permit, to those already detailed with 
 respect to England and Wales, it is considered unnecessary to 
 state them. EDITOR. 
 
 26 The right of voting in cities and boroughs is, by the English 
 Reform Act, extended to every male person, of full age and not sub- 
 ject to any legal incapacity, who shall occupy, within any city or 
 borough, or within any place sharing in the election for the same, 
 as owner or tenant, any house, warehouse, countinghouse, shop, 
 or other building, being, either separately, or jointly with 
 any land within such city, borough, or place occupied therewith, by
 
 54 THE CONSTITUTION 
 
 When the king- has determined to assemble a 
 parliament, he sends an order for that purpose to 
 the lord-chancellor ; who, after receiving the same, 
 sends a writ, under the great seal of England, to 
 
 him as owner, or as tenant under the same landlord, of the clear 
 yearly value of not less than 10, if duly registered according to 
 the provisions therein contained ; but no person is to be registered 
 in any year unless he should have occupied the premises for twelve 
 calendar months, nor unless rated in respect of such premises to 
 all rates for the relief of the poor made during the time of 
 such his occupation, nor unless he should have paid, on or be. 
 fore the 20th July in such year, all the poor's rates and as- 
 sessed taxes which should have become payable from him 
 in respect of such premises previously to the 6th April then 
 next preceding, nor unless he should have resided for six calendar 
 months next previous to the last day of July, in such year, within 
 the city or borough, or the place sharing in the election, or within 
 seven statute miles thereof, or of any part thereof. The act makes 
 provision in favour of persons occupying different premises in imme- 
 diate succession ; and of joint occupiers of premises, in case the clear 
 yearly value shall be of an amount which, when divided by the 
 number of such occupiers, shall give a sum of not less than 10 for 
 each. The act also provides, that every person who would have been 
 entitled to vote either as a burgess or freeman, or in the city of Lon- 
 don as a freeman and liveryman, if the act had not been passed, 
 should be entitled lo vote, provided he should be duly registered ; but 
 that no such person should be so registered in any year, unless he 
 should, on the last day of July, in such year, be qualified in such 
 manner as would entitle him then to vote if such day were the day of 
 election, and that act had not been passed ; nor unless, where he 
 should be a burgess or freeman, or freeman and liveryman, of any 
 city or borough, he should have resided for six calendar months 
 next previous to the last day of July in such year, within such city 
 or borough, or within seven statute miles from the place where the 
 poll for the same should theretofore have been taken ; nor unless, 
 where he should be a burgess or freeman of any place sharing in 
 the election for any city or borough, he should have resided, for six 
 calendar months next previous to the last day of July in such
 
 OF ENGLAND. ,55 
 
 the sheriff of every county, directing him to take 
 the necessary steps 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 must, in his turn, send his pre- 
 cept to the magistrates of the towns and boroughs, 
 to order them to make their election within eight 
 days after the receipt of the precept, giving four 
 
 year, within such respective place so sharing as aforesaid, or within 
 seven statute miles of the place in conjunction therewith. The act 
 moreover provides, that no person, since the 1st March, 1831, or 
 thereafter to be, elected, made or admitted, a burgess or freeman, 
 otherwise than in respect of birth or servitude, should be entitled to 
 vote as such in any such election, or to be registered ; and that no 
 person should be so entitled, as a burgess or freeman in respect of 
 birth, unless his right were originally derived from or through some 
 person who was a burgess or freeman, or entitled to be admitted 
 such, previously to the 1st March, 1831, or from or through some 
 person who since that time should have become, or should there- 
 after become, a burgess or freeman in respect of servitude. The 
 act also reserves to every person, then having a right to vote in 
 the election for any city or borough in virtue of any other qualifi- 
 cation, such right, as long as he should be qualified as an elector, ac- 
 cording to the usages and customs of such city or borough, or any law 
 then in force, if duly registered, and resident, as required in the case 
 of burgesses and freemen ; with a provision that every such person 
 should for ever cease to enjoy such right if his name should have 
 been omitted for two successive years from the register of voters, 
 unless he should have been so omitted in consequence of his having 
 received parochial relief within twelve calendar months next pre- 
 vious to the last day of July in any year, or in consequence of his 
 absence on the naval or military service of his majesty. The 
 qualification to vote for cities and boroughs in Scotland and Ire- 
 land is also entirely altered by the Scotch and Irish Reform Acts 
 respectively, but, for the reason already assigned for not stating the 
 alterations with regard to the county constituency of Scotland and 
 Ireland, they are here omitted. EDITOR.
 
 56 THE CONSTITUTION 
 
 days' notice of the same. And the sheriff himself 
 must proceed to the election for the county, not 
 sooner than ten days after the receipt of the writ, 
 nor later than sixteen. 
 
 The principal precautions, 27 taken by the law, to 
 ensure the freedom of elections, are, that any candi- 
 date, who, after the date of the writ, or even after 
 the vacancy, shall have given entertainments to the 
 electors of a place, or to any of them, in order to 
 his being* elected, shall be incapable of serving for 
 that place in parliament j 28 and that if any person 
 gives or promises to give, any money, employment, 
 or reward, to a voter, in order to influence his 
 vote, he, as well as the voter himself, shall be con- 
 demned to pay a fine of five hundred pounds, and 
 for ever disqualified to vote, and hold any office in 
 a corporation, the faculty, however, being re- 
 
 27 The several reform acts, before alluded to, add most materially 
 to these precautions, by removing the pretence for the allowance 
 of large sums to voters, for the expense of their conveyance to the 
 poll, arid sustenance while there. In addition to the requirement, 
 that the voters for cities and boroughs shall reside within seven miles, 
 and other provisions already cited, they limit the continuance of 
 polls for counties, cities, and boroughs, to two days, besides the 
 day of nomination ; and enact, that counties shall be divided into 
 districts for polling (no county to have more than fifteen); and 
 that the polls for cities and boroughs shall be at different booths, 
 not more than six hundred voting atone compartment of a booth. 
 EDITOR. 
 
 ss By 7 Will. & Mary, cap. 4, (A. D 1696,) intituled, "An 
 act for preventing charge and expense in elections of members to 
 serve in parliament," such person is not only declared disabled and 
 incapacitated upon such election to serve in parliament for that 
 place, but " shall not act, sit, or have any vote or place, in parlia- 
 " merit." EDITOR.
 
 OF ENGLAND. 57 
 
 served to both, of procuring- indemnity for their 
 own offence, by discovering some other offender 
 of the same kind. 
 
 It has been moreover established, 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 excise, customs, &c. who 
 shall presume to intermeddle in elections, by influ- 
 encing any voter to give or withhold his vote, shall 
 forfeit one hundred pounds, and be disabled to hold 
 any office. Lastly, all soldiers quartered in a place 
 where an election is to be made must move from it, 
 at least one day before the election, to the distance 
 of two miles or more, and return not till one day 
 after the election is finished. 
 
 The house of peers, or lords, is composed of the 
 lords spiritual, who are the archbishops of Canter- 
 bury and of York, and the twenty-four bishops ; 
 and of the lords temporal, whatever may be their 
 respective titles, such as dukes, marquises, earls, 
 &c. 29 
 
 Lastly, the king is the third constitutive part of 
 parliament : it is even he alone who can convoke 
 it ; and he alone can dissolve or prorogue it. The 
 effect of a dissolution is, that from that moment the 
 
 *9 All the peers of England sit in their own right; those of 
 Scotland, agreeably to Article 22 of the act of union of 1706, 
 are represented in the house of lords by sixteen, whom they elect 
 from among their number at the commencement of every parlia- 
 ment ; and those of Ireland, agreeably to Article 4 of the act of 
 union of 1800, are represented by " four lords spiritual of Ireland 
 " by rotation of sessions, and twenty-eight lords temporal of Ireland 
 " elected for life of the peers of Ireland." EDITOR.
 
 58 THE CONSTITUTION 
 
 parliament completely ceases to exist ; the commis- 
 sion, given to the members by their constituents, is 
 at an end ; and, whenever a new meeting 1 of parlia- 
 ment shall happen, they must be elected anew. A 
 prorogation is an adjournment to a term appointed 
 by the king ; till which the existence of parliament 
 is simply interrupted, and the function of the de- 
 puties suspended. 
 
 When the parliament meets, whether it be by 
 virtue of new summons, or whether, being com- 
 posed of members formerly elected, it meets again 
 at the expiration of the term for which it had been 
 prorogued, the king either goes to it in person, 
 invested with the insignia of his dignity, or ap- 
 points proper persons to represent him on that 
 occasion, and opens the session by laying before 
 the parliament the state of the public affairs, and 
 inviting it to take them into consideration. The; 
 presence of the king, either real or represented, is 
 absolutely requisite at the first meeting ; it is that 
 which gives life to the legislative bodies, and puts 
 them in action. 
 
 The king, having concluded his declaration, 
 withdraws. The parliament, which is then legally 
 intrusted with the care of the national concerns, 
 enters upon its functions, and continues to exist 
 till it is prorogued, or dissolved. The house of 
 commons, and that of peers, assemble separately ; 
 the latter, under the presidence of the lord-chan- 
 cellor ; the former, under that of their speaker ; 
 and both separately adjourn to such days as they 
 respectively think proper to appoint.
 
 OF ENGLAND. 59 
 
 As each of the two houses has a negative on the 
 propositions made by the other, and there is, conse- 
 quently, no danger of their encroaching- on each 
 other's rights, or on those of the king, who has 
 likewise his negative upon them both, any question, 
 judged by them conducive to the public good, with- 
 out exception, may be made the subject of their 
 respective deliberations. Such are, for instance, 
 new limitations, or extensions, to be given to the 
 authority of the king ; the establishing of new 
 laws, or making changes in those already in being. 
 Lastly, the different kinds of public provisions, or 
 establishments, the various abuses of administra- 
 tion, and their remedies, become, in every session, 
 the objects of the attention of parliament. 
 
 Here, however, an important observation must 
 be made. All bills for granting money must have 
 their beginning in the house of commons : the 
 lords cannot take this object into their considera- 
 tion but in consequence of a bill presented to them 
 by the latter ; and the commons have at all times 
 been so anxiously tenacious of this privilege, that 
 they have never suffered the lords even to make 
 any change in the money-bills which they have 
 sent to them ; and the lords are expected simply 
 and solely either to accept or reject them. 
 
 This excepted, every member, in each house, 
 may propose whatever question he thinks proper. 
 If, after being considered, the matter is found to 
 deserve attention, the person who made the propo- 
 sition, usually with some others adjoined to him, 
 is desired to set it down in writing. If, after more 
 complete discussions of the subject, the proposition
 
 60 THE CONSTITUTION 
 
 is carried in the affirmative, it is sent to the other 
 house, that they may, in their turn, take it into con- 
 sideration. If the other house reject the bill, it re- 
 mains without any effect : if they agree to it, no- 
 thing remains wanting 1 to its complete establishment 
 but the royal assent. 
 
 When there is no business that requires imme- 
 diate dispatch, the king usually waits till the end of 
 the session, or at least till a certain number of 
 bills are ready for him, before he declares his royal 
 pleasure. 30 When the time is come, the king goes 
 to parliament in the same state with which he 
 opened it ; and while he is seated on the throne, a 
 clerk, who has a list of the bills, gives, or refuses, 
 as he reads, the royal assent. 
 
 When the royal assent is given to a public bill, 
 the clerk says, Le roy le veut. 31 If the bill be a 
 private bill, he says, Soitfait comme il est desire 3 " 
 If the bill has subsidies for its object, he says, Le 
 roy remercie ses loyaux sujets, accepte leur benevo- 
 lence, et aussi le veut 33 Lastly, if the king does not 
 think proper to assent to the bill, the clerk says, 
 Le roy s'avisera ; 34 which is a mild way of giving a 
 refusal. 
 
 It is, however, pretty singular, that the king of 
 England should make use of the French language 
 
 30 Commissions for giving the royal assent to bills are now of 
 frequent occurrence in every session of Parliament. EDITOR. 
 
 31 The king wills it. EDITOR. 
 
 32 Let it be as it is desired. EDITOR. 
 
 33 The king thanks his loyal subjects, accepts their benevolence, 
 and also wills it. EDITOR. 
 
 34 The king will consider of it. EDITOR.
 
 OF ENGLAND. 6l 
 
 to declare his intentions to his parliament. This 
 custom was introduced at the Conquest,* and has 
 been continued, like other matters of form, which 
 sometimes subsist for ages after the real substance 
 of things has been altered : and Judge Blackstone 
 expresses himself on this subject in the following 
 words : " A badge, it must be owned (now the 
 " only one remaining), of conquest ; and which 
 " one would wish to see fall into total oblivion, 
 " unless it be reserved as a solemn memento to 
 " remind us that our liberties are mortal, having 
 " once been destroyed by a foreign force." 
 
 When the king has declared his different inten- 
 tions, he prorogues the parliament. Those bills 
 which he has rejected remain without force : those 
 to which he has assented become the expression of 
 the will of the highest power acknowledged in 
 England : they have the same binding force as 
 the edits enregistres have in France, and as the 
 populiscita had in ancient Rome : in a word, they 
 are laws. And though each of the constituent 
 parts of the parliament might, at first, have 
 prevented the existence of those laws, the united 
 will of all the three is now necessary to repeal 
 them. 
 
 * William the Conqueror added, to the other changes he intro- 
 duced, the abolition of the English language in all public as well 
 as judicial transactions, and substituted for.it the French that was 
 spoken in his time : hence the number of old French words that 
 are met with in the style of the English laws. It was only under 
 Edward III. that the English language began to be re-established 
 in the courts of justice.
 
 62 THE CONSTITUTION 
 
 CHAPTER V. 
 
 Of the Executive Power. 
 
 WHEN the parliament is prorogued or dissolved, it 
 ceases to exist ; but its laws still continue to be in 
 force: the king- remains charged with the execution 
 of them, and is supplied with the necessary power 
 for that purpose. 
 
 It is, however, to be observed, that though, in 
 his political capacity of one of the constituent 
 parts of the parliament (that is, with regard to the 
 share allotted to him in the legislative authority), 
 the king is undoubtedly sovereign, and only needs 
 allege his will when he gives or refuses his assent 
 to the bills presented to him ; yet, in the exercise 
 of his powers of government, he is no more than a 
 magistrate ; and the laws, whether those that ex- 
 isted before him, or those to which, by his assent, 
 he has given being, must direct his conduct, and 
 bind him equally with his subjects. 
 
 I. The first prerogative of the king, in his capa- 
 city of supreme magistrate, has for its object the 
 administration of justice. 
 
 1. He is the source of all judicial power in the 
 state ; he is the chief of all the courts of law, and 
 the judges are only his substitutes : every thing is 
 transacted in his name ; the judgments must be with 
 his seal, and are executed by his officers. 
 
 2. By a fiction of the law, he is looked upon as 
 the universal proprietor of the kingdom : he is in 
 consequence deemed directly concerned in all of-
 
 OF ENGLAND. OS 
 
 fences ; and, for that reason, prosecutions are to be 
 carried on in his name in the courts of law. 
 
 3. He can pardon offences, that is, remit the 
 punishment that has been awarded in consequence 
 of his prosecution. 
 
 II. The second prerogative of the king- is, to be 
 the fountain of honour, that is, the distributor 
 of titles and dignities : he creates the peers of the 
 realm, as well as bestows the different degrees of 
 inferior nobility. He moreover disposes of the 
 different offices, either in the courts of law, or 
 elsewhere. 
 
 III. The king is the superintendent of commerce ; 
 he has the prerogative of regulating weights and 
 measures; 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 bishops, and the two 
 archbishops ; 35 and he alone can convene the assem- 
 bly of the clergy. This assembly is formed in 
 England, on the model of the parliament j the 
 bishops form the upper house : deputies from the 
 dioceses, and from the several chapters, form the 
 lower house : the assent of the king is likewise 
 necessary to the validity of their acts, or canons ; 
 and the king can prorogue, or dissolve, the convo- 
 cation. 
 
 V. He is, in right of his crown, the general- 
 issimo of all sea or land forces whatever ; he alone 
 
 35 Since the union with Ireland in 1801, the king has also the 
 appointment of the archbishops and bishops of the church of that 
 part of the United Kingdom. EDITOR.
 
 64* THE CONSTITUTION 
 
 can levy troops, equip fleets, build fortresses, and 
 fill all the posts in them. 
 
 VI. He is, with regard to foreign nations, the 
 representative and the depository of all the power 
 and collective majesty of the nation ; he sends and 
 receives ambassadors ; he contracts alliances ; and 
 has the prerogative of declaring war, and of 
 making peace, on whatever conditions he thinks 
 proper. 
 
 VII. In fine, what seems to carry so many 
 powers to the height, is, its being a fundamental 
 maxim, that THE KING CAN DO NO WRONG : 36 which 
 does not signify, however, that the king has not the 
 power of doing ill, or, as it was pretended by cer- 
 tain persons in former times, that every thing he 
 did was lawful ; but only that he is above the reach 
 of all courts of law whatever, and that his person 
 is sacred and inviolable. 
 
 36 A maxim quite consistent with the doctrine of divine right 
 by which kings reign, and essential to secure such a profound 
 respect to the royal person and dignity as may most effectually 
 promote ohedience to the laws of which the king is administrator, 
 while the full responsibility attached to the cabinet ministers of the 
 sovereign prevents the possibility of danger resulting to the subject 
 from the maintenance of a principle not strictly applicable to hu- 
 manity. EDITOR.
 
 OF ENGLAND. 65 
 
 CHAPTER VI. 
 
 The Boundaries which the Constitution has set to 
 the Royal Prerogative. 
 
 IN reading the foregoing- enumeration of the 
 powers with which the laws of England have in- 
 trusted the king, we are at a loss to reconcile them 
 with the idea of a monarchy, which, we are told, is 
 limited. The king not only unites in himself all 
 the branches of the executive power ; he not only 
 disposes without controul, of the whole military 
 power in the state ; but he is, moreover, it seems, 
 master of the law itself, since he calls up and dis- 
 misses, at his will, the legislative bodies. We 
 find him, therefore, at first sight, invested with all 
 the prerogatives that ever were claimed by the 
 most absolute monarchs ; and we are at a loss to 
 find that liberty which the English seem so confi- 
 dent they possess. 
 
 But the representatives of the people still have, 
 and that is saying enough, they still have in 
 their hands, now that the constitution is fully 
 established, the same powerful weapon which en- 
 abled their ancestors to establish it. It is still from 
 their liberality alone that the king can obtain sub- 
 sidies ; and in these days, when every thing is 
 rated by pecuniary estimation, when gold is be- 
 come the great moving spring of affairs, it may 
 be safely affirmed, that he who depends on the will 
 of other men, with regard to so important an 
 
 F
 
 66 THE CONSTITUTION 
 
 article, is (whatever his power may be in other 
 respects) in a state of real dependence. 
 
 This is the case of the king of England. He 
 has, in that capacity, and without the grant of 
 his people, scarcely any revenue. A few here- 
 ditary duties on the exportation of wool, which 
 (since the establishment of manufactures) are be- 
 come tacitly extinguished j a branch of the excise, 
 which, under Charles the Second, was annexed to 
 the crown as an indemnification for the military 
 services it gave up, and which, under George the 
 First, 37 was fixed at seven thousand pounds ; a 
 duty of two shillings on every ton of wine im- 
 ported ; the wrecks of ships of which the owners 
 remain unknown ; whales and sturgeons thrown 
 on the coast ; swans swimming on public rivers; 
 and a few other feudal relics, now compose the 
 whole appropriated revenue of the king, and are 
 all that remain of the ancient inheritance of the 
 crown. 
 
 The king of England, therefore, has the pre- 
 rogative of commanding armies, and equipping- 
 fleets ; but without the concurrence of his par- 
 liament he cannot maintain them. He can bestow 
 places and employments ; but without his parlia- 
 ment he cannot pay the salaries attending on them. 
 He can declare war ; but without his parliament 
 it is impossible for him to carry it on. In a word, 
 the royal prerogative, destitute as it is of the power 
 of imposing taxes, is like a vast body, which cannot 
 of itself accomplish its motions ; or, if you please, 
 
 3 7 It was in the reign of George the Second that this arrange- 
 ment was made. EDITOR.
 
 OF ENGLAND. 6j 
 
 it is like a ship completely equipped, but from which 
 the parliament can at pleasure draw off the water, 
 and leave it aground, and also set it afloat again, 
 by granting subsidies. 
 
 And indeed we see, that, since the establish- 
 ment of this right of the representatives of the 
 people, to grant or refuse subsidies to the crown, 
 their other privileges have been continually in- 
 creasing. Though these representatives were not, 
 in the beginning, admitted into parliament but 
 upon the most disadvantageous terms, yet they 
 soon found means, by joining petitions to their 
 money-bills, to have a share in framing those laws 
 by which they were in future to be governed ; and 
 this method of proceeding, which at first was only 
 tolerated by the king, they afterwards converted 
 into an express right, by declaring, under Henry 
 the Fourth, that they would not, thenceforward, 
 come to any resolutions with regard to subsidies, 
 before the king had given a precise answer to their 
 petitions. 
 
 In subsequent times we see the commons con- 
 stantly successful, by their exertions of the same 
 privilege, in their endeavours to lop off the de- 
 spotic powers which still made a part of the regal 
 prerogative. Whenever abuses of power had 
 taken place, which they were seriously determined 
 to correct, they made grievances and supplies (to 
 use the expression of Sir Thomas Wentworth) go 
 hand in hand together ; which always produced 
 the redress of them. And in general, when a bill, 
 in consequence of its being judged by the commons 
 essential to the public welfare, has been joined by 
 
 F 2
 
 68 THE CONSTITUTION 
 
 them to a money-bill, it has seldom failed to pass 
 in that agreeable company * 
 
 CHAPTER VII. 
 
 The same Subject continued. 
 
 BUT this force of the prerogative of the commons, 
 and the facility with which it may be exerted, how- 
 ever necessary for the first establishment of the 
 constitution, might prove too considerable at 
 present, when it is requisite only to support it. 
 There might be the danger, that, if the parliament 
 should ever exert their privilege to its full extent, 
 the prince, reduced to despair, might resort to fatal 
 extremities ; or that the constitution, which subsists 
 only by virtue of its equilibrium, might in the end 
 be subverted. 
 
 Indeed, this is a case which the prudence of 
 parliament has foreseen. They have, in this re- 
 
 * In mentioning the forcible use which the commons have at 
 times made of their power of granting subsidies, by joining provi- 
 sions of a different nature to bills that had grants for their object, I 
 only mean to show the great efficiency of that power, which was the 
 subject of this chapter, without pretending to say any thing as to 
 the propriety of the measure. The house of lords have even found 
 it necessary (which confirms what is said here) to form, as it were, a 
 confederacy among themselves, for the security of their legislative 
 authority against the unbounded use which the commons might 
 make of their power of taxation ; and it has been made a standing 
 order of their house, to reject any bill whatsoever to which a money- 
 bill has been tacked.
 
 OF ENGLAND. (')[) 
 
 spect, imposed laws upon themselves: and, with- 
 out touching the prerogative itself, they have mo- 
 derated the exercise of it. A custom 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 first 
 parliament, to grant the king a revenue for his 
 life ; a provision which, with respect to the great 
 exertions of his power, does not abridge the in- 
 fluence of the commons, but yet puts him in a 
 condition to support the dignity of the crown, and 
 affords him, who is the first magistrate in the na- 
 tion, that independence which the laws ensure 
 also to those magistrates who are particularly in- 
 trusted with the administration of justice.* 
 
 * The twelve judges. 38 Their commissions, which in former 
 times were often given them durante bene placito, 3 now must 
 always " he made quamdiu se bene gesserint, 40 and their salaries 
 " ascertained ; but, upon an address of both houses, it may be 
 " lawful to remove them." Stat. 13 Will. III. c. 2. In the 
 first year of the reign of his present majesty, 41 it was moreover en- 
 acted, that the commissions of the judges should continue in force 
 notwithstanding the demise of the king ; which has prevented their 
 being dependent, with regard to their continuation iu office, on the 
 heir-apparent. 
 
 38 By act of 11 Geo. IV. and 1 Will. 4. cap. 70, (A.D. 1830,) 
 intituled, " An act for the more effectual administration of justice 
 in England and Wales," his majesty was empowered to appoint an 
 additional puisne judge to each of the superior courts of common 
 law ; and the separate jurisdiction for the County Palatine of Chester 
 and the principality of Wales was put an end to. The number 
 of judges is therefore now fifteen. EDITOR. 
 
 39 For the continuance of our good pleasure (i. e. of the crown). 
 EDITOR. 
 
 40 For so long as they shall well conduct themselves. EDITOR. 
 
 41 His majesty king George the Third. EDITOR.
 
 70 THE CONSTITUTION 
 
 This conduct of the parliament provides an ad- 
 mirable remedy for the accidental disorders of the 
 state. For though, by the wise distribution of 
 the powers of government, great usurpations are 
 become in a manner impracticable, nevertheless it 
 is impossible but that, in consequence of the con- 
 tinual (though silent) efforts of the executive power 
 to extend itself, abuses will at length slide in. 
 But here the powers, wisely kept in reserve by the 
 parliament, afford the means of remedying them. 
 At the end of each reign, the civil list, and con- 
 sequently that kind of independence which it pro- 
 cured, are at an end. The successor finds a throne, 
 a sceptre, and a crown ; but he finds neither power, 
 nor even dignity ; and before a real possession of 
 all these things be given him, the parliament have 
 it in their power to take a thorough review of the 
 state, as well as correct the several abuses that 
 may have crept in during the preceding reign ; 
 and thus the constitution may be brought back to 
 its first principles. 
 
 England, therefore, by this mean, enjoys one 
 very great advantage, one that all free states 
 have sought to procure for themselves; I mean 
 that of a periodical reformation. But the ex- 
 pedients which legislators have contrived for this 
 purpose^ in other countries, have always, when 
 attempted to be carried into practice, been found 
 to be productive of very disadvantageous con- 
 sequences. Those laws which were made in 
 Rome, to restore that equality which is the essence 
 of a democratical government, were always found 
 impracticable : the attempt alone endangered the
 
 OF ENGLAND. 71 
 
 overthrow of the republic ; and the expedient 
 which the Florentines called ripigliar il st<ito*~ 
 proved nowise happier in its consequences. This 
 was because all those different remedies were de- 
 stroyed beforehand, by the very evils they were 
 meant to cure ; and the greater the abuses were, 
 the more impossible it was to correct them. 
 
 But the mean of reformation which the par- 
 liament of England has taken care to reserve to 
 itself, is the more effectual, as it goes less directly 
 to its end. It does not oppose the usurpations of 
 prerogative, as it were, in front : it does not en- 
 counter it in the middle of its career, and in the 
 fullest flight of its exertion: but it goes in search 
 of it to its source, arid to the principle of its ac- 
 tion. It does not endeavour forcibly to overthrow 
 it; it only enervates its springs. 
 
 What increases still more the mildness of the 
 operation, is, that it is only to be applied to the 
 usurpations themselves, and passes by what would 
 be far more formidable to encounter, the obstinacy 
 and pride of the usurpers. 
 
 Every thing is transacted with a new sovereign, 
 who, till then, has had no share in public affairs, 
 and has taken no step which he may conceive him- 
 self bound in honour to support. In fine, they do 
 not wrest from him what the good of the state re- 
 quires he should give up : he himself makes the 
 sacrifice. 
 
 The truth of all these observations is remark- 
 ably confirmed by the events that followed the 
 reign of the two last Henries. Every barrier that 
 *" To recover the state. EDITOR.
 
 72 THE CONSTITUTION 
 
 protected the people against the incursions of power 
 had been broken through. The parliament, in 
 their terror, had even enacted that proclamations, 
 that is, the will of the king, should have the force 
 of laws:* the constitution seemed really undone. 
 Yet, on the first opportunity afforded by a new 
 reign, liberty began again to make its appearance, t 
 And when the nation, at length recovered from 
 its long supineness, had, at the accession of Charles 
 the First, another opportunity of a change of so- 
 vereign, that enormous mass of abuses, which had 
 been accumulating, or gaining strength, during 
 five successive reigns, was removed, and the an- 
 cient laws were restored. 
 
 To which add, that this second reformation, 
 which was so extensive in its effects, and might be 
 called a new creation of the constitution, was ac- 
 complished without producing the least convulsion. 
 Charles the First, in the same manner as Edward 
 the Sixth, (or his uncle, the regent duke of So- 
 merset) had done in former times, assented to every 
 regulation that was passed ; and whatever reluc- 
 tance he might at first manifest, yet the act called 
 the Petition of Right (as well as the bill which 
 afterwards completed the work) received the 
 royal sanction without bloodshed. 
 
 It is true, great misfortunes followed ; but they 
 were the effects of particular circumstances. The 
 
 * Stat. 31 Hen. VIII. chap. 8. 
 
 t The laws concerning treason, passed under Henry the Eight)), 
 which judge Blackstone calls " an amazing heap of wild and new- 
 " fangled treasons," were, together with the statute just mentioned, 
 repealed in the beginning of the reign of Edward VI.
 
 OF ENGLAND. 73 
 
 nature and extent of regal authority not having 
 been accurately defined during the time which pre- 
 ceded the reigns of the Tudors, the exorbitant 
 power of the princes of that house had gradually 
 introduced political prejudices, of even an extrava- 
 gant kind : those prejudices, having had a hundred 
 and fifty years to take root, could not be shaken 
 off but by a kind of general convulsion; the agi- 
 tation continued after the action, and was carried 
 to excess by the religious quarrels that arose at that 
 time. 
 
 CHAPTER VIII. 
 
 New Restrictions. 
 
 THE commons, however, have not entirely relied 
 on the advantages of the great prerogative with 
 which the constitution has intrusted them. 
 
 Though this prerogative is, in a manner, out of 
 danger of an immediate attack, they have neverthe- 
 less shown at all times the greatest jealousy on its 
 account. They never suffer, as we have observed 
 before, a money-bill to begin any- where but with 
 themselves ; and any alteration that may be made 
 in it, in the other house, is sure to be rejected. If 
 the commons had not most strictly reserved to 
 themselves the exercise of a prerogative on which 
 their very existence depends, the whole might at 
 length have slidden into that other body, which 
 they might have suffered to share in it equally
 
 74< THE CONSTITUTION 
 
 with them. If any other persons, besides the re- 
 presentatives of the people, had a right to make an 
 offer of the produce of the labour of the people, the 
 executive power would soon have forgotten that it 
 only exists for the advantage of the public.* 
 
 * As the crown has the undisputed prerogative of assenting to, 
 and dissenting from, what bills it thinks proper, as well as of con- 
 vening, proroguing, and dissolving the parliament whenever it 
 pleases, the latter have no assurance of having a regard paid to their 
 hills, or even of heing allowed to assemble, but what may result 
 from the need the crown stands in of their assistance : the danger, 
 in that respect, is even greater for the commons than for the lords, 
 who enjoy a dignity which is hereditary, as well as inherent in 
 their persons, and form a permanent body in the state ; 43 whereas 
 the commons completely vanish, whenever a dissolution takes 
 place : there is, therefore, no exaggeration in what has been said 
 above, that their very being depends on their power of granting 
 subsidies to the crown. 
 
 Moved by these considerations, and, no doubt, by a sense of their 
 duty towards their constituents, to whom this right of taxation 
 originally belongs, the house of commons have at all times been 
 very careful lest precedents should be established, which might, in 
 the most distant manner, tend to weaken that right. Hence the 
 warmth, I might say the resentment, with which they have always 
 rejected even the amendments proposed by the lords in their 
 money-bills. The lords, however, have not given up their preten- 
 sion to make such amendments ; and it is only by the vigilance 
 and constant predetermination of the commons to reject all alteration 
 whatever made in their money-bills, without even examining them, 
 that this pretension of the lords is reduced to be an useless, and 
 only dormant, claim. 44 
 
 43 This remark is applicable to the peers of England only, those 
 of Scotland and Ireland being merely representative. EDITOR. 
 
 44 This claim is, notwithstanding, far from useless, because, by 
 means of it, the upper house obtains in effect the participation of a 
 privilege denied to it in fact, inasmuch as, though the lower house 
 not only uniformly refuses its assent to any alterations made in a
 
 OF ENGLAND. J5 
 
 Besides, though this prerogative has of itself, we 
 may say, an irresistible efficiency, the parliament 
 has neglected nothing that may increase it, or at 
 least the facility of its exercise ; and though they 
 have allowed the general prerogatives of the sove- 
 reign to remain undisputed, they have in several 
 cases endeavoured to restrain the use he might 
 make of them, by entering with him into divers 
 express and solemn conventions for that purpose.* 
 
 Thus, the king is indisputably invested with the 
 exclusive right of assembling parliaments ; yet he 
 must assemble one, at least once in three years ; 45 
 and this obligation on the king, which was insisted 
 upon by the people in very early times, 46 has been 
 since confirmed by an act passed in the sixteenth 
 year of the reign of Charles the Second. 
 
 Moreover, as the most fatal consequences might 
 
 * Laws made to bind such powers in a state as have no superior 
 power by which they may be legally compelled to the execution 
 of them (for instance, the crown, as circumstanced in England), 
 are nothing more than general conventions, or treaties, made with 
 the body of the people. 
 
 money-bill by the lords, but rejects the bill itself which has been 
 so altered, yet, if the alterations be considered amendments, a new 
 bill embodying them is generally introduced in the commons. 
 EDITOR. 
 
 45 This is perfectly correct in law, but in point of fact the king is 
 compelled to assemble parliament yearly ; the supplies are granted, 
 and the mutiny bills passed, for one year only, and, without their 
 renewal, the government could not be upheld. EDITOR. 
 
 46 Not merely triennial parliaments were " insisted upon by 
 " the people in very early times," but, even in the ninth century, 
 we find Alfred the Great ordaining, in compliance with the national 
 wish, that the wittena-gemot should meet yearly. EDITOR.
 
 76 THE CONSTITUTION 
 
 ensue, if laws which might most materially affect 
 public liberty, could be enacted in parliaments ab- 
 ruptly and imperfectly summoned, it has been esta- 
 blished that the writs for assembling 1 a parliament 
 must be issued forty days at least before the first 
 meeting- of it. Upon the same principle it has also 
 been enacted, that the king cannot abridge the 
 term he has once fixed for a prorogation, except in 
 the two following cases, viz. of a rebellion, or of 
 imminent danger of a foreign invasion ; in both 
 which cases a fourteen days' notice must be given.* 
 Again, the king is the head of the church ; but 
 he can neither alter the established religion, or call 
 individuals to an account for their religious opi- 
 nions.f He cannot even profess the religion which 
 
 * Stat. 30 Geo. II. ch. 25. 4 ? 
 
 f The convocation, or assembly of the clergy, of which the king 
 
 4 ? An instance of the glaring inaccuracy of some of the notes of 
 " A Barrister," who published a new edition of this work in 1821, 
 must here be given. He says, " This was an act relating to the 
 " militia, and stands repealed by 2 Geo. III. c. 20. The clause, 
 " empowering a parliament to be assembled in certain cases on 
 " fourteen days' notice, is therefore repealed." Nothing could be 
 more incorrect. The statute 30 Geo. II. cap. 25, (being passed 
 for five years only,) was succeeded by 2 Geo. III. cap. 20; but, 
 so far from the clause in question (the 46th) being repealed by it, 
 section 117 of that act re-enacts it in the very same words. The 
 same note proceeds, " Indeed it seems, like a similar clause in the 
 " act 16 Geo. III. cap. 3, to have been intended only for a tempo - 
 " rary purpose." This statement is equally erroneous. The act 
 referred to was enacted for seven years only ; so far, however, from 
 its being " intended only for a temporary purpose," this necessary 
 provision has been re-enacted from time to time, and forms section 
 147 of the 42 Geo. III. cap. 90, which was not passed for a limited 
 period, and remains now in force. EDITOR.
 
 OF ENGLAND. 77 
 
 the legislature has particularly forbidden ; and the 
 prince who should profess it is declared incapable 
 of inheriting, possessing, or enjoying, the crown of 
 these kingdoms* 
 
 The king is the first magistrate ; but he can 
 make no change in the maxims and forms conse- 
 crated by law or custom : he cannot even influence, 
 in any case whatever, the decision of causes be- 
 tween subject and subject ; and James the First, as- 
 sisting at the trial of a cause, was reminded by the 
 judge, that he could deliver no opinion.^ Lastly, 
 though crimes are prosecuted in his name, he can- 
 not refuse to lend it to any particular persons, who 
 have complaints to prefer. 
 
 The king has the privilege of coining money ; but 
 he cannot alter the standard. 
 
 The king has the power of pardoning offenders ; 
 
 is the head, can only regulate such affairs as are merely ecclesias- 
 tical ; they cannot touch the laws, customs, and statutes, of the 
 kingdom. Stat. 25 Hen. VIII. c. 19. 48 
 
 * 1 Will. & M. stat. 2. c. 2. 
 
 f- These principles have since been made an express article of an 
 act of parliament ; the same which abolished the star-chamber. 
 " Be it likewise declared and enacted, by the authority of this pre- 
 " sent parliament, that neither his majesty, nor his privy-council, 
 " have, or ought to have, any jurisdiction, power, or authority, to 
 " examine or draw into question, determine, or dispose of, the 
 " lands, tenements, goods, or chattels, of any of the subjects of this 
 " kingdom.'' Stat. 16, Ch. I. cap. 10. 10. 
 
 46 A convocation continues to be summoned with every new 
 parliament, but meets only pro forma, a circumstance deeply to be 
 regretted, inasmuch as in such an assembly, properly constituted, 
 much that is useful, and indeed absolutely necessary, might origi- 
 nate. EDITOR.
 
 78 THE CONSTITUTION 
 
 but he cannot exempt them from making a compen- 
 sation to the parties injured. It is even established 
 by law, that, in a case of murder, the widow, or 
 next heir, shall have a right to prosecute the mur- 
 derer ; and the king's pardon, whether it preceded 
 the sentence passed in consequence of such prose- 
 cution, or whether it be granted after it, cannot 
 have any effect.* 
 
 The king has the military power ; but, still, 
 with respect to this, he is not absolute. It is true, 
 in regard to the sea-forces, as there is in them this 
 very great advantage, that they cannot be turned 
 against the liberty of the nation, at the same time 
 that they are .the surest bulwark of the island, the 
 king may keep them as he thinks proper ; and in 
 this respect he lies only under the general restraint 
 of applying to parliament for obtaining the means 
 of doing it. 50 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 pub- 
 lic liberty, the king cannot raise them without the 
 consent of parliament. The guards of Charles the 
 Second were declared anti-constitutional ; and 
 James's army was one of the causes of his being 
 dethroned.f 
 
 * The method of prosecution mentioned here, is called an ap- 
 peal; it must be sued within a year and a day after the commission 
 of the crime. 4 ^ 
 
 f A new sanction was given to the ahove restriction in the sixth 
 
 *> The 59 Geo. III. cap. 46, (A. D. 1819,) abolished appeals of 
 murder, treason, felony or other offences, and wager of battel, or 
 joining issue and trial by battel, in writs of right. EDITOR. 
 
 50 The number of the navy for which the estimates were voted 
 in 1833 was 27,000 men, including marines. EDITOR.
 
 OF ENGLAND. 79 
 
 In these times, however, when it is become a 
 custom with princes to keep those numerous ar- 
 mies, which serve as a pretext and means of op- 
 pressing- the people, a state that would maintain 
 its independence is obliged, in a great measure, 
 to do the same. The parliament has therefore 
 thought proper to establish a standing body of 
 troops (amounting to about thirty thousand men 51 ), 
 of which the king has the command. 
 
 But this army is only established for one year ; 
 at the end of that term, it is (unless re-established) 
 to be ipso facto disbanded ; and as the question, 
 which then lies before parliament, is not, whether 
 the army shall be dissolved, but whether it shall 
 be established anew, as if it had never existed, any 
 one of the three branches of the legislature may, 
 by its dissent, hinder its continuance. 
 
 Besides, the funds for the payment of these 
 troops are to be paid by taxes that are not esta- 
 blished for more than one year :* and it becomes 
 likewise necessary, at the end of this term, again 
 
 article of the Bill of Rights : " A standing army, without the 
 " consent of parliament, is against law." 
 * The land-tax 52 and malt-tax. 53 
 
 51 The effective force of the army provided for by the estimates 
 voted in 1833 was 89,419 men. EDITOR. 
 
 52 By 38 Geo. III. cap. 60, (A D. 1798,) the several sums of 
 money then charged in Great Britain as a land-tax for one year 
 from the 25th day of March 1798, were made perpetual, subject 
 to redemption and purchase in the manner therein stated. 
 EDITOR. 
 
 53 The malt-tax has also some years ceased to be an annnal tax, 
 that now in collection having been imposed by 6 Geo. IV. cap. 58. 
 (A. D. 1825.) EDITOR. 
 
 F 8
 
 80 THE CONSTITUTION 
 
 to establish them.* In a word, this instrument 
 of defence, which the circumstances of modern 
 times have caused to be judged necessary, being- 
 capable, on the other hand, of being- applied to 
 the most dangerous purposes, has been joined to 
 the state by only a slender thread, the knot of 
 which may be slipped, on the first appearance of 
 danger.! 
 
 * It is also necessary that the parliament, when it renews the 
 act against mutiny, should authorise the different courts-martial to 
 punish military offences and desertion. It can therefore refuse the 
 king even the necessary power of military discipline. 
 
 f To these laws, or rather conventions, between king and 
 people, I will add the oath which the king takes at his coronation ; 
 a compact which, if it cannot have the same precision as the 
 laws above-mentioned, yet, in a manner, conprehends them all, 
 and has the farther advantage of being declared with more solem- 
 nity. 
 
 The archbishop or bishop shall say, " Will you solemnly .pro- 
 " mise and swear to govern the people of this kingdom of England, 
 " and the dominions thereto belonging, according to the statutes 
 " of parliament agreed on, and the laws and customs of the 
 " same ?" The king or queen shall say, " I solemnly promise so 
 " to do." 
 
 Archbishop or bishop. " Will you, to your power, cause law 
 " and justice, in mercy, to be executed in all your judgments ?" 
 King or queen. " I will." 
 
 Archbishop or bishop. " Will you, to the utmost of your 
 " power, maintain the laws of God, the true profession of the gospel, 
 " and the protestant reformed religion established by the law ? 
 " And will you preserve unto the bishops and clergy of this 
 " realm, and to the churches committed to their charge, all 
 " such rights and privileges as by law do or shall appertain unto 
 " them, or any of them ?" King or queen. " All this I promise 
 " to do." 
 
 After this, the king or queen, laying his or her hand upon the 
 holy gospels, shall say, "The things which I have here before pro-
 
 OF ENGLAND. 81 
 
 But these laws, which limit the king's authority, 
 would not, of themselves, have been sufficient. 
 As they are, after all, only intellectual barriers, 
 which the king- might not at all times respect ; as 
 the check which the commons have on his proceed- 
 ings, by a refusal of subsidies, affects too much the 
 whole state to be exerted on every particular 
 abuse of his power ; and lastly, as even this check 
 might in some degree be eluded, either by breaking 
 the promises which have procured subsidies, or by 
 applying them to uses different from those for 
 which they were appointed ; the constitution has 
 besides supplied the commons with the means of 
 immediate opposition to the misconduct of govern- 
 ment, by giving them a right to impeach the 
 ministers. 
 
 It is true, the king himself cannot be arraigned 
 before judges ; because if there were any that 
 could pass sentence upon him, it would be they, 
 and not he, who must finally possess the executive 
 power ; but, on the other hand, the king cannot 
 act without ministers ; it is therefore those minis- 
 ters, that is, those indispensable instruments, 
 whom they attack. 
 
 If, for example, the public money has been em- 
 ployed in a manner contrary to the declared in- 
 tentiori of those who granted it, an impeachment 
 may be brought against those who had the manage- 
 ment of it. If any abuse of power is committed, 
 or in general any thing done contrary to the 
 public weal, they prosecute those who have been 
 
 " raised I will perform and keep : So help me God !" and then 
 
 shall kiss (hi; book.
 
 82 THE CONSTITUTION 
 
 either the instruments or the advisers of the mea- 
 sure.* 
 
 But who shall be the judges to decide in such a 
 cause ? What tribunal will flatter itself that it can 
 give an impartial decision, when it shall see, ap- 
 pearing at its bar, the government itself as the ac- 
 cused, and the representatives of the people as the 
 accusers ? 
 
 It is before the house of peers that the law has 
 directed the commons to carry their accusation ; 
 that is, before judges, whose dignity, on the one hand, 
 renders them independent, and who, on the other, 
 have a great honour to support in that awful func- 
 tion, where they have all the nation for spectators 
 of their conduct. 
 
 When the impeachment is brought to the lords, 
 they commonly order the person accused to be 
 imprisoned. On the day appointed, the deputies 
 of the house of commons, with the person im- 
 peached, make their appearance : the impeachment 
 is read in his presence ; counsel are allowed him, 
 as well as time to prepare for his defence ; and, at 
 the expiration of this term, the trial goes on from 
 day to day, with open doors, and every thing is 
 communicated in print to the public. 
 
 But whatever advantage the law grants to the 
 person impeached for his justification, it is from 
 the intrinsic merits of his conduct that he must 
 draw his arguments and proofs. It would be of 
 
 * It was upon these principles that the commons, in the begin- 
 ning of the eighteenth century, impeached the earl of Orford, who 
 had advised the treaty of pai titiou, and the lord chancellor Somers, 
 who had affixed the great seal to it.
 
 OF ENGLAND. 83 
 
 no service to him, in order to justify a criminal 
 conduct, to allege the commands of the sovereign ; 
 or, pleading guilty with respect to the measures 
 imputed to him, to produce the royal pardon.* It 
 is against the administration itself that the im- 
 peachment is carried on ; it should therefore by no 
 means interfere : the king can neither stop nor 
 suspend its course, but is forced to behold, as an 
 
 * This point, in ancient times, was far from being clearly settled. 
 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 ensued, which were terminated by the dissolution of 
 that parliament. It was afterwards enacted (Stat. 12 & 13 W. III. 
 c. 2.), "that no pardon under the great seal should be pleaded in 
 " bar to an impeachment by the house of commons." 
 
 I once asked a gentleman, very learned in the laws of this country, 
 if the king could remit the punishment of a man condemned in 
 consequence of an impeachment of the house of commons : he 
 answered me, The tones will tell you the king can, and the whigs, he 
 cannot. 51 But it is not perhaps very material that the question should 
 be decided : the great public ends are attained when a corrupt 
 minister is removed with disgrace, and the whole system of his pro- 
 ceedings unveiled to the public eye. 
 
 M The king's power in this respect is indisputable ; but the 
 policy of its exercise might well be disputed. Until the celebrated 
 case of Warren Hastings, it remained in doubt whether the dis- 
 solution of parliainent pending an impeachment made it necessary 
 that the inquiry should be commenced afresh ; but, after much 
 able argument on both sides, the commons, on the 23rd December, 
 1790, unanimously decided, not as an innovation, but as a point 
 of ancient constitutional practice necessary to prevent the undue 
 interference of the crown in favour of a guilty minister or other 
 individual accused, that the proceedings of an impeachment were 
 not abated by a dissolution, but continued from one parliament 
 to another. See House of Commons' Journals, and Hansard's 
 Parliamentary Debates. EDITOR. 
 
 G 2
 
 84) THE CONSTITUTION 
 
 inactive spectator, the discovery of the share which 
 he may himself have had in the illegal proceedings 
 of his servants, and to hear his own sentence in 
 the condemnation of his ministers. 
 
 An admirable expedient ! which, by removing 
 and punishing corrupt ministers, affords an imme- 
 diate remedy for the evils of the state, and strongly 
 marks out the bounds within which power ought 
 to be confined : which takes away the scandal of 
 guilt and authority united, and calms the people 
 by a great and awful act of justice : an expedient, 
 in this respect especially, so highly useful, that it is 
 to the want of the like that Machiavel attributes the 
 ruin of his republic. 
 
 But all these general precautions to secure the 
 rights of the parliament, that is, those of the na- 
 tion itself, against the efforts of the executive 
 power, would be vain, if the members themselves 
 remained personally exposed to them. Being un- 
 able openly to attack, with any safety to itself, 
 the two legislative bodies, and by a forcible exer- 
 tion of its prerogatives, to make, as it were, a gene- 
 ral assault, the executive power might, by subdi- 
 viding the same prerogatives, gain an entrance, 
 and, sometimes, by interest, and at others by fear, 
 guide the general will, by influencing that of indi- 
 viduals. 
 
 But the laws which so effectually provide for 
 the safety of the people, provide no less for that 
 of the members, whether of the house of peers, 
 or that of the commons. There are not known 
 in England either commissaries who are always 
 ready to find those guilty whom the wantonness
 
 OF ENGLAND. 85 
 
 of ambition points out, or those secret imprison- 
 ments which are, in other countries, the usual 
 expedients of government. As the forms and 
 maxims of the courts of justice are strictly pre- 
 scribed, and every individual has an invariable right 
 to be judged according- to law, he may obey with- 
 out fear the dictates of public virtue. Lastly, what 
 crowns all these precautions, is, its being- a funda- 
 mental maxim, " That the freedom of speech, and 
 " debates and proceedings in parliament, ought not 
 " to be impeached or questioned in any court or 
 " place out of parliament."* 
 
 The legislators, on the other hand, have not for- 
 gotten that interest, as well as fear, may impose 
 silence on duty. To prevent its effects, it has 
 been enacted, that all persons concerned in the 
 management of any taxes created since 1692, com- 
 missioners of prize, navy, victualling-office, &c., 
 comptrollers of the army accounts, agents for regi- 
 ments, the clerks in the different offices of the 
 revenue, persons holding any new office under the 
 crown (created since 1705), or having a pension 
 under the crown during pleasure, or for any term 
 of years, are incapable of being elected members. 
 Besides, if any member accepts an office under the 
 crown, except it be an officer in the army or navy 
 accepting a new commission, his seat becomes 
 void, though such member is capable of being 
 re-elected. 
 
 Such are the precautions hitherto taken by the 
 legislators, for preventing the undue influence of 
 the great prerogative of disposing of rewards and 
 * Bill of Rights, Art. 9.
 
 86 THE CONSTITUTION 
 
 places ; precautions which have been successively 
 taken, according as circumstances have shown them 
 to be necessary ; and which, we may thence sup- 
 pose, are owing to causes powerful enough to 
 produce the establishment of new ones, whenever 
 circumstances shall point out the necessity of 
 them.* 
 
 * Nothing can be a better proof of the efficacy of the causes 
 that produce the liberty of the English, than those victories which 
 the parliament from time to time gains over itself, and in which 
 the members, forgetting all views of private ambition, only think 
 of their interest as subjects. 
 
 Since this was first written, an excellent regulation has been made 
 for the decision of controverted elections. Formerly the house 
 decided them in a very summary manner, and the witnesses were 
 not examined upon oath. But by an act passed a few years ago, 55 
 the decision is left to a jury, or committee, of fifteen members, 
 formed in the following manner : Out of the members present, 
 who must not be less than one hundred, forty-nine are drawn by 
 lots : out of these, each candidate strikes off one alternately, till 
 there remain only thirteen, who, with two others, named out of the 
 whole house (one by each candidate), are to form the committee. 
 In order to secure the necessary number of a hundred members, all 
 other business in the house is to be suspended, till the above opera- 
 tions are completed. 
 
 55 The statute alluded to, and which our author considered " an 
 " excellent regulation," was the temporary act 10 Geo. III. cap. 16, 
 (A.D. 1770,) explained and amended in the following year by 11 
 Geo. III. cap. 42, both of which acts were made perpetual by 14 
 Geo. III. cap. 15. (A.D. 1774.) The law, however, has been re- 
 peatedly altered since that period, and was finally placed upon a 
 new and greatly improved system by the 9 Geo. IV. cap. 22, (A.D. 
 1828,) intituled, " An act to consolidate and amend the laws re- 
 lating to the trial of controverted elections or returns of members 
 to serve in parliament," whereby' the decision is left to a select 
 committee of eleven members, thus formed ; out of the mem-
 
 OF ENGLAND. 8? 
 
 CHAPTER IX. 
 
 Of private Liberty, or the Liberty of Individuals. 
 
 WE have hitherto treated only of general liberty, 
 that is, of the rights of the nation as a nation, and 
 of its share in the government. It now remains 
 that we should treat particularly of a thing without 
 which this general liberty, being absolutely frus- 
 trated in its object, would be only a matter of os- 
 tentation, and even could not long subsist, I 
 mean, the liberty of individuals. 
 
 Private liberty, according to the division of the 
 English lawyers, consists, first, of the right of 
 property, that is, of the right of enjoying exclu- 
 sively the gifts of fortune, and all the various fruits 
 of one's industry ; secondly, of the right of personal 
 security ; thirdly, of the locomotive faculty, taking 
 the word liberty in its more confined sense. 
 
 Each of these rights, say again the English law- 
 yers, is inherent in the person of every Englishman ; 
 they are to him as an inheritance, and he cannot 
 be deprived of them, but by virtue of a sentence 
 passed according to the laws of the land. And, 
 
 bers present, who must not be fewer than one hundred if one 
 committee is to be formed, one hundred and twenty if more than 
 one committee, one hundred and eighty if more than two com- 
 mittees, and two hundred and forty if more than three committees, 
 thirty-three are drawn by lots ; the parties then alternately strike 
 oft' one of the thirty-three until the number is reduced to eleven, 
 who constitute the committee, and are sworn at the table of the 
 house. EDITOR.
 
 88 THE CONSTITUTION 
 
 indeed, as this right of inheritance is expressed in 
 English by one word (birth -right), the same as 
 that which expresses the king's title to the crown, 
 it has, in times of oppression, been often opposed to 
 him as a right, doubtless of less extent, but of a 
 sanction equal to that of his own. 
 
 One of the principal effects of the right of pro- 
 perty is, that the king can take from his subjects 
 no part of what they possess ; he must wait till 
 they themselves grant it to him : and this right, 
 which, as we have seen before, is, by its conse- 
 quences, the bulwark that protects all the others, 
 has moreover the immediate effect of preventing 
 one of the chief causes of oppression. 
 
 In regard to the attempts to which the right of 
 property might be exposed from one individual to 
 another, I believe I shall have said every thing, 
 when I have observed, that there is no man in 
 England who can oppose the irresistible power of 
 the laws ; that, as the judges cannot be deprived 
 of their employments but on an accusation by par- 
 liament, the effect of interest with the sovereign, 
 or with those who approach his person, can scarcely 
 influence their decisions ; that, as the judges them- 
 selves have no power to pass sentence till the 
 matter of fact has been settled by men nominated, 
 we may almost say, at the common choice of the 
 parties,* all private views, and consequently all 
 
 * From the extensive right of challenging jurymen, which is 
 allowed to every person brought to his trial, though not very fre- 
 quently used. 56 
 
 56 This right has been in much more frequent use of late years. 
 EDITOR.
 
 OF ENGLAND. 89 
 
 respect of persons, are banished from the courts of 
 justice. However, that nothing may be wanting 
 which may help to throw light on the subject I 
 have undertaken to treat, I shall relate, in general, 
 what is the law in civil matters, that has taken 
 place in England. 
 
 When the Pandects were found at Amalphi, the 
 clergy, who were then the only men that were 
 able to understand them, did not neglect that op- 
 portunity of increasing the influence they had al- 
 ready obtained, and caused them to be received 
 in the greater part of Europe, England, which 
 was destined to have a constitution so different from 
 that of other states, was to be farther distinguished 
 by its rejecting the Roman laws. 
 
 Under William the Conqueror, and his imme- 
 diate successors, a multitude of foreign ecclesiastics 
 flocked to the court of England. Their influence 
 over the mind of the sovereign, which, in the other 
 states of Europe, as they were then constituted, 
 might be considered as matter of little importance, 
 was not so in a country where, the sovereign being 
 all-powerful, to obtain influence over him was to 
 obtain power itself. The English nobility saw, 
 with the greatest jealousy, men of a condition so 
 different from their own, vested with a power, to 
 the attacks of which they were immediately ex- 
 posed ; and thought that they would carry that 
 power to the height, if they should ever adopt a 
 system of laws which those same men sought to in- 
 troduce, and of which they would necessarily be- 
 come both the depositories and the interpreters. 
 
 It happened, therefore, by a somewhat singular
 
 90 THE CONSTITUTION 
 
 conjunction of circumstances, that, to the Roman 
 laws, brought over to England by monks, the idea 
 of ecclesiastical power became associated, in the 
 same manner as the idea of regal despotism was 
 afterwards annexed to the religion of the same 
 monks, when favoured by kings who endeavoured 
 to establish an arbitrary government. The nobility 
 at all times rejected these laws, even with a degree 
 of ill-humour ;* and the usurper Stephen, whose 
 interest it was to conciliate their affections, went 
 so far as to prohibit the study of them. 
 
 As the general disposition of things brought 
 about a sufficient degree of intercourse between 
 the nobility or gentry, and the people, the aversion 
 to the Roman laws gradually spread itself far and 
 wide ; and those laws, to which their wisdom in 
 many cases, and particularly their extensiveness, 
 ought naturally to have procured admittance when 
 the English laws themselves were yet but in their 
 infancy, experienced the most steady opposition 
 
 * The nobility, under the reign of Richai'd II., declared in the 
 French language of those times, " Puree que le roialme d'Engle- 
 " terre n'etoit devant ces heures, ne a Pentent clu roy notre seignior, 
 " et seigniors du parlement, unques ne sera, rule ne governe par la 
 " loy civil ;" viz. Inasmuch as the kingdom of England was not 
 before this time, nor, according to the intent of the king our lord, 
 and lords of parliament, ever shall be, ruled or governed by the 
 civil \avf.V-Parl. Westmonast. Feb. 3, 1379. 
 
 fi 7 This short, but decided, reply of the barons to another of our 
 kings, on occasion of an attempt to legalize children born before 
 marriage, provided the parents married afterwards, (a proposition 
 borrowed from the Roman civil law) " Nolumus leges Angiice 
 " mutari," It is not our will that the laws of England should be 
 changed, is another instance of a similar kind. EDITOR.
 
 OF ENGLAND. Ql 
 
 from the lawyers ; and as those persons, who 
 sought to introduce them, frequently renewed their 
 attempts, there at length arose a kind of general 
 combination among the laity, to confine them to 
 universities and monasteries.* 
 
 This opposition was carried so far, that For- 
 tescue, chief justice of the King's Bench, and 
 afterwards chancellor, under Henry VI., wrote a 
 book entitled De Laudibus Legum Anglice^ in 
 which he proposes to demonstrate the superiority of 
 the English laws over the civil ; and, that nothing 
 might be wanting in his arguments on that subject, 
 he gives them the advantage of superior antiquity, 
 and traces their origin to a period much anterior 
 to the foundation of Rome. 
 
 This spirit has been preserved even to much 
 more modern times ; and when we peruse the 
 
 * It might perhaps be shown, if it belonged to the subject, that 
 the liberty of thinking in religious matters, which has at all times 
 remarkably prevailed in England, is derived from nearly the same 
 causes as its political liberty : both perhaps are owing to this, that 
 the same men, whose interest it is in other countries that the people 
 should be influenced by prejudices of a political or religious kind, 
 have been in England forced to inform and unite with them I 
 shall here take occasion to observe, in answer to the reproach made 
 to the English, by president Henault, in his much-esteemed Chro- 
 nological History of France, that the frequent changes of religion 
 which have taken place in England do not argue any servile disposi- 
 tion in the people ; they only prove the equilibrium between the 
 then existing sects : there was none but what might become the 
 prevailing one, whenever the sovei-eign thought proper to declare 
 for it : and it was not England, as people may think at first sight 
 it was only its government which changed its religion. 
 
 58 Concerning the praises of the laws of England. EDITOR.
 
 9*2 THE CONSTITUTION 
 
 many paragraphs which judge Hale has written in 
 his History of the Common Law, to prove, that, 
 in the few cases in which the civil law is admitted 
 in England, it can have no power by virtue of any 
 deference due to the orders of Justinian (a truth 
 which certainly had no need of proof), we plainly 
 see that this chief justice, who was also a very 
 great lawyer, had, in this respect, retained some- 
 what of the heat of party. 
 
 Even at present the English lawyers attribute 
 the liberty they enjoy, and of which other nations 
 are deprived, to their having rejected, while those 
 nations have admitted, the Roman law ; which is 
 mistaking the effect for the cause. It is not be- 
 cause the English have rejected the Roman laws 
 that they are free ; but it is because they were free 
 (or at least because there existed, among them, 
 causes which were, in process of time, to make 
 them so,) that they have been able to reject the 
 Roman laws. But even though they had admitted 
 those laws, these same circumstances, that have 
 enabled them to reject the whole, would have 
 likewise enabled them to reject those parts which 
 might not have suited them ; and they would have 
 seen, that it is very possible to receive the decisions 
 of the civil law on the subject of the servitudes 
 urbantB et rusticce^ without adopting its principles 
 with respect to the power of the emperors.* 
 
 * What particularly frightens the English lawyers, is L. i. Lib. 
 I. Tit. 4. Dig. Quod principi placuerit hgis habet vigorem. 60 
 
 5 9 Civic and rustic bondage. EDITOR. 
 
 60 That which is pleasing to the prince hath the force of law. 
 EDITOR.
 
 OF ENGLAND. 93 
 
 Of this the republic of Holland, where the civil 
 law is adopted, would afford a proof, if there were 
 not the still more striking one of the emperor of 
 Germany, who, though, in the opinion of his 
 people, he is the successor to the very throne of 
 the C&sars, has not, by a great deal, so much 
 power as a king of England ; and the reading 
 of the several treaties which deprive him of the 
 power of nominating the principal officers of the 
 empire, sufficiently shows that a spirit of unli- 
 mited submission to monarchical power is no ne- 
 cessary consequence of the admission of the Roman 
 civil law. 
 
 The laws therefore that have taken place in 
 England are what they call the unwritten law 
 (also termed the common law], and the statute law. 
 
 The unwritten law is thus called, not because it 
 is only transmitted by tradition from generation to 
 generation, but because it is not founded on any 
 known act of the legislature. It receives its force 
 from immemorial custom, and, for the most part, 
 derives its origin from acts of parliament enacted 
 in the times which immediately followed the Con- 
 quest (particularly those anterior to the time of 
 Richard the First), the originals of which are lost. 
 
 The principal objects settled by the common 
 law, are the rules of descent, the different methods 
 of acquiring property, the various forms required 
 for rendering contracts valid ; in all which points 
 it differs, more or less, from the civil law. Thus, 
 by the common law, lands descend to the eldest 
 son, to the exclusion of all his brothers and sisters ;
 
 94 THE CONSTITUTION 
 
 whereas, by the civil law, they are equally divided 
 among 1 the children : by the common law, property 
 is transferred by writing ; but by the civil law, 
 tradition (or actual delivery) is moreover re- 
 quisite, &c. 
 
 The source, from which the decisions of the 
 common law are drawn, is what is called prcete- 
 ritorum memoria eventorum, 61 and is found in the 
 collection of judgments that have been passed 
 from time immemorial, and which, as well as the 
 proceedings relative to them, are carefully pre- 
 served under the title of records. In order that 
 the principles established by such a series of judg- 
 ments may be known, extracts from them are, from 
 time to time, published under the name of reports ; 
 and these reports reach, by a regular series, so far 
 back as the reign of Edward the Second inclusively. 
 
 Besides this collection, which is pretty volu- 
 minous, there are also some ancient writers of great 
 authority among lawyers ; such as Glanvil, who 
 flourished in the reign of Henry the Second 
 Bracton, who wrote under Henry the Third 
 Fletaf- and Lyttelton. Among more modern 
 authors, is Sir Edward Coke, lord chief justice of 
 the King's Bench, under James the First, who has 
 written four books of Institutes, and is at present 
 the oracle of the common law. 63 
 
 The common law moreover comprehends some 
 
 fil The record of past events. EDITOR. 
 
 62 Not the name of an author; but a hook so entitled because it 
 was written in the Fleet Prison. EDITOR. 
 6:5 And is so still. EDITOR.
 
 OF ENGLAND. 95 
 
 particular customs, which are fragments of the 
 ancient Saxon laws, escaped from the disaster of 
 the Conquest ; such as that called Gavel-kind, in 
 the county of Kent, by which lands are divided 
 equally between or among- the sons ; and that 
 called Borough-English, by which, in some dis- 
 tricts, lands descend to the youngest son. 
 
 The civil law, in the few instances where it is 
 admitted, is likewise comprehended under the un- 
 written law, because it is of force only so far as it 
 has been authorised by immemorial custom. Some 
 of its principles are followed in the ecclesiastical 
 courts, in the courts of admiralty, and in the courts 
 of the two universities ; but it is there nothing 
 more than lex sub lege graviori y 64 and these dif- 
 ferent courts must conform to acts of parliament, 
 and to the sense given to them by the courts of 
 common law ; being moreover subjected to the 
 controul of the latter. 
 
 Lastly, the written law is the collection of the 
 various acts of parliament, the originals of which 
 are carefully preserved, especially since the reign 
 of Edward the Third. Without entering into the 
 distinctions made by lawyers with respect to them 
 such as public and private acts, declaratory 
 acts, or such as are made to extend or restrain the 
 common law, &c. it will be sufficient to observe, 
 that being the result of the united wills of the 
 three constituent parts of the legislature, they, in 
 all cases, supersede both the common law and all 
 former statutes ; and the judges must take cogni- 
 sance of them, and decide in conformity to them, 
 64 A law derived from higher law. EDITOR.
 
 yO THE CONSTITUTION 
 
 even though they had not been alleged by the par- 
 ties.* 
 
 The different courts for the administration of 
 justice, in England, are, 
 
 I. The Court of Common Pleas. It formerly 
 made a part of the aula regis (the king's hall or 
 court) ; but as the latter was bound by its institu- 
 tion always to follow the person of the king, and 
 private individuals experienced great difficulties in 
 obtaining relief from a court that was ambulatory, 
 and always in motion, it was made one of the ar- 
 ticles of the Great Charter, that the Court of 
 Common Pleas should thenceforward be holden in 
 a fixed place ;^ and since that time it has been 
 seated at Westminster. It is composed of a lord 
 chief justice, and three other judges ; 66 and appeals 
 from its judgments, usually called writs of error, 
 are brought before the Court of King's Bench. 
 
 II. The Court of Exchequer. It was originally 
 established to determine those causes in which the 
 king, or his servants, or accomptants, were con- 
 
 * Unless they be private acts. 
 
 j- Communia placita non sequantur curiam nostram, sed te- 
 neantur in aliquo loco certo.^ 5 Magna Charta, cap. 1 1. 
 
 65 Common Pleas shall not follow our court, but shall be holden 
 in some place certain. Translation given in Ruffhead's Statutes 
 at Large. EDITOR. 
 
 66 The number was increased to four, under the provisions of the 
 act alluded to in note 38, page 69; but, by sec. 1 of that act, it is 
 enacted, that the puisne judges shall sit by rotation in each term, 
 or otherwise, as they shall agree amongst themselves, so that no 
 greater number than three of them shall sit at the same time in 
 Bane for the transaction of the business in term, unless in the 
 absence of the lord chief justice. EDITOR.
 
 OF ENGLAND. 97 
 
 cerned, and has gradually become open to all per- 
 sons. The confining- the power of this court to 
 the above class of persons is therefore now a mere 
 fiction ; only a man must, for form's sake, set forth 
 in his declaration that he is debtor to the king, 
 whether he be so or no. This court is composed 
 of the chief baron of the Exchequer, and three 
 other judges. 67 
 
 III. The Court of King's Bench forms that 
 part of the Aula Regis which continued to sub- 
 sist after the dismembering of the Common Pleas. 
 This court enjoys the most extensive authority of 
 all other courts : it has the superintendence over 
 all corporations, and keeps the various jurisdic- 
 tions in the kingdom within their respective bounds. 
 It takes cognisance, according to the end of its 
 original institution, of all criminal causes, and 
 even of many causes merely civil. It is composed 
 of the lord chief justice and three other judges. 68 
 Writs of error against the judgments passed in this 
 court in civil matters are brought before the Court 
 of the Exchequer Chamber j or, in most cases, 
 before the House of Peers. 
 
 IV. The Court of the Exchequer Chamber. 
 When this court is formed by the four barons, or 
 judges of the Exchequer, together with the chan- 
 cellor and treasurer of the same, it sits as a court 
 of equity. When it is formed by the twelve ^ judges, 
 
 67 The last note equally applies to this court, only substituting 
 the lord chief baron for the lord chief justice. EDITOR. 
 
 68 Note 66 equally applies to this court and the court of common 
 pleas. EDITOR. 
 
 69 Now fifteen. See note 38, page 69. EDITOR. 
 
 H
 
 98 THE CONSTITUTION 
 
 to whom sometimes the lord chancellor is joined, 
 its office is to deliberate, when properly referred 
 and applied to, and give an opinion on important 
 and difficult causes, before judgments are passed 
 upon them in those courts where the causes are 
 depending. 
 
 CHAPTER X. 
 
 On the Law that is observed in England, in re- 
 gard to Civil Matters. 
 
 CONCERNING the manner in which justice is admi- 
 nistered in England, in civil matters, and the kind 
 of law that obtains in that respect, the following 
 observations may be made. 70 
 
 The beginning of a civil process in England, 
 or the first step usually taken in bringing an ac- 
 tion, is the seizing, by public authority, the per- 
 son against whom that action is brought. This 
 is done with a view to secure such person's appear- 
 ance before a judge, or at least make him give 
 sureties for that purpose. In most of the countries 
 of Europe, where the forms, introduced into the 
 Roman civil law in the reigns of the later em- 
 
 7 Although it would not be difficult to point out various inac- 
 curacies in this chapter, the author's strictures are in general so 
 apposite and deserving of admiration, that it is thought unnecessary 
 to direct attention to errors which would be understood only by the 
 lawyer, to whom they will be sufficiently obvious without such 
 notice. EDITOR.
 
 OF ENGLAND. 99 
 
 perors, have been imitated, a different method 
 has been adopted to procure a man's appearance 
 before a court of justice. The usual practice is to 
 have the person sued, summoned to appear before 
 the court, by a public officer belonging- to it, a 
 week before-hand : if no regard is paid to such 
 summons twice repeated, the plaintiff (or his at- 
 torney) is admitted to make before the court a 
 formal reading of his demand, which is then 
 granted to him, and he may proceed to execution.* 
 
 In this mode of proceeding, it is taken for 
 granted, that a person who declines to appear be- 
 fore a judge, to answer the demand of another, 
 after being properly summoned, acknowledges the 
 justice of such demand ; and this supposition is 
 very just and rational. However, the above- 
 mentioned practice of securing before-hand the 
 body of a person sued, though not so mild in its 
 execution as that just now described, nor even 
 more effectual, appears more obvious, and is more 
 readily adopted, in those times when courts of law 
 begin to be formed in a nation, and rules of dis- 
 tributive justice to be established ; and it is, very 
 likely, followed in England as a continuation of 
 the methods that were adopted when the English 
 laws were yet in their infancy. 
 
 In the times we mention, when laws begin to 
 
 * A person against whom a judgment of this kind has been 
 passed (which they call in France un jugement par default 1 } may 
 easily obtain relief; but as he now in his turn becomes in a manner 
 the plaintiff, his deserting the cause, in this second stage of it, would 
 leave him without remedy. 
 
 7 1 A judgment by default. EDITOR. 
 
 H 2
 
 100 THE CONSTITUTION 
 
 be formed in a country, the administration of jus- 
 tice between individuals is commonly lodged in 
 the same hands which are intrusted with the public 
 and military authority of the state. Judges, in- 
 vested with a power of this kind, like to carry on 
 their operations with a high hand : they consider 
 the refusal of a man to appear before them, not as 
 being barely an expedient to avoid doing that 
 which is just, but as a contempt of their authority : 
 they of course look upon themselves as being 
 bound to vindicate it ; and a writ of capias is 
 speedily issued to apprehend the refractory defen- 
 dant. A preliminary writ or order of this kind 
 becomes in time the first regular step of a law-suit; 
 and hence it seems to have happened, that, in the 
 English courts of law, if I am rightly informed, a 
 writ of capias is either issued before the original 
 writ itself (which contains the summons of the 
 plaintiff, and a formal delineation of his case), or 
 is joined to such writ, by means of an ac etiam 
 capias, and is served along with it. 
 
 In Rome, where the distribution of civil justice 
 was at first lodged in the hands of the kings, and 
 afterwards of the consuls, the method of seizing 
 the person of a man against whom a demand of 
 any kind was preferred, previously to any judg- 
 ment being passed against him, was likewise 
 adopted, and continued to be followed after the 
 institution of the praetor's court, to whom the civil 
 branch of the power of the consuls was afterwards 
 delegated ; and it lasted to very late times ; that 
 is, to the times when those capital alterations were 
 made in the Roman civil law, during the reigns of
 
 OF ENGLAND. 101 
 
 the later emperors, which gave it the form it now 
 has in those codes or collections of which we are in 
 possession. 
 
 A very singular degree of violence even took 
 place in Rome, in the method used to secure the 
 persons of those against whom a legal demand was 
 preferred. In England, the way to seize a man 
 under such circumstances, is by means of a public 
 officer, supplied with a writ or order for that pur- 
 pose, supposed to be directed to him (or to the 
 sheriff his employer) from the king himself. But, 
 in Rome, every one became a kind of public officer 
 in his own cause, to assert the praetor's prerogative ; 
 and, without any ostensible legal licence or badge 
 of public authority, had a right to seize by force 
 the person of his opponent, wherever he met him. 
 The practice was, that the plaintiff first summoned 
 the person sued with a loud voice, to follow him 
 before the court of the praetor.* When the de- 
 fendant refused to obey such summons, the plaintiff, 
 by means of the words licet antestari ? 73 requested 
 the by-standers to be witnesses of the fact ; as a 
 remembrance of which, he touched the ears of each 
 of them : T4 and then proceeded to seize his opponent, 
 by throwing his arms round his neck (obtorto collo), 
 thus endeavouring to drag him before the praetor. 
 When the person sued was, through age or sickness, 
 
 * Ad tribunal sequere, in jus 
 
 72 Follow to the judgment-seat, walk into court. EDITOR. 
 
 73 Are you willing to witness the arrest ? EDITOR. 
 
 7* Pliny gives as a reason for this custom, " Est in aure imd, 
 memories locus" in the innermost ear is the seat of memory. 
 Conf. Hor. Sat. 1, 9, 76. EDITOR.
 
 102 THE CONSTITUTION 
 
 disabled from following the plaintiff, the latter was 
 directed by the law of the Twelve Tables to supply 
 him with a horse (jumentum*dato). 
 
 The above method of proceeding- was however 
 in after-times mitigated, though very late and 
 slowly. In the first place, it became unlawful to 
 seize a man in his own house, as it was the abode 
 of his domestic gods. Women of good family were 
 in time protected from the severity of the^above 
 custom, and they could no longer be dragged by 
 force before the tribunal of the praetor. The me- 
 thod of placing a sick or aged person by force upon 
 a horse seems to have been abolished during the 
 later times of the republic. Emancipated sons, and 
 freed slaves, were afterwards restrained from sum- 
 moning their parents, or late masters, without 
 having expressly obtained the praetor's leave, under 
 the penalty of fifty pieces of gold. However, so 
 late as the time of Pliny, the old mode of summon- 
 ing, or carrying by force, before a judge, continued 
 in general to subsist ; though, in the time of Ulpian, 
 the necessity of expressly obtaining the praetor's 
 leave was extended to all cases and persons ; and, 
 in Constantine's reign, the method began to be 
 established of having the legal summons served only 
 by means of a public officer appointed for that 
 purpose. After that time, other changes in the 
 former law were introduced, from which the mode 
 of proceeding now used on the continent of Europe 
 has been borrowed. 
 
 In England likewise, some changes, we may ob- 
 serve, have been wrought in the law and practice 
 concerning the arrests of sued persons, though as
 
 OF ENGLAND. 103 
 
 slowly and late as those effected in the Roman re- 
 public or empire, if not more so ; which evinces 
 the great impediments of various kinds that ob- 
 struct the improvement of laws in every nation. 
 So late as the reign of king George the First, an 
 act was passed 73 to prohibit the practice of previous 
 personal arrest, in cases of demands under two 
 pounds sterling ; and, since that time, those courts, 
 justly called of Conscience, have been established, 
 in which such demands are to be summarily decided, 
 and simple summons, without arrest, can only be 
 used. 76 A bill was afterwards enacted* (on the 
 motion of Lord Beauchamp, whose name deserves 
 
 * In 1779.77 
 
 "> 5 12Geo. I. cap. 29, (A.D. 1725,) intituled, " An act to prevent 
 frivolous and vexatious arrests ;" explained, amended, and rendered 
 more effectual by : 5 Geo. II. cap. 27 (A.D. 1732) ; and revived 
 and made perpetual by 21 Geo. II. cap. 3 (A.D. 1748). 
 EDITOR. 
 
 7(5 These local courts of requests, or conscience, have, generally, 
 jurisdiction of cases not exceeding 2, to be decided by at least 
 three commissioners, and from 2 to 5, to be decided by at least 
 five commissioners. And bv sec. 17 of act 3 and 4 Will. IV. 
 cap. 42, (A.D. 1833,) intituled, "An act for the further amend- 
 ment of the law, and the better advancement of justice," it is 
 enacted, That, in any action depending in any of the superior courts 
 for any debt or demand not exceeding 20, the court in which such 
 suit shall be depending, or any judge thereof, if satisfied that the 
 trial will not involve any difficult question of fact or law, may order 
 and direct that the issue or issues joined shall be tried before the 
 sheriff of the county where the action is brought, or any judge of 
 any court of record for the recovery of debt in such county. 
 EDITOR. 
 
 77 19 Geo. III. cap. 70 j which was rendered more effectual by 
 43 Geo. III. cap. 46 (A.D. 1803). EDITOR.
 
 104 THE CONSTITUTION 
 
 to be recorded), by which the prohibition of arrest 
 was extended to all cases of debt under ten pounds 
 sterling ; a bill, the passing of which was of twenty, 
 or even a hundred times more real importance than 
 the rise or fall of a favourite, or a minister, though 
 it has, perhaps, been honoured with a less degree of 
 attention by the public. 78 
 
 Other peculiarities of the English civil law, are 
 the great refinements, formalities, and strictness, 
 that prevail in it. Concerning such refinements, 
 which are rather imperfections, the same observa- 
 tion may be made that has been introduced above, 
 in regard to the mode and frequency of civil arrest 
 in England ; which is, that they are continuations 
 of methods adopted when the English law began 
 to be formed, and are the consequences of the situ- 
 ation in which the English placed themselves when 
 they rejected the ready-made code of the Roman 
 civil law, and rather chose to become their own 
 law-makers, and raise from the ground the struc- 
 ture of their own national civil code ; which code, 
 it may be observed, is as yet in the first stage of 
 its formation, as the Roman law itself was during 
 the times of the republic, and in the reigns of the 
 first emperors. 
 
 The time at which the power of administering 
 justice to individuals becomes separated from the 
 
 78 By 51 Geo. III. cap. 124, (A. D. 1811,) continued by 57 
 Geo. III. cap. 101, (A. D. 1817,) the prohibition of arrest upon 
 inesne process was exttnded to all cases where the cause of action 
 was under \5, except on bills of exchange and promissory notes ; 
 and by 7 and 8 Geo. IV. cap. 71, (A. D. 1827,) it was further ex- 
 tended to all cases, without any exception, where the debt or cause 
 of action was under 20. EDITOR.
 
 OF ENGLAND. 105 
 
 military power (an event which happens sooner or 
 later in different countries), is the real sera of the 
 origin of a regular system of laws in a nation. 
 Judges being now deprived of the power of the 
 sword, or (which amounts to the same) being 
 obliged to borrow that power from other persons, 
 endeavour to find their resources within their own 
 courts, and, if possible, to obtain submission to 
 their decrees from the great regularity of their pro- 
 ceedings, and the reputation of the impartiality of 
 their decisions. At the same time also lawyers 
 begin to crowd in numbers to courts, which it is 
 no longer dangerous to approach, and add their 
 refinements to the rules already set down either by 
 the legislature or the judges. As the employing 
 of them, especially in the beginning, is matter of 
 choice, and they fear, that, if bare common-sense 
 were thought sufficient to conduct a law-suit, every 
 body might imagine he knows as much as they do, 
 they contrive difficulties to make their assistance 
 needful. As the true science of the law, which 
 is no other than the knowledge of a long series of 
 former rules and precedents, cannot as yet exist, 
 they endeavour to create an artificial one to re- 
 commend themselves by. Formal distinctions and 
 definitions are invented to express the different 
 kinds of claims that men may set up against one 
 another ; in which almost the same nicety is dis- 
 played as that used by philosophers in classing the 
 different subjects, or kingdoms, of natural history. 
 Settled forms of words, under the name of ivrits, 
 or the like, are devised to set forth those claims ; 
 and, like introductory passes, serve to usher claim-
 
 106 THE CONSTITUTION 
 
 ants into the temple of justice. For fear their 
 clients should desert them after their first intro- 
 duction, like a sick man who rests contented with 
 a single visit of the physician, lawyers contrive 
 other ceremonies and technical forms for the far- 
 ther conduct of the process and the pleadings ; 
 and, in order still more safely to bind their clients 
 to their dominion, they at length make every error 
 relating to their professional regulations, whether 
 it be a misnomer, a mispleading, or the like trans- 
 gression, to be of as fatal a consequence as a 
 failure against the laws of strict justice. Upon the 
 foundation of the above-mentioned definitions and 
 metaphysical distinctions of cases and actions, a 
 number of strict rules of law are moreover raised, 
 with which none can be acquainted but such as 
 are complete masters of those distinctions and defi- 
 nitions. 
 
 To a person who in a posterior age observes for 
 the first time such refinements in the distribution 
 of justice, they appear very strange, and even 
 ridiculous. Yet, it must be confessed, that during 
 the times of the first institution of magistracies 
 and courts of a civil nature, ceremonies and for- 
 malities of different kinds are very useful to pro- 
 cure to such courts both the confidence of those 
 persons who are brought before them, and the re- 
 spect of the public at large ; and they thereby be- 
 come actual substitutes for military force, which, 
 till then, had been the chief support of judges. 
 Those same forms and professional regulations are 
 moreover useful to give uniformity to the proceed- 
 ings of the lawyers and of the courts of law, and
 
 OF ENGLAND. 107 
 
 to ensure constancy and steadiness to the rules 
 which they set down among- themselves. And if 
 the whole system of the refinements we mention 
 continue to subsist in very remote ages, it is in a 
 great measure owing- (not to mention other causes) 
 to their having so coalesced with the essential 
 parts of the law as to make danger, or at least 
 great difficulties, be apprehended from a separa- 
 tion ; and they may, in that respect, be compared 
 with a scaffolding used in the raising of a house, 
 which, though only intended to set the materials 
 and support the builders, happens to be suffered for 
 a long time afterwards to stand, because it is thought 
 the removal of it might endanger the building. 79 
 
 79 The important statute, passed in the last session of parliament, 
 to which reference is made in note 75, page 103, will, it is hoped, 
 supply the means of remedying the evils of which our author here 
 so justly complains. It hegins by enacting, " That the judges of 
 " the superior courts of common law at Westminster, or any eight 
 " or more of them, of whom the chiefs of each of the said courts 
 " shall he three, should and might, by any rule or order to be from 
 " time to time by them made, in term or vacation, at any time 
 " within five years from the time when that act should take effect, 
 " make such alterations in the mode of pleading in the said courts, 
 " and in the mode of entering and transcribing pleadings, judg- 
 " ments and other proceedings in actions at law, and such regula- 
 " tions as to the payment of costs, and otherwise for carrying into 
 " effect the said alterations, as to them might seem expedient; and 
 " all such rules, orders, or regulations should be laid before both 
 " houses of parliament, if parliament were then sitting, immediately 
 " upon the making of the same, or if parliament were not then sitting, 
 " then within five days after the next meeting thereof, and no such 
 " rule, order, or regulation, should have effect until six weeks after 
 " the same should have been so laid before both houses of parlia- 
 " inent ; and any rule or order so made, should, from and after such 
 " time aforesaid, be binding and obligatory on all the said courts,
 
 108 THE CONSTITUTION 
 
 Very singular law formalities and refined prac- 
 tices, of the kind here alluded to, had been con- 
 trived by the first jurisconsults in Rome, with a 
 view to amplify the rules set down in the laws of 
 the Twelve Tables ; which being- few, and engraven 
 on brass, every body could know as well as they ; 
 it even was a general custom to give those laws to 
 children to learn, as we are informed by Cicero. 
 
 Very accurate definitions, as well as distinct 
 branches of cases and actions, were contrived by 
 the first Roman jurisconsults ; and when a man 
 had once made his election of that peculiar kind 
 of action by which he chose to pursue his claim, 
 it became out of his power to alter it. Settled 
 forms of words, called actiones legis were more- 
 over contrived, which men must absolutely use to 
 set forth their demands. The party himself was 
 to recite the appointed words before the praetor ; 
 and should he unfortunately happen to miss or add 
 a single word, so as to seem to alter his real case or 
 demand, he lost his suit thereby. To this an al- 
 lusion is made by Cicero, when he says, " We 
 " have a civil law so constituted, that a man be- 
 
 " and all other courts of common law, and on all courts of error 
 " into which the judgments of the said courts or any of them should 
 " be carried by any writ of error, and be of the like force and effect 
 " as if the provisions contained therein had been expressly enacted 
 " by parliament : Provided always, that no such rule or order should 
 " have the effect of depriving any person of the power of pleading 
 " the general issue, and giving the special matter in evidence, in 
 " any case wherein he was then or thereafter should be entitled to 
 " do so by virtue of any act of parliament then or thereafter to be in 
 " force.'' EDITOR. 
 
 80 Processes of law. EDITOR.
 
 OF ENGLAND. 109 
 
 " comes non-suited, who has not proceeded in the 
 " manner he should have done."* An observa- 
 tion of the like nature is also to be found in Quin- 
 tilian, whose expressions on the subject are as fol- 
 low : " There is besides another danger ; for if 
 " but one word has been mistaken, we are to be 
 " considered as having failed in every point of our 
 " suit."!" Similar solemnities and appropriated 
 forms of words were moreover necessary to intro- 
 duce the reciprocal answers and replies of the 
 parties, to require and accept sureties, to produce 
 witnesses, &c. 
 
 Of the above actiones legis, the Roman juris- 
 consults and pontiffs had carefully kept the ex- 
 clusive knowledge to themselves, as well as of 
 those days on which religion did not allow courts 
 of law to sit.^ Cn. Flavius, secretary to Appius 
 Claudius, having happened to divulge the secret 
 of those momentous forms (an act for which he 
 was afterwards preferred by the people) juriscon- 
 sults contrived fresh ones, which they began to 
 
 * Ita jus civile habemus constitulum, tit causa cadat is qui non 
 quemadmodum oportet agerit. De Invent. IT. 19. 
 
 f- Est etiam periculosum, quum, si uno verbo sit erratum, lota 
 causa cecidisse videamur. Inst. Ch - at. VII. 3. 
 
 1 Dies fasti et nefasti. 81 
 
 81 Adams, in his Roman Antiquities, says, "The days on which 
 " the praetor administered justice were called dies fasti. Those days 
 " on which it was unlawful to administer justice were called dies 
 " nefasti" Ainsworth's Dictionary interprets, dies fasti, "pleading 
 days :" dies nefasti, " certain days accounted inauspicious, wherein 
 no law matters were heard, or any assemblies of the people holden." 
 EDITOR.
 
 110 THE CONSTITUTION 
 
 keep written with secret ciphers : but a member 
 of their own body again betrayed them, and the 
 new collection which he published was called Jus 
 jjElianum, from his name (Sex. j3lius), in the 
 same manner as the former collection had been 
 called Jus Flamanwn. However, it does not 
 seem that the influence of lawyers became much 
 abridged by those two collections : besides written 
 information of that sort, practice is also necessary : 
 and the public collections we mention, like the many 
 books that have been published on the English law, 
 could hardly enable a man to become a lawyer, 
 at least sufficiently so to conduct a law-suit.* 
 
 Modern civilians have been at uncommon pains to 
 find out and produce the ancient formula we men- 
 tion, in which they really have had great success. 
 Old comic writers, such as Plautus and Terence, 
 have supplied them with several ; the settled words, 
 for instance, used to claim the property of a slave, 
 frequently occur in their works, f 
 
 * The Roman jurisconsults had extended their skill to objects of 
 voluntary jurisdiction as well as to those of contentious jurisdic- 
 tion, and had devised peculiar formalities, forms of words, distinc- 
 tions, and definitions, in regard to obligations between man and 
 man, stipulations, donations, spousals, and especially last wills, in 
 all which they had displayed surprising nicety, refinement, accu- 
 racy, and strictness. The English lawyers have not bestowed so 
 much pains on the objects of voluntary jurisdiction, nor any thing 
 like it. 
 
 f The words addressed to the plaintiff, by the person sued, 
 when the latter made his appearance on the day for which he had 
 been compelled to give sureties, were as follow, and are alluded to 
 by Plant. Curcul. I. 3. v. 5. " "Where art thou who hast obliged 
 " me to give sureties P Where art thou who summonedst me P 
 " Here I stand before thee : do thyself stand before me." To
 
 OF ENGLAND. Ill 
 
 Extremely like the above actiones legis are the 
 writs used in the English courts of law. Those 
 
 which the plaintiff made answer, " Here I am." The defendant 
 replied, " What dost thou say ?" The plaintiff answered, " I 
 " say (Aio)" and then followed the form of words by which he 
 chose to express his action : Ubi tu es, qui me vadaius esP Ubi 
 tu es, qui me citdsti P Ecce ego me tibi sisto ; tu contra et te 
 mihi siste, fyc. 
 
 If the action, for instance, was brought on account of goods 
 stolen, the settled penalty (or damages) for which was the restitution 
 twice the value, the words to be used were, AIO decem aureos 
 mihi fur to tuo abesse, teque eo nomine viginti aureos mihi dare 
 oportcre. BZ For work done, such as cleaning of clothes, &c. Aio 
 te mihi tritici modium, de quo inter nos convenit ob polita vesti- 
 menta tua, dare oportere. 33 For recovering the value of a slave 
 killed by another citizen : Aio te hominem meum occidisse, teque 
 mihi quantum Hie hoc anno plurimifuit dare oportere. 84 For 
 damages done by a vicious animal, Aio bovem Mcevii servum meum 
 Stichum, cornu petiisse et occidisse, eoque nomine Mavium, ant 
 serviasitimationemprtestare, aut bovem mihi noxce dare oportere ; 
 or, Aio ursum Mcevii mihi vulnus intulisse, et Mcevium quantum 
 tequius rnelius mihi dare oportere^ fyc. 
 
 It may be observed, that the particular kind of remedy which 
 was provided by the law for the case before the court was expressly 
 
 82 I say that through your theft I am minus ten aurei, and that 
 on that account you ought to pay me twenty aurei. [Aureus was 
 a piece of coin, current among the Romans, of gold of the value of 
 about four pounds eight shillings an ounce. The aureus of the 
 higher empire weighed nearly five pennyweights ; but that of the 
 lower empire little more than half as much.] EDITOR. 
 
 83 I say that you ought to pay me a bushel of wheat as fullage 
 according to agreement between us, for the cleaning of your clothes 
 EDITOR. 
 
 84 I say that you killed my slave, and that you ought to pay me 
 what his highest value amounts to this year. EDITOR. 
 
 85 I say that Msevius's ox gored and killed my slave Stichus, 
 and that on that account Maevius ought either to pay the estimated
 
 11<2 THE CONSTITUTION 
 
 writs are framed for, and adapted to, every branch 
 or denomination of actions, such as detinue, tres- 
 pass, action upon the case, accompt, and covenant, 
 &c. ; the same strictness obtains in regard to them 
 as did in regard to the Roman formulae above-men- 
 tioned : there is the same danger in misapplying 
 them, or in failing in any part of them : and, to 
 use the words of an English law-writer on the sub- 
 ject, " Writs must be rightly directed, or they will 
 " be nought : In all writs, care must be had that 
 fl they be laid and formed according to their case, 
 " and so pursued in the process thereof."* 
 
 The same formality likewise prevails in the 
 English pleadings and conduct of the process as 
 obtained in the old Roman law proceedings ; and 
 in the same manner as the Roman jurisconsults had 
 their actionis postulationes et editiones, their infi- 
 
 pointed out in the formula used by a plaintiff; and in regard to 
 this no mistake was to be made. Thus, in the last-quoted formula, 
 the words quantum aquius melius, 8 ^ show that the praetor was to 
 appoint inferior judges both to ascertain the damage done, and de- 
 termine finally upon the case, according to the direction he pre- 
 viously gave them ; these words being exclusively appropriated to 
 the kindof actions called arbitrarice, from the above-mentioned judges 
 or arbitrators. In actions brought to require the execution of con- 
 ventions that had no name, the convention itself was expressed in 
 the formula ; such is that which is recited above, relating to work 
 done by the plaintiff, &c. 
 
 * Jacob's Law Dictionary. See Writ. 
 
 value of the slave, or else to surrender to me the ox, as an equiva- 
 lent for the injury; or, I say that Msevius's bear has wounded me, 
 and that Maevius ought to make me the most ample equitable com- 
 pensation. EDITOR. 
 
 86 The most ample equitable compensation. EDITOR.
 
 OF F.NGLAND. 113 
 
 ciationes, exceptiones, sponsiones, replicationes, du- 
 plicationes, tyc.** so the English lawyers have their 
 counts, bars, replications, rejoinders, sur-rejoin- 
 ders, rebutters, sur-rebutters, &c. A scrupulous 
 accuracy, in observing certain rules, is moreover 
 necessary in the management of those pleadings : 
 the following are the words of an English law- 
 writer on the subject : " Though the art of plead- 
 " ing was in its nature and design only to render the 
 " fact plain and intelligible, and to bring the mat- 
 " ter to judgment with convenient certainty, it be- 
 " gan to degenerate from its primitive simplicity. 
 " Pleaders, yea and judges, having become too cu- 
 " rious in that respect, pleadings at length ended 
 " in a piece of nicety and curiosity, by which the 
 " miscarriage of many a cause, upon small trivial 
 " objections, has been occasioned.''* 
 
 There is, however, a difference between the Ro- 
 man actiones legis, and the English writs, which is, 
 that the former might be framed when new ones 
 were necessary, by the preetor or judge of the 
 court, or, in some cases, by the body of the juris- 
 consults themselves, whereas writs, when wanted 
 for such new cases as may offer, can only be de- 
 vised by a distinct judge or court, exclusively in- 
 vested with such powers, viz. the High Court of 
 
 * Cunningham's Law Dictionary. See Pleadings. 
 
 87 Petitions and publications of action, pleadings, exceptions' 
 wagers at law (when the parties by consent laid down each a sum 
 of money to engage their standing to trial, the issue whereof was, 
 that he who was cast in his suit lost his money too), replications, 
 rejoinders, &c. EDITOR. 
 
 I
 
 114 THE CONSTITUTION 
 
 Chancery. The issuing- of writs already existing, 
 for the different cases to which they belong, is also 
 expressly reserved to this court ; and so important 
 has its office on those two points been deemed by 
 lawyers, that it has been called, by way of emi- 
 nence, the manufactory of justice (officina jus- 
 titice). Original writs, besides, when once framed, 
 are not at any time to be altered, except by parlia- 
 mentary authority.* 
 
 Of so much weight in the English law are these 
 original delineations of cases, that no cause is suf- 
 fered to be proceeded upon, unless they first appear 
 as legal introductors to it. However important or 
 interesting the case, the judge, till he sees the writ 
 he is used to, or at least a writ issued from the 
 right manufactory, is both deaf and dumb. He is 
 
 * Writs, legally issued, are also necessary for executing the dif- 
 ferent incidental proceedings that may take place in the course of a 
 law-suit, such as producing witnesses, &c. The names given to 
 the different kinds of writs are usually derived from the first Latin 
 words by which they began when they were written in Latin, or at 
 least from some remarkable word in them, which gives rise to ex- 
 pressions sufficiently uncouth and unintelligible. Thus a pone is a 
 writ issued to oblige a person in certain cases to give sureties (pone 
 per vadium, and salvos plegios 88 ). A writ of subpoena is to oblige 
 witnesses, and sometimes other classes of persons, to appear before 
 a court. An action of qui tarn, is that which is brought to sue for 
 a proportional share of a fine established by some penal statute, by 
 the person who laid an information ; the words in the writ being, 
 Qui tarn pro domino rege, quam pro seipso in hoc parte sequi- 
 tur, &c. 8 9 
 
 88 Take bail for the appearance (of the defendant in a court of 
 justice) and safe sureties. EDITOR. 
 
 8 ? Who sues in this behalf as well for our lord the king, as for 
 himself, &c. EDITOR.
 
 OF ENGLAND. 115 
 
 without eyes to see, or ears to hear. And, when 
 a case of a new kind offers, for which there is yet 
 no writ in being-, should the lord chancellor and 
 masters in chancery disagree in creating- one, or 
 prove unequal to the arduous task, the great na- 
 tional council, that is, parliament itself, is, in such 
 emergency, expressly applied to : by means of its col- 
 lected wisdom, the right mystical words are brought 
 together ; the judge is restored to the free use of his 
 organs of hearing and of speech ; and, by the crea- 
 tion of a new writ, a new province is added to the 
 empire of the courts of law. 
 
 In fine, those precious writs, those valuable briefs 
 (brevia) as they are also called by way of emi- 
 nence, which are the elixir and quintessence of the 
 law, have been committed to the special care of 
 officers appointed for that purpose, whose offices 
 derive their names from the peculiar instruments 
 they respectively use for the preservation of the de- 
 posit with which they are intrusted ; the one being 
 called the office of the Hanaper, and the other of 
 the Small Bag* 
 
 To say the truth, however, the creating of a new 
 writ, upon any new given case, is matter of greater 
 difficulty than the generality of readers are aware 
 of. The very importance which is thought to be 
 in those professional forms of words, renders them 
 
 * Hanaperium et Parva Baga, the Hanaper Office, and the 
 Petty-Bag Office. The first and last of these Latin words, it may 
 be observed, do not occur in Tully's works. To the care of the 
 Petty-Bag Office those writs are trusted in which the king's busi- 
 ness is concemed ; and to the Hanaper Office those which relate to 
 the subject. 
 
 I 2
 
 116 THE CONSTITUTION 
 
 really important. As every thing, without them, 
 is illegal in a court of common law, so with 
 them every thing becomes legal ; that is to say, 
 they empower the court legally to determine upon 
 every kind of suit to which they are made to serve 
 as introductors. The creating of a new writ, 
 therefore, amounts, in its consequences, to the 
 framing of a new law, and a law of a general nature 
 too : now the creating of such a law, on the first 
 appearance of a new case, which law is afterwards 
 to be applied to all such cases as may be similar 
 to the first, is really matter of difficulty : especially, 
 when men are yet in the dark as to the best kind of 
 provision to be made for the case in question, or 
 even when it is not, perhaps, yet known whether 
 it be proper to make any provision at all. The 
 framing of a new writ, under such circumstances, is 
 a measure on which lawyers or judges will not 
 very willingly either venture of themselves, or ap- 
 ply to the legislature for that purpose. 
 
 From the above-mentioned real difficulty in 
 creating new writs on one hand, and the absolute 
 necessity of such writs in the courts of common 
 law on the other, many new species of claims and 
 cases (the arising of which is, from time to time, 
 the unavoidable consequence of the progress of 
 trade and civilization) are left unprovided for, and 
 remain like so many vacant spaces in the law, or ra- 
 ther like so many inaccessible spots, which the laws 
 in being cannot reach : now this is a great imper- 
 fection in the distribution of justice, which should 
 be open to every individual, and provide remedies 
 for every kind of claim which men may set up 
 against each other.
 
 OF ENGLAND. 117 
 
 To remedy the above inconvenience, or rather in 
 some degree to palliate it, law fictions have been 
 resorted to, in the English law, by which writs, 
 being warped from their actual meaning, are made 
 to extend to cases to which they in no shape be- 
 long. 
 
 Law fictions of the kind we mention were not 
 unknown to the old Roman jurisconsults ; and, as 
 an instance of their ingenuity in that respect, may 
 be mentioned that kind of action, in which a 
 daughter was called a son.* Several instances 
 
 * From the above instance it might be concluded that the Ro- 
 man jurisconsults possessed still greater power than the English 
 parliament ; for it is a fundamental principle with the English 
 lawyers, that parliament can do every thing, except making a wo- 
 man a man, or a man a worn an .9 
 
 9 Judge Blackstone alludes to this maxim as " a figure rather 
 " too bold," towards the end of the following striking passage on 
 the omnipotence of parliament; his position in the passage has 
 been attacked, but, it is apprehended, not overturned, by several 
 eminent writers. "The power and jurisdiction of parliament, says 
 " Sir Edward Coke, (4 Inst. 36,) is so transcendent and -absolute, 
 " that it cannot be confined, either for causes or persons, within 
 " any bounds. And of this high court, he adds, it may be truly 
 " said, ' Si antiquitatem spectes, est vetustissima ; si dignitatem, 
 " est honoratissima ; si jurisdictionem, est capacissima.' " [If 
 you regard its antiquity, it is most ancient ; if its dignity, it is most 
 honorable ; if its jurisdiction, it is most comprehensive. EDITOR.] 
 " It hath sovereign and uncontrollable authority in the making, 
 " confirming, enlarging, restraining, abrogating, repealing, reviving, 
 " and expounding of laws, concerning matters of all possible deuo- 
 " minations, ecclesiastical or temporal, civil, military, maritime, or 
 " criminal : this being the place where that absolute despotic power, 
 " which must in all governments reside somewhere, is intrusted by 
 " the constitution of these kingdoms. All mischiefs and grievances, 
 " operations and remedies, that transcend the ordinary course of
 
 118 THE CONSTITUTION 
 
 might also be quoted of the fictitious use of writs in 
 the English courts of common law. A very re- 
 markable expedient of that sort occurs in the me- 
 thod generally used to sue for the payment of 
 certain kinds of debt, before the Court of Common 
 Pleas ; such (if I mistake not) as a salary for work 
 done, indemnity for fulfilling orders received, &c. 
 The writ issued in these cases is grounded on the 
 supposition, that the person sued has trespassed 
 on the ground of the plaintiff, and broken, by 
 force of arms, through his fences and inclosures ; 
 and, under this predicament, the defendant is 
 brought before the court : this species of writ, 
 which lawyers have found of most convenient use, 
 to introduce before a court of common law the 
 kinds of claim we mention, is called in technical 
 language a clausum Jregit. 91 In order to bring a 
 person before the Court of King's Bench, to answer 
 demands of much the same nature with those above, 
 a writ, called a latitat?" is issued, in which it is 
 
 " the laws, are within the reach of this extraordinary tribunal. It 
 " can regulate or new-model the succession to the crown ; as was 
 " done in the reign of Henry VIII. and William III. It can alter 
 " the established religion of the land ; as was done in a variety of 
 " instances, in the reigns of king Henry VIII. and his three chil- 
 " dren. It can change and create afresh even the constitution of 
 " the kingdom and of parliaments themselves ; as was done by the 
 " Act of Union, and the several statutes for triennial and septennial 
 " elections. It can, in short, do any thing that is not naturally 
 " impossible ; and therefore some have not scrupled to call its 
 " power, by a figure rather too bold, the omnipotence of parlia- 
 " inent. True it is, that what the parliament doth, no authority 
 " upon earth can undo." Blackstone's Commentaries, Vol. 1. pp. 
 160 & 161. EDITOR. 
 
 9 l Broke a close. EDITOR. 
 
 9 C Conceals himself. EDITOR.
 
 OF ENGLAND. 119 
 
 taken for grunted that the defendant insidiously 
 conceals himself, and is lurking in some county, dif- 
 ferent from that in which the court is sitting ; the 
 expressions used in the writ being, that " he runs 
 up and down and secretes himself:" though no 
 such fact is seriously meant to be advanced either 
 by the attorney or the party. 
 
 The same principle of strict adherence to certain 
 forms long since established, has also caused lawyers 
 to introduce into their proceedings fictitious names 
 of persons, who are supposed to discharge the 
 office of sureties ; and in certain cases, it seems, 
 the name of a fictitious person is introduced in a 
 writ with that of the principal defendant, as being 
 joined in a common cause with him. Another in- 
 stance of the same high regard of lawyers, and 
 judges too, for certain old forms, which makes 
 them more unwilling to depart from such forms 
 than from the truth itself of facts, occurs in the 
 above-mentioned expedient used to bring ordinary 
 causes before the Court of Exchequer, in order 
 to be tried there at common law ; which is, by 
 making a declaration that the plaintiff is a king's 
 debtor, though neither the court, nor the plaintiff's 
 attorney, lay any serious stress on the assertion.* 
 
 * Another instance of the strict adherence of the English lawyers 
 to their old established forms, in preference even to the truth of 
 facts, occurs in the manner of executing the very act mentioned in 
 this chapter, passed in the reign of George I. for preventing 
 personal arrest for debts under forty shillings.9 3 If the defendant, 
 after being personally served with a copy of the process, does not 
 
 See note 75, page 103. EDITOR.
 
 120 THE CONSTITUTION 
 
 CHAPTER XL 
 
 The Subject continued. The Courts of Equity. 
 
 HOWEVER, there are limits to these fictions and 
 subtilties ; and the remedies of the law cannot by 
 their means be extended to all cases that may arise, 
 unless too many absurdities are suffered to be ac- 
 cumulated ; nay, there have been instances in 
 which the improper application of writs, in the 
 courts of law, has been checked by authority. In 
 order therefore to remedy the inconveniences we 
 mention that is, in order to extend the adminis- 
 tration of distributive justice to all possible cases, 
 by freeing it from the professional difficulties that 
 have gradually grown up in its way a new kind of 
 courts has been instituted in England, called Courts 
 of Equity. 
 
 The generality of people, misled by the word 
 equity, have conceived false notions of the office of 
 these courts ; and it seems to be generally thought, 
 that the judges who sit in them are only to follow 
 the rules of natural equity j by which people seem 
 to understand, that, in a court of equity, the judge 
 may follow the dictates of his own private feelings, 
 and ground his decisions, as he thinks proper, on 
 the peculiar circumstances and situation of those 
 persons who make their appearance before him. 
 
 appear on the appointed days, the method is to suppose that he has 
 actually made his appearance, and the cause is proceeded upon 
 according to this supposition : fictitious names of bails are also, 
 resorted to.
 
 OF ENGLAND. 121 
 
 Nay, doctor Johnson (in his abridged dictionary) 
 gives the following definition of the power of the 
 Court of Chancery, considered as a court of equity ; 
 " The chancellor hath power to moderate and 
 " temper the written law, and subjecteth himself 
 " only to the law of nature and conscience :" for 
 which definition, dean Swift, and Cowell, who was 
 a lawyer, are quoted as authorities. Other in- 
 stances might be produced of lawyers who have been 
 inaccurate in their definitions of the true offices of 
 the judges of equity. And the above-named doc- 
 tor himself is on no subject a despicable authority. 
 
 Certainly the power of the judges of equity can- 
 not be to alter, by their own private power, the 
 written law, that is, acts of parliament, and thus to 
 controul the legislature. Their office only consists, 
 as will be proved in the sequel, in providing reme- 
 dies for those cases for which the public good re- 
 quires that remedies should be provided, and in 
 regard to which the courts of common law, shackled 
 by their original forms and institutions, cannot pro- 
 cure any : or, in other words, the courts of equity 
 have a power to administer justice to individuals, 
 unrestrained (not by the law, but) by the profes- 
 sional law difficulties which lawyers have from time 
 to time contrived in the courts of common law, and 
 to which the judges of those courts have given their 
 sanction. 94 
 
 An office of the kind here mentioned was soon 
 found necessary in Rome, for reasons of the same 
 nature with those above delineated. For it is re- 
 
 9* A proper distinction, but not, in former times, always observed, 
 which gave rise to the remark of Selden that " Equity is according 
 to the conscience of him that is chancellor." EDITOR.
 
 THE CONSTITUTION 
 
 markable enough, that the body of English lawyers, 
 by refusing admittance to the code of Roman laws, 
 as it existed in the later times of the empire, have 
 only subjected themselves to the same difficulties 
 under which the old Roman jurisconsults laboured, 
 during the time they were raising the structure of 
 those same laws. And it may also be observed, that 
 the English lawyers, or judges, have fallen upon 
 much the same expedients as those which the Roman 
 jurisconsults and praetors had adopted. 
 
 This office of a judge of equity, was, in time, 
 assumed by the praetor in Rome, in addition to the 
 judicial power he before possessed.* At the begin- 
 ning of the year for which he had been elected, the 
 praetor made a declaration of those remedies for new 
 difficult cases, which he had determined to afford 
 during the time of his magistracy ; in the choice of 
 which he was no doubt directed, either by his own 
 observations (while out of office) on the propriety 
 of such remedies, or by the suggestions of experi- 
 enced lawyers on the subject. This declaration 
 (edictwn) the praetor produced in albo, as the ex- 
 pression was. Modern civilians have made many 
 conjectures on the real meaning of the above words ; 
 one of their suppositions, which is as likely to be 
 true as any other, is, that the heads of new law 
 remedies devised by the praetor, were written on 
 a whitened wall 95 by the side of his tribunal. 
 
 * The praetor thus possessed two distinct branches of judicial 
 authority, in the same manner as the Court of Exchequer does in 
 England, which occasionally sits as a court of common law, and a 
 court of equity. 
 
 Or rather, on a white tablet. EDITOR.
 
 OF ENGLAND. 123 
 
 Among the provisions made by the Roman prae- 
 tors in their capacity of judges of equity, may be 
 mentioned those which they introduced in favour 
 of emancipated sons, and of relatives by the wo- 
 men's side (cognati), in regard to the right of in- 
 heriting. Emancipated sons were supposed, by the 
 laws of the Twelve Tables, to have ceased to be 
 the children of their father, and, as a consequence, 
 a legal claim was denied them on the paternal in- 
 heritance : of the relatives by the women's side no 
 notice was taken, in that article of the same laws 
 which treated of the right of succession, mention 
 being only made of relatives by the men's side 
 (ognati). The former the praetor admitted, by the 
 edict unde liberi, to share their father's (or grand- 
 father's) inheritance with their brothers ; and the 
 latter he put in possession of the patrimony of a 
 kinsman deceased, by means of the edict unde cog- 
 nati, when there were no relatives by the men's 
 side. These two kinds of inheritance were not, 
 however, called hcereditas^ but only bonorum pos- 
 sessio ; 96 these words being very accurately distin- 
 guished, though the effect was in the issue exactly 
 the same.* 
 
 * As the power of fathers, at Rome, was unbounded, and lasted 
 as long as their life, the emancipating of sons was a case that oc- 
 curred frequently enough, either for the security or satisfaction of 
 those who engaged in any undertaking with them. The power of 
 fathers had been earned so far by the laws of Romulus, confirmed 
 afterwards by those of the Twelve Tables, that they might sell their 
 sons for slaves as often as three times, if, after the first or second 
 sale, they happened to acquire their liberty : it was only after 
 
 9" Not an inheritance, but only a possession of goods. EDITOR.
 
 THE CONSTITUTION 
 
 In the same manner, the laws of the Twelve 
 Tables had provided relief only for cases of theft ; 
 and no mention was made, in them, of cases of goods 
 taken away by force (a deed which was not looked 
 upon in so odious a light at Rome as theft, which 
 was considered as the peculiar guilt of slaves). In 
 process of time the praetor promised relief to such 
 persons as might have their goods taken from them 
 by open force, and gave them an action for the re- 
 covery of four times the value, against those who 
 had committed the fact with an evil intention. Si 
 cui dolo malo bona rapta esse dicentur, ei in qua- 
 druplum JUDICIUM DABO. OT 
 
 Again, neither the laws of the Twelve Tables, 
 nor the laws made afterwards in the assemblies of 
 the people, had provided remedies except for very 
 few cases of fraud. Here the praetor likewise in- 
 terfered in his capacity of judge of equity, though 
 so very late as the time of Cicero ; and promised 
 relief to defrauded persons, in those cases in which 
 
 being sold for the third time, and then becoming again free, that 
 sons could be entirely released from the paternal authority. On 
 this law-doctrine was founded the peculiar formality of emancipating 
 sons. A pair of scales, and some copper coin, were first brought ; 
 without the presence of these ingredients, the whole business would 
 have been void ; and the father then made a formal sale of his son 
 to a person appointed to buy him, who was immediately to manu- 
 mit or free him; these sales and manumissions were repeated three 
 times. Five witnesses were to be present, besides a man to hold 
 the scales (libripens), and another (antestatus) occasionally to 
 remind the witnesses to be attentive to the business before them. 
 
 97 If it shall be shown that goods have been forcibly taken from 
 any one with an evil intention, I will grant him a trial at law, with 
 power to sue for fourfold damages. EDITOR.
 
 OF ENGLAND. \25 
 
 the laws in being- afforded no action. Quce dolo 
 malofacta esse dicentur, si de his rebus alia actio 
 non erit, et justa causa esse videbitur, JUDICIUM 
 DABO.* 98 By edicts of the same nature, praetors in 
 process of time gave relief in certain cases to mar- 
 ried women, and likewise to minors (minoribus xxv 
 annis succurrit prcetor, &c. ro ).t 
 
 * At the same time that the praetor proffered a new edict, he 
 also made public those peculiar formulae by which the execution 
 of the same was afterwards to be required from him. The name 
 of that praetor who first produced the edict above mentioned was 
 Aquilius, as we are informed by Cicero, in that elegant story well 
 known to scholars, in which he relates the kind of fraud that was 
 put upon Canius, a Roman knight, when he purchased a pleasure- 
 house and gardens, near Syracuse in Sicily. This account Cicero 
 concludes, with observing, that Canius was left without remedy, 
 " as Aquilius, his colleague and friend, had not yel published his 
 formulae concerning fraud." Quid enim faceret P nondum enim 
 Aquilius, collega et familiaris metis, protulerat de dolo malo for- 
 mulas. Off III. 14. 
 
 f The law collection, or system that was formed by the series of 
 edicts published at different times by praetors, was called jus prce- 
 torium, and also jus honorarium (not strictly binding). The 
 laws of the Twelve Tables, together with all such other laws as had 
 at any time been passed in the assembly of the people, were called, 
 by way of eminence, jus civile. The distinction was exactly of the 
 same nature as that which takes place in England between the 
 common and statute laws, and the law or practice of the courts of 
 equity. The two branches of the praetor's judicial office were very 
 accurately distinguished ; and there was, besides, tins capital diffe- 
 rence between the remedies or actions which he gave in his capacity 
 
 9 s Whatever shall be shown to have been done with an evil in- 
 tention, I will grant a trial at law to the party injured, provided 
 there be no other legal process applicable to such matters, and the 
 cause shall appear to be just EDITOR. 
 
 99 The praetor grants relief to minors under the age of twenty- 
 five years, &c. EDITOR.
 
 126 THE CONSTITUTION 
 
 The courts of equity established in England 
 have in like manner provided remedies for a very 
 great number of cases, or species of demand, for 
 which the courts of common law, cramped by their 
 forms and peculiar law tenets, can afford none. 
 Thus, the courts of equity may, in certain cases, 
 give actions for and against infants notwithstand- 
 ing their minority, and for and against married 
 women, notwithstanding their coverture. Mar- 
 ried women may even, in certain cases, sue their 
 husbands before a court of equity. Executors may 
 be made to pay interest for money that lies long in 
 their hands. Courts of equity may appoint com- 
 missioners to hear the evidence of absent witnesses. 
 When other proofs fail, they may impose an oath 
 on either of the parties ; or, in the like case of a 
 failure of proofs, they may compel a trader to 
 produce his books of trade. They may also con- 
 firm a title to land, though one has lost his writ- 
 ings, &c. 
 
 The power of the courts of equity in England, 
 of which the Court of Chancery is the principal 
 one, no doubt owes its origin to the power possessed 
 by the latter, both of creating and issuing writs. 
 When new complicated cases offered, for which a 
 new kind of writ was wanted, the judges of Chan- 
 cery, finding that it was necessary that justice 
 should be done, and at the same time being unwil- 
 ling to make general and perpetual provisions on 
 
 of judge of civil law, and those in his capacity of judge of equity, 
 that the former, being grounded on thejws civile, were perpetual, 
 and were called actiones civiles, or actiones perpetuce ; the latter 
 were obliged to be preferred within the year, and were accordingly 
 called actiones annucv or actiones preetorite.
 
 OF ENGLAND. 127 
 
 the cases before them by creating new writs, com- 
 manded the appearance of both parties, in order to 
 procure as complete information as possible in 
 regard to the circumstances attending the case ; 
 and then they gave a decree upon the same by way 
 of experiment. 
 
 To beginnings and circumstances like these, the 
 English courts of equity, it is not to be doubted, 
 owe their present existence. In our days, when 
 such strict notions are entertained concerning the 
 power of magistrates and judges, it can scarcely be 
 supposed that those courts, however useful, could 
 gain admittance. Nor indeed, even in the times 
 when they were instituted, were their proceedings 
 free from opposition ; and afterwards so late as the 
 reign of queen Elizabeth, it was adjudged, in the 
 case of Colleston and Gardner, that the killing a 
 sequestrator from the Court of Chancery, in the 
 discharge of his business, was no murder ; which 
 judgment could only be awarded on the ground 
 that the sequestrator's commission, and consequently 
 the power of his employers, were illegal.* How- 
 ever, the authority of the courts of equity has in 
 process of time become settled ; one of the con- 
 stituent branches of the legislature even receives at 
 present appeals from the decrees passed in those 
 courts ; and I have no doubt that several acts of 
 
 * When sir Edward Coke was lord chief justice of the King's 
 Bench, and lord Ellesmere lord chancellor, during the reign of 
 James I., a very serious quarrel also to.ok place between the courts 
 of law, and those of equity, which is mentioned in the fourth 
 chapter of the third hook of judge Blackstone's Commentaries: a 
 work in which more might reasonably have been said on the subject 
 of the courts of equity.
 
 128 THE CONSTITUTION 
 
 the whole legislature might be produced, in which 
 the office of the courts of equity is openly acknow- 
 ledged. 
 
 The kind of process that has in time been esta- 
 blished in the Court of Chancery is as follows. 
 After a petition is received by the court, the per- 
 son sued is served with a writ of subpoena, to com- 
 mand his appearance. If he does not appear, an 
 attachment is issued against him ; if a non-inventus 
 is returned, that is, if he is not to be found, a pro- 
 clamation goes forth against him ; then a com- 
 mission of rebellion is issued for apprehending him, 
 and bringing him to the Fleet prison. If the 
 person sued stands farther in contempt, a Serjeant 
 at arms is to be sent out to take him ; and, if he 
 cannot be taken, a sequestration of his land may be 
 obtained till he appears. Such is the power which 
 the Court of Chancery, as a court of equity, hath 
 gradually acquired to compel appearance before it. 
 In regard to the execution of the decrees it gives, 
 it seems that court has not been quite so successful; 
 at least, those law-writers whose works I have had 
 an opportunity of seeing, hold it as a maxim, that 
 the Court of Chancery cannot bind the estate, but 
 only the person ; and as a consequence, a person 
 who refuses to submit to its decree is only to be 
 confined in the Fleet prison.* 
 
 * The Court of Chancery was, very likely, the first instituted of 
 the two courts of equity : as it was the highest court in the 
 kingdom, it was best able to begin the establishment of an office or 
 power, which naturally gave rise at first to so many objections. 
 The Court of Exchequer, we may suppose, only followed the ex- 
 ample of the Court of Chancery : in order the better to .secure the
 
 OF ENGLAND. 
 
 On this occasion I shall observe, that the au- 
 thority of the lord chancellor in England, in his 
 capacity of a judge of equity, is much more nar- 
 rowly limited than that which the praetors in Rome 
 had been able to assume. The Roman praetors, 
 we are to remark, united in themselves the double 
 office of deciding cases according to the civil law 
 (jus civile), and to the praetorian law, or law of 
 equity ; nor did there exist any other courts be- 
 sides their own, that might serve as a check upon 
 them : hence it happened that their proceedings 
 in the career of equity were very arbitrary. In 
 the first place, they did not use to make it any very 
 strict rule to adhere to the tenor of their own 
 edicts, during the whole year which their office 
 lasted ; and they assumed a power of altering them 
 as they thought proper. To remedy so capital a 
 defect in the distribution of justice, a law was 
 passed so late as the year of Rome 687 (not long 
 before Tully's time) which was called Lex Cor- 
 nelia, from the name of C. Cornelius, a tribune 
 of the people, who propounded it under the con- 
 sulship of C. Piso and Man. Glabrio. By this 
 law it was enacted, that praetors should in future 
 constantly decree according to their own edicts, 
 without altering any thing in them during the 
 whole year of their praetorship. Some modern 
 civilians produce a certain senatus-consult to the 
 
 new power it assumed, it even found it necessary to bring out tlie 
 whole strength it could muster ; and both the treasurer and the 
 chancellor of the Exchequer sit (or are supposed to sit) in the 
 Court of Exchequer, wher. it is formed as a court of equity. 
 
 K
 
 130 THE CONSTITUTION 
 
 same effect, which, they say, had been passed a hun- 
 dred years before ; while others are of opinion that 
 the same is not genuine: however, supposing it to 
 be really so, the passing of the law we mention 
 shows that it had not been so well attended to as 
 it ougrht to have been. 
 
 o 
 
 Though the above-mentioned arbitrary proceed- 
 ings of praetors were thus repressed, they retained 
 another privilege, equally hurtful ; which was, 
 that every new praetor, on his coming into office, 
 had it in his power to retain only what part he 
 pleased of the edicts of his predecessors, and to re- 
 ject the remainder : from which it followed that the 
 praetorian laws or edicts, though they provided for 
 so great a number of important cases, were really 
 in force for only one year, the time of the duration 
 of a praetor's office. Nor was a regulation made 
 to remedy this capital defect in the Roman juris- 
 prudence before the time of the emperor Adrian, 
 which is another remarkable proof of the very 
 great slowness with which useful public regulations 
 take place in any nation. Under the reign of the 
 emperor we mention, the most useful edicts of 
 former praetors were by his order collected, or 
 rather compiled, into one general edict, which was 
 thenceforward to be observed by all civil judges in 
 their decisions, and was accordingly called the per- 
 petual edict (perpetuum edictum). This edict, 
 though now lost, soon grew into great repute ; all 
 the jurisconsults of those days vied with each other 
 in writing commentaries upon it j and the emperor 
 himself thought it so glorious an act of his reign, to
 
 OF ENGLAND. 131 
 
 have caused the same to be framed, that he con- 
 sidered himself on that account as being another 
 Numa.* 
 
 But the courts of equity in England, notwith- 
 standing the extensive jurisdiction they have been 
 able, in process of time, to assume, never super- 
 seded the other courts of law. These courts still 
 continue to exist in the same manner as formerly, 
 and have proved a lasting check on the innovations, 
 and in general the proceedings, of the courts of 
 equity. And here we may remark the singular, 
 and at the same time effectual, means of balancing 
 each other's influence, reciprocally possessed by the 
 courts of the two different species. By means of 
 its exclusive privilege both of creating and issuing 
 writs, the Court of Chancery has been able to hinder 
 the courts of common law from arrogating to them- 
 selves the cognisance of those new cases which 
 were not provided for by any law in being, and 
 thus dangerously uniting in themselves the power 
 
 * Several other more extensive law compilations were framed 
 after the perpetual edict we mention ; there having heen a kind of 
 emulation among the Roman emperors, in regard to the improve- 
 ment of the law. At last, under the reign of Justinian, that cele- 
 brated compilation was published, called the code of Justinian, 
 which, under different titles, comprises the Roman laws and the 
 edicts of the praetors, together with the rescripts of the emperors ; 
 and an equal sanction 'was given to the whole. This was an event 
 of much the same nature as that which will take place in England, 
 whenever a coalition shall be effected between the courts of common 
 law and those of equity, and both shall thenceforward be bound 
 alike to frame their judgments from the whole mass of decided cases 
 and precedents then existing, at least such of it as may be con- 
 sistently brought together into one compilation. 
 
 K 2
 
 THE CONSTITUTION 
 
 of judges of equity with that of judges of common 
 law. On the other hand, the courts of common 
 law are alone invested with the power of punish- 
 ing (or allowing damages for) those cases of violence 
 by which the proceedings of the courts of equity 
 might be opposed ; and thus they have been 
 enabled to obstruct the enterprises of the latter, 
 and prevent their effecting in themselves the like 
 dangerous union of the two offices of judges of 
 common law and of equity. 
 
 From the situation of the English courts of 
 equity, with respect to the courts of common law, 
 those courts have really been kept within limits 
 that may be said to be exactly defined, if the nature 
 of their functions be considered. In the first place, 
 they can neither touch acts of parliament, nor the 
 established practice of the other courts, much less 
 reverse the judgments already passed in these latter, 
 as the Roman praetors sometimes used to do in 
 regard to the decisions of their predecessors in of- 
 fice, and sometimes also in regard to their own. 
 The courts of equity are even restrained from 
 taking cognisance of any case for which the other 
 courts can possibly afford remedies. Nay, so 
 strenuously have the courts of common law defended 
 the verge of their frontier, that they have prevented 
 the courts of equity from using in their proceedings 
 the mode of trial by a jury ; so that, when, in a 
 case of which the Court of Chancery has already 
 begun to take cognisance, the parties happen to 
 join issue on any particular fact (the truth or false- 
 hood of which a jury is to determine), the Court of 
 Chancery is obliged to deliver up the cause to the
 
 OF ENGLAND. 133 
 
 Court of King's Bench, there to be finally decided. 
 In fine, the example of the regularity of the pro- 
 ceedings, practised in the courts of common law, 
 has been communicated to the courts of equity; and 
 rolls or records are carefully kept of the pleadings, 
 determinations, and acts of these courts, to serve as 
 rules for future decisions.* 
 
 So far, therefore, from having it in his power 
 " to temper and moderate" (that is, to alter) the 
 written law or statutes, a judge of equity, we find, 
 cannot alter the unwritten law, that is to say, the 
 established practice of the other courts, and the 
 judgments grounded thereupon ; nor can he even 
 meddle with those cases for which either the writ- 
 ten or unwritten law has already made general 
 provisions, and of which there is a possibility for 
 the ordinary courts of law to take cognisance. 
 
 From all the above observations it follows, that, 
 
 * The master of ihe rolls is the keeper of these records, as the 
 title of the office expresses. His employment in the Court of 
 Chancery is of great importance, as he can hear and determine 
 causes in the absence of the lord chancellor. 10 
 
 100 There is now another judge in equity, who has also this 
 power. By 53 Geo. III. cap. 24, ( A.D. 1813.) intituled, " An act 
 to facilitate the administration of justice," his majesty was em- 
 powered to appoint an additional judge assistant to the lord high 
 chancellor in the discharge of the judicial functions of bis office, to 
 be called vice-chancellor of England, and to hold such office during 
 good behaviour ; and it was enacted, that all decrees, orders, and acts 
 of such vice-chancellor should have force and validity, and be ex- 
 ecuted, subject nevertheless in every case to be reveised, discharged, 
 or altered, by the lord chancellor; and that such vice-chancellor 
 should have rank and precedence next to the master of the rolls. 
 EDITOR.
 
 134 THE CONSTITUTION 
 
 of the courts of equity, as established in England, 
 the following- definition may be given, which is, 
 that they are a kind of inferior experimental legis- 
 lature, continually employed in finding out and 
 providing law remedies for those new species of 
 cases for which neither the courts of common law, 
 nor the legislature, have yet found it convenient or 
 practicable to establish any ; in doing which, they 
 are to forbear to interfere with such cases as they 
 find already in general provided for. A judge of 
 equity is also to adhere, in his decisions, to the 
 system of decrees formerly passed in his own court, 
 regular records of which are kept for that purpose. 
 
 From this latter circumstance it again follows, 
 that a judge of equity, by the very exercise he 
 makes of his power, is continually abridging the 
 arbitrary part of it ; as every new case he deter- 
 mines, every precedent he establishes, becomes a 
 land-mark or boundary which both he and his suc- 
 cessors in office are afterwards expected to regard. 101 
 
 Here it may be added as a conclusion, that ap- 
 peals from the decrees passed in the courts of equity 
 are carried to the house of peers ; which circum- 
 stance alone might suggest that a judge of equity 
 
 101 Hence," says Professor Millar, " law is constantly gaining 
 " ground upon equity. Every new and extraordinary interposition 
 " is, by length of time, converted into an old rule. A great part of 
 " what is now strict law, was formerly considered as equity ; and 
 " the equitable decisions of this age will unavoidably be ranked 
 " under the strict law of the next." This consequence must be 
 considered desirable ; fundamental principles of equity ought to be 
 as well understood as those of law. New cases will, nevertheless, 
 be of constant occurrence, requiring the decision of a court of equity. 
 EDITOR.
 
 OF ENGLAND. 135 
 
 is subjected to certain positive rules, besides those 
 " of nature and conscience only /" an appeal being 
 naturally grounded on a supposition that some 
 rules of that kind were neglected. 
 
 The above discussion on the English law has proved 
 much longer than I intended at first ; so much as 
 to have swelled, I find, into two additional chapters. 
 However, I confess I have been under the greater 
 temptation to treat at some length the subjects of 
 the courts of equity, as I have found the error 
 (which may be called a constitutional one) concern- 
 ing the arbitrary office of those courts, to be coun- 
 tenanced by the apparent authority of lawyers, and 
 of men of abilities, at the same time that I have not 
 seen in any book an attempt made professedly to 
 confute the same, or indeed to point out the 
 nature^and true office of the courts of equity. 
 
 CHAPTER XII. 
 
 Of Criminal Justice. 
 
 WE are now to treat of an article, which, though 
 it does not in England, and indeed should not in 
 any state, make part of the powers which are pro- 
 perly constitutional, that is, of the reciprocal rights 
 by means of which the powers that concur to form 
 the government constantly balance each other, yet 
 essentially interests the security of individuals, and,
 
 136 THE CONSTITUTION 
 
 in the issue, the constitution itself ; I mean to 
 speak of criminal justice. But, previous to an ex- 
 position of the laws of England on this head, it is 
 necessary to desire the reader's attention to certain 
 considerations. 
 
 When a nation intrusts the power of the state 
 to a certain number of persons, or to one, it is 
 with a view to two points : one, to repel more 
 effectually foreign attacks j the other, to maintain 
 domestic tranquillity. 
 
 To accomplish the former point, each individual 
 surrenders a share of his property, and sometimes, 
 to a certain degree, even of his liberty. But 
 though the power of those who are the heads of 
 the state may thereby be rendered very consider- 
 able, yet it cannot be said, that liberty is, after all, 
 in any high degree endangered; because, should 
 ever the executive power turn against the nation a 
 strength which ought to be employed solely for its 
 defence, this nation, if it were really free (by which 
 I mean, unrestrained by political prejudices), would 
 be at no loss for providing the means of its security. 
 
 In regard to the latter object, that is, the main- 
 tenance of domestic tranquillity, every individual 
 must, exclusive of new renunciations of his natural 
 liberty, moreover surrender (which is a matter of 
 far more dangerous consequence) a part of bis 
 personal security. 
 
 The legislative power being, from the nature of 
 human affairs, placed in the alternative, either of 
 exposing individuals to dangers which it is at the 
 same time able extremely to diminish, or of deli- 
 vering up the state to the boundless calamities of
 
 OF ENGLAND. 137 
 
 violence and anarchy, finds itself compelled to re- 
 duce all its members within reach of the arm of 
 the public power, and, by withdrawing- in such 
 cases the benefit of the social strength, to leave 
 them exposed, bare, and defenceless, to the exer- 
 tion of the comparatively immense power of the 
 executors of the laws. 
 
 Nor is this all ; for, instead of that powerful 
 re-action which the public authority ought in 
 the former case to experience, here it must find 
 none ; and the law is obliged to proscribe even 
 the attempt of resistance. It is therefore in re- 
 gulating so dangerous a power, and in guarding 
 lest it should deviate from the real end of its in- 
 stitution, that legislation ought to exert all its ef- 
 forts. 
 
 But here it is of great importance to observe, 
 that the more powers a nation has reserved to it- 
 self, and the more it limits the authority of the 
 executors of the laws, the more industriously ought 
 its precautions to be multiplied. 
 
 In a state where, from a series of events, the will 
 of the prince has at length attained to hold the 
 place of law, he spreads an universal oppression, 
 arbitrary and unresisted j even complaint is dumb : 
 and the individual, undistinguishable by him, finds 
 a kind of safety in his own insignificance. With 
 respect to the few who surround him, as they are 
 at the same time the instruments of his greatness, 
 they have nothing to dread but momentary caprices ; 
 a danger, against which, if there prevails a certain 
 general mildness of manners, they are in a great 
 measure secured.
 
 138 THE CONSTITUTION 
 
 But in a state where the ministers of the laws 
 meet with obstacles at every step, even their 
 strongest passions are continually put in motion ; 
 and that portion of public authority, deposited 
 with them as the instrument of national tranquil- 
 lity, easily becomes a most formidable weapon. 
 
 Let us begin with the most favourable suppo- 
 sition, and imagine a prince whose intentions are 
 in every case thoroughly upright ; let us even sup- 
 pose that he never lends an ear to the suggestions 
 of those whose interest it is to deceive him : ne- 
 vertheless, he will be subject to error ; and this 
 error, which, I will farther allow, solely proceeds 
 from his attachment to the public welfare, yet may 
 happen to prompt him to act as if his views were 
 directly opposite. 
 
 When opportunities shall offer (and many such 
 will occur) of procuring a public advantage by 
 overleaping restraints, confident in the uprightness 
 of his intentions, and being naturally not very 
 earnest to discover the distant evil consequences 
 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 strikes on 
 the laws themselves on which the safety of the na- 
 tion rests, and that those acts, so laudable when we 
 only consider the motive of them, make a breach 
 at which tyranny will one day enter. 
 
 Yet farther, he will not even understand the 
 complaints that will be made against him. To 
 insist upon them will appear to him to the last 
 degree injurious : pride, when perhaps he is least 
 aware of it, will enter the lists ; what he began
 
 OF ENGLAND. 139 
 
 with calmness, he will prosecute with warmth ; 
 and if the laws shall not have taken every possible 
 precaution, he may think he is acting- a very honest 
 part, while he treats, as enemies of the state, men 
 whose only crime will be that of being more saga- 
 cious than himself, or of being in a better situation 
 for judging of the results of measures. 
 
 But it were to exalt human nature extravagantly, 
 to think that this case of a prince, who never aims 
 at augmenting his power, may, in any shape, be ex- 
 pected frequently to occur. Experience evinces 
 that the happiest dispositions are not proof against 
 the allurements of power, which has no charms 
 but as it leads on to new advances ; authority 
 endures not the very idea of restraint ; nor does 
 it cease to struggle till it has beaten down every 
 boundary. 
 
 Openly to level every barrier, and at once to 
 assume the absolute master, as we said before, 
 would be a fruitless attempt. But it is here to be 
 remembered, that those powers of the people which 
 are reserved as a check upon the sovereign, can 
 only be effectual so far as they are brought into 
 action by private individuals. Sometimes a citizen, 
 by the force and perseverance of his complaints, 
 opens the eyes of the nation ; 102 at other times, son>e 
 member of the legislature proposes a law for the 
 removal of some public abuse : these, therefore, 
 
 102 Allusion is probably here made to tbe celebrated John 
 Wilkes, who, however far from being animated by a genuine spirit 
 of patriotism or purity of motive, was, nevertheless, the means of 
 removing many grievances and effecting great reforms. EDITOR.
 
 140 THE CONSTITUTION 
 
 will be the persons against whom the prince will 
 direct all his efforts.* 
 
 And he will the more assuredly do so, as, from 
 the error so usual among- men in power, he will 
 think that the opposition he meets with, however 
 general, wholly depends on the activity of one or 
 two leaders j and amidst the calculations he will 
 make, both of the supposed smallness of the ob- 
 stacle which offers to his view, and of the decisive 
 consequence of the single blow he thinks necessary 
 to strike, he will be urged on by the despair of 
 ambition on the point of being baffled, and by the 
 most violent of all hatreds, that which is preceded 
 by contempt. 
 
 In that case which I am still considering, of a 
 really free nation, the sovereign must be very care- 
 ful that military violence do not make the smallest 
 part of his plan : a breach of the social compact 
 like this, added to the horror of the expedient, 
 would infallibly endanger his whole authority. 
 But, on the other hand, if he be resolved to succeed, 
 he will, in defect of other resources, try the utmost 
 extent of the legal powers which the constitution 
 has intrusted with him ; and if the laws have not 
 in a manner provided for every possible case, he 
 will avail himself of the imperfect precautions 
 themselves that have been taken, as a cover to his 
 tyrannical proceedings ; he will pursue steadily his 
 particular object, while his professions breathe no- 
 
 * By the word prince, I mean those who, under whatever appel- 
 lation, and in whatever government it may be, are at the head of 
 public affairs.
 
 OF ENGLAND. 141 
 
 thing- but the general welfare, and destroy the 
 assertors of the laws, under the very shelter of the 
 forms contrived for their security.* 
 
 This is not all : independently of the immediate 
 mischief he may do, if the legislature interpose not 
 in time, the blows will reach the constitution itself; 
 and, the consternation becoming general among the 
 people, each individual will find himself enslaved, 
 in a state which yet may exhibit all the common 
 appearances of liberty. 
 
 Not only, therefore, the safety of the individual, 
 but that of the nation itself, requires the utmost 
 precautions in the establishment of that necessary 
 but formidable prerogative of dispensing punish- 
 ments. The first to be taken, even without which 
 it is impossible to avoid the dangers above suggested, 
 is, that it never be left at the disposal, nor, if it be 
 possible, exposed to the influence, of the man who 
 is the depository of the public power. 
 
 The next indispensable precaution is, that this 
 power shall not be vested in the legislative body ; 
 and this precaution, so necessary alike under every 
 mode of government, becomes doubly so, when 
 only a small part of the nation has a share in the 
 legislative power. 
 
 If the judicial authority were lodged in the 
 legislative part of the people, not only the great 
 inconvenience must ensue of its thus becoming 
 
 * If any person should charge me with calumniating human 
 nature (for it is her alone I am accusing here), I would desire him 
 to cast his eyes on the history of Louis XI. of a Richelieu, and, 
 above all, on that of England before the Revolution : he would see 
 the arts and activity of government increase, in proportion as it 
 gradually lost its means of oppression.
 
 THE CONSTITUTION 
 
 independent, but also that worst of evils, the sup- 
 position of the sole circumstance that can well 
 identify this part of the nation with the whole, 
 which is, a common subjection to the rules which 
 they themselves prescribe. The legislative body, 
 which could not, without ruin to itself, establish, 
 openly and by direct laws, distinctions in favour of 
 its members, would introduce them by its judg- 
 ments : and the people, in electing- representatives, 
 would give themselves masters. 
 
 The judicial power ought therefore absolutely to 
 reside in a subordinate and dependent body, de- 
 pendent, not in its particular acts, with regard to 
 which it ought to be a sanctuary, but in its rules 
 and in its forms, which the legislative authority 
 must prescribe. How is this body to be com- 
 posed ? In this respect farther precautions must 
 be taken. 
 
 In a state where the prince is absolute master, 
 numerous bodies of judges are most convenient, 
 inasmuch as they restrain, in a considerable de- 
 gree, that respect of persons which is one inevitable 
 attendant on that mode of government. Besides, 
 those bodies, whatever their outward privileges 
 may be, being at bottom in a state of great weak- 
 ness, have no other means of acquiring the respect 
 of the people than their integrity, and their con- 
 stancy in observing certain rules and forms : nay, 
 these circumstances, united, in some degree overawe 
 the sovereign himself, and discourage the thoughts 
 he might entertain of making them the tools of his 
 caprice.* 
 
 * The above observations are in a great measure meant to allude
 
 OF ENGLAND. 14-3 
 
 But in a strictly limited monarchy, that is, where 
 the prince is understood to be, and in fact is, subject 
 to the laws, numerous bodies of judicature would 
 be repugnant to the spirit of the constitution, 
 which requires that all powers in the state should 
 be as much confined as the end of their institution 
 can allow ; not to add, that, in the vicissitudes 
 incident to such a state, they might exert a very 
 dangerous influence. 
 
 Besides, that awe which is naturally inspired by 
 such bodies, and is so useful when it is necessary 
 to strengthen the feebleness of the laws, would 
 not only be superfluous in a state where the whole 
 power of the nation is on their side, but would 
 moreover have the mischievous tendency to intro- 
 duce another sort of fear than that which men 
 must be taught to entertain. Those mighty tri- 
 
 to the French parlemens, and particularly that of Paris, whicli 
 formed such a considerable body as to be once summoned as a fourth 
 order to the general estates of the kingdom. The weight of that 
 body, increased by the circumstance of the members holding their 
 places for life, was in general attended with the advantage of placing 
 them above being overawed by private individuals in the administra- 
 tion either of civil or criminal justice; it even rendered them so 
 difficult to be managed by the court, that the ministers were at 
 times obliged to appoint particular judges, or commissaries, to try 
 such men as they resolved to ruin. 
 
 These, however, were only local advantages, connected with the 
 nature of the French government, which was an uncontrolled 
 monarchy, with considerable remains of aristocracy. Bui, in a free 
 state, such a powerful body of men, invested with the power of 
 deciding on the life, honour, and property of the citizens, would 
 be productive of very dangerous political consequences ; and the 
 more so, if such judges had, as is the case all over the world 
 except here, the power of deciding upon the matter of law and the 
 matter of fact.
 
 144 THE CONSTITUTION 
 
 bunals, I am willing to suppose, would preserve, 
 in all situations of affairs, that integrity which 
 distinguishes them in states of a different constitu- 
 tion ; they would never inquire after the influence, 
 still less the political sentiments, of those whose 
 fate they were called to decide ; but these advan- 
 tages not being founded in the necessity of things, 
 and the power of such judges seeming to exempt 
 them from being so very virtuous, men would be 
 in danger of taking up the fatal opinion, that the 
 simple exact observance of the laws is not the 
 only task of prudence : the citizen called upon to 
 defend, in the sphere where fortune has placed him, 
 his own rights, and those of the nation itself, would 
 dread the consequence of even a lawful conduct, 
 and, though encouraged by the law, might desert 
 himself when he came to behold its ministers. 
 
 In the assembly of those who sit as his judges, 
 the citizen might possibly descry no enemies : but 
 neither would he see any man whom a similarity 
 of circumstances might engage to take a concern 
 in his fate : and their rank, especially when joined 
 with their numbers, would appear to him to lift 
 them above that which overawes injustice, where 
 the law has been unable to secure any other check, 
 I mean the reproaches of the public. 
 
 And these his fears would be considerably 
 heightened, if, by the admission of the jurisprudence, 
 received among certain nations, he beheld those 
 tribunals, already so formidable, wrap themselves 
 up in a mystery, and be made, as it were, inac- 
 cessible.* 
 
 * An allusion is made here to the secrecy with which the pro-
 
 OF ENGLAND. 
 
 He could not think, without dismay, of those 
 vast prisons within which he is one day perhaps to be 
 immured of those proceedings, unknown to him, 
 through which he is to pass of that total seclusion 
 from the society of other men or of those long 
 
 ceediugs, in the administration of criminal justice, are to be earned 
 on, according to the rules of the civil law, which in that respect are 
 adopted over all Europe. As soon as the prisoner is committed, 
 he is debarred of the sight of every body, till he has gone through 
 his several examinations. One or two judges are appointed to ex- 
 amine him, with a clerk to take his answers in writing : and he 
 stands alone before them in some private room in the prison. The 
 witnesses are to be examined apart, and he is not admitted to see 
 them till their evidence is closed ; they are then confronted toge- 
 ther before all the judges, to the end that the witnesses may see if 
 the prisoner is really the man they meant in giving their respective 
 evidences, and that the prisoner may object to such of them as he 
 shall think proper. This done, the depositions of those witnesses 
 who are adjudged upon trial to be exceptionable, are set aside : the 
 depositions of the others are to be laid before the judges, as well as 
 the answers of the prisoner, who has been previously called upon 
 to confirm or deny them in their presence ; and a copy of the 
 whole is delivered to him, that he may, with the assistance of a 
 counsel, which is now granted him, prepare for his justification. 
 The judges are, as has been said before, to decide both upon the mat- 
 ter of law and the matter of fact, as well as upon all incidents that may 
 arise during the course of the proceedings, such as admitting wit- 
 nesses to be heard in behalf of the prisoner, &c. 
 
 This mode of criminal judicature may be useful as to the bare 
 discovery of truth, a point which I do not propose to discuss here ; 
 but, at the same time, a prisoner is so completely delivered up into 
 the hands of the judges, who even can detain him almost at plea- 
 sure by multiplying or delaying his examinations, that, whenever it is 
 adopted, men are almost as much afraid of being accused, as of being 
 guilty, and especially grow very cautious how they interfere in public, 
 matters. We shall see presently how the trial by j'iry, peculiar to 
 the English nation, is admirably adapted to the nature of a free 
 state.
 
 146 THE CONSTITUTION 
 
 and secret examinations, in which, abandoned 
 wholly to himself, he will have nothing but a pas- 
 sive defence to oppose to the artfully varied ques- 
 tions of men, whose intentions he shall at least 
 mistrust ; and in which his spirits, broken down by 
 solitude, shall receive no support", either from the 
 counsels of his friends, or the looks of those who 
 may offer up vows for his deliverance. 
 
 The security of the individual, and the conscious- 
 ness of that security, being then equally essential to 
 the enjoyment of liberty, and necessary for the pre- 
 servation of it, these two points must never be left 
 out of sight, in the establishment of a judicial 
 power ; and I conceive that they necessarily lead 
 to the following maxims. 
 
 In the first place, I shall remind the reader of 
 what has been laid down above, that the judicial 
 authority ought never to reside in an independent 
 body ; still less in him who is already the trustee of 
 the executive power. 
 
 Secondly, the party accused ought to be provided 
 with all possible means of defence. Above all 
 things the whole proceedings ought to be public. 
 The courts, and their different forms, must be such 
 as to inspire respect, but never terror : and the 
 cases ought to be so accurately ascertained, the 
 limits so clearly marked, that neither the executive 
 power, nor the judges, may ever hope to transgress 
 them with impunity. 
 
 In fine, since we must absolutely pay a price for 
 the advantage of living in society, not only by re- 
 linquishing some share of our natural liberty (a 
 surrender which, in a wisely framed government,
 
 OF ENGLAND. 147 
 
 a wise man will make without reluctance), but 
 even also by resigning part of our personal secu- 
 rity, in a word, since all judicial power is an 
 evil, though a necessary one, no care should be 
 omitted to reduce as far as possible the dangers 
 of it. 
 
 As there is, however, a period at which the pru- 
 dence of man must stop, at which the safety of the 
 individual must be given up, and the law is to 
 resign him to the judgment of a few persons, that 
 is (to speak plainly), to a decision in some sense ar- 
 bitrary, it is necessary that the law should narrow 
 as far as possible this sphere of peril, and so order 
 matters, that when the subject shall happen to be 
 summoned to the decision of his fate by the fallible 
 conscience of a few of his fellow-creatures, he 
 may always find in them advocates, and never ad- 
 versaries, 
 
 CHAPTER XIII. 
 
 The Subject continued. 
 
 AFTER having offered to the reader, in the pre- 
 ceding chapter, such general considerations as I 
 thought necessary, in order to convey a more just 
 idea of the spirit of the criminal judicature in 
 England, and of the advantages peculiar to it, I 
 now proceed to exhibit the particulars. 
 
 When a person is charged with a crime, the 
 magistrate, who is called in England a justice of 
 the peacey issues a warrant to apprehend him ; but 
 
 L 2
 
 148 THE CONSTITUTION 
 
 this warrant can be no more than an order for 
 bringing the party before him : he must then hear 
 him, and take down in writing his answers, toge- 
 ther with the different informations. If it appears, 
 on this examination, either that the crime laid to 
 the charge of the person who is brought before the 
 justice was not committed, or that there is no just 
 ground to suspect him of it, he must be set abso- 
 lutely at liberty ; if the contrary results from 
 the examination, the party accused must give bail 
 for his appearance to answer to the charge, unless 
 in capital cases j for then he must, for safer cus- 
 tody, be really committed to prison, in order to 
 take his trial at the next sessions. 
 
 But this precaution, of requiring the examination 
 of an accused person, previous to his imprisonment, 
 is not the only care which the law has taken in his 
 behalf; it has further ordained, that the accu- 
 sation against him should be again discussed, before 
 he can be exposed to the danger of a trial. At 
 every session the sheriff appoints what is called 
 the grand jury. This assembly must be composed 
 of more than twelve men, and less than twenty- 
 four ; and is always formed out of the most consi- 
 derable persons in the county. Its function is to 
 examine the evidence that has been given in 
 support of every charge : if twelve of those persons 
 do not concur in the opinion that an accusation is 
 well grounded, the party is immediately discharged ; 
 if, on the contrary, twelve of the grand jury find the 
 proofs sufficient, the prisoner is said to be indicted, 
 and is detained in order to go through the remaining 
 process.
 
 OF ENGLAND. 149 
 
 On the day appointed for his trial, the prisoner 
 is brought to the bar of the court, where the 
 judge, after causing the bill of indictment to 
 be read in his presence, must ask him how he 
 would be tried ; to which the prisoner answers, 
 By God and my country ; by which he is under- 
 stood to claim to be tried by a jury, and to have 
 all the judicial means of defence to which the law 
 entitles him. The sheriff then appoints what is 
 called the petit jury : this must be composed of 
 twelve men chosen out of the county where the 
 crime was committed, and possessed of a landed 
 income of ten pounds a year ; 103 their declaration 
 
 103 This qualification has been greatly extended. By 6 Geo. 
 IV. cap. 50, (A.D. 1825,) intituled, " An act for consolidating and 
 amending the laws relative to jurors and juries," after reciting 
 that, " the laws relative to the qualifications and summoning of 
 "jurors, and the formation of juries in England and Wales, were 
 " very numerous and complicated, and it was expedient to consoli- 
 " date and simplify the same, and to increase the number of persons 
 " qualified to serve on juries, and to alter the mode of striking 
 " specjal juries, and in some other respects to amend the said laws ;" 
 it is enacted, that every man, except as therein excepted, between 
 the ages of twenty-one years and sixty years, residing in any county 
 in England, who should have in his own name, or in trust for him, 
 within the same county, 10 by the year, above reprizes, in lands 
 or tenements, whether of freehold, copyhold, or custom iry tenure, 
 or of ancient demesne, or in rents issuing out of any such lands or 
 tenements, or in such lands, tenements, and rents taken together, 
 in fee simple, fee tail, or for the life of himself or some other person, 
 or who should have within the same county 20 by the year, above 
 reprizes, in lands or tenements, held by lease or leases for the abso- 
 lute term of twenty -one years, or some longer term, or for any term 
 of years determinable on any life or lives, or who being a house- 
 holder, should be rated or assessed to the poor rate, or to the 
 inhabited house duty in the county of Middlesex, on a value of not
 
 150 THE CONSTITUTION 
 
 finally decides on the truth or falsehood of the ac- 
 cusation. 
 
 As the fate of the prisoner thus entirely depends 
 on the men who compose this jury, justice requires 
 that he should have a share in the choice of them ; 
 and this he has through the extensive right which 
 the law has granted him, of challenging, or ob- 
 jecting to, such of them as he may think excep- 
 tionable. 
 
 These challenges are of two kinds. One, which 
 is called the challenge to the array, has for its ob- 
 ject to have the whole pannel set aside ; it is pro- 
 posed by the prisoner when he thinks that the she- 
 riff who formed the pannel is not indifferent in the 
 cause ; for instance, if he thinks he has an interest 
 in the prosecution, that he is related to the prose- 
 cutor, or in general to the party who pretends to be 
 injured. 
 
 The other challenges are called, to the polls 
 (in capita) : they are exceptions proposed against 
 the jurors, severally, and are reduced to four heads 
 by sir Edward Coke. That which he calls propter 
 honoris respectum* may be proposed against a lord 
 
 less than 30, or iu any other county on a value of not less than 
 20, or who should occupy a house containing not less than fifteen 
 windows ; and every man (except as aforesaid) heing between the 
 aforesaid ages, residing in any county in Wales, and being there 
 qualified to the extent of three-fifths of any of the foregoing qualifi- 
 cations ; should be qualified and should be liable to serve on all 
 petty juries in the courts of record at Westminster, courts of assize, 
 &c., and on grand juries and petty juries in courts of sessions of 
 the peace, in the county, riding, or division in which he should re- 
 side. EDITOR. 
 
 104 From respect to his dignity. EDITOR.
 
 OF ENGLAND. 151 
 
 empannelled on a jury ; or he might challenge him- 
 self. That propter defectum 105 takes place when a 
 juror is legally incapable of serving that office, as, 
 if he is an alien ; if he has not an estate sufficient to 
 qualify him, &c. Thai propter delictum 106 has for its 
 object to set aside any juror convicted of such crime 
 or misdemeanor as renders him infamous, as felony, 
 perjury, &c. That propter offectum^ is proposed 
 against a juror who has an interest in the conviction 
 of the prisoner : one, for instance, who has an ac- 
 tion depending between him and the prisoner ; one 
 who is of kin to the prosecutor, or his counsel, at- 
 torney, or of the same society or corporation with 
 him, &c.* 
 
 In fine, in order to relieve even the imagination 
 of the prisoner, the law allows him, independently 
 of the several challenges above-mentioned, to chal- 
 lenge peremptorily, that is to say, without showing 
 any cause, twenty jurors successively.! 
 
 When at length the jury is formed, and they 
 
 * When a prisoner is an alien, one half of the jurors must also 
 be aliens; a jury thus formed is called a jury de medietate 
 lingua. 108 
 
 f When these several challenges reduce too much the number of 
 the jurors on the pannel, which is forty-eight, new ones are named 
 on a writ of the judge, who are named the tales, from those words 
 of the writ, decent or octo tales. 1 * 
 
 105 Because of incapacity. EDITOR. 
 
 1 06 Because of delinquency. EDITOR. 
 
 10 7 Because of interest. EDITOR. 
 
 i8 Of mixed language (being half natives and half foreigners). 
 EDITOR. 
 
 i9 Ten or eight such like. EDITOR.
 
 152 THE CONSTITUTION 
 
 have taken their oath, the indictment is opened, and 
 the prosecutor produces the proofs of his accusation. 
 But, unlike to the rules of the civil law, the wit- 
 nesses deliver their evidence in the presence of the 
 prisoner : the latter may put questions to them ; 
 he may also produce witnesses in his behalf, and 
 have them examined upon oath. Lastly, he is al- 
 lowed to have a counsel to assist him, not only in 
 the discussion of any point of law which may be 
 complicated with the fact, but also in the investiga- 
 tion of the fact itself, and who points out to him 
 the questions he ought to ask, or even asks them for 
 him.* 
 
 Such are the precautions which the law has de- 
 vised for cases of common prosecutions; but in 
 those for high treason, and for misprision of treason, 
 that is to say, for a conspiracy against the life of the 
 king, or against the state, and for a concealment of 
 it,| accusations which suppose a heat of party 
 and powerful accusers, the law has provided for 
 the accused party farther safeguards. 
 
 First, no person can be questioned for any trea- 
 son, except a direct attempt on the life of the king, 
 after three years elapsed since the offence. 2. The 
 accused party may, independently of his other legal 
 grounds of challenging peremptorily, challenge 
 thirty-five jurors. 3. He may have two counsel to 
 assist him through the whole course of the proceed- 
 
 * This last article, however, is not established by law, except in 
 cases of treason ; it is done only through custom and the indulgence 
 of the judges. 
 
 f The penalty of a misprision of treason is the forfeiture of all 
 goods, and imprisonment for life.
 
 OF ENGLAND. 153 
 
 ings. 4. That his witnesses may not be kept away, 
 the judges must grant him the same compulsive 
 process to bring them in, which they issue to com- 
 pel the evidences against him. 5. A copy of his 
 indictment must be delivered to him ten days at 
 least before the trial, in presence of two witnesses, 
 and at the expense of five shillings ; which copy 
 must contain all the facts laid to his charge, 
 the names, professions, and abodes, of the jurors 
 who are to be on the pannel, and of all the 
 witnesses who are intended to be produced against 
 him.* 
 
 When, either in cases of high treason, or of inferior 
 crimes, the prosecutor and the prisoner have closed 
 their evidence, and the witnesses have answered to 
 the respective questions both of the bench and of 
 jurors, one of the judges makes a speech, in which 
 he sums up the facts which have been advanced on 
 both sides. He points out to the jury what more 
 precisely constitutes the hinge of the question 
 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 decision. This done, the jury withdraw 
 into an adjoining room, where they must remain 
 without eating and drinking, and without fire, till 
 they have agreed unanimously among themselves, 
 unless the court give a permission to the con- 
 trary. Their declaration or verdict (veredictum) 
 must (unless they choose to give a special verdict) 
 
 * Stat. 7 Will. III. c. 3, and 7 Anne, c. 21. The latter was to 
 be iu force only after the death of the late Pretender.
 
 154 THE CONSTITUTION 
 
 pronounce expressly, either that the prisoner is 
 guilty, or that he is not guilty, of the fact laid to 
 his charge. Lastly, the fundamental maxim of this 
 mode of proceeding is, that the jury must be unani- 
 mous. 
 
 And as the main object of the institution, of the 
 trial by jury is to guard accused persons against all 
 decisions whatsoever from men invested with any 
 permanent official authority,* it is not only a set- 
 tled principle that the opinion which the judge de- 
 livers has no weight but such as the jury choose to 
 give it ; but their verdict must besides comprehend 
 the whole matter in trial, and decide as well upon 
 the fact, as upon the point of law that may arise 
 out of it : in other words, they must pronounce 
 both on the commission of a certain fact, and on 
 the reason which makes such fact to be contrary 
 to law. f 
 
 This is even so essential a point, that a bill of 
 
 * " Laws," as Junius says extremely well, " are intended, not 
 " to trust to what men will do, but, to guard against what they 
 " may do.'' 
 
 f Unless they choose to give a special verdict. " When the 
 " jury," says Coke, " doubt of the law, and intend to do that 
 " which is just, they find the special matter ; and the entry is, 
 " Et super tola materid peiunt discretionem jusficiorum." 110 Inst. 
 iv. These words of Coke, we may observe, confirm, beyond a 
 doubt, the power of the jury to determine on the whole matter in 
 trial ; a power which in all constitutional views is necessary ; and 
 the more so, since a prisoner cannot in England challenge the 
 judge, as he can under the civil law, and for the same causes as he 
 can a witness. 
 
 110 And on the whole matter they desire the opinion of the 
 judges. EDITOR.
 
 OF ENGLAND. 155 
 
 indictment must expressly be grounded upon those 
 two objects. Thus an indictment for treason must 
 charge, that the alleged facts were committed with 
 a treasonable intent (proditorie). An indictment 
 for murder must express that the fact has been 
 committed with malice prepense, or afore-thought. 
 An indictment for robbery must charge, that the 
 things were taken with an intention to rob (animo 
 furandi), Sec.* 
 
 Juries are even so uncontrollable in their ver- 
 dict, so apprehensive has the constitution been 
 
 * The principle that a jury is to decide both on the fact and the 
 criminality of it, is so well understood, that, if a verdict were so 
 framed as only to have for its object the bare existence of the fact 
 laid to the charge of the prisoner, no punishment could be awarded 
 by the judge in consequence of it. Thus, in the prosecution of 
 Woodfall, for printing Junius's Letter to the King (a supposed 
 libel) ; the jury brought in the following verdict, guilty of print- 
 ing and publishing only ; the consequence of which was the dis- 
 charge of the prisoner. 111 
 
 111 Some of the judges having shown an unwillingness to allow 
 to defendants the benefit of this principle, the statute 32 Geo. 3. 
 cap. 60, (A.D. 1792,) intituled, " au Act to remove doubts re- 
 specting the functions of juries in cases of libel," (known as Fox's 
 act), was passed, whereby, after reciting that doubts had arisen 
 whether on the trial of an indictment or information for the making 
 or publishing any libel, where an issue or issues are joined between 
 the king and the defendant or defendants, on the plea of not guilty 
 pleaded, it be competent to the jury iinpannelled to try the same 
 to give their verdict upon the whole matter in issue, it is enacted, 
 that on every such trial the jury may give a general verdict upon 
 the whole matter hi issue ; and should not be required, or directed, 
 by the court or judge, to find guilty merely on the proof of the 
 publication, and of the sense ascribed to the same in the record ; 
 with liberty to the court, however, to give its opinion and directions 
 to the jury on the matter in issue, as in other criminal cases. 
 EDITOR.
 
 156 THE CONSTITUTION 
 
 lest precautions to restrain them in the exercise of 
 their functions, however specious in the begin- 
 ning, might in the issue be converted to the very 
 destruction of the ends of that institution, that it 
 is a repeated principle that a juror, in delivering 
 his opinion, is to have no other rule than his opi- 
 nion itself, that is to say, no other rule than the 
 belief which results to his mind from the facts 
 alleged on both sides, from their probability, from 
 the credibility of the witnesses, and even from all 
 such circumstances as he may have a private know- 
 ledge of. Lord chief-justice Hale expresses him- 
 self on this subject, in the following terms : 
 
 " In this recess of the jury, they are to consider 
 " the evidence, to weigh the credibility of the wit- 
 " nesses, and the force and efficacy of their testi- 
 " monies ; wherein (as I have before said) they are 
 " not precisely bound by the rules of the civil law, 
 " viz. to have two witnesses to prove every fact, 
 *' unless it be in cases of treason, nor to reject one 
 " witness because he is single, or always to believe 
 " two witnesses, if the probability of the fact does 
 " upon other circumstances reasonably encounter 
 " them ; for the trial is not here simply by witnesses, 
 " but by jury : nay, it may so fall out, that a jury 
 " upon their own knowledge may know a thing 
 " to be false, that a witness swore to be true, or 
 " may know a witness to be incompetent or incre- 
 " dible, though nothing be objected against him 
 " and may give their verdict accordingly."* 
 
 * History of the Common Law of England, chap. 12, sect. 11. 
 The same principles and forms are observed in civil matters ; only 
 peremptory challenges are not allowed.
 
 OF ENGLAND. 157 
 
 If the verdict pronounces not guilty, the pri- 
 soner is set at liberty, and cannot, on any pretence, 
 be tried again for the same offence. If the verdict 
 declares him guilty, then, and not till then, the 
 judge enters upon his function as a judge, and pro- 
 nounces the punishment which the law appoints.* 
 But, even in this case, he is not to judge according 
 to his own discretion only ; he must strictly adhere 
 to the letter of the law ; no constructive extension 
 can be admitted ; and, however criminal a fact might 
 in itself be, it would pass unpunished if it were 
 found not to be positively comprehended in some one 
 of the cases provided for by the law. The evil 
 that may arise from the impunity of a crime, that 
 is, an evil which a new law may instantly stop, 
 has not by the English laws been considered as of 
 magnitude sufficient to be put in comparison with 
 the danger of breaking through a barrier on which 
 so materially depends the safety of the individual. f 
 
 * When the party accused is one of the lords temporal, he likewise 
 enjoys the universal privilege of being judged hy his peers; though 
 the trial then differs in several respects. In the first place, as to the 
 number of the jurors : all the peers are to perform the function of 
 such, and they must be summoned at least twenty days beforehand. 
 2. When the trial takes place during the session, it is said to be in 
 the high court of parliament ; and the peers officiate at once as 
 jurors and judges : when the parliament is not sitting, the trial is 
 said to be in the court of the high steward of England ; an office, 
 which is not usually in being, but is revived on those occasions ; 
 and the high steward performs the office of judge. 3. In either of 
 these cases, unanimity is not required : and the majority, which 
 must consist of twelve persons at least, is to decide. 
 
 f I shall here give an instance of the scruple with which the 
 English judges proceed upon occasions of this kind. Sir Henry 
 Ferrers having beeen arrested by virtue of a warrant, in which he
 
 158 THE CONSTITUTION 
 
 To all these precautions taken by the law for the 
 safety of the subject, one circumstance must be 
 added, which indeed would alone justify the par- 
 tiality of the English lawyers to their laws in*pre- 
 ference to the civil law ; I mean the absolute* re- 
 jection they have made of torture.* Without re- 
 peating here what has been said on the subject by 
 the admirable author of the treatise on Crimes and 
 Punishments, f I shall only observe, that the torture, 
 in itself so horrible an expedient, would, more 
 especially in a free state, be attended with the most 
 fatal consequences. It was absolutely necessary to 
 preclude, by rejecting it, all attempts to make the 
 pursuit of guilt an instrument of vengeance against 
 the innocent. Even the convicted criminal must 
 be spared, and a practice at all rates exploded, 
 which might so easily be made an instrument of 
 endless vexation and persecution^ 
 
 For the farther prevention of abuses, it is an in- 
 variable usage that the trial be public. The prisoner 
 neither makes his appearance, nor pleads, but in 
 
 was termed a knight, though he was a baronet, Nightingale, his 
 servant, took his part, and killed the officer; but it was decided, that, 
 as the warrant " was an ill warrant, the killing of an officer in exe- 
 " cuting that warrant could not be murder, because no good warrant : 
 " wherefore he was found not guilty of the murder and man- 
 " slaughter." See Croke's Rep. P. III. p, 371. 
 
 * Coke says (Inst. III. p. 35.), that when John Holland, duke 
 of Exeter, and William de la Pole, duke of Suffolk, renewed under 
 Henry VI. the attempts made to introduce the civil law, they ex- 
 hibited the torture as a beginning thereof. The instrument was 
 called the duke of Exeter's daughter. 
 
 j- Beccaria. 
 
 \ Judge Foster relates, from Whitelocke, that the bishop of 
 London having said to Felton, who had assassinated the duke of
 
 OF ENGLAND. 159 
 
 places where every body may have free entrance ; 
 and the witnesses when they give their evidence, 
 the judge when he delivers his opinion, the jury 
 when they give their verdict, are all under the 
 public eye. Lastly, the judge cannot change either 
 the place, or the kind of punishment ordered by the 
 law ; and a sheriff who should take away the life of 
 a man in a manner different from that which the 
 law prescribes, would be prosecuted as guilty 
 of murder.* 
 
 In a word, the constitution of England, being a 
 free constitution, demanded from that circumstance 
 alone (as I should already have but too often re- 
 peated, if so fundamental a truth could be too often 
 urged) extraordinary precautions to guard against 
 the dangers which unavoidably ] attend the power 
 of inflicting punishments ; and it is particularly 
 when considered in this light, that the trial by 
 jury proves an admirable institution. 
 
 By means of it, the judicial authority is not only 
 placed out of the hands of the man who is invested 
 with the executive authority it is even out of the 
 
 Buckingham, " If you will not confess, you must go to the rack; " 
 the man replied, " If it must be so, I know not whom I may accuse 
 " in the extremity of the torture ; bishop Laud, perhaps, or any 
 " lord at this board." 
 
 " Sound sense (adds Foster) in the mouth of an enthusiast and 
 " a ruffian." 
 
 Laud having proposed the rack, the matter was shortly debated 
 at the board, and it ended in a reference to the judges, who unani- 
 mously resolved that the rack could not be legally used. 
 
 * And if any other person but the sheriff, even the judge him- 
 self, were to cause death to be inflicted upon a man, though con- 
 victed, it would be deemed homicide. See Blackstone, book iv. 
 chap. 14.
 
 160 THE CONSTITUTION 
 
 hands of the judge himself. Not only the person 
 who is trusted with the public power cannot exert 
 it, till he has, as it were, received the permission to 
 that purpose, of those who are set apart to ad- 
 minister the laws ; but these latter are also re- 
 strained in a manner exactly alike, and cannot make 
 the law speak, but when, in their turn, they have 
 likewise received permission. 
 
 And those persons to whom the law has thus 
 exclusively delegated the prerogative of deciding 
 that a punishment is to be inflicted, those men 
 without whose declaration the executive and the 
 judicial powers are both thus bound down to in- 
 action, do not form among themselves a permanent 
 body, who may have had time to study how their 
 power can serve to promote their private views or 
 interest : they are men selected at once from among 
 the people, who perhaps never were before called 
 to the exercise of such a function, nor foresee that 
 they ever shall be called to it again. 
 
 As the extensive right of challenging effectually 
 baffles, on one hand, the secret practices of such as, 
 in the face of so many discouragements, might still 
 endeavour to make the judicial power subservient 
 to their own views, and on the other excludes all 
 personal resentments, the sole affection which re- 
 mains to influence the integrity of those who alone 
 are entitled to put the public power into action, 
 during the short period of their authority, is, that 
 their own fate as subjects is essentially connected 
 with that of the man whose doom they are going to 
 decide. 
 
 In fine, such is the happy nature of this institu-
 
 OF ENGLAND. 1()1 
 
 tion, that the judicial power, a power so formida- 
 ble in itself, which is to dispose, without finding 
 any resistance, of the property, honour, and life 
 of individuals, and which, whatever precautions 
 may be taken to restrain it, must in a great degree 
 remain arbitrary, may be said, in England, to exist, 
 to accomplish every intended purpose, and to 
 be in the hands of nobody.* 
 
 In all these observations on the advantages of 
 the English criminal law, I have only considered 
 it as connected with the constitution, which is a 
 free one ; and it is in this view alone that I have 
 compared it with the jurisprudence received in 
 other states. Yet, abstractedly from the weighty- 
 constitutional considerations which I have sug- 
 gested, I think there are still other interesting- 
 grounds of pre-eminence on the side of the laws of 
 England. 
 
 In the first place, they do not permit that a man 
 should be made to run the risque of a trial, but upon 
 the declaration of twelve persons at least (the grand 
 jury'). Whether he be in prison, or on his trial, 
 they never for an instant refuse free access to those 
 who have either advice or comfort to give him ; 
 they even allow him to summon all who may have 
 any thing to say in his favour. And lastly, what 
 is of very great importance, the witnesses against 
 him must deliver their testimony in his presence ; 
 
 * The consequence of this institution is, that no man in England 
 ever meets the man of whom he may say, " That man has a power 
 to decide on my death or life." If we could for a moment forget 
 the advantages of that institution, we ought at least to admire the 
 ingenuity of it. 
 
 M
 
 162 THE CONSTITUTION 
 
 he may cross-examine them, and, by one unexpected 
 question, confound a whole system of calumny : 
 indulgences these, all denied by the laws of other 
 countries. 
 
 Hence, though an accused person may be ex- 
 posed to have his fate decided by persons (the petty 
 /wn/) who possess not, perhaps, all that sagacity which 
 in some delicate cases it is particularly advantage- 
 ous to meet with in a judge, yet this inconvenience 
 is amply compensated by the extensive means of 
 defence with which the law, as we have seen, has 
 provided him. If a juryman does not possess that 
 expertness which is the result of long practice, yet 
 neither does he bring to judgment that hardness of 
 heart which is, more or less, also the consequence 
 of it : and bearing about him the principles (let me 
 say, the unimpaired instinct) of humanity, he trem- 
 bles while he exercises the awful office to which he 
 finds himself called, and in doubtful cases always 
 decides for mercy. 
 
 It is to be farther observed, that, in the usual 
 course of things, juries pay great regard to the 
 opinions delivered by the judges ; that, in those 
 cases where they are clear as to the fact, yet find 
 themselves perplexed with regard to the degree of 
 guilt connected with it, they leave it, as has been 
 said before, to be ascertained by the discretion of 
 the judge, by returning what is called a special 
 verdict ; that, whenever circumstances seem to 
 alleviate the guilt of a person, against whom 
 nevertheless the proof has been positive, they 
 temper their verdict by recommending him to the 
 mercy of the king (which seldom fails to produce
 
 OF ENGLAND. 163 
 
 at least a mitigation of the punishment) : that, 
 though a man once acquitted can never, under 
 any pretence whatsoever, be again brought into 
 peril for the same offence, yet a new trial would 
 be granted if he had been found guilty upon evi- 
 dence strongly suspected of being false. Lastly, 
 what distinguishes the laws of England from those 
 of other countries in a very honourable manner, 
 is, that as the torture is unknown to them, so 
 neither do they know any more grievous punish- 
 ment than the simple deprivation of life. 112 
 
 112 Our author does not make this statement with his usual accu- 
 racy ; one illustration will justify this comment. By 54 Geo. III. 
 cap. 146, (A. D. 1814,) intituled, "An act to alter the punishment 
 in certain cases of high treason," after reciting that in certain cases 
 of high treason, as the law then stood, the sentence or judgment 
 required by law to be pronounced or awarded against persons con- 
 victed or adjudged guilty of the said crime, in such cases, was, that 
 they should be drawn on a hurdle to the place of execution, and 
 there be hanged by the neck, but not until they were dead, but that 
 they should be taken down again, and that when they were yet alive 
 their bowels should be taken out and burnt before their faces, and 
 that afterwards their heads should be severed from their bodies, and 
 their bodies be divided into four quarters, and their heads and 
 quarters to be at the king's disposal ; and that it was expedient, in 
 the said cases of high treason, to alter the sentence or judgment then 
 required by law; it was enacted, that, in all cases of high treason 
 in which, as the law then stood, the sentence or judgment ordained 
 bv law was as aforesaid, the sentence or judgment to be pronounced 
 or awarded, from and after the passing of that act, against any per- 
 son convicted or adjudged guilty should be, that such person should 
 be drawn on a hurdle to the place of execution, and be there hanged 
 by the neck until such person were dead ; and that afterwards the 
 head should be severed from the body of such person, and the body, 
 divided into four quarters, should be disposed of as his majesty 
 and his successors should think fit, with power to the king to order 
 and direct that such person as aforesaid should not be drawn, but 
 
 M 2
 
 164 THE CONSTITUTION 
 
 All these circumstances have combined to intro- 
 duce such a mildness into the exercise of criminal 
 justice, that the trial by jury is that point of their 
 liberty to which the people of England are most 
 thoroughly and universally wedded ; and the only 
 complaint I have ever heard uttered against it, has 
 been by men who, more sensible of the necessity 
 of public order than alive to the feelings of hu- 
 manity, think that too many offenders escape with 
 impunity. 113 
 
 should be taken in such manner as in the wan-ant should be ex- 
 pressed, to the place of execution, and that such person should not 
 be there hanged by the neck, but that, instead thereof, the head 
 should be there severed from the body of such person whilst alive, 
 and how, and in what manner, the body, head and quarters, of such 
 person should be disposed of. The division of the body into four 
 parts is in practice usually dispensed with, but it might be well 
 to repeal an enactment too revolting to be put in execution. 
 EDITOR. 
 
 113 The complaint mentioned by our author is not the only one 
 which has been heard of late years, during which it has been too 
 much the fashion to call in question the wisdom, or utility, of exist- 
 ing institutions. It is not many years since a writer in the 
 Edinburgh Review spoke disparagingly of the trial by jury, and 
 thought we paid too dearly for its boasted advantages, " in the 
 " number of unjust verdicts which are given by ignorant, perverse, 
 " or corrupted juries ;" adding, that " this form of trial has been 
 " rendered subservient to arbitrary power, at several periods of our 
 " history." Now, without contending for, or against these asser- 
 tions, or that, in times of public excitement, it has been equally 
 subservient to popular opinion, and while it is admitted that this 
 institution, like every other which is human, occasionally exhibits 
 the defects incident to man and to all his works, we maintain that 
 the advantages so very far overbalance the inconveniences of the insti- 
 tution, that it must be regarded as the greatbulwark of our liberties, 
 and a national blessing we cannot too highly prize. The amend- 
 ments in the laws relative to jurors and juries, effected by the act
 
 OF ENGLAND. 
 
 CHAPTER XIV. 
 
 The Subject concluded. Laws relative to Im- 
 prisonment. 
 
 BUT what completes that sense of independence 
 which the laws of England procure to every in- 
 dividual (a sense which is the noblest advantage 
 attending liberty), is the greatness of their precau- 
 tions upon the delicate point of imprisonment. 
 
 In the first place, by allowing, in most cases, en- 
 largement upon bail, and by prescribing, on that 
 article, express rules for the judges to follow, they 
 have removed all pretexts, which circumstances 
 might afford, for depriving a man of his liberty. 
 
 But it is against the executive power that the 
 legislature has, above all, directed its efforts : nor 
 has it been but by slow degrees that it has been 
 successful in wresting from it a branch of power 
 which enabled it to deprive the people of their 
 leaders, as well as to intimidate those who might 
 be tempted to assume the function ; and which, 
 having thus all the efficacy of more odious means 
 without the dangers of them, was perhaps the most 
 formidable weapon with which it might attack 
 public liberty. 
 
 The methods originally pointed out by the laws 
 
 6 Geo. IV. cap. 50, of which aw abstract is given in note 103, 
 page 149, have removed many objections previously urged against 
 the system ; and must be ranked among the most important reforms 
 in jurisprudence of the present day. EDITOR.
 
 166 THE CONSTITUTION 
 
 of England for the enlargement of a person un- 
 justly imprisoned, were the writs of mainprize, de 
 odio et otfa, 114 and de komine repleg-iando. 113 Those 
 writs, which could not be denied, were an order 
 to the sheriff of the county in which a person was 
 confined, to inquire into the causes of his confine- 
 ment ; and, according to the circumstances of his 
 case, either to discharge him completely, or upon 
 bail. 
 
 But the most useful method, and which even, by 
 being most general and certain, has tacitly abolished 
 all the others, is the writ of Habeas Corpus, so 
 called, because it begins with the words Habeas 
 Corpus ad subjicienditm.^ This writ being a writ 
 of high prerogative, must issue from the Court of 
 King's Bench : its effects extend equally to every 
 county ; and the king by it requires, or is under- 
 stood to require, the person who holds one of his 
 subjects in custody, to carry him before the judge, 
 with the date of the confinement, and the cause of 
 ft, in order to discharge him, or continue to detain 
 him, according as the judge shall decree. 
 
 But this writ, which might be a resource in 
 cases of violent imprisonment effected by indi- 
 viduals, or granted at their request, was but a 
 feeble one, or rather was no resource at all against 
 the prerogative of the prince, especially under the 
 sway of the Tudors, and in the beginning of that 
 of the Stuarts. And even in the first years of 
 Charles the First, the judges of the King's Bench, 
 
 "* Of hatred and ffl wiD. EDITOR, 
 
 "* Of redemption of the man. EDITOR. 
 
 ij* You shall cause the body to be bfooght before. EDITOR.
 
 OF ENGLJLKD. . * 
 
 who, in consequence of the spirit of the times, and 
 of their holding their places durante bene plac*fo, m 
 were constantly deToted to the court, declared, 
 " that the j could not, upon a Habeas Corpus, 
 " either bail or deliver a prisoner, though committed 
 " without any cause assigned, in case he was com- 
 " mitted by the special command of the king-, or by 
 " the lords of the privy councfl.* 1 
 
 Those principles, and the mode of procedure 
 which resulted from them, drew the attention of 
 parliament ; and in the bill called the Petition of 
 Right, passed in the third year of the reign of 
 Charles the First, it was enacted, that no person 
 should be kept in custody, in consequence of such 
 imprisonments. 
 
 Bat the judges knew how to evade the intention 
 of this act : they indeed did not refuse to discharge 
 a man imprisoned without a cause 9 but they used 
 so much delay in the examination of the causes, 
 that they obtained the full effect of an open denial 
 of justice. 
 
 The legislature again interposed, and in the act 
 passed in the sixteenth year of the reign of Charles 
 the First, the same in which the Star-chamber was 
 suppressed, it was enacted, that " if any person be 
 *' committed by the king himself in person, or by 
 his privy council, or by any of the members 
 " thereof, he shall have granted unto him, without 
 " delay upon any pretence whatsoever, a writ of 
 " Habeas Corpus ; and that the judge shall there- 
 " upon, within three court-days after the return is 
 
 See WMC 39, p*pe <fl9. EDITOK.
 
 168 THE CONSTITUTION 
 
 c< made, examine and determine the legality of such 
 " imprisonment." 
 
 This act seemed to preclude every possibility of 
 future evasion : yet it was evaded still ; and, by 
 the connivance of the judges, the person who de- 
 tained the prisoner could, without danger, wait for 
 a second, and a third writ, called an alias and a 
 pluries, before be produced him. 
 
 All these different artifices gave at length birth to 
 the famous act of Habeas Corpus (passed in the 
 thirty-first year of the reign of Charles the Second), 
 which is considered in England as a second Great 
 Charter, and has extinguished all the resources of 
 oppression.* 
 
 The principal articles of this act are, 
 
 1 . To fix the different terms allowed for bringing 
 a prisoner : those terms are proportioned to the 
 distance ; and none can in any case exceed twenty 
 days. 
 
 2. That the officer and keeper neglecting to 
 make due returns, or not delivering to the pri- 
 soner, or his agent, within six hours after demand, 
 a copy of the warrant of commitment, or shifting 
 the custody of the prisoner from one to another, 
 without sufficient reason or authority (specified in 
 the act) ; shall for the first offence forfeit one hun- 
 dred pounds, and for the second two hundred, to 
 the party aggrieved, and be disabled to hold his 
 office. 
 
 * The real title of this act is, An Act for better securing the 
 Liberty of the Subject, and for Prevention of Imprisonment 
 beyond the Seas.
 
 OF ENGLAND. 169 
 
 3. No person, once delivered by Habeas Corpus, 
 shall be committed for the same offence, on penalty 
 of five hundred pounds. 
 
 4. Every person committed for treason or felony, 
 shall, if he require it, in the first week of the next 
 term, or the first day of the next session, be in- 
 dicted in that term or session, or else admitted to 
 bail, unless it should be proved upon oath, that 
 the king's witnesses cannot be produced at that 
 time : and if not indicted and tried in the second 
 term or session, he shall be discharged of his im- 
 prisonment for such imputed offence. 
 
 ,5. Any of the twelve judges, 118 or the lord-chan- 
 cellor, who shall deny a writ of Habeas Corpus, 
 on sight of the warrant, or on oath that the same is 
 refused, shall forfeit severally to the party aggrieved 
 five hundred pounds. 
 
 6. No inhabitant of England (except persons 
 contracting, or convicts praying to be transported) 
 shall be sent prisoner to Scotland, Ireland, Jersey, 
 Guernsey, or any place beyond the seas, within 
 or without the king's dominions, on pain, that 
 the party committing, his advisers, aiders, and as- 
 sistants, shall forfeit to the party aggrieved a sum 
 not less than five hundred pounds, to be recovered 
 with treble costs, shall be disabled to bear any office 
 of trust or profit shall incur the penalties of a 
 prcemunire,* and be incapable of the king's pardon. 
 
 * The statutes of prtPtnunire, thus called from the writ for their 
 execution, which begins with the words prcemunire (for pramoneri) 
 
 118 Now fifteen. See note 38, page 69. EDITOR.
 
 170 THE CONSTITUTION 
 
 facias, 11 ^ were originally designed to oppose the usurpations of the 
 popes. The first was passed under the reign of Edward the First, 
 and was followed by several others, which, even before the Reforma- 
 tion, established such effectual provisions as to draw upon one of 
 them the epithet of execrabile statutum. lzo The offences against 
 which those statutes were framed were likewise distinguished by the 
 appellation of prfsmunire; and under that word were included all 
 attempts to increase the power of the pope at the expense of the 
 royal authority. The punishment decreed for such cases, was 
 also called a preemunire : it has since been extended to several 
 other kinds of offence, and amounts to imprisonment at the king's 
 pleasure, or for life, and forfeiture of all goods and rents of lands. 121 
 
 n 9 You shall cause to be forwarned. EDITOR. 
 
 120 The execrable statute. EDITOR. 
 
 121 This kind of prosecution is now obsolete. EDITOR.
 
 OF ENGLAND. 
 
 BOOK II. 
 
 A VIEW OF THE ADVANTAGES OF THE ENGLISH 
 GOVERNMENT, AND OF THE RIGHTS AND LIBER- 
 TIES OF THE PEOPLE ; AND A CONFIRMATION, BY 
 REFERENCE TO FACTS, OF THE PRINCIPLES STATED 
 IN THE WORK. 
 
 CHAPTER I. 
 
 Some Advantages peculiar to the English Consti- 
 tution. 1. The Unity of the Executive power. 
 
 WE have seen in former chapters the resources 
 allotted to the different parts of the English go- 
 vernment for balancing each other, and how their 
 reciprocal actions and re-actions produce the free- 
 dom of the constitution, which is no more than an 
 equilibrium between the ruling powers of the state. 
 I now propose to show that the particular nature 
 and functions of these same constituent parts of 
 the government, which give it so different an ap- 
 pearance from that of other free states, are more- 
 over attended with peculiar and very great advan- 
 tages, which have not hitherto been sufficiently 
 observed. 
 
 The first peculiarity of the English government, 
 as a free government, is its having a king, its 
 having thrown into one place the whole mass, if I 
 may use the expression, of the executive power,
 
 172 THE CONSTITUTION 
 
 and having invariably and for ever fixed it there. 
 By this very circumstance also has the depositum 
 of it been rendered sacred and inexpugnable ; by 
 making one great, very great man in the state, 
 has an effectual check been put to the pretensions 
 of those who otherwise would strive to become 
 such ; and disorders have been prevented, which, 
 in all republics, ever brought on the ruin of liberty, 
 and, before it was lost, obstructed the enjoyment 
 of it. 
 
 If we cast our eyes on all the states that ever 
 were free, we shall see that the people ever turning 
 their jealousy, as it was natural, against the execu- 
 tive power, but never thinking of the means of 
 limitingit, so happily prevalent in England,* never 
 
 * The rendering that power dependent on the people for its sup- 
 plies. 122 See on this subject chap. vi. book i. 
 
 122 Doubts have been expressed whether the power annually ex- 
 ercised by the house of commons of granting or withholding the 
 supplies requisite for the service of the year the exercise of which 
 in their refusal would " operate like the dissolution of civil society" 
 is really a safeguard of the constitution. We, however, are pre- 
 pared to maintain not only that it is a safeguard, but the most effica- 
 cious which the people possess, inasmuch as by means of it they 
 have the power, through their representatives, of enforcing on the 
 monarch a change of his responsible advisers or their measures, 
 which may be unpopular ; and, also, of protecting the sovereign 
 and the administration, if popular, against the rashness or obstinacy 
 of the upper house, in refusing to entertain measures sent up for 
 their consideration by the lower. The most solemn warning of 
 which the forms of the constitution admit for the refusal of supplies 
 is the commencement of a revolution no monarch, minister, or house 
 of lords, would be found so madly headstrong as to slight. During 
 the progress of the great measure of reform, fully treated of in a 
 note towards the end of the first part of chapter 17 of this book,
 
 OF ENGLAND. 173 
 
 employed any other expedients besides the obvious 
 one of trusting- that power to magistrates whom 
 they appointed annually ; which was in great mea- 
 sure the same as keeping the management of it to 
 themselves : whence it resulted, that the people, 
 who, whatever may be the fame of the govern- 
 ment, always possess, after all, the reality of 
 power, thus uniting in themselves with this reality 
 of power the actual exercise of it, in form as well 
 as in fact, constituted the whole state. In order 
 therefore legally to disturb the whole state, nothing 
 more was requisite than to put in motion a certain 
 number of individuals. 
 
 In a state which is small and poor, an arrange- 
 ment of this kind is not attended with any great 
 inconveniences, as every individual is taken up 
 with the care of providing for his subsistence, as 
 great objects of ambition are wanting, and as evils 
 cannot, in such a state, ever become much compli- 
 cated. In a state that strives for aggrandisement, 
 the difficulties and danger attending the pursuit of 
 such a plan inspire a general spirit of caution, and 
 every individual makes a sober use of his rights as 
 a citizen. 
 
 But when, at length, those exterior motives 
 cease, and the passions, and even the virtues, which 
 
 many petitions were presented to the house of commons by large 
 bodies of the people, praying the house to withhold the grant of any 
 supplies till the passing of that measure was secured; and, in point 
 of fact, the vote was kept back, as long as possible, in the sessions 
 during which the measure was in danger, in order that, if the ad- 
 ministration were defeated and driven from office, it might be in the 
 power of the house to grant or withhold the supplies proposed by 
 their successors. EDITOR.
 
 THE CONSTITUTION 
 
 they excited, are thus reduced to a state of inac- 
 tion, the people turn their eyes back towards the 
 interior of the republic ; and every individual, in 
 seeking then to concern himself in all affairs, seeks 
 for new objects that may restore him to that state 
 of exertion which habit, he finds, has rendered 
 necessary to him, and aims at the exercise of a share 
 of power which, small as it is, yet flatters his vanity. 
 
 As the preceding- events must have given an 
 influence to a certain number of citizens, they 
 avail themselves of the general disposition of the 
 people, to promote their private views : the legisla- 
 tive power is thenceforth continually in motion ; 
 and as it is badly informed and falsely directed, 
 almost every exertion of it is attended with some 
 injury to the laws, or the state. 
 
 This is not all ; as those who compose the general 
 assemblies cannot, in consequence of their numbers, 
 entertain any hopes of gratifying their private am- 
 bition, or, in general, their private passions, they 
 at least seek to gratify their political caprices, and 
 they accumulate the honours and dignities of the 
 state on some favourite whom the public voice 
 happens to raise at that time. 
 
 But, as in such a state there can be, from the 
 irregularity of the determinations of the people, 
 no such thing as a settled course of measures, it 
 happens that men never can exactly tell the present 
 state of public affairs. The power thus given 
 away has already become very great before those 
 for whom it was given so much as suspect it ; and 
 he himself who enjoys that power does not know 
 its full extent : but then, on the first opportunity
 
 OF ENGLAND. 
 
 that offers, he suddenly pierces through the cloud 
 which hid the summit from him, and at once seats 
 himself upon it. The people, on the other hand, 
 no sooner recover sight of him, than they see their 
 favourite now become their master, and discover 
 the evil, only to find that it is past remedy. 
 
 As this power, thus surreptitiously acquired, is 
 destitute of the support both of the law and of the 
 ancient course of things, and is even but indiffer- 
 ently respected by those who have subjected them- 
 selves to it, it cannot be maintained but by abusing 
 it. The people at length succeed in forming some- 
 where a centre of union ; they agree in the choice 
 of a leader : this leader in his turn rises ; in his 
 turn also he betrays his engagements ; power pro- 
 duces its wonted effects j and the protector becomes 
 a tyrant. 
 
 This is not all : the same causes which have 
 given one master to the state, give it two, give it 
 three. All those rival powers endeavour to swallow 
 up each other ; the state becomes a scene of end- 
 less quarrels and broils, and is in a continual con- 
 vulsion. 
 
 If amidst such disorders the people retained their 
 freedom, the evil must indeed be very great to 
 take away all the advantages of it ; but they are 
 slaves, and yet have not what in other countries 
 makes amends for political servitude ; I mean 
 tranquillity. 
 
 In order to prove all these things, if proofs 
 were deemed necessary, I would only refer the 
 reader to what every one knows of Pisistratus and 
 Megacles, of Marius and Sylla, of Caesar and
 
 176 THE CONSTITUTION 
 
 Pompey. However, I cannot avoid translating a 
 part of the speech which a citizen of Florence ad- 
 dressed once to the senate : the reader will find in 
 it a kind of abridged story of all republics ; at least 
 of those which, by the share allowed to the people 
 in the government, deserved that name, and which, 
 besides, attained a certain degree of extent and 
 power. 
 
 " That nothing human may be perpetual and 
 " stable, it is the will of Heaven that, in all states 
 " whatsoever, there should arise certain destruc- 
 " tive families, who are the bane and ruin of them. 
 " Of this our own republic affords as many and 
 " more deplorable examples than any other, as it 
 " owes its misfortunes not only to one, but to 
 " several such families. We had at first the 
 " Buondelmonti and the Huberti. We had after- 
 " wards the Donati and the Cerchi : and at present 
 " (shameful and ridiculous conduct !) we are 
 " waging war among ourselves for the Ricci and 
 " the Albizzi. 
 
 " When in former times the Ghibelins were 
 " suppressed, every one expected that the Guelfs, 
 " being then satisfied, would have chosen to live in 
 " tranquillity ; yet, but a little time had elapsed, 
 " when they again divided themselves into the 
 " factions of the whites and the blacks. When the 
 " whites were suppressed, new parties arose, and 
 " new troubles followed. Sometimes battles were 
 " faught in favour of the exiles ; and, at other 
 " times, quarrels broke out between the nobility 
 " and the people. And, as if resolved to give 
 " away to others what we ourselves neither could,
 
 OF ENGLAND. 177 
 
 " nor would, peaceably enjoy, we committed the 
 " care of our liberty sometimes to king- Robert, 
 " and at other times to his brother, and at length 
 " to the duke of Athens ; never settling- or resting 
 " in any kind of g-overnment, as not knowing either 
 " how to enjoy liberty or support servitude."* 
 
 The English constitution has prevented the pos- 
 sibility of misfortunes of this kind. By diminishing 
 the power, or rather actual exercise of the power, 
 of the people,t and making them share in the 
 legislature only by their representatives, the irre- 
 sistible violence has been avoided of those nume- 
 rous and general assemblies, which, on whatever 
 side they throw their weight, bear down every 
 thing. Besides, as the power of the people, when they 
 have any kind of power, and know how to use it, 
 is at all times really formidable, the constitution has 
 set a counterpoise to it ; and the royal authority is 
 this counterpoise. 
 
 In order to render it equal to such a task, the 
 constitution has, in the first place, conferred on the 
 king, as we have seen before, the exclusive prero. 
 gative of calling and dismissing the legislative 
 bodies, and of putting a negative on their resolu- 
 tions. 
 
 Secondly, it has also placed on the side of the king 
 the whole executive power in the nation. 
 
 Lastly, in order to effect still nearer an equili- 
 brium, the constitution has invested the man whom 
 
 * See the History of Florence, by Machiavel, lib. iii. 
 
 f We shall see in the sequel, that this diminution of the exercise 
 of the power of the people has been attended with a great increase 
 of their liberty. 
 
 N
 
 178 THE CONSTITUTION 
 
 it has made the sole head of the state, with all the 
 personal privileges, all the pomp, all the ma- 
 jesty, of which human dignities are capable. In 
 the language of the law, the king is sovereign lord, 
 and the people are his subjects; he is universal 
 proprietor of the kingdom ; he bestows all the 
 dignities and places ; and he is not to be addressed 
 but with the expressions and outward ceremony 
 of almost eastern humility. Besides, his person 
 is sacred and inviolable ; and any attempt what- 
 soever against it is, in the eye of the law, a crime 
 equal to that of an attack upon the whole state. 
 
 In a word, since, to have too exactly completed 
 the equilibrium between the power of the people 
 and that of the crown, would have been to sacri- 
 fice the end to the means, that is, to have en- 
 dangered liberty with a view to strengthen the 
 government, the deficiency which ought to remain 
 on the side of the crown, has at least been, in 
 appearance, made up, by conferring on the king all 
 that sort of strength that may result from the 
 opinion and reverence of the people ; and, amidst 
 the agitations which are the unavoidable attendants 
 of liberty, the royal power, like an anchor that 
 resists both by its weight and the depth of its hold, 
 ensures a salutary steadiness to the vessel of the 
 state. 
 
 The greatness of the prerogative of the king, by 
 thus procuring a great degree of stability to the 
 state in general, has much lessened the possibility of 
 the evils we have above described ; it has even, we 
 may say, totally prevented them, by rendering it
 
 OF ENGLAND. 179 
 
 impossible for any citizen to rise to any dangerous 
 greatness. 
 
 And to begin with an advantage by which the 
 people easily suffer themselves to be influenced, I 
 mean that of birth, it is impossible for it to produce 
 in England effects in any degree dangerous ; for 
 though there are lords who, besides their wealth, 
 may also boast of an illustrious descent, yet that ad- 
 vantage, being exposed to a continual comparison 
 with the splendour of the throne, dwindles almost 
 to nothing; and, in the gradation universally re- 
 ceived of dignities and titles, that of sovereign prince 
 and king places him who is invested with it out of 
 all degree of proportion. 
 
 The ceremonial of the court of England is even 
 formed upon that principle. Those persons who 
 are related to the king have the title of princes of 
 the blood, and, in that quality, an undisputed pre- 
 eminence over all other persons.* Nay, the first 
 men in the nation think it an honourable distinc- 
 tion to themselves, to hold the different menial of- 
 fices, or titles, in his household. If we therefore 
 were to set aside the extensive and real power of 
 the king, as well as the numerous means he pos- 
 sesses of gratifying the ambition and hopes of indi- 
 viduals, and were to consider only the majesty of 
 his title, and that kind of strength founded on 
 public opinion which results from it, we should find 
 that advantage so considerable, that to attempt to 
 enter into a competition with it, with the bare ad- 
 vantage of high birth, which itself has no other 
 
 * This, by stat. of the 31st of Hen. VIII. extends to the sons, 
 grandsons, brothers, uncles, and nephews, of the reigning king. 
 
 N 2
 
 180 THE CONSTITUTION 
 
 foundation than public opinion, and that too in a 
 very subordinate degree, would be an attempt com- 
 pletely extravagant. 
 
 If this difference is so great as to be thoroughly 
 submitted to, even by those persons whose situation 
 might incline them to disown it, much more does 
 it influence the minds of the people. And if, not- 
 withstanding the value which every Englishman 
 ought to set upon himself as a man, and a free 
 man, there were any whose eyes were so very ten- 
 der 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 majesty. 
 
 The only man, therefore, who, to persons unac- 
 quainted with the constitution of England, might 
 at first sight appear in a condition to put the go- 
 vernment in danger, would be one who, by the 
 greatness of his abilities and public services, might 
 have acquired in a high degree the love of the peo- 
 ple, and obtained a great influence in the house of 
 commons. 
 
 But how great soever this enthusiasm of the 
 public may be, barren applause is the only fruit 
 which the man whom they favour can expect from 
 it. He can hope neither for a dictatorship, nor a 
 consulship, nor in general for any power under the 
 shelter of which he may at once safely unmask that 
 ambition with which we might suppose him to be 
 actuated^ or, if we suppose him to have been hi- 
 therto free from any, grow insensibly corrupt. 
 The only door which the constitution leaves open 
 to his ambition, of whatever kind it may be, is a 
 place in the administration, during the pleasure of
 
 OF ENGLAND. 181 
 
 the king. If, by the continuance of his ser- 
 vices, and the preservation of his influence, he 
 becomes able to aim still higher, the only door 
 which again opens to him is that of the house of 
 lords. 
 
 But this advance of the favourite of the people 
 towards the establishment of his greatness is at the 
 same time a great step towards the loss of that 
 power which might render him formidable. 
 
 In the first place, the people seeing that he is be- 
 come much less dependent on their favour, begin, 
 from that very moment, to lessen their attachment 
 to him. Seeing him moreover distinguished by 
 privileges which are the objects of their jealousy, I 
 mean their political jealousy, and member of a body 
 whose interests are frequently opposite to theirs, 
 they immediately conclude that this great and new 
 dignity cannot have been acquired but through a 
 secret agreement to betray them. Their favourite, 
 thus suddenly transformed, is going, they make no 
 doubt, to adopt a conduct entirely opposite to that 
 which has till then been the cause of his advance- 
 ment and high reputation, and, in the compass of a 
 few hours, completely to renounce those principles 
 which he has so long and so loudly professed. In 
 this, certainly the people are mistaken ; but yet 
 neither would they be wrong, if they feared that a 
 zeal hitherto so warm, so constant, I will even add, 
 so sincere, when it concurred with their favourite's 
 private interest, would, by being thenceforth often 
 in opposition to it, become gradually much abated. 
 
 Nor is this all : the favourite of the people
 
 182 THE CONSTITUTION 
 
 does not even find in his new dignity all the in- 
 crease of greatness and eclat that might at first be 
 imagined. 
 
 Hitherto he was, it is true, only a private indi- 
 vidual ; but then he was the object in which the 
 whole nation interested themselves ; his actions 
 and words were set forth in the public prints ; and 
 he every where met with applause and acclamation. 
 
 All these tokens of public favour are, I know, 
 sometimes acquired very lightly : but they never 
 last long, whatever people may say, unless real 
 services are performed : now, the title of benefactor 
 to the nation, when deserved, and universally be- 
 stowed, is certainly a very handsome title, and 
 which does no-wise require the assistance of out- 
 ward pomp to set it off. Besides, though he was 
 only a member of the inferior body of the legisla- 
 ture, we must observe, he was the first ; and the 
 word first is always a word of very great moment. 
 
 But now that he is made a lord, all his great- 
 ness, which hitherto was indeterminate, becomes 
 defined. By granting him privileges established 
 and fixed by known laws, that uncertainty is 
 taken from his lustre which is of so much impor- 
 tance in those things which depend on imagina- 
 tion ; and his value is lowered, just because it is 
 ascertained. 
 
 Besides, he is a lord ; but then there are se- 
 veral men who possess but small abilities, and few 
 estimable qualifications, who also are lords ; his 
 lot is, nevertheless, to be seated among them ; 
 the law places him exactly on the same level
 
 OF ENGLAND. 183 
 
 with them ; and all that is real in his greatness is 
 thus lost in a crowd of dignities, hereditary and 
 conventional. 
 
 Nor are these the only losses which the favourite 
 of the people is to suffer. Independently of those 
 great changes which he descries at a distance, he 
 feels around him alterations no less visible, and still 
 more painful. 
 
 Seated formerly in the assembly of the represen- 
 tatives of the people, his talents and continual suc- 
 cess had soon raised him above the level of his 
 fellow-members ; and, being carried on by the vi- 
 vacity and warmth of the public favour, those who 
 might have been tempted to set up as his competi- 
 tors were reduced to silence, or even became his 
 supporters. 
 
 Admitted now into an assembly of persons in- 
 vested with a perpetual and hereditary title, he 
 finds men hitherto his superiors, men who see 
 with a jealous eye the shining talents of the homo 
 novus, 1 " 3 and who are firmly resolved, that after hav- 
 ing been the leading man in the house of commons, 
 he shall not be the first in theirs. 
 
 In a word, the success of the favourite of the 
 people was brilliant, and even formidable ; but the 
 constitution, in the very reward it prepares for 
 him, makes him find a kind of ostracism. His ad- 
 vances were sudden, and his course rapid ; he was, 
 if you please, like a torrent ready to bear down 
 every thing before it ; but this torrent is compelled, 
 by the general arrangement of things, finally to 
 
 ic3 >j ew man. EDITOR.
 
 184 THE CONSTITUTION 
 
 throw itself into a vast reservoir, where it mingles 
 and loses its force and direction. 124 
 
 I know it may be said, that, in order to avoid 
 the fatal step which is to deprive him of so many 
 advantages, the favourite of the people ought to 
 refuse the new dignity which is offered to him, and 
 wait for more important successes, from his elo- 
 quence in the house of commons, and his influence 
 over the people. 
 
 But those who give him this counsel have not 
 sufficiently examined it. Without doubt there are 
 men in England, who, in their present pursuit of a 
 project which they think essential to the public 
 good, would be capable of refusing for a while a 
 dignity which would deprive their virtue of oppor- 
 tunities of exerting itself, or might more or less 
 endanger it : but woe to him who should persist in 
 such a refusal, with any pernicious design ! and 
 who, in a government where liberty is established 
 on so solid and extensive a basis, should endeavour 
 to make the people believe that their fate depends 
 on the persevering virtue of a single citizen. His 
 
 124 The striking picture here presented to the reader of the pro- 
 gress of a popular statesman in England has been appropriately re- 
 ferred to Mr. Pulteney, who became earl of Bath ; William Pitt, 
 the first earl of Chatham ; and the second William Pitt, his son ; all 
 of them men of extraordinary talent, commanding influence, and 
 aspiring minds. The reader will probably be as forcibly reminded 
 of one, at least, of whom the time has not arrived for speaking .with 
 the impartiality of history. Happily, however, for this country, the 
 well-balanced frame of our constitution, the energy of the govern- 
 ment, and the loyalty of the people, will ever discountenance all 
 presumptuous views, and ideas of encroaching on the royal power, 
 or rising above the level of the laws. EDITOR.
 
 OF ENGLAND. 185 
 
 ambitious views being- at last discovered (nor could 
 it be long before they were so), his obstinate reso- 
 lution to move out of the ordinary course of things 
 would indicate aims, on his part, of such an extra- 
 ordinary nature, that all men whatever, who have 
 any regard for their country, would instantly rise 
 up from all parts to oppose him, and he must fall 
 overwhelmed with so much ridicule, 125 that it would 
 be better for him to fall from the Tarpeian rock.* 
 
 In fine, even though we were to suppose that 
 the new lord might, after his exaltation, have pre- 
 served all his interest with the people, or, what 
 would be no less difficult, that any lord whatever 
 could, by dint of his wealth and high birth, rival 
 the splendour of the crown itself, all these advan- 
 tages, how great soever we may suppose them, as 
 they would not of themselves be able to confer on 
 him the least executive authority, must for ever re- 
 main mere showy unsubstantial advantages. Find- 
 ing all the active powers of the state concentred in 
 that very seat of power which we suppose him 
 
 * The reader will, perhaps, object, that no man in England can 
 entertain such views as those I have suggested here : this is pre- 
 cisely what I intended to prove. The essential advantage of the 
 English government above all those that have been called free, and 
 which in many respects were but apparently so, is, that no person 
 in England can entertain so much as a thought of ever rising to 
 the level of the power charged with the execution of the laws. All 
 men in the state, whatever may be their rank, wealth, or influence, 
 are thoroughly convinced that they must, in reality as well as in 
 name, continue to be subjects ; and are thus compelled really to 
 love, defend, and promote, those laws which secure liberty to the 
 subject. 
 
 125 Or rather, execration. EDITOR.
 
 THE CONSTITUTION 
 
 inclined to attack, and there secured by formidable 
 provisions, his influence must always evaporate in 
 ineffectual words ; and after having- advanced him- 
 self, as we suppose, to the very foot of the throne, 
 finding no branch of independent power which he 
 might so far appropriate to himself, as at last to 
 give a reality to his political importance, he would 
 soon see it, however great it might have at first 
 appeared, decline and die away. 
 
 God forbid, however, that I should mean that 
 the people of England are so fatally tied down to 
 inaction, by the nature of their government, that 
 they cannot, in times of oppression, find means of 
 appointing a leader ! No ; I only meant to say that 
 the laws of England open no door to those accu- 
 mulations of power, which have been the ruin of so 
 many republics ; that they offer to the ambitious 
 no means of taking advantage of the inadvertence 
 or even the gratitude of the people, to make them- 
 selves their tyrants ; and that the public power, of 
 which the king has been made the exclusive depo- 
 sitory, must remain unshaken in his hands, so long 
 as things continue in the legal order ; which, it 
 may be observed, is a strong inducement to him 
 constantly to endeavour to maintain them in it. 
 
 * Several events, in the English history, put in a very strong 
 light this idea of the stahility which the power of the crown gives 
 to the state. 
 
 One is, the facility with which the great duke of Marlborough, 
 and his party at home, were removed from their employments. 
 Hannibal, in circumstances nearly similar, had continued the war 
 against the will of the senate of Carthage : Caesar had done the 
 same in Gaul : and when at last he was expressly required to 
 deliver up his commission, he marched his army to Rome, and
 
 OF ENGLAND. 187 
 
 CHAPTER II. 
 
 The Subject concluded. The Executive Power is 
 more easily confined when it is ONE. 
 
 ANOTHER great advantage, and which one would 
 not at first expect, in this unity of the public power 
 in England, in this union, and if I may so express 
 myself, in this coacervation, of all the branches of 
 the executive authority, is the greater facility it 
 affords of restraining it. 
 
 In those states where the execution of the laws 
 is intrusted to several hands, and to each with 
 different titles and prerogatives, such division, and 
 the changeableness of measures which must be the 
 
 established a military despotism. But the duke, though sur- 
 rounded, as well as the above-named generals, by a victorious army, 
 and by allies, in conjunction with whom he had earned on such a 
 successful war, did not even hesitate to surrender his commission. 
 He knew that all his soldiers were inflexibly prepossessed in favour 
 of that power against which he must have revolted : he knew that 
 the same prepossessions were deeply rooted in the minds of the 
 whole nation, and that every thing among them concurred to sup- 
 port the same power : he knew that the very nature of the claims 
 he must have set up would instantly have made all his officers and 
 captains turn themselves against him, and, in short, that, in an 
 enterprise of this nature, the arm of the sea he had to repass was 
 the smallest of the obstacles he would have to encounter. 
 
 The other event I shall mention here, is that of the revolution of 
 1689. If the long-established power of the crown had not before- 
 hand prevented the people from accustoming themselves to fix then- 
 eyes on some particular citizens, and in general had not prevented 
 all men in the state from attaining too considerable a degree of 
 power and greatness, the expulsion of James II. might have been 
 followed by events similar to those which took place at Rome after 
 the death of Caesar.
 
 188 THE CONSTITUTION 
 
 consequence of it, constantly hide the true cause of 
 the evils of the state : in the endless fluctuation of 
 things, no political principles have time to fix 
 among the people : and public misfortunes happen, 
 without ever leaving behind them any useful lesson. 
 
 At some times military tribunes, and at others 
 consuls, bear an absolute sway : sometimes patri- 
 cians usurp every thing, and at other times those 
 who are called nobles : * at one time the people are 
 oppressed by decemvirs, and at another by dictators. 
 
 Tyranny, in such states, does not always beat 
 down the fences that are set around it ; but it leaps 
 over them. When men think it confined to one 
 place, it starts up again in another; it mocks the 
 efforts of the people, not because it is invincible, 
 but because it is unknown ; seized by the arm of 
 a Hercules, it escapes with the changes of a Proteus. 
 
 But the indivisibility of the public power in Eng- 
 land has constantly kept the views and efforts of 
 the people directed to one and the same object j and 
 the permanence of that power has also given a per- 
 manence and a regularity to the precautions they 
 have taken to restrain it. 
 
 Constantly turned towards that ancient fortress, 
 the royal power, they have made it for seven cen- 
 turies the object of their fear ; with a watchful 
 jealousy they have considered all its parts; they 
 
 * The capacity of being admitted to all places of public trust 
 (at length gained by the plebeians) having rendered useless the old 
 distinction between them and the patricians, a coalition was then 
 effected between the great plebeians, or commoners, who got into 
 these places, and the ancient patricians. Hence a new class of 
 men arose, who were called nobiles and nobilitas. These are the 
 words by which Livy, after that period, constantly distinguishes 
 those men and families who were at the head of the slate.
 
 OF ENGLAND. 189 
 
 have observed all its outlets ; they have even 
 pierced the earth to explore its secret avenues and 
 subterraneous works. 
 
 United in their views by the greatness of the 
 danger, they regularly formed their attacks. They 
 established their works, first at a distance ; then 
 brought them successively nearer ; and, in short, 
 raised none but what served afterwards as a founda- 
 tion or defence to others. 
 
 After the Great Charter was established, forty 
 successive confirmations strengthened it. The act 
 called the Petition of Right, and that passed in 
 the sixteenth year of Charles the First, then fol- 
 lowed : some years after, the Habeas Corpus act 
 was established ; and the Bill of Rights at length 
 made its appearance. In fine, whatever the cir- 
 cumstances may have been, the people always had, 
 in their efforts, that inestimable advantage of know- 
 ing with certainty the general seat of the evils they 
 had to defend themselves against; and each cala- 
 mity, each particular eruption, by pointing out some 
 weak place, served to procure a new bulwark for 
 public liberty. 
 
 To conclude in a few words; the executive 
 power in England is formidable, but then it is for 
 ever the same ; its resources are vast, but their 
 nature is at length known ; it has been made the 
 indivisible and inalienable attribute of one person 
 alone, but then all other persons, of whatever rank 
 or degree, become really interested to restrain it 
 within its proper bounds.* 
 
 * This last advantage of the greatness and indivisibility of the 
 executive power, viz. the obligation it lays upon the greatest men
 
 190 THE CONSTITUTION 
 
 CHAPTER III. 
 
 A second Peculiarity. The Division of the Legis- 
 lative Power. 
 
 THE second peculiarity which England, as an in- 
 dividual state and a free state, exhibits in its con- 
 stitution, is the division of its legislature. That 
 the reader may be more sensible of the advantages 
 of this division, he is desired to attend to the fol- 
 lowing considerations. 
 
 It is, without doubt, absolutely necessary, for 
 securing the constitution of a state, to restrain the 
 executive power : but it is still more necessary to 
 restrain the legislative. What the former can only 
 do by successive steps (I mean subvert the laws), 
 and through a longer or shorter train of enterprises, 
 the latter can do in a moment. As its bare will 
 can give being to the laws, so its bare will can also 
 annihilate them ; and, if I may be permitted the 
 expression, the legislative power can change the 
 constitution, as God created the light. 
 
 In order, therefore, to ensure stability to the 
 constitution of a state, it is indispensably necessary 
 to restrain the legislative authority. But here we 
 must observe a difference between the legislative, 
 and the executive powers. The latter may be 
 confined, and even is the more easily so, when 
 
 in the state, sincerely to unite in a common cause with the people, 
 will be more amply discussed hereafter, when a more particular 
 comparison between the English government and the republican 
 form shall be offered to the reader.
 
 OF ENGLAND. 
 
 undivided : the legislature, on the contrary, in 
 order to its being restrained, should absolutely be 
 divided. For, whatever laws it may make to re- 
 strain itself, they never can be, relatively to it, any 
 thing more than simple resolutions : as those bars 
 which it might erect to stop its own motions must 
 then be within it, and rest upon it, they can be no 
 bars. In a word, the same kind of impossibility 
 is found, to fix the legislative power when it is one, 
 which Archimedes objected against his moving the 
 earth.* 
 
 Nor does such a division of the legislature only 
 render it possible for it to be restrained, since 
 each of those parts into which it is divided can then 
 serve as a bar to the motions of the others, but it 
 even makes it to be actually so restrained. If it 
 has been divided into only two parts, it is probable 
 that they will not in all cases unite, either for doing 
 or undoing : if it has been divided into three 
 parts, the chance that no changes will be made is 
 greatly increased. Nay more; as a kind of point 
 of honour will naturally take place between these 
 different parts of the legislature, they will therefore 
 be led to offer to each other only such propositions 
 as will at least be plausible ; and all very prejudi- 
 cial changes will thus be prevented, as it were, 
 before their birth. 
 
 If the legislative and executive powers differ so 
 greatly with regard to the necessity of their being 
 divided, in order to their being restrained, they 
 differ no less with regard to the other consequences 
 arising from such division. 
 
 * He wanted a spot whereupon to fix his instruments.
 
 19^ THE CONSTITUTION 
 
 The division of the executive power necessarily 
 introduces actual oppositions, even violent ones, 
 between the different parts into which it has been 
 divided ; and that part which in the issue succeeds 
 so far as to absorb, and unite in itself, all the others, 
 immediately sets itself above the laws. But those 
 oppositions which take place, and which the public 
 good requires should take place, between the dif- 
 ferent parts of the legislature, are never any thing- 
 more than oppositions between contrary opinions 
 and intentions; all is transacted in the regions of 
 the understanding ; and the only contention that 
 arises is wholly carried on with those inoffensive 
 weapons, assents and dissents, ayes and noes. 
 
 Besides, when one of these parts of the legis- 
 lature is so successful as to engage the others to 
 adopt its proposition, the result is, that a law takes 
 place which has in it a great probability of being 
 good : when it happens to be defeated, and sees its 
 propositions rejected, the worst that can result from 
 it is, that a law is not made at that time ; and the 
 loss which the state suffers thereby, reaches no 
 farther than the temporary setting aside of some 
 more or less useful speculation. 
 
 In a word, the result of a division of the execu- 
 tive power is either a more or less speedy establish- 
 ment of the right of the strongest, or a continued 
 state of war :* that of a division of the legislative 
 power, is either truth, or general tranquillity. 
 
 * Every one knows the frequent hostilities that took place be- 
 tween the Roman senate and the tribunes. In Sweden there have 
 been continual contentions betwen the king and the senate, in 
 which they have overpowered each other by turns. And in Eng-
 
 OF ENGLAND. 193 
 
 The following maxims will therefore be ad- 
 mitted. That the laws of a state may be perma- 
 nent, it is requisite that the legislative power should 
 be divided; that they may have weight, and 
 continue in force, it is necessary that the executive 
 power should be one. 
 
 If the reader should conceive any doubt as to 
 the truth of the above observations, let him cast 
 his eyes on the history of the proceedings of the 
 English legislature down to our times, and he will 
 readily find a proof of them. He would be sur- 
 prised to see how little variation there has been 
 in the political laws of this country, especially dur- 
 ing the last hundred years : 126 though, it is most im- 
 portant to observe, the legislature has been as it 
 were in a continual state of action, and (no dis- 
 passionate man will deny) has generally promoted 
 the public good. Nay, if we except the act passed 
 under William III., by which it had been enacted, 
 that parliaments should sit no longer than three 
 years, and which was repealed by a subsequent act, 
 under George I. which allowed them to sit for 
 seven years, we shall not find that any law, which 
 may really be called constitutional, and which has 
 been enacted since the Restoration, has been 
 changed afterwards. 
 
 Now, if we compare this steadiness of the English 
 
 land, when the executive power became double, by the king allow- 
 ing the parliament to have a perpetual and independent existence, 
 a civil war almost immediately followed. 
 
 26 It is now fifty years since our author wrote ; and his remarks 
 were equally applicable up to the time of the passing of the several 
 reform acts in 1832. EDITOR.
 
 194 THE CONSTITUTION 
 
 government with the continual subversions of the 
 constitutional laws of some ancient republics, with 
 the imprudence of some of the laws passed in 
 their assemblies,* and with the still greater inconsi- 
 derateness with which they sometimes repealed the 
 most salutary regulations, as it were, the day after 
 they had been enacted, if we call to mind the ex- 
 traordinary means to which the legislature of those 
 republics, at times sensible how its very power was 
 prejudicial to itself and to the state, was obliged to 
 have recourse, in order, if possible, to tie its own 
 hands,f we shall remain convinced of the great 
 advantages which attend the constitution of the 
 English legislature.^ 
 
 Nor is this division of the English legislature 
 accompanied (which is indeed a very fortunate cir- 
 cumstance) by any actual division of the nation ; 
 each constituent part of it possesses strength suf- 
 
 * The Athenians, among other laws, had enacted one to forbid 
 the application of a certain part of the puhlic revenues to any other 
 use than the expenses of the theatres and public shows. 
 
 f In some ancient republics, when the legislature wished to 
 render a certain law permanent, and at the same time mistrusted 
 their own future wisdom, they added a clause to it, which made it 
 death to propose the revocation of it. Those who afterwards 
 thought such revocation necessary to the public welfare, relying on 
 the mercy of the people, appeared in the public assembly with a 
 halter about their necks. 
 
 J We shall perhaps have occasion to observe hereafter, that the 
 true .cause of the equability of the operations cf the English legis- 
 lature is the opposition that happily takes place between the dif- 
 ferent views and interests of the several bodies that compose it ; a 
 consideration this, without which all political inquiries are no 
 more than airy speculations, and the only one that can lead to 
 useful practical conclusions.
 
 OF ENGLAND. 195 
 
 9 
 
 ficient to ensure respect to its resolutions ; yet no 
 real division has been made of the forces of the 
 state. Only a greater proportional share of all 
 those distinctions which are calculated to gain the 
 reverence of the people, has been allotted to those 
 parts of the legislature which could not possess 
 their confidence in so high a degree as the others ; 
 and the inequalities in point of real strength be- 
 tween them have been made up by the magic of 
 dignity. 
 
 Thus, the king, who alone forms one part of the 
 legislature, has on his side the majesty of the kingly 
 title : the two houses are, in appearance, no more 
 than councils entirely dependent on him ; they are 
 bound to follow his person ; they only meet, as it 
 seems, to advise him ; and never address him but 
 in the most solemn and respectful manner. 
 
 As the nobles, who form the second order of the 
 legislature, bear, in point both of real weight and 
 numbers, no proportion to the body of the people,* 
 they have received, as a compensation, the advan- 
 tage of personal honours, and of an hereditary title. 
 
 Besides, the established ceremonial gives to their 
 
 * It is for want of having duly considered this subject, that M. 
 Rousseau exclaims somewhere against those who, when they speak 
 of the general estates of France, " dare to call the people the 
 " third estate." At Rome, where all the order we mention was in- 
 verted, where the fasces were laid at the feet of the people, and 
 where the tribunes, whose function, like that of the king of England, 
 was to oppose the establishment of new laws, were only a subordi- 
 nate kind of magistracy, many disorders followed. In Sweden, 
 and in Scotland (before the union), faults of another kind prevailed : 
 in the former kingdom, for instance, an overgrown body of two thou- 
 sand nobles frequently overruled both king and people. 
 
 o 2
 
 196 THE CONSTITUTION 
 
 assembly a great pre-eminence over that of the re- 
 presentatives of the people. They are the upper 
 house, and the others are the lower house. They 
 are in a more special manner considered as the 
 king's council ; and it is in the place where they 
 assemble that his throne is placed. 
 
 When the king comes to the parliament, the 
 commons are sent for, and make their appearance at 
 the bar of the house of lords. It is moreover be- 
 fore the lords, as before their judges, that the com- 
 mons bring their impeachments. When, after 
 passing a bill in their own house, they send it to 
 the lords to desire their concurrence, they always 
 order a number of their own members to accom- 
 pany it :* whereas the lords send down their bills 
 to them, only by some of the assistants of their 
 house.f When the nature of the alterations which 
 one of the two houses may wish to make in a bill 
 sent to it by the other, renders a conference be- 
 tween them necessary, the deputies of the commons 
 to the committee, which is then formed of members 
 of both houses, are to remain uncovered. Lastly, 
 those bills which (in whichever of the two houses 
 they have originated) have been agreed to by both, 
 
 * The speaker of the house of lords must come down from the 
 woolpack to receive the bills which the members of the commons 
 bring to their house. 
 
 t The twelve judges 12 7 and the masters in chancery. There 
 is also a ceremonial established with regard to the manner and 
 marks of respect, with which those two of them, who are sent with 
 a bill to the commons, are to deliver it. 
 
 Now fifteen. See note 38, page 69. EDITOR.
 
 OF ENGLAND. 197 
 
 must be deposited in the house of lords, there to 
 remain till the royal pleasure is signified. 
 
 Besides, the lords are members of the legislature 
 by virtue of a right inherent in their persons ; and 
 they are supposed to sit in parliament on their 
 own account, and for the support of their own 
 interests. 128 In consequence of this they have the 
 privilege of giving their votes by proxy ;* and, 
 when any of them dissent from the resolutions of 
 their house, they may enter a protest against them, 
 containing the reasons of their particular opinion. 
 In a word, as this part of the legislature is destined 
 frequently to balance the power of the people, 
 what it could not receive in real strength it has re- 
 ceived in outward splendour and greatness ; so that, 
 when it cannot resist by its weight, it overawes by 
 its apparent magnitude. 
 
 In fine, as these various prerogatives, by which 
 the component parts of the legislature are thus made 
 to balance each other, are all intimately connected 
 with the fortune of the state, and flourish and 
 decay according to the vicissitudes of public pros- 
 perity or adversity, it thence follows, that, though 
 differences of opinion may sometimes take place 
 between those parts, there can scarcely arise any 
 when the general welfare is really in question. 
 And when, to resolve the doubts that may arise on 
 political speculations of this kind, we cast our eyes 
 
 * The commons have not that privilege, because they are them- 
 selves proxies for the people. See Coke's Inst. 4. p. 41. 
 
 128 This remark is applicable to the English peers, but not to 
 the representative peers of Scotland and Ireland. EDITOR.
 
 198 THE CONSTITUTION 
 
 on the debates of the two houses for a long suc- 
 cession of years, and see the nature of the laws 
 which have been proposed, of those which have 
 passed, and of those which have been rejected, as 
 well as of the arguments that have been urged on 
 both sides, we shall remain convinced of the good- 
 ness of the principles on which the English legisla- 
 ture is formed. 
 
 CHAPTER IV. 
 
 A third Advantage peculiar to the English Go- 
 vernment. The Business of proposing Laws, 
 lodged in the Hands of the People. 
 
 A THIRD circumstance, which I propose to show to 
 be peculiar to the English government, is the man- 
 ner in which the respective offices of the three 
 component parts of the legislature have been di- 
 vided, and allotted to each of them. 
 
 In most of the ancient free states, the share 
 of the people in the business of legislation was to 
 approve or reject the propositions which were made 
 to them, and to give the final sanction to the 
 laws. The function of those persons (or in general 
 those bodies), who were intrusted with the ex- 
 ecutive power, was to prepare and frame the laws, 
 and then to propose them to the people : and, 
 in a word, they possessed that branch of the le- 
 gislative power which may be called the initiative,
 
 OF ENGLAND. 199 
 
 that is, the prerogative of putting that power in 
 action.* 
 
 This initiative, or exclusive right of proposing in 
 legislative assemblies, attributed to the magistrates, 
 is indeed very useful, and perhaps even necessary, 
 in states of a republican form, for giving a perma- 
 nence to the laws, as well as for preventing the 
 disorders and struggles for power which have been 
 mentioned before ; but, upon examination, we shall 
 find that this expedient is attended with inconve- 
 niences of little less magnitude than the evils it is 
 meant to remedy. 
 
 These magistrates, or bodies, at first indeed ap- 
 ply frequently to the legislature for a grant of such 
 branches of power as they dare not of themselves 
 assume, or for the removal of such obstacles to their 
 
 * This power of previously considering and approving such laws 
 as were afterwards to be propounded to the people, was, in the first 
 times of the Roman republic, constantly exercised by the senate : 
 laws were made, populi jussu, ex auctoritate senatus. 1 ^ Even in 
 cases of elections, the previous approbation and auctoritas of the 
 senate, with regard to those persons who were offered to the 
 suffrages of the people, were required. Turn enim non gerebat is 
 magisfratum qui ceperat si patres auctores non erant facti. 130 
 Cic. pro Plancio, 3. 
 
 At Venice the senate also exercises powers of the same kind, with 
 regard to the grand council or assembly of the nobles. 131 In the 
 
 121) By command of the people, with the authority of the senate. 
 EDITOR. 
 
 130 jr or then even the man who had been elected to a magisterial 
 office did not administer it, unless sanctioned by the previous autho- 
 rity of the senate. EDITOR. 
 
 131 At the time our author wrote, Venice was an independent 
 republic ; it is now united to Austria. EDITOR.
 
 200 THE CONSTITUTION 
 
 growing authority as they do not yet think it safe 
 for them peremptorily to set aside. But when 
 their authority has at length gained a sufficient de- 
 gree of extent and stability, as farther manifesta- 
 tions of the will of the legislature could then only 
 create obstructions to the exercise of their power, 
 they begin to consider the legislature as an enemy 
 whom they must take great care never to rouse. 
 They consequently convene the assembly of the 
 people as seldom as they can. When they do it, 
 they carefully avoid proposing any thing favourable 
 to public liberty. They soon even entirely cease 
 to convene the assembly at all ; and the people, 
 after thus losing the power of legally asserting their 
 rights, are exposed to that which is the highest de- 
 gree of political ruin, the loss of even the remem- 
 brance of them, unless some direct means are 
 found, by which they may from time to time give 
 life to their dormant privileges j means which may 
 
 canton of Bern, all propositions must be discussed in the little 
 council, which is composed of twenty-seven members, before they 
 are laid before the council of the two hundred, in whom resides the 
 sovereignty of the whole canton. And, in Geneva, the law is, " that 
 " nothing shall be treated in the general council or assembly of the 
 " citizens, which has not been previously treated and approved in 
 " the council of the two hundred : and that nothing shall be treated 
 " in the two hundred which has not been previously treated and 
 " approved in the council of the twenty-jive. 13 " 
 
 132 Geneva has since lost her independence and ancient govern- 
 ment; for many years, to the time of the expulsion of Buonaparte 
 in 1814, it formed a department of France; on the 12th Septem- 
 ber in that year, it was admitted a member of the Swiss con- 
 federation. EDITOR.
 
 OF ENGLAND. 201 
 
 be found, and succeed pretty well in small states, 
 where provisions can more easily be made to 
 answer their intended ends ; but, in states of con- 
 siderable extent, have always been found, in the 
 event, to give rise to disorders of the same kind 
 with those which were at first intended to be pre- 
 vented. 
 
 But as the capital principle of the English con- 
 stitution totally differs from that which forms the 
 basis of republican governments, so it is capable of 
 procuring to the people advantages that are to be 
 found unattainable in the latter. It is the people 
 in England, or at least those who represent them, 
 who possess the initiative in legislation, that is to 
 say, who perform the office of framing laws and 
 proposing them. And among the many circum- 
 stances in the English government, which would 
 appear entirely new to the politicians of antiquity, 
 that of seeing the person intrusted with the execu- 
 tive power bear that share in legislation which they 
 looked upon as being necessarily the lot of the 
 people, and the people enjoy that which they 
 thought the indispensable office of its magistrates, 
 would not certainly be the least occasion of their 
 surprise. 
 
 I foresee that it will be objected, that, as the 
 king of England has the power of dissolving, and 
 even of not calling parliaments, he is hereby pos- 
 sessed of a prerogative, which, in fact, is the same 
 with that which I have just now. represented as 
 being so dangerous. 
 
 To this I answer, that all circumstances ought 
 to be combined. Doubtless, if the crown had
 
 202 
 
 been under no kind of dependence whatever on 
 the people, it would long- since have freed itself 
 from the obligation of calling their representatives 
 together ; and the British parliament, like the na- 
 tional assemblies of several other kingdoms, would 
 most likely have no existence now, except in his- 
 tory. 
 
 But, as we have above seen, the necessities of 
 the state, and the wants of the sovereign himself, 
 put him under a necessity of having frequent re- 
 course to his parliament ; and then the difference 
 may be seen between the prerogative of not calling 
 an assembly, when powerful causes nevertheless 
 render such a measure necessary, and the exclusive 
 right, when an assembly is convened, of proposing 
 laws to it. 
 
 In the latter case, though a prince, let us even 
 suppose, in order to save appearances, might conde- 
 scend to mention any thing besides his own wants, 
 it would be at most to propose the giving up of 
 some branch of his prerogative upon which he set 
 no value, or to reform such abuses as his inclination 
 does not lead him to imitate ; but he would be very 
 careful not to touch any points which might mate- 
 rially affect his authority. 
 
 Besides, as all his concessions would be made, or 
 appear to be made, of his own motion, and would 
 in some measure seem to spring from the activity 
 of his zeal for the public welfare, all that he might 
 offer, though in fact ever so inconsiderable, would 
 be represented by him as grants of the most impor- 
 tant nature, and for which he expects the highest 
 gratitude. Lastly, it would also be his province
 
 OF ENGLAND. 203 
 
 to make restrictions and exceptions to laws thus 
 proposed by himself; he would also be the person 
 who would choose the words to express them, and 
 it would not be reasonable to expect that he would 
 give himself any great trouble to avoid all am- 
 biguity.* 
 
 But the parliament of England is not, as we 
 said before, bound down to wait passively and in 
 silence for such laws as the executive power may 
 condescend to propose to them. At the opening 
 of every session, they of themselves take into their 
 hands the great book of the state ; they open all 
 the pages, and examine every article. 
 
 When they have discovered abuses, they proceed 
 to inquire into their causes : when these abuses 
 arise from an open disregard of the laws, they en- 
 deavour to strengthen them ; when they proceed 
 from their insufficiency, they remedy the evil by 
 additional provisions.^ 
 
 4 In the beginning of the existence of the house of commons, 
 bills were presented to the king under the form of petitions. Those 
 to which the king assented were registered among the rolls of par- 
 liament, with his answers to them ; and at the end of each parlia- 
 ment the judges formed them into statutes. Several abuses hav- 
 ing crept into that method of proceeding, it was ordained that the 
 judges should in future make the statute before the end of every 
 session. Lastly, as even that became, in process of time, insuffi- 
 cient, the present method of framing bills was established : that is 
 to say, both houses now frame the statutes in the very form and 
 words in which they are to stand when they have received the 
 royal assent. 
 
 -{ No popular assembly ever enjoyed the privilege of starting, 
 canvassing, and proposing new matter, to such a degree as the 
 English commons. In France, when their General Estates were 
 allowed to sit, their remonstrances were little regarded ; and still
 
 204 THE CONSTITUTION 
 
 Nor do they proceed with less regularity and 
 freedom, in regard to that important object, sub- 
 sidies. They are to be the sole judges of the 
 quantity of them, as well as of the ways and 
 means of raising them ; and they need not come 
 to any resolution with regard to them till they see 
 the safety of the subject completely provided for. 
 In a word, the making of laws is not, in such an 
 arrangement of things, a gratuitous contract, in 
 which the people are to take just what is given 
 them, and as it is given them : it is a contract, 
 in which they buy and pay, and in which they them- 
 
 less regard could the particular Estates of the provinces expect. 
 In Sweden, the power of proposing new subjects was lodged in an 
 assembly called the secret committee, composed of nobles, and a 
 few of the clergy ; and is now possessed by the king. In Scotland, 
 until the Union, all propositions to be laid before the parliament 
 were to be framed by the persons called the lords of the articles. 
 In regard to Ireland, 133 all bills must be prepared by the king in his 
 privy council, and are to be laid before the parliament by the lord- 
 lieutenant, for their assent or dissent : only they are allowed to 
 discuss, among them, what they call heads of a bill, which the 
 lord-lieutenant is desired afterwards to transmit to the king, who 
 selects out of them what clauses he thinks proper, or sets the whole 
 aside ; and is not expected to give, at any time, a precise answer to 
 them. And, in republican governments, magistrates are never at 
 rest till they have entirely secured to themselves the important 
 privilege of proposing : nor does this follow merely from their am- 
 bition ; it is also the consequence of the situation they are in, from 
 the principles of that mode of government. 
 
 133 Ireland, by an exertion of energy during the heat of 
 the American war, recovered her freedom from the dominion of 
 Great Britain, and became a separate state, though under the same 
 monarch. From that time until the union of the two kingdoms in 
 1801, her parliament was as free as that of Great Britain, and exer- 
 cised similar functions and powers. EDITOR.
 
 OF ENGLAND. 205 
 
 selves settle the different conditions, and furnish 
 the words to express them. 
 
 The English parliament have given a still greater 
 extent to their advantages on so important a sub- 
 ject. They have not only secured to themselves a 
 right of proposing laws and remedies, but they 
 have also prevailed on the executive power to re- 
 nounce all claim to do the same. It is even a 
 constant rule, that neither the king nor his privy 
 council can make any amendments in the bills 
 preferred by the two houses j but the king is merely 
 to accept or reject them ; a provision this, which, 
 if we pay a little attention to the subject, we shall 
 find to have been also necessary for completely se- 
 curing the freedom and regularity of the parlia- 
 mentary deliberations.* 
 
 I indeed confess, that it seems very natural, in 
 the modelling of a state, to intrust this very im- 
 portant office of framing laws to those persons who 
 may be supposed to have before acquired experi- 
 
 * The king, indeed, at times, sends messages to either house ; 
 and nobody, I think, can wish that no means of intercourse should 
 exist between him and his parliament. But these messages are 
 always expressed in very general words : they are only made to 
 desire the house to take certain subjects into their consideration : 
 no particular articles or clauses are expressed ; the commons are 
 not to declare, at any settled time, a solemn acceptance or rejection 
 of the proposition made by the king ; and, in short, the house 
 follow the same mode of proceeding, with respect to such mes- 
 sages, as they usually do in regard to petitions presented by private 
 individuals. Some member makes a motion upon the subject ex- 
 pressed in the king's message : a bill is framed in the usual way : 
 it may be dropped at every stage of it ; and it is never the pro- 
 posal of the crown, but the motions of some of their own members, 
 which the house discuss, and finally accept or reject.
 
 206 THE CONSTITUTION 
 
 ence and wisdom in the management of public 
 affairs. But events have unfortunately demon- 
 strated, that public employments and power im- 
 prove the understanding of men in a less degree 
 than they pervert their views ; and it has been 
 found in the issue, that the effect of a regulation 
 which, at first sight, seems so perfectly consonant 
 with prudence, is to confine the people to a mere 
 passive and defensive share in the legislation, and 
 to deliver them up to the continual enterprises of 
 those who, at the same time that they are under 
 the greatest temptations to deceive them, possess 
 the most powerful means of effecting it. 
 
 If we cast our eyes on the history of the ancient 
 governments, in those times when the persons in- 
 trusted with the executive power were still in a 
 state of dependence on the legislature, and conse- 
 quently were frequently obliged to have recourse 
 to it, we shall see almost continual instances of 
 selfish and insidious laws proposed by them to the 
 assemblies of the people. 
 
 And those men, in whose wisdom the law had 
 at first placed so much confidence, became, in the 
 issue, so lost to all sense of shame and duty, that 
 when arguments were found to be no longer suffi- 
 cient, they had recourse to force ; the legislative 
 assemblies became so many fields of battle, and their 
 power a real calamity. 
 
 I know very well, however, that there are other 
 important circumstances besides those I have just 
 mentioned, which would prevent disorders of this 
 kind from taking place in England.* But, on the 
 
 * I particularly mean here the circumstance of the people
 
 OF ENGLAND. 207 
 
 other hand, let us call to mind that the person who, 
 in England, is invested with the executive authority, 
 unites in himself the whole public power and 
 majesty. Let us represent to ourselves the great 
 and sole magistrate of the nation pressing the ac- 
 ceptance of those laws which he had proposed, with 
 a vehemence suited to the usual importance of his 
 designs, with the warmth of monarchical pride, 
 which must meet with no refusal, and exerting for 
 that purpose all his immense resources. 
 
 It was therefore a matter of indispensable ne- 
 cessity, that things should be settled in England in 
 the manner they are. As the moving springs of 
 the executive power are, in the hands of the king, 
 a kind of sacred depositum, so are those of the 
 legislative power in the hands of the two houses. 
 The king must abstain from touching them, in the 
 same manner as all the subjects of the kingdom are 
 bound to submit to his prerogatives. When he 
 sits in parliament, he has left, we may say, his 
 executive power without doors, and can only assent 
 or dissent. If the crown had been allowed to take 
 an active part in the business of making laws, it 
 would soon have rendered useless the other branches 
 of the legislature. 
 
 having entirely delegated their power to their representatives ; the 
 consequences of which institution will be discussed in the next 
 chapter.
 
 208 THE CONSTITUTION 
 
 CHAPTER V. 
 
 In which an Inquiry is made, whether it would 
 be an Advantage to public Liberty, that the 
 Laws should be enacted by the Votes of the 
 People at large. 
 
 BUT it will be said, whatever may be the wisdom 
 of the English laws, how great soever their pre- 
 cautions may be with regard to the safety of the 
 individual j the people, as they do not themselves 
 expressly enact them, cannot be looked upon as a 
 free people. The author of the Social Contract 
 carries this opinion even farther : he says, that, 
 " though the people of England think they are free, 
 " they are much mistaken ; they are so only during 
 " the election of members for parliament : as soon 
 " as these are elected, the people are slaves they 
 " are nothing."* 
 
 Before I answer this objection, I shall observe 
 that the word liberty is one of those which have 
 been most misunderstood or misapplied. 
 
 Thus, at Rome, where that class of citizens who 
 were really masters of the state, were sensible that 
 a lawful regular authority, once trusted to a single 
 ruler, would put an end to their tyranny, they 
 taught the people to believe, that, provided those 
 who exercised a military power over them, and 
 overwhelmed them with insults, went by the names 
 of consules, dictatores, patricii, nobiles, 13 * in a 
 
 * See M. Rousseau's Social Contract, chap. xv. 
 134 Consuls, dictators, patricians, nobles. EDITOR.
 
 OF ENGLAND. 209 
 
 word, by any other appellation than that horrid 
 one of rex, they were free, and that such a valuable 
 situation must be preferred at the price of every 
 calamity. 
 
 In the same manner, certain writers of the pre- 
 sent age, misled by their inconsiderate admiration 
 of the governments of ancient times, and perhaps 
 also by a desire of presenting lively contrasts to 
 what they call the degenerate manners of our mo- 
 dern times, have cried up the governments of Sparta 
 and Rome, as the only ones fit for us to imitate. 
 In their opinions, the only proper employment of 
 a free citizen is, to be either incessantly assembled 
 in the forum, or preparing for war. Being valiant, 
 inured to hardships, inflamed with an ardent love 
 of one's country, which is, after all, nothing more 
 than an ardent desire of injuring all mankind for 
 the sake of that society of which we are members, 
 and with an ardent love of glory, which is like- 
 wise nothing more than an ardent desire of com- 
 mitting slaughter, in order to make afterwards a 
 boast of it, have appeared to these writers to be 
 the only social qualifications worthy of our esteem, 
 and of the encouragement of lawgivers.* And 
 while, in order to support such opinions, they have 
 used a profusion of exaggerated expressions with- 
 out any distinct meaning, and perpetually repeated, 
 though without defining them, the words dastardli- 
 ness, corruption, greatness of soul, and virtue, they 
 have not once thought of telling us the only thing 
 
 * I have used all the above expressions in the same sense in 
 which they were used iu the ancient comuum wealths, and still are 
 by most of the writers who describe their governments. 
 
 P
 
 210 THE CONSTITUTION 
 
 that was worth our knowing 1 , which is, whether 
 men were happy under those governments which 
 they have so much exhorted us to imitate. 
 
 Nor, while they have thus misapprehended the 
 only rational design of civil societies^ have they 
 better understood the true end of the particular 
 institutions by which they were to be regulated. 
 They were satisfied when they saw the few, who 
 really governed every thing in the state, at times 
 perform the illusory ceremony of assembling the 
 body of the people, that they might appear to con- 
 sult them ; and the mere giving of votes, under 
 any disadvantage in the manner of giving them, 
 and how much soever the law might afterwards 
 be neglected that was thus pretended to have been 
 made in common, has appeared to them to be 
 liberty. 
 
 But those writers are seemingly in the right : 
 a man who contributes by his vote to the passing 
 of a law, has himself made the law ; in obeying it, 
 he obeys himself; he therefore is free. A play 
 on words, and nothing more. The individual who 
 has voted in a popular legislative assembly has not 
 made the law that has passed in it ; he has only 
 contributed, or seemed to contribute, towards en- 
 acting it, for his thousandth, or even ten thou- 
 sandth, share ; he has had no opportunity of making 
 his objections to the proposed law, or of canvass- 
 ing it or of proposing restrictions to it ; and he has 
 only been allowed to express his assent or dissent. 
 When a law has passed agreeably to his vote, it is 
 not as a consequence of this his vote that his will 
 happens to take place ; it is because a number of
 
 OF ENGLAND. 
 
 other men have accidentally thrown themselves on 
 the same side with him : when a law contrary to 
 his intentions is enacted, he must nevertheless sub- 
 mit to it. 
 
 This is not all ; for though we should suppose 
 that to give a vote is the essential constituent of 
 liberty, yet such liberty could only be said to last 
 for a single moment, after which it becomes neces- 
 sary to trust entirely to the discretion of Bother 
 persons ; that is, according to this doctrine, to be 
 no longer free. It becomes necessary, for instance, 
 for the citizen who has given his vote, to rely on 
 the honesty of those who collect the suffrages ; and 
 more than once have false declarations been made 
 of them. 
 
 The citizen must also trust to other persons for 
 the execution of those things which have been re- 
 solved upon in common : and when the assembly 
 shall have separated, and he shall find himself 
 alone, in the presence of the men who are invested 
 with the public power, of the consuls for instance, 
 or of the dictator, he will have but little security 
 for the continuance of his liberty, if he has only 
 that of having contributed by his suffrage towards 
 enacting a law which they are determined to 
 neglect. 
 
 What then is liberty ? Liberty, I would answer, 
 so far as it is possible for it to exist in a society of 
 beings whose interests are almost perpetually op- 
 posed to each other, consists in this, that every man, 
 while he respects the persons of others, and allows 
 them quietly to enjoy the produce of their industry, 
 be certain himself likewise to enjoy the produce of 
 
 p 2
 
 THE CONSTITUTION 
 
 his own industry, and that his person be also secure. 
 But to contribute by one's suffrage to procure 
 these advantages to the community, to have a 
 share in establishing- that order, that general ar- 
 rangement of things by means of which an indi- 
 vidual, lost as it were in the crowd, is effectually 
 protected ; to lay down the rules to be observed 
 by those who, being invested with a considerable 
 power, are charged with the defence of individuals, 
 and provide that they should never transgress 
 them ; these are functions, are acts of government, 
 but not constituent parts of liberty. 
 
 In a word : To concur by one's suffrage in 
 enacting laws, is to enjoy a share, whatever it may 
 be, of power : to live in a state where the laws are 
 equal for all, and sure to be executed (whatever 
 may be the means by which these advantages are 
 attained), is to be free. 
 
 Be it so : we grant that to give one's suffrage is 
 not liberty itself, but only a mean of procuring it, 
 and a mean too which may degenerate to mere 
 form ; we grant also, that other expedients might 
 be found for that purpose ; and that for a man to 
 decide that a state with whose government and in- 
 terior administation he is unacquainted, is a state 
 in which the people are slaves, are nothing, merely 
 because the comitia of ancient Rome are no longer 
 to be met with in it, is a somewhat precipitate de- 
 cision. Yet many, perhaps, will continue to think 
 that liberty would be much more complete, if the 
 people at large were expressly called upon to give 
 their opinion concerning the particular provisions 
 by which it is to be secured, and that the English
 
 OF ENGLAND. 213 
 
 laws, for instance, if they were made by the suf- 
 frages of all, would be wiser, more equitable, and, 
 above all, more likely to be executed. To this 
 objection, which is certainly specious, I shall endea- 
 vour to give an answer. 
 
 If, in the first formation of a civil society, the 
 only care to be taken was that of establishing, 
 once for all, the several duties which every indi- 
 vidual owes to others and to the state ; if those 
 who are intrusted with the care of procuring the 
 performance of these duties, had neither any am- 
 bition, nor any other private passions, which such 
 employment might put in motion, and furnish the 
 means of gratifying: in a word, if, looking upon 
 their function as a mere task of duty, they were 
 never tempted to deviate from the intentions of 
 those who had appointed them : I confess that, 
 in such a case, there might be no inconvenience in 
 allowing every individual to have a share in the 
 government of the community of which he is a 
 member ; or rather, I ought to say, in such a 
 society, and among such beings, there would be no 
 occasion for any government. 
 
 But experience teaches us that many more pre- 
 cautions, indeed, are necessary to oblige men to be 
 just towards each other ; nay, the very first ex- 
 pedients that may be expected to conduce to such 
 an end, supply the most fruitful source of the evils 
 which are proposed to be prevented. Those laws 
 which were intended to be equal for all, are soon 
 warped to the private convenience of those who 
 have been made the administrators of them: in- 
 stituted at first for the protection of all, they soon
 
 THE CONSTITUTION 
 
 are made only to defend the usurpations of a few ; 
 and, as the people continue to respect them, while 
 those to whose guardianship they were intrusted 
 make little account of them, they at length have no 
 other effect than that of supplying the want of real 
 strength in those few who have contrived to place 
 themselves at the head of the community, and of 
 rendering regular and free from danger the tyranny 
 of the smaller number over the greater. 
 
 To remedy, therefore, evils which thus have a 
 tendency to result from the very nature of things, 
 to oblige those who are in a manner masters of 
 the law, to conform themselves to it, to render in- 
 effectual the silent, powerful, and ever-active con- 
 spiracy of those who govern, requires a degree of 
 knowledge, and a spirit of perseverance, which are 
 not to be expected from the multitude. 
 
 The greater part of those who compose this 
 multitude, taken up with the care of providing for 
 their subsistence, have neither sufficient leisure, 
 nor even, in consequence of their more imperfect 
 education, the degree of information requisite for 
 functions of this kind. Nature, besides, who is 
 sparing of her gifts, has bestowed upon only a few 
 men an understanding capable of the complicated 
 researches of legislation : and, as a sick man trusts 
 to his physician, a client to his lawyer, so the 
 greater number of the citizens must trust to those 
 who have more abilities than themselves for the ex- 
 ecution of things, which, at the same time that they 
 so materially concern them, require so many qualifi- 
 cations to perform them with any degree of suffi- 
 ciency.
 
 OF ENGLAND. 21,5 
 
 To these considerations, of themselves so ma- 
 terial, another must be added, which is, if possible, 
 of still greater weight. This is, that the multitude, 
 in consequence of their being a multitude, are in- 
 capable of corning to any mature resolution. 
 
 Those who compose a popular assembly are not 
 actuated, in the course of their deliberations, by any 
 clear and precise views of present or positive per- 
 sonal interest. As they see themselves lost, as it 
 were, in the crowd of those who are called upon to 
 exercise the same function with themselves as 
 they know that their individual votes will make no 
 change in the public resolutions, and that, to what- 
 ever side they may incline, the general result will ne- 
 vertheless be the same; they do not undertake to 
 inquire how far the things proposed to them agree 
 with the whole of the laws already in being, or 
 with the present circumstances of the state, because 
 men will not enter upon a laborious task, when 
 they know that it can scarcely answer any purpose. 
 
 It is, however, with dispositions of this kind, 
 and each relying on all, that the assembly of the 
 people meet. But, as very few among them have 
 previously considered the subjects on which they 
 are called upon to determine, very few carry along 
 with them any opinion or inclination, or at least 
 any inclination of their own, and to which they are 
 resolved to adhere. As, however, it is necessary 
 at last to come to some resolution, the major part 
 of them are determined by reasons which they 
 would blush to pay any regard to on much less 
 serious occasions. An unusual sight, a change of 
 the ordinary place of the assembly, a sudden dis-
 
 216 THE CONSTITUTION 
 
 turbance, a rumour, are, amidst the general want 
 of a spirit of decision, the sujficiens ratio 135 of the 
 determination of the greatest part ;* and from this 
 assemblage of separate wills, thus formed hastily, 
 and without reflection, a general will results, which 
 is also void of reflection. 
 
 If, amidst these disadvantages, the assembly 
 were left to themselves, and nobody had an interest 
 to lead them into error, the evil, though very great, 
 would not, however, be extreme, because such an 
 assembly never being called upon but to determine 
 upon an affirmative or negative (that is, only having 
 two cases to choose between), there would be an 
 equal chance of their choosing either ; and it might 
 be hoped that at every other turn they would take 
 the right side. 
 
 But the combination of those who share either 
 in the actual exercise of the public power, or in its 
 advantages, do not thus allow themselves to sit 
 down in inaction. They wake, while the people 
 sleep. Entirely taken up with the thoughts of 
 their own power, they live but to increase it. 
 Deeply versed in the management of public busi- 
 ness, they see at once all the possible consequences 
 of measures. And, as they have the exclusive direc- 
 tion of the springs of government, they give rise, at 
 
 * Every one knows of how much importance it was, in the 
 Roman commonwealth, to assemble the people in one place rather 
 than another. In order to change entirely the nature of their re- 
 solutions, it was often sufficient to hide from them, or let them see, 
 the Capitol. 
 
 135 Sufficient reason. EDITOR.
 
 OF ENGLAND. 127 
 
 their pleasure, to every incident that may influence 
 the minds of a multitude who are not on their 
 guard, and who wait for some event or other that 
 may finally determine them. 
 
 It is they who convene the assembly, and dis- 
 solve it: it is they who offer propositions, and 
 make speeches to it. Ever active in turning- to 
 their advantage every circumstance that happens, 
 they equally avail themselves of the tractableness 
 of the people during public calamities, and its 
 heedlessness in times of prosperity. When things 
 take a different turn from what they expected, 
 they dismiss the assembly. By presenting to it 
 many propositions at once, and which are to be 
 voted upon in the lump, they hide what is destined 
 to promote their own private views, or give a co- 
 lour to it, by joining it with things which they 
 know will take hold of the mind of the people.* 
 By presenting, in their speeches, arguments and 
 facts which men have no time to examine, they 
 lead the people into gross, and yet decisive errors : 
 and the common-places of rhetoric, supported by 
 their personal influence, ever enabled them to draw 
 to their side the majority of votes. 
 
 * It was thus the senate at Rome assumed to itself the power of 
 laying taxes. They promised, in the time of the war against the 
 Veientes, to give pay to such citizens as would enlist ; and to that 
 end they established a tribute. The people, solely taken up with 
 the idea of not going to war at their own expense, were transported 
 with so much joy, that they crowded at the door of the senate, and 
 laying hold of the hands of the senators, called them their fathers 
 Nihil unquam, acceptum a pit-be lanlo gaudio traditur : concur- 
 sum itaque ad curiam esse, prehensatasque exeuntium manus, 
 patres vere appellatos, Sfc. See Tit. Liv. book iv.
 
 218 THE CONSTITUTION 
 
 On the other hand, the few (for there are, after 
 all, some) who, having meditated on the proposed 
 question, see the consequences of the decisive step 
 which is just going to be taken, being lost in the 
 crowd, cannot make their feeble voices to be heard 
 amidst the universal noise and confusion. They 
 have it no more in their power to stop the general 
 motion, than a man in the midst of an army, on a 
 march, has it in his power to avoid inarching. In 
 the mean time, the people are giving the suffrages ; 
 a majority appears in favour of the proposal ; it is 
 finally proclaimed as the general will of all ; and 
 it is at bottom nothing more than the effect of the 
 artifices of a few designing men, who are exulting 
 among themselves.* 
 
 * I might confirm all these things by numberless instances from 
 ancient history ; but if I may be allowed, in this case, to draw 
 examples from my own country, et celebrare domestica facia, 135 
 I shall relate facts which will be no less to the purpose. In Ge- 
 neva, in the year 1707, a law was enacted, that a general assembly 
 of the people should be held every five years, to treat of the affairs 
 of the republic : but the magistrates, who dreaded those assemblies, 
 soon obtained from the citizens themselves the repeal of the law ; 
 and the first resolution of the people, in the first of those periodical 
 assemblies (in the year 1712), was to abolish them for ever. The 
 profound secrecy with which the magistrates prepared their proposal 
 to the citizens on that subject, and the sudden manner in which 
 the latter, when assembled, were acquainted with it, and made to 
 give their votes upon it, have indeed accounted but imperfectly for 
 this strange determination of the people; and the consternation 
 which seized the whole assembly when the result of the suffrages 
 was proclaimed, has confirmed many in the opinion that some 
 unfair means had been used. The whole transaction has been 
 kept secret to this day ; but the common opinion on this subject, 
 
 136 And to record events familiar to me. EDITOR.
 
 OF ENGLAND. 219 
 
 In a word, those who are acquainted with re- 
 publican governments, and, in general, who know 
 the manner in which business is transacted in nu- 
 merous assemblies, will not scruple to affirm that 
 the few who are united, who take an active part 
 
 which has heen adopted by M. Rousseau, in his Lettres de la Mon- 
 tague, is this : The magistrates, it is said, had privately instructed 
 the secretaries in whose ears the citizens were to whisper the suf- 
 frages : when a citizen said approbation, he was understood to 
 approve the proposal of the magistrates : when he said rejection, 
 he was understood to reject the periodical assemblies. 
 
 In the year 1738, the citizens enacted at once into laws a small 
 code of forty-four articles, by one single line of which they bound 
 themselves for ever to elect the four syndics (the chiefs of the coun- 
 cil of the twenty-five) out of the members of the same council; 
 whereas they were before free in their choice. They at that time 
 suffered also the word approved to be slipped into the law men- 
 tioned in the note, p. 200, which was transcribed from a former 
 code ; the consequence of which was to render the magistrates 
 absolute masters of the legislature. 
 
 The citizens had thus been successively stripped of all their 
 political rights, and had little more left to them than the pleasure 
 of being called a sovereign assembly, when they met (which idea, 
 it must be confessed, preserved among them a spirit of resistance 
 which it would have been dangerous for the magistrates to have 
 provoked too far), and the power of at least refusing to elect the 
 four syndics. Upon this privilege the citizens, a few years ago 
 (A.D. 1765 to 1768), made their last stand: and a singular con- 
 junction of circumstances having happened at the same time, to 
 raise and preserve among them, during three years, an uncommon 
 spirit of union and perseverance, they in the issue succeeded, in a 
 great measure, to repair the injuries which they had been made to 
 do to themselves for two hundred years and more. (A total change 
 has since that time been effected by foreign forces, in the govern- 
 ment of the republic (A.D. 1782), upon which this is not a proper 
 place to make any observation.) 137 
 
 "7 See note 132, page. 200. EDITOR.
 
 THE CONSTITUTION 
 
 in public affairs, and whose station makes them 
 conspicuous, have such an advantage over the many 
 who turn their eyes towards them, and are without 
 union among- themselves, that, even with a mid- 
 dling degree of skill, they can at all times direct, 
 at their pleasure, the general resolutions ; that, as 
 a consequence of the very nature of things, there is 
 110 proposal, however absurd, to which a numerous 
 assembly of men may not, at one time or other, 
 be brought to assent, and that laws would be 
 wiser, and more likely to procure the advantage of 
 all, if they were to be made by drawing lots, or 
 casting dice, than by the suffrages of a multitude. 
 
 CHAPTER VI. 
 
 Advantages that accrue to the People from ap- 
 pointing Representatives. 
 
 How then shall the people remedy the disad- 
 vantages that necessarily attend their situation ? 
 How shall they resist the phalanx of those who 
 have engrossed to themselves all the honours, dig- 
 nities, and power in the state ? 
 
 It will be by employing for their defence the 
 same means by which their adversaries carry on 
 their attack : it will be by using the same wea- 
 pons as they do, the same order, the same kind 
 of discipline. 
 
 They are a small number, and consequently 
 easily united ; a small number must therefore be
 
 OF ENGLAND. 
 
 opposed to them, that a like union may also be ob- 
 tained. It is because they are a small number, that 
 they can deliberate on every occurrence, and never 
 come to any resolutions but such as are maturely 
 weighed ; it is because they are few, that they can 
 have forms which continually serve them for general 
 standards to resort to, approved maxims to which 
 they invariably adhere, and plans which they never 
 lose sight of: here, therefore, I repeat it, oppose 
 to them a small number, and you will obtain the 
 like advantages. 
 
 Besides, those who govern, as a farther conse- 
 quence of their being few, have a more considerable 
 share, consequently feel a deeper concern in the 
 success, whatever it may be, of their enterprises. 
 As they usually profess a contempt for their ad- 
 versaries, and are at all times acting an offensive 
 part against them, they impose on themselves an 
 obligation of conquering. They, in short, who are 
 all alive from the most powerful incentives, and 
 aim at gaining new advantages, have to do with a 
 multitude, who, wanting only to preserve what they 
 already possess, are unavoidably liable to long in- 
 tervals of inactivity and supineness. But the people, 
 by appointing representatives, immediately gain to 
 their cause that advantageous activity which they 
 before stood in need of, to put them on a par with 
 their adversaries ; and those passions become ex- 
 cited in their defenders, by which they themselves 
 cannot be actuated. 
 
 Exclusively charged with the care of public 
 liberty, the representatives of the people will be 
 animated by a sense of the greatness of the concerns
 
 THE CONSTITUTION 
 
 with which they are intrusted. Distinguished from 
 the bulk of the nation, and forming among them- 
 selves a separate assembly, they will assert the 
 rights of which they have been made the guardians, 
 with all that warmth which the esprit de corps is 
 used to inspire.* Placed on an elevated theatre, 
 they will endeavour to render themselves still more 
 conspicuous ; and the arts and ambitious activity 
 of those who govern will now be encountered by 
 the vivacity and perseverance of opponents actuated 
 by the love of glory. 
 
 Lastly, as the representatives of the people will 
 naturally be selected from among those citizens 
 who are most favoured by fortune, and will have 
 consequently much to preserve, they will, even in 
 the midst of quiet times, keep a watchful eye on 
 the motions of power. As the advantages they 
 possess will naturally create a kind of rivalship be- 
 tween them and those who govern, the jealousy 
 which they will conceive against the latter will 
 give them an exquisite degree of sensibility on 
 every increase of their authority. Like those de- 
 licate instruments which discover the operations 
 of nature, while they are yet imperceptible to our 
 senses, they will warn the people of those things 
 which of themselves they never see but when it is 
 too late j and their greater proportional share, 
 whether of real riches, or of those which lie in the 
 opinions of men, will make them, if I may so ex- 
 
 * If it had not been for an incentive of this kind, the English 
 commons would not have vindicated their right of taxation with so 
 much vigilance as they have done, against all enterprises (often 
 perhaps involuntary) of the lords.
 
 OF ENGLAND. 
 
 press myself, the barometers that will discover in 
 its first beginning, every tendency to a change in 
 the constitution.* 
 
 CHAPTER VII. 
 
 The Subject continued. The Advantages that ac- 
 crue to the People from their appointing Re- 
 presentatives are very inconsiderable, unless they 
 also entirely trust their Legislative Authority to 
 them. 
 
 THE observations made in the preceding chapter 
 are so obvious, that the people themselves, in 
 popular governments, have always been sensible 
 of the truth of them, and never thought it possible 
 to remedy, by themselves alone, the disadvantages 
 necessarily attending their situation. Whenever 
 the oppressions of their rulers have forced them to 
 resort to some uncommon exertion of their legal 
 powers, they have immediately put themselves 
 under the direction of those few men who had 
 been instrumental in informing and encouraging 
 them : and when the nature of the circumstances 
 has required any degree of firmness and persever- 
 ance in their conduct, they have never been able to 
 attain the ends they proposed to themselves, except 
 
 * All the above reasoning essentially requires that the repre- 
 sentatives of the people should be united in interests with the 
 people. We shall soon see that this union really prevails in the 
 English constitution, and may be called the masterpiece of it.
 
 224- THE CONSTITUTION 
 
 by means of the most explicit deference to those 
 leaders whom they had thus appointed. 
 
 But, as these leaders, thus hastily chosen, are 
 easily intimidated by the continual display which 
 is made before them of the terrors of power ; 
 as that unlimited confidence which the people now 
 repose in them only takes place when public 
 liberty is in the utmost danger, and cannot be kept 
 up otherwise than by an extraordinary conjunction 
 of circumstances, in which those who govern sel- 
 dom suffer themselves to be caught more than 
 once ; the people have constantly sought to avail 
 themselves of the short intervals of superiority 
 which the chance of events had given them, for 
 rendering durable those advantages which they 
 knew would, of themselves, be but transitory, 
 and for getting some persons appointed, whose 
 peculiar office it may be to protect them, and 
 whom the constitution shall thenceforward recog- 
 nise. Thus it was that the people of Lacedeemon 
 obtained their ephori, 136 and the people of Rome 
 their tribunes. 
 
 138 The Ephori were powerful magistrates at Sparta, who were 
 first created by Lycurgus, or, according to some, by Theopompns, 
 B.C. 760. They were five in number. Like censors in the state, 
 they could check and restrain the authority of the kings, and eveii 
 imprison them, if guilty of irregularities. They fined Archidamus 
 for marrying a wife of small stature, and imprisoned Agis for his 
 unconstitutional behaviour. They were much the same as the 
 tribunes of the people at Rome (whom our author mentions in the 
 same connexion), created to watch with a jealous eye over the 
 liberties and rights of the populace. They had the management 
 of the public money, and were the arbiters of peace and war. Their 
 office was annual, and they bad the privilege of convening, pro-
 
 OP ENGLAND. 225 
 
 We grant this, will it be said ; but the Roman 
 people never allowed their tribunes to conclude any 
 thing definitively ; they, on the contrary, reserved 
 to themselves the right of ratifying * any resolu- 
 tions the latter should take. This, I answer, was 
 the very circumstance that rendered the institution 
 of tribunes totally ineffectual in the event. The 
 people thus wanting- to interfere, with their own 
 opinions, in the resolutions of those on whom they 
 had, in their wisdom, determined entirely to rely 
 and endeavouring 1 to settle with a hundred thou- 
 sand votes things which would have been settled 
 equally well by the votes of their advisers, de- 
 feated in the issue every beneficial end of their 
 former provisions : and while they meant to pre- 
 serve an appearance of their sovereignty (a chime- 
 rical appearance, since it was under the direction 
 of others that they intended to vote), they fell back 
 into all those inconveniences which we have before 
 mentioned. 
 
 The senators, the consuls, the dictators, and the 
 other great men of the republic, whom the people 
 were prudent enough to fear, and simple enough 
 to believe, continued still to mix with them, and 
 play off their political artifices. They continued 
 to make speeches to them,f and still availed them- 
 
 * See Rousseau's Social Contract. 
 
 -j- Valerius Maximus relates, that the tribunes of the people hav- 
 ing offered to propose some regulations in regard to the price of 
 
 roguing, and dissolving, the greater and less assemblies of the people, 
 the former composed of nine thousand Spartans, all inhabitants of 
 the city ; the latter of thirty thousand Lacedaemonians, inhabitants 
 of the inferior towns and villages EDITOR. 
 
 Q
 
 226 
 
 selves of their privilege of changing at their plea- 
 sure the place and form of the public meetings. 
 When they did not find it, possible by such means 
 to direct the resolutions of the assemblies, they 
 pretended that the omens were not favourable, 
 and under this pretext, or others of the same 
 kind, they dissolved them.* And the tribunes, 
 when they had succeeded so far as to effect an 
 union among themselves, thus were obliged to 
 submit to the pungent mortification of seeing those 
 projects which they had pursued with infinite la- 
 bour, and even through the greatest dangers, irre- 
 coverably defeated by the most despicable artifices. 
 
 corn, in a time of great scarcity, Scipio Nasica overruled the as- 
 sembly merely by saying, " Silence, Romans ! I know better than 
 you what is expedient for the republic." " Which words were no 
 " sooner heard by the people, than they showed by a silence full 
 " of veneration, that they were more affected by his authority, than 
 " by the necessity of providing for their own subsistence." Tacete, 
 qufBSO, Quirites ! Plus enim ego quam vos quid reipublicce expe- 
 dial intelligo, Qua voce auditd, omnes, plena venerationis si- 
 lenlio, majorem ejus auctoritalis quam alimentorum suorum curam 
 egerunt. 
 
 * Quid enim majus est, si de jure augurum quferimus, (says 
 Tully, who was himself an augur, and a senator also,) quam posse 
 a summis imperils et summis potestatibus commitiatus et concilia 
 ml instituta dimittere vel habita rescindere ? Quidgravius quam 
 rem susceptam dirimi, si unus augur ALIUM (id est, alium diem). 
 g ee De Legib. lib. ii. 12. 
 
 139 For what, if we are discussing the privileges of the augurs, is 
 greater, than to be able either to dismiss meetings and assemblies 
 which have been instituted by the highest authority and highest 
 powers, or to annul them after they have been held ? What 
 more imposing, than that an undertaking should be broken off, if 
 one augur should have said " alium " (that is, " alium diem," or, 
 " another day"). EDITOR.
 
 OF ENGLAND. 
 
 When, at other times, they saw that a confede- 
 racy was carrying on with uncommon warmth 
 against them, and despaired of succeeding by 
 employing expedients of the above kind, or were 
 afraid of diminishing their efficacy by a too frequent 
 use of them, they betook themselves to other stra- 
 tagems. They then conferred on the consuls, by 
 the means of a short form of words for the occa- 
 sion,* an absolute power over the lives of the citi- 
 zens, or even appointed a dictator. The people, 
 at the sight of the state masquerade which was dis- 
 played before them, were sure to sink into a state 
 of consternation : and the tribunes, however clearly 
 they might see through the artifice, also trembled 
 in their turn, when they thus beheld themselves 
 left without defenders, f 
 
 At other times, they brought false accusations 
 against the tribunes before the assembly itself; or, 
 by privately slandering them with the people, 
 totally deprived them of their confidence. It was 
 through artifices of this kind, that the people were 
 brought to behold, without concern, the murder of 
 Tiberius Gracchus, the only Roman that was really 
 virtuous the only one who truly loved the people. 
 
 * Videat consul ne quid detrimenti respublica capiat. 1 * 
 f " The tribunes of the people," says Livy, who was a great ad- 
 mirer of the aristocratical power, " and the people themselves, durst 
 " neither lift up their eyes, nor even mutter, in the presence of the 
 " dictator.'' JV<?c adversus dictatoriam vim, aut tribuni plebis, 
 aut ipsa plebs, attollere oculos, aut hiscere, audebant. See Til. 
 Liv. lib. vi. 16. 
 
 140 Let the consul take heed that the state receive no injury. 
 EDITOR. 
 
 Q 2
 
 THE CONSTITUTION 
 
 It was also in the same manner that Caius, who 
 was not deterred by his brother's fate from pursuing 
 the same plan of conduct, was in the end so en- 
 tirely forsaken by the people, that nobody could be 
 found among them who would even lend him a 
 horse to fly from the fury of the nobles ; and he 
 was at last compelled to lay violent hands upon 
 himself, while he invoked the wrath of the gods 
 on his inconstant fellow-citizens. 
 
 At other times, they raised divisions among the 
 people. Formidable combinations broke out sud- 
 denly on the eve of important transactions ; and 
 all moderate men avoided attending assemblies, 
 where they saw that all was to be tumult and con- 
 fusion. 
 
 In fine, that nothing might be wanting to the 
 insolence with which they treated the assemblies 
 of the people, they sometimes falsified the decla- 
 rations of the number of the votes ; and once they 
 even went so far as to carry off the urns into which 
 the citizens were to throw their suffrages.* 
 
 * The reader, with respect to all the above observations, may see 
 Plutarch's Lives, particularly the Lives of the two Gracchi. I 
 must add, that I have avoided drawing any instance from those as- 
 semblies in which one-half of the people were made to arm them- 
 selves against the other. I have here only alluded to those times 
 which immediately either preceded or followed the third Punic war, 
 as these are commonly called the best periods of the republic.
 
 OF ENGLAND. 229 
 
 CHAPTER VIII. 
 
 The Subject concluded Effects that have resulted 
 in the English Government, from the People's 
 Power being completely delegated to their Repre- 
 sentatives. 
 
 BUT when the people have entirely trusted their 
 power to a moderate number of persons, affairs im- 
 mediately take a widely different turn. Those who 
 govern are from that moment obliged to leave off 
 all those stratagems which had hitherto ensured 
 their success. Instead of those assemblies which 
 they affected to despise, and were perpetually com- 
 paring to storms, or to the current of the Euripus* 
 and in regard to which they accordingly thought 
 
 * Tully makes no end of his similes on this subject. Quod enim 
 f return, quern Euripum, tot motus, tantas et lam varias habere 
 putatis agitationes fluctuum, quantas perturbationes et quanlos 
 testus habet ratio comitiorum ? 141 See Oral, pro Muraena. 
 Concio, says he in another place, quce ex imperitissimis constat, 
 #c. 142 De Amicitia, 25. 
 
 141 What sea, what strait, can you imagine to be agitated by 
 so many fluctuations, by such tempestuous commotions of stormy 
 billows, as to be comparable with the tumultuous ebullition of 
 popular passions, with the perturbed alternations and currents of 
 popular factions, in assemblies convened for the election of magis- 
 trates ? EDITOR. 
 
 142 The whole sentence, which deserves to be given, runs thus j 
 an assembly consisting of the lowest and most ignorant of people 
 uses to know the difference between a citizen who wants to catch 
 them by cringing and sycophautry, and one who is steady, in- 
 flexible, and virtuous. Translation given by Guthrie. EDITOR.
 
 230 THE CONSTITUTION 
 
 themselves at liberty to pass over tbe rules of jus- 
 tice, they now find that they have to deal with 
 men who are their equals in point of education and 
 knowledge, and their inferiors only in point of 
 rank and form. They, in consequence, soon find 
 it necessary to adopt quite different methods j and, 
 above all, become very careful not to talk to them 
 any more about the sacred chickens, the white or 
 black days, and the Sibylline books. As they see 
 their new adversaries expect to have a proper re- 
 gard paid to them, that single circumstance in- 
 spires them with it : as they see them act in a re- 
 gular manner, observe constant rules, in a word, 
 proceed with form, they come to look upon them 
 with respect, for the very same reason which makes 
 them themselves to be reverenced by the people. 
 
 The representatives of the people, on the other 
 hand, do not fail soon to procure for themselves 
 every advantage that may enable them effectually 
 to use the powers with which they have been in- 
 trusted, and to adopt every rule of proceeding that 
 may make their resolutions to be truly the result 
 of reflection and deliberation. Thus it was that 
 the representatives of the English nation, soon after 
 their first establishment, became formed into a 
 separate assembly : they afterwards obtained the 
 liberty of appointing a president : soon after, they 
 insisted upon their being consulted on the last form 
 of the acts to which they had given rise : lastly, 
 they insisted on thenceforth framing them them- 
 selves. 
 
 In order to prevent any possibility of surprise in 
 the course of their proceedings, it is a settled rule
 
 OF ENGLAND. 231 
 
 with them, that every proposition, or bill, must be 
 read three times, at different prefixed days, 143 be- 
 fore it can receive a final sanction : and before each 
 reading of the bill, as well as at its first introduc- 
 tion, an express resolution must be taken to con- 
 tinue it under consideration. If the bill be rejected 
 in any one of those several operations, it must be 
 dropped, and cannot be proposed again during the 
 same session.* 
 
 The commons have been, above all, jealous of 
 the freedom of speech in their assembly. They 
 have expressly stipulated, as we have mentioned 
 
 * It is moreover a settled rule in the house of commons, that no 
 member is to speak more than once in the same debate. When 
 the number and nature of the clauses of a bill require that it should 
 be discussed in a free manner, 144 a committee is appointed for the 
 purpose, who are to make their report afterwards to the house. 
 When the subject is of importance, this committee is fonned of the 
 whole house, which still continues to sit at the same place, but in a 
 less solemn manner, and under another president, who is called the 
 chairman of the committee. In order to form the house again, the 
 mace is replaced on the table, and the speaker goes again into his 
 chair. 
 
 143 These are not the only stages through which every bill has 
 to pass, as will be seen by the following notes. Not unfrequently, 
 however, the standing orders are suspended, by resolution of the 
 house, in order to allow a bill of urgent necessity to pass through 
 the whole, or several, of its stages in one day. EDITOR. 
 
 144 Not only so, but every bill is obliged to be committed either 
 to a committee of the whole house, or a select committee, who 
 make their report to the house ; and resolutions are taken to go 
 into, or grant, the committee, and, in the former case, on the 
 question that the speaker do leave the chair, also on each clause of 
 the bill in committee, and for reporting it, receiving the report, 
 taking the same into consideration, &c., so that, with the least degree 
 of vigilance, surprise, in the passing of a bill, is impossible. 
 EDITOR.
 
 THE CONSTITUTION 
 
 above, that none of their words or speeches should 
 be questioned in any place out of their house. In 
 fine, in order to keep their deliberations free from 
 every kind of influence, they have denied their 
 president the right to give his vote, or even his 
 opinion : 143 they moreover have settled it as a 
 rule, not only that the king could not send to them 
 any express proposal about laws, or other subjects, 
 but even that his name should never be mentioned 
 in the deliberations.* 
 
 But that circumstance which, of all others, con- 
 stitutes the superior excellence of a government in 
 which the people act only through their represen- 
 tatives, that is, by means of an assembly formed of 
 a moderate number of persons, and in which it is 
 possible for every member to propose new subjects, 
 and to argue and to canvass the questions that 
 arise, is, that such a constitution is the only one 
 capable of the immense advantage (of which perhaps 
 I did not convey an adequate idea to the reader 
 when I mentioned it before!) of putting into the 
 hands of the people the moving springs of the legis- 
 lative authority. 
 
 * If any person should mention in bis speech, what the king 
 wishes should be, would be glad to see, &c. he would be imme- 
 diately called to order, for attempting to influence the debate. 
 
 \ See chap. iv. of this book. 
 
 145 If the numbers are equal, the speaker has the casting vote. 
 When, also, the house resolves itself into committee, and the 
 speaker is, consequently, out of the chair, he has the right, equally 
 with the other members, of both voting and delivering his senti- 
 ments, and, as every subject of importance goes to a committee, the 
 speaker has a stage in which he can, if he please, make known his 
 opinion upon it. EDITOR.
 
 OF ENGLAND. 233 
 
 In a constitution where the people at large ex- 
 ercise the function of enacting the laws, as it is 
 only to those persons towards whom the citizens 
 are accustomed to turn their eyes, that is, to the 
 very men who govern, that the assembly have 
 either time or inclination to listen, they acquire, 
 at length, as has constantly been the case in all 
 republics, the exclusive right of proposing, if they 
 please, when they please, in what manner they 
 please : a prerogative this, of such extent, that it 
 would suffice to put an assembly, formed of men of 
 the greatest parts, at the mercy of a few dunces, 
 and renders completely illusory the boasted power 
 of the people. Nay more, as this prerogative is 
 thus placed in the very hands of the adversaries of 
 the people, it forces the people to remain exposed 
 to their attacks, in a condition perpetually passive, 
 and takes from them the only legal means by which 
 they might effectually oppose their usurpations. 
 
 To express the whole in a few words A repre- 
 sentative constitution places the remedy in the 
 hands of those who feel the disorder : but a popu- 
 lar constitution places the remedy in the hands of 
 those who cause it : and it is necessarily produc- 
 tive, in the event, of the misfortune of the political 
 calamity, of trusting the care and the means of re- 
 pressing the invasions of power, to the men who 
 have the enjoyment of power.
 
 THE CONSTITUTION 
 
 CHAPTER IX. 
 
 A farther Disadvantage of Republican Govern- 
 ments. The People are necessarily betrayed by 
 those in whom they trust. 
 
 HOWEVER, those general assemblies of a people who 
 were made to determine upon thing's which they 
 neither understood nor examined, that general 
 confusion in which the ambitious could at all 
 times hide their artifices, and carry on their 
 schemes with safety, were not the only evils at- 
 tending the ancient commonwealths. There was 
 a more secret defect, and a defect that struck im- 
 mediately at the very vitals of it, inherent in that 
 kind of government. 
 
 It was impossible for the people ever to have 
 faithfuFdefenders. Neither those whom they had 
 expressly chosen, nor those whom some personal 
 advantages enabled to govern the assemblies (for 
 the only use, I must repeat it, which the people 
 ever make of their power, is either to give it away, 
 or allow it to be taken from them), could possibly 
 be united to them by any common feeling of the 
 same concerns. As their influence put them, in a 
 great measure, upon a level with those who were 
 invested with the executive authority, they cared 
 little to restrain oppressions out of the reach of 
 which they saw themselves placed. Nay, they 
 feared they should thereby lessen a power which
 
 OF ENGLAND. 235 
 
 they knew was one day to be their own ; if they 
 had not even already an actual share in it.* 
 
 Thus, at Rome, the only end which the tribunes 
 ever pursued with any degree of sincerity and per- 
 severance, was to procure to the people, that is, to 
 themselves, an admission to all the different dignities 
 in the republic. After having obtained that a law 
 should be enacted for admitting plebeians to the con- 
 sulship, they procured for them the liberty of inter- 
 marrying with the patricians. They afterwards 
 rendered them admissible to the dictatorship, to the 
 office of military tribune, to the censorship : in a 
 word, the only use they made of the power of the 
 people, was to increase privileges which they called 
 the privileges of all, though they and their friends 
 alone were ever likely to have the enjoyment of 
 them. 
 
 We do not find that they ever employed the 
 power of the people in things really beneficial to the 
 people. We do not find that they ever set bounds 
 to the terrible power of its magistrates, that they 
 ever repressed that class of citizens who knew how 
 to make their crimes pass uncensured, in a word, 
 that they ever endeavoured, on the one hand to re- 
 gulate, and on the other to strengthen, the judicial 
 power ; precautions these, without which men 
 
 * How could it be expected that men who entertained views of 
 being praetors, would endeavour to restrain the power of the praetors, 
 that men who aimed at being one day consuls, would wish to 
 limit the power of the consuls, that men whom their influence 
 among the people made sure of getting into the senate, would 
 seriously endeavour to confine the authority of the senate ?
 
 236 THE CONSTITUTION 
 
 might struggle to the end of time, and never attain 
 true liberty.* 
 
 And indeed the judicial power, that sure crite- 
 rion of the goodness of a government, was always, 
 at Rome, a mere instrument of tyranny. The con- 
 suls were at all times invested with an absolute 
 power over the lives of the citizens. The dictators 
 possessed the same right ; so did the prsetors, the 
 tribunes of the people, the judicial commissioners 
 named by the senate, and so, of course, did the 
 senate itself: and the fact of the three hundred and 
 seventy deserters whom it commanded to be thrown 
 at one time, as Livy relates, from the Tarpeian rock, 
 sufficiently shows that it well knew how to exert its 
 power upon occasion. 
 
 It even may be said, that, at Rome, the power 
 of life and death, or rather the right of killing, was 
 annexed to every kind of authority whatever, even 
 to that which results from mere influence, or 
 wealth ; and the only consequence of the murder 
 of the Gracchi, which was accompanied by the 
 slaughter of three hundred, and afterwards of four 
 thousand unarmed citizens, whom the nobles knocked 
 on the head, was to engage the senate to erect a 
 temple to Concord. The Lex Portia de tergo 
 6 which has been so much celebrated, was 
 
 * Without such precautions, laws must always be, as Pope ex- 
 presses it, 
 
 " Still for the strong too weak, the weak too strong." 
 
 146 A name given to a law made by M. Porcius the tribune. It 
 ordained, that no magistrate should punish with death, or scourge
 
 OF ENGLAND. 237 
 
 attended with no other effect than that of more 
 completely securing-, against the danger of a retalia'* 
 tion, such consuls, praetors, quaestors, c. as, like 
 Verres, caused the inferior citizens of Rome to be 
 scourged with rods, and put to death upon crosses, 
 through mere caprice and cruelty.* 
 
 In fine, nothing can more completely show to 
 what degree the tribunes had forsaken the interests 
 of the people, whom they were appointed to de- 
 fend, than the fact of their having allowed the 
 senate to invest itself with the power of taxation ; 
 they even suffered it to assume to itself the power, 
 not only of dispensing with the laws, but also of 
 abrogating them.f 
 
 * If we turn our eyes to Lacedaemon, we shall see, from several 
 instances of the justice of the ephori, ivi that matters were little 
 belter ordered there, in regard to the administration of public justice. 
 And in Athens itself, the only one of the ancient commonwealths 
 in which the people seem to have enjoyed any degree of real liberty, 
 we see the magistrates proceed nearly in the same manner as they 
 now do among the Turks : and I think no other proof needs to be 
 given than the story of that barber in the Piraeus, who having 
 spread about the town the news of the overthrow of the Athenians 
 in Sicily, which he had heard from a stranger who had stopped at 
 his shop, was put to the torture, by the command of the archons, 
 because he could not tell the name of his author. See Pint. Life 
 ofNicias. 
 
 t There are frequent instances of the consuls taking away from 
 the capitol the tables of the laws passed under their predecessors. 
 Nor was this, as we might at first be tempted to believe, an act of 
 violence which success alone could justify ; it was a consequence of 
 
 with rods, (de lergo clvium, on the back of citizens) a Roman 
 citizen when condemned, but only permit him to go into exile. 
 EDITOR. 
 
 w See note 138, page 224. EDITOR.
 
 238 THE CONSTITUTION. 
 
 In a word, as the necessary consequence of the 
 communicdbility of power, a circumstance essen- 
 tially inherent in the republican form of govern- 
 ment, it is impossible for it ever to be restrained 
 within certain rules. Those who are in a con- 
 dition to control it, from that very circumstance 
 become its defenders. Though they may have 
 risen, as we may suppose, from the humblest sta- 
 tions, and such as seemed totally to preclude them 
 from all ambitious views, they have no sooner 
 reached a certain degree of eminence, than they 
 begin to aim higher. Their endeavours had at 
 first no other object, as they professed, and per- 
 haps with sincerity, than to see the laws impartially 
 executed : their only view now is to set themselves 
 above them ; and seeing themselves raised to the 
 level of a class of men who possess all the power 
 and enjoy all the advantages of the state, they make 
 haste to associate themselves with them.* 
 
 the acknowledged power enjoyed by the senate, cujus erat gra- 
 vissimum judicium de jure legum^ as we may see in several 
 places in Tully. Nay, the augurs themselves, as this author in- 
 forms us, enjoyed the same privilege. "If laws had not been laid 
 " before the people in the legal form, they (the augurs) may set them 
 " aside ; as was done with respect to the Lex Tatia, by the decree 
 " of the college, and to the Leges Liviae, by the advice of Philip, 
 " who was consul and augur." Legem, si non jure rogata est, 
 tollere possunt ; ut Tatiam, decreto collegii, ut Livias, consilio 
 Philippi, consults et auguris. See De Legib. lib. ii. 12. 
 
 * Which always proves an easy thing. It is in commonwealths 
 the particular care of that class of men who are at the head of the 
 
 148 Whose was the most solemn right of decision on the laws. 
 EDITOR.
 
 OF ENGLAND. 239 
 
 Personal power and independence on the laws 
 being, in such states, the immediate consequence 
 of the favour of the people, they are under an 
 unavoidable necessity of being" betrayed. Cor- 
 rupting-, as it were, every thing they touch, they 
 cannot show a preference to a man, but they 
 thereby attack his virtue ; they cannot raise him, 
 without immediately losing him and weakening 
 their own cause ; nay, they inspire him with views 
 directly opposite to their own, and send him to join 
 and increase the number of their enemies. 
 
 Thus, at Rome, after the feeble barrier which 
 excluded the people from offices of power and 
 dignity had been thrown down, the great ple- 
 beians, whom the votes of the people began to 
 raise to those offices, were immediately received 
 into the senate, as has been just now observed. 
 From that period, their families began to form, 
 in conjunction with the ancient patrician families, 
 a new combination, or political association of per- 
 
 state, to keep a watchful eye over the people, in order to draw over 
 to their own party any man who happens to acquire a considerable 
 influence among them; and this they are (and indeed must be) the 
 more attentive to do, in proportion as the nature of the government 
 is more democratical. 
 
 The constitution of Rome had even made express provisions 
 on that subject. Not only the censors could at once remove any 
 citizen into what tribe they pleased, and even into the senate 
 (and we may easily believe that they made a political use of 
 this privilege) ; but it was moreover a settled rule, that all persons 
 who had been promoted to any public office by the people, such as 
 the consulship, the acdileship, or tribuneship, became, ipso facto, 
 members of the senate. See Middleton's Dissertation on tlie 
 Roman Senate.
 
 40 . THE CONSTITUTION 
 
 sons ;* and as this combination was formed of no 
 particular class of citizens, but of all those who 
 had influence enough to gain admittance into it, a 
 single overgrown head was now to be seen in the 
 republic, which, consisting of all who had either 
 wealth or power of any kind, and disposing at will 
 of the laws and the power of the people, j~ soon lost 
 all regard to moderation and decency. 
 
 Every constitution, therefore, whatever may be 
 its form, which does not provide for inconveniences 
 of the kind here mentioned, is a constitution 
 essentially imperfect. It is in man himself that 
 the source of the evils to be remedied lies ; gene- 
 ral precautions therefore can only prevent them. 
 If it be a fatal error entirely to rely on the justice 
 and equity of those who govern, it is an error no 
 less dangerous to imagine, that, while virtue and 
 moderation are the constant companions of those 
 who oppose the abuses of power, all ambition, 
 all thirst after dominion, have retired to the other 
 party. 
 
 Though wise men, led astray by the power of 
 names, and the heat of political contentions, may 
 sometimes lose sight of what ought to be their real 
 aim, they nevertheless know that it is not against 
 the Appii, the Coruncanii, the Cethegi, but against 
 
 * Called nobiles and nobilitas. l4 9 
 
 fit was, in several respects, a misfortune for the people of Rome, 
 whatever may have been said to the contrary by the writers on this 
 subject, that the distinction between the patricians and the plebeians 
 was ever abolished ; though to say the truth, this was an event 
 which could not be prevented. 
 
 14 9 Nobles and nobility. See also, note, page 188. EDITOR.
 
 OF ENGLAND. 241 
 
 all those who can influence the execution of the 
 laws, that precautions ought to be taken; that it 
 is not the consul, the praetor, the archon, the mi- 
 nister, the king, whom he ought to dread, nor the 
 tribune, or the representative of the people, on 
 whom we ought implicitly to rely : but that all 
 those persons, without distinction, ought to be the 
 objects of our jealousy, who, by any methods, and 
 under any names whatsoever, have acquired the 
 means of turning against each individual the col- 
 lective strength of all, and have so ordered things 
 around themselves, that whoever attempts to resist 
 them, is sure to find himself engaged alone against 
 a thousand. 150 
 
 130 How far the profound and unanswerable strictures on deino- 
 oratical governments contained in the foregoing chapter are appli- 
 cable to the republic of the United States of America, time alone 
 can show. Fortunately for them, they have a house of representa- 
 tives, borrowed from their parent state of England ; it is, however, 
 divided into two parties, the federalists, and the democrats ; the 
 former, anxious to support and preserve the government as now 
 established ; the latter, to render it more consonant with the forms 
 of a pure democracy. If the time should arrive that the peop'e of 
 that country should lose their liberties, such an event will most 
 likely have been preceded by loss of power on the part of the 
 federalists, and the dominion of the democrats. EDITOR. 
 
 R
 
 THE CONSTITUTION 
 
 CHAPTER X. 
 
 Fundamental Difference between the English 
 Government, and the Governments just de- 
 scribed. In England all Executive' Authority 
 is placed out of the Hands of those in whom 
 the People trust. Usefulness of the Power of 
 the Crown. 
 
 Itf what manner then has the English constitution 
 contrived to find a remedy for evils which, from 
 the very nature of men and things, seem to be 
 irremediable ? How has it found means to oblige 
 those persons to whom the people have given up 
 their power, to make them effectual and lasting 
 returns of gratitude ? those who enjoy an exclu- 
 sive authority, to seek the advantage of all ? those 
 who make the laws, to make only equitable ones ? 
 It has been by subjecting themselves to those laws, 
 and for that purpose excluding them from all share 
 in the execution of them. 
 
 Thus, the parliament can establish as numerous 
 a standing army as it will ; but immediately another 
 power comes forward, which takes the absolute 
 command of it, fills all the posts in it, and directs 
 its motion at its pleasure. The parliament may 
 lay new taxes ; but immediately another power 
 seizes the produce of them, and alone enjoys the 
 advantages and glory arising from the disposal of 
 it. The parliament may even, if you please, re- 
 peal the laws on which the safety of the subject is 
 grounded ; but it is not their own caprices and
 
 OF ENGLAND. <M<3 
 
 arbitrary humours, it is the caprices and passions 
 of other men, which they will have gratified, when 
 they shall thus have overthrown the columns of 
 public liberty. 
 
 And the English constitution has not only ex- 
 cluded from any share in the execution of the 
 laws, those in whom the people trust for the en- 
 acting them, but it has also taken from them what 
 would have had the same pernicious influence on 
 their deliberations the hope of ever invading that 
 executive authority, and transferring it to themselves. 
 
 This authority has been made in England one 
 single, indivisible prerogative : it has been made for 
 ever the inalienable attribute of one person, marked 
 out and ascertained before-hand by solemn laws and 
 long-established customs ; and all the active forces 
 in the state have been left at his disposal. 
 
 In order to secure this prerogative still farther 
 against all possibility of invasions from individuals, 
 it has been heightened and strengthened by every 
 thing that can attract and fix the attention and 
 reverence of the people. The power of conferring 
 and withdrawing places and employments has also 
 been added to it ; and ambition itself has thus been 
 interested in its defence and service. 
 
 A share in the legislative power has also been 
 given to the man to whom this prerogative has 
 been delegated ; a passive share indeed, and the 
 only one that can, with safety to the state, be 
 trusted to him, but by means of which he is enabled 
 to defeat every attempt against his constitutional 
 authority. 
 
 Lastly, he is the only self-existing and perma-
 
 244 THE CONSTITUTION 
 
 nent power in the state. The generals, the mi- 
 nisters of state, are so only by the continuance of 
 his pleasure. He would even dismiss the parlia- 
 ment itself, if ever he saw it begin to entertain 
 dangerous designs ; and he needs only to say one 
 word to disperse every power in the state that may 
 threaten his authority. Formidable prerogatives 
 these ; but with regard to which we shall be in- 
 clined to lay aside our apprehensions, if on one 
 hand we consider the great privileges of the people 
 by which they have been counterbalanced, and, 
 on the other, the happy consequences that result 
 from their being thus united. 
 
 From this unity, and, if I may so express myself, 
 this total sequestration of the executive autho- 
 rity, this advantageous consequence in the first 
 place results the attention of the whole nation is 
 directed to one and the same object. The people, 
 besides, enjoy this most essential advantage, which 
 they would vainly endeavour to obtain under the 
 government of many ; they can give their con- 
 fidence, without giving power over themselves, and 
 against themselves ; they can appoint trustees, and 
 yet not give themselves masters. 
 
 Those men to whom the people have delegated 
 the power of framing the laws, are thereby made 
 sure to feel the whole pressure of them. They can 
 increase the prerogatives of the executive authority, 
 but they cannot invest themselves with it: they 
 have it not in their power to command its motions, 
 they only can unbind its hands. 
 
 They are made to derive their importance from 
 (nay, they are indebted for their existence to) the
 
 OF ENGLAND. 
 
 need in which that power stands of their assist- 
 ance; and they know that they would no sooner have 
 abused the trust of the people, and completed the 
 treacherous work, than they would see themselves 
 dissolved, spurned, like instruments now spent and 
 become useless, 
 
 This same disposition of thing's also prevents in 
 England that essential defect, inherent in the go- 
 vernment of many, which has been described in the 
 preceding chapter. 
 
 In that sort of government, the cause of the 
 people, as has been observed, is continually deserted 
 and betrayed. The arbitrary prerogatives of the 
 governing powers are at all times either openly or 
 secretly favoured, not only by those in whose pos- 
 session they are, not only by those who have good 
 reason to hope that they shall at some future time 
 share in the exercise of them, but also by the whole 
 crowd of those men who, in consequence of the na- 
 tural disposition of mankind to over-rate their own 
 advantages, fondly imagine, either that they shall 
 one day enjoy some branch of this governing au- 
 thority, or that they are even already, in some way 
 or other, associated to it. 
 
 But as this authority has been made, in Eng- 
 land, the indivisible, inalienable attribute of one 
 alone, all other persons in the state, are, ipso facto, 
 interested to confine it within its due bounds. 
 Liberty is thus made the common cause of all j 
 the laws that secure it are supported by men of 
 every rank and order ; and the Habeas Corpus 
 Act, for instance, is as zealously defended by the
 
 246 THE CONSTITUTION 
 
 first nobleman in the kingdom as by the meanest 
 subject. 
 
 Even the minister himself, in consequence of this 
 inalienability of the executive authority, is equally 
 interested with his fellow- citizens to maintain the 
 laws on which public liberty is founded. He 
 knows, in the midst of his schemes for enjoying or 
 retaining his authority, that a court-intrigue or a 
 caprice may at every instant confound him with the 
 multitude, and the rancour of a successor, long 
 kept out, send him to linger in the same prison 
 which his temporary passions might tempt him to 
 prepare for others. 
 
 In consequence of this disposition of things, 
 great men are made to join in a common cause with 
 the people, for restraining the excesses of the go- 
 verning power ; and, which is no less essential to 
 the public welfare, they are also, from the same 
 cause, compelled to restrain the excess of their own 
 private power and influence ; and a general spirit 
 of justice becomes thus diffused through all parts of 
 the state. 
 
 The wealthy commoner, the representative of the 
 people, the potent peer, always having before their 
 eyes the view of a formidable power, of a power, 
 from the attempts of which they have only the 
 shield of the laws to protect them, and which would, 
 in the issue, retaliate a hundred-fold upon them 
 their acts of violence, are compelled, both to wish 
 only for equitable laws, and to observe them with 
 scrupulous exactness. 
 
 Let then the people dread (it is necessary to
 
 OF ENGLAND. 24-7 
 
 the preservation of their liberty), but let them 
 never entirely cease to love, the throne, that sole 
 and indivisible seat of all the active powers in the 
 state. 
 
 Let them know, it is that, which, by lending 
 an immense strength to the arm of justice, has 
 enabled her to bring to account, as well the most 
 powerful as the meanest offender, which has sup- 
 pressed, and, if I may so express myself, weeded 
 out all those tyrannies, sometimes confederated 
 with, and sometimes adverse to, each other, which 
 incessantly tend to grow up in the middle of 
 civil societies, and are the more terrible in pro- 
 portion as they feel themselves to be less firmly es- 
 tablished. 
 
 Let them know, it is that, which, by making all 
 honours and places depend on the will of one man, 
 has confined within private walls those projects, 
 the pursuit of which, in former times, shook the 
 foundations of whole states ; has changed into in- 
 trigues the conflicts, the outrages of ambition : 
 and that those contentions which, in the present 
 times, afford them only matter of amusement, are 
 the volcanoes which set in flames the ancient com- 
 monwealths. 
 
 It is that, which, leaving to the rich no other 
 security for his palace than that which the peasant 
 has for his cottage, has united his cause to that of 
 the latter ; the cause of the powerful to that of 
 the helpless, the cause of the man of extensive in- 
 fluence and connexions to that of him who is with- 
 out friends. 
 
 It is the throne ab,9ve all, it is this jealous power,
 
 248 THE CONSTITUTION 
 
 which makes the people sure that its representatives 
 never will be any thing- more than its representa- 
 tives : at the same time it is the ever-subsisting 
 Carthage, which vouches to it for the duration of 
 their virtue. 
 
 CHAPTER XI. 
 
 The Power which the People themselves exercise. 
 The Election of Members of Parliament. 
 
 THE English constitution having- essentially con- 
 nected the fate of the men to whom the people trust 
 their power with that of the people themselves, 
 really seems, by that caution alone, to have pro- 
 cured the latter a complete security. 
 
 However, as the vicissitudes of human affairs 
 may, in process of time, realize events which at 
 first had appeared most improbable, it might hap- 
 pen that the ministers of the executive power, not- 
 withstanding 1 the interest they themselves have in 
 the preservation of public liberty, and in spite of 
 the precautions expressly taken to prevent the 
 effect of their influence, should at length employ 
 such efficacious means of corruption as might bring 
 about a surrender of some of the laws upon which 
 this public liberty is founded. And though we 
 should suppose that such a danger would really be 
 chimerical, it might at last happen, that, conniving 
 at a vicious administration, and being over-liberal 
 of the produce of general labour, the representa-
 
 OF ENGLAND. 249 
 
 lives of the people might make them suffer many 
 of the evils which attend worse forms of govern- 
 ment. 
 
 Lastly, as their duty does not consist only in 
 preserving their constituents against the calamities 
 of an arbitrary government, but moreover in pro- 
 curing them the best administration possible, it 
 might happen that they would manifest, in this re- 
 spect, an indifference which would, in its conse- 
 quences, amount to a real calamity. 
 
 It was, therefore, necessary that the constitution 
 should furnish a remedy for all the above cases : 
 now, it is in the right of electing members of par- 
 liament, that this remedy lies. 
 
 When the time is come at which the commission 
 given by the people to their delegates expires, they 
 again assemble in their several towns or counties : 
 on these occasions they have it in their power to 
 elect again those of their representatives whose 
 former conduct they approve, and to reject those 
 who have contributed to give rise to their com- 
 plaints : a simple remedy this, and which only re- 
 quiring, in its application, a knowledge of matters 
 of fact, is entirely within the reach of the abilities 
 of the people ; but a remedy, at the same time, 
 which is the most effectual that could be applied ; 
 for, as the evils complained of arise merely from 
 the peculiar dispositions of a certain number of in- 
 dividuals, to set aside those individuals is to pluck 
 up the evil by the roots. 
 
 But I perceive, that, in order to make the reader 
 sensible of the advantages that may accrue to the 
 people of England from their right of election,
 
 THE CONSTITUTION 
 
 there is another of their rights, of which it is 
 absolutely necessary that I should first give an 
 account. 
 
 CHAPTER XII. 
 
 The same Subject continued. Liberty of the 
 Press. 
 
 As the evils that may be complained of in a state 
 do not always arise merely from the defect of the 
 laws, but also from the non-execution of them j 
 and this non-execution of such a kind, that it is 
 often impossible to subject it to any express punish- 
 ment, or even to ascertain it by any previous defi- 
 nition ; men, in several states, have been led to 
 seek for an expedient that might supply the un- 
 avoidable deficiency of legislative provisions, and 
 begin to operate, as it were, from the point at 
 which the latter begin to fail : I mean here to 
 speak of the censorial power, a power which may 
 produce excellent effects, but the exercise of which 
 (contrary to that of the legislative power) must be 
 left to the people themselves. 
 
 As the proposed end of legislation is not, accord- 
 ing to what has been above observed, to have the 
 particular intentions of individuals, upon every 
 case, known and complied with, but solely to have 
 what is most conducive to the public good, on the 
 occasions that arise, found out and established, it 
 is not an essential requisite in legislative operations
 
 OF ENGLAND. 51 
 
 that every individual should be called upon to de- 
 liver his opinion ; and since this expedient, which 
 at first sight appears so natural, of seeking- out by 
 the advice of all that which concerns all, is found 
 liable, when carried into practice, to the greatest 
 inconveniences, we must not hesitate to lay it aside 
 entirely. But as it is the opinion of individuals 
 alone which constitutes the check of a censorial 
 power, this power cannot produce its intended 
 effect any farther than this public opinion is made 
 known and declared : the sentiments of the people 
 are the only thing in question here : it is therefore 
 necessary that the people should speak for them- 
 selves, and manifest those sentiments. A parti- 
 cular court of censure would essentially frustrate 
 its intended purpose : it is attended, besides, with 
 very great inconveniences. 
 
 As the use of such a court is to determine upon 
 those cases which lie out of the reach of the laws, 
 it cannot be tied down to any precise regulations. 
 As a farther consequence of the arbitrary nature of 
 its functions, it cannot even be subjected to any 
 constitutional check ; and it continually presents 
 to the eye the view of a power entirely arbitrary, 
 and which in its different exertions may affect, in 
 the most cruel manner, the peace and happiness 
 of individuals. It is attended, besides, with this 
 very pernicious consequence, that, by dictating to 
 the people their judgment of men or measures, it 
 takes from them that freedom of thinking, which 
 is the noblest privilege, as well as the firmest sup- 
 port of liberty.* 
 
 * M. de Montesquieu, and M. Rousseau, aud indeed all the
 
 THE CONSTITUTION 
 
 We may therefore look upon it as a farther proof 
 of the soundness of the principles on which the 
 English constitution is founded, that it has allotted 
 to the people themselves the province of openly 
 canvassing 1 and arraigning the conduct of those who 
 are invested with any branch of public authority ; 
 and that it has thus delivered into the hands of the 
 people at large the exercise of the censorial power. 
 Every subject in England has not only a right to 
 present petitions to the king, or to the houses of 
 parliament, but he has a right also to lay his com- 
 plaints and observations before the public, by means 
 of an open press : a formidable right this, to those 
 who rule mankind ; and which, continually dis- 
 
 vvriters on this subject I have met with, bestow vast encomiums on 
 the censorial tribunal that had been instituted at Rome: they 
 have not been aware that this power of censure, lodged in the 
 hands of peculiar magistrates, with other discretionary powers an- 
 nexed to it, was no other than a piece of state-craft, like those de- 
 scribed in the preceding chapters, and had been contrived by the 
 senate as an additional mean of securing its authority. Sir Thomas 
 More has also adopted similar opinions on the subject : and he is 
 so far from allowing the people to canvass the actions of their rulers, 
 that in his System of Policy, which he calls An Account of Utopia 
 (the happy region, ev and T-OTTOC), he mates it death for individuals 
 to talk about the conduct of government. 
 
 I feel a kind of pleasure, I must confess, to observe, on this 
 occasion, that though I have been called by some an advocate for 
 power, 1 have earned my ideas of liberty farther than many writers 
 who have mentioned that word with much enthusiasm. 151 
 
 151 As far as the author's sentiments are to be collected from his 
 work, he was far from being an advocate of arbitrary power. He was 
 not, it is true, the friend of a wild, licentious state of society, falsely 
 called freedom, but of that calm, rational liberty which allows 
 every one the enjoyment of his own, and secures to him freedom 
 fearlessly to do, and say, whatever is lawful. EDITOR.
 
 OP ENGLAND. 2,53 
 
 polling the cloud of majesty by which they are 
 surrounded, brings them to a level with the rest 
 of the people, and strikes at the very being of their 
 authority. 
 
 And indeed this privilege is that which has been 
 obtained by the English nation with the greatest 
 difficulty, and latest in point of time, at the ex- 
 pense of the executive power. Freedom was in 
 every other respect already established, when the 
 English were still, with regard to the public ex- 
 pression of their sentiments, under restraints that 
 may be called despotic. History abounds with 
 instances of the severity of the Court of Star- 
 chamber, against those who presumed to write on 
 political subjects. It had fixed the number of 
 printers and printing-presses, and appointed a 
 licenser, without whose approbation no book could 
 be published. Besides, as this tribunal decided 
 matters by its own single authority, without the 
 intervention of a jury, it was always ready to find 
 those persons guilty whom the court was pleased 
 to look upon as such : nor was it indeed without 
 ground that the chief-justice Coke, whose notions 
 of liberty were somewhat tainted with the preju- 
 dices of the times in which he lived, concluded the 
 eulogiums he bestowed on this court, with saying, 
 that "the right institution and orders thereof being 
 " observed, it doth keep all England in quiet." 
 
 After the Court of Star-chamber had been abo- 
 lished, the Long Parliament, whose conduct and 
 assumed power were little better qualified to bear 
 a scrutiny, revived the regulations against the free- 
 dom of the press. Charles the Second, and after
 
 THE CONSTITUTION 
 
 him James the Second, procured farther renewals 
 of them. These latter acts having expired in the 
 year 1692, were at this sera, although posterior to 
 the Revolution, continued for two years longer ; so 
 that it was not till the year 1694, that, in conse- 
 quence of the parliament's refusal to prolong the 
 prohibitions, the freedom of the press (a privilege 
 which the executive power could not, it seems, 
 prevail upon itself to yield up to the people) was 
 finally established. 
 
 In what, then, does this liberty of the press pre- 
 cisely consist ? Is it a liberty left to every one to 
 publish any thing that comes into his head? to ca- 
 lumniate, to blacken, whomsoever he pleases ? No ; 
 the same laws that protect the person and the pro- 
 perty of the individual, do also protect his reputa- 
 tion ; and they decree against libels, when really 
 so, punishments of much the same kind as are esta- 
 blished in other countries. 152 But, on the other 
 hand, they do not allow, as in other states, that a 
 man should be deemed guilty of a crime for merely 
 publishing something in print ; and they appoint a 
 punishment only against him who has printed things 
 that are in their nature criminal, and who is de- 
 clared guilty of so doing by twelve of his equals, 
 appointed to determine upon his case, with the pre- 
 cautions we have before described. 
 
 The liberty of the press, as established in Eng- 
 land, consists therefore (to define it more precisely) 
 in this, that neither the courts of justice, nor any 
 
 162 Our law of libel is declared by the French to be much more 
 severe than their's ; they say, our's is an avenging, their's a pre- 
 ventive, law. EDITOR.
 
 OF ENGLAND. 255 
 
 other judges whatever, are authorised to take notice 
 of writings intended for the press, but are confined 
 to those which are actually printed, and must, in 
 these cases, proceed by the trial by jury. 
 
 It is even this latter circumstance which more 
 particularly constitutes the freedom of the press. 
 If the magistrates, though confined in their pro- 
 ceedings to cases of criminal publications, were to 
 be the sole judges of the criminal nature of the 
 things published, it might easily happen that, with 
 regard to a point which, like this, so highly excites 
 the jealousy of the governing powers, they would 
 exert themselves with so much spirit and perse- 
 verance, that they might, at length, succeed in 
 completely striking off all the heads of the hydra. 
 
 But whether the authority of the judges be ex- 
 erted at the motion of a private individual, or 
 whether it be at the instance of the government 
 itself, their sole office is to declare the punishment 
 established by the law : it is to the jury alone that 
 it belongs to determine on the matter of law, as 
 well as on the matter of fact ; that is, to determine, 
 not only whether the writing, which is the subject 
 of the charge, has really been composed by the man 
 charged with having done it, and whether it be 
 really meant of the person named in the indictment, 
 but also whether its contents are criminal. 
 
 And though the law in England does not allow 
 a man, prosecuted for having published a libel, to 
 offer to support by evidence the truth of the facts 
 contained in it* (a mode of proceeding which would 
 
 * In actions for damages between individuals, the case, if I
 
 256 THE CONSTITUTION 
 
 be attended with very mischievous consequences, 
 and is every where prohibited), yet, as the indict- 
 ment is to express that the facts &rejhlse t malicious, 
 &c. and the jury, at the same time, are sole masters 
 of their verdict, that is, may ground it upon what 
 considerations they please, it is very probable that 
 they would acquit the accused party, if the fact, 
 asserted in the writing 1 before them, were matter of 
 undoubted truth, and of a general evil tendency. 
 They, at least, would certainly have it in their 
 power. 154 
 
 And it is still more likely that this would be the 
 case, if the conduct of the government itself was 
 arraigned ; because, besides this conviction which 
 we suppose in the jury, of the certainty of the facts, 
 they would also be influenced by their sense of a 
 principle generally admitted in England, and which, 
 in a late celebrated cause, was strongly insisted 
 upon, viz. That, "though to speak ill of indivi- 
 " duals deserved reprehension, yet the public acts 
 " of government ought to lie open to public exami- 
 " nation, and that it was a service done to the state 
 " to canvass them freely." * 
 
 mistake not, is different, and the defendant is allowed to produce 
 evidence of the facts asserted by him. 153 
 
 * See Serjeant Glynn's Speech for Woodfall in the prosecution 
 
 153 The author is quite correct. The defendant in such an ac- 
 tion is allowed to put in a plea of justification, and, of course, 
 therefore, to give evidence in support of such plea. EDITOR. 
 
 154 Although constantly told from the bench that, in the eye of 
 the law, the publication of truth and falsehood may be alike a 
 libel, juries are generally found to combine common sense and 
 discretion with law in their verdicts. EDITOR.
 
 OF ENGLAND. 257 
 
 And indeed this extreme security with which 
 every man in England is enabled to communicate 
 his sentiments to the public, and the general con- 
 cern which matters relative to the government are 
 always sure to create, have wonderfully multiplied 
 all kinds of public papers. Besides those which, 
 being published at the end of every year, month, 
 or week, present to the reader a recapitulation of 
 every thing interesting that may have been done 
 or said during their respective periods, there are 
 several others, which, making their appearance 
 every day, or every other day, communicate to the 
 public the several measures taken by the govern- 
 ment, as well as the different causes of any impor- 
 tance, whether civil or criminal, that occur in the 
 courts of justice, and sketches from the speeches 
 either of the advocates, or the judges, concerned in 
 the management and decision of them. During the 
 time the parliament continues sitting, the votes 
 or resolutions of the house of commons are daily 
 published by authority ; and the most interesting 
 speeches in both houses are taken down in short- 
 hand, and communicated to the public in print. 15 " 
 
 against the latter, by the attorney-general, for publishing Junius' 
 Letter to the King. 
 
 155 The taking down, and publication, of the members' speeches, 
 so far from being allowed, are breaches of the positive orders of 
 both houses ; but the practice has been so long connived at that 
 it would be dangerous to the public peace to attempt to prevent it. 
 Any member, however, may, at any moment, by merely noticing 
 the presence of strangers in the house, cause their exclusion ; or, 
 at any time bring the publisher of a newspaper to the bar of the 
 house for a false report of his speech, an offence which both 
 houses have full power to punish. EDITOR. 
 
 S
 
 THE CONSTITUTION 
 
 Lastly, the private anecdotes in the metropolis, 
 and the country, concur also towards filling- the 
 collection ; and as the several public papers circu- 
 late, or are transcribed into others, in the different 
 country towns, and even find their way into the 
 villages, where every man, down to the labourer, 
 peruses them with a sort of eagerness, every indi- 
 vidual thus becomes acquainted with the state of 
 the nation, from one end to the other ; and by 
 these means the general intercourse is such, that 
 the three kingdoms seem as if they were one single 
 town. 
 
 And it is this public notoriety of all things that 
 constitutes the supplemental power, or check, which, 
 we have above said, is so useful to remedy the un- 
 avoidable insufficiency of the laws, and keep within 
 their respective bounds all those persons who enjoy 
 any share of public authority. 
 
 As they are thereby made sensible that all their 
 actions are exposed to public view, they dare not 
 venture upon those acts of partiality, those secret 
 connivances at the iniquities of particular persons, 
 or those vexatious practices which the man in office 
 is but too apt to be guilty of, when, exercising 
 his office at a distance from the public eye, and as 
 it were in a corner, he is satisfied, that provided 
 he be cautious, he may dispense with being just. 
 Whatever may be the kind of abuse in which per- 
 sons in power may, in such a state of things, be 
 tempted to indulge themselves, they are convinced 
 that their irregularities will be immediately di- 
 vulged. The juryman, for example, knows that 
 his verdict the judge, that his direction to the
 
 OF ENGLAND. 259 
 
 jury will presently be laid before the public: and 
 there is no man in office, but who thus finds him- 
 self compelled, in almost every instance, to choose 
 between his duty, and the surrender of all his 
 former reputation. 
 
 It will, I am aware, be thought that I speak 
 in too high terms of the effects produced by the 
 public newspapers. I indeed confess that all the 
 pieces contained in them are not patterns of good 
 reasoning, or of the truest Attic wit ; but, on the 
 other hand, it scarcely ever happens that a subject 
 in which the laws, or in general the public welfare, 
 are really concerned, fails to call forth some able 
 writer, who, under some form or other, communi- 
 cates to the public his observations and complaints. 
 I shall add here, that, though an upright man, la- 
 bouring for a while under a strong popular preju- 
 dice, may, supported by the consciousness of his 
 innocence, endure with patience the severest im- 
 putations ; the guilty man, hearing nothing in the 
 reproaches of the public but what he knows to be 
 true, and already upbraids himself with, is very far 
 from enjoying any such comfort ; and that, when 
 a man's own conscience takes part against him, the 
 most despicable weapon is sufficient to wound him 
 to the quick.* 
 
 * I shall take this occasion to observe, that the liberty of the 
 press is so far from being injurious to the reputation of individuals 
 (as some persons have complained), that it is, on the contrary, its 
 surest guard. When there exists no means of communication 
 with the public, every one is exposed, without defence, to the secret 
 shafts of malignity and envy. The man in office loses his repu- 
 tation, the merchant his credit, the private individual his character, 
 without so much as knowing either who are his enemies, or which
 
 260 THE CONSTITUTION 
 
 Even those persons whose greatness seems most 
 to set them above the reach of public censure, are 
 not those who least feel its effects. They have 
 need of the suffrages of that vulgar whom they 
 affect to despise, and who are, after all, the dis- 
 pensers of that glory which is the real object of 
 their ambitious cares. Though all have not so 
 much sincerity as Alexander, they have equal rea- 
 son to exclaim, people ! what toils do we not un- 
 dergo, in order to gain your applause ! 
 
 I confess that in a state where the people dare 
 not speak their sentiments, but with a view to 
 please the ears of their rulers, it is possible that 
 either the prince, or those to whom he has trusted 
 his authority, may sometimes mistake the nature of 
 the public sentiments j or that, for want of that 
 affection of which they are denied all possible marks, 
 they may rest contented with inspiring terror, and 
 make themselves amends in beholding the over- 
 awed multitude smother their complaints. 
 
 But when the laws give a full scope to the 
 people for the expression of their sentiments, those 
 who govern cannot conceal from themselves the 
 disagreeable truths which resound from all sides. 
 They are obliged to put up even with ridicule ; 
 and the coarsest jests are not always those which 
 give them the least uneasiness. Like the lion in 
 the fable, they must bear the blows of those ene- 
 mies whom they despise the most ; and they are, 
 
 way they carry on their attacks. But when there exists a free 
 press, an innocent man immediately brings the matter into open 
 day, and crushes his adversaries, at once, by a public challenge to 
 lay before the public the grounds of their several imputations.
 
 OF ENGLAND. 26l 
 
 at length, stopped short in their career, and com- 
 pelled to give up those unjust pursuits which, they 
 find, draw upon them, instead of that admiration 
 which is the proposed end and reward of their 
 labours, nothing but mortification and disgust. 
 
 In short, whoever considers what it is that con- 
 stitutes the moving principle of what we call 
 great affairs, and the invincible sensibility of man 
 to the opinion of his fellow- creatures, will not 
 hesitate to affirm, that if it were possible for the 
 liberty of the press to exist in a despotic govern- 
 ment, and (what is not less difficult) for it to exist 
 without changing the constitution, this liberty 
 would alone form a counterpoise to the power of 
 the prince. 150 If, for example, in an empire of the 
 East, a place could be found which, rendered re- 
 spectable by the ancient religion of the people, 
 might ensure safety to those who should bring 
 thither their observations of any kind, and from 
 this sanctuary printed papers should issue, which, 
 under a certain seal, might be equally respected, 
 and which in their daily appearance should examine 
 and freely discuss the conduct of the cadis, the 
 pashas, the vizir, the divan, and the sultan himself, 
 that would immediately introduce some degree of 
 liberty. 
 
 156 Judge Blackstone, in his commentaries, expresses similar 
 opinions. EDITOR.
 
 262 THE CONSTITUTION 
 
 CHAPTER XIII. 
 
 The Subject continued. 
 
 ANOTHER effect, and a very considerable one, of 
 the liberty of the press, is, that it enables the peo- 
 ple effectually to exert those means which the consti- 
 tution has bestowed on them, of influencing the mo- 
 tions of the government. 
 
 It has been observed in a former place, how it 
 came to be a matter of impossibility for any large 
 number of men, when obliged to act in a body, 
 and upon the spot, to take any well-weighed re- 
 solution. But this inconvenience, which is the 
 inevitable consequence of their situation, does in 
 nowise argue a personal inferiority in them, with 
 respect to the few who, from some accidental ad- 
 vantages, are enabled to influence their determina- 
 tions. It is not fortune, it is nature, that has 
 made the essential differences between men j and 
 whatever appellation a small number of persons, 
 who speak without sufficient reflection, may affix 
 to the general body of their fellow-creatures, the 
 whole difference between the statesman, and many 
 a man from among what they call the dregs of 
 the people, often lies in the rough outside of the 
 latter, a disguise which may fall off on the first 
 opportunity : and more than once has it happened, 
 that from the middle of a multitude, in appearance
 
 OF ENGLAND. 263 
 
 contemptible, a Viriatus has been suddenly seen to 
 rise, 157 or a Spartacus to burst forth. 158 
 
 Time, and a more favourable situation, are there- 
 fore the only things wanting to the people ; and 
 the freedom of the press affords the remedy to 
 these disadvantages. Through its assistance, every 
 
 157 Viriatus was a mean shepherd of Lusitania, who gradually 
 rose to power, and by first heading a gang of robbers, saw himself 
 at last followed by a numerous army. He made war against the 
 Romans with uncommon success, and for fourteen years enjoyed the 
 envied title of protector of public liberty in the provinces of Spain. 
 Many generals were defeated, and Pompey himself was ashamed 
 to find himself beaten. Csepio was at last sent against him. But 
 his despair of conquering him by force of arms, obliged him to have 
 recourse to artifice, and he had the meanness to bribe the servants 
 of Viriatus to murder their master, B. c. 40. EDITOR. 
 
 158 Spartacus was a Thracian shepherd, celebrated for his abili- 
 ties and the victories he obtained over the Romans. Being one of 
 the gladiators who were kept at Capua in the house of Lentulus, 
 he escaped from the place of his confinement with thirty of his 
 companions, and took up arms against the Romans. He soon 
 found himself with ten thousand men equally resolute with him- 
 self, and though at first obliged to hide himself in the woods and 
 solitary retreats of Campania, he soon laid waste the country ; and 
 when his followers were increased by additional numbers, and better 
 disciplined, and more completely armed, he attacked the Roman 
 generals in the field of battle. Two consuls, and other officers, 
 were defeated with much loss ; and Spartacus, superior in counsel 
 and abilities, appeared more terrible, though often deserted by his 
 fickle attendants. Crassus was sent against him, but this celebrated 
 general at first despaired of success. A bloody battle was fought, 
 in which, at last, the gladiators were defeated. Spartacus behaved 
 with great valor ; when wounded in the leg, he fought on his knees, 
 covering himself with his buckler in one hand, and using his sword 
 with the other ; and when at last he fell, he fell upon a heap of 
 Romans, whom he had sacrificed to his fury, B. c. 71. In this 
 battle no less than forty thousand of the rebels were slain, and the 
 war was totally finished. EDITOR.
 
 264 THE CONSTITUTION 
 
 individual may, at his leisure and in retirement, 
 inform himself of every thing- that relates to the 
 questions on which he is to take a resolution. 
 Through its assistance, a whole nation, as it were, 
 holds a council, and deliberates, slowly indeed (for 
 a nation cannot be informed like an assembly of 
 judges), but after a regular manner, and with cer- 
 tainty. Through its assistance, all matters of fact 
 are at length made clear ; and, through the con- 
 flict of the different answers and replies, nothing 
 at last remains but the sound part of the argu- 
 ments.* 
 
 Hence, though all good men may not think 
 themselves^ obliged to concur implicitly in the tu- 
 
 * This right of publicly discussing political subjects is alone a 
 great advantage to a people who enjoy it ; and if the citizens of 
 Geneva preserved their liberty better than the people were able to 
 do in the other commonwealths of Switzerland, it was, I think, 
 owing to the extensive right they possessed of making public re- 
 monstrances to their magistrates. To these remonstrances the 
 magistrates (for instance the council of twenty-five, to which they 
 were usually made) were obliged to give an answer. If this answer 
 did not satisfy the remonstrating citizens, they took time, perhaps 
 two or three weeks, to make a reply to it, which must also be an- 
 swered ; and the number of citizens who went up with each new re- 
 monstrance increased, according as they were thought to have reason 
 on their side. Thus, the remonstrances which were made on ac- 
 count of the sentence against Rousseau, and were delivered at first 
 by only forty citizens, were afterwards often accompanied by about 
 nine hundred. This circun>tance, together with the ceremony 
 with which thoie remonstrances or representations were de- 
 livered, rendered them a great check on the conduct of the magis- 
 trates : they were even still more useful to the citizens of Geneva, 
 as preventives than as remedies ; and nothing was more likely to 
 deter the magistrates from taking a step of any kind than the 
 thought that it might give rise to a representation.
 
 OF ENGLAND. 265 
 
 multuary resolutions of a people whom their orators 
 take pains to agitate, yet, on the other hand, when 
 this same people, left to itself, perseveres in opi- 
 nions which have for a long time been discussed 
 in public writings, and from which (it is essential 
 to add) all errors concerning facts have been re- 
 moved, such perseverance is certainly a very re- 
 spectable decision ; and then it is, though only 
 then, that we may with safety say, " the voice of 
 the people is the voice of God." 
 
 How therefore can the people of England act, 
 when, having formed opinions which may really 
 be called their own, they think they have just 
 cause to complain of the administration ? It is, 
 as has been said above, by means of the right 
 they have of electing their representatives ; and 
 the same method of general intercourse that has 
 informed them with regard to the objects of their 
 complaints, will likewise enable them to apply the 
 remedy to them. 
 
 Through this medium they are acquainted with 
 the nature of the subjects that have been deliber- 
 ated upon in the assembly of their representatives j 
 they are informed by whom the different motions 
 were made, by whom they were supported ; and 
 the manner in which the suffrages are delivered, is 
 such, that they always can know the names of those 
 who have voted constantly for the advancement of 
 pernicious measures. 
 
 And the people not only know the particular 
 dispositions of every member of the house of com- 
 mons, but, from the general notoriety of affairs, 
 have also a knowledge of the political sentiments
 
 266 THE CONSTITUTION 
 
 of a great number of those whom their situation 
 in life renders fit to fill a place in that house. And 
 availing themselves of the several vacancies that 
 happen, and still more of the opportunity of a 
 general election, they purify, either successively or 
 at once, the legislative assembly ; and thus, with- 
 out any commotion or danger to the state, they 
 effect a material reformation in the views of the 
 government. 
 
 I am aware that some persons will doubt these 
 patriotic and systematic views, which I am here 
 attributing to the people of England, and will 
 object to me the disorders that sometimes happen 
 at elections. But this reproach, which, by the 
 way, comes with little propriety, from writers who 
 would have the people transact every thing in their 
 own persons, this reproach, I say, though true to 
 a certain degree, is not, however, so much so, as it 
 is thought by certain persons who have taken only 
 a superficial survey of the state of things. 
 
 Without doubt, in a constitution in which all 
 important causes of uneasiness are so effectually 
 prevented, it is impossible but that the people will 
 have long intervals of inattention. Being then sud- 
 denly called, from this state of inactivity, to elect 
 representatives, they have not examined before-hand 
 the merits of those who solicit their votes ; and the 
 latter have not had, amidst the general tranquillity, 
 any opportunity of making themselves known to 
 them. 
 
 The elector, persuaded, at the same time, that 
 the person whom he will elect will be equally in- 
 terested with himself in the support of public liberty,
 
 OF ENGLAND. 
 
 does not enter into laborious disquisitions, and from 
 which he sees he may exempt himself. Obliged, 
 however, to give the preference to somebody, he 
 forms his choice on motives which would not be ex- 
 cusable, if it were not that some motives are neces- 
 sary to make a choice, and that, at this instant, he 
 is not influenced by any other ; and indeed it must 
 be confessed, that, in the ordinary course of things, 
 and with electors of a certain rank in life, that can- 
 didate who gives the best entertainment has a great 
 chance to get the better of his competitors. 
 
 But if the measures of government, and the re- 
 ception of these measures in parliament, by means 
 of a too complying house of commons, should ever 
 be such as to spread a serious alarm among the 
 people, the same causes which have concurred to 
 establish public liberty would, no doubt, operate 
 again, and likewise concur in its support. A general 
 combination would then be formed, both of those 
 members of parliament who have remained true to 
 the public cause, and of persons of every order 
 among the people. Public meetings, in such cir- 
 cumstances, would be appointed ; general subscrip- 
 tions would be entered into, to support the ex- 
 penses, whatever they might be, of such a necessary 
 opposition ; and all private and unworthy purposes 
 being suppressed by the sense of the national 
 danger, the choice of the electors would then be 
 wholly determined by the consideration of the 
 public spirit of the candidates, and the tokens given 
 by them of such spirit. 
 
 Thus were those parliaments formed, which sup- 
 pressed arbitrary taxes and imprisonments. Thus
 
 268 THE CONSTITUTION 
 
 was it, that, under Charles the Second, the people, 
 when recovered from that enthusiasm of affection 
 with which they received a king so long 1 persecuted, 
 at last returned to him no parliaments but such as 
 were composed of a majority of men attached to 
 public liberty. Thus it was, that, persevering- in a 
 conduct which the circumstances of the times ren- 
 dered necessary, the people baffled the arts of the 
 government; and Charles dissolved three successive 
 parliaments, without any other effect than that of 
 having those same men re-chosen, and set again in 
 opposition to him, of whom he hoped he had rid 
 himself for ever. 
 
 Nor was James the Second happier in his at- 
 tempts than Charles had been. This prince soon 
 experienced that his parliament was actuated by 
 the same spirit as those which had opposed the de- 
 signs of his late brother ; and having suffered him- 
 self to be led into measures of violence, instead of 
 being better taught by the discovery he made of the 
 real sentiments of the people, his reign was termi- 
 nated by that catastrophe with which every one is 
 acquainted. 
 
 Indeed, if we combine the right enjoyed by the 
 people of England, of electing their representatives, 
 with the whole of the English government, we 
 shall become continually more and more sensible 
 of the excellent effects that may result from that 
 right. All men in the state are, as has been be- 
 fore observed, really interested in the support of 
 public liberty. Nothing but temporary motives, 
 and such as are quite peculiar to themselves, can 
 induce the members of anv house of commons to
 
 OF ENGLAND. 269 
 
 connive at measures destructive of this liberty. 
 The people, therefore, under such circumstances, 
 need only change these members, in order effec- 
 tually to reform the conduct of that house ; and it 
 may fairly be pronounced beforehand, that a house 
 of commons, composed of a new set of persons, 
 will, from this bare circumstance, be in the interests 
 of the people. 159 
 
 Hence, though the complaints of the people do 
 not always meet with a speedy and immediate re- 
 dress (a celerity which would be the symptom of a 
 fatal unsteadiness in the constitution, and would 
 sooner or later bring on its ruin) ; yet, when we 
 attentively consider the nature and the resources 
 of this constitution, we shall not think it too bold 
 an assertion to say, that it is impossible but that 
 complaints in which the people persevere (that is, 
 well-grounded complaints) will sooner or later be 
 redressed. 
 
 CHAPTER XIV. 
 
 Right of Resistance. 
 
 BUT all those privileges of the people, considered 
 in themselves, are but feeble defences against the 
 real strength of those who govern. All those pro- 
 visions, all those reciprocal rights necessarily sup- 
 
 15 9 If this might be correctly asserted previously to the passing of 
 the several reform acts in 1832, how much more so since, the re- 
 presentation being now of so much more popular a character ! 
 EDITOR.
 
 270 THE CONSTITUTION 
 
 pose that things remain in their legal and settled 
 course: what would then be the resource of the 
 people, if ever the prince, suddenly freeing him- 
 self from all restraint, and throwing himself as it 
 were out of the constitution, should no longer re- 
 spect either the person or the property of the 
 subject, and either should make no account of his 
 conventions with the parliament, or attempt to 
 force it implicitly to submit to his will ? It would 
 be resistance. 
 
 Without entering here into the discussion of a 
 doctrine which would lead us to inquire into the 
 first principles of civil government, consequently 
 engage us in a long disquisition, and with regard 
 to which, besides, persons free from prejudices 
 agree pretty much in their opinions, I shall only 
 observe here (and it will be sufficient for my pur- 
 pose) that the question has been decided in favour 
 of this doctrine by the laws of England, and that 
 resistance is looked upon by them as the ulti- 
 mate and lawful resource against the violences of 
 power. 
 
 It was resistance that gave birth to the Great 
 Charter, that lasting foundation of English liberty, 
 and the excesses of a power established by force 
 were also restrained by force.* It has been by 
 
 * Lord Lyttelton says, extremely well, in his Persian Letters, 
 " If the privileges of the people of England be concessions from 
 " the crown, is not the power of the crown itself a concession from 
 " the people?" It might be said with equal truth, and somewhat 
 more in point to the subject of this chapter, If the privileges of 
 the people be an encroachment on the power of kings, the power 
 itself of kings was at first an encroachment (no matter whether ef- 
 fected by surprise) on the natural liberty of the people.
 
 OF ENGLAND. 271 
 
 the same means that, at different times, the people 
 have procured the confirmation of the same charter. 
 Lastly, it has also been the resistance to a king who 
 made no account of his own engagements, that has, 
 in the issue, placed on the throne the family which 
 is now in possession of it. 
 
 This is not all ; this resource, which till then 
 had only been an act of force opposed to other acts 
 of force, was, at that sera, expressly recognized by 
 the law itself. The lords and commons, solemnly 
 assembled, declared, that " king James the Second, 
 " having endeavoured to subvert the constitution 
 " of the kingdom, by breaking the original con- 
 " tract between king and people, and having vio- 
 " lated the fundamental laws, and withdrawn him- 
 " self, had abdicated the government ; and that the 
 " throne was thereby vacant.' 
 
 * 
 
 * The Bill of Rights has since given a new sanction to all these 
 principles. 160 
 
 160 It will probably be expected of the Editor, that he should 
 state his views of the interesting and deeply-important question 
 treated of in this chapter, respecting which the most learned and 
 intelligent men differ widely in their opinions, and acknowledge 
 many practical difficulties. He feels impelled by a sacred sense of 
 duty humbly to state his decided conviction, that all the different 
 forms of government subsisting in the world are to be regarded as 
 the effect of the Almighty's permissive superintending providence 
 that all persons raised to and exercising authority therein (" THE 
 " POWERS THAT BE") are God's deputies and representatives 
 that it is an indispensable duty incumbent on all Christians of 
 every age, and nation, and grade in society, to render prompt and 
 quiet obedience to the governors under whom their lot is providen- 
 tially cast, patiently submitting to tbe hardships, and thankfully 
 receiving the benefits, thence accruing and that no objection should
 
 THE CONSTITUTION 
 
 And lest those principles, to which the revolution 
 thus gave a sanction, should, in process of time, be- 
 come mere arcana^ of state, exclusively appro- 
 be made by Christians to the vices of any form of government 
 under which the providence of God hath placed them, or to the 
 personal defects of any rulers administering the same, as an 
 excuse for denial of subjection, for resistance, for rebellion, unless 
 when the subordinate commands of earthly rulers are in manifest 
 contrariety to the supreme will and unerring mandates of the great 
 Sovereign of the universe. As a believer in revelation, he turns to 
 the inspired volume, and there finds it written (Romans xiii. 1, 2; 
 1 Peter ii. 13, 14), " Let every soul be subject unto the higher 
 " powers. For there is no power but of God : the powers that be 
 " are ordained (or ordered) of God. Whosoever therefore re- 
 " sisteth the power, resisteth the ordinance of God : and they that 
 " resist shall receive to themselves damnation" (or judgment). 
 " Submit yourselves to every ordinance of man for the Lord's sake' : 
 " whether it be to the king as supreme, or unto governors," &c. &c. 
 
 The Editor's interpretation of these passages receives no small 
 countenance from the admission of the celebrated Locke, the in- 
 trepid advocate of liberty and toleration ; and from the following 
 statements of archbishop Leighton, bishop Beveridge, bishop Jeremy 
 Taylor, Dr. Whitby, Pascal, Beausobre and Lenfant, Quesnel, 
 and the pious and learned reformer John Calvin. 
 
 " St. Paul, in this direction to the Romans, does not so much 
 " describe the magistrates that then were in Rome, as tells whence 
 " they, and all magistrates everywhere, have their authority, and 
 " for what end they have it, and should use it. ... All other govern- 
 " ments derived the power they had from God, as well as that of 
 " the Jews, though they had not the whole frame of their govern- 
 " ment immediately from Him as the Jews had. . . . Whether 
 " we take powers here in the abstract for political authority, or in 
 " the concrete, for the persons de facto, exercising political power 
 " and jurisdiction, the sense will be the same, (viz.) that Christians, 
 " by virtue of being Christians, are not any way exempt from obe- 
 " dience to the civil magistrates, nor ought by any means to resist 
 " them." Locke s Works, London, 1727, vol. iii. p. 328. 
 
 161 Secrets, or hidden mysteries. EDITOR.
 
 OF ENGLAND. 273 
 
 printed, and only known to a certain class of sub- 
 jects ; the same act, we have just mentioned, ex- 
 pressly ensured to individuals the right of publicly 
 
 " Nor is it a question so to be moved as to suspend, or at all 
 " abate, our obedience to that which possesses in the present where 
 " we live, what form of government is most just and commodious. 
 "... Though they (governors) were not fully true to that end 
 " (' the punishment of evil-doers and the praise of them that do 
 " well') in their deportment, but possibly did many things un- 
 " justly, yet as God hath ordained authority for this end, there 
 " is always so much justice in the most depraved government, as 
 " renders it a public good, and therefore puts upon inferiors an 
 " obligation to obedience." Archbishop Leightori's Works, Lon- 
 don, 1825, vol. i. p. 290, 291. 
 
 " I cannot but look upon a lawful King as truly a Representative 
 " of the most high God, as a Parliament is of the People ; and am, 
 " therefore, persuaded, that whosoever rebells against him, rebells 
 " against God Himself; not only in that he rebells against the Or- 
 " dinance of God, and so against the God of that Ordinance ; but 
 " because he rebells against him, whom God hath set up as His 
 " Vicegerent, to represent His Person and execute His Law, in such 
 " a part of His Dominions. . . . He that honours not the King, 
 " that represents God, cannot be said to fear God, who is repre- 
 " sented by him. . . . The wrath of God shall as certainly fall 
 " upon those that rise up against the King, as upon those that fight 
 " against God. And no wonder that the punishment should be the 
 " same, when the fault is the same : for he that fights against his 
 " King, fights against God Himself, who hath invested him with that 
 " power and authority to govern his people, representing His own 
 " Glorious Majesty before them. Upon this ground it is, that 1 
 " believe the wickedness of a Prince cannot be a sufficient plea 
 " for the disobedience of his subjects; for it is not the HOLINESS, 
 " but the AUTHORITY of God that he represents, which the most 
 " WICKED, as well as the most HOLY, person may be endowed with. 
 "... Insomuch that did I live amongst the Turks, I should look 
 " upon it as my duty to obey the Grand Seignior, in all his lawful 
 " edicts, as well as the most Christian and pious King in the world. 
 " For, suppose a Prince be never so WICKED and never so NE'GLI- 
 " GENT in his duty of PROTECTING me, it doth not follow that I must 
 
 T
 
 274 THE CONSTITUTION 
 
 preferring- complaints against the abuses of govern- 
 ment, and, moreover, of being provided with arms 
 for their own defence. Judge Blackstone expresses 
 
 " neglect mine of OBEYING him. ... If I am thus strictly obliged 
 " to honour, obey, and pray for, a bad Prince, how much more 
 " should I pay those duties to one who represents God, not only in 
 " his AUTHORITY, but in his HOLINESS too !" Bishop Beveridge's 
 Private Thoughts. London, 1713. Vol. i. pp. 249252. 
 
 " We must not be too busy in examining the prudence and un- 
 " reasonableness of human laws : for although we are not bound 
 " to believe them all to be the wisest ; yet if by inquiring into the 
 " lawfulness of them, or by any other instrument we find them to 
 " fail of that wisdom with which some others are ordained, yet we 
 " must never make use of it to disparage the person of the lawgiver, 
 " or to countenance any man's disobedience, much less our own." 
 Bishop Jeremy Taylor s Rules of Holy Living. London, 1817, 
 pp. 147, 148 
 
 " The resistance, which consists in non-subjection, or a refusal 
 " to yield actual obedience to the law of the superior, can only be 
 " allowed, when the matter of the law is sinful, and so forbidden 
 " by the higher Power ; not when it is judged inexpedient or un- 
 " profitable only : for of this, subjects are not to judge, but the law- 
 
 " giver only No resistance of the higher Powers by force can 
 
 " be allowed to any who have not the power of the sword .... For 
 " he that thus uses it, takes the sword without authority from ' Him 
 " to whom belongeth vengeance ' . . . . and so, without authority 
 " from Him to whom this power of the sword originally belongs." 
 Whitby's Commentary on the 13th chapter of Romans. 
 
 " II est dangereux de dire aux peuple que les loix ne sont pas 
 "justes; car il n'obeit qu'a cause qu'il les croit justes. C'est 
 " pourquoi il faut lui dire en meme temps qu'il doit obeir, parce 
 " qu'elles sont loix, comme il faut obeir aux superieurs, non parce 
 " qu'ils sont justes, mais parce qu'ils sont superieurs. Par la, toute 
 
 " sedition est prevenue, si on peut faire entendre cela II seroit 
 
 " bon qu'on obeit aux loix et coutumes, parce qu'elles sont loix." 
 Pense.es de Pascal, a Paris, 1803, tome i. p. 166. 
 
 " Le caractere de la Religion Chretienne est d'inspirer la sou- 
 " mission et 1'obeissance aux Superieurs, dans tout ce qui n'est pas 
 " contraire a la Loi de Dieu." Le Nouveau Testament, par Beau- 
 sobre et Lenfant, a Amsterdam, 1741, tome i. p. 91.
 
 OF ENGLAND. 
 
 himself in the following- terms, in his Commentaries 
 on the Laws of England. 
 
 " To vindicate these rights, when actually vio- 
 
 " Le 2 devoir des sujets envers les puissances, qui est un litre 
 " que PApotre donne aux rois comme aux anges, est de ne pas 
 " regarder leurs defauts personnels, qui viennent d'eux-uieuaes ; 
 " mais leur puissance qui vient de Dieu, et qui est toujours bonne. 
 " L'Apotre ajoute la qualite de superieures a celles de puissances ; 
 " parce que les rois n'ont personue au dessus d'eux pour le lein- 
 " porel, que Dieuseul : omnibus major, solo Deo minor, Tertullian. 
 " (greater than all, inferior to God alone). . . . Un 4 devoir 
 " des sujets est de ne s'elever jamais centre les rois, quels qu'ils 
 " soient, puisque c'est s'attaquer a Dieu. ... II n'y a point de 
 " vraie piete, ni de vraie religion, ou il n'y a point de soumission 
 " ni d'obeissance envers les souverains. Ce n'est ni leurs qualites 
 " personuelles, ni leur vie, ni leur religion, qui doit regler 1'obe- 
 " issance des sujets ; mais 1'ordre et la volonte de Dieu qui les a 
 " etablis, et son autorite dout il les a revetus." Le Nouveau Testa- 
 ment, par Quesnel, a Amsterdam, 1736, tome vi. pp. 155,156, 
 tome viii. p. 217. 
 
 " II nous faut plustost insister a prouver et monstrer ce qui ne 
 " peut pas si aisement entrer en 1'esprit des hommes : c'est qu'en 
 " un homme pervers (in the Latin, deterrimo, the vilest of men) 
 " et indigne de tout honneur, lequel obtient la superiorite publique, 
 " reside neantmoins la mesme dignite et puissance (in the Latin, 
 *' praeclaram ilium et divinam potestatem, that eminent and di- 
 " vine power) laquelle nostre Seigneur par sa parole a donnee aux 
 " ministres de sa justice : et que les sujets, quant a ce qui appar- 
 " tient a 1'obeissance deiie a sa superiorite, lu y doivent porter aussi 
 " grande reverence qu'ils feroyent a un bon Roy, s'ils en avoyent 
 " un." Institution de la Religion Chrestienne, par Jean Calvin, 
 a Geneve, 1564, livreiv. chap. xx. section xxv. p. 900. 
 
 For further confirmation the reader is referred to the tenth homily 
 of the church of England ; to bishop Horsley's sermon preached 
 before^ the house of lords January 30, 1 793, see Horsley's Sermons, 
 Dundee, 1813, vol. iii. pp. 286334 ; to Robinson's Christian 
 System, London, 1805, vol. iii. pp. 162 167 ; to the commen- 
 taries of Calvin and Scott on the 10th chapter of the Epistle to 
 the Romans ; and to the irrefragable testimony of judge Black- 
 
 T 2
 
 276 THE CONSTITUTION 
 
 " lated or attacked, the subjects of England are 
 " entitled, In the first place, to the regular admi- 
 " nistration and free course of justice in the courts 
 " of law ; next, to the right of petitioning the 
 " king and parliament for redress of grievances ; 
 " and, lastly, to the right of having and using arms 
 " for self-preservation and defence." 
 
 Lastly, this right of opposing violence, in what- 
 
 stone, that " the absolute sovereignty and transcendent dominion 
 " of the crown are laid down most strongly and emphatically in our 
 " law-books, as well as our Homilies." See Blackstones Com- 
 mentaries, Oxford, 1775, vol. i. p. 251. 
 
 Moreover, the above apostolic injunctions demand submission to 
 governments de facto, and not merely to governments dejnre. 
 
 " How men come to a rightful Title to this power, or who has 
 rt that Title, he is wholly silent, and says nothing of it. To have 
 " meddled with that would have been to decide of civil rights, con- 
 " trary to the design and business of the gospel, and the example 
 " of our Saviour, who refused meddling in such cases with this de- 
 " cisive question : Who made me a Judge or Divider over you P " 
 Locke's Works, London, 1727, vol. iii. p. 328. 
 
 " He tells them that ' the powers that be (ai ovcrcu eoi;<rttti) are 
 " ordained of God : he will not consent, that they should enter into 
 " any enquiries on the origin of that right, which was exercised by 
 " the Emperor, but commands them to obey the constituted autho- 
 " rities, as appointed agreeably to the divine will, and not to asso- 
 ciate with those, who endeavoured to effect a change in the 
 " government (qui res novas moliuntur, according to the phrase 
 " used by the Romans)." Michaelis's Introduction to the New 
 Testament, translated into English by Herbert Marsh, Bishop of 
 Peterborough, London, 1802, vol. iv. p. 101, 102, 
 
 If, as is considered the case, these are correct commentaries on 
 the apostle's words, as immediately applicable to the tyrannical 
 government of Nero, " a monster of cruelty, caprice, and wicked- 
 " ness, almost unparalleled in the annals of mankind," how much more 
 forcibly do they apply to the limited monarchy the well-poised con- 
 stitution under which it is our happiness to live, which supplies
 
 OF ENGLAND. 277 
 
 ever shape, and from whatever quarter it may come, 
 is so generally acknowledged, that the courts of 
 law have sometimes grounded their judgments upon 
 it. I shall relate on this head a fact which is some- 
 what remarkable. 
 
 A constable, being out of his precinct, arrested a 
 woman whose name was Anne Dekins one Tooly 
 took her part, and, in the heat of the fray, killed 
 the assistant of the constable* 
 
 Being prosecuted for murder, he alleged, in his 
 defence, that the illegality of the imprisonment was 
 a sufficient provocation to make the homicide excu- 
 sable, and entitle him to the benefit of clergy. 
 The jury, having settled the matter of fact, left 
 the criminality of it to be decided by the judge, by 
 returning a special verdict. The cause was ad- 
 journed to the King's Bench, and thence again to 
 Serjeants' Inn, for the opinion of the twelve judges. 
 Here follows the opinion delivered by chief justice 
 Holt, in giving judgment. 
 
 " If one be imprisoned upon an unlawful au- 
 " thority, it is a sufficient provocation to all people, 
 " out of compassion, much more so when it is done 
 " under colour of justice ; and when the liberty of 
 " the subject is invaded, it is a provocation to all 
 " the subjects of England. A man ought to be 
 " concerned for Magna Charta and the laws ; and 
 
 methods whereby the encroachments of one branch of the govern- 
 ment upon the rights of the others may be legally and constitution- 
 ally resisted. The Editor trusts, therefore, that he shall not be consi- 
 dered as advancing an opinion abetting tyranny, or inimical to civil 
 liberty, in giving it as his humble but decided judgment, that sub- 
 mission to existing authorities, in all matters not contrary to the 
 law of God, is our duty at all times and in all cases. EDITOR.
 
 278 THE CONSTITUTION 
 
 " if any one against law imprison a man, he is an 
 " offender against Magna Charta." After some 
 debate, occasioned chiefly by Tooly's appearing not 
 to have known that the constable was out of his 
 precinct, seven of the judges were of opinion 
 that the prisoner was guilty of manslaughter, and 
 he was admitted to the benefit of clergy.* 
 
 But it is with respect to this right of an ultimate 
 resistance, that the advantage of a free press ap- 
 pears in a most conspicuous light. As the most 
 important rights of the people, without the prospect 
 of a resistance which overawes those who should 
 attempt to violate them, are little more than mere 
 shadows, so this right of resisting, itself, is but vain, 
 when there exist no means of effecting a general 
 union between the different parts of the people. 
 
 Private individuals, unknown to each other, are 
 forced to bear in silence injuries in which they do 
 not see other people take a concern. Left to their 
 own individual strength, they tremble before the 
 formidable and ever-ready power of those who 
 govern : and as the latter well know (and are even 
 apt to over-rate) the advantages of their own situa- 
 tion, they think that they may venture upon any 
 thing. 
 
 But when they see that all their actions are ex- 
 posed to public view, that, in consequence of the 
 celerity with which all things become communi- 
 cated, the whole nation forms, as it were, one con- 
 tinued irritable body, no part of which can be 
 touched without exciting an universal tremor, 
 they become sensible that the cause of each iri- 
 
 * See Reports of Cases argued, debated, and adjudged, in Banco 
 Regince, in the time of Queen Anne,
 
 OF ENGLAND. 
 
 dividual is really the cause of all, and that to attack 
 the lowest among the people is to attack the whole 
 people. 
 
 Here also we must remark the error of those 
 who, as they make the liberty of the people consist 
 in their power, so make their power consist in their 
 action. 
 
 When the people are often called to act in their 
 own persons, it is impossible for them to acquire 
 any exact knowledge of the state of things. The 
 event of one day effaces the notions which they 
 had begun to adopt on the preceding day ; and 
 amidst the continual change of things, no settled 
 principle, and, above all, no plans of union, have 
 time to be established among them. You wish to 
 have the people love and defend their laws and li- 
 berty ; leave them, therefore, the necessary time to 
 know what laws and liberty are, and to agree 
 in their opinion concerning them ; you wish an 
 union, a coalition, which cannot be obtained but by 
 a slow and peaceable process ; forbear therefore 
 continually to shake the vessel. 
 
 Nay, farther, it is a contradiction, that the peo- 
 ple should act, and at the same time retain any 
 real power. Have they, for instance, been forced 
 by the weight of public oppression to throw off 
 the restraints of the law, from which they no 
 longer received protection? they presently find 
 themselves suddenly become subject to the com- 
 mand of a few leaders, who are the more absolute 
 in proportion as the nature of their power is less 
 clearly ascertained : nay, perhaps they must even 
 submit to the toils of war, and to military disci- 
 pline.
 
 280 THE CONSTITUTION 
 
 If it be in the common and legal course of things 
 that the people are called to move, each individual 
 is obliged, for the success of the measures in, which 
 he is then made to take a concern, to join himself 
 to some party ; nor can this party be without ahead. 
 The citizens thus grow divided among themselves, 
 and contract the pernicious habit of submitting to 
 leaders. They are, at length, no more than 
 the clients of a certain number of patrons ; and the 
 latter soon becoming able to command the arms 
 of the citizens in the same manner as they at first 
 governed their votes, make little account of a peo- 
 ple, with one part of which they know how to curb 
 the other. 
 
 But when the moving springs of government 
 are placed entirely out of the body of the people, 
 their action is thereby disengaged from all that 
 could render it complicated, or hide it from the 
 eye. As the people thenceforward consider things 
 speculatively, and are, if I may be allowed the 
 expression, only spectators of the game, they ac- 
 quire just notions of things ; and as these no- 
 tions, amidst the general quiet, gain ground and 
 spread themselves far and wide, they at length 
 entertain, on the subject of their liberty, but one 
 opinion. 
 
 Forming thus, as it were, one body, the people, 
 at every instant, have it in their power to strike 
 the decisive blow, which is to level every thing. 
 Like those mechanical powers, the greatest effi- 
 ciency of which exists at the instant which precedes 
 their entering into action, it has an immense force, 
 just because it does not yet exert any ; and in this
 
 OF ENGLAND. 281 
 
 state of stillness, but of attention, consists its true 
 momentum. 16 " 
 
 With regard to those who (whether from per- 
 sonal privileges, or by virtue of a commission from 
 the people) are intrusted with the active part of 
 government, as they, in the meanwhile, see them- 
 selves exposed to public view, and observed as from 
 a distance by men free from the spirit of party, and 
 who place in them but a conditional trust, they are 
 afraid of exciting a commotion, which, though it 
 might not prove the destruction of all power, yet 
 would surely and immediately be the destruction 
 of their own. And if we might suppose that, 
 through an extraordinary conjunction of circum- 
 stances, they should resolve among themselves 
 upon the sacrifice of those laws on which public li- 
 berty is founded, they would no sooner lift up their 
 eyes towards that extensive assembly, which views 
 them with a watchful attention, than they would 
 find their public virtue return upon them, and 
 would make haste to resume that plan of conduct, 
 out of the limits of which they can expect nothing 
 but ruin and perdition. 
 
 In short, as the body of the people cannot act 
 without either subjecting themselves to some power, 
 or effecting a general destruction, the only share 
 they can have in a government, with advantage to 
 themselves, is not to interfere, but to influence 
 to be able to act, and not to act. 
 
 The power of the people is not when they strike, 
 but when they keep in awe : it is when they can 
 overthrow every thing, that they never need to 
 162 Power. EDITOR.
 
 282 THE CONSTITUTION 
 
 move; and Manlius included all in four words, 
 when he said to the people of Rome Ostendite 
 bellum, pacem habebitis. 163 
 
 CHAPTER XV. 
 
 Proofs drawn from Facts, of the Truth of the 
 Principles laid down in the present Work. 
 1 . The peculiar Manner in which Revolutions 
 have always been concluded in England. 
 
 IT may not be sufficient to have proved by argu- 
 ments the advantages of the English constitution ; 
 it will perhaps be asked, whether the effects cor- 
 respond to the theory ? To this question (which 
 I confess is extremely proper) my answer is ready : 
 it is the same which was once made, I believe, by a 
 Lacedaemonian Come and see. 
 
 If we peruse the English history, we shall be 
 particularly struck with one circumstance to be 
 observed in it, and which distinguishes most ad- 
 vantageously the English government from all other 
 free governments ; I mean the manner in which 
 revolutions and public commotions have always 
 been terminated in England. 
 
 If we read with some attention the history of 
 other free states, we shall see that the public dis- 
 sensions that have taken place in them have con- 
 stantly been terminated by settlements in which 
 
 163 Exhibit signs of war, and you shall have peace. EDITOR.
 
 OF ENGLAND. 283 
 
 the interests only of a few were really provided 
 for, while the grievances of the many were hardly, 
 if at all, attended to. In England the very reverse 
 has happened ; and we find revolutions always to 
 have been terminated by extensive and accurate 
 provisions for securing the general liberty. 
 
 The histories of the ancient Grecian common- 
 wealths, and, above all, of the Roman republic, of 
 which more complete accounts have been left us, 
 afford striking proof of the former part of this ob- 
 servation. 
 
 What was, for instance, the consequence of that 
 great revolution by which the kings were driven 
 from Rome, and in which the senate and patricians 
 acted as the advisers and leaders of the people ? 
 The consequence was, as we find in Dionysius of 
 Halicarnassus, and Livy, that the senators imme- 
 diately assumed all those powers lately so much 
 complained of by themselves, which the kings had 
 exercised. The execution of their future decrees 
 were entrusted to two magistrates, taken from 
 their own body, and entirely dependent on them, 
 whom they called consuls, and who were made to 
 bear about them all the ensigns of power which 
 had formerly attended the kings. Only care was 
 taken that the axes and fasces, the symbols of the 
 power of life and death over the citizens, which the 
 senate now claimed to itself, should not be carried 
 before both consuls at once, but only before one at 
 a time, for fear, says Livy, of doubling the terror of 
 the people.* 
 
 * " Omnia jura (regum), omnia insignia, primi consules tenuere ;
 
 284- THE CONSTITUTION 
 
 Nor was this all : the senators drew over to 
 their party those men who had the most interest 
 at that time among the people, and admitted them 
 as members into their own body ;* which indeed 
 was a precaution they could not prudently avoid 
 taking. But the interests of the great men in the 
 republic being thus provided for, the revolution 
 ended. The new senators, as well as the old, took 
 care not to lessen, by making provisions for the 
 liberty of the people, a power which was now be- 
 come their own. Nay, they presently stretched 
 this power beyond its former tone ; and the punish- 
 ments which the consuls inflicted, in a military 
 manner, on a number of those who still adhered 
 to the former mode of government, and even upon 
 his own children, taught the people what they had 
 to expect for the future, if they presumed to op- 
 pose the power of those whom they had thus un- 
 warily made their masters. 
 
 Among the oppressive laws or usages which the 
 
 " id rnodo cautum est, ne, si ambo fasces haberent, duplicalus 
 " terror videretur." 16 * Tit. Lie. lib. ii. 1. 
 
 * These new senators were called conscripti ; hence the name of 
 patres conscripti^ 5 afterwards indiscriminately given to the whole 
 senate. Tit. Liv. ibid. 
 
 1&t The text approximates so nearly to a literal translation of tliis 
 passage, that it seems unnecessary to supply one. EDITOR. 
 
 165 The patres conscripti were senators, not those first instituted, 
 but such as were taken into that order out of the gentry, by Brutus, 
 after the expulsion of Tarquin , at which time they began to be 
 called conscripti, by way of distinction from the patricii, or patri- 
 cians. In the reign of Romulus their number was a hundred, but 
 this was afterwards doubled by Tarquin, and augmented to three 
 hundred. EDITOR.
 
 OF ENGLAND. 
 
 senate, after the expulsion of the kings, had per- 
 mitted to continue, what were most complained of 
 by the people, were those by which such citizens 
 as could not pay their debts, with the interest 
 (which at Rome was enormous), at the appointed 
 time, became slaves to their creditors, and were 
 delivered over to them, bound with cords ; hence 
 the word nexi? m by which slaves of that kind were 
 denominated. The cruelties exercised by creditors 
 on those unfortunate men, whom the private 
 calamities, caused by the frequent wars in which 
 Rome was engaged, rendered very numerous, at 
 last roused the body of the people : they abandoned 
 both the city and their inhuman fellow-citizens, and 
 retreated to the other side of the river Anio. 
 
 But this second revolution, like the former, only 
 procured the advancement of particular persons. A 
 new office was created, called the tribuneship. 
 Those whom the people had placed at their head 
 when they left the city, where raised to it. Their 
 duty, it was agreed, was, for the future, to protect the 
 citizens : and they were invested with a certain 
 number of prerogatives for that purpose. This 
 institution, it must however be confessed, would 
 have, in the issue, proved very beneficial to the 
 people, at least for a long course of time, if certain 
 precautions had been taken with respect to it, 
 which would have much lessened the future personal 
 importance of the new tribunes :* but these pre- 
 
 * Their number, which was only ten, ought lo have been much 
 
 ie6 A name given to persons delivered bound to save their credi- 
 tors, for default of payment, till satisfaction was made. EDITOR.
 
 286 THE CONSTITUTION 
 
 cautions the latter did not think proper to suggest; 
 and in regard to those abuses themselves, which had 
 at first given rise to the complaints of the people, 
 no farther mention was made of them.* 
 
 As the senate and patricians, in the early ages 
 of the commonwealth, kept themselves closely 
 united, the tribunes, for all their personal privileges, 
 were not able, during the first times after their 
 creation, to gain an admittance either to the con- 
 sulship, or into the senate, and thereby to separate 
 their condition any farther from that of the people. 
 This situation of theirs, in which it was to be 
 wished they might always have been kept, produced 
 at first excellent effects, and caused their conduct 
 to answer, in a great measure, the expectation of 
 the people. The tribunes complained loudly of the 
 exorbitancy of the powers possessed by the senate 
 and consuls ; and here we. must observe that the 
 power exercised by the latter over the lives of the 
 citizens, had never been yet subjected (which will 
 probably surprise the reader) to any known laws, 
 though sixty years had already elapsed since the 
 expulsion of the kings. The tribunes therefore in- 
 sisted that laws should be made in that re- 
 spect, which the consuls should thenceforward be 
 bound to follow, and that they should no longer 
 be left, in the exercise of their power over the lives 
 
 greater ; and they never ought to have accepted the power left to 
 each of them, of stopping, by his single opposition, the proceedings 
 of all the rest. 
 
 * Many other seditions were afterwards raised upon the same 
 account.
 
 OF ENGLAND. 287 
 
 of the citizens, to their own caprice and wanton- 
 ness.* 
 
 Equitable as these demands were, the senate and 
 patricians opposed them with great warmth, and, 
 either by naming- dictators, or calling in the assist- 
 ance of the priests, or other means, they defeated, 
 for nine years together, all the endeavours of the 
 tribunes. However, as the latter were at that 
 time in earnest, the senate was at length obliged to 
 comply ; and the Lex Terentilla was passed, by 
 which it was enacted, that a general code of laws 
 should be made. 
 
 These beginnings seemed to promise great suc- 
 cess to the cause of the people. But, unfortunately 
 for them, the senate found means to have it agreed, 
 that the office of tribune should be set aside during 
 the whole time that the code should be framing. 
 They, moreover, obtained that the ten men, called 
 decemvirs, to whom the charge of composing this 
 code was to be given, should be taken from the 
 body of the patricians. The same causes, there- 
 fore, produced again the same effects ; and the 
 power of the senate and consul was left in the new 
 code, or laws of the Twelve Tables, as undefined 
 as before. As to the laws above mentioned, con- 
 cerning debtors, which never had ceased to be bitterly 
 
 * " Quod populusin se jus dederit, eo consulem usurum ; uon 
 " ipsos libidinem ac licentiam suam pro lege liabituros." 1 ^ Tit. 
 Lie lib. iii. 9. 
 
 167 Whatever share of authority the people should think proper 
 to entrust in the hands of the consuls, such they should enjoy ; but 
 they should not hold their own will and absolute determinations as 
 law. Translation given by Baker. EDITOR.
 
 288 THE CONSTITUTION 
 
 complained of by the people, and in regard to which 
 some satisfaction ought, in common justice, to have 
 been given them, they were confirmed, and a new 
 terror added to them from the manner in which 
 they were expressed. 
 
 The true motive of the senate, when they thus 
 trusted the framing of the new laws to a new kind 
 of magistrates, called decemvirs, was, that, by sus- 
 pending the ancient office of consul, they might 
 have a fair pretence for suspending also the office 
 of tribune, and thereby rid themselves of the people, 
 during the time that the important business of 
 framing the code should be carrying on: they even, 
 in order the better to secure that point, placed the 
 whole power of the republic in the hands of those 
 new magistrates. But the senate and patricians ex- 
 perienced then, in their turn, the danger of intrust- 
 ing men with an uncontrolled authority. As they 
 themselves had formerly betrayed the trust which 
 the people had placed in them, so did the decemvirs, 
 on this occasion, likewise deceive them. They re- 
 tained by their own private authority the unlimited 
 power that had been conferred on them, arid at last 
 exercised it on the patricians as well as the plebeians. 
 Both parties therefore united against them, and the 
 decemvirs were expelled from the city. 
 
 The former dignities of the republic were re- 
 stored, and with them the office of tribune. Those 
 from among the people who had been most instru- 
 mental in destroying the power of the decemvirs, 
 were, as it was natural, raised to the tribuneship ; 
 and they entered upon their offices with a prodigi- 
 ous degree of popularity. The senate and the
 
 OF ENGLAND. 
 
 patricians were, at the same time, sunk extremely 
 low in consequence of the long tyranny which had 
 just expired ; and those two circumstances united, 
 afforded the tribunes but too easy an opportunity 
 of making- the present revolution end as the former 
 ones had done, and converting- it to the advance- 
 ment of their own power. They got new personal 
 privileges to be added to those which they already 
 possessed ; and moreover procured a law to be 
 enacted, by which it was ordained, that the reso- 
 lutions taken by the comitia tributa 16 * (an assembly 
 in which the tribunes were admitted to propose 
 new laws) should be binding upon the whole com- 
 monwealth ; by which they at once raised to 
 themselves an imperium in imperio, 169 and acquired, 
 as Livy expresses it, a most active weapon.* 
 
 From that time great commotions arose in the 
 republic, which, like all those before them, ended 
 in promoting the power of a few. Proposals for 
 easing the people of their debts ; for dividing with 
 some equality amongst the citizens, the lands which 
 were taken from the enemy ; and for lowering the 
 rate of the interest of money, were frequently made 
 by the tribunes. And indeed all these were ex- 
 cellent regulations to propose; but, unfortunately 
 for the people, the proposals of them were only 
 pretences used by the tribunes for promoting schemes 
 
 *Acerrimum lelum. 
 
 166 An assembly in which the people gave their votes by tribes ; 
 whereas in the comitia auriata they gave them by whole courts, 
 and in the comitia cenluriataby hundreds. EDITOR. 
 
 169 A government within a government. EDITOR. 
 
 U
 
 THE CONSTITUTION 
 
 of a fatal, though somewhat remote, tendency to 
 public liberty. Their real aims were at the con- 
 sulship, the preetorship, the priesthood, and other 
 offices of executive power, which they were in- 
 tended to control, and not to share. To these 
 views they constantly made the cause of the people 
 subservient. I shall relate, among other instances, 
 the manner in which they procured to themselves 
 an admittance to the office of consul. 
 
 Having, during several years, seized every oppor- 
 tunity of making speeches to the people on that 
 subject, and even excited seditions in order to 
 overcome the opposition of the senate, they at last 
 availed themselves of the circumstance of an inter- 
 regnum, (a time, during which there happened to 
 be no other magistrates in the republic beside 
 themselves,) and proposed to the tribes, whom 
 they had assembled, to enact the three following 
 laws : the first, for settling the rate of interest of 
 money ; the second, for ordaining that no citizen 
 should be possessed of more than five hundred 
 acres of land ; and the third for providing that 
 one of the two consuls should be taken from the 
 body of the plebeians. But on this occasion it 
 evidently appeared, says Livy, which of the laws 
 in agitation were most agreeable to the people, 
 and which, to those who proposed them ; for the 
 tribes accepted the laws concerning the interest 
 of money, and the lands ; but as to that concern- 
 ing the plebeian consulship, they rejected it ; and 
 both the former articles would from that moment 
 have been settled, if the tribunes had not declared, 
 that the tribes were called upon, either to accept,
 
 OF ENGLAND. 29 1 
 
 or reject, all their three proposals at once.* Great 
 commotions ensued thereupon, for a whole year; 
 but at last the tribunes, by their perseverance in 
 insisting that the tribes should vote on their three 
 rogations jointly, obtained their ends, and overcame 
 both the opposition of the senate, and the reluctance 
 of the people. 
 
 In the same manner did the tribunes get them- 
 selves made capable of filling all other places of 
 executive power, and public trust, in the republic. 
 But when all their views of that kind were ac- 
 complished, the republic did not for all this enjoy 
 more quiet, nor was the interest of the people 
 better attended to, than before. New struggles 
 then arose for actual admission to those places, 
 for procuring them to relatives or friends, for go- 
 vernments of provinces, and commands of armies. 
 A few tribunes, indeed, did at times apply them- 
 selves seriously, out of real virtue and love of their 
 duty, to remedy the grievances of the people ; but 
 their fellow-tribunes, as we may see in history, and 
 the whole body of those men upon whom the peo- 
 ple had, at different times, bestowed consulships, 
 sedileships, censorships, and other dignities without 
 number, united together with the utmost vehemence 
 
 * " Ab tribunis, velut per interregnum, concilio plebis habito, 
 " apparuit qu<e ex promulgatis plebi, quac latoribus, gvatiora es- 
 " sent; nam de foenore atque agro rogationes jubebant, de plebeio 
 " consulatu antiquabant (anliquis stabant) ; et perfecta utraque 
 " res esset, ni tribuni se in omnia simul consulere plebern dixis- 
 " sent." 1 ? -Tit. Liv. lib. vi. 39. 
 
 170 A translation of this passage, so nearly literal, is given in the 
 text, that it is considered unnecessary to furnish any other. 
 EDITOR.
 
 292 THE CONSTITUTION 
 
 against them ; and the real patriots, such as Tibe- 
 rius Gracchus, Caius Gracchus, and Fulvius, con- 
 stantly perished in the attempt. 
 
 I have been somewhat explicit on the effects 
 produced by the different revolutions that hap- 
 pened in the Roman republic, because its history 
 is much known to us, and we have, either in Di- 
 onysius of Halicarnassus, or in Livy, considerable 
 monuments of the more ancient part of it. But 
 the history of the Grecian commonwealths would 
 also have supplied us with a number of facts to 
 the same purpose. That revolution, for instance, 
 by which the PisistratidcB were driven out of 
 Athens, that by which the four hundred, and 
 afterwards the thirty, were established, as well 
 as that by which the latter were in their turn ex- 
 pelled, all ended in securing 1 the power of a few. 
 The republic of Syracuse, that of Corcyra, of 
 which Thucydides has left us a pretty full account, 
 and that of Florence, of which Machiavel has 
 written the history, also present to us a series of 
 public commotions ended by treaties, in which, as 
 in the Roman republic, the grievances of the peo- 
 ple, though ever so loudly complained of in the 
 beginning by those who acted as their defenders, 
 were, in the issue, most carelessly attended to, or 
 even totally disregarded.* 
 
 But, if we turn our eyes towards the English 
 history, scenes of a quite different kind will offer 
 
 * The revolutions which formerly happened in France, all 
 ended like those above mentioned. A similar remark may he 
 extended to the history of Spain, Denmark, Sweden, Scotland, 
 &c.
 
 OF ENGLAND. 293 
 
 to our view ; and we shall find, on the contrary, 
 that revolutions in England have always been 
 terminated by making- such provisions, and only 
 such, as all orders of the people were really and in- 
 discriminately to enjoy. 
 
 Most extraordinary facts, these I and which, 
 from all the other circumstances that accompanied 
 them, we see, all along, to have been owing- to 
 the impossibility (a point that has been so much 
 insisted upon in former chapters) in which those 
 who possessed the confidence of the people, were, 
 of transferring to themselves any branch of the 
 executive authority, and thus separating their own 
 condition from that of the rest of the people. 
 
 Without mentioning the compacts which were 
 made with the first kings of the Norman line, let 
 us only cast our eyes on Magna Charta, which 
 is still the foundation of English liberty. A num- 
 ber of circumstances, which have been described 
 in the former part of this work, concurred at that 
 time to strengthen the regal power to such a degree, 
 that no men in the state could entertain a hope of 
 succeeding in any other design than that of setting 
 bounds to it. How great was the union which 
 thence arose among all orders of the people ! 
 what extent, what caution, do we see in the provi- 
 sions made by the Great Charter I All the objects 
 for which men naturally wish to live in a state of 
 society were settled in its various articles. The 
 judicial authority was regulated. The person and 
 property of the individual were secured. The 
 safety of the merchant and stranger was provided 
 for. The higher class of citizens gave up a num-
 
 THE CONSTITUTION 
 
 ber of oppressive privileges which they had long 
 accustomed themselves to look upon as their un- 
 doubted rights.* Nay, the implements of tillage 
 of the bondman or slave, were also secured to 
 him : and for the first time, perhaps, in the annals 
 of the world, a civil war was terminated by making 
 stipulations in favour of those unfortunate men 
 to whom the avarice and lust of dominion, inhe- 
 rent in human nature, continued, over the greatest 
 part of the earth, to deny the common rights of 
 mankind. 
 
 Under Henry the Third great disturbances arose ; 
 and they were all terminated by solemn confirma- 
 tions given to the Great Charter. Under Edward I. 
 Edward II. Edward III. and Richard II. those 
 who were intrusted with the care of the interests 
 of the people lost no opportunity that offered, of 
 strengthening still farther that foundation of public 
 liberty, of taking all such precautions as might 
 render the Great Charter still more effectual in the 
 event. They had not ceased to be convinced that 
 their cause was the same with that of all the rest of 
 the people. 
 
 Henry of Lancaster having laid claim to the 
 crown, the commons received the law from the 
 victorious party. They settled the crown upon 
 Henry, by the name of Henry the Fourth ; and 
 added, to the act of settlement, provisions which 
 the reader may see in the second volume of the 
 Parliamentary History of England. Struck with 
 
 * All possessors of land took the engagement to establish in 
 behalf of their tenants and vassals (erga sues) the same liberties 
 which they demanded from the kiiisj.
 
 OF ENGLAND. 295 
 
 the wisdom of the conditions demanded by the 
 commons, the authors of the book just mentioned 
 observe (perhaps with some simplicity) that the 
 commons of England were no fooh at that time. 
 They ought rather to have said The commons 
 of England were happy enough to form among 
 themselves an assembly in which every one could 
 propose what matters he pleased, and freely discuss 
 them; they had no possibility left of converting 
 either these advantages, or in general the confidence 
 which the people had placed in them, to any private 
 views of their own : they, therefore, without loss 
 of time, endeavoured to stipulate useful conditions 
 with that power by which they saw themselves at 
 every instant exposed to be dissolved and dispersed, 
 and applied their industry to insure the safety of the 
 whole people, as it was the only means they had of 
 procuring their own. 
 
 In the long contentions which took place be- 
 tween the houses of York and Lancaster, the com- 
 mons remained spectators of disorders which in 
 those times it was not in their power to prevent ; 
 they successively acknowledged the title of the 
 victorious parties ; but whether under Edward the 
 Fourth, under Richard the Third, or Henry the 
 Seventh, by whom those quarrels were terminated, 
 they continually availed themselves of the impor- 
 tance of the services which they were able to per- 
 form to the new-established sovereign, for obtain- 
 ing effectual conditions in favour of the whole body 
 of the people. 
 
 At the accession of James the First, which, as it 
 placed a new family on the throne of England, may
 
 296 THE CONSTITUTION 
 
 be considered as a kind of revolution, no demands 
 were made by the men who were at the head of the 
 nation, but in favour of general liberty. 
 
 After the accession of Charles the First, discon- 
 tents of a very serious nature began to take place ; 
 and they were terminated, in the first instance, by 
 the act called the Petition of Right, which is still 
 looked upon as a most precise and accurate delinea- 
 tion of the rights of the people.* 
 
 At the restoration of Charles the Second, the 
 constitution being re-established upon its former 
 principles, the former consequences produced by it 
 began again to take place ; and we see at that sera, 
 and indeed during the whole course of that reign, 
 a continued series of precautions taken for securing 
 the general liberty. 
 
 Lastly, the great event which took place in the 
 year 1689, affords a striking confirmation of the 
 truth of the observation made in this chapter. At 
 this sera the political wonder again appeared of a 
 revolution terminated by a series of public acts, in 
 which no interests but those of the people at large 
 were considered and provided for : no clause, even 
 the most indirect, was inserted, either to gratify the 
 
 * The disorders which took place in the latter part of the reign 
 of that prince seem indeed to contain a complete contradiction to 
 the assertion which is the subject of the present chapter ; but they, 
 at the same time, are a no less convincing confirmation of the 
 truth of the principles laid down in the course of this whole work. 
 The above-mentioned disorders took rise from that day in which 
 Charles the First gave up the power of dissolving his parliament, 
 that is, from the day in which the members of that assembly ac- 
 quired an independent, personal, permanent authority, which they 
 soon began to turn against the people who had raised them to it.
 
 OF ENGLAND. 29? 
 
 present ambition, or favour the future views, of 
 those who were personally concerned in bringing 1 
 those acts to a conclusion. Indeed, if any thing is 
 capable of conveying to us an adequate idea of the 
 soundness, as well as peculiarity, of the principles 
 on which the English government is founded, it is 
 the attentive perusal of the system of public com- 
 pacts to which the revolution of the year 1689 gave 
 rise, of the Bill of Rights with all its different 
 clauses, and of the several acts, which, till the ac- 
 cession of the house of Hanover, were made in 
 order to strengthen it. 
 
 CHAPTER XIV. 
 
 Second Difference. The Manner after which 
 the Laws for the Liberty of the Subject are 
 executed in England. 
 
 THE second difference I mean to speak of between 
 the English government and that of other free 
 states, concerns the important object of the execu- 
 tion of the laws. On this article, also, we shall 
 find the advantage to lie on the side of the English 
 government ; and, if we make a comparison be- 
 tween the history of those states, and that of Eng- 
 land, it will lead us to the following observation, 
 viz. that though in other free states the laws con- 
 cerning the liberty of the citizens were imperfect, 
 yet the execution of them was still more defective.
 
 298 THE CONSTITUTION 
 
 In England, on the contrary, not only the laws for 
 the security of the subject are very extensive in 
 their provisions, but the manner in which they are 
 executed carries these advantages still farther ; and 
 English subjects enjoy no less liberty from the spirit 
 both of justice and mildness, by which all branches 
 of the government are influenced, than from the ac- 
 curacy of the laws themselves. 
 
 The Roman commonwealth will here again sup- 
 ply us with examples to prove the former part of 
 the above assertion. When I said, in the foregoing 
 chapter, that, in times of public commotion, no pro- 
 visions were made for the body of the people, I 
 meant no provisions that were likely to prove effec- 
 tual in the event. When the people were roused 
 to a certain degree, or when their concurrence was 
 necessary to carry into effect certain resolutions, or 
 measures, that were particularly interesting to the 
 men in power, the latter could not, with any pru- 
 dence, openly profess a contempt for the political 
 wishes of the people ; and some declarations ex- 
 pressed in general words, in favour of public liberty, 
 were indeed added to the laws that were enacted 
 on those occasions. But these declarations, and 
 the principles which they tended to establish, were 
 afterwards even openly disregarded in practice. 
 
 Thus, when the people were made to vote, about 
 a year after the expulsion of the kings, that the 
 regal government never should be again established 
 in Rome, and that those who should endeavour to 
 restore it should be devoted to the gods, an article 
 was added, which, in general terms, confirmed to 
 the citizens the right they had before enjoyed under
 
 OF ENGLAND. 299 
 
 the king, of appealing to the people from the sen- 
 tences of death passed upon them. No punishment 
 (which will surprise the reader) was decreed against 
 those who should violate this law ; and indeed the 
 consuls, as we may see in Dionysius of Halicar- 
 nassus and Livy, concerned themselves but little 
 about the appeals of the citizens, and, in the more 
 than military exercise of their functions, continued 
 to sport with rights which they ought to have re- 
 spected, however imperfectly and loosely they had 
 been secured. 
 
 An article, to the same purport with the above, 
 was afterwards also added to the laws of the 
 Twelve Tables ; but the decemvirs, to whom the 
 execution of those laws was at first committed, be- 
 haved exactly in the same manner, and even worse 
 than the consuls had done before them : and after 
 they were expelled,* the magistrates who suc- 
 ceeded them, appear to have been as little tender 
 of the lives of the citizens. I shall, out of many 
 instances, select one, which will show upon what 
 slight grounds the citizens were exposed to have 
 their lives taken away. Spurius Mselius being ac- 
 cused of endeavouring to make himself king, was 
 summoned by the master of the horse to appear 
 before the dictator, in order to clear himself of this 
 
 * At the time of the expulsion of the decemvirs, a law was also 
 enacted, that no magistrate should be created from whom no appeal 
 could be made to the people (magistratus sine provocatione. 1 " 11 
 Tit. Liv. lib. iii. 55.); by which the people expressly meant to 
 abolish the dictatorship : but this law was not better observed than 
 the former ones had been. 
 
 571 A magistrate without appeal. EDITOR.
 
 300 THE CONSTITUTION 
 
 somewhat extraordinary imputation. Spurius took 
 refuge among the crowd ; the master of the horse 
 pursued him, and killed him on the spot. The 
 people having thereupon expressed a great indig- 
 nation, the dictator had them called to his tribunal, 
 and declared that Spurius had been lawfully put to 
 death, even though he might be innocent of the 
 crime laid to his charge, for having refused to ap- 
 pear before the dictator, when desired to do so by 
 the master of the horse.* 
 
 About one hundred and forty years after the 
 times we mention, the law concerning the appeal 
 to the people was enacted for the third time. But 
 we do not see that it was better observed in the 
 sequel than it had been before : we find it fre- 
 quently violated, after that period, by the different 
 magistrates of the republic ; and the senate itself, 
 notwithstanding this same law> at times made for- 
 midable examples of the citizens. Of this we have 
 an instance in the three hundred soldiers 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 tribune Flaccus remonstrate against 
 so severe an exertion of public justice on Roman 
 citizens : the senate, says Valerius Maximus, ne- 
 vertheless persisted in its resolution, f 
 
 * Tumultuantem deinde mullitudinem, incerta existiinatione 
 facti, ad concionem vorari jussit, et Mcelium jure ccesum pronun- 
 ciavit, eliamsi regni crimine insons fuerit, qui vocatus a magistro 
 equilum, ad dictatorem non venisnet.^ 2 Tit. Liv. lib. iv. 15. 
 
 f Val. Max. book ii. ch. 7. This author does not mention the 
 
 1 '? 2 The text approximates so nearly to a literal translation of 
 this passage that it seems unnecessary to supply one. EDITOR.
 
 OF ENGLAND. 301 
 
 All these laws for securing- the lives of the citi- 
 zens had hitherto been enacted without any men- 
 tion of a punishment against those who should 
 violate them. At last the celebrated Lex Portia 
 was passed, which subjected to banishment those 
 who should cause a Roman citizen to be scourged 
 and put to death. From a number of instances 
 posterior to this law, it appears that it was not 
 better observed than those before it had been ; 
 Caius Gracchus, therefore, caused the Lex Sem- 
 pronia^* to be enacted, by which a new sanction 
 was given to it. But this second law did not se- 
 cure his own life, and that of his friends, better 
 than the Lex Portia had done that of his bro- 
 ther, and those who had supported him ; indeed 
 all the events which took place about those times 
 rendered it manifest that the evil was such as was 
 beyond the power of any laws to cure. I shall 
 here mention a fact, which affords a remarkable 
 instance of the wantonness with which the Roman 
 
 precise number of those who were put to death on this occasion : 
 he only says that they were executed fifty at a time, on different 
 successive days ; but other authors make the number of them 
 amount to four thousand. Livy speaks of a whole legion Legio 
 Campana, qua Rhegium occupaverat obsessa, deditione facta, se- 
 curi percussa est.W Tit. Liv. lib. xv. Epit. I have here followed 
 Polybius, who says that only three hundred were taken and brought 
 to Rome. 
 
 173 The Canipanian legion, which had forcibly taken possession 
 of Rhegium, besieged there ; lay down their arms, and are punished 
 with death. Translation by Baker. EDITOR. 
 
 174 By this law, besides some other regulations, it was ordained 
 that no capital punishment should be executed upon a Roman citizen, 
 without the concurrence and authority of the senate. EDITOR.
 
 302 THE CONSTITUTION 
 
 magistrates had accustomed themselves to take 
 away the lives of the citizens. A citizen, named 
 Memmius, having put up for the consulship, and 
 publicly canvassing for the same, in opposition to 
 a man whom the tribune Saturninus supported, the 
 latter caused him to be apprehended, and made 
 him expire under blows in the public forum. The 
 tribune even carried his insolence so far (as Cicero 
 informs us) as to give to this act of cruelty, trans- 
 acted in the presence of the whole people assem- 
 bled, the outward form of a lawful act of public 
 justice.*' 
 
 Nor were the Roman magistrates satisfied with 
 committing acts of injustice in their political capa- 
 city, and for the support of the power of that body 
 of which they made a part. Avarice and private 
 rapine were at last added to political ambition. 
 The provinces were first oppressed and plundered. 
 The calamity, in process of time, reached Italy it- 
 
 * The fatal form of words (cruciatus carmi'na) used by the 
 Roman magistrates when they ordered a man to be put to death, 
 resounded (says Tully in his speech for Rabirius) in the assembly 
 of the people, in which the censors had forbidden the common 
 executioner even to appear, /, lictor, colliga manus. Caput obnu- 
 bito. Arbori infelici suspendito. 1 ^ 6 Memmius being a consi- 
 derable citizen, as we may conclude from his canvassing with 
 success for the consulship, all the great men in the republic took 
 the alarm at the atrocious action of the tribune ; the senate, the 
 next day, issued out its solemn mandate, or form of words, to the 
 consuls, to provide that the republic should receive no detriment ; 
 snd the tribune was killed in a pitched battle that was fought at the 
 foot of the Capitol. 
 
 175 Go, lictor, and bind his hands. Cover his head. Hang 
 him on the accursed tree. EDITOR.
 
 OF ENGLAND. 303 
 
 self, and the centre of the republic ; till at last the 
 Lex Calpurnia de repetundis 176 was enacted to put 
 a stop to it. By this law an action was given to 
 the citizens and allies for the recovery of the money 
 extorted from them by magistrates, or men in 
 power : and the Lex Junia afterwards added the 
 penalty of banishment to the obligation of making 
 restitution. 
 
 But here another kind of disorder arose. The 
 judges proved as corrupt, as the magistrates had 
 been oppressive. They equally betrayed, in their 
 own province, the cause of the republic with which 
 they had been entrusted ; and rather chose to share 
 in the plunder of the consuls, the praetors, and the 
 proconsuls, than put the laws in force against them. 
 
 New expedients were therefore resorted to, in 
 order to remedy this new evil. Laws were made 
 for judging and punishing the judges themselves; 
 and, above all, continual changes were made in the 
 manner of composing their assemblies. But the 
 malady lay too deep for common legal provisions 
 to remedy. The guilty judges employed the same 
 resources, in order to avoid conviction, as the guilty 
 magistrates had done ; and those continual changes, 
 at which we are amazed, that were made in the 
 constitution of the judiciary bodies,* instead of 
 
 * The judges (over the assembly of whom the praetor usually 
 presided) were taken from the body of the senate, till some years 
 
 a ? 6 The word repetundis, signifying bribery, extortion, money 
 unjustly taken in time of one's office, the Lex Calpurnia de repe- 
 tundis was a law enacted severely to punish such as were guiltv of 
 using bribes, &c. EDITOR.
 
 S04 THE CONSTITUTION 
 
 obviating the corruption of the judges, only trans- 
 ferred to other men the profit arising from be- 
 coming guilty of it. It became a general com- 
 plaint, so early as the times of the Gracchi, that 
 no man, who had money to give, could be brought 
 to punishment.* Cicero says, that, in his time, 
 the same opinion was universally received ; f and 
 his speeches are full of his lamentations on what he 
 calls the levity, and the infamy, of the public judg- 
 ments. 
 
 Nor was the impunity of corrupt judges the only 
 evil under which the republic laboured. Commo- 
 tions of the whole empire at last took place. The 
 horrid vexations, and afterwards the acquittal, of 
 Aquilius, proconsul of Syria, and of some others 
 who had been guilty of the same crimes, drove the 
 provinces of Asia to desperation : and then it was 
 that the terrible war of Mithridates arose, which 
 
 after the last Punic war ; when the Lex Sempronia, proposed by 
 Caius S. Gracchus, enacted that they should in future be taken 
 from tbe equestrian order. The consul Csepio procured afterwards 
 a law to be enacted, by which the judges were to he taken from 
 both orders, equally. The Lex Servilia soon after put the eques- 
 trian order again in possession of the judgments ; and, after some 
 years, the Lex Lima restored them entirely to the senate. The 
 Lex Plautia enacted afterwards, that the judges should he taken 
 from the three orders, the senatorial!, equestrian, and plebeian. 
 The Lex Cornelia, framed by the dictator Sylla, enacted again, 
 that the judges should be entirely taken from the body of the se- 
 nate. The Lex Aurelia ordered anew, that they should be taken 
 from the three orders. Pompey made afterwards a change in their 
 number (which he fixed at seventy-five), and in the manner of 
 electing them. And lastly, Caesar restored the judgments to the 
 order of the senate. 
 
 * App. de Bell. Civ. f Act. in Verr. i. 1.
 
 OF ENGLAND. 305 
 
 was ushered in by the death of eighty thousand 
 Romans, massacred in one day, in various cities of 
 Asia.* 
 
 The laws and public judgments not only thus 
 failed of the end for which they had been established : 
 they even became, at length, new means of oppres- 
 sion added to those which already existed. Citizens 
 possessed of wealth, persons obnoxious to particular 
 bodies, or the few magistrates who attempted to 
 stem the torrent of the general corruption, were 
 accused and condemned ; while Piso, 177 of whom 
 Cicero, in his speech against him, relates facts 
 which make the reader shudder with horror, and 
 Verres, who had been guilty of enormities of the 
 same kind, escaped unpunished. 178 
 
 * Appiati. 
 
 177 Pi.so, who was a Roman consul under Augustus, was his 
 own executioner. He was one of the favorites of Tiberius, by 
 whom he was appointed governor of Syria, where he rendered him- 
 self odious by his cruelty. He was accused of having poisoned 
 Gennanicus ; and when he saw that he was shunned and despised 
 by his friends, he destroyed himself, A.D. 20. EDITOR. 
 
 178 Verres can hardly be said to have " escaped unpunished." 
 He was a Roman who governed the province of Sicily as praetor. 
 The oppression and rapine of which he was guilty while in office 
 so offended the Sicilians, that they brought an accusation against 
 him before the Roman senate. Cicero undertook the cause of ihe 
 Sicilians, and pronounced tho.e celebrated orations which are still 
 extant. Verres was defended by Hortensius, but as he despaired 
 of the success of his defence, he left Rome without waiting for his 
 sentence, of which banishment would doubtless have formed a part. 
 He lived in great affluence in one of the provinces: but, about 
 twenty-six years after his exile from the capital, was killed by the 
 soldiers of Antony the triumvir, who is said to have had a private 
 pique against him. EDITOR. 
 
 X
 
 306 THE CONSTITUTION 
 
 Hence a war arose, still more formidable than 
 the former, and the dangers of which we wonder 
 that Rome was able to surmount. The greatest 
 part of the Italians revolted at once, exasperated 
 by the tyranny of the public judgments ; and we 
 find in Cicero, who informs us of the cause of this 
 revolt, which was called the Social JVar, a very 
 expressive account both of the unfortunate condi- 
 tion of the republic, and of the perversion that had 
 been made of the methods taken to remedy it. 
 
 * A hundred and ten years have not yet elapsed 
 4 (says he) since the law for the recovery of money 
 ' extorted by magistrates was first propounded by 
 
 * the tribune Calpurnius Piso. A number of other 
 ' laws to the same effect, continually more and 
 
 * more severe, have followed : but so many persons 
 
 * have been accused, so many condemned, so for- 
 
 * midable a war has been excited in Italy by the 
 ' terror of the public judgments, and, when the 
 
 * laws and judgments have been suspended, such an 
 ' oppression and plunder of our allies have prevailed, 
 ' that we may truly say, it is not by our own 
 
 * strength, but by the weakness of others, that we 
 ' continue to exist.'* 
 
 I have entered into these particulars with regard 
 to the Roman commonwealth, because the facts on 
 which they are grounded are remarkable of them- 
 selves, and yet no just conclusion can be drawn 
 from them, unless a series of them were presented 
 to the reader. Nor are we to account for these 
 facts by the luxury which prevailed in the latter 
 ages of the republic, by the corruption of the 
 * See Cic. cle Off. lib. ii. 75.
 
 OF ENGLAND. 307 
 
 manners of the citizens, their degeneracy, from their 
 ancient principles, and such loose general phrases, 
 which may perhaps be useful to express the manner 
 itself in which the evil became manifested, but by 
 no means set forth the causes of it. 
 
 The above disorders arose from the very nature 
 of the government of the republic, of a govern- 
 ment in which the executive and supreme power 
 being made to centre in the body of those in whom 
 the people had once placed their confidence, there 
 remained no other effectual power in the state that 
 might render it necessary for them to keep Vvithin 
 the bounds of justice and decency. And in the 
 mean time, as the people, who were intended as a 
 check over that body, contimicilly gave a share in 
 this executive authority to those whom they in- 
 trusted with the care of their interests, they in- 
 creased the evils they complained of, as it were, at 
 every attempt they made to remedy them ; and in- 
 stead of raising up opponents to those who were 
 become the enemies of their liberty, as it was their 
 intention to do, they continually supplied them with 
 new associates. 
 
 From this situation of affairs, flowed, as an un- 
 avoidable consequence, that continual desertion 
 of the cause of the people, which, even in times 
 of revolutions, when the passions of the people 
 themselves were roused, and they were in a great 
 degree united, manifested itself in so remarkable 
 a manner. We may trace the symptoms of the 
 great political defect here mentioned, in the earli- 
 est ages of the commonwealth, as well as in the 
 last stage of its duration. In Rome, while small
 
 308 THE CONSTITUTION 
 
 and poor, it rendered vain whatever rights or 
 power the people possessed, and blasted all their 
 endeavours to defend their liberty, in the same 
 manner, as in the more splendid ages of the com- 
 monwealth, it rendered the most salutary regula- 
 tions utterly fruitless, and even instrumental to 
 the ambition and avarice of a few. The prodigi- 
 ous fortune of the republic, in short, did not create 
 the disorder ; it only gave full scope to it. 
 
 But if we turn our view towards the history of 
 the English nation, we shall see how, from a 
 government in which the above defects did not 
 exist, different consequences have followed; how 
 cordially all ranks of men have always united 
 together, to lay under proper restraints this ex- 
 ecutive power, which they knew could never be 
 their own. In times of public revolutions, the 
 greatest care, as we have before observed, was 
 taken to ascertain the limits of that power ; and 
 after peace had been restored to the state, those 
 who remained at the head of the nation continued 
 to manifest an unwearied jealousy in maintaining 
 those advantages which the united efforts of all had 
 obtained. 
 
 Thus it was made one of the articles of Magna 
 Charta, that the executive power should not touch 
 the person of the subject, but in consequence of a 
 judgment passed upon him by his peers ; and so 
 great was afterwards the general union in main- 
 taining this law, that the trial by jury, that 
 admirable mode of proceeding, which so effectually 
 secures the subject against all the attempts of 
 power, even (which seemed so difficult to obtain)
 
 OF ENGLAND. 309 
 
 against such as mi^ht be made under the sanction 
 
 O D 
 
 of the judicial authority hath been preserved to 
 this day. It has even been preserved in all its 
 original purity, though the same has been succes- 
 sively suffered to decay, and then to be lost, in the 
 other countries of Europe, where it had been for- 
 merly known.* Nay, though this privilege of 
 
 * The trial by jury was in use among the Normans long before 
 they came over into England ; but, even among them, it soon de- 
 generated from its first institution ; we see in Hale's History of the 
 Common Law of England, that the unanimity among jurymen 
 was not required in Normandy for making a good verdict ; but, 
 when jurymen dissented, some were taken nut, and others added in 
 their stead, till an unanimity was procured. In Sweden, where, 
 according to the opinion of the learned in that country, the trial 
 by Jury had its origin, only some forms of that institution are now 
 preserved in the lower courts in the country, where sets of jurymen 
 are established for life, and have a salary accordingly. And in 
 Scotland, the vicinity of England has not been able to preserve to 
 the trial by jury its genuine ancient form : the unanimity among 
 jurymen is not required (as I have been told) to form a verdict ; 
 but the majority is decisive. 1 ^ 
 
 ] 79 An agreement of two-thirds of the jury (which in Scotland 
 is composed of fifteen) in a verdict of conviction in criminal cases 
 is sufficient. A great improvement in this mode of trial was made 
 by Act 3 Geo. IV. cap. 85, (A. D. 1822,) intituled, " An act to 
 allow peremptory challenge of jurors in criminal trials in Scot- 
 land/' which enacts, That, from and after the passing of that 
 act, in all criminal trials by jury in Scotland, (for the crime of high 
 treason, or misprision of treason, being afterwards excepted,) it 
 should be lawful for the prosecutor, and for each pannel respectively, 
 when the whole jury of fifteen should have been chosen, and before 
 they should have been sworn, to challenge five of the jurors, with- 
 out being obliged to assign any reason therefor ; and this chal- 
 lenge should of itself disqualify the person challenged from serving 
 as a juror on the trial in respect of which he was so chosen and
 
 ,310 THE CONSTITUTION 
 
 being tried by one's peers was at first a privilege 
 of conquerors and masters, exclusively appropri- 
 ated to those parts of nations which had originally 
 invaded and reduced the rest by arms, it has in 
 England been successively extended to every order 
 of the people. 
 
 And not only the person, but also the property 
 of the individual, has been secured against all 
 arbitrary attempts from the executive power ; and 
 the latter has been successively restrained from 
 touching any part of the property of the subject, 
 even under pretence of the necessities of the state, 
 any otherwise than by the free grant of the repre- 
 
 challenged : Provided always, that after each challenge made by 
 any of the said parties respectively, it should be incumbent upon 
 the judge to choose another juror, so as again to complete the 
 number of fifteen, before the party challenging should be obliged 
 to make any second or subsequent challenge ; and the juror or 
 jurors to be chosen to supply the place or places of the juror or 
 jurors challenged should be equally liable to be challenged as the 
 jurors originally chosen. The act also makes provision for sum- 
 moning in certain cases an additional number of jurors on such 
 trials. 
 
 Except in cases of revenue, the Scotch had not the benefit of 
 trial by jury in civil actions until the year 1815, when by Act 
 55 Geo. III. cap. 42, intituled, " An act to facilitate the ad- 
 ministration of justice in that part of the United Kingdom called 
 Scotland, by the extending trial by jury to civil causes," after 
 reciting, That " trial by jury in civil causes would be attended with 
 " beneficial effects to the administration of justice in that part of 
 " the United Kingdom of Great Britain and Ireland called Scot- 
 " land ; but it was expedient that such trials, for a time to. be 
 " limited, should in the first instance be confined to issues directed 
 " by either division of the court of session ;" certain commis- 
 sioners were appointed for the trial of such causes, and certain re- 
 gulations made in regard to such trials. This act was made. for
 
 OF ENGLAND. 311 
 
 sentatives of the people. Nay, so true and per- 
 severing- has been the zeal of these representatives, 
 in asserting on that account the interests of the 
 nation, from which they could not separate their 
 own, that this privilege of taxing themselves, 
 which was in the beginning grounded on a most 
 precarious tenure, and only a mode of governing 
 adopted by the sovereign for the sake of his own 
 convenience, has become, in time, a settled right 
 of the people, which the sovereign has found it 
 necessary solemnly and repeatedly to acknow- 
 ledge. 
 
 Nay more, the representatives of the people 
 have applied this right of taxation to a still nobler 
 
 seveny ears. The act 59 Geo. III. cap. 353, (A. D. 1819), intituled. 
 An act to amend the said act, after reciting, that the same " liad 
 " been attended with beneficial effects to the administration of 
 " justice :" and that it was " expedient, that farther provision should 
 " be made, to extend and regulate trial by jury in civil causes, 
 " and that the said act should be in part altered and amended, and 
 " the court thereby created be made a permanent part of the ju- 
 " dicial establishment of Scotland :" continues the said act, and 
 makes many other important enactments. By Act 6 Geo. IV. 
 cap. 120, (A. D. 1825), intituled, " An act for the better regulating 
 of the forms of process in the courts of law in Scotland," certain 
 provisions were made relative to the constitution of the jury court, 
 and which provisions are declared to continue and be in force until 
 the 30th June, 1830, and from thence to the end of the next ses- 
 sion of parliament. By act 1 1 Geo. 4. and 1 Will. 4 cap. 69, 
 (A. D. 1830), intituled, " An act for uniting the benefits of jury 
 trial in civil causes with the ordinary jurisdiction of the court of 
 session, and for making certain other alterations and reductions 
 in the judicial establishments of Scotland," the great work was 
 perfected; and, since, the 5th October, 1830, the day that act took 
 effect, Scotland has enjoyed the full benefits of trial by jury in 
 civil causes. EDITOR.
 
 THE CONSTITUTION 
 
 use than the mere preservation of property : they 
 have, in process of time, succeeded in converting it 
 into a regular and constitutional mean of in- 
 fluencing the motions of the executive power. By 
 means of this right, they have gained the advantage 
 of being constantly called to concur in the measures 
 of the sovereign, of having the greatest attention 
 shown hy him to their requests, as well as the 
 highest regard paid to any engagements that he 
 enters into with them. Thus has it become at last 
 the peculiar happiness of English subjects, to what- 
 ever other people, either ancient or modern, we 
 compare them, to enjoy a share in the government 
 of their country, by electing representatives, who, 
 by reason of the peculiar circumstances in which 
 they are placed, and of the extensive rights they 
 possess, are both willing faithfully to serve those 
 who have appointed them, and able to do so. 
 
 And indeed the commons have not rested satis- 
 fied with establishing, once for all, the provisions 
 for the liberty of the people which have been just 
 mentioned ; they have afterwards made the preser- 
 vation of them the first object of their care,* and 
 
 * The first operation of the commons, at the beginning of a 
 session, is to appoint four grand committees. One is a committee 
 of religion, another of courts of justice, another of trade, and ano- 
 ther of grievances ; they are to be standing committees during the 
 whole session. 180 
 
 380 The four grand committees mentioned by our author were 
 committees of the whole house, only meeting in the long gallery, 
 and were appointed at the opening of every session of Parliament 
 till the last, when, after considerable discussion on two different 
 days, Jthe order for their appointment was, on the 13lh February,
 
 OF ENGLAND. 313 
 
 taken every opportunity of giving them new vigour 
 and life. 
 
 Thus, under Charles the First, when attacks of 
 a most alarming nature were made on the privilege 
 of the people, to grant free supplies to the crown, 
 the commons vindicated, without loss of time, 
 that great right of the nation, which is the consti- 
 tutional bulwark of all others, and hastened to 
 oppugn, in the beginning, every precedent of a 
 practice that must in the end have produced the 
 ruin of public liberty. 
 
 They even extended their care to abuses of every 
 kind. The judicial authority, for instance, which 
 the executive power had imperceptibly assumed to 
 itself, both with respect to the person and property 
 of the individual, was abrogated by the act which 
 abolished the court of Star-chamber : and the 
 crown was thus brought back to its true constitu- 
 tional office, viz. the countenancing, and supporting 
 with its strength, the execution of the laws. 
 
 1833, negatived without a division. In the course of the debates, 
 it was stated by a right honorable gentleman extremely conversant 
 with the journals of the house (Mr. Secretary Littleton) that there 
 was only one instance of the committee of religion having 
 been resorted to since the Long Parliament ; and only a solitary 
 instance, during a long course of time, of a reference to the com- 
 mittee of justice, which was the creation of violent times, when 
 the house of commons aimed at usurping all the powers of the 
 state ; that this committee obtained petitions, from all parts of the 
 country, setting forth grievances of all descriptions, and by this 
 means succeded in exciting a hostile feeling against the government, 
 " which," (he added, but the statement may fairly be questioned,) 
 " led to the revolution ;" and that the time was past in which such 
 dangerous machinery was necessary. See Hansard's Parliamentary 
 Debates, vol. Ixxxi. page 627. EDITOR.
 
 314 THE CONSTITUTION 
 
 The subsequent endeavours of the legislature 
 have carried to a still greater extent the above 
 privileges of the people. They have, moreover, 
 succeeded in restraining the crown from any at- 
 tempt to seize and confine, even for the shortest 
 time, the person of the subject, unless it be in the 
 cases ascertained by the law, of which the judges 
 of it are to decide. 
 
 Nor has this extensive unexampled freedom at 
 the expense of the executive power been made, as 
 we might be inclined to think, the exclusive ap- 
 propriated privilege of the great and powerful. It 
 is to be enjoyed alike by all ranks of subjects. 
 Nay, it was the injury done to a common citizen 
 that gave existence to the act which has completed 
 the security of this interesting branch of public 
 liberty. The oppression of an obscure individual, 
 says Judge Blackstone, gave rise to the famous 
 Habeas Corpus Act. Junius has quoted this ob- 
 servation of the judge ; and the same is well worth 
 repeating a third time, for the just idea it conveys 
 of that readiness of all orders of men to unite in 
 defence of common liberty, which is a characteristic 
 circumstance in the English government.* 
 
 And this general union in favour of public 
 liberty has not been confined to the framing of 
 
 * 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 Gatehouse, where he 
 was kept ahout two months, through the delays made by the several 
 judges to whom he applied, in granting him a Habeas Corpus. 
 See the State Trials, vol. vii. anno 1676.
 
 OF ENGLAND. 315 
 
 laws for its security : it has operated with no less 
 vigour in bringing to punishment such as have 
 ventured to infringe them ; and the sovereign has 
 constantly found it necessary to give up the viola- 
 tors of those laws, even when his own servants, to 
 the justice of their country. 
 
 Thus we find, so early as the reign of Edward 
 the First, judges who were convicted of having 
 committed exactions in the exercise of their offices, 
 to have been condemned by a sentence of parlia- 
 ment.* From the immense fines which were 
 laid upon them, and which it seems they were in 
 a condition to pay, we may indeed conclude that, 
 in those early^ages of the constitution, the remedy 
 was applied rather late to the disorder ; but yet it 
 was at last applied. 
 
 Under Richard the Second, examples of the 
 same kind were renewed. Michael de la Pole, 
 earl of Suffolk (who had been lord chancellor of 
 the kingdom), the duke of Ireland, and the arch- 
 bishop of York, having abused their power by 
 carrying on designs that were subversive of public 
 liberty, were declared guilty of high-treason ; and 
 a number of judges, who, in their judicial capacity, 
 had acted as their instruments, were involved in 
 the same condemnation.'}" 
 
 * Sir Ralph de Hengham, chief justice of the King's Bench, 
 was fined 7000 marks ; sir Thomas Wayland, chief justice of the 
 Common Pleas, had his whole estate forfeited ; and sir Adam de 
 Stratton, chief baron of the Exchequer, was fined 3400 marks. 
 
 f The most conspicuous among these judges were sir Robert 
 Belknap, and sir Robert Tresilian, chief justice of the King's 
 Bench. The latter had drawn up a string of questions calculated
 
 316 THE CONSTITUTION 
 
 In the reign of Henry the Eighth, sir Richard 
 Empson, and Edmund Dudley, who had been the 
 promoters of the exactions committed under the 
 preceding reign, fell victims to the zeal of the 
 commons for vindicating the cause of the people. 
 Under king James the First, the lord-chancellor 
 Bacon experienced that neither his high dignity, 
 nor great personal qualifications, could screen him 
 from having the severest censure passed upon him, 
 for the corrupt practices of which he had suffered 
 himself to become guilty. And in the reign of 
 Charles the First, the judges having attempted 
 to imitate the example of the judges under 
 Richard the Second, by delivering opinions sub- 
 versive of the rights of the people, found the same 
 spirit of watchfulness in the commons, as had 
 proved the ruin of the former. Lord Finch, 
 keeper of the great seal, was obliged to fly be- 
 yond sea. The judges Davenport and Crawley 
 
 to confer a despotic authority on the crown, or rather on the 
 ministers above named, who had found means to render themselves 
 entire masters of the person of the king. These questions sir 
 Robert Tresilian proposed to the judges, who had been sum- 
 moned for that purpose, and they gave their opinions in favour 
 of them. One of these opinions of the judges, among others, 
 tended to annihilate, at one stroke, all the rights of the commons, 
 by taking from them that important privilege mentioned before, 
 of starting and freely discussing whatever subjects of debate they 
 think proper: the commons were to be restrained, under pain of 
 being punished as traitors, from proceeding upon any articles 
 besides those limited to them by the king. All those who had 
 had a share in the above declarations of the judges were at- 
 tainted of high treason. Tresilian, and Brembre, who had been 
 mayor of London, were hanged ; the others were only banished, 
 at the intercession of the bishops. See the Pad. History of Eng- 
 land, vol. i.
 
 OF ENGLAND. 317 
 
 were imprisoned : and judge Berkeley was seized 
 while sitting upon the bench, as we are informed 
 by Rushworth. 
 
 In the reign of Charles the Second, we find 
 fresh instances of the vigilance of the commons. 
 Sir William Scroggs, lord chief justice of the King's 
 Bench, sir Francis North, chief justice of the Com- 
 mon Pleas, sir Thomas Jones, one of the judges of 
 the King's Bench, and sir Richard West, one of 
 the barons of the Exchequer, were impeached by 
 the commons, for partialities shown by them in the 
 administration of justice ; and the chief justice 
 Scroggs, against whom some positive charges were 
 well proved, was removed from his employments. 
 
 The several examples offered here to the reader 
 have been taken from different periods of the 
 English history, in order to show that neither the in- 
 fluence, nor the dignity of the infractors of the laws, 
 even when they have been the nearest servants of 
 the crown, have ever been able to check the zeal 
 of the commons in asserting the rights of the people. 
 Other examples might perhaps be related to the 
 same purpose ; though the whole number of those 
 to be met with, will, upon inquiry, be found the 
 smaller, in proportion as the danger of infringing 
 the laws has always been indubitable. 
 
 So much regularity has even (from all the circum- 
 stances above mentioned) been introduced into the 
 operations of the executive power in England, 
 such an exact justice have the people been accus- 
 tomed, as a consequence, to expect from that 
 quarter, that even the sovereign, for his having 
 once suffered himself personally to violate the safety
 
 S18 THE CONSTITUTION 
 
 of the subject, did not escape severe censure. The 
 attack made, by order of Charles the Second, on 
 the person of sir John Coventry, filled the nation 
 with astonishment ; and this violent gratification 
 of private passion, on the part of the sovereign, (a 
 piece of self-indulgence with regard to inferiors, to 
 which whole classes of individuals in certain coun- 
 tries almost think that they have a right,) excited a 
 general ferment. " This event," says Bishop 
 Burnet, " put the house of commons in a furious 
 " uproar. It gave great advantages to all those 
 " who opposed the court ; and the names of the 
 " court and country party, which till now had 
 " seemed to be forgotten, were revived.'* * 
 
 These are the limitations that have been set, in 
 the English government, on the operations of the 
 executive power : limitations to which we find 
 nothing comparable in any other free states, an- 
 cient or modern ; and which are owing, as we 
 have seen, to that very circumstance which seemed 
 at first sight to prevent the possibility of them, I 
 mean the greatness and unity of that power ; the 
 effect of which has been, in the event, to unite, 
 upon the same object, the views and efforts of all 
 orders of the people. 
 
 From this circumstance, that is, the unity and 
 peculiar stability of the executive power in Eng- 
 land, another most advantageous consequence has 
 followed, that has been before noticed, and which 
 
 * See Burnet's History, vol. i. anno 1669. An act of parlia- 
 ment was made on this occasion, for giving a farther extent to the 
 provisions before made for the personal security of the subject ; 
 which is still called the Coventry act.
 
 OF ENGLAND. 31 9 
 
 it is not improper to mention again here, as this 
 chapter is intended to confirm the principles laid 
 down in the former ones ; I mean the unremitted 
 continuance of the same general union among all 
 ranks of men, and the spirit of mutual justice 
 which thereby continues to be diffused through all 
 orders of subjects. 
 
 . Though surrounded by the many boundaries that 
 have just now been described, the crown, we must 
 observe, has preserved its prerogative undivided : 
 it still possesses its whole effective strength, and is 
 only tied by its own engagements, and the conside- 
 ration of what it owes to its dearest interests. 
 
 The great, or wealthy men in the nation, who, 
 assisted by the body of the people, have succeeded 
 in reducing the exercise of its authority within 
 such well-defined limits, can have no expectation 
 that it will continue to confine itself to them any 
 longer than they themselves continue, by the justice 
 of their own conduct, to deserve that support of 
 the people, which alone can make them appear of 
 consequence in the eye of the sovereign, no pro- 
 bable hopes that the crown will continue to observe 
 those laws by which their wealth, dignity, liberty, 
 are protected, any longer than they themselves also 
 continue to observe them. 
 
 Nay more, all those claims of their rights which 
 they continue to make against the crown, are en- 
 couragements which they give to the rest of the 
 people to assert their own rights against them. 
 Their constant opposition to all arbitrary proceed- 
 ings of that power, is a continual declaration they 
 make against any acts of oppression which the
 
 320 THE CONSTITUTION 
 
 superior advantages they enjoy might entice theni 
 to commit on their inferior fellow-subjects. Nor 
 was that severe censure, for instance, which they 
 concurred in passing on an unguarded violent action 
 of their sovereign, only a restraint put upon the 
 personal actions of future English kings ; no, it was 
 a much more extensive provision for the securing 
 of public liberty ; it was a solemn engagement en- 
 tered into by all the powerful men in the state to 
 the whole body of the people, scrupulously to re- 
 spect the person of the lowest among them. 
 
 And indeed the constant tenor of the conduct, 
 even of the two houses of parliament, shows us 
 that the above observations are not matters of mere 
 speculation. From the earliest times we see the 
 members of the house of commons to have been 
 very cautious not to assume any distinction that 
 might alienate from them the affections of the rest 
 of the people.* Whenever those privileges which 
 
 * In all cases of public offences, down to a simple breach of the 
 peace, the members of the house of commons have no privileges 
 whatever above the rest of the people : they may be committed to 
 prison by any justice of the peace; and are dealt with afterwards in 
 the same manner as any other subjects. With regard to civil 
 matters, their only privilege is to be free from arrests during the 
 time of a session, and forty days before, and forty days after : 181 but 
 they may be sued, by process against their goods, for any just debt 
 during that time. 
 
 181 This is not quite correctly stated. By the law and custom 
 of Parliament, (stat. 10 Geo. III. cap. 50,2 Str. 985, Fort. 159, 
 Com. Rep. 444. S. C, 1 Kenyon, 125.) members of the house of 
 commons are privileged from arrest, not only during the actual 
 sitting of parliament, but for a convenient time, sufficient to enable
 
 OF ENGLAND. 
 
 were necessary to them for the discharge of their 
 trust have proved burdensome to the community, 
 they have retrenched them. And those of their 
 members who have applied either these privileges, 
 or in general that influence which they derived 
 from their situation, to any oppressive purposes, 
 they themselves have endeavoured to bring to pu- 
 nishment. 
 
 Thus, we see that, in the reign of James the 
 First, sir Giles Montpesson, a member of the house 
 of commons, having been guilty of monopolies, and 
 other acts of great oppression on the people, was 
 not only expelled, but impeached and prosecuted 
 with the greatest warmth by the house, and finally 
 condemned by the lords to be publicly degraded 
 from his rank of a knight, held for ever an infamous 
 person, and imprisoned during life. 
 
 In the same reign, sir John Benet, who was also 
 
 them to come from and return to any part of the kingdom, heforc 
 the first meeting and after the final dissolution of it. And also for 
 forty days (2 Lev. 72, 1 Chan. Cases, 221, S. C. but see 1 Sid. 29.) 
 after every prorogation, and before the next appointed meeting ; 
 which is now in effect as long as the Parliament exists, it being seldom 
 prorogued for more than fourscore days at a time. (1 Blac. Com. 
 165, edited by Chitty, with practical notes.) And the courts will 
 not grant an attachment against a member of the house of commons, 
 for non-payment of money pursuant to an award. (7 Duvnf. and 
 East, 448.) Mr. Christian has observed, that it does not appear 
 that the privilege from arrest is limited to any precise time after a 
 dissolution ; but it has been determined by all the judges that it 
 extends to a convenient time- (Col. Pitt's case, 2 Str. 988.) 
 Prynne is of opinion that it continued for the number of days the 
 member received wages after a dissolution, which was in proportion 
 to the distance between his home and the place where the parlia- 
 ment was held. 4 Parl. Writs, 68. EDITOR.
 
 THE CONSTITUTION 
 
 a member of the house of commons, having- been 
 found to have been guilty of corrupt practices, in 
 his capacity of judge of the Prerogative Court of 
 Canterbury, (such as taking exorbitant fees, and the 
 like,) was expelled the house, and prosecuted for 
 those offences. 
 
 In the year 1641, Mr. Henry Benson, member 
 for Knaresborough, having been detected in sell- 
 ing protections, experienced likewise the indigna- 
 tion of the house, and was expelled. 
 
 In fine, in order, as it were, to make it com- 
 pletely notorious, that neither the condition of re- 
 presentative of the people, nor even any degree of 
 influence in their house, could excuse any one of 
 them from strictly observing the rules of justice, 
 the commons did on one occasion pass the most 
 severe censure they had power to inflict, upon their 
 speaker himself, for having, in a single instance, 
 attempted to convert the discharge of his duty, as 
 speaker, into the means of private emolument. 
 Sir John Trevor, speaker of the house of commons, 
 having, in the sixth year of the reign of king William, 
 received a thousand guineas from the city of London, 
 " as a gratuity for the trouble he had taken with re- 
 " gard to the passing of the Orphan Bill,'" 1 was voted 
 guilty of a high crime and misdemeanor, and ex- 
 pelled the house. Even the inconsiderable sum of 
 twenty guineas which Mr. Hungerford, another 
 member, had been weak enough to accept on the 
 same score, was looked upon as deserving the no- 
 tice of the house j and he was likewise expelled.* 
 
 * Other examples, of the attention of the house of commons to 
 the conduct of their members, might be produced, either before or
 
 OF ENGLAND. 323 
 
 If we turn our view towards the house of lords, 
 we shall find that they have also constantly taken 
 care that their peculiar privileges should not prove 
 impediments to the common justice which is due to 
 the rest of the people.* They have constantly 
 agreed to every just proposal that has been made to 
 them on that subject by the commons : and indeed, 
 if we consider the numerous and oppressive privi- 
 leges claimed by the nobles in most other countries, 
 and the vehement spirit with which they are corn- 
 after that which is mentioned here. The reader may, for instance, 
 see the relation of their proceedings in the affair of the South-Sea- 
 Company scheme ; and a few years after, in that of the Charitable 
 Corporation, a fraudulent scheme, particularly oppressive to tlie 
 poor, for which several members were expelled. i82 
 
 * In case of a public offence, or even a simple breach of the 
 peace, a peer may be committed till he finds bail, by any justice of 
 the peace : and peers are to be tried by the common course of law, 
 for all offences under felony. With regard to civil matters, they 
 are at all times free from arrests : but execution may be had 
 against their effects, in the same manner as against those of other 
 subjects. 
 
 182 Our author has travelled far back for his illustrations, the 
 South Sea Company having been formed in the year 1719, and the 
 Charitable Corporation in 1707. The Editor wishes it were not in 
 his power to cite, from the journals of the house of commons, in- 
 stances in which the power of expulsion has been exercised since 
 the commencement of the present century, but there are several. 
 Joseph Hunt, Esq. on May 23rd, 1810; Benjamin Walsh, Esq. 
 on March 5th, 1812 ; and Lord Viscount Cochrane and the Honor- 
 able Andrew Cochrane Johnstone on July 5th, 1814, (the last 
 occasion of the kind,) were expelled the house on accounts which, 
 for obvious reasons, will not here be detailed, but may be learned 
 from the Journals alluded to, or from Hansard's Parliamentary 
 Debates. EDITOR.
 
 324 THE CONSTITUTION 
 
 monly asserted, we shall think it no small praise to 
 the body of the nobility in England (and also to the 
 nature of that government of which they make a 
 part), that it has been by their free consent that 
 their privileges have been confined to what they 
 now are : that is to say, to no more, in general, 
 than what is necessary to the accomplishment of the 
 end and constitutional design of that house. 
 
 In the exercise of their judicial authority with 
 regard to civil matters, the lords have manifested a 
 spirit of equity nowise inferior to that which they 
 have shown in their legislative capacity. They 
 have, in the discharge of that function (which of 
 all others is so liable to create temptations), shown 
 an incorruptness really superior to what any judi- 
 cial assembly in any other nation can boast. Nor 
 do I think that I run any risk of being contra- 
 dicted, when I say, that the conduct of the house 
 of lords, in their civil judicial capacity, has con- 
 stantly been such as has kept them above the reach 
 of even suspicion or slander. 
 
 Even that privilege which they enjoy, of exclu- 
 sively trying their own members, in case of any 
 accusation that may affect their lives (a privilege 
 which we might at first sight think repugnant to 
 the idea of a regular government, and even alarm- 
 ing to the rest of the people), has constantly been 
 rendered, by the lords, subservient to the purpose 
 of doing justice to their fellow-subjects ; and if we 
 cast our eyes either on the collection of the State 
 Trials, or on the History of England, we shall 
 find very few examples, if any, of a peer, really
 
 OF ENGLAND. 325 
 
 guilty of the offence laid to his charge, that has 
 derived any advantage from his not being tried by 
 a jury of commoners. 
 
 Nor has this just and moderate conduct of the 
 two houses of parliament, in the exercise of their 
 powers (a moderation so unlike what has been re- 
 lated of the conduct of the powerful men in the 
 Roman republic), been the only happy consequence 
 of that salutary jealousy which those two bodies 
 entertain of the power of the crown. The same 
 motive has also engaged them to exert their utmost 
 endeavours to put the courts of justice under proper 
 restraints ; a point of the highest importance to 
 public liberty. 
 
 They have, from the earliest times, preferred 
 complaints against the influence of the crown over 
 these courts, and at last procured laws to be en- 
 acted by which such influence has been entirely 
 prevented ; all which measures, we must observe, 
 were at the same time strong declarations that no 
 subjects, however exalted their rank might be, 
 were to think themselves exempt from submitting 
 to the uniform course of the law, or hope to influ- 
 ence or over-awe it. The severe examples which 
 they have united to make on those judges who 
 have rendered themselves the instruments of the 
 passions of the sovereign, or of the designs of the 
 ministers of the crown, are also awful warnings to 
 the judges who have succeeded them, never to at- 
 tempt to deviate in favour of any, the most power- 
 ful individuals, from that straight line of justice 
 which the joint wisdom of the legislature has once 
 marked out to them.
 
 326 THE CONSTITUTION 
 
 This singular situation of the English judges, 
 relatively to the three constituent powers of the 
 state (and also the formidable support which they 
 are certain to receive from them as long as they 
 continue to be the faithful ministers of justice,) has 
 at last created such an impartiality in the distri- 
 bution of public justice in England, has introduced 
 into the courts of law the practice of such a thorough 
 disregard to either the influence or wealth of the 
 contending parties, and procured to every indivi- 
 dual, both such an easy access to these courts, and 
 such a certainty of redress, as are not to be paral- 
 leled in any other government. Philip de Co- 
 mines, so long as three hundred years ago, com- 
 mended in strong terms the exactness with which 
 justice was done in England to all ranks of sub- 
 jects ;* and the impartiality with which the same is 
 administered in these days, will, with still more 
 reason, excite the surprise of every stranger who 
 has an opportunity of observing the customs of this 
 country.']' 
 
 * See page 32 of this work. 
 
 f Soon after I came to England for the first time, 183 (if the 
 reader will give me leave to make mention of myself in this case,) 
 an action was brought in a court of justice against a prince very 
 nearly related to the crown ; and a noble lord was also, much 
 about that time, engaged in a law-suit for the property of some 
 valuable lead-mines in Yorkshire. I could not but observe that 
 in both these cases a decision was given against the two most 
 powerful parties ; though I wondered but little at this, because I 
 had before heard much of the impartiality of the law proceedings 
 in England, and was prepared to see instances of that kind. But 
 what I was much surprised at was, that nobody appeared to be in 
 
 Understood to have been about the year 1768. EDITOR.
 
 OF ENGLAND. 327 
 
 Indeed to snch a degree of impartiality has the 
 administration of public justice been brought in 
 England, that it is saying nothing beyond the ex- 
 act truth, to affirm that any violation of the laws, 
 though perpetrated by men of the most extensive 
 influence nay, though committed by the special 
 direction of the very first servants of the crown 
 will be publicly and completely redressed. And 
 the very lowest of subjects will obtain such redress, 
 if he has but spirit enough to stand forth, and ap- 
 peal to the laws of his country. Most extraordi- 
 nary circumstances these ! which those who know 
 the difficulty of establishing just laws among man- 
 kind, and of providing afterwards for their due exe- 
 cution, only find credible because they are matters 
 of fact, and can begin to account for, only when 
 they look up to the constitution of the government 
 itself; that is to say, when they consider the cir- 
 cumstances in which the executive power, or the 
 crown, is placed in relation to the two bodies that 
 concur with it to form the legislature, the circum- 
 stances in which those two assemblies are placed 
 in relation to the crown, and to each other, and 
 
 the least so, even at the strictness with which the ordinary course 
 of the law had, particularly in the former case, been adhered to, 
 and that those proceedings which I was disposed to consider as 
 great instances of justice, to the production of which some circum- 
 stances peculiar to the times, at least some uncommon virtue or 
 spirit on the part of the judges, must have more or less co-operated, 
 were looked upon by all those whom I heard speak about it, as 
 nothing more than the common and expected course of things. 
 This circumstance became a strong inducement to me to in- 
 (juire into the nature of a government by which such effects were 
 produced.
 
 THE CONSTITUTION 
 
 the situation in which all the three find themselves 
 with respect to the whole body of the people.* 
 
 * The assertion above made, with respect to the impartiality 
 with which j ustice is, in all cases, administered in England, not 
 being of a nature to be proved by alleging single facts, I have en- 
 tered into no particulars on that account. However, I will subjoin 
 two cases, which, I think, cannot but appear remarkable to the 
 reader. 
 
 The first is the case of the prosecution commenced in the year 
 1763, by some journeymen printers, against the king's messengers, 
 for apprehending and imprisoning them for a short time, by virtue 
 of a general warrant from the secretary of state ; and that which 
 was afterwards carried on by another private individual against one 
 
 of the secretaries themselves. In these actions, all the ordinary 
 
 forms of proceedings used in cases of actions, between private sub- 
 jects, were strictly adhered to ; and both the secretary of state, and 
 the messengers, were, in the end, condemned. Yet, which it is 
 proper the reader should observe, from all the circumstances that 
 accompanied this affair, it is difficult to propose a case in which 
 ministers could, of themselves, be under greater temptations to 
 exert an undue influence to hinder the ordinary course of justice. 
 Nor were the acts for which those ministers were condemned acts 
 of evident oppression, which nobody could be found to justify. 
 They had done nothing but follow a practice, of which they found 
 S3veral precedents, established in their offices : and their case, if I 
 am well informed, was such that most individuals, under similar 
 circumstances, would have thought themselves authorised to have 
 acted as they had done. 
 
 The second case I propose to relate, affords a singular instance 
 of the confidence with which all subjects in England claim what 
 they think their just rights, and of the certainty with which the 
 remedies of the law are in all cases open to them. The fact I 
 mean, is the arrest executed in the reign of Queen Anne, in the 
 year 1708, on the person of the Russian ambassador, by taking 
 him out of his coach for the sum of fifty pounds. And the conse- 
 quences that followed this fact are still more remarkable. The 
 czar highly resented the affront, and demanded that the sheriff of 
 Middlesex, and all others concerned in the arrest,' should be pu- 
 nished with instant death. "But the queen" (to the amazement
 
 OF ENGLAND 329 
 
 In fine, a very remarkable circumstance in the 
 English government (and which alone evinces some- 
 thing peculiar and excellent in its nature), is that 
 spirit of extreme mildness with which justice, in 
 criminal cases, is administered in England ; a point 
 with regard to which England differs from all other 
 countries in the world. 
 
 When we consider the punishments in use in the 
 
 of that despotic court, says judge Blackstone, from whom I borrow 
 this fact) " directed the secretary of state to inform him that she 
 " could inflict no punishment upon any, the meanest of her sub- 
 " jects, unless warranted by the law of the land." An act was 
 afterwards passed to free from arrest the persons of foreign ministers, 
 and such of their servants as they have delivered a list of to the 
 secretary of state. A copy of this act, elegantly engrossed and 
 illuminated, continues judge Blackstone, was sent to Moscow, and 
 an ambassador extraordinary commissioned to deliver it. 184 
 
 184 The act alluded to is 7 Anne, cap. 12, (A. D. 1708,) intituled, 
 " An Act for preserving the privileges of ambassadors and other 
 " public ministers of foreign princes and states." Its preamble 
 is curious, and was doubtless drawn up with the object of assuaging 
 the wrath of the czar and his representative. " Whereas several 
 " turbulent and disorderly persons having in a most outrageous 
 " manner insulted the person of his excellency Andrew Artemono- 
 " witz Mattueof, ambassador extraordinary of his czarish majesty, 
 " emperor of Great Russia, her majesty's good friend and ally, by 
 " arresting him and taking him by violence out of his coach in the 
 " public street, and detaining him in custody for several hours, in 
 " contempt of the protection granted by her majesty, contrary to 
 " the law of nations, and in prejudice of the rights and privileges 
 " which ambassadors and other public ministers, authorised and 
 " received as such, have at all times been thereby possessed of, and 
 " ought to be kept sacred and inviolable." It then enacts, that 
 all actions " against the said ambassador should be void, and all 
 " proceedings against him or his bail vacated," and makes provi- 
 sions " to prevent the like insolences for the future." EDITOR.
 
 330 THE CONSTITUTION 
 
 other states of Europe, we wonder how men can be 
 brought to treat their fellow-creatures with so much 
 cruelty ; and the bare consideration of those punish- 
 ments would sufficiently convince us (if we did not 
 know the fact from other circumstances) that the 
 men in those states who frame the laws, and preside 
 over their execution, have little apprehension that 
 either they, or their friends, will ever fall victims 
 to those laws which they thus rashly establish. 
 
 In the Roman republic circumstances of the same 
 nature with those just mentioned were also produc- 
 tive of the greatest defects in the kind of criminal 
 justice which took place in it. That class of citi- 
 zens who were at the head of the republic, and 
 who knew how mutually to exempt each other from 
 the operation of any too severe laws or practice, not 
 only allowed themselves great liberties, as we have 
 seen, in disposing of the lives of the inferior citizens, 
 but had also introduced, into the exercise of the 
 illegal powers they assumed to themselves in that 
 respect, a great degree of cruelty.* 
 
 Nor were things more happily conducted in the 
 Grecian republics. From their democratical nature, 
 and the frequent involutions to which they were 
 
 * The common manner in which the senate ordered citizens to be 
 put to death, was by throwing them headlong from the top of the 
 Tai'peian rock. The consuls or other particular magistrates, some- 
 times caused citizens to expire upon a cross ; or, which was a much 
 more common case, ordered them to be beaten to death, with their 
 heads fastened between the branches of a fork ; which they called 
 cervicem f arete inserere. lss 
 
 185 To put the neck upon a fork. Eorroit.
 
 OF ENGLAND. 331 
 
 subject, we naturally expect to find that authority 
 used with mildness, which those who enjoy it 
 must have known to have been precarious ; yet such 
 were the effects of the violence attending those very 
 revolutions, that a spirit both of great irregularity 
 and cruelty had taken place among the Greeks 
 in the exercise of the power of inflicting punish- 
 ments. The very harsh laws of Draco 186 are well 
 known, of which it was said that they were not 
 written with ink, but with blood. The severe laws 
 of the Twelve Tables among the Romans were in 
 great part brought over from Greece. And it was 
 an opinion commonly received in Rome, that the 
 cruelties practised by the magistrates on the citizens 
 
 186 Draco was a celebrated lawgiver of Athens. When he ex- 
 ercised the office of archon, he made a code of laws, B. c. 623, 
 for the use of the citizens, which, on account of their severity, 
 were said, as our author observes, to be written in letters of blood. 
 By them, idleness was punished with as much severity as murder, 
 and death was denounced against the one as well as the other. Such 
 a code of rigorous laws gave occasion to a certain Athenian to ask 
 of the legislator, why he was so severe in his punishments, and 
 Draco gave for answer, that as the smallest transgression had ap- 
 peared to him deserving death, he could not find any punishment 
 more rigorous for more atrocious crimes. These laws were at first 
 enforced, but they were often neglected on account of their extreme 
 severity, and Solon totally abolished them, except that one which 
 punished a murderer with death. The popularity of Draco was 
 uncommon, but the gratitude of his admirers proved fatal to him. 
 When on one occasion he appeared in the theatre, he was received 
 with repeated applause, and the people, according to the custom of 
 the Athenians, showed their respect to their lawgiver, by throwing 
 garments upon him. This was done in such profusion, that Draco 
 was soon hid under them, and thus literally smothered by the too 
 great veneration of his citizens. EDITOR.
 
 332 THE CONSTITUTION 
 
 were only imitations of the examples which the 
 Greeks had given them.* 
 
 In fine, the use of torture, that method of admi- 
 nistering justice, in which folly may be said to be 
 added to cruelty, had been adopted by the Greeks 
 in consequence of the same causes which had 
 concurred to produce the irregularity of their cri- 
 minal justice. And the same practice continues, in 
 these days, to prevail on the continent of Europe, 
 in consequence of that general arrangement of 
 things which creates there such a carelessness about 
 remedying the abuses of public authority. 
 
 But the nature of that same government which 
 has procured to the people of England all the 
 advantages we have before described, has, with still 
 more reason, freed them from the most oppressive 
 abuses which prevail in other countries. 
 
 That wantonness in disposing of the dearest 
 rights of mankind, those insults upon human nature, 
 of which the frame of the governments established 
 in other states unavoidably becomes more or less 
 productive, are entirely banished from a nation which 
 has the happiness of having its interest guarded by 
 
 * Ca3sar expressly reproaches the Greeks with this fact in his 
 speech in favour of the accomplices of Catiline, which Sallust has 
 transmitted to us Eodem illo tempore, Gr<cci(e morem imitati 
 (vnajores nostri) verbcribus animadvertcbant in cives ; de condem- 
 nalls summum supplicium sumebant. ie * 
 
 11( 7 In that early period, and with that generous disposition, they 
 looked toward Greece, and from that nation imported the custom of 
 punishing some offences hy the lictor's rod, and in capital cases 
 they pronounced judgment of death. Translation given hy Mur- 
 phy. EDITOR.
 
 OF ENGLAND. 333 
 
 men who continue to be themselves exposed to the 
 pressure of those laws which they concur in making, 
 and of every tyrannic practice which they suffer to 
 be introduced, by men whom the advantages 
 which they possess above the rest of the people 
 render only more exposed to the abuses they are 
 appointed to prevent, only more alive to the dangers 
 against which it is their duty to defend the com- 
 munity.* 
 
 Hence we see that the use of torture has, from 
 the earliest times, been utterly unknown in England. 
 And all attempts to introduce it, whatever might 
 be the power of those who made them, or the cir- 
 cumstances in which they renewed their endeavours, 
 have been strenuously opposed and defeated. t 
 
 From the same cause also arose that remarkable 
 forbearance of the English laws to use any cruel 
 severity in the punishments which experience show- 
 ed it was necessary for the preservation of society 
 to establish ; 188 and the utmost vengeance of those 
 laws, even against the most enormous offenders, 
 never extends beyond the simple deprivation of life. 
 
 * Historians take notice that the commons, in the reign of 
 Charles II., made haste to procure the aholition of the old statute, 
 De Harelico comburendo (for burning heretics), as soon as it be- 
 came publicly known that the presumptive heir to the crown was a 
 Roman Catholic. Perhaps they would not have been so diligent 
 and earnest, if they had not been fully convinced that a member of 
 the house of coinmons, or his friends, might be brought to trial as 
 easily as any other individuals among the people, so long as an 
 express and written law could be produced ag.iinst them. 
 
 -}- See the two notes in page 158 of this work. 
 
 % A very singular instance occurs in the history of the year 
 
 188 See note 112, page 163. EDITOR.
 
 334f THE CONSTITUTION 
 
 Nay, so anxious has the English legislature been 
 to establish mercy, even to convicted offenders, as 
 a fundamental principle of the government of Eng- 
 land, that they made it an express article of that 
 great public compact which was framed at the im- 
 portant sera of the Revolution, that " no cruel 
 and unusual punishments" should be enforced.* 
 They even endeavoured, by adding a clause for that 
 purpose to the oath which kings were thenceforward 
 to take at their coronation, as it were to render it 
 an everlasting obligation of English kings, to make 
 justice to be " executed with mercy. "f 
 
 1605, of the care of the English legislature not to suffer precedents 
 of cruel practices to be introduced. During the time that those 
 concerned in the gunpowder-plot were under sentence of death, a 
 motion was made in the house of commons to petition the king, 
 that the execution might be stayed, in order to consider of some 
 extraordinary punishment to be inflicted upon them : but this motion 
 was rejected. A proposal of the same kind was also made in the 
 house of lords, where it was dropped. See the Parliamentary 
 History of England, vol. v. anno 1605. 
 
 * See the Bill of Rights, Art. x. " Excessive bail ought not 
 " to be required, nor excessive fines imposed ; nor cruel and unusual 
 " punishments inflicted." 
 
 j- Those same dispositions of the English legislature which have 
 led them to take such precautions in favour even of convicted of- 
 fenders, have still more engaged them to make provisions in favour 
 of such persons as are only suspected and accused of having com- 
 mitted offences of any kind. Hence the zeal with which they have 
 availed themselves of every important occasion, such, for instance, 
 as that of the Revolution, to procure new confirmations to be given 
 to the institution of the trial by jury, to the laws on imprisonments, 
 and in geneval to that system of criminal jurisprudence of which a 
 description has been given in the first part of this work.
 
 OF ENGLAND. 33,5 
 
 CHAPTER XVII. 
 
 A more inward View of the English Government 
 than has hitherto been offered to the Reader in 
 the Course of this Work. Very essential Dif- 
 ferences between the English Monarchy, as a 
 Monarchy, and all those with which we are ac- 
 quainted. 
 
 THE doctrine constantly maintained in this work, 
 and which has, I think, been sufficiently supported 
 by facts and comparisons drawn from the history 
 of other countries, is, that the remarkable liberty 
 enjoyed by the English nation is essentially owing 
 to the impossibility under which their leaders, or 
 in general all men of power among them, are placed, 
 of invading and transferring to themselves any 
 branch of the governing executive authority ; which 
 authority is exclusively vested, and firmly secured 
 in the crown. Hence the anxious care with which 
 those men continue to watch the exercise of that 
 authority. Hence their perseverance in observing 
 every kind of engagement which themselves may 
 have entered into with the rest of the people. 
 
 But here a consideration of a most important kind 
 presents itself : How comes the crown in England 
 thus constantly to preserve to itself (as we see it 
 does) the executive authority in the state, and more- 
 over to preserve it so completely as to inspire the 
 great men in the nation with that conduct so advan- 
 tageous to public liberty, which has just been men- 
 tioned ? These are effects which we do not find,
 
 336 THE CONSTITUTION 
 
 upon examination, that the power of crowns has 
 hitherto been able to produce in other countries. 
 
 In all states of a monarchical form, we indeed 
 see that those men whom their rank and wealth, 
 or their personal power of any kind, have raised 
 above the rest of the people, have formed combi- 
 nations among 1 themselves to oppose the power of 
 the monarch. But their views, we must observe, 
 in forming these combinations, were not by any 
 means to set general and impartial limitations on 
 the sovereign authority. They endeavoured to 
 render themselves entirely independent of that au- 
 thority ; or even utterly to annihilate it, according 
 to circumstances. 
 
 Thus we see that in all the states of ancient 
 Greece, the kings were at last destroyed and ex- 
 terminated. The same event happened in Italy, 
 where in remote times there existed for a while 
 several kingdoms, as we learn both from the ancient 
 historians and poets. And in Rome, we even know 
 the manner and circumstances in which such a re- 
 volution was brought about. 
 
 In more modern times, we see the numerous 
 monarchical sovereignties (which had been raised 
 in Italy on the ruins of the Roman empire) suc- 
 cessively destroyed by powerful factions ; and events 
 of much the same nature have at different times 
 taken place in the kingdoms established in the other 
 parts of Europe. 
 
 In Sweden, Denmark, and Poland, for instance, 
 we find the nobles reducing their sovereigns to the 
 condition of simple presidents over their assemblies, 
 of mere ostensible heads of the government.
 
 OF ENGLAND. 337 
 
 In Germany and in France, countries where the 
 monarchs, being 1 possessed of considerable demesnes, 
 were better able to maintain their independence 
 than the princes just mentioned, the nobles waged 
 war against them, sometimes singly and sometimes 
 jointly ; and events similar to these have succes- 
 sively happened in Scotland, Spain, and the modern 
 kingdoms of Italy. 
 
 In fine, it has only been by means of standing 
 armed forces that the sovereigns of most of the 
 kingdoms we have mentioned have been able, in a 
 course of time, to assert the prerogatives of the 
 crown. And it is only by continuing to keep up 
 such forces, that, like the eastern monarchs, and 
 indeed like all the monarchs that ever existed, they 
 continued to be able to support their authority. 
 
 How therefore can the crown of England, with- 
 out the assistance of any armed force, maintain, as 
 it does, its numerous prerogatives ? How can it, 
 under such circumstances, preserve to itself the 
 whole executive power in the state ? For here we 
 must observe, the crown in England does not derive 
 any support from what regular forces it has at its 
 disposal; and if we doubted this fact, we need 
 only look to the astonishing subordination in which 
 the military is kept to the civil power, to become 
 convinced that an English king is not indebted to 
 his army for the preservation of his authority.* 
 
 If we could suppose that the armies of the kings 
 of Spain or of France, for instance, were, through 
 
 * Henry VIII. the most absolute prince, perhaps, who ever sat 
 upon a throne, kept no standing army.
 
 338 THE CONSTITUTION 
 
 some very extraordinary circumstance, all to vanish 
 in one night, the power of those sovereigns, we 
 must not doubt, would, in six months, be reduced 
 to a mere shadow. They would immediately 
 behold their prerogatives, however formidable they 
 may be at present, invaded and dismembered ;* and 
 supposing that regular governments continued to 
 exist, they would be reduced to have little more 
 influence in them than the doges of Venice or of Ge- 
 noa possess in the governments of those republics. f 
 
 How, therefore, to repeat the question once 
 more, which is one of the most interesting that can 
 occur in politics, how can the crown in England, 
 without the assistance of any armed force, avoid 
 those dangers to which all other sovereigns are 
 exposed ? 
 
 How can it, without any such force, accomplish 
 even incomparably greater works than those sove- 
 reigns, with their powerful armies, are, we find, in 
 a condition to perform ? How can it bear that 
 universal effort (unknown in other monarchies), 
 which, as we have seen, is continually and openly 
 exerted against it ? How can it even continue to 
 resist this effort so powerfully as to preclude all 
 individuals whatever from entertaining any views 
 besides those of setting just and general limitations 
 to the exercise of its authority ? How can it enforce 
 
 * As was the casein the several kingdoms into which the Spanish 
 monarchy was formerly divided, and in no very remote times, in 
 France itself. 
 
 {- Or than the kings of Sweden were allowed to enjoy, before the 
 last revolution in that country. 18 !) 
 
 13 9 The revolution in 1772 is referred to. EDITOR.
 
 OF ENGLAND. 339 
 
 the laws upon all subjects, indiscriminately, without 
 injury or danger to itself? How can it, in fine, im- 
 press the minds of all the great men in the state 
 with so lasting a jealousy of its power, as to neces- 
 sitate them, even in the exercise of their undoubted 
 rights and privileges, to continue to court and de- 
 serve the affection of the rest of the people ? 
 
 Those great men, I shall answer, who even in 
 quiet times prove so formidable to other monarchs, 
 are in England divided into two assemblies ; and 
 such, it is necessary to add, are the principles upon 
 which this division is made, that from it result, as 
 necessary consequences, the solidity and the indi- 
 visibility of the power of the crown. 
 
 The reader may perceive that I have led him, 
 in the course of this work, much beyond the line 
 within which writers on the subject of government 
 have confined themselves ; or rather, that I have 
 followed a track entirely different from that which 
 those writers have pursued. But as the observation 
 just made, on the stability of the power of the 
 crown in England, and the cause of it, is new in its 
 kind, so do the principles from which its truth is to 
 be demonstrated totally differ from what is com- 
 monly looked upon as the foundation of the science 
 of politics. To lay those principles here before the 
 reader, in a manner completely satisfactory to him, 
 would lead us into philosophical discussions on what 
 really constitutes the basis of governments and 
 power amongst mankind, both extremely long, and 
 in a great measure foreign to the subject of this 
 book. I shall therefore content myself with 
 proving the above observations by facts ; which is
 
 340 THE CONSTITUTION 
 
 more, after all, than political writers usually under- 
 take to do with regard to their speculations. 
 
 As I chiefly propose to show that the extensive 
 liberty the English enjoy is the result of the pecu- 
 liar frame of their government, and occasionally to 
 compare the same with the republican form, I even 
 had at first intended to confine myself to that cir- 
 cumstance, which both constitutes the essential 
 difference between those two forms of government, 
 and is the immediate cause of English liberty, 
 I mean the having placed all the executive authority 
 in the state out of the hands of those in whom the 
 people trust. With regard to the remote cause of 
 that same liberty, that is to say, the stability of 
 the power of the crown, the singular solidity, with- 
 out the assistance of any armed force, by which 
 this executive authority is so secured, I should per- 
 haps have been silent, had I not found it absolutely 
 necessary to mention the fact in this place, in order 
 to obviate the objections which the more reflecting 
 part of readers might otherwise have made, both 
 to several of the observations before offered to them, 
 and to a few others which are soon to follow. 
 
 Besides, I shall confess here, I have been several 
 times under apprehensions, in the course of this 
 work, that the generality of readers, misled by the 
 similarity of names, might put too extensive a 
 construction upon what I said with regard to the 
 usefulness of the power of the crown in England ; 
 that they might accuse or suspect me, for in- 
 stance, of attributing the superior advantages of 
 the English mode of government over the republi- 
 can form, merely to its approaching nearer to the
 
 OF ENGLAND. 341 
 
 nature of the monarchies established in the other 
 parts of Europe, and of looking- upon every kind of 
 monarchy as preferable in itself to a republican 
 government ; an opinion which I do not by any 
 means, or in any degree, entertain : I have too 
 much affection, or (if you please) prepossession, in 
 favour of that form of government under which I 
 was born ; and, as I am sensible of its defects, so 
 do I know how to set a value upon the advantages 
 by which it compensates for them. 
 
 I therefore have, as it were, made haste to avail 
 myself of the first opportunity of explaining my 
 meaning on this subject, of indicating that the 
 power of the crown in England stands upon found- 
 ations entirely different from those on which the 
 same power rests in other countries, and of en- 
 gaging the reader to observe (which for the present 
 will suffice), that, as the English monarchy differs, 
 in its nature and main foundations, from every 
 other, so all that is said here of its advantages is 
 peculiar and confined to it. 
 
 But to come to the proofs (derived from facts) 
 of the solidity accruing to the power of the crown 
 in England, from the co-existence of the two assem- 
 blies which concur to form the English parliament, 
 1 shall first point out to the reader several open 
 acts of these two houses, by which they have by 
 turns effectually defeated the attacks of each other 
 upon its prerogative. 
 
 Without looking further back for examples than 
 the reign of Charles the Second, we see that the 
 house of commons had, in that reign, begun to 
 adopt the method of adding (or tacking, as it is
 
 342 THE CONSTITUTION 
 
 commonly expressed) such bills as they wanted 
 more particularly to have passed, to their money 
 bills. This forcible use of their undoubted privi- 
 lege of granting money, if it had been suffered to 
 grow into common practice, would have totally de- 
 stroyed the equilibrium that ought to subsist be- 
 tween them and the crown. But the lords took 
 upon themselves the task of maintaining that 
 equilibrium ; they complained with great warmth 
 of the several precedents that were made by the 
 commons, of the practice we mention : they insisted 
 that bills should be framed " in the old and decent 
 " way of parliament ;" and at last made it a stand- 
 ing order of their house, to reject, upon the sight 
 of them, all bills that are tacked to money bills. 
 
 Again, about the thirty-first year of the same 
 reign, a .strong party prevailed in the house of 
 commons ; and their efforts were not entirely con- 
 fined, if we may credit the historians of those times, 
 to serving their constituents faithfully, and provid- 
 ing for the welfare of the state. Among other 
 bills which they proposed in their house, they 
 carried one to exclude from the crown the imme- 
 diate heir to it ; an affair this, of a very high na- 
 ture ; and with regard to which it may well be 
 questioned whether the legislative assemblies have 
 a right to form a resolution, without the express 
 and declared concurrence of the body of the people. 
 But both the crown and the nation were delivered 
 from the danger of establishing such a precedent, 
 by the interposition of the lords, who threw out 
 the bill on the first reading, 
 
 In the reign of king William the Third, a few
 
 OF ENGLAND. 343 
 
 years after the Revolution, attacks were made 
 upon the crown from another quarter. A strong 
 party was formed in the house of lords ; and, as we 
 may see in Bishop Burnet's History of his Own 
 Times, they entertained very deep designs. One 
 of their views, among others, was to abridge the 
 royal prerogative of calling parliaments, and judg- 
 ing of the proper times of doing it.* They accord- 
 ingly framed and carried in their house a bill for 
 ascertaining the sitting of parliament every year : 
 but the bill, after it had passed in their house, was 
 rejected by the commons.t 
 
 Again, we find, that, a little after the accession 
 of king George the First, an attempt was made by 
 a party in the house of lords, to wrest from the 
 crown a prerogative which is one of its finest 
 flowers, and is, besides, the only check it has on 
 the dangerous views which that house (which may 
 stop both money bills and all other bills) might be 
 brought to entertain : I mean the right of adding 
 new members to it, and judging of the times when 
 it may be necessary to do so. A bill was accord- 
 ingly presented, and carried, in the house of lords, 
 for limiting the members of that house to a fixed 
 
 * They, besides, proposed to have all money bills stopped in 
 their house, till they had procured the right of taxing themselves, 
 their own estates, and to have a committee of lords, and a certain 
 number of the commons, appointed to confer together concerning 
 the state of the nation : " which committee (says Bishop Burnet) 
 " would soon have grown to have been a council of state, that 
 " would have brought all affairs under their inspection, and never 
 " had been proposed but when the nation was ready to break into 
 " civil wars." See Biirnet's History, anno 1693. 
 
 t Nov. 28, 1693.
 
 314 THE CONSTITUTION 
 
 number, beyond which it should not be increased ; 
 but after great pains taken to ensure the success of 
 this bill, it was at last rejected by the commons. 
 
 In fine, the several attempts which a majority in 
 the house of commons have in their turn made to 
 restrain, farther than it now is, the influence of the 
 crown arising from the distribution of preferments 
 and other advantages, have been checked by the 
 house of lords, and all place bills have, from the 
 beginning of this century, 190 constantly miscarried 
 in that house. 191 
 
 Nor have these two powerful assemblies only 
 succeeded in thus warding off the open attacks of 
 
 J 9 The eighteenth it will be home in mind. EDITOR. 
 
 1 9 1 This statement is hy no means correct, of which the follow- 
 ing will suffice for proofs. By the act 6 Anne, cap. 7, (A.D. 1707), 
 it is enacted, that no person, who shall have in his own name, or 
 in the name of any person or persons in trust for him, or for his 
 benefit, any new office or place of profit whatsoever under the 
 crown, which at any time, since the 25th October 1705, had been 
 created or erected, or thereafter should be, nor any persons holding 
 certain offices therein specified, nor any person having any pen- 
 sion from the crown during pleasure, should be capable of being 
 elected, or of sitting or voting as a member of the house of com- 
 mons ; and that if any person being chosen a member, should ac- 
 cept of any office of profit from the crosvn, during such time as he 
 should continue a member, his election should be void, but he 
 should be capable of being again elected. The act 1 Geo. I. stat. 
 2. cap. 56, (A. D. 1715), extends the disqualification to persons 
 having any pension from the crown for any term or number of 
 years. The act 15 Geo. II. cap. 22, (A. D. 1742), further limits 
 or reduces the number of officers capable of sitting in the house of 
 commons. The act 22 Geo. III. cap. 45, (A.D. 1782), for further 
 securing the freedom and independence of parliament, restrains any 
 person, directly or indirectly, concerned in any contract, com- 
 mission or agreement, made for the public service, from being 
 elected, or sitting and voting as a member of the house of com- 
 mons. EDITOR.
 
 OF ENGLAND. 315 
 
 each other on the power of the crown. Their co- 
 existence, and the principles upon which they are 
 severally framed, have been productive of another 
 effect much more extensive, though at first less at- 
 tended to, I mean the preventing even the making 
 of such attacks ; and in times too, when the crown 
 was of itself incapable of defending its authority ; 
 the views of each house destroying, upon these oc- 
 casions, the opposite views of the other, like those 
 positive and negative equal quantities (if I may be 
 allowed the comparison), which destroy each other 
 on the opposite sides of an equation. 
 
 Of this we have several remarkable examples : 
 for instance, when the sovereign has been a minor. 
 If we examine the history of other nations, espe- 
 cially before the invention of standing armies, we 
 shall find that the event we mention never failed to 
 be attended with open invasions of the royal autho- 
 rity, or even sometimes with complete and settled 
 divisions of it. In England, on the contrary, 
 whether we look at the reign of Richard II. or 
 that of Henry VI. or of Edward VI. we shall see 
 that the royal authority was quietly exercised by the 
 councils that were appointed to assist those princes; 
 and when they came of age, it was delivered over 
 to them undiminished. 
 
 But nothing so remarkable can be alleged on this 
 subject as the manner in which the two houses 
 have acted upon those occasions, when, the crown 
 being without any present possessor, they had it in 
 their power, both to settle it on what person they 
 pleased, and to divide and distribute its effectual 
 prerogatives, in what manner, and to what set of
 
 346 THE CONSTITUTION 
 
 men, they might think proper. Circumstances like 
 these we mention have never failed, in other king- 
 doms, to bring on a division of the effectual autho- 
 rity of the crown, or even of the state itself. In 
 Sweden, for instance (to speak of a kingdom which 
 has borne the greatest outward resemblance to that 
 of England), when queen Christina was put under 
 a necessity of abdicating the crown, and it was 
 transferred to the prince who stood next to her in 
 the line of succession, the executive authority in 
 the state was immediately divided, and either dis- 
 tributed among the nobles, or assigned to the 
 senate, into which the nobles alone could be ad- 
 mitted ; and the new king was only to be a presi- 
 dent over it. 
 
 After the death of Charles the Twelfth, who 
 died without male heirs, the disposal of the crown 
 (the power of which Charles the Eleventh had 
 found means to render again absolute) returned to 
 the states, and was settled on the princess Ulrica, 
 and the prince her husband. But the senate, 
 at the same time it thus settled the possession of 
 the crown, again assumed to itself the effectual 
 authority which had formerly belonged to it. The 
 privilege of assembling the states was vested in that 
 body. They also secured to themselves the power 
 of making war and peace, and treaties with foreign 
 powers, the disposal of places, the command of 
 the army and of the fleet, and the administration 
 of the public revenue. Their number was to con- 
 sist of sixteen members. The majority of votes was 
 to be decisive upon every occasion. The only 
 privilege of the new king was to have his vote
 
 OF ENGLAND. 34<J 
 
 reckoned for two : and if at any time he should re- 
 fuse to attend their meetings, business was never- 
 theless to be done as effectually and definitively 
 without him.* 
 
 But in England, the revolution of the year 1G89 
 was terminated in a manner totally different. 
 
 * The senate had procured a seal to be made, to be affixed to 
 their official resolutions, in case the king should refuse to lend his 
 own. The reader will find more particulars concerning the former 
 government of Sweden in the nineteenth chapter. 
 
 Regulations of a similar nature had been made in Denmark, and 
 continued to subsist, with some variations, till the revolution which, 
 in the seventeenth century, placed the whole power of the state in 
 the hands of the crown without control. The different kingdoms into 
 which Spain was formerly divided, were governed in much the 
 same manner. 
 
 And in Scotland, that seat of anarchy and aristocratical feuds, 
 the great offices in the state were not only taken from the crown, 
 but they were moreover made hereditary in the principal families 
 of the body of the nobles : such were the offices of high admiral, 
 high steward, high constable, great chamberlain, and justice 
 general ; this last office implied powers analogous to those of 
 the chancellor and the chief justice of the king's bench, united. 
 
 The king's minority, or personal weakness, or, iu general, the 
 difficulties in which the state might be involved, were circumstances 
 of which the Scotch leaders never failed to avail themselves, for in- 
 vading the governing authority. A remarkable instance of the 
 claims which they used to set forth on those occasions, occurs in a 
 bill that was framed in the year 1703, for settling the succession to 
 the crown, after the demise of the queen, under the title of Jin act 
 for the Security of the Kingdom. 
 
 The Scotch parliament was to sit by its own authority every 
 year, on the first day of November, and adjourn itself as it should 
 think proper. 
 
 The king was to give his assent to all laws agreed to, and offered 
 by, the estates ; or commission proper officers for doing the 
 same. 
 
 A committee of one and thirty members, chosen by the parlia-
 
 348 THE CONSTITUTION 
 
 Those who at that interesting- epoch had the 
 guardianship of the crown, those in whose hands 
 it. lay vacant did not manifest so much as a 
 thought to split and parcel out its prerogative. 
 They tendered it to a single indivisible possessor, 
 impelled as it were by some secret power operating 
 upon them, without any salvo, without any article 
 to establish the greatness of themselves or of their 
 families. It is true, those prerogatives destructive 
 of public liberty, which the late king had assumed, 
 were retrenched from the crown ; and thus far the 
 two houses agreed. But as to any attempt to 
 transfer to other hands any part of the authority of 
 the crown, no proposal was even made about it. 
 Those branches of prerogative which were taken 
 from the kingly office were annihilated, and made 
 to cease to exist in the state : and all the executive 
 authority that was thought necessary to be conti- 
 nued in the government, was, as before, left undi- 
 vided in the crown. 
 
 In the very same manner was the whole autho- 
 rity of the crown transferred afterwards to the 
 princess who succeeded king William the Third, 
 and who had no other claim to it but what was 
 conferred on her by the parliament. And in the 
 same manner again it was settled, a long time 
 
 ment, were to be called the King's Council, and govern during the 
 recess, being accountable to the parliament. 
 
 The King was not to make any foreign treaty without the con- 
 sent of parliament. 
 
 All places and offices, both civil and military., and all pensions 
 formerly given by the king, were ever after to be given by parlia- 
 ment. See Parliamentary Debates, A. 1703.
 
 OF ENGLAND. 349 
 
 beforehand, on the princes of Hanover who suc- 
 ceeded her.* 
 
 There is yet one more extraordinary fact, to 
 which I desire the reader to give attention. Not- 
 withstanding all the revolutions we mention, al- 
 though parliament hath sat every year since the 
 beginning of this century, 192 and though they have 
 constantly enjoyed the most unlimited freedom, 
 both as to the subjects and the manner of their 
 deliberations, and numberless proposals have in 
 consequence been made, yet such has been the 
 efficiency of each house, in destroying, preventing, 
 or qualifying, the views of the other, that the crown 
 has not been obliged during all that period to make 
 use, even once, of its negative voice ; and the last 
 bill rejected by a king of England was that rejected 
 
 * It may not be improper to observe here, as a farther proof of 
 the indivisibility of the power of the crown (which has been above 
 said to result from the peculiar frame of the English government), 
 that no part of the executive authority of the king is vested in his 
 privy council, as it was in the senate of Sweden : the whole busi- 
 ness centres in the sovereign ; the votes of the members are not even 
 counted ; and in fact, the constant style of the law is, the king in 
 council, and not the king and council. A proviso is indeed some- 
 times added to some bills, that certain acts mentioned in them are 
 to be transacted by the king in council ; but this is only a pre- 
 caution taken in the view that the most important affairs of a great 
 nation may be transacted with proper solemnity, and to prevent, 
 for instance, all objections that might, in process of time, be drawn 
 from the uncertainty whether the king had assented, or not, to cer- 
 tain particular transactions. The king names the members of the 
 privy council ; or excludes them, by causing their names to be 
 struck out of the book. 
 
 1 9 2 Half a century has elapsed since our author wrote, but his 
 statements and inferences remain equally applicable. EDITOR.
 
 350 THE CONSTITUTION 
 
 by king William the Third in the year 1692, for 
 triennial parliaments.* 
 
 There occurs another instance yet more remark- 
 able of this forbearing- conduct of the parliament 
 
 * He assented a few years afterwards to that bill, when several 
 amendments had been made in it.^ 3 
 
 ] 9 3 The bill alluded to in this note is the act 6 W. and M. cap. 
 2, (A. D. 1694,) intituled, " An act for the frequent meeting and 
 calling of parliaments, 1 ' and, as it would come into operation should the 
 repeal of " the Septennial Act" (now so generally called for) take 
 place, it may be interesting to the reader to refer to it more particu- 
 larly. It recites that, " by the ancient laws and statutes of this 
 " kingdom, frequent parliaments ought to be held; and that frequent 
 " and new parliaments tend very much to the happy union and good 
 " agreement of the king and people ;" and then, among other things, 
 enacts, that from thenceforth no parliament whatsoever, that should 
 at any time thereafter be called, assembled or held, should have any 
 continuance longer than for three years only at the farthest, to be 
 accounted from the day on which by the writs of summons the said 
 parliament should be appointed to meet. " The Septennial Act" 
 is the 1 Geo. I. stat. 2. cap. 38, (A.D. 1715,) intituled, " An act 
 for enlarging the time of continuance of parliaments/' &c. After 
 reciting the clause above-given, and that " it had been found by 
 " experience, that the said clause had proved very grievous and 
 " burthensome, by occasioning much greater and more continued 
 " expenses in order to elections of members to serve in parliament, 
 " and more violent and lasting heats and animosities among the 
 " subjects of this realm, than were ever known before the said 
 " clause was enacted; and the said provision, if it should continue, 
 " might probably at that juncture, when a restless and popish fac- 
 " tion were designing and endeavouring to renew the rebellion 
 " within this kingdom, and an invasion from abroad, be destructive 
 " to the peace and security of the government;" it enacts, that the 
 then present parliament, and all parliaments that should at any time 
 thereafter be called, assembled or held, should and might re- 
 spectively have continuance for seven years, and no longer, unless 
 sooner dissolved by his majesty, his heirs or successors. EDITOR.
 
 OF ENGLAND. 351 
 
 in regard to the crown, to whatever open or latent 
 cause it may be owing-, and how little their esprit 
 de corps in reality leads them, amidst the apparent 
 heat sometimes of their struggles, to invade its 
 governing executive authority : I mean, the facility 
 with which they have been prevailed upon to give 
 up any essential branch of that authority, even after 
 a conjunction of preceding circumstances had caused 
 them to be actually in possession of it : a case this, 
 however, that has not frequently happened in the 
 English history. After the restoration of Charles 
 the Second, for instance, the parliament, of their 
 own accord, passed an act (in the first year that 
 followed that event), by which they annihilated, at 
 one stroke, both the independent legislative autho- 
 rity, and all claims to such authority, which they 
 had assumed during the preceding disturbances : 
 by the stat. 13 Car. II. c. 1. it was forbidden, 
 under the penalty of a prcemunire, to affirm that 
 either of the two houses of parliament, or both 
 jointly, possess, without the concurrence of the 
 king, the legislative authority. In the fourth year 
 after the Restoration, another capital branch of the 
 governing authority of the crown was also restored 
 to it, without any manner of struggle : by the 
 stat. 16 Car. II. c. 1. the act was repealed by which 
 it had been enacted, that in case the king should 
 neglect to call a parliament once at least in three 
 years, the peers should issue the writs for an elec- 
 tion : and that, should they neglect to issue the 
 same, the constituents should of themselves assem- 
 ble to elect a parliament. 
 
 It is here to be observed, that, in the same
 
 352 THE CONSTITUTION 
 
 reign, the parliament passed the Habeas Corpus 
 Act, as well as the other acts that prepared for the 
 same, and in general showed a jealousy in watching 
 over the liberty of the subject, superior perhaps to 
 what has taken place at any other period of the 
 English history. This is another striking con- 
 firmation of what has been remarked in a preceding 
 chapter, concerning the manner in which public 
 disturbances have been terminated in England. 
 Here we find a series of parliaments to have been 
 tenaciously and perseveringly jealous of those kinds 
 of popular universal provisions, which great men in 
 other states ever disdained seriously to think of, or 
 give a place to, in those treaties by which internal 
 peace was restored to the nation ; and at the same 
 time these parliaments cordially and sincerely gave 
 up those high and splendid branches of governing 
 authority, which the senates, or assemblies of great 
 men who surrounded the monarchs in other limited 
 monarchies, never ceased anxiously to strive to 
 assume to themselves, and which the monarchs, 
 after having lost them, never were able to recover 
 but by military violence, aided by surprise, or 
 through national commotions. All these are poli- 
 tical singularities, certainly remarkable enough. 
 It is a circumstance in no small degree conducive 
 to the solidity of the executive authority of the 
 English crown (which is the subject of this chapter), 
 that those persons who seem to have it in their 
 power to wrest the same from it, are even pre- 
 vented from entertaining thoughts of doing so.* 
 
 * I shall mention another instance of this real disinterestedness 
 of the parliament in regard to the power of the crown ; nay, of the
 
 OF ENGLAND. 353 
 
 As another proof of the peculiar solidity of the 
 power of the crown, in England, may be mentioned 
 the facility, and safety to itself and to the state, 
 with which it has at all times been able to deprive 
 any particular subjects of their different offices, 
 however overgrown and even dangerous their 
 private power might seem to be. A very remarka- 
 
 strong bent that prevails in that assembly to make the crown the 
 general depository of the executive authority of the nation ; I mean 
 to speak of the manner in which they are accustomed to provide 
 for the execution of such resolutions of an active kind as they may 
 at times adopt : it is always by addressing the crown for that pur- 
 pose, and desiring it to interfere with its own executive authority. 
 Even in regard to the printing of their Journals, the crown is 
 applied to by the commons, with a promise of making good to it 
 the necessary expenses. Certainly, if there existed in that body 
 any latent anxiety, any real ambition (I speak here of the general 
 tenor of their conduct) to invest themselves with the executive 
 authority in the state, they would not give up the providing by 
 their own authority, at least for the object just mentioned ; it might 
 give them a pretence for having a set of officers belonging to them, 
 as well as a treasury of their own, and, in short, for establishing in 
 their favour some sort of beginning or precedent ; at the same time 
 that a wish on their part, to be the publishers of their own journals, 
 could not be decently opposed by the crown, nor would be likely to 
 be disapproved by the public To some readers the fact we are speak- 
 ing of may appear trifling ; to me it does not seem so : I confess I 
 never see a paragraph in the newspapers, mentioning an address to 
 the crown for borrowing its executive prerogative in regard to the 
 inconsiderable object here alluded to, without pausing on the article. 
 Certainly there must exist causes of a very peculiar nature, which 
 produce in an assembly possessed of so much weight that remarkable 
 freedom from any serious ambition to push their advantages farther 
 which inspire it with the great political forbearance we have men- 
 tioned, with so sincere an indifference in general, in regard to arro- 
 gating to themselves any branch of the executive authority of the 
 crown : they really seem as if they did not know what to do with it 
 after having acquired it, or of what kind of service it may be to them. 
 
 A A
 
 354 THE CONSTITUTION 
 
 ble instance of this kind occurred when the great 
 duke of Marlborough was suddenly removed from all 
 his employments : the folio wing is the account given 
 by dean Swift in his " History of the four last Years 
 " of the Reign of Queen Anne." 
 
 " As the queen found herself under a necessity, 
 " either, on the one side, to sacrifice those friends, 
 " who had ventured their lives in rescuing her out of 
 " the power of some, whose former treatment she had 
 " little reason to be fond of, to put an end to the 
 " progress she had made towards a peace, and 
 " dissolve her parliament ; or, on the other side, 
 " by removing one person from so great a trust, 
 " to get clear of all her difficulties at once ; her 
 " majesty determined upon the latter expedient, as 
 " the shorter and safer course ; and during the 
 " recess at Christmas, sent the duke a letter, to tell 
 " him she had no farther occasion for his service. 
 
 " There has not perhaps in the present age been 
 "a clearer instance to show the instability of great- 
 " ness which is not founded on virtue : and it may 
 " be an instruction to princes who are well in the 
 " hearts of their people, that the overgrown power 
 " of any particular person, although supported by 
 " exorbitant wealth, can, by a little resolution, be 
 " reduced in a moment, without any dangerous 
 " consequences. This lord, who was, beyond all 
 " comparison, the greatest subject in Christendom, 
 " found his power, credit, and influence, crumble 
 " away on a sudden j and except a few friends and 
 " followers, the rest dropped off in course," &c. 
 (B. I. near the end.) 
 
 The ease with which such a man as the duke
 
 OF ENGLAND. 355 
 
 was suddenly removed, dean Swift has explained 
 by the necessary advantages of princes who possess 
 the affection of their people, and the natural weak- 
 ness of power which is not founded on virtue. 
 However, these are very unsatisfactory explana- 
 tions. The history of Europe, in former times, pre- 
 sents a continual series of examples to the contrary. 
 We see in it numberless instances of princes inces- 
 santly engaged in resisting in the field the competition 
 of the subjects invested with the eminent dignities 
 of the realm, who were not by any means superior 
 to them in point of virtue, or, at other times, living 
 in a continual state of vassalage under some power- 
 ful man whom they durst not resist, and whose 
 power, credit, and influence, they would have found 
 it far from possible to reduce in a moment, or crum- 
 ble on a sudden, by the sending of a single letter, 
 -even though assisted by a little resolution, to use 
 dean Swift's expressions, and without any danger- 
 ous consequences. 
 
 Nay, certain kings, such as Henry the Third of 
 France, in regard to the duke of Guise, and James 
 the Second of Scotland, in regard to the two earls 
 of Douglas successively, had at last recourse to plot 
 and assassination; and expedients of a similar sudden 
 violent kind are the settled methods adopted by 
 the eastern monarchs ; nor is it very sure that they 
 can always easily do otherwise.* 
 
 * We might also mention here the case of the emperor Ferdinand 
 II. and the duke of Walstein, which seems to have at the time 
 made a great noise in the world. The earls of Douglas were some- 
 times attended by a retinue of two thousand horse. See Dr. Ro- 
 bertson's History of Scotland. The duke of Guise was warned, 
 
 A A 2
 
 356 THE CONSTITUTION 
 
 Even in the present monarchies of Europe, not- 
 withstanding the awful force by which they are 
 outwardly supported, a discarded minister is the 
 cause of more or less anxiety to the governing 
 authority ; especially if, through the length of time 
 he has been in office, he happens to have acquired 
 a considerable degree of influence. He is generally 
 sent and confined to one of his estates in the 
 country, which the crown names to him : he is not 
 allowed to appear at court, nor even in the metro- 
 polis ; much less is he suffered to appeal to the 
 people in loud complaints, to make public speeches 
 to the great men in the state, and intrigue among 
 them, and, in short, to vent his resentment by those 
 bitter, and sometimes desperate methods, which, 
 in the constitution of this country, prove in a great 
 measure harmless. 
 
 But a dissolution of the parliament, that is, the 
 dismission of the whole body of the great men in the 
 nation, assembled in a legislative capacity, is a cir- 
 cumstance in the English government, in a much 
 higher degree remarkable and deserving our notice 
 than the depriving any single individual, however 
 powerful, of his public employments. When we 
 consider in what an easy and complete manner such 
 a dissolution is effected in England, we must become 
 
 some hours before his death, of the danger of trusting his person 
 in the king's presence or house ; he answered, On n'oseroit, They 
 durst not. 
 
 If Mary, queen of Scots, had possessed a power analogous to that 
 exerted by queen Anne, she might perhaps have avoided being 
 driven into those instances of ill-conduct which were followed by 
 such tragical consequences.
 
 OF ENGLAND. 3,57 
 
 convinced that the power of the crown bears upon 
 foundations of very uncommon, though perhaps 
 hidden, strength ; especially if we attend to the 
 several facts that take place in other countries. 
 
 In France, for example, 194 we find the crown, 
 notwithstanding 1 the immense outward force by 
 which it is surrounded, to use the utmost caution 
 in its proceedings towards the parliament of Paris j 
 an assembly only of a judiciary nature, without any 
 legislative authority or avowed claim, and which, 
 in short, is very far from having the same weight in 
 the kingdom of France as the English parliament 
 has in England. The king never repairs to that 
 assembly, to signify his intentions, or hold a lit de 
 justice, 195 without the most overawing circumstance 
 of military apparatus and preparation, constantly 
 choosing to make his appearance among them rather 
 as a general than as a king. 
 
 And when the late king,* having taken a serious 
 alarm at the proceedings of this parliament, at 
 length resolved upon their dismission, he fenced 
 himself, as it were, with his army j and military 
 messengers were sent with every circumstance of 
 secrecy and dispatch, who, at an early part of the 
 day, and at the same hour, surprised each member 
 in his own house, causing them severally to retire 
 
 * Louis the Fifteenth. 
 
 ^ It must be borne in mind that the edition of the work which 
 received the author's last corrections was published in the year 1784. 
 EDITOR. 
 
 J9 3 A name given to the throne of the French king in parlia- 
 ment, and signifying a bed of justice. EDITOR.
 
 358 THE CONSTITUTION 
 
 to distant parts of the country, which were described 
 to them, without allowing 1 them time to consider, 
 much less to meet, and hold any consultation. 
 
 But the person who is invested with the kingly 
 office in England, has need of no other weapon, no 
 other artillery, than the civil insignia of his digni- 
 ty to effect a dissolution of the parliament. He 
 steps into the midst of them, telling them that they 
 are dissolved ; and they are dissolved : he tells 
 them that they are no longer a parliament ; and 
 they are no longer so. Like the wand of Popilius,* 
 a dissolution instantly puts a stop to their warmest 
 debates and most violent proceedings. The pe- 
 remptory words by which it is expressed have no 
 sooner met their ears, than all their legislative 
 faculties are benumbed : though they may still be 
 sitting on the same benches, they look no longer 
 on themselves as forming an assembly ; they no 
 longer consider each other in the light of associates 
 or of colleagues. As if some strange kind of wea- 
 pon, or a sudden magical effort, had been exerted 
 
 * A Roman ambassador, who stopped the army of Antiochus 
 king of Syria.'Q 6 Livii Hist. lib. xlv. 
 
 !96 Our author's note throws little light upon his text He 
 should have added, that Popilius was commissioned to order the 
 monarch (Antiochus) to abstain from hostilities against Ptolemy, 
 king of Egypt, who was an ally of Rome. Antiochus wished to 
 evade him by his answers, but Popilius, with a stick which he had 
 in his hand, (our author calls it a " wand" because of the result of 
 the act,) made a circle round him on the sand, and bade him, in the 
 name of the Roman senate and people, not to go beyond it before 
 he spoke decisively. This boldness intimidated Antiochus; he 
 withdrew his garrisons from Egypt, and no longer meditated a 
 war against Ptolemy. EDITOR.
 
 OF ENGLAND. 359 
 
 in the midst of them, all the bonds of their union 
 are cut off; and they hasten away, without having 
 so much as the thought of continuing for a single 
 minute the duration of their assembly.* 
 
 * Nor has London post-horses enough to drive them far and 
 near into the country, when the declaration, hy which the parlia- 
 ment is dissolved, also mentions the calling of a new one. 
 
 A dissolution, when proclaimed by a common crier assisted by 
 a few beadles, is attended by the very same effects. 
 
 To the account of the expedient used by Louis XV. of France 
 to effect the dismission of the parliament of Paris, we may add the 
 manner in which the crown of Spain, more arbitrary perhaps than 
 that of France, undertook some years ago to rid itself of the religi- 
 ous society of the Jesuits, whose political influence and intrigues 
 hud grown to give it umbrage. They were seized by an armed force 
 at the same minute of the same day in every town or borough of 
 that extensive monarchy, where they had residence, in order to 
 their being hurried away to ships that were waiting to carry them 
 into another country ; the whole business being conducted with 
 circumstances of secrecy, of surprise, and of preparation, far 
 superior to what is related of the most celebrated conspiracies men- 
 tioned in history. 
 
 The dissolution of the parliament which Charles the Second had 
 called at Oxford is an extremely curious event ; a very lively ac- 
 count of it is to be found in Olclmixon's History of England. 
 
 If certain alterations, however imperceptible they may perhaps 
 be at first to the public eye, ever take place, the period may come 
 at which the crown will no longer have it in its power to dissolve 
 the parliament ; that is to say, a dissolution will no longer be fol- 
 lowed by the same effects that it is at present. -97 
 
 W It here becomes the duty of the editor to record in detail the 
 circumstances connected with the most memorable exercise of this 
 important prerogative of the crown, and with one of the most mo- 
 mentous events, to be met with in-the annals of this country. 
 
 The first parliament of the reign of his majesty king William 
 IV. assembled 26th October 1830, under an administration of 
 which the duke of Wellington was premier. Being out-voted
 
 360 THE CONSTITUTION 
 
 To all these observations concerning the peculiar 
 solidity of the authority of the crown in England, 
 
 on a question proposed by the opposition, of referring the civil 
 list to a select committee, his grace resigned ; and earl Grey was 
 called to assume the government. 
 
 His lordship almost immediately caused a hill to be introduced 
 into the lower house, "to amend the representation of the people in 
 England and Wales.'' 
 
 After a debate of two nights' duration, the second reading was 
 carried, in a house composed of six hundred and three members, 
 by a majority of ONE. This was on the 22nd March 1831. 
 
 On the 18th April, following, upon the motion for the house 
 going into committee on the bill, the following amendment was 
 moved ; " That it is the opinion of this house, that the total number 
 " of knights, citizens, and burgesses, returned to parliament for 
 " that part of the United Kingdom called England and Wales, 
 " ought not to be diminished ;" it being part of the government 
 measure materially to reduce the total number of the house, tvhile, 
 at the same time, it increased the number of representatives re~ 
 turned by Scotland and Ireland. 
 
 This amendment was debated during two nights ; and then 
 carried, against ministers, by a majority of eight, in a house of 590 
 members. 
 
 His majesty, in consequence, in a manner the most sudden and 
 unexpected, came down to the house of lords in person on the 22nd 
 April, and prorogued the parliament, in these words ; " My lords 
 " and gentlemen, I have come to meet you for the purpose of pro- 
 " roguing this parliament, with a view to its immediate dissolution. 
 " I have been induced to resort to this measure for the purpose of 
 " ascertaining the sense of my people, in the way in which it can 
 " be most constitutionally and authentically expressed, on the ex- 
 " pediency of making such changes in the representation as cir- 
 " cumstances may appear to require, and which, founded upon the 
 " acknowledged principles of the constitution, may tend at once to 
 " uphold the just rights and prerogatives of the crown, and to give 
 " security to the liberties of the people .... In resolving to recur 
 " to the sense of my people in the present circumstances of the 
 " country, I have been influenced only by a paternal anxiety for 
 " the contentment and happiness of my subjects; to promote which,
 
 OF ENGLAND 36 1 
 
 I shall add another that is supplied by the whole 
 series of the English history ; which is, that though 
 
 " I rely with confidence on your continued and zealous assist- 
 " ance." 
 
 The dissolution immediately took place ; and the new parlia- 
 ment assembled on the 14th June, following, and, on the 21st, was 
 opened by his majesty in person in the following terms ; " My 
 " lords and gentlemen, I have availed myself of the earliest oppor- 
 " tunity of resorting to your advice and assistance after the disso- 
 " lution of the late parliament. Having had recourse to that 
 " measure for the purpose of ascertaining the sense of my people 
 " on the expediency of a reform in the representation, I have now 
 " to recommend that important question to your earliest and most 
 " attentive consideration ; confident that, in any measures which 
 " you may prepare for its adjustment, you will carefully adhere to 
 " the acknowledged principles of the constitution, by which the pre- 
 " rogatives of the crown, the authority of both houses of parlia- 
 " ment, and the rights and liberties of the people, are equally 
 " secured." 
 
 A new reform bill, differing in some of its details, but essentially 
 the same, and diminishing the total number of the house, while it 
 increased the number of Scotch and Irish members, was introduced 
 by the government ; and, after the most lengthened debates ever 
 known upon any bill, passed the commons on the 2 1 st September, 
 by a majority of one hundred and nine, in a house of five hundred 
 and eighty-one members, notwithstanding which it was lost in the 
 house of lords upon the second reading on the 7th October, by a 
 majority of forty-one, the contents present being only one hundred 
 and twenty-eight, and proxies thirty, while the not-contents 
 present were one hundred and fifty, and proxies forty-nine. 
 
 In consequence, his majesty again came down to the house of 
 lords in person on the 20th of the same month, and prorogued the 
 parliament in a speech from which the following are extracts; 
 " My lords and gentlemen, In the interval of repose which may now 
 " be afforded you, I am sure it is unnecessary forme to recommend 
 " to you the most careful attention to the preservation of tranquillity 
 " in your respective counties. The anxiety which has been so 
 " generally manifested by my people for the accomplishment of a 
 " constitutional reform in the commons house of parliament, will, I
 
 62 THE CONSTITUTION 
 
 bloody broils and disturbances have often taken 
 place in England, and war been often made against 
 
 " trust, be regulated by a due sense of the necessity of order and 
 " moderation in their proceedings. To the consideration of this 
 " important question the attention of parliament must necessarily 
 " again he called at the opening of the ensuing session ; and you 
 " may be assured of my unaltered desire to promote its settlement, 
 " by such improvements in the representation as may be found 
 " necessary for securing to my people the full enjoyment of their 
 " rights, which, in combination with those of the other orders of 
 " the state, are essential to the support of our free constitution." 
 
 Scarcely, however, had six weeks elapsed, before, on the 6th 
 December, the parliament was re-assembled ; and thus opened by his 
 majesty in person ; " My lords and gentlemen, I have called you 
 " together that you may resume, without further delay, the hn- 
 " portant duties to which the circumstances of the times require 
 " your immediate attention; and I sincerely regret the inconvenience 
 " which I, am well aware you must experience from so early a 
 " renewal of your labours, after the short interval allowed you for 
 " repose from the fatigues of the last session. I feel it to be my 
 " duty, in the first place, to recommend to your most careful con- 
 " sideration the measures which will be proposed to you for a re- 
 " form in the commons' house of parliament ; a speedy and satis- 
 " factory settlement of this question becomes daily of more press- 
 " ing importance to the security of the state and to the contentment 
 " and welfare of my people.'' 
 
 A similar bill, but with some modifications, and in particular 
 continuing the total number of the house, only reducing the num- 
 ber for England and Wales so as to give Scotland an increase of 
 eight, and Ireland of Jive members, was a third time introduced 
 by the government, and, after repeated and most anxious discus- 
 sions, read a third time in the house of commons on the 22nd 
 March 1 832, the numbers being, for the third reading three hundred 
 and fifty-five, against it two hundred and thirty-nine. This hill, after 
 some unimportant amendments proposed by the house of lords and 
 agreed to by the commons, passed the upper house, and received 
 the royal assent in the shape in which an abstract is given of it in 
 the notes on pages 50 to 56. 
 
 Acts to amend the representation of the people in Scotland, and
 
 OF ENGLAND. 363 
 
 the king, yet it has scarcely ever been done, but by 
 persons who positively and expressly laid claim to 
 the crown. Even while Cromwell contended with 
 
 iu Ireland, also passed in the forms of which abstracts are given in 
 like manner. 
 
 Parliament continued its sittings from the 6th December 1831 
 to the 16th August 1832, when it was prorogued by the king in 
 person, who opened his speech to both houses in these words ; 
 " My lords and gentlemen, The state of the public business now 
 " enabling me to release you from a further attendance in parlia- 
 " ment, I cannot take leave of you without expressing the satisfac- 
 " tion with which I have observed your diligence and zeal in the 
 " discharge of your duties during a session of extraordinary labour 
 " and duration. The matters which you have had under your con- 
 " sideration have been of the first importance ; and the laws in 
 " particular, which have been passed for reforming the represeuta- 
 " tion of the people, have occupied, as was unavoidable, the greatest 
 " portion of your time and attention. In recommending this subject 
 " to your consideration.it was my object, by removing the causes of 
 " just complaint, to restore general confidence in the legislature, 
 " and to give additional security to the settled institutions of the 
 " state. This object will, I trust, be found to have been accom- 
 " plished.' 1 
 
 The house of commons which had thus patriotically voted itself 
 not a full and fair representation of the people was not re-assembled ; 
 but parliament was shortly afterwards dissolved, and a new and 
 reformed house of commons, elected under the provisions of the 
 several reform acts, met on the 29th January 1833. 
 
 Four acts of this session are noticed by the editor elsewhere ; 
 viz. the act creating sheriffs' courts, &c., in notes 76 and 79 on pages 
 103 and 107 ; Irish Coercion act, in note 202 on page 379 ; 
 an act for abolishing the punishment of death in certain cases, at the 
 end of note 222 on page 473 ; and " an act to render freehold and 
 copyhold estates assets for the payment of simple and contract debts," 
 in note 223 on page 474 ; and he cannot let pass the only opportunity 
 afforded him of alluding to two other acts of the same session. 
 
 One of them is the 3 and 4 Will. IV. cap. 37, (A.D. 1833,) 
 intituled, " An act to alter and amend the laws relating to the tempo-
 
 364 THE CONSTITUTION 
 
 an armed force against Charles the First, it was in 
 the king's own name that he waged war against him. 
 
 ralities of the church in Ireland," which recites, " That it is expedient 
 " to make provision for the abolition of first fruits in Ireland, and the 
 " substitution of an annual tax in lieu thereof; and also, that cora- 
 " pulsory assessments by vestries should be abolished in certain 
 " cases : that the number of bishops in Ireland might be conveni- 
 " ently diminished, and the revenues of certain of the bishopricks, 
 " as well as the said annual tax,> applied to the building, rebuilding, 
 " and repairing of churches and other such like ecclesiastical pur- 
 " poses, and to the augmentation of small livings, and to such other 
 " purposes as might conduce to the advancement of religion, and the 
 " efficiency, permanence, and stability of the united church of 
 " England and Ireland : and that the tenure by which church lands 
 " were held in Ireland was inconvenient, and it was expedient to alter 
 " the same in such manner as might tend to the ease and security of 
 " the church, and the advantage of the persons holding thereunder." 
 It then proceeds to make enactments for effectuating all the 
 purposes named in the preamble : among other things, empower- 
 ing certain ecclesiastical commissioners to make a valuation of all 
 the revenues, &c., of all benefices, dignities and other spiritual 
 promotions; and to levy a yearly assessment therefrom, allowance 
 being made for the deductions therein mentioned ; such assessment 
 to commence from their next avoidance, and to be payable half 
 yearly, viz., upon all benefices, dignities, and other spiritual pro- 
 motions under the rank of bishopricks, where the value exceeds 
 300, and does not exceed 305, a charge of 2. 10s. per cent. ; 
 and so, upon a slowly-graduated scale, up to a value exceeding 
 1,185, and not exceeding 1,195, a charge of 14. 17s. 6d. per 
 cent. ; and exceeding 1,195, 15 per cent. ; and upon all arch- 
 bishopricks and bishopricks, where the yearly value shall not exceed 
 4,000, 5 per centum; shall exceed 4,000, and not exceed 
 6,000, 7 per centum; above 6,000, and not above 8,000, 10 
 per centum ; above 8,000, and not above 10,000, 12 per cen- 
 tum ; and above 1 0,000, 15 per centum. It then enacts, that the 
 bishoprick of Waterford and Lismore, then void, should, from and 
 after the passing of the act, be united to the bishoprick of Cashel and 
 Emly ; and the nine following bishopricks, when and as the same 
 might severally become void, be thenceforth united to archbishopricks
 
 OF ENGLAND. 365 
 
 The same objection might be expressed in a more 
 general manner, and with strict truth, by saying, 
 
 and bishopricks as follows; viz., Dromore to Down and Connor; 
 Raphoe to Deny ; Clogher to Armagh ; Elphin to Kilmore ; Killala 
 and Achonry to Tuam ; Clonfert and Kilinacduagh to Killaloe and 
 Kilfenora ; Kildare to Dublin and Glandelagh ; Ossory to Ferns 
 and Leighlin; and Cork and Ossory to Cloyne. It empowers the 
 archbishops of Armagh and Dublin to select from the benefices 
 belonging to each of the ten bishopricks to be united with others as 
 aforesaid, one benefice not exceeding the annual value of 1,000, 
 to be approved by the lord lieutenant and council ; and upon each 
 avoidance of the said benefices, happening after the bishopricks to 
 which the same may respectively belong shall have become united 
 to any others, the said archbishops to present one of the fellows 
 or ex-fellows of Trinity College, Dublin. It reduces the revenues 
 of the archbishop of Armagh, from next avoidance, 4,500 per 
 annum : and of the bishoprick of Derry to " the now bishop, he 
 having freely assented thereunto," 4,160 per annum, and from 
 next avoidance 6,160 per annum It enacts that the com- 
 missioners may suspend the appointment of any clerk to any 
 benefice (not being private property) wherein divine worship 
 shall not have been celebrated for the three years next preceding 
 1st February 1833, and vests the tithes, profits, and emoluments 
 of such benefice in the commissioners. It enacts that the lord 
 lieutenant, with consent of any archbishop, bishop, dean, &c., may 
 disunite rectory, &c., from archbishoprick, bishoprick, deanery, 
 &c. ; and in case any bishoprick should, by such means, be reduced 
 below the annual value of 4,000, the commissioners shall make 
 up deficiency. Such are the heads of a few of the one hundred and 
 sixty-seven clauses of this most important statute, known as " the 
 Irish Church Temporalities Act." 
 
 The other statute, to which the editor thinks it right to refer, is, 
 the 3 and 4 Will. IV. cap. 73, (which received the royal assent on 
 the 28th August 1833,) intituled, " An act for the abolition of 
 slavery throughout the British colonies ; for promoting the industry 
 of the manumitted slaves ; and for compensating the persons 
 hitherto entitled to the services of such slaves." It recites, that 
 " divers persons were holden in slavery within divers of his 
 " majesty's colonies, and it was just and expedient that all such
 
 THE CONSTITUTION 
 
 that no war has been waged, in England, against 
 the governing authority, except upon national 
 
 " persons should be manumitted and set free, and that a reasonable 
 " compensation should be made to the persons hitherto entitled 
 " to the services of such slaves for the loss which they would incur 
 " by being deprived of their right to such services : and also that 
 " provision should be made for promoting the industry and securing 
 " the good conduct of the persons so to be manumitted, for a 
 " limited period after such their manumission : and that it was 
 " necessary that the laws then in force in the said several colonies 
 " should forthwith be adapted to the new state and relations of 
 " society therein which would follow upon such general manumis- 
 " sion as aforesaid of the said slaves ; and that, in order to afford 
 " the necessary time for such adaptation of the said laws, a short 
 " interval should elapse before such manumission should take effect :" 
 and then enacts, that all persons who, on the 1st August 1834, 
 should have been registered as slaves, and should appear on the 
 registry to be six yeai's old or upwards, should, from that day, be- 
 come apprenticed labourers ; and such persons be entitled to their 
 services as would have been if this act had not been made. That 
 all slaves brought into the United Kingdom, with consent of their 
 possessors, should be free. That apprenticed labourers should be 
 divided into three classes, viz. praedial attached, prsedial unattached, 
 and non-predial. That the apprenticeship of the praedial la- 
 bourers should not continue beyond the 1st August 1840; and of 
 the non-predial labourers not beyond the 1st August 1838. That, 
 before the apprenticeship was expired, the labourer might be dis- 
 charged by the voluntary act of his employer : but in case of the 
 voluntary discharge of aged or infirm apprenticed labourers, the em- 
 ployer should continue liable for their support during the remaining 
 term of original apprenticeship. That apprenticed labourer might 
 purchase his discharge, against the will of his employer, on an ap- 
 praisement ; and how the same might be effected. That no ap- 
 prenticed labourer should be removeable from the colony, nor 
 praedial apprenticed labourer from the plantation, to which he or 
 she should belong, except by consent of two special justices, which 
 consent should not be given till the justices had ascertained that the 
 removal would not separate the members of families. That the 
 right to the services of apprenticed labourers should be transferable
 
 OF ENGLAND. 36? 
 
 grounds ; that is to say, either when the title to 
 the crown has been doubtful, or when general com- 
 
 propertv ; but none should be separated from wife or husband, pa- 
 rent or child, &c. That employer should supply the labourer with 
 such food, &c. as the law at present required in case of slaves ; 
 that, where the predial labourer should be maintained by the culti- 
 vation o/ provision-grounds, a proper quantity of ground, with lei- 
 sure time, should be set apart by the employer; and how the ex- 
 tent nnd locality of the pro vision -grounds and the quantity of time 
 are to be regulated. That, subject to the obligations thereby im- 
 posed, all slaves in the British colonies should be emancipated from 
 the 1st August 1834 ; from which day slavery should be utterly 
 and for ever abolished and declared unlawful throughout the Bri- 
 tish colonies, plantations, and possessions abroad. That children 
 below the age of six years on the 1st August 1834, or born 
 after that time to any female apprentice, if destitute, might be 
 bound out by any special magistrate as an apprentice to the 
 person entitled to the services of the mother ; but at the date of 
 such indentures the apprentice must be under twelve years of age ; 
 and that the indentures should continue in force until the child had 
 completed his or her twenty-first year, and no longer. That his 
 majesty, or the governor of any colony by his authority, might 
 appoint justices of the peace by special commission to give effect 
 to this act and to all colonial laws to be made in pursuance thereof; 
 and might grant salaries to such justices (not above one hundred 
 in the whole) not exceeding in any case 300 sterling per annum. 
 That apprenticed labourers should not be compelled, with certain 
 exceptions, to work on Sundavs, nor prevented from attending any- 
 where on Sundays for religious worship. That, " towards compen- 
 " satiny the persons at present entitled to the services of the slaves 
 " to be manumitted and set free by virtue of this act for the loss 
 " of such services" the lords of the treasury might raise loans, not 
 exceeding twenty millions pounds sterling, the interest and charges 
 for management whereof should be charged upon the consolidated 
 fund. That his majesty should appoint commissioners, not being 
 less than five, for the distribution of the said fund. That no part 
 of the compensation should be applicable to any colony unless his 
 majesty by order in council should have first declared that adequate 
 provision had been made by the legislature thereof for giving effect
 
 S68 THE CONSTITUTION 
 
 plaints, either .of a political or religious kind, have 
 arisen from every part of the nation. As instances 
 of such complaints, may be mentioned those that 
 gave rise to the war against king John, which 
 ended in the passing of the Great Charter ; the 
 civil wars in the reign of Charles the First ; and 
 
 to this act. That the commissioners should apportion the com- 
 pensation fund into nineteen shares, being one share for each 
 colony, having regard, in making such apportionment, to the 
 numher of registered slaves, &c. That no compensation should he 
 allowed in respect of persons illegally held in slavery. That com- 
 missioners should institute inquiries to ascertain the facts to be 
 taken into account in effecting the apportionment of the compen- 
 sation fund between the proprietors in each colony ; and, having 
 made such inquiries, should frame general rules for the equitable 
 distribution of the fund assigned to each colony ; and such rules 
 should be laid before his majesty in council, and might be appealed 
 against. 
 
 Such are the leading clauses of " The Slavery Abolition Act," 
 enacted twenty-seven years after that great statute, the 46 Geo. III. 
 cap. 52, (A. D. 1806,) which abolished the slave-trade, as far as 
 this country was concerned. 
 
 It is an interesting fact, that the immortal WILLIAM WILBER- 
 FORCE, the "greater part of whose long and active life was spent in 
 the endeavour to attain this object, lived to see this measure 
 proposed to parliament by the government, with every prospect 
 of becoming a law; but died on the 29th July 1833, just a month 
 before the bill received the royal assent, not, however, without 
 gratefully expressing his wonder and delight that he should have 
 lived to see the day when his fellow-countrymen were willing to 
 pay twenty millions sterling for the abolition of slavery ! 
 
 Another singular circumstance in connexion with this measure 
 should be mentioned. The same cabinet minister and distinguished 
 statesman (the Rt. Hon. E. G. S. Stanley) proposed to parliament 
 this bill and the Irish coercion and Irish church temporalities bills 
 holding, in succession, the offices of principal secretary for Ire- 
 land, and secretary of state for the colonies during the same session 
 of parliament. EDITOR.
 
 OF ENGLAND. 3f>9 
 
 the Revolution of the year 1 689. From the facts 
 just mentioned it may also be observed as a con- 
 clusion, that the crown cannot depend on the great 
 security we have been describing any longer than 
 it continues to fulfil its engagements to the nation, 
 and to respect those laws which form the compact 
 between it and the people. And the imminent 
 dangers, or at least the alarms and perplexities, in 
 which the kings of England have constantly in- 
 volved themselves, whenever they have attempted 
 to struggle against the general sense of the nation, 
 manifestly show that all that has been above observed, 
 concerning the security and the remarkable stabi- 
 lity somehow annexed to their office, is to be under- 
 stood, not of the capricious power of the man, but of 
 the lawful authority of the head of the state.* 
 
 * One more observation uiay be made ou the subject ; which 
 is, that when the kingly dignity has happened in England to 
 be wrested from the possessor, through some revolution, it has 
 been recovered, or struggled for, with more difficulty than in other 
 countries : in all the other countries upon earth, a king de jurf 
 (by claim) possesses advantages in regard to the king in being, 
 much superior to those of which the same circumstance may be 
 productive in England. The power of the other sovereigns in the 
 world is not so securely established as that of an English king ; 
 but then their character is more indelible ; that is to say, till 
 their antagonists have succeeded in cutting off them and their 
 families, they possess, in a high degree, a power to renew those 
 claims and disturb the state. Those family pleas or claims of pri- 
 ority, and, in general, those arguments to which the bulk of mankind 
 have agreed to allow so much weight, cease almost entirely to be 
 of any effect in England, against the person actually invested with 
 the kingly office, as soon as the constitutional parts and springs 
 have begun to move, and, in short, as soon as the machine of the 
 government has once begun to be in full play. An universal ge- 
 
 B B
 
 370 THE CONSTITUTION 
 
 Second Part of the Chapter. 
 
 THERE is certainly a very great degree of singu- 
 larity in all the circumstances we have been de- 
 scribing here : those persons who are acquainted 
 with the history of other countries cannot but re- 
 mark with surprise that stability of the power of 
 the English crown, that mysterious solidity, that 
 inward binding strength with which it is able to 
 carry on with certainty its legal operations, amidst 
 the clamorous struggle and uproar with which it is 
 commonly surrounded, and without the medium of 
 any armed threatening force. To give a demon- 
 stration of the manner in which all these things 
 are brought to bear and operate, it is not, as I 
 said before, my design to attempt here ; the princi- 
 ples from which such demonstration is to be derived 
 suppose an inquiry into the nature of man, and of 
 human affairs, which rather belongs to philosophy 
 (though to a branch hitherto unexplored) than to 
 politics ; at least such an inquiry certainly lies out 
 of the sphere of the common science of politics.* 
 
 neral ferment, similar to that which produced the former disturb- 
 ances, is the only time of real danger. 
 
 The remarkable degree of internal national quiet, which, for very 
 near a century past, 1 ^ 8 has followed the Revolution of the year 
 1689, is a strong proof of the truth of the observations above made ; 
 nor do I think that, all circumstances being considered, any other 
 country can produce the like instance. 
 
 * It may, if the reader pleases, belong to the science of meta- 
 politics ; in the same sense as we say metaphysics ; that is, the 
 
 Now nearly a century and a half. EDITOR.
 
 OF ENGLAND. 371 
 
 However, I had a very material reason for intro- 
 ducing 1 all the above-mentioned facts concerning 
 the peculiar stability of the governing authority of 
 England, inasmuch as they lead to an observation 
 of a most important political nature ; which is, that 
 this stability allows several essential branches of 
 English liberty to take place, which, without it, 
 could not exist. For there is a very essential con- 
 sideration to be made in every science, though 
 speculators are sometimes apt to lose sight of it, 
 which is this in order that things may have exist- 
 ence, they must be possible ; in order that political 
 regulations of any kind may obtain their effect, 
 they must imply no direct contradiction, either open 
 or hidden, to the nature of things, or to the other 
 circumstances of the government. In reasoning 
 from this principle, we shall find that the stability 
 of the governing executive authority in England, 
 and the weight it gives to the whole machine of 
 the state, have actually enabled the English nation, 
 considered as a free nation, to enjoy several advan- 
 tages which would really have been totally unat- 
 tainable in the other states we have mentioned in 
 former chapters, whatever degree of public virtue 
 we might even suppose to have belonged to the 
 men who acted in those states as the advisers of the 
 people, or, in general, who were intrusted with the 
 business of framing the laws. 
 
 One of these advantages resulting from the soli- 
 dity of the government, is the extraordinary per- 
 
 science of those things which lie beyond physical or substantial 
 things. A few more words ai'e bestowed upon the same subject in 
 the advertisement, or preface, at the head of this work. 
 
 BB 2
 
 THE CONSTITUTION 
 
 sonal freedom which all ranks of individuals in 
 England enjoy at the expense of the governing au- 
 thority. In the Roman commonwealth, for in- 
 stance, we behold the senate invested with a number 
 of powers totally destructive of the liberty of the 
 citizens : and the continuance of these powers 
 was, no doubt, in a great measure, owing to the 
 treacherous remissness of those men to whom the 
 people trusted for repressing them, or even to their 
 determined resolution not to abridge those pre- 
 rogatives. Yet, if we attentively consider the 
 constant situation of affairs in that republic, we 
 shall find, that, though we should suppose those 
 persons to have been ever so truly attached to the 
 cause of the people, it would not really have been 
 possible for them to procure to the people an entire 
 security. The right enjoyed by the senate, of 
 suddenly naming a dictator with a power unre- 
 strained by any law, or of investing the consuls 
 with an authority of much the same kind, and the 
 power it at times assumed of making formidable 
 examples of arbitrary justice, were resources of 
 which the republic could not, perhaps, with safety 
 have been totally deprived ; and though these ex- 
 pedients frequently were used to destroy the just 
 liberty of the people, yet they were also very often 
 the means of preserving the commonwealth. 
 
 Upon the same principle we should possibly 
 find that the ostracism^ that arbitrary method of 
 
 19 9 A second reference to this practice (see page 183) induces 
 some explanation of it. Ostracism, in Grecian antiquity, denotes 
 the banishment of such persons as, possessing merit and influence, 
 gave umbrage to the people of Athens, lest they should attempt
 
 OF ENGLAND. 
 
 banishing citizens, was a necessary resource, in 
 the republic of Athens. A Venetian noble would 
 
 any thing against the public liberty. This punishment was called 
 ostracism, from the Greek word oarpa.Kov, which properly signifies 
 " a shell ;" but, when applied to this object, it is used for the billet 
 (a " piece of baked earth, in the form of a shell,") on which the 
 Athenians wrote the names of the citizens whom they wished to 
 banish. The learned are divided with regard to the time when os- 
 tracism was instituted, many being of opinion that it owes its origiu 
 to a very remote period ; though, however, they differ extremely 
 as to the name of its patron, and the time of its establishment, 
 they all agree that the person who proposed the law was its first 
 victim. This punishment was inflicted by the Athenians when 
 iheir liberty was in danger. If, for instance, jealousy or ambition 
 had sowed discord among the chiefs of the republic ; and if different 
 parties were formed, which threatened some revolution in the state; 
 the people assembled to propose measures proper to be taken in 
 order to prevent the consequences of a division which in the end 
 might be fatal to freedom. Ostracism was the remedy to which 
 they usually had recourse on these occasions ; and the consultations 
 of the people generally terminated with a decree, in which a day 
 was fixed for a particular assembly, when they were to proceed to 
 the sentence of ostracism. Then they who were threatened with 
 banishment, omitted no assiduity or art which might gain them the 
 favour of the people. They made harangues to evince their inno- 
 cence, and the great injustice that would be done them if they were 
 banished. They solicited, in person, the interest of every citizen ; 
 all their party exerted themselves in their behalf: they procured 
 informers to vilify the chiefs of the opposite faction. Some time 
 before the meeting of the assembly, a wooden inclosure was raised 
 in the forum, with ten doors, i. e. with as many as there were tribes 
 in the republic ; and when the appointed day was come, the citizens 
 of each tribe entered at their respective door, and threw into the 
 middle of the iuclosure the billet on which the citizen's name was 
 written whose banishment they voted. The archons and the senate 
 presided at this assembly, and counted the billets. He who was 
 condemned by six thousand of his fellow citizens, was obliged to 
 quit the city within ten days ; the voices of that number, at least,
 
 THE CONSTITUTION 
 
 perhaps also "confess, that however terrible the 
 state inquisition, established in his republic, may 
 be even to the nobles themselves, yet it would not 
 be prudent entirely to abolish it. And we do not 
 know but a minister of state in France, though 
 ever so virtuous and moderate a man, would say 
 the same with regard to secret imprisonments, the 
 lettres de cachet and other arbitrary deviations 
 from the settled course of law, which often take 
 place in that kingdom, and in the other monar- 
 chies of Europe. No doubt, if he was the man 
 we suppose, he would confess that the expedients 
 mentioned have in numberless instances been basely 
 prostituted to gratify the wantonness and private 
 revenge of ministers, or of those who had any 
 interest with them ; but still perhaps he would con- 
 tinue to give it as his opinion, that the crown, not- 
 withstanding its apparently immense strength, 
 could not avoid recurring at times to expedients of 
 this kind ; much less could it publicly and absolutely 
 renounce them for ever. 
 
 It is therefore a most advantageous circumstance 
 in the English government, that its security renders 
 all such expedients unnecessary, and that the repre- 
 sentatives of the people have not only been con- 
 stantly willing to promote the public liberty, but 
 
 were requisite. Ostracism condemned to an exile of ten years, 
 without confiscation of goods ; and, far from conveying the idea 
 of infamy, became, at Athens, a proof of merit, from the objects on 
 which it was inflicted. EDITOR. 
 
 200 \ lettre de cachet is, an arbitrary order of the king of France, 
 (or of the French, as Louis Philip is styled,) in the form of a letter, 
 addressed to a person, for his exile, or even for his imprisonment. 
 EDITOR.
 
 OF ENGLAND. 375 
 
 that the general situation of affairs has also enabled 
 them to carry their precautions so far as they have 
 done. And indeed, when we consider what prero- 
 gatives the crown, in England, has implicitly 
 renounced ; that, in consequence of the indepen- 
 dence conferred on the judges, and of the method of 
 trial by jury ) it is deprived of all means of influ- 
 encing the settled course of the law both in civil 
 and criminal matters : that it has renounced all 
 power of seizing the property of individuals, and 
 even of restraining in any manner whatsoever, and 
 for the shortest time, the liberty of their persons : 
 we do not know which we ought most to admire ; 
 whether the public virtue of those who have de- 
 prived the supreme executive power of all those 
 dangerous prerogatives, or the nature of that same 
 power, which has enabled it to give them up without 
 ruin to itself, whether the happy frame of the 
 English government, which makes those in whom 
 the people trust, continue so faithful to the discharge 
 of their duty, or the solidity of that same govern- 
 ment, which can afford to leave to the people so 
 extensive a degree of freedom.* 
 
 * At the times of the invasions of the Pretender, assisted by the 
 forces of hostile nations, the Habeas Corpus Act was indeed sus- 
 pended (which by the by may serve as one proof, that, in pro- 
 portion as a government is in danger, it becomes necessary to 
 abridge the liberty of the subject) ; but the executive power did 
 not thus of itself stretch its own authority ; the precaution was 
 deliberated upon and taken by the representatives of the people ; 
 and the detaining of individuals in consequence of the suspension of 
 the act was limited to a certain fixed time. Notwithstanding the 
 just fears of internal and hidden enemies which the circumstances
 
 376 THE CONSTITUTION 
 
 Again, the liberty of the press, that great advan- 
 tage enjoyed by the English nation, does not exist 
 in any of the other monarchies of Europe, however 
 well established their power may at first seem to 
 be ; and it might even be demonstrated that it can- 
 not exist in them. The most watchful eye, we see, 
 is constantly kept in those monarchies upon every 
 kind of publication ; and a jealous attention is paid 
 even to the loose and idle speeches of individuals. 
 Much unnecessary trouble (we may be apt at first 
 to think) is taken upon this subject ; but yet if we 
 consider how uniform is the conduct of all those 
 governments, how constant and unremitted are 
 their cares in those respects, we shall become con- 
 vinced, without looking farther, that there must be 
 some sort of necessity for their precautions. 
 
 In republican states, for reasons which are at 
 bottom the same as in the before-mentioned govern- 
 ments, the people are also kept under the greatest 
 restraints by those who are at the head of the state. 
 In the Roman commonwealth, for instance, the 
 liberty of writing was curbed by the severest laws : * 
 
 of the times might raise, the deviation from the former course of 
 the law was carried no farther than the single point we have men- 
 tioned. Persons detained by order of the government were to be 
 dealt with in the same manner as those arrested at the suit of pri- 
 vate individuals ; the proceedings against them were to be carried 
 on no otherwise than in a public place : they were to be tried by 
 their peers, and have all the usual legal means of defence allowed 
 to them ; such as calling of witnessess, peremptory challenge of 
 juries, &c. 
 
 * The law of the Twelve Tables had established the punishment 
 of death against the author of a libel : nor was it by a trial by jury
 
 OF ENGLAND. 
 
 with regard to the freedom of speech, things were 
 but little better, as we may conclude from several 
 facts ; and many instances may even be produced 
 of the dread with which the private citizens, upon 
 certain occasions, communicated their political opi- 
 nions to the consuls, or to the senate. In the 
 Venetian republic, the press is most strictly watched ; 
 nay, to forbear to speak in any matter whatsoever 
 of the conduct of the government is the fundamental 
 maxim which they inculcate on the minds of the 
 people throughout their dominions.* 
 
 that they determined what was to be called a libel. Si QUIS 
 
 CARMEN OCCENTASSIT, ACTITASSIT, COND1DISSIT, QUOD ALTERI 
 FLAGITIUM FAXIT, CAPITAL ESTO. 201 
 
 * Of this I have myself seen a proof somewhat singular, which 
 I beg leave of the reader to relate. Being, in the year 1 768, at 
 Bergamo, the first town of the Venetian state as you come into it 
 from the state of Milan, about a hundred and twenty miles distant 
 from Venice, I took a walk in the evening in the neighbourhood of 
 the town ; and wanting to know the names of several places which 
 I saw at a distance, I stopped a young countryman to ask for in- 
 formation. Finding him to be a sensible young man, I entered 
 into some farther conversation with him ; and as he had himself a 
 great inclination to see Venice, he asked me, whether I proposed 
 to go there ? I answered that 1 did : on which he immediately 
 warned me, when I was at Venice, not to speak of the prince (del 
 principe) ; an appellation assumed by the Venetian government, 
 in order, as I suppose, to convey to the people a greater idea of 
 their union among themselves. As I wanted to hear him talk 
 farther on the subject, I pretended to be entirely ignorant in that 
 respect, and asked for what reason I must not speak of the prince. 
 But he (after the manner of the common people in Italy, who, 
 when strongly affected by any thing, rather choose to express 
 
 Cl)1 If any one should sing, act, or compose a song, which shall 
 cause reproach lo another, it shall be a capital ollcncu. EDITOR.
 
 THE CONSTITUTION 
 
 With respect therefore to this point, it may again 
 be looked upon as a most advantageous circumstance 
 in the English government, that those who have 
 been at the head of the people have not only been 
 constantly disposed to procure the public liberty, 
 but also that they have found it possible for them 
 to do so ; and that the remarkable strength and 
 steadiness of the government have admitted of that 
 extensive freedom of speaking and writing which 
 the people of England enjoy. 202 A most advan- 
 
 themselves by some vehement gesture than by words) ran the edge 
 of his hand, with great quickness, along his neck, meaning thereby 
 to express, that being strangled, or having one's throat cut, was the 
 instant consequence of taking such liberty. 
 
 202 It has been found necessary, at different periods, to restrain 
 this freedom. 
 
 This was done under the administration of Mr. Pitt by the acts 
 36 Geo. III. cap. 7 and 8, (A. D. 1795,) the one intituled, " an 
 act for the safety and preservation of his majesty's person and govern- 
 ment against treasonable and seditious practices and attempts ;" 
 the other, " an act for the more effectually preventing seditious 
 meetings and assemblies ;" but both these acts were passed for a 
 limited time, and were suffered to expire. 
 
 Under the administration of the earl of Liverpool certain acts were 
 passed, known as " The Six Acts," and, it is somewhat singular, 
 were six, of only nine, acts passed in the last year of the long reign 
 of king George the Third. They were the 60 Geo. III. cap. 1 , 2, 4, 6, 
 8, and 9, (A. D. 1819,) and are intituled as follow: Cap. 1, " an 
 act to prevent the training of persons to the use of arms, and to 
 the practice of military evolutions and exercises." Cap. 2, " an 
 act to authorize justices of the peace, in certain disturbed counties 
 to seize and detain arms collected or kept for purposes dangerous 
 to the public peace ; to continue in force until the 25th day of 
 March 1822." Cap. 4, " an act to prevent delay in the admi- 
 nistration of justice in cases of misdemeanour." Cap. 6, " an 
 act for more effectually preventing seditious meetings and assem-
 
 OF ENGLAND. 379 
 
 tageous privilege this ! which affording to every 
 man a mean of laying his complaints before the 
 
 blies ; to continue in force until the end of the session of parlia- 
 ment next after five years from the passing of the act." Cap. 8, 
 " an act for the more effectual prevention and punishment of 
 blasphemous and seditious libels." Cap. 9, " an act to subject 
 certain publications to the duties of stamps upon newspapers, and 
 to make other regulations for restraining the abuses arising from 
 the publication of blasphemous and seditious libels." Such of 
 these acts as were temporary were not renewed ; and parts of the 
 others have been repealed ; the rest remain in force. 
 
 But a far more severe statute than any above referred to, as 
 applied to Ireland, remains to be noticed. The following are 
 the leading heads of act 3 Will. IV. cap. 4, (A. D. 1833,) intituled, 
 " an act for the more effectual suppression of local disturbances 
 and dangerous associations in Ireland," proposed by the adminis- 
 tration of earl Grey, and commonly called " The Irish Coercion 
 " Act.'' The lord lieutenant may, by order, prohibit or suppress 
 any meeting deemed by him to be dangerous to the public safety. 
 Meetings so prohibited shall be unlawful, and, after notice given, 
 every person present guilty of misdemeanour. Two justices may 
 enter by force any place where a prohibited assembly is held, and 
 read a notice to the persons to disperse. Persons not dispersing 
 within a quarter of an hour, deemed guilty of a misdemeanour, and 
 may be apprehended then or afterwards. Persons prosecuted by 
 indictment to plead forthwith. The lord lieutenant may issue his 
 proclamation declaring any county, &c., to be so disturbed as to re- 
 quire the application of this law ; and such county shall be deemed 
 a proclaimed district. Such proclamation shall warn the inhabitants 
 to abstain from unlawful assemblies, &c. All justices, constables, 
 &c., and all commissioned officers in Ireland, required to suppress 
 disturbances in proclaimed districts ; and to search for and bring to 
 trial offenders. Tenants of houses in proclaimed districts to deliver to 
 the chief constable, &c., correct lists of all males, distinguishing those 
 of the age of fourteen from those under. One of such lists, counter- 
 signed by the constable, to be posted on the door or kept by the te- 
 nant ; the other to be kept by the constable. No meeting allowed 
 in a proclaimed district for petitioning parliament, &c., without pre- 
 vious notice given to the lord lieutenant, and his consent obtained.
 
 380 THE CONSTITUTION 
 
 public, procures him almost a certainty of redress 
 against any act of oppression that he may have 
 been exposed to ; and which leaving-, moreover, to 
 every subject a right to give his opinion on all 
 public matters, and, by thus influencing the senti- 
 ments of the nation, to influence those of the legis- 
 lature itself (which is sooner or later obliged to pay 
 a deference to them), procures to him a sort of 
 
 Meetinsrs held without such notice and consent declared illegal. 
 
 O O 
 
 Not to extend to meetings convened by high sheriff, &c. In 
 proclaimed districts any person not being resident or a registered 
 freeholder of 20 taking part at meetings, guilty of a misde- 
 meanour. Lord lieutenant, and any officer commanding the dis- 
 trict, authorized by him, may commission officers of the regular 
 forces to hold courts-martial for trial of offences within this act. 
 Courts-martial so constituted to consist of not less than five nor 
 more than nine, and to have all the powers of courts-martial and of 
 courts of oyer and terminer. Number of members necessary to con- 
 cur in decisions in such courts at least seven, if court consist of nine 
 members, and at least five if less than nine. Courts-martial may 
 try capital offences, and sentence to transportation; but not impose 
 the penalty of whipping. Persons found out of their houses under 
 suspicious circumstances in a proclaimed district after sunset, may 
 be committed, and if convicted deemed guilty of a misdemeanour. 
 Justices, &c., may, after sunset, require the male inhabitants of any 
 house in a proclaimed district to show themselves. Persons absent 
 deemed guilty of a misdemeanour, unless they prove some lawful 
 occasion. Justice may accept excuse for an absentee, if satisfied of 
 the truth thereof. If arms are found in the possession of any person 
 not authorized to keep the same, he shall be deemed guilty of a mis- 
 demeanour. Nothing done in pursuance of this act in any pro- 
 claimed district to be questionable in any court, except that officers, 
 &c., acting in pursuance of such power or authority, shall be re- 
 sponsible to courts-martial. Nothing herein to take away the pre- 
 rogative of the crown to appoint courts-martial, or to resort to the 
 exercise of martial law or any powers given by law for suppression of 
 insurrection. This act to continue in force till 1st. August 1834. 
 EDITOR.
 
 OF ENGLAND. 381 
 
 legislative 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 
 propositions suddenly offered to him, and which he 
 could have neither a share in framing, nor any 
 opportunity of objecting to and modifying. 
 
 Such a privilege, by supporting in the people a 
 continual sense of their security, and affording them 
 undoubted proofs that the government, whatever 
 may be its form, is ultimately designed to ensure 
 the happiness of those who live under it, is both one 
 of the greatest advantages of freedom, and its 
 surest characteristic. The kind of security, as to 
 their persons arid possessions, which subjects, who 
 are totally deprived of that privilege, enjoy at par- 
 ticular times under other governments, perhaps may 
 entitle them to look upon themselves as the well 
 administered property of masters who rightly under- 
 stand their own interests ; but it is the right of 
 canvassing without fear the conduct of those who 
 are placed at their head, which constitutes a free 
 nation.* 
 
 The unbounded freedom of debate, possessed by 
 the English parliament, is also a consequence of the 
 peculiar stability of the government. All sovereigns 
 have agreed in their jealousy of assemblies of this 
 kind, in their dread of the privileges of assemblies 
 who attract in so high a degree the attention of the 
 
 * If we consider the great advantages to public liberty which re- 
 sult from the institution of the trial by jury, and from the liberty of 
 the press, we shall find England to be in reality a more democra- 
 tical state than any other we are acquainted with. The judicial 
 power, and the censorial power, are vested in the people.
 
 382 THE CONSTITUTION 
 
 rest of the people, who in a course of time become 
 connected by so many essential ties with the bulk 
 of the nation, and acquire so much real influence 
 by the essential share they must needs have in the 
 management of public affairs, and by the eminent 
 services, in short, which they are able to perform 
 to the community.* Hence it has happened that 
 monarchs, or single rulers, in all countries, have 
 endeavoured to dispense with the assistance of 
 assemblies like those we mention, notwithstanding 
 the capital advantages they might have derived 
 from their services towards the good government 
 of the state ; or, if the circumstances of the times 
 have rendered it expedient for them to call such 
 assemblies together, they have used the utmost en- 
 deavours in abridging those privileges and legis- 
 lative claims which they soon found to prove so 
 hostile to their security : in short, they have ever 
 found it impracticable to place an unreserved trust 
 in public meetings of this kind. 
 
 We may here name Cromwell, as he was sup- 
 ported by a numerous army, and possessed more 
 power than any foreign monarch who has not been 
 secured by an armed force. Even after he had 
 purged, by the agency of colonel Pride and two 
 regiments, the parliament that was sitting when his 
 power became settled, thereby thrusting out all his 
 opponents, to the amount of about two hundred, 
 
 * And which they do actually perform, till they are able to throw 
 off the restraints of impartiality and moderation, a thing which, 
 being men, they never fail to do when their influence is generally 
 established, and proper opportunities offer. Sovereigns know these 
 things, and dread them.
 
 OF ENGLAND. 383 
 
 he soon found his whole authority endangered by 
 the proceedings of those who remained, and was 
 under a necessity of turning them out in the mili- 
 tary manner with which every one is acquainted. 
 Finding still a meeting of this kind highly expe- 
 dient to legalize his military authority, he called 
 together that assembly which was called Barebones* 
 parliament. He had himself chosen the members 
 of this parliament, to the number of about a hun- 
 dred and twenty, and they had severally received 
 the summons from him ; yet, notwithstanding this 
 circumstance, and the total want of personal weight 
 in most of the members, he began in a very few 
 months, and in the midst of his powerful victorious 
 army, to feel a serious alarm at their proceedings ; 
 he soon heard them talk of their own divine com- 
 mission, and of the authority they had received 
 from the Lord ; and, in short, finding he could not 
 trust them, he employed the offices of a second 
 colonel, to effect their dismission. Being now dig- 
 nified with the legal appellation of Protector, he 
 ventured to call a parliament elected by considerable 
 parts of the people ; but though the existence of this 
 parliament was grounded, we might say grafted, 
 upon his own, and though bands of soldiers were 
 even posted in the avenues to keep out all such 
 members as refused to take certain personal engage- 
 ments to him, he made such haste in the issue, to 
 rid himself of their presence, as to contrive a mean 
 quibble or device to shorten the time of their sitting 
 by ten or twelve days.* To a fourth assembly he 
 
 * They were to have sittenfive months; but Cromwell pretended 
 that the months were to consist of only twenty -eight days ; as this
 
 384- THE CONSTITUTION 
 
 again applied ; but though the elections had been 
 so managed as to procure him a formal tender of 
 the crown during the first sitting, he put an end to 
 the second with resentment and precipitation.* 
 
 The example of the Roman emperors, whose 
 power was outwardly so prodigious, may also be 
 introduced here. They used to show the utmost 
 jealousy in their conduct with respect to the Roman 
 senate ; and that assembly, which the prepossession 
 of the people, who looked upon it as the ancient 
 remains of the republic, had made it expedient to 
 continue, were not suffered to assemble but under 
 the drawn scimitars of the praetorian guards. 
 
 Even the kings of France, though their authority 
 is so unquestioned, so universally respected, as well 
 as strongly supported, have felt frequent"anxiety 
 from the claims and proceedings of the parliament 
 of Paris, an assembly of much less weight than the 
 English parliament. The alarm has been mentioned' 
 which Louis XV. at last expressed concerning their 
 measures, as well as the expedient to which he re- 
 sorted, to free himself from their presence. And 
 when his successor thought proper to call again this 
 parliament together, a measure highly prudent in 
 the beginning of his reign, every jealous precaution 
 was at the same time taken to abridge those privi- 
 
 was the way of reckoning time used in paying the army and the 
 fleet. 
 
 * The history of the conduct of the deliberating and debating 
 assemblies we are alluding to, in regard to the momxrchs, or single 
 rulers of any denomination, who summon them together, may be 
 expressed in very few words. If the monarch is unarmed, they 
 overrule him so as almost entirely to set him aside : if his power 
 is of a military kind, they form connexions with the army.
 
 OF ENGLAND. 385 
 
 leges of deliberating and remonstrating, upon which 
 any distant claim to, or struggle for, a share of the 
 supreme authority, might be grounded. 
 
 It may be objected that the pride of kings or 
 single rulers makes them averse to the existence of 
 assemblies like those we mention, and despise the 
 capital services which they might derive from them 
 for the good government of their kingdoms. I grant 
 it may in some measure be so. But if we inquire 
 into the general situation of affairs in different 
 states, and into the examples with which their his- 
 tory supplies us, we shall also find that the pride of 
 those kings agrees in the main with the interest and 
 quiet of their subjects, and that their preventing 
 the assemblies we speak of from meeting, or, when 
 met, from assuming too large a share in the ma- 
 nagement of public affairs, is, in a great measure, 
 matter of necessity. 
 
 We may therefore reckon it as a very great ad- 
 vantage, that, in England, no such necessity exists. 
 Such is the frame of the government, that the su- 
 preme executive authority can both give leave to 
 assemble, and show the most unreserved trust, 
 when assembled, to those two houses which concur 
 together to form the legislature. 
 
 These two houses, we see, enjoy the most com- 
 plete freedom in their debates, whether the subject 
 be grievances, or regulations concerning govern- 
 ment matters of any kind ; no restriction whatever 
 is laid upon them ; they may start any subject they 
 please. The crown is not to take any notice of 
 their deliberations : its wishes, or even its name, 
 are not to be introduced in the debates. And, in 
 
 c c
 
 386 THE CONSTITUTION 
 
 short, what makes the freedom of deliberating, ex- 
 ercised by the two houses, really unlimited, is the 
 privilege, or sovereignty we may say, enjoyed by 
 each within its own walls, in consequence of which, 
 nothing done or said in parliament is to be ques- 
 tioned in any place out of parliament. Nor will it 
 be pretended by those persons who are acquainted 
 with the English history, that these privileges of 
 parliament we mention are nominal privileges, only 
 privileges upon paper, which the crown has disre- 
 garded whenever it has thought proper, and to the 
 violations of which the parliament have used very 
 tamely to submit. That these remarkable advan- 
 tages, this total freedom from any compulsion or 
 even fear, and, in. short, this unlimited liberty of 
 debate, so strictly claimed by the parliament, and so 
 scrupulously allowed by the crown, should be ex- 
 ercised year after year, during a long course of 
 time, without producing the least relaxation in 
 the execution of the laws, the smallest degree 
 of anarchy, are certainly very singular political 
 phsenomena. 
 
 It may be said, that the remarkable solidity of the 
 governing executive authority, in England, ope- 
 rates to the advantage of the people with respect to 
 the objects we mention, in a twofold manner. In 
 the first place, it so far takes from the great men 
 in the nation all serious ambition to invade this 
 authority, that their debates do not produce such 
 anarchical and more or less bloody struggles as 
 have very frequently disturbed other countries. In 
 the second place, it inspires those great men with 
 that salutary jealousy of the same authority which
 
 OF ENGLAND. 387 
 
 leads them to frame such effectual provisions for 
 laying- it under proper restraints. On which I 
 shall observe, by way of a short digression, that 
 this distinguished stability of the executive autho- 
 rity of the English crown affords an explanation of 
 the peculiar manner in which public commotions 
 have constantly been terminated in England, com- 
 pared with the manner in which the same events 
 have been concluded in other kingdoms. When I 
 mentioned, in a former chapter, this peculiarity in 
 the English government, I mean the accuracy, im- 
 partiality, and universality of the provisions by 
 which peace, after internal disturbances, has been 
 restored to the nation, I confined my comparisons 
 to instances drawn from republican governments, 
 purposely postponing to say any thing of govern- 
 ments of a monarchical form, till I had introduced 
 the very essential observation contained in this 
 chapter, which is, that the power of crowns, in 
 other monarchies, has not been able, by itself, to 
 produce the same effects it has in England, that 
 is, has not been able to inspire the great men in the 
 state with any thing like that salutary jealousy we 
 mention, nor of course to induce them to unite in 
 a real common cause with the rest of the people. 
 In other monarchies,* those men who, during the 
 continuance of the public disturbances, were at the 
 head of the people, finding it in their power in the 
 issue, to parcel out, more or less, the supreme go- 
 
 * I mean before the introduction of those numerous standing 
 
 o 
 
 armies which are now kept by all the crowns of Europe : since that 
 epoch, which is of no very ancient date, no treaty has been en- 
 tered into by those crowns with any subjects. 
 
 c c 2
 
 388 THE CONSTITUTION 
 
 verning authority (or even the state itself), and to 
 transfer the same to themselves, constantly did so, 
 in the same manner, and for the very same reasons, 
 as it happened in the ancient commonwealths ; 
 those monarchical governments being in reality, so 
 far as that, of a republican nature : and the govern- 
 ing authority was left, at the conclusion, in the 
 same undefined extent it had before.* But, in Eng- 
 land, the great men in the nation finding themselves 
 in a situation essentially different, lost no time in 
 pursuits like those in which the great men of other 
 countries used to indulge themselves on the occa- 
 sion we mention. Every member of the legislature 
 plainly perceived, from the general aspect of affairs, 
 and his feelings, that the supreme executive autho- 
 rity in the state must in the issue fall somewhere 
 undivided, and continue so ; and being moreover 
 sensible, that neither personal advantages of any 
 kind, nor the power of any faction, but the law 
 alone, could afterwards be an effectual restraint 
 upon its motions, they had no thought or aim left, 
 except to frame with care those laws on which their 
 own liberty was to continue to depend, and to 
 restrain a power which they judged it so imprac- 
 ticable to transfer to themselves or their party, or 
 to render themselves independent of. These ob- 
 servations I thought necessary to be added to those 
 in the fifteenth chapter, to which I now refer the 
 reader. 
 
 Nor has the great freedom of canvassing political 
 
 * As a remarkable instance of such a treaty, may be mentioned 
 that by which the war for the public good was terminated in 
 France. See the note in page 23 of this work.
 
 OF ENGLAND. 389 
 
 subjects we have described, been limited to the 
 members of the legislature, or confined to the walls 
 of Westminster, that is, to the exclusive spot on 
 which the two houses meet : the like privilege is 
 allowed to the other orders of the people : and a 
 full scope is given to that spirit of party, and a 
 complete security ensured to those numerous and 
 irregular meetings, which, especially when directed 
 to matters of government, create so much uneasi- 
 ness in the sovereigns of other countries. Indivi- 
 duals even may, in such meetings, take an active 
 part for procuring the success of those public steps 
 which they wish to see pursued ; they may frame 
 petitions to be delivered to the crown, or to both 
 houses, either to procure the repeal of measures 
 already entered upon by government, or to prevent 
 the passing of such as are under consideration, or 
 to obtain the enacting of new regulations of any 
 kind ; they may severally subscribe their names to 
 such petitions : the law sets no restriction on their 
 numbers ; nor has it, we may say, taken any pre- 
 caution to prevent even the abuse that might be 
 made of such freedom. 203 
 
 That mighty political engine, the press, is also at 
 their service ; they may avail themselves of it to 
 advertise the time and place, as well as the intent, 
 of the meetings, and moreover to set off and in- 
 culcate the advantages of those notions which they 
 wish to see adopted. 
 
 Such meetings may be repeated ; and every in- 
 
 203 Not strictly correct, since the passing of the several acts men- 
 tioned in note 202, page 378. EDITOR.
 
 390 THE CONSTITUTION 
 
 dividual may deliver what opinion he pleases on 
 the proposed subjects, though ever so directly op- 
 posite to the views or avowed designs of the go- 
 vernment. The member of the legislature may, 
 if he chooses, have admittance among them, and 
 again enforce those topics which have not obtained 
 the success he expected, in that house to which 
 he belongs. The disappointed statesman, the mi- 
 nister turned out, also find the door open to them : 
 they may bring in the whole weight of their in- 
 fluence and of their connexions : they may exert 
 every nerve to enlist the assembly in the number 
 of their supporters ; they are bidden to do their 
 worst : they fly through the country from one place 
 of meeting to another : the clamour increases : the 
 constitution, one may think, is going to be shaken 
 to its very foundations : but these mighty strug- 
 gles, by some means or other, always find a pro- 
 portionate degree of reaction ; new difficulties, 
 and at last insuperable impediments, grow up in 
 the way of those who would take advantage of the 
 general ferment to raise themselves on the wreck 
 of the governing authority : a secret force exerts 
 itself, which gradually brings things back to a state 
 of moderation and calm : and that sea so stormy, 
 to appearance so deeply agitated, constantly stops 
 at certain limits which it seems as if it wanted the 
 power to pass. 
 
 The impartiality with which justice is dealt to 
 all orders of men in England, is also in great mea- 
 sure owing to the peculiar stability of the govern- 
 ment : the very remarkable, high degree, to which 
 this impartiality is carried, is one of those things,
 
 OF ENGLAND. 391 
 
 which, being impossible in other countries, is pos- 
 sible under the government of this country. In 
 the ancient commonwealths, from the instances 
 that have been introduced in a former place, and 
 from others that might be quoted, it is evident 
 that no redress was to be obtained, for the acts of 
 injustice or oppression committed by the men pos- 
 sessed of influence or wealth, upon the inferior 
 citizens. In the monarchies of Europe, in former 
 times, abuses of a like kind prevailed to a most 
 enormous degree. In our days, notwithstanding 
 the great degrees of strength acquired by the dif- 
 ferent governments, it is matter of the utmost dif- 
 ficulty for subjects of the inferior classes to obtain 
 the remedies of the law against certain indivi- 
 duals : in some countries it is impossible, let the 
 abuse be ever so flagrant ; an open attempt to pur- 
 sue such remedies being moreover attended with 
 danger. Even in those monarchies of Europe in 
 which the government is supported both by real 
 strength, and by civil institutions of a very advan- 
 tageous nature, great differences prevail between 
 individuals in regard to the facility of obtaining 
 the remedies of the law : and to seek for redress, 
 is at best, in many cases, so arduous and precari- 
 ous an attempt, as to take from injured individuals 
 all thoughts of encountering the difficulty. Nor 
 are these abuses we mention, in the former or pre- 
 sent governments of Europe, to be attributed only 
 to the want of resolution in the heads of those go- 
 vernments. In some countries, the sovereign, by 
 an open design to suppress these abuses, would 
 have endangered at once his whole authority : and
 
 392 THE CONSTITUTION 
 
 in others, he would find obstructions multiply so in 
 his way as to compel him, perhaps very quickly, 
 to drop the undertaking 1 . How can a monarch, 
 alone, make a persevering stand against the avowed 
 expectations of all the great men by whom he is 
 surrounded, and against the loud claims of power- 
 ful classes of individuals? In a commonwealth, 
 what can the senate do when they find that their 
 refusing to protect a powerful offender of their own 
 class, or to indulge some great citizen with the im- 
 punity of his friends, is likely to be productive of 
 serious divisions among themselves, or perhaps of 
 disturbances among the people ? 
 
 If we cast our eyes on the strict and universal 
 impartiality with which justice is administered in 
 England, we shall soon become convinced that 
 some inward essential difference exists between the 
 English government and those of other countries, 
 and that its power is founded on causes of a dis- 
 tinct nature. Individuals of the most exalted rank 
 do not entertain so much as the thought to raise 
 the smallest direct opposition to the operation of 
 the law. The complaint of the meanest subject, if 
 preferred and supported in the usual way, imme- 
 diately meets with a serious regard. The op- 
 pressor, of the most extensive influence, though in 
 the midst of a train of retainers, nay, though in the 
 fullest flight of his career and pride, and surrounded 
 by thousands of applauders and partisans, is stopped 
 short at the sight of the legal paper which is de- 
 livered into his hands j and a tipstaff is sufficient 
 to bring him away, and produce him before the 
 bench.
 
 OF ENGLAND. 393 
 
 Such is the greatness, and such is the uninter- 
 rupted prevalence of the law ; * such is, in short, 
 the continuity of omnipotence, of resistless supe- 
 riority, it exhibits, that the extent of its effects at 
 length ceases to be a subject of observation to the 
 public. 
 
 Nor are great or wealthy men to seek for re- 
 dress or satisfaction of any kind, by any other 
 means than such as are open to all ; even the sove- 
 reign has bound himself to resort to no other ; and 
 experience has shown that he may without danger 
 trust the protection of his person, and of the places 
 of his residence, to the slow and litigious assistance 
 of the law.f 
 
 Another very great advantage attending the re- 
 markable stability of the English government, is, 
 that the same is effected without the assistance of 
 an armed standing force : the constant expedient 
 this of all other governments. On this occasion I 
 shall introduce a passage of Doctor Adam Smith, J 
 in a work published since the present chapter was 
 first written, in which passage an opinion certainly 
 erroneous is contained j the mistakes of persons of 
 his very great abilities deserve attention. This 
 
 * Lex magna est, et pravalebit." * 
 
 f I remember soon after my first coming to this country, 205 1 took 
 notice of the boards set up from place to place behind the enclosure 
 of Richmond Park. " Whoever tresspasses upon this ground will 
 " be prosecuted,'' 
 
 | An Inquiry into the Nature and Causes of the Wealth of 
 Nations. Book v. chap. i. 
 
 204 The law is great, and will prevail. EDITOR. 
 
 co5 Understood to have been about the year 1768. EDITOR.
 
 394 THE CONSTITUTION 
 
 gentleman, struck with the necessity of a sufficient 
 power of reaction, of a sufficient strength, on the 
 side of government, to resist the agitations attend- 
 ant on liberty, has looked round, and judged that 
 the English government derived the singular stabi- 
 lity it manifests from the standing force it has at its 
 disposal : the following are his expressions : " To 
 " a sovereign who feels himself supported, not only 
 " by tho natural aristocracy of the country, but by 
 " a well-regulated standing army, the rudest, the 
 " most groundless, and the most licentious remon- 
 " strances can give little disturbance. He can 
 " safely pardon or neglect them, and his conscious- 
 " ness of his superiority naturally disposes him to 
 " do so. That degree of liberty ivhich approaches 
 " to licentiousness, can be tolerated only in coun- 
 " tries where the sovereign is secured by a well-re- 
 " gulated standing army."* 
 
 The above positions are grounded on the notion, 
 that an army places in the hands of the sovereign 
 a united irresistible strength, a strength liable to 
 no accidents, difficulties, or exceptions ; a suppo- 
 sition this, which is not conformable to experience. 
 If a sovereign was endued with a kind of extra- 
 ordinary power attending on his person, at once to 
 lay tinder water whole legions of insurgents, or to 
 repulse and sweep them away by flashes and 
 shocks of the electrical fluid, then indeed he might 
 
 * The author's design, in the whole passage, is to show that 
 standing armies, under proper restrictions, cannot be hurtful to 
 public liberty : and may in some cases be useful to it, by freeing 
 the sovereign from any troublesome jealousy in regard to this li- 
 berty.
 
 OF ENGLAND. 395 
 
 use the great forbearance above described : 
 though it is not perhaps very likely he would put 
 up with the rude and groundless remonstrances of 
 his subjects, and with their licentious freedom, yet 
 he might, with safety, do or not do so, at his own 
 choice. But an army is not that simple weapon 
 which is here supposed. It is formed of officers 
 and soldiers who feel the same passions with the 
 rest of the people, the same disposition to pro- 
 mote their own interest and importance, when they 
 find out their strength, and proper opportunities 
 offer. What will therefore be the resource of the 
 sovereign, if into that army, on the assistance of 
 which he relies, the same party spirit creeps, by 
 which his other subjects are actuated ? Where will 
 he take refuge, if the same political caprices, abetted 
 by the serious ambition of a few leading men, the 
 same restlessness, and at last perhaps the same dis- 
 affection, begin to pervade the smaller kingdom of 
 the army, by which the main kingdom or nation is 
 agitated ? 
 
 The prevention of dangers like those just men- 
 tioned constitutes the most essential part of the 
 precautions and state-craft of rulers, in those go- 
 vernments which are secured by standing armed 
 forces. Mixing the troops formed of natives with 
 foreign auxiliaries, dispersing them in numerous 
 bodies over the country, and continually shifting 
 their quarters, are among the methods that are 
 used ; which it does not belong to our subject to 
 enumerate, any more than the extraordinary ex- 
 pedients employed by the eastern monarchs for the 
 same purposes. But one caution, very essential to
 
 390 THE CONSTITUTION 
 
 be mentioned here, and which the governments we 
 allude to never fail to take before every other, is to 
 retrench from their unarmed subjects a freedom, 
 which, transmitted to the soldiery, would be at- 
 tended with such fatal consequences ; hindering 
 such bad examples from being communicated to 
 those in whose hands their power and life are 
 trusted, is what every notion of self-preservation 
 suggests to them ; every weapon is accordingly ex- 
 erted to suppress the rising and spreading of so 
 awful a contagion. 
 
 In general, it may be laid down as a maxim, 
 that, where the sovereign looks to his army for the 
 security of his person and authority, the same 
 military laws by which this army is kept together, 
 must be extended over the whole nation ; not in 
 regard to military duties and exercises, but cer- 
 tainly in regard to all that relates to the respect 
 due to the sovereign and to his orders. The mar- 
 tial law, concerning these tender points, must be 
 universal. The jealous regulations concerning 
 mutiny and contempt of orders cannot be severely 
 enforced on that part of the nation which secures 
 the subjection of the rest, and enforced too through 
 the whole scale of military subordination, from the 
 soldier to the officer, up to the very head of the 
 military system, while the more numerous and 
 inferior part of the people are left to enjoy an un- 
 restrained freedom : that secret disposition which 
 prompts mankind to resist and counteract their 
 superiors cannot be surrounded by such formidable 
 checks on one side, and be left to be indulged to a 
 degree of licentiousness and wantonness on the 
 other.
 
 OF ENGLAND. 397 
 
 In a country where an army is kept, capable of 
 commanding the obedience of the nation, this army 
 will both imitate the licentiousness above men- 
 tioned, and check it in the people. Every officer 
 and soldier, in such a country, claim a superiority 
 in regard to other individuals ; and, in proportion 
 as their assistance is relied upon by the government, 
 expect a greater or less degree of submission from 
 the rest of the people.* 
 
 * In the beginning of the passage which is here examined, the 
 author says, " Where the sovereign is himself the general, and the 
 " principal nohility and gentry of the country are the chief officers 
 " of the army, where the military force is placed under the com- 
 " mand of those who have the greatest interest in the support of the 
 " civil authority, because they have the greatest share of that au- 
 " thority, a standing army can never be dangerous to liberty. 
 " On the contrary, it may in some cases be favourable to liberty," 
 &c. In a country so circumstanced, a standing army can never 
 be dangerous to liberty ; no, not the liberty of those principal no- 
 bility and gentry, especially if they have wit enough to form com- 
 binations among themselves against the sovereign. Such a union 
 as is here mentioned, of the civil and military powers, in the aristo- 
 cratical body of the nation, leaves both the sovereign and the people 
 without resource. If the former kings of Scotland had adopted 
 the expedient of a standing army, and had trusted this army, thus 
 defrayed by them, to those noblemen and gentlemen who had ren- 
 dered themselves hereditary admirals, hereditary high-stewards, 
 hereditary high constables, hereditary great chamberlains, heredi- 
 tary justices-general, hereditary sheriffs of counties, &c. they would 
 have ill repaired the disorders under which the government of their 
 country laboured ; they would only have supplied these nobles 
 with fresh weapons against each other, against the sovereign, and 
 against the people. 
 
 If those members of the British parliament, who sometimes make 
 the whole nation resound with the clamour of their dissensions, 
 had an army under their command which they might engage in 
 the support of iheir pretensions, the rest of the people would not
 
 THE CONSTITUTION 
 
 The same author concludes his above quoted 
 observations concerning the security of the power 
 of an armed sovereign, by immediately adding : 
 " It is in such countries only that it is unnecessary 
 " that the sovereign should be trusted with any 
 " discretionary power for suppressing even the 
 " wantonness of this licentious liberty." The idea 
 here expressed coinciding with those already dis- 
 cussed, I shall say nothing farther on the subject. 
 My reason for introducing the above expressions, 
 has been, that they lead me to take notice of a 
 remarkable circumstance in the English govern- 
 ment. From the expression, it is unnecessary 
 that the sovereign should be trusted with any 
 discretionary power, the author appears to think 
 that a sovereign at the head of an army, and 
 whose power is secured by this army, usually waits 
 to set himself in motion, till he has received leave 
 for that purpose ; that is, till he has been trusted 
 with a power for so doing. This notion in the 
 author we quote, is borrowed from the steady and 
 thoroughly legal government of this country ; but 
 the like law-doctrine, or principle, obtains under 
 no other government. In all monarchies (and it 
 is the same in republics), the executive power in 
 the state is supposed to possess, originally and by 
 
 be the better for it. Happily the swords are secured, and force is 
 removed from their debates. 
 
 The author whom we are quoting has deemed a government to 
 he a more simple machine, and an army a more simple instrument, 
 than they in reality are. Like many other persons of great abili- 
 ties, while struck with a certain peculiar consideration, he has 
 overlooked others no less important.
 
 OF ENGLAND. 399 
 
 itself, all manner of lawful authority : every one 
 of its exertions is deemed to be legal : and they do 
 not cease to be so, till they are stopped by some 
 express and positive regulation. The sovereign, 
 and also the civil magistrate, till so stopped by 
 some positive law, may come upon the subject 
 when they choose : they may question any of his 
 actions ; they may construe them into unlawful 
 acts ; and inflict a penalty, as they please : in these 
 respects they may be thought to abuse, but not to 
 exceed, their power. The authority of the govern- 
 ment, in short, is supposed to be unlimited so far 
 as there are no visible boundaries set up against it ; 
 within which boundaries lies whatever degree of 
 liberty the subject may possess. 
 
 In England, the very reverse obtains. It is not 
 the authority of the government, it is the liberty 
 of the subject which is supposed to be unbounded. 
 All the actions of an individual are supposed to be 
 lawful, till that law is pointed out which makes 
 them to be otherwise. The onus probandi' 06 is 
 here transferred from the subject to the prince. 
 The subject is not at any time to show the ground 
 of his conduct. When the sovereign or magistrate 
 think proper to exert themselves, it is their business 
 to find out and produce the law in their own favour, 
 and the prohibition against the subject. * 
 
 * I shall take the liberty to mention another fact respecting 
 myself, as it may serve to elucidate the above observations, or at 
 least my manner of expressing them. 1 remember, when I was 
 beginning to pay attention to the operations of the English govem- 
 
 206 Burden of proof. EDITOR.
 
 400 THE CONSTITUTION 
 
 This kind of law principle, owing to the general 
 spirit by which all parts of the government are in- 
 fluenced, is even carried so far that any quibble, 
 or trifling circumstance, by which an offender may 
 be enabled to step aside and escape, though ever 
 so narrowly, the reach of the law, will screen him 
 from punishment, let the immorality or intrinsic 
 guilt of his conduct be ever so openly admitted.* 
 
 ment, I was under a prepossession of quite a contrary nature to 
 that of the gentleman whose opinions have been discussed : I used 
 to take it for granted that every article of liberty the subject 
 enjoys in this country was grounded upon some positive law by 
 which this liberty was ensured to him. In regard to the freedom 
 of the press, I had no doubt that it was so, and that there existed 
 some particular law, or rather series of laws or legislative para- 
 graphs, by which this freedom was defined and carefully secured : 
 and as the liberty of writing happened at that time to be carried 
 very far, and to excite a great deal of attention (the noise about 
 the Middlesex election had not yet subsided), I particularly wished 
 to see those laws I supposed, not doubting that there must be some- 
 thing remarkable in the wording of them. I looked into those law 
 books which I could meet with ; such as Jacob's and Cunningham's 
 Law Dictionaries, Wood's Institutes and Judge Blackstone's 
 Commentaries, I also found means to have a sight of Comyn's 
 Digest of the Laws of England, and. I was again disappointed; 
 this author, though the work consists of five folio volumes, had not 
 had, any more than the authors just mentioned, room to spare for 
 the interesting law I was in search of. At length it occurred to 
 me, that this liberty of the press was grounded upon its not being 
 prohibited ; that this want of prohibition was the sole, and at the 
 same time solid, foundation of it. This led me, when I afterwards 
 thought of writing upon the government of this country, to give 
 that definition of the freedom of the press which is contained in p. 
 244, 255 ; adding to it the important consideration, that all actions 
 respecting publications are to be decided by a jury. 
 
 * A number of instances, some even of a ludicrous kind, might 
 be quoted in support of the above observation. Even a trifling
 
 OF ENGLAND. 4-01 
 
 Such a narrow circumscription of the exertions 
 of the government is very extraordinary : it does 
 not exist in any country but this ; nor could it. 
 The situation of other governments is such, that 
 they cannot thus allow themselves to be shut out 
 of the unbounded space unoccupied by any law, in 
 order to have their motions confined to that spot 
 which express and previously-declared provisions 
 have chalked out. The power of these govern- 
 ments being constantly attended with more or less 
 precariousness, there must be a degree of discretion 
 answerable to it.* 
 
 The foundation of that law- principle, or doctrine, 
 which confines the exertion of the power of the 
 government to such cases only as are expressed by 
 a law in being, was laid when the Great Charter 
 was passed : this restriction was implied in one of 
 those general impartial articles which the barons 
 
 flaw in the mere words of an indictment is enough to make it 
 void. 
 
 I do not remember the name of that political author, who, having 
 published a treasonable writing for which he escaped punishment, 
 used afterwards to answer to his friends, when they reproached him 
 with his rashness, I knew 1 ivas writing within an inch of the 
 gallows. The law being both ascertained and strictly adhered to, 
 he had been enabled to bring his words and positions so nicely 
 within compass. 
 
 * It might perhaps also be proved, that the great lenity used in 
 England in the administration of criminal justice, both in regard to 
 the mildness, and to the frequent remission of punishments, is 
 essentially connected with the same circumstance of the stability 
 of the government. Experience indicates that it is needless to use 
 any great degree of harshness and severity in regard to offenders ; 
 and the supreme governing authority is under no necessity of 
 showing the subordinate magistracies any bad example in that 
 respect. 
 
 D D
 
 402 THE CONSTITUTION 
 
 united with the people to obtain from the sovereign. 
 The crown, at that time, derived from its foreign 
 dominions that stability and inward strength (in re- 
 gard to the English nation), which are now in a 
 secret hidden manner annexed to the civil branch 
 of its office, and which, though operating by dif- 
 ferent means, continue to maintain that kind of 
 confederacy against it, and union between the dif- 
 ferent orders of the people. By the article in 
 Magna Charta here alluded to, the sovereign bound 
 himself neither to go, nor send, upon the subject, 
 otherwise than by the trial of peers, and the law of 
 the land.* This article was, however, afterwards 
 disregarded in practice, in consequence of the law- 
 ful efficiency which the king claimed for his pro- 
 clamations, and especially by the institution of the 
 court of Star-chamber, which grounded its proceed- 
 ings not only upon these proclamations, but also 
 upon the particular rules it chose to frame within 
 itself. By the abolition of this court (and also of 
 the court of High Commission) in the reign of 
 Charles the First, the above provision of the Great 
 Charter was put in actual force j and it has ap- 
 peared by the event, that the very extraordinary re- 
 striction upon the governing authority we are al- 
 luding to, and its execution, are no more than what 
 the intrinsic situation of things, and the strength of 
 the constitution, can bear.']' 
 
 * See pages 21 and 22 of this work. 
 
 t The court of Star-chamber was like a court of equity in re- 
 gard to criminal matters ; it took upon itself to decide, upon those 
 cases of offence upon which the usual courts of law, when unin- 
 fluenced by the crown, refused to decide, either on account of the
 
 OF ENGLAND. 403 
 
 The law-doctrine we have above described, and 
 its being 1 strictly regarded by the high governing 
 authority, I take to be the most characteristic cir- 
 cumstance in the English government, and the 
 most pointed proof that can be given of the true 
 freedom which is the consequence of its frame. 
 The practice of the executive authority thus to 
 square its motions upon such laws, and such only 
 as are ascertained and declared beforehand, can- 
 not be the result of that kind of stability which 
 the crown might derive from being supported by 
 an armed force, or, as the above-mentioned author 
 has expressed it, from the sovereign being the gene- 
 ral of an army ; such a rule of acting is even con- 
 tradictory to the office of a general : the operations 
 of a general eminently depend for their success, 
 on their being sudden, unforeseen, attended by 
 surprise. 
 
 In general, the stability of the power of the 
 English crown cannot be the result of that kind of 
 strength which arises from an armed force : the 
 kind of strength which is conferred by such a 
 weapon as an army, is too uncertain, too compli- 
 cated, too liable to accidents : in a word, it falls 
 infinitely short of the degree of steadiness neces- 
 
 silence of the laws in being, en- of the particular rules they had 
 established within themselves; which is exactly the office of the 
 court of Chancery (and of the Exchequer) in regard to matters 
 of property. The great usefulness of courts of this kind has caused 
 the courts of equity, in regard to civil matters, to be supported and 
 continued; but experience has shown, that no essential inconvenience 
 can arise from the subject being indulged with the very great free- 
 dom he has acquired by the total abolition of all arbitrary or pro- 
 visional courts in regard to criminal matters. 
 
 D D 2
 
 404> THE CONSTITUTION 
 
 sary to counterbalance, and at last quiet, those 
 extensive agitations in the people which some- 
 times seem to threaten the destruction of order and 
 government. An army, if its support be well 
 directed, may be useful to prevent this restlessness 
 in the people from beginning to exist : but it can- 
 not keep it within bounds, when it has once taken 
 place. 
 
 If, from general arguments and considerations, 
 we pass to particular facts, we shall actually find 
 that the crown, in England, does not rely for its 
 support, nor ever has relied, upon the army of 
 which it has the command. From the earliest 
 times, that is, long before the invention of stand- 
 ing armies among European princes, the kings 
 of England possessed an authority certainly as full 
 and extensive as that which they now enjoy. After 
 the weight they derived from their possessions 
 beyond sea had been lost, a certain arrangement 
 of things began to be formed at home, which sup- 
 plied them with a strength of another kind, though 
 not less solid ; and they began to derive from the 
 civil branch of their regal office that secure power 
 which no other monarchs had ever possessed, 
 except through the assistance of legions and prae- 
 torian guards, of armies of Janissaries, or of 
 Strelitzes. 
 
 The princes of the house of Tudor, to speak of 
 a very remarkable period in the English history, 
 though they had no other visible present force than 
 inconsiderable retinues of servants, were able to 
 exert a power equal to that of the most absolute 
 monarchs that ever reigned, equal to that of a
 
 OF ENGLANP. 405 
 
 Domitian or a Commodus, an Amurath or a Ba- 
 jazet : nay, it even was superior, if we consider the 
 steadiness and outward show of legality with which 
 it was attended throughout. 
 
 The stand which the kings of the house of 
 Stuart were able to make, though unarmed, and 
 only supported by the civil authority of their office, 
 during a long course of years, against the restless 
 spirit which began to actuate the nation, and the 
 vehement political and religious notions that broke 
 out in their time, is still more remarkable than even 
 the exorbitant power of the princes of the house 
 of Tudor, during whose reign prepossessions of 
 quite a contrary nature were universal. 
 
 The struggle opened with the reign of James 
 the First ; yet he peaceably weathered the begin- 
 ning storm, and transmitted his authority undi- 
 minished to his son. Charles the First, indeed, 
 was at last crushed under the ruins of the consti- 
 tution : but if we consider that, after making the 
 important national concessions contained in the 
 Petition of Right, he was able, single and un- 
 armed, to maintain his ground without loss or real 
 danger, during the space of eleven years (that is, 
 till the year 1640), we shall be inclined to think 
 that, had he been better advised, he might have 
 avoided the misfortunes that at length befell him. 
 
 Even the events of the reign of James the Se- 
 cond afford a proof of that solidity which is an- 
 nexed to the authority of the English crown. 
 Although the whole nation, not excepting the 
 army, were in a manner unanimous against him, 
 he was able to reign four years, standing single
 
 406 THE CONSTITUTION 
 
 against all, without meeting with any open resist- 
 ance. Nor was such justifiable and necessary re- 
 sistance easily brought about at length.* Though 
 it is not to be doubted that the dethroning of 
 James the Second would have been effected in the 
 issue, and perhaps in a very tragical manner ; yet, 
 if it had not been for the assistance of the prince 
 of Orange, the event would certainly have been 
 postponed for a few years. That authority on 
 which James relied with so much confidence, was 
 not annihilated at the time it was, otherwise than 
 by a ready and considerable armed force being 
 brought against it from the other side of the sea, 
 like a solid fortress, which, though, without any 
 visible outworks, requires, in order to be compelled 
 to surrender, to be battered with cannon. 
 
 If we look into the manner in which this 
 country has been governed since the Revolution, 
 we shall evidently see that it has not been by means 
 of the army that the crown has been able to pre- 
 serve and exert its authority. It is not by means 
 
 * Mr. Hume is rather too anxious in his wish to exculpate 
 James the Second. He begins the conclusive character he gives 
 of him, with representing him as a prince whom we may safely 
 pronounce more unfortunate than criminal. If we consider the 
 solemn engagements entered into, not by his predecessors only, but 
 by himself, which this prince endeavoured to break, how cool and 
 deliberate was his attack on the liberties and religion of the 
 people, how unprovoked the attempt, and, in short, how totally 
 destitute he was of any plea of self-defence or necessity, a plea 
 to which most of the princes who have been at variance with 
 their subjects have had a more or less distant claim, we shall look 
 upon him as being perhaps the most guilty monarch that ever 
 existed.
 
 OF ENGLAND. 407 
 
 of their soldiers that the kings of Great Britain 
 prevent the manner in which elections are carried 
 on, from being 1 hurtful to them ; for these soldiers 
 must move from the places of election one day 
 before such elections are begun, and not return till 
 one day after they are finished. It is not by means 
 of their military force that they prevent the several 
 kinds of civil magistracies in the kingdom from in- 
 vading and lessening their prerogative ; for this 
 military force is not to act till called for by these 
 latter, and under their direction. It is not by 
 means of their army that they lead the two branches 
 of the legislature into that respect to their regal 
 authority which we have before described ; since 
 each of these two branches, severally, is possessed 
 of an annual power of disbanding this army.* 
 
 There is another circumstance, which, abstract- 
 edly from all others, makes it evident that the ex- 
 ecutive authority of the crown is not supported by 
 the army : I mean the very singular subjection in 
 which the military is kept in regard to the civil 
 power in this country. 
 
 In a country where the governing authority in 
 the state is supported by the army, the military 
 profession, who, in regard to the other professions, 
 
 * The generality of the people have from early times been so 
 little accustomed to see any display of force used to influence the 
 debates of the parliament, that the attempt made by Charles the 
 First to seize the Jive members, attended by a retinue of about 
 two hundred servants, was the actual spark that set in a blaze 
 the heap of combustibles which the preceding contests had ac- 
 cumulated. The parliament, from that fact, took a pretence 
 to make military preparations in their turn ; and then the civil 
 war began.
 
 408 THE CONSTITUTION 
 
 have on their side the advantage of present force, 
 being now moreover countenanced by the law, 
 immediately acquire, or rather assume, a general 
 ascendancy ; and the sovereign, far from wishing 
 to discourage their claims, feels an inward happiness 
 in seeing that instrument on which he rests his 
 authority, additionally strengthened by the respect 
 of the people, and receiving a kind of legal sanction 
 from the general outward consent. 
 
 And not only the military profession at large, 
 but the individuals belonging to it, also claim per- 
 sonally a pre-eminence : chief commanders, officers, 
 soldiers, or janissaries, all claim, in their own 
 spheres, some sort of exclusive privilege : and 
 these privileges, whether of an honorary, or of a 
 more substantial kind, are violently asserted, and 
 rendered grievous to the rest of the community, in 
 proportion as the assistance of the military force is 
 more evidently necessary to, and more frequently 
 employed by, the government. These things can- 
 not be otherwise. 
 
 Now, if we look into the facts that take place 
 in England, we shall find that a quite different 
 order prevails from what is above described. All 
 courts of a military kind are under a constant sub- 
 ordination to the ordinary courts of law. Officers 
 who have abused their private power, though only 
 in regard to their own soldiers, may be called to 
 account before a court of common law, and com- 
 pelled to make proper satisfaction. Even any 
 flagrant abuse of authority committed by members 
 of courts-martial, when sitting to judge their own 
 people, and determine upon cases entirely of a mi-
 
 OF ENGLAND. 409 
 
 litary kind, makes them liable to the animadversion 
 of the civil judge.* 
 
 * A great number of instances might be adduced to prove the 
 above-mentioned subjection of the military to the civil power. I 
 shall introduce one which is particularly remarkable : I met with it 
 in the periodical publications of the year 1746. 
 
 A lieutenant of marines, whose name was Frye, had been 
 charged, while in the West Indies, with contempt of orders, for 
 having refused, when ordered by the captain, to assist another 
 lieutenant in carrying another officer prisoner on board the ship : 
 the two lieutenants wished to have the order given in writing. 
 For this, lieutenant Frye was tried at Jamaica by a court-martial, 
 and sentenced to fifteen years' imprisonment, besides being de- 
 clared incapable of serving the king. He was brought home : and 
 his case (after being laid before the privy -council) appearing in a 
 justifiable light, he was released. Some time after, he brought an 
 action against sir Chaloner Ogle, who had been president of the 
 above court-martial, and had a verdict in his favour for one thou- 
 sand pounds damages, as it was also proved that he had been kept 
 fourteen months in the most severe confinement before he was 
 brought to his trial. The judge moreover informed him, that he 
 was at liberty to bring his action against any of the members of the 
 said court-martial he could meet with. The following part of the 
 affair is still more remarkable. 
 
 Upon application made by lieutenant Frye, sir John Willes, 
 lord chief justice of the Common Pleas, issued his writ against 
 admiral Mayne, and captain Rsntone, two of the persons who had 
 composed the above court-martial, who happened to be at that 
 time in England, and were members of the court-martial that was 
 then sitting at Deptford, to determine on the affair between ad- 
 mirals Matthews and Lestock, of which admiral Mayne was also 
 president ; and they were arrested immediately after the breaking- 
 up of the court. The other members resented highly what they 
 thought an insult ; they met twice on the subject, and came to 
 certain resolutions, which the judge-advocate was directed to 
 deliver to the Board of Admiralty, in order to their being laid 
 before the king. In these resolutions they demarded " satisfac- 
 " lion for the high insult on their president, from all persons, how 
 " high soever in office, who have set on foot this arrest, or in any
 
 410 THE CONSTITUTION 
 
 To the above facts concerning the pre-eminence 
 of the civil over the military power at large, it is 
 needless to add that all offences committed by per- 
 sons of the military profession, in regard to indi- 
 viduals belonging to the other classes of the peo- 
 ple, are to be determined upon by the civil judge. 
 Any use they may make of their force, unless ex- 
 pressly authorized and directed by the civil magis- 
 trate, let the occasion be what it may, makes 
 them liable to be convicted of murder for any life 
 that may have been lost. To allege the duties or 
 customs of their profession, in extenuation of any 
 offence, is a plea which the Judge will not so much 
 as understand. Whenever claimed by the civil 
 power, they must be delivered up immediately. 
 Nor can it, in general, be said that the counte- 
 nance shown to the military profession by the ruling 
 
 " degree advised or promoted it :" moreover complaining, that, 
 by the said arrest, " the order, discipline, and government of his 
 " majesty's armies by sea were dissolved, and the statute 13 Car. II. 
 " made null and void." 
 
 The altercations on that account lasted some months. At length 
 the court-martial thought it necessary to submit ; and they sent to 
 lord chief justice Willes a letter signed by the seventeen officers, 
 admirals and commanders, who composed it, in which they ac- 
 knowledged that " the resolutions of the IGth and 21st of May, 
 " ivere unjust and unwarrantable, and to ask pardon of his 
 " lordship, and the whole court of Common Pleas, for the indig- 
 " n ity offered to him and the court" 
 
 This letter judge Willes read in the open court, and directed the 
 same to be registered in the Remembrance Office, as a " memorial 
 " to the present and future ages, that ivhoever set themselves 
 " above the law, will, in the end, find themselves mistaken" The 
 letter from the court-martial, and judge Willes's acceptation, were 
 inserted in the next Gazette, 15th November, 1746.
 
 OF ENGLAND. 411 
 
 power in the state has constantly been such as to 
 inspire the bulk of the people with a disposition 
 tamely to bear their acts of oppression, or to raise 
 in magistrates and juries any degree of preposses- 
 sion sufficient to lead them always to determine 
 with partiality in their favour.* 
 
 The subjection of the military to the civil power, 
 carried to that extent it is in England, is another 
 characteristic and distinctive circumstance in the 
 English government. 
 
 It is sufficiently evident that a king does not 
 look to his army for his support, who takes so little 
 pains to bribe and unite it to his interest. 
 
 In general, if we consider all the different cir- 
 cumstances in the English government, we shall 
 find that the army cannot procure to the sovereign 
 any permanent strength, any strength upon which 
 he can rely, and from it expect the success of any 
 future and distant measures. 
 
 The public notoriety of the debates in parliament 
 induces all individuals, soldiers as well as others, 
 to pay some attention to political subjects; and the 
 
 * The reader may see, in the publications of the year 1770, the 
 clamour that was raised on account of a general in the army (Gen. 
 Gansell) having availed himself of the vicinity of his soldiers to 
 prevent certain sheriff's officers from executing an arrest upon his 
 person, at Whitehall. It however appeared that the general had 
 done nothing more than put forth a few of his men, in order to 
 perplex and astonish the sheriff's officers ; and in the mean time 
 he took an opportunity for himself to slip out of the way. The 
 violent clamour we mention was no doubt owing to the party 
 spirit of the time ; but it nevertheless shows what the notions of 
 the bulk of the people were on the subject.
 
 THE CONSTITUTION 
 
 liberty of speaking-, printing, and intriguing-, being 
 extended to every order of the nation by whom 
 they are surrounded, makes them liable to imbibe 
 every notion that may be directly contrary to the 
 views of that power which maintains them. 
 
 The case would be still worse if the sovereign 
 should engage in a contest with a very numerous 
 part of the nation. The general concern would 
 increase in proportion to the vehemence of the 
 parliamentary debates : individuals, in all the dif- 
 ferent classes of the public, would try their elo- 
 quence on the same subjects ; and this eloquence 
 would be in great measure exerted, during such 
 interesting times, in making converts of the sol- 
 diery : these evils the sovereign could not obviate, 
 nor even know, till it should be in every respect 
 too late. A prince, engaged in the contest we 
 suppose, would scarcely have completed his first 
 preparations, his project would scarcely be half 
 ripe for execution, before his army would be taken 
 from him. And the more powerful this army 
 might be, the more adequate, seemingly, from its 
 numbers, to the task it is intended for, the more 
 open it would be to the danger we mention. 
 
 Of this, James the Second made a very remark- 
 able experiment. He had augmented his army to 
 the number of thirty thousand. But when the day 
 came in which their support was to have been use- 
 ful to him, some deserted to the enemy ; others 
 threw down their arms ; and those who continued 
 to stand together, showed more inclination to be 
 spectators of, than agents in, the contest. In short,
 
 OF ENGLAND. 413 
 
 he gave all over for lost, without making any trial 
 of their assistance.* 
 
 * The army made loud rejoicings on the day of the acquittal 
 of the bishops, even, in the presence of the king, who had pur- 
 posely repaired to Hounslow Heath on that day. He had not 
 been able to bring a single regiment to declare an approbation of 
 his measures in regard to the test and penal statutes. The cele- 
 brated ballad lero lero lillibulero, which is reported to have had 
 such an influence on the minds of the people at that time, and of 
 which bishop Burnet says, " Never perhaps so slight a thing had 
 " so great an effect" originated in the army : " the ivhole army, 
 " and at last people both in city and country, were per pet u- 
 " ally singing it." 
 
 To a king of England, engaged in a project against public 
 liberty, a numerous army, ready formed before-hand, must, in the 
 present situation of things, prove a very great impediment ; he 
 cannot give his attention to the proper management of it : the less 
 so, as his measures for that purpose must often be contradictory 
 to those he is to pursue with the rest of the people. 
 
 If a king of England, wishing to set aside the present constitu- 
 tion, and to assimilate his power to that of the other sovereigns of 
 Europe, should do me the honour to consult me as to the means 
 of obtaining success, I would recommend to him, as his first pre- 
 paratory step, and before his real project is even suspected, to 
 disband his army, keeping only a strong guard, not exceeding 
 twelve hundred men. This done, he might, by means of the 
 weight and advantages of his place, set himself about undermining 
 Biich constitutional laws as he dislikes ; using as much temper as 
 he can, that he may have the more time to proceed. And when at 
 length things should be brought to a crisis, then I would advise 
 him to fonn another army, out of those friends or class of the peo- 
 ple whom the turn and incidents of the preceding contests would 
 have linked and rivetted to his interest ; with this army he might 
 now take his chance : the rest would depend on his general- 
 ship, and even in a great measure on his bare reputation in that 
 respect. 
 
 In offering my advice to the king of England, I would, how- 
 ever, conclude with observing to him, that his situation is as ad van* 
 tageous to the full as that of any king upon earth, and, upon the
 
 414 THE CONSTITUTION 
 
 From all the facts before mentioned, it is evident 
 that the power of the crown, in England, rests upon 
 foundations quite peculiar to itself, and that its se- 
 curity and strength are obtained by means totally 
 different from those by which the same advantages 
 are so incompletely procured, and so dearly paid 
 for, in other countries. 
 
 It is without the assistance of an armed force 
 that the crown, in England, is able to manifest that 
 dauntless independence on particular individuals, or 
 whole classes of them, with which it discharges its 
 legal functions and duties. Without the assistance 
 of an armed force, it is able to counterbalance the 
 extensive and unrestrained freedom of the people, 
 and to exert that resisting strength which con- 
 stantly keeps increasing in a superior proportion to 
 the force by which it is opposed, that ballasting 
 power by which, in the midst of boisterous winds 
 and gales, it recovers and rights again the vessel of 
 the state.* 
 
 It is from the civil branch of its office the crown 
 derives that strength by which it subdues even the 
 
 whole, that all the advantages which can arise from the success of 
 his plan cannot make it worth his while to undertake it. 
 
 * There are many circumstances in the English government, 
 which those persons who wish for speculative meliorations, such as 
 parliamentary reform, or other changes of a like kind, do not per- 
 haps think of taking into consideration. If so, they are, in their 
 proceedings, in danger of meddling with a number of strings, the 
 existence of which they do not suspect. While they only mean 
 reformation and improvement, they are in danger of removing the 
 talisman on which the existence of the fabric depends ; or, like 
 the daughter of king Nisus, of cutting off the fatal hair with which 
 the fate of the city is connected.
 
 OF ENGLAND. 415 
 
 military power, and keeps it in a state of subjection 
 to the laws, unexampled in any other country. It 
 is from a happy arrangement of things it derives 
 that uninterrupted steadiness, that invisible so- 
 lidity, which procure to the subject both so certain 
 a protection, and so extensive a freedom. It is from 
 the nation it receives the force with which it go- 
 verns the nation. Its resources are official energy, 
 and not compulsion, free action, and not fear ; 
 and it continues to reign through the political 
 drama, the struggle of the voluntary passions of 
 those who pay obedience to it.* 
 
 CHAPTER XVIII. 
 
 How far the Examples of Nations who have lost 
 their Liberty are applicable to England. 
 
 EVERY government (those writers observe, who 
 have treated on these subjects) containing within 
 
 * Many persons, satisfied with seeing the elevation and upper 
 parts of a building, think it immaterial to give a look under ground 
 and notice the foundation. Those readers, therefore, who choose, 
 may consider the long chapter that has just been concluded, as 
 a kind of foreign digression, or parenthesis, in the course of the 
 work. 80 ? 
 
 W The editor feels assured that every intelligent and reflecting 
 reader, so far from considering this apology necessary, will have
 
 416 THE CONSTITUTION 
 
 itself the efficient cause of its ruin, a cause which 
 is essentially connected with those very circum- 
 stances that had produced its prosperity ; the ad- 
 vantages attending- the English government cannot 
 therefore, according to these writers, exempt it from 
 that latent defect which is secretly working its ruin ; 
 and M. de Montesquieu, giving his opinion both of 
 the cause and the effect, says, that the English con- 
 stitution will lose its liberty, will perish : " Have 
 " not Rome, Lacedsemon, and Carthage, perished ? 
 " It will perish when the legislative power shall 
 " have become more corrupt than the executive." 
 
 Though I do by no means pretend that any 
 human establishment can escape the fate to which 
 we see every thing in nature is subject, nor am so 
 far prejudiced by the sense I entertain of the great 
 advantages of the English government as to reckon 
 among them that of eternity, I will, however, 
 observe in general, that as it differs by its struc- 
 ture and resources from all those with which his- 
 tory makes us acquainted, so it cannot be said to 
 be liable to the same dangers. To judge of one 
 from the other, is to judge by analogy where no ana- 
 logy is to be found : and my respect for the author 
 1 have quoted will not preclude me from saying 
 that his opinion has not the same weight with me 
 on this occasion that it has on many others. 
 
 been deeply interested in the subject which our author has so ela- 
 borately presented to his attention. He will not, therefore, after 
 the example of the anonymous editors of this work, whose produc- 
 tions are before him, affect to explain our author's sentiments, ex- 
 pressed, as he thinks, with sufficient clearness and perspicuity, as 
 well as consummate ability. EDITOR.
 
 OF ENGLAND. 417 
 
 Having 1 neglected, as indeed all systematic 
 writers upon politics have done, to inquire atten- 
 tively into the real foundations of power and of 
 government among mankind, the principles he lays 
 down are not always so clear, or even so just, as 
 we might have expected from a man of so acute a 
 genius. When he speaks of England, for instance, 
 his observations are much too general : and though 
 he had frequent opportunities of conversing with 
 men who had been personally concerned in the 
 public affairs of this country, and he had been him- 
 self an eyewitness of the operations of the English 
 government, yet, when he attempts to describe it, 
 he rather tells us what he conjectured than what 
 he saw. 
 
 The examples he quotes, and the causes of dis- 
 solution which he assigns, particularly confirm tbis 
 observation. The government of Rome, to speak 
 of the one which having gradually, and as it 
 were of itself, fallen to ruin, may afford matter for 
 exact reasoning, had no relation to that of England. 
 The Roman people were not, in the later ages of 
 the commonwealth, a people of citizens but of con- 
 querors. Rome was not a state, but the head of a 
 state. By the immensity of its conquests, it came 
 in time to be in a manner only an accessory part of 
 its own empire. Its power became so great, that, 
 after having conferred it, it was at length no longer 
 able to resume it : and from that moment it became 
 itself subjected to it, for the same reason that the 
 provinces were so. 
 
 The fall of Rome, therefore, was an event pecu- 
 liar to its situation ; and the change of manners 
 
 E E
 
 418 THE CONSTITUTION 
 
 which accelerated this fall, had also an effect which 
 it could not have had but in that same situation. 
 Men who had drawn to themselves all the riches 
 of the world, could no longer be content with the 
 supper of Fabricius, 208 or with the cottage of Cin- 
 cinnatus. 209 The people who were masters of all 
 
 sos Fabricius was a celebrated Roman, who, in bis first consul- 
 ship, obtained several victories over the Samnites and Lucanians, 
 and was honoured with a triumph. The riches which were ac- 
 quired in those battles were immense, the soldiers were liberally 
 rewarded by the consul, and the treasury was enriched with four 
 hundred talents. Two years after, Fabricius went as ambassador 
 to Pyrrhus, and refused, with contempt, the presents, and heard, 
 with indignation, the offers, which might have corrupted the fidelity 
 of a less virtuous citizen. Pyrrhus had occasion to admire the 
 magnanimity of Fabricius ; but his astonishment was more power- 
 fully awakened when Fabricius, opposed to him in the field of 
 battle, disclosed the perfidious offer of his physician, who had 
 pledged himself to the Roman general for a sum of money to 
 poison his royal master. To this greatness of soul were added, the 
 most consummate knowledge of military affairs, and the greatest 
 simplicity of manners. Fabricius never used rich plate at his 
 table : a small saltcellar, ivhose feet were of horn, was the only 
 silver vessel which appeared in his house. This contempt of luxury 
 and useless ornaments Fabricius wished to instil into the people ; 
 and during his censorship he banished from the senate Cornelius 
 Rufinus, who had been twice consul and dictator, because he kept 
 in his house more than lOlbs. weight of silver plate. Such were 
 the manners of the conqueror of Pyrrhus, who observed, that be 
 wished rather to command those that had money than possess it 
 himself. Fabricius lived and died in the greatest poverty. His 
 body was buried at the public charge, and the Roman people were 
 obliged to give a dowry to his two daughters, when they had ar- 
 rived at marriageable years. -EDITOR. 
 
 2 9 Cincinnatus nourished B. c. about four hundred and sixty 
 years. He was a celebrated Roman, who was informed, as he 
 ploughed his field, that the senate had chosen him dictator. Upon 
 this, he left his ploughed land with regret, and repaired to the field
 
 OF ENGLAND. 419 
 
 the corn of Sicily and Africa, were no longer 
 obliged to plunder their neighbours. All possible 
 enemies, besides, being exterminated, Rome, whose 
 power was military, ceased to be an army j and that 
 was the sera of her corruption : if, indeed, we ought 
 to give that name to what was the inevitable conse- 
 quence of the nature of things. 
 
 In a word, Rome was destined to lose her li- 
 berty when she lost her empire j and she was des- 
 tined to lose her empire, whenever she should be- 
 gin to enjoy it. 
 
 But England forms a society founded upon 
 principles entirely different. Here, all liberty and 
 power are not accumulated as it were in one point, 
 so as to leave, every where else, only slavery and 
 misery, consequently only seeds of division and 
 secret animosity. From one end of the island to 
 the other, the same laws take place, and the same 
 interests prevail : the whole nation, besides, equally 
 concurs in the framing of the government ; no one 
 part, therefore, has cause to fear that the other parts 
 will suddenly supply the necessary forces to destroy 
 its liberty : and the whole have, of course, no oc- 
 casion for those ferocious kinds of virtue which are 
 indispensably necessary to those who, from the 
 situation to which they have brought themselves, 
 
 of battle, where his countrymen were closely besieged by the Volsci 
 and ^Equi. He conquered the enemy, and returned to Rome in 
 triumph ; and sixteen days after his appointment, he laid down his 
 office, and retired to plough his fields. In his eightieth year, he 
 was again summoned against Praeneste as dictator ; and after a suc- 
 cessful campaign, he resigned the absolute power he had enjoyed 
 only twenty -one days, nobly disregarding the rewards that were of- 
 fered him by the senate. EDITOR. 
 
 E E2
 
 420 THE CONSTITUTION 
 
 are continually exposed to dangers, and, after hav- 
 ing invaded every thing, must abstain from every 
 thing. 
 
 The situation of the people of England, there- 
 fore, essentially differs from that of the people of 
 Rome. The form of the English government does 
 not differ less from that of the Roman republic : 
 and the great advantages it has over the latter, 
 for preserving the liberty of the people from ruin, 
 have been described at length in the course of this 
 work, 
 
 Thus, for instance, the ruin of the Roman re- 
 public was principally brought about by the exorbi- 
 tant power to which several of its citizens were 
 successfully enabled to rise. In the latter times of 
 the commonwealth, those citizens went so far as 
 to divide among themselves the dominions of the 
 republic in much the same manner as they might 
 have done lands of their own. And to them others 
 in a short time succeeded, who not only did 
 the same, but even proceeded to such a degree of 
 tyrannical insolence, as to make cessions to each 
 other, by express and formal compacts, of the lives 
 of thousands of their fellow-citizens. 210 But the 
 great and constant authority and weight of the 
 crown, in England, prevent, in their very beginning 
 (as we have seen), all misfortunes of this kind : and 
 the reader may recollect what has been said before 
 on that subject. 
 
 210 Allusion is supposed to be here particularly made to the 
 members of the second triumvirate Augustus, Antony, and Le- 
 pidus but cruel public proscriptions occurred more than once in 
 Rome. EDITOR.
 
 OF ENGLAND. 421 
 
 At last the ruin of the republic, as every one 
 knows, was completed. One of those powerful 
 citizens to whom we alluded, in process of time, 
 found means to exterminate all his competitors ; 
 he immediately assumed the whole power of the 
 state, and erected an arbitrary monarchy. But 
 such a sudden and violent establishment of a mo- 
 narchical power, and all the fatal consequences 
 that would result from such an event, are calami- 
 ties which cannot take place in England. That 
 kind of power has here existed for ages : it is cir- 
 cumscribed by fixed laws, and established upon re- 
 gular and well-known foundations. 
 
 Nor is there any great danger that this power 
 may, by means of those legal prerogatives it already 
 possesses, suddenly assume others, and at last 
 openly make itself absolute. The important pri- 
 vilege of granting to the crown its necessary sup- 
 plies, we have before observed, is vested in the na- 
 tion : and how extensive soever the prerogatives of 
 a king of England may be, it constantly lies in the 
 power of his people either to grant or deny him the 
 means of exercising them. 
 
 This right, possessed by the people of England, 
 constitutes the great difference between them and 
 all the other nations that live under monarchical 
 governments. It likewise gives them a great ad- 
 vantage over such as are formed into republican 
 states, and confers on them a mean of influencing 
 the conduct of the government, not only more 
 effectual, but also (which is more in point to the 
 subject of this chapter) incomparably more lasting
 
 THE CONSTITUTION 
 
 arid secure than those reserved to the people, in the 
 states we mention. 
 
 In those states, the political rights which usually 
 fall to the share of the people are those of voting in 
 general assemblies, either when laws are to be 
 enacted, or magistrates to be elected. But as the 
 advantages arising from these general rights of giv- 
 ing votes are never very clearly ascertained by the 
 generality of the people, so neither are the conse- 
 quences attending particular forms or modes of 
 giving these votes generally and completely under- 
 stood. They accordingly never entertain any 
 strong and constant preference for one method 
 rather than another ; and hence it always proves 
 too easy a thing in republican states, either by insi- 
 dious proposals made at particular times to the 
 people, or by well-contrived precedents, or other 
 means, first to reduce their political privileges to 
 mere ceremonies and forms, and, at last, entirely to 
 abolish them. 
 
 Thus, in the Roman republic, the mode which 
 was constantly in use for about one hundred and 
 fifty years, of dividing the citizens into centuries 211 
 
 211 Centuria was a division of the people among the Romans, 
 consisting of a hundred, The Roman people were originally 
 divided into three tribes, and each tribe into ten curise, or courts. 
 Servius Tullius made a census ; and when he had the place of 
 habitation, name, and profession of every citizen, which amounted 
 to eighty thousand men, all able to bear arms, he divided them into 
 six classes, and each class into several centuries, or companies of a 
 hundred men. The first class of eighty centuries, forty of which 
 were composed of men from the age of forty-five and upwards, ap- 
 pointed to guard the city. The forty others were young men from 
 seventeen to forty-five years of age, appointed to go to war, and
 
 OF ENGLAND. 423 
 
 when they gave their votes, reduced the rig-lit of the 
 greater part of them, during- that time, to little 
 more than a shadow. After the mode of dividing 
 
 fight the enemies of Rome. Their arras were all the same ; they 
 were of the most illustrious citizens, and were to be worth a sum 
 equivalent to about 1,800 English money. The second, third, 
 and fourth classes, consisted each of twenty centuries, ten of which 
 were composed of the more aged, and the others of the younger sort 
 of people. Their arms were alike; and they were to be worth, in 
 the second class, about 121 ; in the third, about 80 ; and in the 
 fourth, about 40. The fifth class consisted of thirty centuries, 
 three of which were carpenters by trade, and the others of different 
 professions, such as were necessary in a camp. They were all 
 armed with slings and stones; and were to be worth about 18. 
 The sixth class contained only one centuria, comprising the whole 
 body of the poorest citizens ; they were not armed, but were to re- 
 main at home. In the public assemblies in the Campus Martius, 
 at the election of public magistrates, or at the trial of capital crimes, 
 the people gave their vote by centuries, whence the assembly was 
 called comitia centuriata. (See note 168, page 289.) In these pub- 
 lic assemblies, which were never convened except by the consuls at 
 the permission of the senate, or by the dictator, in the absence of 
 the consuls, some of the people appeared under arms, for fear of an 
 attack from some foreign enemy. When a law was proposed in the 
 public assemblies, its necessity was explained, and the advantages 
 it would produce to the state were enlarged upon in an harangue ; 
 after which it was exposed in the most conspicuous parts of the city 
 three market days, that the people might see and consider it. When 
 the assembly was to be held, the auguries were consulted by the 
 consul, who, after haranguing the people, and reminding them to 
 have in view the good of the republic, dismissed them to their re- 
 spective centuries, that their votes might be gathered. They gave 
 their votes vivd-voce, (by word of mouth,) till the year of Rome 
 A.U.C. 615, when they changed the custom, and signified their 
 approbation or disapprobation by ballots thrown into an uni. If 
 the first class was unanimous, the others were not consulted, as 
 the first was superior to all the others in number ; but if they were 
 not unanimous, they proceeded to consult the rest, and the majority 
 decided the question. This advantage of the first class gave offence 
 to the rest; and it was afterwards settled, that one class of the six
 
 424 THE CONSTITUTION 
 
 them by tribes had been introduced by the tribunes, 
 the bulk of the citizens indeed were not, when it 
 was used, under so great a disadvantage as before ; 
 but yet the great privileges exercised by the magis- 
 trates in all the public assemblies, the power they 
 assumed of moving the citizens out of one tribe into 
 another, and a number of other circumstances, con- 
 tinued to render the rights of the citizens more and 
 more inefficient : and in fact we do not find that 
 when those rights were at last entirely taken from 
 them, they expressed any very great degree of dis- 
 content. 
 
 In Sweden (the former government of which 
 partook much of the republican form) the right 
 allotted to the people in the government was that 
 of sending deputies to the general states of the 
 kingdom, who were to give their votes on the reso- 
 lutions that were to be taken in that assembly. 
 But the privilege of the people of sending such 
 deputies was, in the first place, greatly diminished 
 by some essential disadvantages under which these 
 deputies were placed with respect to the body, or 
 order, of the nobles. The same privilege of the 
 people was farther lessened by their deputies being 
 deprived of the right of freely laying their different 
 proposals before the states, for their assent or dis- 
 sent ; and by vesting the exclusive right of framing 
 such proposals in a private assembly, which was 
 called the secret committee. Again, the right 
 
 should be drawn by lot, to give its votes first, without regard to rank 
 or priority. After all the votes had been gathered, the consul de- 
 clared aloud, whether or not the law which had been proposed was 
 duly and constitutionally approved. The same ceremonies were 
 observed in the election of consuls, praetors, &c. EDITOR.
 
 OF ENGLAND. 
 
 allowed to the order of the nobles, of having- a 
 number of members in this secret committee, double 
 to that of all the other orders taken together, ren- 
 dered the rights of the people still more ineffectual. 
 At the last revolution, the rights we mention were 
 in a manner taken from the people ; and they do 
 not seem to have made any great efforts to preserve 
 them.* 
 
 But the situation of affairs in England is totally 
 different from that which we have just described. 
 The political rights of the people are inseparably 
 connected with the right of property with a right 
 which it is as difficult to invalidate by artifice, as it 
 is dangerous to attack by force, and which we see 
 that the most arbitrary kings, in the full career of 
 their power, have never offered to violate without 
 the greatest precautions. A king of England who 
 would enslave his people, must begin with doing, 
 for his first act, what all other kings reserve for the 
 last ; and he cannot attempt to deprive his subjects 
 of their political privileges, without declaring war 
 against the whole nation at the same time, and 
 attacking every individual at once in his most per- 
 manent and his best-understood interest. 
 
 The mean possessed by the people of England, 
 of influencing the conduct of the government, is 
 not only in a manner secure against any danger of 
 
 * I might have produced examples of a number of republican 
 states, in which the people have been brought, at one time or other, 
 to submit to the loss of their political privileges. In the Venetian 
 republic, for instance, the right, long vested exclusively in a certain 
 number of families, of enacting laws, and electing the doge and 
 other magistrates, was originally enjoyed by the whole people.
 
 426 THE CONSTITUTION 
 
 being taken from them : it is moreover attended 
 with another advantage of the greatest importance ; 
 which is that of conferring naturally, and as it were 
 necessarily, on those to whom they intrust the care 
 of their interests, the great privilege we have be- 
 fore described, of debating among themselves what- 
 ever questions they deem conducive to the good 
 of their constituents, and of framing whatever 
 questions they think proper, and in what terms they 
 choose. 
 
 This privilege of starting new subjects of delibe- 
 ration, and, in short, of propounding in the business 
 of legislation, which, in England, is allotted to the 
 representatives of the people, forms another capital 
 difference between the English constitution, and 
 the government of other free states, whether limited 
 monarchies or commonwealths, and prevents that 
 which, in those states, proves a most effectual mean 
 of subverting the laws favourable to public liberty, 
 namely, the undermining of these laws by the 
 precedents and artful practices of those who are in- 
 vested with the executive power in the government. 
 
 In the states we mention, the active share, or 
 the business of propounding, in legislation, being 
 ever allotted to those persons who are invested 
 with the executive authority, they not only possess 
 a general power, by means of insidious and well- 
 timed proposals made to the people, of getting 
 those laws repealed which set bounds to their 
 authority ; but when they do not choose openly to 
 discover their wishes in that respect, or perhaps are 
 even afraid of failing in the attempt, they have 
 another resource, which, though slower in its ope-
 
 OF ENGLAND. 
 
 ration, is no less effectual in the issue. They neg- 
 lect to execute those laws which they dislike, or 
 deny the benefit of them to the separate straggling 
 individuals who claim it, and, in short, introduce 
 practices that are directly repugnant to them. 
 These practices in a course of time become respect- 
 able usages, and at length obtain the force of laws. 
 The people, even where they are allowed a share 
 in legislation, being ever passive in the exercise 
 of it, have no opportunities of framing new provi- 
 sions by which to remove the spurious practices or 
 regulations, and declare what the law in reality is. 
 The only resource of the citizens, in such a state of 
 things, is either to be perpetually cavilling, or 
 openly to oppose : and, always exerting themselves 
 either too soon or too late, they cannot come forth 
 to defend their liberty, without incurring the charge, 
 either of disaffection, or of rebellion. 
 
 And while the whole class of politicians, who are 
 constantly alluding to the usual forms of limited 
 governments, agree in deciding- that freedom, when 
 once lost, cannot be recovered,* it happens that the 
 maxim principiis obsta^" which they look upon as 
 the safeguard of liberty, and which they accordingly 
 never cease to recommend, besides its requiring a 
 degree of watchfulness incompatible with the situa- 
 tion of the people, is in a manner impracticable. 
 
 But the operation of preferring grievances, which 
 
 * " Yc free nations, remember this maxim : Freedom may be 
 acquired, but it cannot be recovered." Rousseau's Social Con- 
 tract, chap. viii. 
 
 '-'12 Resist the first innovations. E
 
 428 THE CONSTITUTION 
 
 in other governments is a constant forerunner of 
 public commotions, and that of framing new law- 
 remedies, which is so jealously secured to the ruling 
 powers of the state, are, in England, the constitu- 
 tional and appropriated offices of the representatives 
 of the people. 
 
 How long soever the people may have remained 
 in a state of supineness, as to their most valuable 
 interests, whatever may have been the neglect and 
 even the errors of their representatives, the instant 
 the latter come either to see these errors, or to 
 have a sense of their duty, they proceed, by means 
 of the privilege we mention, to abolish those abuses 
 or practices which, during the preceding years, had 
 taken place of the laws. To how low soever a 
 state public liberty may happen to be reduced, they 
 take it where they find it, lead it back through the 
 same path, and to the same point, from which it had 
 been compelled to retreat ; and the ruling power, 
 whatever its usurpations may have been, how far 
 soever it may have overflowed its banks, is ever 
 brought back to its old limits. 
 
 To the exertions of the privilege we mention, 
 were owing the frequent confirmations and eluci- 
 dations of the Great Charter that took place in 
 different reigns. By means of the same privilege 
 the act was repealed, without public commotion, 
 which had enacted that the king's proclamation 
 should have the force of law : by this act public 
 liberty seemed to be irretrievably lost ; and the 
 parliament which passed it, seemed to have done 
 what the Danish nation did about a century after- 
 wards. The same privilege procured the peace-
 
 OF ENGLAND. 429 
 
 able abolition of the Court of star-chamber, a 
 court which, though in itself illegal, had grown to 
 be so respected through the length of time it had 
 been suffered to exist, that it seemed to have for 
 ever fixed and rivetted the unlawful authority it 
 conferred on the crown. By the same means was 
 set aside the power which the privy council had 
 assumed of imprisoning the subject without admit- 
 ting to bail, or even mentioning any cause. This 
 power was, in the first instance, declared illegal by 
 the Petition of Right ; and the attempts of both 
 the crown and the judges to invalidate this declara- 
 tion, by introducing or maintaining practices that 
 were derogatory to it, were as often obviated, in a 
 peaceable manner, by fresh declarations, and, in the 
 end, by the celebrated Habeas Corpus act.* 
 
 I shall take this opportunity of observing, in 
 general, how the different parts of the English 
 government mutually assist and support each other. 
 It is because the whole executive authority of the 
 
 * The case of general warrants may also be mentioned as an 
 instance. The issuing of such warrants, with the name of the 
 person to be arrested left blank, was a practice that had been fol- 
 lowed by the secretaries of state for above sixty years. In a govern- 
 ment differently constituted, that is, in a government in which the 
 magistrates, or executive power, should have been possessed of the 
 key of legislation, it is difficult to say how the contest might have 
 been terminated ; these magistrates would have been but indiffer- 
 ently inclined to frame and bring forth a declaration which would 
 abridge their assumed authority. In the republic of Geneva, the ma- 
 gistracy, instead of rescinding the judgment against M. Rousseau, 
 of which the citizens complained, chose rather openly to avow the 
 maxim, that standing uses were valid derogations from the written 
 law, and ought to supersede it. This rendered the clamour more 
 violent than before.
 
 430 THE CONSTITUTION 
 
 state is vested in the crown, that the people may 
 without danger delegate the care of their liberty to 
 representatives : it is because they share in the 
 government only through these representatives, 
 that they are enabled to possess the great advantage 
 arising from framing and proposing new laws : but 
 for this purpose it is again absolutely necessary 
 that a correspondent prerogative of the crown, that 
 is to say, a veto of extraordinary power, should 
 exist in the state. 
 
 It is, on the other hand, because the balance of 
 the people is placed in the right of granting to the 
 crown its necessary supplies, that the latter may, 
 without danger, be intrusted with the great authority 
 we mention : and that the right, for instance, which 
 is vested in it, of judging- of the proper time for 
 calling and dissolving parliaments (a right abso- 
 lutely necessary to its preservation)* may exist with- 
 out producing, ipso facto, the ruin of public liberty. 
 The most singular government upon earth, and 
 which has carried farthest the liberty of the indivi- 
 dual, was in danger of total destruction, when 
 Bartholomew Columbus was on his passage to 
 England, to teach Henry the Seventh the way to 
 Mexico and Peru. 
 
 As a conclusion of this subject (which might 
 open a field for speculation without end) I shall 
 take notice of an advantage peculiar to the English 
 government, and which, more than any other we 
 could mention, must contribute to its duration. 
 
 * As affairs are situated in England, the dissolution of a parlia- 
 ment on the part of the crown is no more than an appeal either to 
 the people themselves, or to another parliament.
 
 OF ENGLAND. 431 
 
 All the political passions of mankind, if we attend 
 to it, are satisfied and provided for in the English 
 government ; and whether we look at the monar- 
 chical, the aristocratical, or the democratical part of 
 it, we find all those powers already settled in it in 
 a regular manner, which have an unavoidable 
 tendency to arise, at one time or other, in all human 
 societies. 
 
 If we could for an instant suppose that the 
 English form of government, instead of having been 
 the effect of a concurrence of fortunate circum- 
 stances, had been established from a settled plan by 
 a man who had discovered, before-hand and by rea- 
 soning, all those advantages resulting from it which 
 we now perceive from experience, and had under- 
 taken to point them out to other men capable of 
 judging of what he said to them, the following is, 
 most likely, the manner in which he would have 
 expressed himself. 
 
 ' Nothing is more chimerical (he might have said) 
 c than a state either of total equality, or total liberty, 
 
 * amongst mankind. In all societies of men, some 
 ' power will necessarily arise. This power, after 
 
 * gradually becoming confined to a smaller number 
 
 * of persons, will, by a like necessity, at last fall into 
 
 * the hands of a single leader ; and these two effects 
 ' (of which you may see constant examples in 
 ' history) arising from the ambition of one part 
 
 * of mankind, and from the various affections and 
 
 * passions of the other, are absolutely unavoidable. 
 
 ' Let us, therefore, admit this evil at once, since 
 ' it is impossible to avoid it. Let us, of ourselves, 
 
 * establish a chief among us, since we must, some
 
 432 THE CONSTITUTION 
 
 1 time or other, submit to one ; we shall, by this step, 
 
 * effectually prevent the conflicts that would arise 
 
 * among the competitors for that situation. But 
 
 * let us, above all, avoid plurality ; lest one of the 
 
 * chiefs, after successively raising himself on the 
 ' ruin of his rivals, should, in the end, establish 
 
 * despotism, and that through a train of incidents 
 ' the most pernicious to the nation. 
 
 1 Let us even give him every thing we can con- 
 
 * fer without endangering our security. Let us 
 
 * call him our sovereign ; let us make him con- 
 ' sider the state as being his own patrimony ; let 
 
 * us grant him, in short, such personal privileges 
 
 * as none of us can ever hope to rival him in j and 
 
 * we shall find that those things which we were at 
 
 * first inclined to consider as a great evil, will be in 
 ' reality a source of advantage to the community. 
 ' We shall be the better able to set bounds to that 
 
 * power which we shall have thus ascertained and 
 ' fixed in one place. We shall thus render more 
 ' interested the man whom we shall have put in 
 ' possession of so many advantages, in the faithful 
 ' discharge of his duty ; and we shall procure, for 
 ' each of us, a powerful protector at home, and 
 
 * for the whole community, a defender against 
 ' foreign enemies, superior to all possible tempta- 
 < tion of betraying his country. 
 
 * You may also have observed (he might con- 
 
 * tinue) that in all states there naturally arise 
 ' around the person or persons who are invested 
 
 * with the public power, a class of men, who, with- 
 
 * out having any actual share in that power, yet 
 
 * partake of its lustre, who, pretending to be dis-
 
 OF ENGLAND. 433 
 
 ' tinguished from the rest of the community, do 
 ' from that very circumstance become distinguished 
 
 * from it ; and this distinction, though only matter 
 
 * of opinion, and at first thus surreptitiously ob- 
 ' tained, yet may become in time the source of very 
 ' grievous effects. 
 
 * Let us therefore regulate this evil, which we 
 
 * cannot entirely prevent. Let us establish this 
 ' class of men, who would otherwise grow up 
 
 * among us without our knowledge, and gradually 
 
 * acquire the most pernicious privileges. Let us 
 ' grant them distinctions that are visible and 
 ' clearly ascertained : their nature will thus be the 
 
 * better understood, and they will of course be 
 
 * much less likely to become dangerous. By the 
 
 * same means also, we shall preclude all other per- 
 ' sons from the hopes of usurping them. As to 
 
 * pretend to distinctions can thenceforward be no 
 
 * longer a title to obtain them, every one who 
 ' shall not be expressly included in their number 
 ' must continue to confess himself one of the 
 
 * people ; and, just as we said before, " Let us 
 
 * " choose ourselves one master that we may not 
 ' " have fifty," we may now say, " Let us establish 
 
 * " three hundred lords, that we may not have ten 
 ' " thousand nobles." 
 
 * Besides, our pride will better reconcile itself 
 ' to a superiority which it will no longer think of 
 
 * disputing. Nay, as they will themselves see 
 ' that we are before-hand in acknowledging it, 
 ' they will think themselves under no necessity of 
 ' being insolent to furnish us a proof of it. Secure 
 
 * as to their privileges, all violent measures on their 
 
 F F
 
 4-34. THE CONSTITUTION 
 
 * part for maintaining-, and at last perhaps extend- 
 
 * ing them, will be prevented : they will never com- 
 
 * bine with any degree of vehemence, but when 
 
 * they really have cause to think themselves in dan- 
 
 * ger ; and by having made them indisputably great 
 
 * men, we shall have a chance of often seeing them 
 ' behave like modest and virtuous citizens. 
 
 ' In fine, by being united in a regular assembly, 
 
 * they will form an intermediate body in the state, 
 
 * that is to say, a very useful part of the govern- 
 ' ment. 
 
 * It is also necessary (our reasoning lawgiver 
 
 * might add) that we, the people, should have an 
 'influence upon government: it is necessary for 
 ' our own security ; it is no less necessary for the 
 ' security of the government itself. But expe- 
 ' rience must have taught you, at the same time, 
 
 * that a great body of men cannot act, without 
 
 * being, though they are nor aware of it, the instru- 
 
 * ments of the designs of a small number of per- 
 1 sons ; and that the power of the people is never 
 ' any thing but the power of a few leaders, who 
 ' (though it may be impossible to tell when or 
 
 * how) have found means to secure to themselves 
 
 * the direction of its exercise. 
 
 * Let us, therefore, be also before-hand with 
 
 * this other inconvenience. Let us effect openly 
 
 * what would, otherwise, take place in secret. 
 ' Let us intrust our power, before it be taken from 
 
 * us by address. , Those whom we shall have ex- 
 
 * pressly made the depositories of it, being freed 
 
 * from any anxious care about supporting them- 
 ' selves, will have no object but to render it useful.
 
 OF ENGLAND. 4,35 
 
 They will stand in awe of us the more, because 
 
 * they well know that they have not imposed upon 
 
 * us ; and instead of a small number of leaders, 
 
 * who would imagine they derive their whole im- 
 
 * portance from their own dexterity, we shall have 
 
 * express and acknowledged representatives, who 
 
 * will be accountable to us for the evils of the 
 
 * state. 
 
 * But above all, by forming our government 
 ' with a small number of persons, we shall prevent 
 
 * any disorder that may take place in it from ever 
 
 * becoming dangerously extensive. Nay more, 
 ' we shall render it capable of such inestimable 
 ' combinations and resources, as would be utterly 
 
 * impossible in the government of all, which never 
 
 * can be any thing but uproar and confusion. 
 
 ' In short, by expressly divesting ourselves of a 
 ' power, of which we should, at best, have only an 
 ' apparent enjoyment, we shall be entitled to make 
 ' conditions for ourselves : we will insist that our 
 
 * liberty be augmented j we will, above all, reserve 
 
 * to ourselves the right of watching and censuring 
 ' that administration which will have been esta- 
 
 * blished by our own consent. We shall the better 
 
 * see its faults, because we shall be only spectators 
 ' of it : we shall correct them the better, because 
 
 * we shall not have personally concurred in its opera- 
 
 * tions.'* 
 
 * He might have added, " As we will not seek to counteract 
 " nature, but rather to follow it, we shall be able to procure otir- 
 " selves a mild legislation. Let us not be without cause afraid 
 " of the power of one man ; we shall have no need either of a 
 
 F F 2
 
 436 THE CONSTITUTION 
 
 The English constitution being founded upon such 
 principles as those we have just described, no true 
 comparison can be made between it and the go- 
 vernment of any other state ; and since it evi- 
 dently secures, not only the liberty, but the general 
 satisfaction, in all respects, of those who are subject 
 to it, in a much greater degree than any other 
 government ever did, this consideration alone affords 
 sufficient ground to conclude, without looking far- 
 ther, that it is also more likely to be preserved from 
 ruin. 
 
 And indeed we may observe the remarkable 
 manner in which it has been maintained in the 
 midst of such general commotions as seemed to 
 lead to its unavoidable destruction. It rose again, 
 
 " Tarpeian rock, 213 or of a council of ten. Having expressly 
 " allowed to the people a liberty to inquire into the conduct of 
 " government, and to endeavour to correct it, we shall need neither 
 
 " state prisons, nor secret informers." 
 
 \ 
 
 213 Our author's repeated reference to this figure (see pages 185, 
 236 and 330,) may make some readers anxious to know its mean- 
 ing. The Tarpeian Hill, or rock, was at Rome, and is the same 
 with the Capitoline Hill. It was eighty feet in perpendicular 
 height, and from it the Romans threw their condemned criminals 
 down the deep precipice beneath. It was named after Tarpeia, 
 the daughter of Tarpeius, the governor of the citadel of Rome, 
 who promised to open the gates of the city to the Sabines, pro- 
 vided they gave her their gold bracelets, or, as she expressed it, 
 " what they carried on their left hands." Tatius, the king of the 
 Sabines, consented, and as he entered the gates, to punish her 
 perfidy, he threw not only his bracelet but his shield upon Tarpeia. 
 His followers imitated his example ; and Tarpeia, being crushed 
 to death under the weight of the bracelets and shields of the .^abi 
 army, was buried in the capitol. EDITOR.
 
 OF ENGLAND. 437 
 
 we see, after the wars between Henry the Third 
 and his barons, after the usurpation of Henry 
 the Fourth, and after the long and bloody con- 
 tentions between the houses of York and Lancas- 
 ter. Nay, though totally destroyed in appearance 
 after the fall of Charles the First, and though the 
 greatest efforts had been made to establish another 
 form of government in its stead, yet no sooner was 
 Charles the Second called over, than the con- 
 stitution was re-established upon all its ancient 
 foundations. 
 
 However, as what has not happened at one time 
 may happen at another, future revolutions (events 
 which no form of government can totally prevent) 
 may perhaps end in a different manner from that 
 in which past ones have terminated. New com- 
 binations may possibly take place among the then 
 ruling powers of the state, of such a nature as to 
 prevent the constitution, when peace shall be 
 restored to the nation, from settling again upon its 
 ancient and genuine foundations : and it would cer- 
 tainly be a very bold assertion to affirm, that both 
 the outward form, and the true spirit of the Eng- 
 lish government, would again be preserved from 
 destruction, if the same dangers to which they have 
 in former times been exposed should again happen 
 to take place. 
 
 Nay, such fatal changes as those we mention 
 may be introduced even in quiet times, or, at 
 least, by means in appearance peaceable and con- 
 stitutional. Advantages, for instance, may be 
 taken by particular factions, either of the feeble 
 capacity, or of the misconduct of some future king.
 
 438 THE CONSTITUTION 
 
 Temporary prepossessions of the people may be so 
 artfully managed as to make them concur in doing 
 what will prove afterwards the ruin of their own 
 liberty. Plans of apparent improvement in the 
 constitution, forwarded by men who, though with 
 good intentions, shall proceed without a due know- 
 ledge of the true principles and foundations of 
 government, may produce effects quite contrary 
 to those which were intended, and in reality pave 
 the way to its ruin.* The crown, on the other 
 hand, may, by the acquisition of foreign dominions, 
 
 * Instead of looking for the principles of politics in tlieir true 
 sources, that is to say, in the nature of the affections of mankind, 
 and of those sacred ties by which they are united in a state of 
 society, men have treated that science in the same manner as 
 they did natural philosophy in the time of Aristotle, continually 
 recurring to occult causes and principles, from which no useful 
 consequence could be drawn. Thus, in order to ground particular 
 assertions, they have much used the word constitution in a per- 
 sonal sense, the constitution loves, the constitution forbids, and 
 the like. At other times they have had recourse to luxury, in 
 order to explain certain events ; and, at others, to a still more 
 occult cause, which they have called corruption ; and abundance 
 of comparisons drawn from the human body have been also used 
 for the same purposes : continued instances of such defective 
 arguments and considerations occur in the works of M . de Montes- 
 quieu, though a man of so much genius, and from whose writings 
 so much information is nevertheless to be derived. Nor is it only 
 the obscurity of the writings of politicians, and the impossibility 
 of applying their speculative doctrines to practical uses, which 
 prove that some peculiar and uncommon difficulties lie in the way 
 of the investigation of political truths; but the remarkable per- 
 plexity which men in general, even the ablest, labour under, when 
 they attempt to descant and argue upon abstract questions in poli- 
 tics, also justifies this observation, and proves that the true first 
 principles of this science, whatever they are, lie deep both in the 
 human feelings and understanding.
 
 OF ENGLAND. 439 
 
 acquire a fatal independency on the people : and 
 if, without entering into any farther particulars on 
 this subject, I were required to point out the prin- 
 cipal events which would, if they were ever to 
 happen, prove immediately the ruin of the English 
 government, I would say, the English govern- 
 ment will be no more, either when the crown shall 
 become independent on the nation for its supplies, 
 or when the representatives of the people shall 
 begin to share in the executive authority.* 
 
 CHAPTER XIX. 
 
 A few additional Thoughts on the Attempts that 
 at particular Times may be made to abridge 
 the Power of the Crown, and some of the 
 Dangers by which such Attempts may be 
 attended. 
 
 THE power of the crown is supported by deeper 
 and more numerous roots thffn the generality of 
 people are aware of, as has been observed in a 
 former chapter ; and there is no cause to fear that 
 the wresting any capital branch of its prerogative 
 may be effected, in common peaceable times, by 
 the mere theoretical speculations of politicians. 
 
 * And if at any time dangerous changes were to take place 
 in the English constitution, the pernicious tendency of which the 
 people were not able at first to discover, restrictions on the liberty 
 of the press, and on the power of juries, will give them the first 
 information.
 
 440 THE CONSTITUTION 
 
 However, it is not equally impracticable that some 
 event of the kind we mention may be brought 
 about through a conjunction of several circum- 
 stances. Advantage may, in the first place, be 
 taken of the minority, and even of the inexperience 
 or the errors of the person invested with the kingly 
 authority. Of this a remarkable instance happened 
 in the reign of George the First, while that bill, 
 by which the order of peers was in future to be 
 limited to a certain number, was under considera- 
 tion in the house of commons, to whom it had been 
 sent by the lords. So unacquainted was the king 
 at that time with his own interest, and with the 
 constitution of the English government, that, 
 having been persuaded by the party who wished 
 success to the bill, that the commons only objected 
 to it from an opinion of its being disagreeable 
 to him, he was prevailed upon to send a message 
 to them, to let them know that such an opinion 
 was ill-grounded, and that, should the bill pass in 
 their house, it would meet with his assent. Con- 
 sidering the prodigious importance of the conse- 
 quences of such a "bill, the fact is certainly very 
 remarkable. 
 
 With those personal disadvantages under which 
 the sovereign may lie for defending his authority, 
 other causes of difficulty may concur, such as 
 popular discontents of long continuance in regard 
 to certain particular abuses of influence or autho- 
 rity. The generality of the public, bent, at that 
 time, both upon remedying the abuses complained 
 of, and preventing the like from taking place in 
 future, will perhaps wish to see that branch of the
 
 OF ENGLAND. 441 
 
 prerogative which gave rise to them taken from 
 the crown : a general disposition to applaud such 
 a measure, if effected, will be manifested from all 
 quarters ; and at the same time men may not be 
 aware, that the only material consequence that 
 may arise from depriving the crown of that branch 
 of power which has caused the public complaints, 
 will perhaps be the having transferred that branch 
 of power from its former seat to another, and hav- 
 ing intrusted it to new hands, which will be still 
 more likely to abuse it than those in which it was 
 formerly lodged. 
 
 In general, it may be laid down as a maxim, 
 that power under any form of government must 
 exist, and be intrusted somewhere. If the consti- 
 tution does not admit of a king, the governing 
 authority is lodged in the hands of magistrates. 
 If the government, at the same time that it is a 
 limited one, bears a monarchical form, those por- 
 tions of power that are retrenched from the king's 
 prerogative will most probably continue to subsist, 
 and be vested in a senate or assembly of great men, 
 under some other name of the like kind. 
 
 Thus, in the kingdom of Sweden, which, having 
 been a limited monarchy, may supply examples 
 very applicable to the government of this country, 
 we find that the power of convoking the general 
 states (or parliament) of that kingdom had been 
 taken from the crown ; but at the same time we 
 also find that the Swedish senators had invested 
 themselves with that essential branch of power 
 which the crown had lost : I mean here the
 
 442 THE CONSTITUTION 
 
 government of Sweden as it stood before the last 
 revolution. 
 
 The power of the Swedish king 1 to confer offices 
 and employments had been also very much abridged. 
 But what was wanting to the power of the king, 
 the senate enjoyed : it had the nomination of three 
 persons for every vacant office, out of whom the 
 king was to choose one. 
 
 The king had but a limited power in regard to 
 pardoning offenders ; but the senate likewise pos- 
 sessed what was wanting to that branch of his pre- 
 rogative, and it appointed two persons, without the 
 consent of whom the king could not remit the pu- 
 nishment of any offence. 
 
 The king of England has an exclusive power 
 in regard to foreign affairs, war, peace, treaties ; 
 in all that relates to military affairs, he has the 
 disposal of the existing army, of the fleet, &c. 
 The king of Sweden had no such extensive powers ; 
 but they nevertheless existed : every thing relating 
 to the above-mentioned objects was transacted in 
 the assembly of the senate ; the majority decided ; 
 the king was obliged to submit to it ; and his 
 only privilege consisted in his vote being accounted 
 two.* 
 
 * The Swedish senate was fully composed of sixteen members. 
 In regard to affairs of smaller moment they formed themselves into 
 two divisions, in either of these, when they did sit, the presence of 
 seven members was required for the effectual transacting of busi- 
 ness: in affairs of importance, the assembly was formed of the 
 whole senate; and the presence of ten members was required to 
 give force to the resolutions. When the king could not or would
 
 OF ENGLAND. 443 
 
 If we pursue farther our inquiry on the subject, 
 we shall find that the king- of Sweden could not 
 raise whom he pleased to the office of senator, as 
 the king of England can in regard to the office of 
 member of the privy council ; but the Swedish 
 states, in the assembly of whom the nobility en- 
 joyed most capital advantages, possessed a share of 
 the power we mention, in conjunction with the 
 king; and in cases of vacancies in the senate, they 
 elected three persons, out of whom the king was to 
 return one. 
 
 The king of England may, at all times, deprive 
 the ministers of their employments. The king of 
 Sweden could remove no man from his office ; but 
 the states enjoyed the power that had been denied 
 to the king; and they might deprive of their places 
 both the senators, and those persons in general who 
 had share in the administration. 
 
 The king of England has the power of dissolving, 
 or keeping assembled, his parliament. The king of 
 Sweden had not that power ; but the states might of 
 themselves prolong their duration as they thought 
 proper. 
 
 not take his seat, the senate proceeded .nevertheless, aud the ma- 
 jority continued to be equally decisive. 
 
 As the royal seal was necessary for putting in execution the re- 
 solutions of the senate, king Adolphus Frederic Iried, by refusing to 
 lend the same, to procure that power which he had not by his suf- 
 frage, aud to stop the proceedings of the senate. Great debates in 
 consequence of that pretension arose, and continued for a while ; 
 but at last, in the year 1756, the king was over-ruled by the senate* 
 who ordered a seal to be made, that was named the kitty's seal' 
 which they affixed to their official resolutions, when the king re" 
 fused to lend his own.
 
 444 THE CONSTITUTION 
 
 Those who think that the prerogative of a king 
 cannot be too much abridged, and that power 
 loses all its influence on the dispositions and views 
 of those who possess it, according to the kind of 
 name used to express the offices by which it is con- 
 ferred, may be satisfied, no doubt, to behold those 
 branches of power that were taken from a king 
 distributed to several bodies, and shared by the re- 
 presentatives of the people ; but those who think 
 that power, when parcelled and diffused, is never so 
 well repressed and regulated as when it is confined 
 to a sole indivisible seat, which keeps the nation 
 united and awake, those who know, that, names by 
 no means altering the intrinsic nature of things, 
 the representatives of the people, as soon as they 
 are invested with independent authority, become, 
 ipso facto, its masters, those persons, I say, will 
 not think it a very happy regulation in the former 
 constitution of Sweden to have deprived the king 
 of prerogatives formerly attached to his office, in 
 order to vest the same either in a senate, or in the 
 deputies of the people, and thus to have intrusted 
 with a share in the exercise of the public power 
 those very men whose constitutional office should 
 have been to watch and restrain it. 
 
 From the indivisibility of the governing autho- 
 rity in England, a community of interest takes 
 place among all orders of men ; and hence arises, 
 as a necessary consequence, the liberty enjoyed by 
 all ranks of subjects. This observation has been 
 insisted upon at length in the course of the present 
 work. The shortest reflection on the frame of the 
 human heart suffices to convince us of its truth,
 
 OF ENGLAND. 44.5 
 
 and at the same time manifests the danger that 
 would result from making any changes in the form 
 of the existing government, by which this general 
 community of interest might be lessened, unless 
 we are at the same time also determined to believe, 
 that partial nature forms men in this island with 
 sentiments very different from the selfish and ambi- 
 tious dispositions which have ever been found in 
 other countries.* 
 
 * Such regulations as may essentially affect, through their con- 
 sequences, the equipoise of a government, may be brought about, 
 even though the promoters themselves of those regulations are not 
 aware of their tendency. When the bill passed in the seventeenth 
 century, by which it was enacted that the crown should give up 
 its prerogative of dissolving the parliament then sitting, the gene- 
 rality of people had no thought of the calamitous consequences 
 that were to follow : very lar from it. The king himself certainly 
 felt no very great apprehension on that account; else he would 
 not have given his assent ; and the commons themselves, it appears, 
 had very faint notions of the capital changes which the bill would 
 speedily effect in their political situation. 
 
 When the crown of Sweden was, in the first instance, stripped of 
 all the different prerogatives we have mentioned, it does not appear 
 that those measures were effected by sudden open provisions for 
 that purpose : it is very probable that the way had been paved for 
 them by indirect regulations formerly made, the whole tendency of 
 which scarcely any one perhaps could foresee at the time they were 
 framed. 
 
 When the bill was in agitation, for limiting the house of peers 
 to a certain number, its great constitutional consequences were 
 scarcely attended to by any body. The king himself certainly saw 
 no harm in it, since he sent an open message to promote the pass- 
 ing of it : a measure which was not, perhaps, strictly regular. The 
 bill was, it appears, generally approved out of doors. Its fate was 
 for a long time doubtful in the bouse of commons ; nor did they 
 acquire any favour with the bulk of the people by finally rejecting 
 it : and judge Blackstone, as I find in his Commentaries, does not
 
 446 THE CNOSTITUTION 
 
 But experience does not by any means allow 
 us to entertain so pleasing an opinion. The pe- 
 rusal of the history of this country will show us, 
 that the care of its legislators, for the welfare of 
 the subject, always kept pace with the exigencies 
 of their own situation. When, through the mi- 
 nority, or easy temper of the reigning prince, or 
 other circumstances, the dread of a superior power 
 began to be overlooked, the public cause was im- 
 mediately deserted in a greater or less degree, and 
 pursuit after private influence and lucrative offices 
 took the place of patriotism. When, in the reign 
 of Charles the First, the authority of the crown 
 was for a while annihilated, those very men, who 
 till then had talked of nothing but Magna Charta 
 and liberty, instantly endeavoured openly to tram- 
 ple both under foot. 
 
 seem to have thought much of the hill, and its being rejected, as 
 he only observes that the commons " wished to keep the door of 
 " the house of lords as open as possible." Yet, no bill of greater 
 constitutional importance was ever agitated in parliament ; since 
 the consequences of its being passed would have been the freeing 
 the house of lords, both in their judicial and legislative capacities, 
 from all constitutional check whatever, either from the crown or the 
 nation. Nay, it is not to he doubted, that they would have ac- 
 quired, in time, the right of electing their own members : though 
 it would be useless to point out here by what series of intermediate 
 events the measure might have been brought about. Whether 
 there existed any actual project of this kind among the first 
 framers of the bill, does not appear ; but a certain number of the 
 members of the house we mention would have thought of it soon 
 enough, if the bill in question had been enacted into a law ; and 
 they would certainly have met with success, had they been con- 
 tented to wait, and had they taken time. Other equally important 
 changes in the substance, and perhaps the outward form, of the go- 
 vernment would have followed.
 
 OF ENGLAND. 44-7 
 
 Since the time we mention, the former constitu- 
 tion of the government having been restored, the 
 great outlines of public liberty have indeed been 
 warmly and seriously defended ; but if any partial 
 unjust laws or regulations have been made, espe- 
 cially since the revolution of the year 1689, if 
 any abuses injurious to particular classes of indi- 
 viduals have been suffered to continue, it will cer- 
 tainly be found upon inquiry, that those laws and 
 those abuses were of such a complexion, that from 
 them, the members of the legislature well knew> 
 neither they nor their friends would ever be likely 
 to suffer. 
 
 If, through the unforeseen operation of some new 
 regulation made to restrain the royal prerogative, 
 or through some sudden public revolution, any par- 
 ticular bodies or classes of individuals were ever 
 to acquire a personal independent share in the ex- 
 ercise of the governing authority, we should behold 
 the public virtue and patriotism of the legislators 
 and great men immediately cease with its cause, 
 and aristocracy, as it were, watchful of the oppor- 
 tunity, burst out at once, and spread itself over the 
 kingdom. 
 
 The men who are now the ministers, but then 
 the partners of the crown, would instantly set them- 
 selves above the reach of the law, and soon after 
 ensure the same privilege to their several supporters 
 or dependents. 
 
 Personal and independent power becoming the 
 only kind of security of which men would now 
 show themselves ambitious, the Habeas Corpus 
 act, and in general all those laws which subjects of
 
 448 THE CONSTITUTION 
 
 every rank regard with veneration, and to which 
 they look up for protection and safety, would be 
 spoken of with contempt, and mentioned as re- 
 medies fit only for peasants and cits : it even 
 would not be long before they would be set aside, 
 as obstructing the wise and salutary steps of the 
 senate. 
 
 The pretensions of an equality of right in all 
 subjects of whatever rank and order, to their pro- 
 perty and to personal safety, would soon be looked 
 upon as an old-fashioned doctrine, which the judge 
 himself would ridicule from the bench. And the 
 liberty of the press, now so universally and warmly 
 vindicated, would, without loss of time, be cried 
 down and suppressed, as only serving to keep up 
 the insolence and pride of a refractory people. 
 
 And let us not believe, that the mistaken 
 people, whose representatives we now behold 
 making such a firm stand against the indivisible 
 power of the crown, would, amidst the general de- 
 vastation of every thing they hold dear, easily find 
 men equally disposed to repress the encroaching, 
 while attainable, power of a senate and body of 
 nobles. 
 
 The time would be no more when the people, 
 upon whatever men they should fix their choice, 
 would be sure to find them ready sincerely to join 
 in the support of every important branch of public 
 liberty. 
 
 Present or expected personal power, and inde- 
 pendence on the laws, 'being now the consequence 
 of the trust of the people, wherever they should 
 apply for servants, they would only meet with be-
 
 OF ENGLAND. 
 
 trayers. Corrupting, as it were, every thing- they 
 should touch, they could confer no favour upon an 
 individual but to destroy his public virtue ; and 
 (to repeat the words used in a former chapter) 
 " their raising- a man would only be immediately 
 " inspiring- him with views directly opposite to their 
 " own, and sending 1 him to increase the number of 
 " their enemies." 
 
 All these considerations strongly point out the 
 very great caution which is necessary to be used 
 in the difficult business of laying new restraints on 
 the governing authority. Let therefore the less 
 informed part of the people, whose zeal requires to 
 be kept up by visible objects, look (if they choose) 
 upon the crown as the only seat of the evils they 
 are exposed to ; mistaken notions on their part are 
 less dangerous than political indifference ; and they 
 are more easily directed than roused ; but, at the 
 same time, let the more enlightened part of the 
 nation constantly remember, that the constitution 
 only subsists by virtue of a proper equilibrium, by 
 a discriminating line being drawn between power 
 and liberty. 
 
 Made wise by the examples of several other na- 
 tions, by those which the history of this very country 
 affords, let the people, in the heat of their struggles 
 in the defence of liberty, always take heed, only to 
 reach, never to overshoot the mark, only to re- 
 press, never to transfer and diffuse power. 
 
 Amidst the alarms that may at particular times 
 arise from the really awful authority of the crown, 
 let it, on one hand, be remembered, that even the 
 power of the Tudors was opposed and subdued, 
 
 G G
 
 450 THE CONSTITUTION 
 
 and, on the other, let it be looked upon as a funda- 
 mental maxim, that, whenever the prospect of per- 
 sonal power and independence on the governing 
 authority shall offer to the view of the members of 
 the legislature, or in general of those men to whom 
 the people must trust, even hope itself is destroyed. 
 The Hollander, in the midst of a storm, though 
 trusting to the experienced strength of the mounds 
 that protect him, shudders, no doubt, at the sight 
 of the foaming element that surrounds him ; but 
 they all gave themselves over for lost, when they 
 thought the worm had penetrated into their dykes.* 
 
 CHAPTER XX. 
 
 A few additional Observations on the Right of 
 Taxation, which is lodged in the Hands of the 
 Representatives of the People. WTiat kind of 
 Danger this Right may be exposed to. 
 
 THE generality of men, or at least of politicians, 
 seem to consider the right of taxing themselves, 
 enjoyed by the English nation, as being no more 
 than the means of securing their property against 
 the attempts of the crown; while they overlook 
 the nobler and more extensive efficiency of that 
 privilege. 
 
 * Such new forms as may prove destructive of the real sub- 
 stance of a government may he unwaiily adopted, in the same 
 manner as the superstitious notions and practices described in my 
 work, entitled Memorials of Human Superstition, may be intro- 
 duced into a religion, so as entirely to subvert the true spirit of it.
 
 OF ENGLAND. 451 
 
 The right to grant subsidies to the crown, pos- 
 sessed by the people of England, is the safeguard 
 of all their other liberties, religious and civil ; it is 
 a regular mean conferred on them by the consti- 
 tution, of influencing the motion of the executive 
 power ; and it forms the tie by which the latter is 
 bound to them. In short, this privilege is a sure 
 pledge in their hands, that their sovereign, who 
 can dismiss their representatives at his pleasure, 
 will never entertain thoughts of ruling without the 
 assistance of these. 
 
 If, through unforeseen events, the crown could 
 attain to be independent on the people in regard 
 to its supplies, such is the extent of its preroga- 
 tive, that, from that moment, all the means the 
 people possess to vindicate their liberty would be 
 annihilated. They would have no resource left, 
 except indeed that uncertain and calamitous one, 
 of an appeal to the sword ; which is no more, 
 after all, than what the most enslaved nations 
 enjoy. 
 
 Let us suppose, for instance, that abuses of power 
 should be committed, which, either by their imme- 
 diate operation, or by the precedent they might 
 establish, should undermine the liberty of the subject. 
 The people, it will be said, would then have their 
 remedy in the legislative power possessed by their 
 representatives. The latter would, at the first op- 
 portunity, interfere, and frame such bills as would 
 prevent the like abuses for the future. But here we 
 must observe, that the assent of the sovereign is ne- 
 cessary to make those bills become laws : and if, as 
 we have just now supposed, he had no need of the 
 
 G G 2
 
 4,52 THE CONSTITUTION 
 
 support of the commons, how could they obtain his 
 assent to laws thus purposely framed to abridge his 
 authority ? 
 
 Again, let us suppose that, instead of contenting 
 itself with making slow advances to despotism, the 
 executive power, or its minister, should at once 
 openly invade the liberty of the subject. Obnoxious 
 men, printers for instance, or political writers, 
 might be persecuted by military violence, or, to do 
 things with more security, with the forms of law. 
 Then, it will be said, the representatives of the 
 people would impeach the persons concerned in 
 those measures. Though unable to reach a king 
 who personally can do no wrong, they at least 
 would attack those men who were the immediate 
 instruments of his tyrannical proceedings, and en- 
 deavour, by bringing them to condign punishment, 
 to deter future judges or ministers from imitating 
 their conduct. All this I grant ; and I will even 
 add, that, circumstanced as the representatives of 
 the people now are, and having to do with a sove- 
 reign who can enjoy no dignity without their assist- 
 ance, it is most likely that their endeavours in the 
 pursuit of such laudable objects would prove suc- 
 cessful. But if, on the contrary, the king, as we 
 have supposed, stood in no need of their assistance, 
 and moreover knew that he should never want it, 
 it is impossible to think that he would then suffer 
 himself to remain a tame spectator of their pro- 
 ceedings. The impeachments thus brought by them 
 would immediately prove the signal of their dis- 
 mission ; and the king would make haste, by dis- 
 solving them, both to revenge what would then be
 
 OF ENGLAND. 453 
 
 called the insolence of the commons, and to secure 
 his ministers. 
 
 But even those are vain suppositions ; the evil 
 would reach much farther ; and we may be as- 
 sured that, if ever the crown should be in a con- 
 dition to govern without the assistance of the 
 representatives of the people, it would dismiss them 
 for ever, and thus rid itself of an assembly which, 
 continuing- to be a clog- on its power, would no 
 longer be of any service to it. This Charles the 
 First attempted to do when he found his parlia- 
 ments refractory, and the kings of France really 
 have done, with respect to the general estates of 
 their kingdom, 
 
 Indeed if we consider the extent of the prero- 
 gative of the king of England, and especially the 
 circumstance of his completely uniting in himself 
 all the executive and active powers of the state, we 
 shall find that it is no exaggeration to say that he 
 has power sufficient to be as arbitrary as the kinjs 
 of France, were it not for the right of taxation, 
 which, in England, is possessed by the people ; 
 and the only constitutional difference between the 
 French and English nations is, that the former can 
 neither confer benefits on their sovereign, nor ob- 
 struct his measures ; while the latter, how exten- 
 sive soever the prerogative of their king may be, 
 can deny him the means of exerting it. 
 
 But here a most important observation is to be 
 made ; and I entreat the reader's attention to the 
 subject. This right of granting subsidies to the 
 crown can only be effectual when it is exercised by 
 one assembly alone. When several distinct asseni-
 
 454 THE CONSTITUTION 
 
 blies have it equally in their power to supply the 
 wants of the prince, the case becomes totally al- 
 tered. The competition which so easily takes 
 place between those different bodies, and even the 
 bare consciousness which each entertains of its in- 
 ability to obstruct the measures of the sovereign, 
 render it impossible for them to make any effec- 
 tual constitutional use of their privilege. " Those 
 " different parliaments or estates (to repeat the 
 " observation introduced in the former part of this 
 " work) having no means of recommending them- 
 " selves to their sovereign, but their superior readi- 
 " ness in complying with his demands, vie with 
 " each other in granting what it would not only 
 *' be fruitless but even dangerous to refuse. And 
 " the king, in the mean time, soon comes to de- 
 " mand, as a tribute, a gift which he is confident 
 " to obtain." In short, it may be laid down as 
 a maxim, that when a sovereign is made to de- 
 pend, in regard to his supplies, on more assem- 
 blies than one, he in fact depends upon none. 
 And indeed the king of France is not independent 
 of his people for his necessary supplies, any other- 
 wise than by drawing the same from several dif- 
 ferent assemblies of their representatives : the latter 
 have in appearance a right to refuse all his de- 
 mands : and as the English call the grants they 
 make to their kings, aids or subsidies, the estates 
 of the French provinces call theirs dons gratuits, 
 or free gifts. 
 
 What is it, therefore, that constitutes the differ- 
 ence between the political situation of the French 
 and English nations, since their rights thus seem
 
 OF ENGLAND. 455 
 
 outwardly to be the same? The difference lies in 
 this, that there has never been in England more 
 than one assembly that could supply the wants of 
 the sovereign. This has always kept him in a 
 state, not of a seeming, but of a real dependence 
 on the representatives of the people for his neces- 
 sary supplies ; and how low soever the liberty of 
 the subject may, at particular times, have sunk, 
 they have always found themselves possessed of the 
 most effectual means of restoring it, whenever they 
 thought proper so to do. Under Henry the Eighth, 
 for instance, we find the despotism of the crown to 
 have been carried to an astonishing height : it was 
 even enacted that the proclamations of the king 
 should have the force of law : a thing which, even 
 in France, never was so expressly declared : yet, 
 no sooner did the nation recover from its long 
 state of supineness, than the exorbitant power of 
 the crown was reduced within its constitutional 
 bounds. 
 
 To no other cause than the disadvantage of their 
 situation, are we to ascribe the low condition in 
 which the deputies of the people in the assembly 
 called the general estates of France, were always 
 forced to remain. 
 
 Surrounded as they were by the particular estates 
 of those provinces into which the kingdom had 
 been formerly divided, they never were able to 
 stipulate conditions with their sovereign : and in- 
 stead of making their right of granting subsidies 
 to the crown serve to gain them in the end a share 
 in the legislation, they ever remained confined to
 
 4,56 THE CONSTITUTION 
 
 the unassuming- privilege of " humble supplication 
 and remonstrance,"* 
 
 Those estates, however, as all the great lords in 
 France were admitted into them, began at length 
 to appear dangerous ; and as the king could in the 
 mean time do without their assistance, they were 
 set aside. But several of the particular states of 
 
 * An idea of the manner in which the business of granting sup- 
 plies to the crown was conducted by the states of the province of 
 Bretagne in the reign of Louis the Fourteenth, may be formed 
 from several lively strokes to be met with in the Letters of Madame 
 de Sevigne, whose estate lay in that province, and who had often 
 assisted at the holding of those states. The granting of supplies was 
 not, it seems, looked upon as any serious kind of business. The 
 whole time the states were sitting, was a continued scene of festi- 
 vity and entertainment ; the canvassing of the demands of the crown 
 was chiefly carried on at the table of the nobleman who had been 
 deputed from court to hold the states ; and the different points were 
 usually decided by a kind of acclamation. In a certain assembly 
 of those states, the duke of Chaulnes, the lord deputy, had a pre- 
 sent of fifty thousand crowns made to him, as well as a considerable 
 one for his duchess, besides obtaining the demand of the court: 
 and the lady we quote here, commenting somewhat jocularly on 
 these grants, says, Ce n'est pas que nous soyons riches: mais 
 nous sommes honnetes, nous avons du courage, et entre midi et 
 une heure nous ne savons rien refuser a nos amis. " It is not 
 " that we are rich ; but we are civil, we are full of courage, and 
 " between twelve and one o'clock we are unable to deny any thing 
 " to our friends." 
 
 The different provinces of Fi'ance, it may be observed, are liable 
 to pay several taxes besides those imposed on them by their own 
 states. Dean Tucker, in one of his tracts, in which he has thought 
 proper to quote this work, has added to the above instance of the 
 French provinces that of the states of the Austrian Netherlands, 
 which is very conclusive. And examples to the same purpose 
 might be supplied by all those kingdoms of Europe in which pro- 
 vincial states are holden.
 
 OF ENGLAND. 4,t>7 
 
 the provinces are preserved to this day :* some, 
 which for temporary reasons had been abolished, 
 have been restored : nay, so manageable have po- 
 pular assemblies been found by the crown, when it 
 has to do with many, that the kind of government 
 we mention is that which it has been found most 
 convenient to assign to Corsica : and Corsica has 
 been made un pays d'etats." 1 * 
 
 That the crown in England should, on a sudden, 
 render itself independent on the commons for its 
 supplies, that is, should on a sudden successfully 
 assume to itself a right to lay taxes on the subject, 
 by its own authority, is not certainly an event 
 likely to take place, nor indeed is it one that 
 should, at the present time, raise any kind of po- 
 litical apprehension. But it is not equally imprac- 
 ticable that the right of the representatives of the 
 people might become invalidated, by being divided 
 in the manner that has been just described. 
 
 Such a division of the right of the people might 
 be effected in various ways. National calamities, 
 for instance, unfortunate foreign wars attended 
 with loss of public credit, might suggest methods 
 for raising the necessary supplies, different from 
 those which have hitherto been used. Dividing 
 
 * The year 1784. 
 
 ~ 14 Aided by the good-will and submission of the inhabitants, 
 the English, with an armed force, took possession of Corsica in the 
 year 1794, and granted to the island a constitution and a parlia- 
 ment similar to their own. The people, however, were not long 
 pleased with their protestant rulers : the island was evacuated in 
 1796, and again possessed by France, of which kingdom it has 
 ever since formed an integral part. EDITOR.
 
 4-58 THE CONSTITUTION 
 
 the kingdom into a certain number of parts, which 
 should severally vote subsidies to the crown, or 
 even distinct assessments to be made by the dif- 
 ferent counties into which England is now divided, 
 might, in the circumstances we suppose, be looked 
 upon as advisable expedients ; and these being once 
 introduced, might be continued. 
 
 Another division of the right of the people, much 
 more likely to take place than those just men- 
 tioned, might be such as might arise from acqui- 
 sitions of foreign dominions, the inhabitants of 
 which should in time claim and obtain a right to 
 treat directly with the crown, and grant supplies 
 to it, without the interference of the British legis- 
 lature. 
 
 Should any colonies acquire the right we men- 
 tion, should, for instance, the American colonies 
 have acquired, as they claimed it, it is not to be 
 doubted that the consequences which have resulted 
 from a division like that we mention in most of 
 the kingdoms of Europe, would also have taken 
 place in the British dominions, and that the spirit 
 of competition, above described, would in time 
 have manifested itself between the different colo- 
 nies. This desire of ingratiating themselves with 
 the crown, by means of the privilege of granting 
 supplies to it, was even openly confessed by an 
 agent of the American provinces,* when, on his 
 being examined by the house of commons, in the 
 year 1?66, he said, " the granting aids to the crown 
 " is the only means the Americans have qfrecom- 
 *' mending themselves to their sovereign." And 
 * Dr. Franklin.
 
 OF ENGLAND. 459 
 
 the events that have of late years 215 taken place in 
 America, render it evident that the colonies would 
 not have scrupled going any lengths to obtain fa- 
 vourable conditions at the expense of Britain and 
 the British legislature. 
 
 That a similar spirit of competition might be 
 raised in Ireland, is also sufficiently plain from 
 certain late events. 216 And should the American 
 colonies have obtained their demands, and at the 
 same time should Ireland and America have in- 
 creased in wealth to a certain degree, the time 
 might have come at which the crown might have 
 governed England with the supplies of Ireland and 
 America Ireland with the supplies of England 
 and of the American colonies and the American 
 colonies with the money of each other, and of 
 England and Ireland. 
 
 To this it may be objected, that the supplies 
 granted by the colonies, even though joined with 
 those of Ireland, never could have risen to such a 
 height as to have counterbalanced the importance 
 of the English commons. I answer, in the first 
 place, that there would have been no necessity that 
 the aids granted by Ireland and America should 
 have risen to an equality with those granted by the 
 British parliament : it would have been sufficient 
 to produce the effects we mention, that they had 
 only borne a certain proportion to the latter, so far 
 as to have conferred on the crown a certain degree 
 of independence, and at the same time have raised 
 
 215 Antecedently to 1784, when our author wrote. EDITOR. 
 
 216 Events which occurred previously to 1784, and consequently 
 before the union. EDITOR.
 
 460 THE CONSTITUTION 
 
 in the English commons a correspondent sense of 
 self-diffidence in the exercise of their undoubted 
 privilege of granting, or rather refusing, subsidies 
 to the crown. Here it must be remembered, that 
 the right of granting or refusing supplies to the 
 crown is the only ultimate forcible privilege pos- 
 sessed by the British parliament : by the constitu- 
 tion it has no other, as has been observed in the 
 beginning of this chapter. This circumstance 
 ought to be combined with the exclusive possession 
 of the executive powers lodged in the crown with 
 its prerogative of dissenting from the bills framed 
 by parliament, and even of dissolving it.* 
 
 * Being with Doctor Franklin at his house in Craven-street, 
 some months before he went back to America, I mentioned to him 
 a few of the remarks contained in this chapter, and, in general, that 
 the claim of the American colonies directly clashed with one of the 
 vital principles of the English constitution. The observation, I re- 
 member, struck him very much : it led him afterwards to speak to 
 me of the examination he had undergone in the house of commons ; 
 and he concluded with lending me that volume of the Collection of 
 Parliamentary Debates, in which an account of it is contained. 
 Finding the constitutional tendency of the claim of the Americans 
 to be a subject not very generally understood, I added a few para- 
 graphs concerning it in the English edition I some time after gave 
 of this work ; and on publishing a third edition of the same, I 
 thought it might not be amiss to write something more compact on 
 the subject, and accordingly added the present new chapter, into 
 which I transferred the few additional paragraphs I mention, leav- 
 ing in the place where they stood (page 37), only the general ob- 
 servations on the right of granting subsidies, which were formerly 
 in the French work. Several of the ideas, and even expressions 
 contained in this chapter, made their appearance in the Public 
 Advertiser, about the time I was preparing the first edition : 21 ? I 
 sen 1 "em myself to that newspaper, under the signature of^dvena. 
 
 Published in 1775. EDITOR.
 
 OF ENGLAND. 40 1 
 
 I shall mention, in the second place, a remark- 
 able fact in regard to this subject (which may serve 
 to show that politicians are not always consistent, 
 or even sagacious in their arguments) ; which is, 
 that the same persons who were the most strenu- 
 ous advoca'tes for granting to the American colo- 
 nies their demands, were likewise the most san- 
 guine in their predictions of the future wealth and 
 greatness of America ; and at the same time also 
 used to make frequent complaints of the undue in- 
 fluence which the crown derives from the scanty 
 supplies granted to it by the kingdom of Ireland.* 
 
 Had the American colonies fully obtained their 
 demands, both the essence of the present English 
 government, and the condition of the English peo- 
 ple, would certainly have been altered thereby : 
 nor would such a change have been inconsiderable, 
 but in proportion as the colonies should have re- 
 mained in a state of national poverty. "f 
 
 * For instance, the complaints made in regard to the pensions 
 on the Irish establishment. 
 
 f When I observe that no man who wished for the preservation 
 of the fonn and spirit of the English constitution ought to have 
 desired that the claim of the American colonies might be granted 
 to them, I mean not to say that the American colonies should have 
 given up their claim. The wisdom of ministers, in regard to 
 American affairs, ought to have been constantly employed in mak- 
 ing the colonies useful to this country, and at the same time in 
 hiding their subjection from them (a caution, which is, after all, 
 more or less used iu every government upon earth); it ought to 
 have been exerted in preventing the opposite interests of Britain, 
 and of America from being brought to an issue, to any such 
 clashing dilemma as would render disobedience on the one hand, 
 and the resort to force on the other, almost unavoidable. The 
 generality of the people fancy that ministers use a great depth of
 
 462 THE CONSTITUTION 
 
 CHAPTER XXI. 
 
 Conclusion. A few Words on the Nature of the 
 Divisions that take place in England. 
 
 I SHALL conclude this work with a few observations 
 on the total freedom from violence with which the 
 political disputes and contentions in England are 
 conducted and terminated, in order both to give a 
 
 thought and much forecast in their operations ; whereas the truth 
 is, that ministers, in all countries, never think but of providing for 
 present, immediate contingencies ; in doing which they constantly 
 follow the open track before them. This method does very well for 
 the common course of human affairs, and even is the safest ; but 
 whenever cases and circumstances of a new and unknown nature 
 occur, sad blunders and uproar are the consequences. The cele- 
 brated count Oxenstiern, chancellor of Sweden, one day when his 
 son was expressing to him his diffidence of his own abilities, and 
 the dread with which he thought of ever engaging in the manage- 
 ment of public affairs, made the following Latin answer to him ; 
 Nescis, mi fill, quam parvd cum sapientid regitur mundus " You 
 do not know, my son, with what little wisdom the world is go- 
 verned." 
 
 Matters having come to an eruption, it was no longer to be ex- 
 pected they could be composed by the palliative offers sent at dif- 
 ferent times from this country to America. When the earl of 
 Carlisle solicited to be at the head of the solemn commission that 
 sailed for the purpose we mention, he did not certainly show 
 modesty equal to that of the son of chancellor Oxenstiern. It 
 has been said, in that stage of the contest, the Americans could 
 not think that the proposals thus sent to them wei'e seriously 
 meant : however, this cannot have been the principal cause of the 
 miscarriage of the commission. The fact is, that after the Ameri- 
 cans had been induced to open their eyes on their political situation.
 
 OF ENGLAND. 463 
 
 farther proof of the soundness of the principles on 
 which the English government is founded, and to 
 confute in general the opinion of foreign writers or 
 politicians, who, misled by the apparent heat with 
 which these disputes are sometimes carried on, and 
 the clamour to which they give occasion, look upon 
 England as a perpetual scene of civil broils and 
 dissensions. 
 
 In fact, if we consider, in the first place, the 
 constant tenour of the conduct of the parliament, we 
 shall see that whatever different views the several 
 branches that compose it may at times pursue, and 
 whatever use they may accordingly make of their 
 privileges, they never go, in regard to each other, 
 beyond the terms of decency, or even of that 
 general good understanding which ought to pre- 
 vail among them. 
 
 Thus the king, though he preserves the style of 
 his dignity, never addresses the two houses but in 
 terms of regard and affection ; and if at any time 
 he chooses to refuse their bills, he only says that 
 he will consider of them (le roy s'avisera) ; which 
 is certainly a gentler expression than the word 
 veto." 19 
 
 and rendered sensible of the local advantages of their country, it 
 became in a manner impossible to strike with them any bargain at 
 which either nation would afterwards have cause to rejoice, or even 
 to make any bargain at all. It would be needless to say any thing 
 more, in this place, on the subject of the American contest. 
 
 The motto of one of the English nobility should have been 
 that of ministers, in their regulations for rendering the colonies 
 useful to the mother country, Faire sans dire. zw 
 
 218 Actions rather than words. r EDITOR. 
 
 219 I forbid it. EDITOR.
 
 464 
 
 THE CONSTITUTION 
 
 The two houses, on their part, though very jea- 
 lous, each within their own walls, of the freedom 
 of speech, are, on the other hand, careful that this 
 liberty shall never break out into unguarded ex- 
 pressions with regard to the person of the king. 
 It is even a constant rule amongst them never to 
 mention him, when they mean to blame the admi- 
 nistration ; and those things which they may choose 
 to censure, even in the speeches made by the king 
 in person, and which are apparently his own acts, 
 are never considered but as the deeds of his minis- 
 ters, or, in general, of those who have advised him. 
 
 The two houses are also equally attentive to 
 prevent every step that may be inconsistent with 
 that respect which they owe to one another. The 
 examples of their differences with each other are 
 very rare, and have been, for the most part, mere 
 misunderstandings. Nay, in order to prevent all 
 subject of altercation, the custom is, that, when one 
 house refuses to assent to a bill presented by the 
 other, no formal declaration is made of such re- 
 fusal ; and that house whose bill is rejected, learns 
 its fate only from hearing no more of it, or by 
 what the members may be told as private persons. 
 
 In each house, the members take care, even in 
 the heat of debate, never to go beyond certain 
 bounds in their manner of speaking of each other : 220 
 
 220 It were to be wished that such was still the case ; but of 
 late years the interference of the speaker, and of the house gene- 
 rally, has been necessarily, and frequently, interposed to avert 
 the consequences of personal reflections and intemperate remarks, 
 into which members have been betrayed in the warmth of dis- 
 cussion : and such interference has not always proved effectual, 
 for several duels, because of expressions used within the walls of
 
 OF ENGLAND. 4(5.5 
 
 if they were to offend in that respect, they would 
 certainly incur the censure of the house. And as 
 
 J 
 
 reason has taught mankind to refrain, in their wars, 
 from all injuries to each other that have no ten- 
 dency to promote the main object of their conten- 
 tions, so a kind of law of nations (if I may so ex- 
 press myself) has been introduced among the per- 
 sons who form the parliament and take a part in the 
 debates : they have discovered that they may very 
 well be of opposite parties, and yet not hate and 
 persecute one another. Coming fresh from de- 
 bates carried on even with considerable warmth, 
 they meet without reluctance in the ordinary inter- 
 course of life ; and, suspending all hostilities, they 
 hold every place out of parliament to be neutral 
 ground. 
 
 In regard to the generality of the people, as they 
 never are called upon to come to a final decision 
 with respect to any public measures, or expressly 
 to concur in supporting them, they preserve them- 
 selves still more free from party spirit than their 
 representatives themselves sometimes are. Consi- 
 dering, as we have observed, the affairs of govern- 
 ment as only matter of speculation, they never have 
 occasion to engage in any vehement contests among 
 themselves on that account : much less do they 
 think of taking an active and violent part in the 
 differences of particular factions or the quarrels of 
 private individuals. And those family feuds, those 
 party animosities, those victories and consequent 
 
 parliament, have taken place between distinguished members of 
 either house, whose sense of the laws of imaginary honour was 
 stronger than that of patriotism or religion. EDITOR. 
 
 H H
 
 466 THE CONSTITUTION 
 
 outrages of factions alternately successful ; in short, 
 all those inconveniences which in so many other 
 states have constantly been the attendants of liberty, 
 and which authors tell us we must submit to, as the 
 price of it, are things in very great measure un- 
 known in England. 
 
 But are not the English perpetually making com- 
 plaints against the administration ? and do they not 
 speak and write as if they were continually exposed 
 to grievances of every kind ? 
 
 Undoubtedly, I shall answer, in a society of 
 beings subject to error, dissatisfactions will neces- 
 sarily arise from some quarter or other ; and, in a 
 free society, they will be openly manifested by com- 
 plaints. Besides, as every man in England is per- 
 mitted to give his opinion upon all subjects, and 
 as, to watch over the administration, and complain 
 of grievances, is the proper duty of the represen- 
 tatives of the people, complaints must necessarily 
 be heard in such a government, and even more 
 frequently, and upon more subjects, than in any 
 other. 
 
 But those complaints, it should be remembered, 
 are not, in England, the cries of oppression forced 
 at last to break its silence. They do not suppose 
 hearts deeply wounded. Nay, I will go farther, 
 they do not even suppose very determinate senti- 
 ments ; and they are often nothing more than the 
 first vent which men give to their new and yet un- 
 settled conceptions. 
 
 The agitation of the popular mind, therefore, is 
 not in England what it would be in other states ; 
 it is not the symptom of a profound and general
 
 OF ENGLAND. 467 
 
 discontent, and the forerunner of violent commo- 
 tions. Foreseen, regulated, even hoped for by the 
 constitution, this agitation animates all parts of the 
 state, and is to be considered only as the beneficial 
 vicissitude of the seasons. The governing power, 
 being dependent on the nation, is often thwarted ; 
 but, so long as it continues to deserve the affection 
 of the people, it can never be endangered. Like a 
 vigorous tree which stretches its branches far and 
 wide, the slightest breath can put it in motion ; 
 but it acquires and exerts at every moment a new 
 degree of force, and resists the winds, by the 
 strength and elasticity of its fibres, and the depth 
 of its roots. 
 
 In a word, whatever revolutions may at times 
 happen among the persons who conduct the public 
 affairs in England, they never occasion the shortest 
 interruption of the power of the laws, or the small- 
 est diminution of the security of individuals. A 
 man who should have incurred the enmity of the 
 most powerful men in the state what do I say ? 
 though he had, like another Vatinius^ drawn 
 upon himself the united detestation of all parties, 
 might, under the protection of the laws, and by 
 keeping within the bounds required by them, con- 
 tinue to set both his enemies and the whole nation 
 at defiance. 
 
 The limits prescribed to this book do not admit 
 
 221 Vatinius became an intimate friend of Cicero, after having 
 been distinguished for his enmity to the orator. He so hated the 
 people of Rome for their great vices and corruption, that excessive 
 hatred became proverbial, in the words Valinianum odium, or Va- 
 tinian hatred. EDITOR.
 
 468 THE CONSTITUTION 
 
 of entering into any farther particulars on the sub- 
 ject we are treating- here ; but if we were to pursue 
 this inquiry, and investigate the influence which the 
 English government has on the manners and cus- 
 toms of the people, perhaps we should find that, 
 instead of inspiring them with any disposition to 
 disorder or anarchy, it produces in them a quite 
 contrary effect. As they see the highest powers in 
 the state constantly submit to the laws, and they 
 receive, themselves, such a certain protection from 
 those laws whenever they appeal to them, it is im- 
 possible but they must insensibly contract a deep- 
 rooted reverence for them, which can at no time 
 cease to have some influence on their actions. And, 
 in fact, we see that even the lower classes of the 
 people, in England, notwithstanding the apparent 
 excesses into which they are sometimes hurried, 
 possess a spirit of justice and order superior to 
 what is to be observed in the same rank of men in 
 other countries. The extraordinary indulgence 
 which is shown to accused persons of every degree, 
 is not attended with any of those pernicious conse- 
 quences which we might at first be apt to fear from 
 it. And it is, perhaps, to the nature of the English 
 constitution itself (however remote the cause may 
 seem) and to the spirit of justice which it conti- 
 nually and insensibly diffuses through all orders of 
 the people, that we are to ascribe the singular ad- 
 vantage possessed by the English nation, of employ- 
 ing an incomparably milder mode of administering 
 justice in criminal matters than any other nation," 2 
 
 822 If our author's tribute of admiration, so frequently repeated 
 in the course of the work, of the extreme mildness with which
 
 OF ENGLAND. 469 
 
 and at the same time of affording, perhaps, fewer 
 instances of violence or cruelty. 
 
 justice in criminal cases is administered in England, as compared 
 with every other country in the world, were merited at the 
 time he wrote, how much more applicable would it have been at 
 the present day ! The ameliorations which have taken place in 
 the system, in almost every year of the last, and of the present, 
 reign, have shed a more real and valuable lustre upon this period 
 of our history than did our unequalled, but dearly-bought, suc- 
 cesses in arms upon that which immediately preceded it. The 
 revision of our criminal jurisprudence has been separately extended 
 to the different parts of the United Kingdom ; and also, to the 
 East Indies. It would occupy more space than can here be al- 
 lotted to the subject to give more than the dates and titles of the 
 several statutes, a table of which, however, may properly be 
 in troduced, and will assist the inquiring reader in his researches. 
 
 1 GEO. IV. (A. D. 1820.) 
 
 Cap. 57, intituled, " An act to repeal an act passed in the 
 fifty-seventh year of the reign of his late majesty king George 
 the Third, intituled, An act to abolish the punishment of public 
 whipping on female offenders, and to make further provisions in 
 lieu thereof." 
 
 Cap. 90, intituled, "An act to remove doubts, and to remedy 
 defects, in the law, with respect to certain offences committed 
 upon the sea, or within the jurisdiction of the Admiralty." 
 
 Cap. 115, intituled, " An act to repeal so much of the several 
 acts passed in the thirty-ninth year of the reign of Elizabeth, 
 the fourth of George the First, the fifth and eighth of George 
 the Second, as inflicts capital punishment on certain* offences 
 therein specified, and to provide more suitable and effectual pu- 
 nishment for such offences." 
 
 Cap. 116, intituled, " An act to repeal so much of the several 
 acts passed in the first and second years of the reign of Philip 
 and Mary, the eighteenth of Charles the Second, the ninth of 
 George the First, and the twelfth of George the Second, as inflicts 
 capital punishment on certain offences therein specified." 
 
 Cap. 117, intituled, "An act to repeal so much of an act 
 passed in the tenth and eleventh years of king William the Third,
 
 4-70 THE CONSTITUTION 
 
 Another consequence which we might observe 
 here, as flowing also from the principles of the 
 
 intituled An act for the better" apprehending, prosecuting and 
 punishing of felons that commit burglary, house-breaking or 
 robbery, in shops, warehouses, coachhouses or stables, or that steal 
 horses, as takes away the benefit of clergy from persons pri- 
 vately stealing in any shop, warehouse, coachhouse or stable, any 
 goods, wares or merchandizes of the value of five shillings; and 
 for more effectually preventing the crime of stealing privately in 
 shops, warehouses, coachhouses or stables." 
 
 1 &2GEO.IV. (A. D. 1821.) 
 
 Cap. 18, intituled, " An act to repeal an act, made in the par- 
 liament of Ireland in the twenty-eighth year of the reign of queen 
 Elizabeth, against witchcraft and sorcery." 
 
 Cap. 24, intituled, " An act to extend certain provisions of an 
 act of king William the Third, intituled An act for regulating 
 of trials in cases of treason and misprision of treason, to that 
 part of the United Kingdom called Ireland" 
 
 Cap. 34, intituled, " An act to repeal so much of two acts, 
 made in the parliament of Ireland, in the ninth year of queen 
 Anne, and in the seventeenth year of king George the Second, 
 as inflicts capital punishment on persons guilty of stealing to t 
 amount of five shillings, out of or from shops, warehouses, and 
 other outbuildings and places, and to provide more suitable and 
 effectual punishment for such offences." 
 
 Cap. 40, intituled, "An act to repeal so much of an act, made 
 in the parliament of Ireland in the eleventh and twelfth years 
 of the reign of king George the Third, for preventing frauds 
 committed by bankrupts, as inflicts capital punishment on certain 
 offences therein specified ; and to provide more suitable and effectual 
 punishment for such offences." 
 
 4 GEO. IV. (A. D. 1823.) 
 
 Cap. 46, intituled, " An act for repealing the capital punishments 
 inflicted by several acts of the sixth, and twenty-seventh, years of 
 king George the Second, and of the third, fourth and twenty-second 
 years of king George the Third ; and for providing other punish- 
 ments in lieu thereof, and in lieu of the punishment of frame break- 
 ing under an act of the twenty-eighth year of the same reign."
 
 , OF ENGLAND. 47.1 
 
 English government, is the moderate behaviour of 
 those who are invested with any branch of public 
 
 Cap. 48, intituled, " An act for enabling courts to abstain from 
 pronouncing sentence of death in certain capital felonies/' 
 
 Cap. 53, intituled, " An act for extending the benefit of clergy 
 to several larcenies therein mentioned." 
 
 Cap. 54, intituled, " An act for allowing the benefit of clergy to 
 persons convicted of certain felonies under two acts, of the ninth 
 year of king George the First and of the twenty-seventh year of 
 king George the Second; for making better provision for the 
 punishment of persons guilty of sending or delivering threatening 
 letters, and of assaults with intent to commit robbery." 
 
 5 GEO. IV. (A. D. 1824.) 
 
 Cap. 84, intituled, " An act for the transportation of offenders 
 from Great Britain." 
 
 Cap. 95, intituled, " An act to repeal the laws relative to the 
 combination of workmen ; and for other purposes therein men- 
 tioned." 
 
 6 GEO. IV". (A. D. 1825.) 
 
 Cap. 25, intituled, " A.n act for defining the rights of capital 
 convicts who receive pardon, and of convicts after having been 
 punished for clergyable felonies ; for placing clerks in orders on tbe 
 same footing with other persons, as to felonies ; and for limiting 
 the effect of the benefit of clergy." 
 
 Cap. 47, intituled, " An act for restricting the punishment of 
 leasiug-niaking, sedition and blasphemy, in Scotland." 
 
 Cap. 129, intituled, "An act to repeal the laws relating to the 
 combination of workmen, and to make other provisions in lieu 
 thereof." 
 
 7 GEO. IV. (A. D. 1826.) 
 
 Cap. 19, intituled, " An act to repeal two acts of the parliament 
 of Scotland, relative to assault and battery pendente lite'' 
 
 Cap. 64, intituled, " An act for improving the administration of 
 criminal justice in England.'' 
 
 7 and 8 GEO. IV. (A. D. 1827.) 
 
 Cap. 27, intituled, " An act for repealing various statutes in 
 England relative to the benefit of clergy, and to larceny and other
 
 THE CONSTITUTION 
 
 authority. If we look at the conduct of public 
 officers, from the minister of state, or the judge, 
 
 offences connected therewith, and to malicious injuries to property, 
 and to remedies against the hundred." 
 
 Cap. 28, intituled, " An act for further improving the adminis- 
 tration of justice in criminal cases in England.'' 
 
 Cap. 29, intituled, " An act for consolidating and amending the 
 laws in England relative to larceny and other offences connected 
 therewith." 
 
 Cap. 30, intituled, " An act for consolidating and amending the 
 laws in England relative to malicious injuries to property." 
 
 9 GEO. IV. (A. D. 1828.) 
 
 Cap. 31, intituled, "An act for consolidating and amending 
 the statutes in England relative to offences against the person." 
 
 Cap. 53, intituled, " An act to repeal several acts and parts of 
 acts in force in Ireland, relating to bail in cases of felony, and to 
 certain proceedings in criminal cases, and to the benefit of clergy, 
 and to larceny and other offences connected therewith, and to ma- 
 licious injuries to property/' 
 
 Cap. 54, intituled, " An act for improving the administration of 
 justice in criminal cases in Ireland." 
 
 Cap. 55, intituled, " An act for consolidating and amending the 
 laws in Ireland relative to larceny, and other offences connected 
 therewith." 
 
 Cap. 56, intituled, " An act for consolidating and amending the 
 laws in Ireland relative to malicious injuries to property." 
 
 Cap. 74, intituled, " An act for improving the administration of 
 criminal justice in the East Indies." 
 
 10 GEO. IV. (A. D. 1829.) 
 
 Cap. 34, intituled, "An act for consolidating and amending 
 the statutes in Ireland relating to offences against the person." 
 
 10 GEO IV. & 1 WILL IV. (A. D. 18,30.) 
 Cap. 66, intituled, " An act for reducing into one act all such 
 
 forgeries as shall henceforth be punished with death, and for 
 
 otherwise amending the laws relative to forgery." 
 
 Cap. 73, intituled, " An act to repeal so much of an act of the 
 
 sixtieth year of his late majesty lung George the Third, for the
 
 OF ENGLAND. 47-3 
 
 down to the lowest officer of justice, we find a 
 spirit of forbearance and lenity prevailing- in Eng- 
 land, among- the persons in power, which cannot 
 but create surprise in those who have visited other 
 countries. 
 
 Two circumstances more I shall mention here, 
 as peculiar to England ; namely, the constant 
 attention of the legislature in providing for the in- 
 terests and welfare of the people, and the indul- 
 gence shown by them to their very prejudices ; 
 advantages these, which are, no doubt, the con- 
 sequence of the general spirit that animates the 
 whole English government, but are also particu- 
 
 uiore effectual prevention and punishment of blasphemous and 
 seditious libels, as relates to the sentence of banishment for the 
 second offence ; and to provide some further remedy against the 
 abuse of publishing libels." 
 
 2 WILL. IV. (A. D. 1832.) 
 
 Cap. 34, intituled, " An act for consolidating and amending the 
 laws against offences relating to the coin." 
 
 2 & 3 WILL. IV. (A. D. 1832.) 
 
 Cap. 62, intituled, " An act for abolishing the punishment of 
 death in certain cases, and substituting a lesser punishment in lieu 
 thereof." 
 
 Cap. 123, intituled, "An act for abolishing the punishment of 
 death in certain cases of forgery." 
 
 3 & 4 WILL. IV. (A. D. 1833.) 
 
 Cap. 44, intituled, " An act to repeal so much of two acts of the 
 seventh and eighth years and the ninth year of king George the 
 Fourth as inflicts the punishment of death upon persons breaking, 
 entering, and stealing in a dwelling-house ; also for giving power 
 to the judges to add to the punishment of transportation for life in 
 certain cases of forgery, and in certain other cases." 
 
 It is not pretended that these are all, but only the leading 
 statutes enacting ameliorations in our criminal code, which have 
 been passed during the period referred to. EDITOR.
 
 474 THE CONSTITUTION 
 
 larly owing- to the circumstance peculiar to it, of 
 having- lodged the active part of legislation in the 
 hands of the representatives of the nation, and 
 committed the care of alleviating the grievances of 
 the people to persons who either feel them, or see 
 them nearly, 223 and whose surest path to advance- 
 ment and fame is to be active in finding remedies 
 for them. 
 
 I mean not, however, to affirm, that the English 
 government is free from abuses, or that all possible 
 good laws are enacted, but that there is a constant 
 tendency in it, both to correct the one, and improve 
 the other. And that all the laws which are in 
 
 223 A most striking and disinterested proof of this has lately been 
 afforded in the passing of the act 3 and 4 Will. IV. cap. 104, 
 (A. D. 1833,) intituled, " An act to render freehold and copyhold 
 estates assets for the payment of simple and contract debts." 
 Previous to the 29th August 1833, when this act came into opera- 
 tion, neither freehold nor copyhold lands were liable for the simple 
 contract debts of a person who died without specifically charging 
 his landed estates with their payment ; his personal property was in 
 this case alone responsible to his creditors, unless the deceased hap- 
 pened to have been a trader within the true meaning of the bank- 
 rupt laws, or unless the creditors had obtained some special security 
 for their debts, such as a bond or a judgment entered upon the re- 
 cords of the court. But under no circumstances could even a 
 specialty creditor make any claim upon the copyhold estates which 
 had not been specifically charged with their payment by the de- 
 ceased debtor copyholds never having been considered assets like 
 freehold estates for the payment of specialty debts. By this act, 
 however, the freehold and copyhold estates are to be assets in all 
 cases for the payment both of the simple contract and specialty debts 
 of a deceased debtor. Specialty creditors are, however, as a matter 
 of justice, to have the preference, so that their claims are to be 
 settled before any simple contract creditor shall be entitled to the 
 liquidation of his demand. EDITOR.
 
 OF ENGLAND. 4<75 
 
 being are strictly executed, whenever appealed to, 
 is what I look upon as the characteristic and undis- 
 puted advantage of the English constitution, a 
 constitution the more likely to produce all the ef- 
 fects we have mentioned, and to procure in general 
 the happiness of the people, since it has taken man- 
 kind as they are, and has not endeavoured to pre- 
 vent every thing, but to regulate every thing ; I 
 shall add, the more difficult to discover, because its 
 form is complicated, while its principles are natural 
 and simple. Hence it is that the politicians of an- 
 tiquity, sensible of the inconveniences of the go- 
 vernments they had opportunities of knowing, 
 wished for the establishment of such a government, 
 without much hope of ever seeing it realized : * 
 even Tacitus, an excellent judge of political sub- 
 jects, considered it as a project entirely chimerical. f 
 
 * " Statuo esse optime constitutam rempublicam quae ex tribus 
 " generibus illis, regali, optimo, et popular!, modice confusa." 224 
 Cic. Frag. 
 
 f " Cunctas nationes et urbes, populus, priores, aut singuli, 
 " regunt. Delecta ex his et constituta reipublicse forma, laudari 
 " facilius quam evenire ; vel si evenit, baud diutuma esse po- 
 " test." 225 Tac. Ann. lib. iv. 
 
 224 In my judgment, tbat is the best constituted form of govern- 
 ment, which, in moderation, is compounded of these three constitu- 
 ent parts the royal, the aristocratical, and the popular. EDITOR. 
 
 3 In all nations [and cities, if we consider the nature of civil 
 government, we shall find, that EDITOR.] the supreme authority 
 is vested either in the people, or the nobles, or a single ruler. A 
 constitution compounded of these three simple forms, may in 
 theory be beautiful, but can never exist in fact ; or if it should, it 
 will be but of short duration. Translation given by Murphy. 
 EDITOR.
 
 476 THE CONSTITUTION 
 
 Nor was it because he had not thought of it, had 
 not reflected on it, that he was of this opinion : he 
 had sought for such a government, had had a 
 glimpse of it, and yet continued to pronounce it 
 impracticable. 
 
 Let us not, therefore, ascribe to the confined 
 views of man, to his imperfect sagacity, the dis- 
 covery of this important secret. The world might 
 have grown old, generations might have succeeded 
 generations, still seeking it in vain. It has been 
 by a fortunate conjunction of circumstances, I 
 shall add, by the assistance of a favourable situation, 
 that Liberty has at last been able to erect herself a 
 temple. 226 
 
 Invoked by every nation, but of too delicate a 
 nature, as it should seem, to subsist in societies 
 formed of such imperfect beings as mankind, she 
 showed, and merely showed herself, to the inge- 
 nious nations of antiquity who inhabited the south 
 of Europe. They were constantly mistaken in the 
 form of the worship they paid to her. As they 
 
 2e6 It is clear that our author believed in a God of creation and 
 of providence, from the following passages which will be found in 
 pp. 190 and 265 of this work ; " If I may he permitted the ex- 
 pression, the legislative power can change the constitution, as God 
 created the light :" " then it is, though only then, that we may 
 with safety say, ' the voice of the people is the voice of God.' " It 
 is difficult, therefore, to account for his total omission of mention 
 of the supreme Disposer of events in this place, where an ascrip- 
 tion of praise to Him, from whom all blessings flow to nations as 
 well as individuals, would have been so very appropriate ; instead of 
 this reference to " a fortunate conjunction of circumstances," and 
 " the assistance of a favourable situation," together with the un- 
 meaning invocation of " the unknown goddess" of Liberty by 
 which it is followed. EDITOR.
 
 OF ENGLAND. 477 
 
 continually aimed at extending- dominion and 
 conquest over other nations, they were no less mis- 
 taken in the spirit of that worship ; and though 
 they continued for ages to pay their devotions to 
 this divinity, she still continued, with regard to 
 them, to be the unknown goddess. 
 
 Excluded, since that time, from those places to 
 which she had seemed to give a preference, driven 
 to the extremity of the Western World, banished 
 even out of the Continent, she has taken refuge in 
 the Atlantic Ocean. There it is, that, freed from 
 the dangers of external disturbance, and assisted by 
 a happy pre-arrangement of things, she has been 
 able to display the form that suited her ; and she 
 has found six centuries to have been necessarv for 
 
 9 
 
 the completion of her work. 
 
 Being sheltered, as it were, within a citadel, she 
 there reigns over a nation which is the better enti- 
 tled to her favours, as it endeavours to extend her 
 empire, and carries with it, to every part of its do- 
 minions, the blessings of industry and equality. 
 Fenced in on every side (to use the expression of 
 Chamberlayne) with a wide and deep ditch, the 
 sea, guarded with strong out-works, its ships of 
 war, and defended by the courage of her seamen, 
 she preserves that mysterious essence, that sacred 
 fire so difficult to be kindled, and which, if it were 
 once extinguished, would, perhaps, never be lighted 
 again. When the world shall have been again laid 
 waste by conquerors, she will still continue to show 
 mankind, not only the principle that ought to unite 
 them, but, what is of no less importance, the form 
 under which they ought to be united. And the
 
 478 THE CONSTITUTION 
 
 philosopher, when he considers the constant fate of 
 civil societies amongst men, and observes the nu- 
 merous and powerful causes which seem, as it were, 
 unavoidably to conduct them all to a state of poli- 
 tical slavery, will take comfort in seeing- that Li- 
 berty has at length disclosed her nature and ge- 
 nuine principles, and secured to herself an asylum 
 against despotism on the one hand, and popular 
 licentiousness on the other. 227 
 
 227 Having arrived at the end of his task, he is sensible how 
 very imperfectly executed, the editor feels abundantly repaid for 
 his labours and research, by the farther and more accurate insight 
 he has acquired into the extensive and important subject of this 
 admirable treatise ; for such he considers it, notwithstanding, in two 
 or three instances, he has seen it right conscientiously to express 
 sentiments at variance with some that it contains. Well indeed might 
 the author select the motto of his title-page. " Tellus ponderibus 
 librata suis" a country poised by its own weights could not, 
 with the same propriety, be applied to any other nation under 
 heaven, as to this united kingdom. How fully does this treatise 
 justify the observation of a learned French author, who indeed 
 generally both thought and wrote in the spirit of genuine freedom ; 
 (Moutesq. Sp. L. xi. 5.) and who hath rot scrupled to profess, 
 even in the very bosom of his native country, that " the English is 
 the only nation in the world where political or civil liberty is the 
 direct end of its constitution." The editor will close his notes by 
 expressing for the constitution of England the expiring wish of 
 the famous father Paul for his country, " Esto perpetua !" Be 
 thou everlasting !
 
 INDEX.
 
 481 
 
 INDEX TO THE WORK. 
 
 A. 
 
 AMERICAN Colonies, their claim of voting supplies to the crown, 
 hurtful, if obtained, to the English constitution, 458, 461. 
 What ought to have heeu the general conduct of ministers in 
 regard to the colonies, 461, 462, 463. 
 
 Appeal, in case of murder, its effects, and to whom allowed, 78. 
 
 Army, restrictions on the power of the king in regard to the keep- 
 ing of it, 78, 79. Is not, in England, the means of supporting 
 the authority of the crown, 393. How little its assistance 
 was useful to James II., 412. See Military Power and 
 Crovm. 
 
 Arrest, method of, in civil causes, by the English laws, 98, 99. 
 By the Roman laws, 101, 102. The alterations in the English 
 law in that respect, 102, 103. 
 
 Assemblies, popular, the disadvantages they lie under in regard to 
 each coming to any deliberate well-weighed resolution, 214, 215. 
 The advantages a few distinguished citizens have over them, 
 219, 220. Tully's passage concerning them, 229. See Com- 
 monwealths, People, Rome. 
 
 Athens, arbitrary proceedings of its magistrates, 237. 
 
 Aula Regis, what kind of Court, 12. The Court of Common 
 Pleas dismembered from it, 96. The Court of King's Bench 
 may be considered as the remains of it, 97. 
 
 Author, occasional personal remarks of his, 326, 377, 378, 393, 
 399, 400. His Memorials of Human Superstition quoted, 
 450. His conversation with Dr. Franklin, 460. 
 
 B. 
 
 Barons, originally in a great measure independent in France, 9, 
 
 I I
 
 482 INDEX TO THE WORK. 
 
 10. Not so in England, 11. Unite in a common cause with 
 
 the people, 17, 293, 402. 
 Beauchamp, lord (now marquis of Hertford), procures the passing 
 
 of a bill for limiting personal arrests, 103. 
 Bills, how deliberated upon and framed, 59, 60, 196, 203, 230, 
 
 231. See Commons and Parliament. 
 
 Bill of Rights, an account of, 47. Utility of its provisions, 297. 
 Blackstone, judge, quoted, 61, 159, 314, 329. 
 Burnet, bishop, quoted, 318, 413. 
 
 C. 
 
 C<esar, public speech of his quoted, 332. 
 
 Censorial power, that established in Rome only a senatorial artifice , 
 252. See Press. 
 
 Censors, in Rome, might remove a man from one tribe into another, 
 and elect senators, 239. 
 
 Chancery, court of, its office in regard to the framing of writs, 1 13, 
 114. See Equity, courts of. 
 
 Charles I., sketch of his reign, 39 42. Maintains his ground 
 eleven years against the violent political and religious spirit 
 of his times, 405. His attempt to seize the five members led to 
 the civil war, 407. 
 
 Charles II., conduct of, 43. 
 
 Char la, Magna, substance of, 21, 22. 
 
 Cicero quoted, 109, 125, 226, 229, 238, 305. 
 
 Civil English laws, divided into uuwrittten and written law, 93. 
 The sources of the unwritten law, 94. How far the civil law is 
 a part of the same, 95. What the written law is, 95. Pecu- 
 liarities of the English civil laws, 98. Refinements and sub- 
 tilties in them, 102, et seq. Compared with the old Roman 
 civil laws, 110. 
 
 Civil power in England, how superior to the military, 407, 408, 
 411. 
 
 Civil Roman laws, the constant dislike of the English lawyers for 
 them, 90, 91. Formalities in the ancient Roman laws, 106, 
 107. The different collections of them, 131. 
 
 Coke, sir Edward, quoted, 154, 158, 197, 253. 
 
 Comities, Philip de, quoted, 32. 
 
 Commons, English, their origin, under Henry III. and Edward I., 
 24, 25. How inconsiderable their weight at first, 26. This 
 soon increases, 27, 28. Farther advances, 33, 34. How the 
 house is constituted, 50. Vindicate the right of taxation against 
 the attempts of the crown, 36, 42. And of the lords, 74. See 
 Taxation. They cannot vote by proxy, 197. Enjoy a freedom 
 of debate superior to that ever 'possessed by any popular as- 
 sembly, 203. They are debarred from any share in the execu- 
 tive authority, 243. Are thence led to serve the people
 
 INDEX TO 'I UK WORK. 4-83 
 
 faithfully, 245. Striking instances of this in the laws they have 
 framed at particular times, 294 296. And in their watching 
 their execution, 312 315. Have impeached the servants of 
 the crown and judges, 315. Their proceedings in the case of 
 sir John Coventry, 318. See Parliament and Representative. 
 Abridge their own personal privileges, 320. Do strict justice 
 on their own members, 321. On what occasion they repealed 
 the statute De Hosretico Comburendo, 333. Their attacks on 
 the crown's prerogative defeated by the lords, 341. They in 
 their turn defeat the like attempts from the lords, '342. 
 
 Commonwealths, the people in them apt to be misled by favourite 
 leaders, 174, 175. The division of the executive authority that 
 takes place in them, makes it very difficult to lay it under 
 proper restraint, 175. The people unavoidably betrayed by 
 those whom they trust with power, 234, 237, 239. Revolutions 
 always concluded, in them, in a manner disadvantageous to 
 public liberty, 282, 283 See Revolutions, The laws to se- 
 cure the liberty of the citizens, besides being imperfect, are not 
 even carefully executed, 297, et seq. Cannot subsist without 
 certain arbitrary powers, contrary to the liberty of the citizens, 
 372. Do not admit the liberty of speaking and writing, and. 
 perhaps, cannot, 376. The power of the government supposed 
 by law to be unbounded, till stopped by some positive regula- 
 tion, 398. By what means commonwealths generally lose their 
 liberties, 422. Great difficulty for the people in them to pre- 
 serve their rights, 422, 423. See Rome and Geneva. 
 
 Conquest, the, is the real aera of the formation of the present En- 
 glish government, 6, 7. 
 
 Constitution, English, the aeras of its formation, 6, 7, 32, 46, 72. 
 Being different from that of all other free states, cannot fall into 
 ruin from the same causes, 416. Causes that operate for its 
 preservation, 426. Endangered by the offers of Columbus to 
 Henry VII., 430. Farther reasons of its future preservation, 
 
 436. How it rises again, after being in a manner overwhelmed, 
 
 437. Dangers to which it may be exposed, 437, 438. In what 
 circumstances it may be looked upon as annihilated, 439. 
 Meddling with it, upon the score of improvement, may prove 
 very dangerous experiments, 414, 445, 446. See Crown. 
 Would have been altered by granting the Americans their 
 claims, 461. See Taxation. Seems to diffuse a spirit of order 
 and justice among the lower classes of people, 468. Such a one 
 wished for by the politicians of antiquity, 475. 
 
 Consuls, the aera of their creation, and nature of their office, 283. 
 
 Unrestrained power, 235, 299. See Rome. 
 Coronation oath, 80. 
 Coventry, sir John, his case, 318. Resentment of the commons, 
 
 and their bill, 318. 
 Courts of law, in England, their names and functions, 96 98. 
 
 Kept by parliament under strict rules, 325. The great impnv- 
 
 I I 2
 
 484 INDEX TO THE WORK. 
 
 tiality of their proceedings, 325, et seq. See Laws and Jury. 
 
 Cromwell, his fruitless attempts to form a popular assembly obe- 
 dient to him, 382. 
 
 Crown, its power much superior in England after the Conquest to 
 what it was in France, 1 1. The barons compelled to unite with 
 the commonalty, to restrain its power, 17. Its present constitu- 
 tional prerogative, 62. Restraints it lies under, 66, 68. Totally 
 dependent on the people for its supplies, 66. Usefulness of its 
 power in preventing any citizen or popular leader from acquiring 
 a degree of power dangerous to public liberty, 179. Instances 
 of it, 186. Is not to make open proposals to parliament for 
 their assent or dissent, 205. May send messages to each 
 house, and to what effect, 205. Unites in itself the whole 
 executive authority, 243. Thereby produces a union in a com- 
 mon cause among all orders of subjects, 246. Is like an ever- 
 subsisting Carthage, that maintains the virtue of the representa- 
 tives of the people, 248. Farther illustration of the same fact, 
 308, 318, 319. The power of Crowns has not produced these 
 effects in other countries, 336. Instances of this, 336, 337. 
 Tbe stability of the executive power of the English crown, 338, 
 is a great peculiarity of it, 341. Is not a subject to be explained 
 here otherwise than by facts, 341. Its power alternately de- 
 fended by the two houses, 342. The secret forbearance of the 
 two houses from invading its prerogative, 345. Remarkable 
 instances of this, 348, 350, 351. Its secure power rendered 
 conspicuous in the facility with which it dismisses great men 
 from their employments, 353. Not so in other monarchies, 
 354. The facility with which it dismisses the parliament, 
 358. Never attacked except by persons who positively laid 
 claim to it, or at least upon national grounds, 365. Its 
 power more secure in itself, but not so indelibly annexed 
 to the person of an individual as in other countries, 370. 
 The secret causes of its peculiar stability form a subject more 
 properly belonging to philosophy than to politics, 370. Great 
 advantages result from this stability, 371. I. The numerous 
 restraints it is able to bear, and great freedom it can allow the 
 subject at its expense, 372. II. The liberty of speaking and 
 writing, 376, 378. III. The unlimited freedom of debate in par- 
 liament, 381. IV. The union among all orders of subjects in 
 defence of public liberty, 388. V. The unlimited freedom al- 
 lowed to the people of meddling with government affairs, 389. 
 VI. The impartiality with which justice is administered, without 
 respect to persons, 390 VII. Needlessness of an armed force to 
 support its power, 393. VIII. Its strict respect even for the letter 
 of the law, 400. IX. The lenity used in the administration of 
 criminal justice, may, perhaps, be ascribed in great part to the 
 general security which the stable power of the crown gives to the 
 whole machine of government, 401. The great power the crown 
 formerly derived from its dominions beyond sea, supplied after-
 
 INDEX TO THE WORK. 4-85 
 
 wards by sudden circumstances at home, 404. Instances of this 
 great power without the support of an armed force, 404, 405. It 
 keeps the military power in a surprising state of subjection to the 
 law, 408. Instances of this, 409. Really could not, in the 
 general situation of things, derive any assistance from a standing 
 army against the people, 411. The method it should adopt for 
 setting aside the present constitution, 413. Its power is wholly 
 annexed to the civil branch of its office, 414. Hints concerning 
 its effectual foundations, 415. Prevents the English constitution 
 from being destroyed in the same manner the Roman republic 
 was, 417, 418. The great usefulness of its veto power, 430. 
 Considerations on the attempts to abridge its prerogative, 439. 
 In what circumstances these attempts might be brought to suc- 
 ceed, 440. A comparison between its prerogative, and that of 
 the kings of Sweden, before the last revolution, 441. The 
 abridging of its prerogative might not answer the expectations of 
 those politicians who wish for it, 444, et seq. Sketches of the 
 dangers to public liberty that might arise therefrom, 447. The 
 rule to be followed in pursuing such attempts, 449. How de- 
 pendent on the people for its supplies, see Taxation. 
 
 D. 
 
 Debate, freedom of, secured by the bill of rights, 85. See Pro- 
 pounding. How conducted in the English parliament, 59, 
 231. The unlimited freedom exercised in the English parlia- 
 ment not followed by any bad consequences, and why, 385, 
 386. 
 
 Democracy, remarks on, 42. 
 
 Dictators, their great power, 225, 226, 299. Their absolute power 
 was often useful, 372. See Rome 
 
 Dissolution of the parliament, its effects, 57. Easily effected by 
 the crown in England, 358. 
 
 E. 
 
 Edward I., surnamed the English Justinian, 24. 
 
 Elections, laws relating to them, 52, 85. Grenvilles bill for 
 deciding contested elections, 86. Advantages arising from the 
 right of the people to elect representatives, 249, 268. See 
 People. 
 
 Elizabeth, queen, the inquisitorial court of Hiyk Commission 
 established during her reign, 37. 
 
 Emancipation of sons, in Rome, manner of, 123, 124. 
 
 England, the power of the king becomes very great at the aera of 
 the Conquest, 11, 12. The lords or barons much dependent 
 on the crown, 12. Are thence compelled to unite in a common 
 cause with the people, 17. Different from France, forming one
 
 486 INDEX TO THE WORK. 
 
 compact united kingdom, 20. This circumstance favours the esta- 
 blishment of public liberty, 20. A peculiarity of its government, 
 viz, the advantageous manner to public liberty in which re- 
 volutions have constantly been concluded, 293, et seq. The 
 strictness with which laws favourable to the liberty of the sub- 
 ject are executed, 308, et seq. See Commons. Remarkable 
 impartiality in the courts of law, 325. Instances quoted, 326, 
 328. Farther strictures on the same subject, 392. Singular 
 law-doctrine, concerning the authority of government, and the 
 liberty of the subject, 399, 400. The people's situation different 
 from that of the people in Rome, 420. See People. The ba- 
 lance of the people in government is connected with the right of 
 property, 425. See Taxation. Divisions among the people 
 never carried very far, 466. The lower class possessed of a 
 considerable spirit of order and justice, 468. 
 
 Equity, courts of; and inquiry into the meaning of the word, and 
 their real office, 120. A court of this kind existed in Rome, 
 122. See Praetor. Remedies afforded 'by the English courts 
 of equity, 126. How these courts were first instituted, 127. 
 The opposition they met, 127, 128. Their method of proceed- 
 ing to enforce appearance, and submission to their decrees, 128. 
 Are kept within much more strict bounds than the praetor's 
 equity court was at Rome, 129. Farther definition of their 
 office, 131, 132. 
 
 Executive power, lodged in the king, is more easily repressed when 
 confined to a sole indivisible seat, -187, et seq. is taken out of 
 the hands of the representatives of the people, 243. Great ad- 
 vantages thence arising, 244. See Crown. 
 
 Faire sans dire, the motto quoted, 463. 
 
 Favourite of the people, how prevented in the English constitution 
 from acquiring a power dangerous to public liberty, 180, et seq. 
 See Commonwealths. 
 
 Felton, his answer to the bishop of London, 159. 
 
 Feudal government introduced in France through a long series of 
 events and years, 8. Is introduced suddenly and at once iu 
 England by the Conquest, 11. Consequences of this difference, 
 13. 
 
 Fictions of law, 117. 
 
 France, the feudal government was established in it very slowly, 8. 
 The crown was at first elective, 9. The authority of the king 
 originally very inconsiderable, 10, 13. The barons were in 
 great measure independent of the crown, 14. These circum- 
 stances were prejudicial to the liberty of the people, 14. The 
 kingdom was formed by an aggregation of different sovereign- 
 ties, 14. The remarkable treaty by which the war for the 
 public good was terminated, 23. General estates, how consti- 
 tuted, 27. The third estate, or commons, never possessed any
 
 INDEX TO THE WORK. 487 
 
 weight, 27. A remarkable insurrection, 29. Edits enregistres' 
 61. Expedient for dismissing the parliament of Paris, 357* 
 The jealousy of the crown against that assembly, 384. Com- 
 parison between the French and English constitutions, in regard 
 to the right of taxation, 453, 456. 
 
 Franklin, Dr. quoted, 458, 460. 
 
 French language introduced into the English laws by William the 
 Conqueror, 61. Is still used by the king in declaring his inten- 
 tion to the parliament, 61. 
 
 G. 
 
 General warrants, set aside, 429. 
 
 Geneva, republic of, mentioned, 200, 218, 264, 429. 
 
 George I. king, led into an imprudent step, 440, 445. 
 
 Germany, by what cause the growth of the power of the crown was 
 checked there, 31. 
 
 Gracchi, how forsaken by the people, 227. 
 
 Grand jury, its office, 148. 
 
 Grecian commonwealths, revolutions in them only favourable to the 
 particular interests of leaders and demagogues, 292. The re- 
 proach made them by Caesar, 332. 
 
 Guise, death of the duke of, 355. 
 
 H. 
 
 Habeas Corpus act, when passed, and for what purpose, 166. The 
 tenour of it, 168. The particular occasion of it, 314. Expres- 
 sions of judge Blackstone on the subject, 314. On what occa- 
 sions suspended, and with what caution, 375. By what means 
 finally settled, 429. 
 
 Hale, judge, quoted, 24. His description of the office of a jury, 
 156. 
 
 Henry I , charter of, 18. 
 
 Henry VIII., his great power, 36. Was unsupported by a stand- 
 ing army, 337. 
 
 Holt, judge, remarkable opinion delivered by him, 277. 
 
 Hugh Capet, the first hereditary king in France, 9. The haughty 
 answer of a French lord to him, 10. 
 
 Hume, Mr., a few words on the character given by him of James II., 
 406. 
 
 I. 
 
 James I., liberty begins to revive in his reign, 38. His lofty no- 
 tions concerning regal authority, 38. Keeps his ground against 
 the restless spirit of the times, 405. 
 
 James II., how his dethronement was effected, 45, 46. Was in- 
 excusable in his conduct, 405. Received no assistance from his 
 numerous army, 412. 
 
 Jesuits, how expelled from Spain, 359. 
 
 Impeachment, public, what, and its effects, 81. The king's pardon
 
 488 INDEX TO THE WORK. 
 
 no bar to the prosecution of an impeachment, 83. Can it 
 prevent the execution of the judgment ? 83. Instances of minis- 
 ters and judges impeached by the commons, 82, 83, 315 317. 
 
 Imprisonment, the methods formerly used for liberating imprisoned 
 persons, 165. They were insufficient against the power of the 
 court, 166, 167. A new force given to them by Repetition of 
 right, 167. Habeas Corpus act, 167. 
 
 John, king, grants the great charter, 20. 
 
 Johnson, Dr. Samuel, his opinion concerning the office of the 
 courts of equity, examined, 121. 
 
 Judges, independence of, 69. Their office, in criminal causes, is 
 only to direct the jury, and afterwai'ds to pronounce the law, 154. 
 Cannot alter the mode of punishment, 159. Instances of judges 
 impeached, 315 317. See Courts. 
 
 Judicial power, in regard to criminal matters, the necessary cau- 
 tions in establishing such power, 135, et seq. Should not be 
 trusted, especially in a free state, to any too powerful persons or 
 bodies, 141. Alllusions to the French courts of law, 143. See 
 Trial. May be said in England to be in the hands of nobody, 
 161. Lodged in the people, 381. 
 
 Junius's Letters quoted, 154,314. 
 
 Jury, how they are to shape their verdict, 153. Must decide both 
 upon the fact and the criminality of it, 154. What rules must 
 be followed in their opinion, 155, 156. Judge Hale's remark- 
 able passage in that respect, 156. Usually pay a great regard 
 to the judge's direction, 162. The effect of their recommending 
 to mercy, 162. See Trial and Judicial Power. 
 
 Justice, impartiality of its administration in England, 326, 390. 
 See Law and Judicial Power. 
 
 K. 
 
 King, his prerogative by the constitution, 57, 62 64. The re- 
 strictions set by law upon the exercise of the same, 66, 68, 73. 
 He is not to interfei-e, nor his privy-council, in the decision of 
 causes either civil or criminal, 77. It is disputed whether he 
 can remit the prosecution of a sentence awarded in consequence 
 of an impeachment, 83. Not to be named in debates, 232. The 
 last instance of one using his negative voice, 351. See Crown. 
 
 L. 
 
 Laws. See Legislation. Laws of England, 93. Difficulty in 
 procuring just ones, 213. All who can influence the execution 
 of them, are to be strictly watched, 240. A very necessary 
 caution in framing them, 243. 
 
 Law, criminal, how strictly the letter of it is adhered to in England, 
 without any extension, 157, 400. Great mildness of it, 164. 
 See Punishment.
 
 INDEX TO THE WORK. 489 
 
 Legislative power, how formed in England, 49, et seq. Advan- 
 tages arising from its being divided, 192, et seq. Remarkable 
 constancy in its operations in England, 193. Not so in the 
 ancient commonwealths, 194. See Parliament. 
 
 Legislation, mode of, in commonwealths, 198. Inconveniency of 
 it, 199. The manner in which laws are framed in England, 201. 
 Advantages of the same, 203. See Propounding. Would it be 
 an advantage if laws were enacted by the people at large ? 208 
 220. See People. 
 
 Liberty, causes of English, 15 18. Its progress, 18, et seq. 
 Private liberty, 87. The word much misapplied or misunder- 
 stood, 208. A more accurate definition of the same, 2 1 1 . How 
 the provisions to secure it should be directed, 240, 241. Singular 
 law-doctrine in England concerning the liberty of the subject, 
 399, 400. 
 
 Livy, quoted, 217, 227, 283, 287, 289, 291, 300. 
 
 Lords, the house of, how constituted, 57. Not suffered by the 
 commons to frame, or even alter, a money-bill, 59, 74. Make 
 it a standing order to reject all money-bills, to which bills of 
 another nature have been tacked, 68, 342. Have not given up 
 their claim in regard to altering money-bills, 74. The great 
 pre-eminence allowed them in point of ceremony over the com- 
 mons, 1U5, 196. Can vote by proxy, 197. Unite in a common 
 cause with the people against the power of the crown, 16, 40, 
 246,314. Abridge their own personal privileges, 323. Their 
 impartiality in their judicial capacity, 324. Cannot be charged 
 with having abused their privilege 6*f trying their own members, 
 324. Defeat the attempts of the commons on the crown's pre- 
 rogative, 342. Their own attempts defeated by the commons, 
 343. A bill is framed to limit their number, 440. The great 
 importance of that bill generally overlooked, 445, 446. See 
 Parliament and Peers. 
 
 Lyttleton, lord, quoted, 270. 
 
 M. 
 
 Machiavel's History of the republic of Florence, quoted, 176. 
 
 Magna Charta, remarkable extensiveness and impartiality of the 
 provisions of, 293. 
 
 Marllorough, duke of, easily dismissed from his employments, 
 186, 354. 
 
 Martial courts, a remarkable dispute between one and a court of 
 law, 409. 
 
 Martial law must be universal, where the authority of the govern- 
 ment is supported by a standing army, 396. 
 
 Members of the house of commons, their personal privileges, 320, 
 
 321. Instances of some punished by their own house, 321, 
 
 322, 323. See Commons. 
 
 Military power, a cause of anxiety to those sovereigns whose
 
 490 INDEX TO THE WORK. 
 
 authority is supported by it, 396. Cannot in such case be 
 subjected to the civil power, 408. Not necessary to support 
 the power of the crown in England, 407. The surprising sub- 
 jection of it to the civil power in England, 407, 408. See 
 (\own. 
 
 Minister, equally interested with other subjects in maintaining the 
 laws concerning personal security, 246. A discarded one in 
 other countries, the cause of some anxiety or jealousy to the go- 
 vernment, 356. Not so in England, 356. 
 
 Monarchies, revolutions generally concluded in them by provisions 
 for the advantage of great men and leaders, not of the people, 
 the same as in commonwealths, 292, 346. The executive 
 power of the crown in all ancient or modern monarchies, want- 
 ing that peculiar stability of the English crown, 336. Not 
 secured otherwise than by standing armies, 337. The monarchs 
 are afraid of powerful subjects, 355. Cannot do without some 
 arbitrary means of asserting their authority, 372. Very jealous 
 of the liberty of the press, and, perhaps, are really obliged to be 
 so, 376. Extremely averse, out of fear for their own security, 
 to calling popular assemblies, 382. Respect of persons in the 
 administration of justice cannot be prevented in them, 392. 
 Anxious precautions taken in them in regard to the military power, 
 395. Their law-doctrine concerning the executive authority of the 
 government, 399. The military superior to the civil power, 407. 
 
 Money-bills. See Taxation. 
 
 Montesquieu, quoted, 251, 416. 
 
 More's Utopia quoted, 252. 
 
 o. 
 
 Obedience, passive, an absurd doctrine, 48. 
 
 Ostracism, an arbitrary unjust expedient, but, perhaps, necessary 
 
 in the republic of Athens, 372. 
 Oxensliern, chancellor, his words to his son, 462. 
 
 P. 
 
 Parliament, English, the constitution of, 49 61. How to be 
 convoked, 54, 75. Proceedings in Parliament not to be ques- 
 tioned in any other place or court, 85. The secret bent of that 
 assembly to forbear invading the prerogative of the crown, 350. 
 Cautious conduct of the three branches towards each other, 
 463, 464. See Commons arid Crown. 
 
 Parliaments, French, great weight of, 143. Difficult to be ma- 
 naged by the crown, 143. How Louis XV. dismissed that of 
 Paris, 357. Precautions taken by the next king in restoring it, 
 - 384." See France. 
 
 Parliamentary History of England, a superficial observation of its 
 authors, 294. 
 
 Pardon, the prerogative of, lodged in the king, 62. Cannot be
 
 INDEX TO THE WORK. 
 
 pleaded as a bar to an impeachment being tarried on, 83. Often 
 granted on the recommendation of a jury, 162. 
 
 Peers, how to be tried, 157. Have few real personal privileges 
 above the subject, 323, 324. See Lords. 
 
 People, how misled by favourites or demagogues, 175. How 
 influenced or deceived by the magistrates or great men in com- 
 monwealths, 216. Should act through representatives, 220. 
 Should entirely delegate the legislative authority to these, 223. 
 How, and in what circumstances only, the right of resistance 
 may be usefully exerted by them, 280. See Commonwealths 
 and England. May be said in England to possess both the 
 judicial and censorial powers, 381. The freedom they enjoy of 
 interfering in government matters, 388, 389. 
 
 Pope, Mr., quoted, 236. 
 
 Porcia Lex de tergo civium, 236. 
 
 Prtemunire, writ of, 169. 
 
 Prator, his office in Rome, 101. Assumes the office of a judge of 
 equity, 122. His provisions, 123. Their power very arbitrary, 
 129. When first restrained, 130. 
 
 Press, liberty of the, is a real censorial power lodged in the people, 
 250. Much more effectual and beneficial than the one esta- 
 blished in Rome, 25 1 . A licenser appointed upon the press by 
 the star-chamber, 253. By the long parliament, 253. By 
 Charles II. and James II., 253, 254. Finally established in the 
 year 1694, and how, 254. A definition of it, 254. Actions 
 respecting the same not to be decided without a jury, 254. How 
 extensive its use has become, 256. Great political advan- 
 tages arising from the same, 258. Is farther useful, combined 
 with the other rights of the people, 262. Such as the right of 
 flection, 265. How useful a support to the right of resistance, 
 279. Is not allowed in commonwealths, or in monarchies, 376. 
 Its being tolerated in England to so high a degree, depends on 
 the stability of the executive power of the crown, 378. The 
 real foundation on which it rests in England, 399. Error of 
 the author, at first, in this respect, 400. 
 
 Prisoner, how to be committed, 147. When once acquitted, can- 
 not be tried again for the same offence, 157. See Trial. 
 
 Privy council, its power abridged bv the same act which abolished 
 
 the star-chamber, 77. 
 
 Prorogation, its effects, 58. The term not to be afterwards short- 
 ened, 76. 
 
 Propounding, in legislation, the privilege of, reserved to the execu- 
 tive power in commonwealths, 198. Allotted in the English 
 constitution to the representatives of the people, 201. How the 
 same point was formerly settled in France, Sweden, Scotland, 
 and Ireland, 203, 204. Great advantage accruing to public 
 liberty from this right being lodged in the representatives of the 
 people, 204, 230. Its remarkable advantages for preserving the 
 English constitution, and instances of it, 426.
 
 INDEX TO THE WORK. 
 
 Punishments, the judge cannot alter the mode of, 160. Nor the 
 sheriff, 160. Do not extend beyond the simple deprivation of 
 life, 163. Their mildness in England, 329. Not so among the 
 Greeks and Romans, 330. Attention of the English legislature 
 in that respect, 334. 
 
 R. 
 
 Representatives, qualifications for being one, 52. Advantages that 
 accrue to the people from acting through representatives, 220, et 
 seq. More hurtful than beneficial when their interest is not in 
 reality united with that of the people, 222. The people should 
 entirely delegate the legislative authority to them, 229. The 
 sedate manner in which in England they debate and vote, 230. 
 Do not allow the speaker to have a vote, or the king's name to be 
 introduced in debates, 232. Are debarred from all executive 
 authority, 243. Capital advantages thence arising, 245, et seq. 
 See Commons and People. 
 
 Resistance, right of, admitted by the English laws, 269. Opinion 
 of judge Blackstone quoted, 274. Recognized even by the 
 courts of law, 277. Is in a great measure a useless right, unless 
 combined with the liberty of the press, 278. What circum- 
 stances are required for its being usefully exerted, 280. 
 
 Revenue, of the king, very trifling, without grants from the parlia- 
 ment, 66. 
 
 Revolutions have always been concluded in England in a manner 
 advantageous to public liberty, 292, 293. A series of instances, 
 294, &c. Not so in the Roman commonwealth, 283. A series 
 of instances during the whole time of its duration, 283 292. 
 The same disadvantage occurred in the Greek republics, 292. 
 And in the limited monarchies of Europe, such as Scotland, 
 Sweden, &c., 292. 
 
 Revolution of the year 1689, how accomplished and improved, 48, 
 296. 
 
 Re-unions of particular provinces to the crown, in France, 14. 
 
 Right, petition of, 41, 296. 
 
 Rome, wrong notions of liberty the patricians and senate gave to the 
 people, 208. The influence of senators and great men over the 
 people, and their artifices, -225. The people, and even the tri- 
 bunes, greatly over-awed by a dictator, 226. The people be- 
 trayed by those in whom they trusted, 235. The tribunes not 
 earnest in the defence of public liberty, 235. The senate, con- 
 suls, and dictators, possessed of an arbitrary power over the lives 
 of the citizens, 236. The censorial power only a piece of sena- 
 torial craft, 251. Revolutions constantly concluded in a manner 
 disadvantageous to public liberty, 283. The laws concerning the 
 liberty of the citizens were not strictly executed, 298. Remark- 
 able instance of insolence and cruelty of a magistrate, 299. The 
 rapacity of the men in power in regard to the allies and subjects
 
 INDEX TO THE WORK. 4Q3 
 
 of the republic, 302. Corruption of the judges, 303. Remark- 
 able changes in the formation of them, 304. A remarkable 
 passage of 'Fully in regard to the disorders that took place in the 
 republic, 306. A short sketch of their real cause, 307. Dangers 
 to which both its liberty and empire were exposed, 417. How 
 the final overthrow of the republic was operated, 420. The poli- 
 tical rights allotted. to the people, 422. 
 
 Rousseau quoted, 195, 208, 225, 251, 427. 
 
 Russian ambassador, the cause of his arrest, 328. 
 
 S. 
 
 Saxon government, abolished in England by the Norman conquest, 
 6. Note upon that disputed subject, 6, 7. 
 
 Scotland, the number of I'epresentatives it sends to parliament, 51. 
 The lords of the articles, what assembly, 204. The authority of 
 the crown commonly invaded by the nobles, 347. The bill 
 framed for settling the crown on the house of Hanover, 347. No 
 advantageous expedient to have trusted the nobility with the 
 command of a standing army, 397. 
 
 Secretary of state, case of an action brought against one, by a pri- 
 vate individual, 328. 
 
 Senate, Roman, how formed, 239. See Rome. Its conduct at the 
 expulsion of the kings, 283. See Revolutions. 
 
 Sevignc, madauie de, quoted, 456. 
 
 Smith, Dr. Adam, his opinion on liberty, and on the effects pro- 
 duced by a standing army, examined, 397. Farther observa- 
 tions on the same subject in general, 403. 
 
 Spain, how that monarchy was formed, 31. 
 
 Spelman, quoted, 6. 
 
 Star-chamber, court of, how constituted, 41. It crushed the li- 
 berty of the press, 253. Expressions of Sir Edward Coke con- 
 cerning it, 253. Was a kind of a court of equity in regard to 
 criminal matters, 402. By what means abolished, 429. 
 
 Statute de hceretico comburendo, for what reason repealed, 333. 
 That for allowing parliaments to meet of themselves, repealed. 
 351. 
 
 Sweden, an account of the revolutions that have taken place in its 
 government, and of the restraints at times put on the authority 
 of the crown, 346. The disadvantages of the body of the people 
 in the legislature, 424. An account of its government before 
 the last revolution, 441. 
 
 Swift, dean, quoted, 354. 
 
 T. 
 
 Tacitus quoted, 35, 475. 
 
 Taxation, right of, when first secured to the lords and commons, 
 28. Possessed in England by a single parliament, not by several
 
 INDEX TO THE \VO1JK. 
 
 assemblies as in France, 36, 37. Is rendered thereby a ir.ucli 
 more efficacious check upon the crown, 37. All taxes or money- 
 bills must originate in the house of commons, as well as the alte- 
 rations in such bills, 59. The great constitutional efficiency of 
 that right, 66, 70 The existence of the commons depends upon 
 the same, 73. The advantages of this right of the commons, 
 when combined with the right of propounding law-remedies, 201 
 205. How firmly it secures all the other rights of the people, 
 and the whole constitution, against the attempts of the crown, 
 425. Is the constitutional balance of the people against the 
 crown, 450. At the same time the only forcible one, 451, 453, 
 460. Rendered ineffectual when lodged in several distinct pro- 
 vincial assemblies, 36, 453, 454. How it might become so di- 
 vided in England, 457. 
 
 Temple, Sir William, quoted, 6. 
 
 Torture, attempted to be introduced in the reign of Henry VI., 
 158. Declared illegal by the judges, 159. 
 
 Treason, high, statutes concerning it, repealed, 37, 72. How trials 
 in cases of treason are to be conducted, 153. 
 
 Trialby jury revived in the reign of Henry II., 19. How to be 
 conducted, 155, et seq. Great advantages of this institution, 
 159 164. How strictly preserved in England, 308. Not so 
 in Normandy, Sweden, and Scotland, 309. 
 
 Trials, the manner in which prisoners are tried in foreign coun- 
 tries, 144, 145. 
 
 Tribunes, Roman, betrayed the cause of the people, 235. Their 
 interested public conduct, 289. See Rome. 
 
 Tucker, dean, 456. 
 
 Tudors, the great power of the princes of that house, 35, 71, 404. 
 
 V. 
 
 Verdict, how to be expressed, 154. A special one, what, 154. 
 
 W. 
 
 Walstein, duke of, caused to be slain by the emperor Ferdinand II., 
 355. 
 
 William the conqueror set aside the Saxon, and substituted the 
 feudal government, 7, 11, 12. Possessed an uncommonly great 
 authority, 12. 
 
 Writers, political, their ill-judged expressions and notions, 209. 
 Their unwise admiration of the censorial power in Rome, 252. 
 Have not penetrated into the real foundation of the science of 
 politics, 417. Have treated it as an occult kind of science, as 
 natural philosophy was considered in the time of Aristotle, 438. 
 Anecdote of one, 401. 
 
 Writs, their importance in the English courts of law, 111. Com- 
 pared to the Roman acfiones legis, 111. The difficulty in crea- 
 ting new writs, 115.
 
 495 
 
 INDEX 
 
 TO 
 
 THE NOTES OF THE EDITOK. 
 
 A. 
 
 Account of Viriatus, 263. Spartacus, 263. Piso, 305. Verres, 
 305. Draco ; his laws; his death, 331. Popilius; his wand, 
 358. Fabricius, 418. Cincinnatus, 418. Vatinius, 467. 
 
 of the Aureus, 111. Lit de Justice, 357. Ostracism, 
 
 372. The Letter de Cachet, 374. Tarpeian rock, 436. 
 
 of the Ephori, 224, 237. Lex Porcia de tergo civium, 
 
 236. Patres conscripti, 284. Nexi, 285. Comitia tributa, 
 289. Comitia auriata, 289. Comitia centuriata, 289. Lex 
 Sempronia, 301. Lex Calpurnia de repetundis, 303. Cen- 
 turia, 422. 
 
 Acts of Parliament of 1832, amending the representation of the 
 people in England and Wales, 50. 
 
 , amending the representation of the 
 people of Scotland, 51. 
 
 , amending the representation of the 
 people of Ireland, 51. 
 
 of 1800, being Act of Union with Ireland, 
 
 51. 
 
 of 1706, being Act of Union with Scotland, 
 
 57. 
 
 of 1696, enacting that persons convicted 
 
 of bribery or treating shall not sit in parliament, 56. 
 
 of 1830, increasing the number of the 
 
 judges from twelve to fifteen, 69.
 
 496 INDEX TO THE 
 
 Acts of Parliament of 42 Geo. 3. c. 90, under which king may 
 assemble parliament on fourteen days' notice in case of rebel- 
 lion or danger of invasion, 76. 
 
 of 1819, abolishing appeals of murder, wager 
 
 of battle &c., 78. 
 
 of 1798, making land tax perpetual, 79. 
 
 of 1825, by which malt tax imposed, 79. 
 
 of 1770, 1774, and 1828, denning mode of 
 
 striking committees to try election petitions, 86. 
 
 of 1725, 1732, and 1748, prohibiting arrests 
 
 under '21, 103, 119. 
 
 of 1779 and 1803, prohibiting arrests under 
 
 10/., 103. 
 
 of 1811 and 1817, prohibiting arrests under 
 
 15/., with exceptions, 104. 
 
 of 1827, prohibiting arrests under 20, with- 
 
 out any exception, 104. 
 
 of 1833, creating sheriffs of counties' courts ; 
 
 and relative to pleadings and other proceedings in courts of 
 law, 103, 107. 
 
 __ of 1813, creating vice-chancellor, 133. 
 
 - of 1825, greatly extending qualification of 
 
 jurors, 149. 
 
 - of 1792, called " Fox's Act," regarding 
 
 libels, 155. 
 
 of 1814, altering punishment of high trea- 
 
 son, 163, 333. 
 
 of 1822, improving trial by jury in criminal 
 
 cases in Scotland, 309. 
 
 of 1815, 1819, 1825, and 1830, introducing 
 
 and perfecting trial by jury in civil causes in Scotland, 310, 3 11. 
 of 10 Geo. III. c. 50, protecting members of 
 
 parliament from arrest, 320. 
 
 - of 1708, protecting ambassadors, &c. from 
 
 arrest, 329. 
 
 of 1707, 1715, and 1742, disqualifying cer- 
 
 tain placemen from sitting in House of Commons, 344. 
 
 of 1782, disqualifying all public contractors 
 
 from so sitting, 344. 
 
 of 1694, called " The Triennial Act," 350. 
 
 of 1715, called " The Septennial Act," 350. 
 
 of 1833, called " The Irish Church Tempo- 
 
 ralities Act," 363 365. 
 
 - of 1833, called " The Slavery Abolition Act," 
 
 365368. 
 
 of 1806, abolishing the slave trade, 868. 
 
 of 1795, called " Pitt's Acts," restraining 
 
 publications and public meetings, 378.
 
 NOTES OF THE LDITOR. 497 
 
 Acts of Parliament of 1819, called " The Six Acts," restrain- 
 ing publications, public meetings, &c. 378. 
 
 of 1833, called " The Irish Coercion Act," 
 
 379. 
 
 Table of 37, of last and present reign, 
 
 ameliorating criminal code, 469 473. 
 
 of 1833, rendering freeholds and copyholds 
 
 assets for payment of simple and contract debts, 474. 
 Ambassadors, &c. See Arrests. 
 
 America, United States of, remarks on republic of, 241. 
 Appeals of murder, wager of battle, &c., act of 1819, abolishing 
 
 them, 78. 
 
 Army, effective force of, in 1833, 79. 
 Arrangement of branch of royal revenue made in reign of Geo. 
 
 II., 66. 
 Arrest, &c., extent of freedom from, of members of parliament ; 
 
 act 10 Geo. 3. c. 50, and authorities cited, 320, 321. 
 Arrests, acts of 1725, 1732, and 1748, prohibiting them under 
 
 21., 103, 119. 
 
 , acts of 1779 and 1803, prohibiting them under 10A, 103. 
 , acts of 1811 and 1817, prohibiting them under 15/., 
 
 ivith exceptions, 104. 
 
 -, act of 1827, prohibiting them under 20/., without any 
 
 exception, 104. 
 
 -, act of 10 Geo. 3. c. 50, protecting members of parlia- 
 
 ment from, 320. 
 
 -, act of 1708, protecting ambassadors, &c. from, 329. 
 
 Circumstance that led to enactment, 329. 
 Aureus, account of Roman coin so called, 111. 
 Author's view of revolution, in England, of 1689, considered, 46. 
 , sentiments on arbitrary power and liberty, considered, 
 252. 
 
 arrival in this country, time of, 326, 393. 
 
 last corrections to edition of work, of 1784, 357. 
 
 first edition of work, published in 1775, 460. 
 reference to chance, and invocation of goddess of liberty, 
 
 reprobated, 476. 
 
 B. 
 
 Barons celebrated reply to king, 90. 
 
 puisne, of Exchequer, act of 1830, increasing them to 
 four, 97. 
 
 Beausobre and Lenfant, against right of resistance, 274. 
 
 Beveridge, bishop, against right of resistance, 273. 
 
 Bill in parliament, sometimes passes through the whole, or se- 
 veral, of its stages, in one day, 231. 
 
 . , several stages of; surprise, in passing it, 
 
 impossible, 231. 
 
 K K
 
 498 INDEX TO THK 
 
 Blachslone, Judge, on the omnipotence of parliament, 117. On 
 what would be the effect of liberty of the press in a despotic 
 government, 261. Quotation from, respecting right of resist- 
 ance, 276. 
 
 Boroughs, number of, disfranchised, and enfranchised, by Eng- 
 lish reform act, 50. 
 
 Bribery, act of 1696, enacting that persons convicted of, shall 
 not sit in parliament, 56. 
 
 C. 
 
 Calvin, John, quotation from, against right of resistance, 275. 
 Centuria, account of the, 422. 
 
 Cicero, quotations from, translated by editor, 199, 226, 229, 
 238, 302, 475. 
 
 , quotation from, translated by Guthrie, 229. 
 Cincinnatus, account of, 418. 
 
 Citizens and burgesses, when first summoned to parliament, 25. 
 Coke, Sir Edward, still the oracle of the common law, 94. 
 
 , on the omnipotence of parliament, 117. 
 
 , quotations from, translated by editor, 117, 154. 
 Comitia tributa, account of the, 289. 
 
 auriata, account of the, 289. 
 
 centuriata, account of the, 289. 
 
 Committees to try election petitions, acts of 1770, 1774, and 
 
 1828, defining mode of striking them, 86. 
 
 , grand, of religion, justice, trade, and grievances, ses- 
 sional orders for their appointment, negatived in 1833, 312. 
 Contractors, (public) act of 1782, disqualifying them from 
 
 sitting in House of Commons, 344. 
 Convocation of the clergy, now meets only pro forma; deeply 
 
 to be regretted, and why, 77. 
 Copyholds and freeholds, act of 1833, rendering them assets for 
 
 payment of simple and contract debts, 474. 
 Corsica, taken by England in 1794 ; evacuated, and again pos- 
 sessed by France, in 1796, 457. 
 
 County members, additional, under English reform act, 50. 
 Courts of Requests, or Conscience, described, 103. 
 
 of sheriffs of counties, act of 1833, creating them, 103, 
 
 107. 
 Criminal code, table of 37 acts, of last and present reign, 
 
 ameliorating, 469 473. 
 Custom of the Romans, explained from Pliny, 101. 
 
 D. 
 
 Dies fasti et nefasti, explanations of, 109.
 
 NOTES OF THE EDITOR. 499 
 
 Dissolution of parliament, effect of, sure to be favourable to the 
 
 people, 269. 
 , circumstances connected with the 
 
 most memorable instance of, fully detailed, 359 363. 
 Draco, account of ; his laws ; his death, 331. 
 Du Cange, quotations from, translated by editor, 9. 
 Duels, several times the consequence of personal reflections 
 
 and intemperate remarks, in parliament, 464. 
 
 E. 
 
 Edition of work which received author's last corrections, pub- 
 lished in 1784, 357. First edition published in 1775, 460. 
 
 Election committees, acts of 1770, 1774, and 1828, defining 
 mode of striking them, 86. 
 
 English reform act, of 1832; additional county members, 50. 
 Additional metropolitan members, 50. Disfranchisements and 
 enfranchisements, 50. Qualification of members for division, 
 or riding, of a county, 52. Qualification of county voters, 
 52. Qualification of city and borough voters, 53. Reduc- 
 tion of expense, by requirement of residence of town voters 
 within seven miles ; and limitation of polls to two days, and 
 division of polling places, in all cases, 56. 
 
 peers sit in House of Lords in own right, 57, 74, 197. 
 
 revolution of 1689, editor's opinion of, 46. 
 Ephori, account of the, 224. 237. 
 Explanation of " in albo" 122. 
 
 F. 
 
 Fabricius, account of, 418. 
 
 Fleta, why law-book so called, 94. 
 
 " Fox's Act," of 1792, regarding libels, particulars of, 155. 
 
 Freeholds and Copyholds, act of 1883, rendering them assets for 
 
 payment of simple and contract debts, 474. 
 French opinion of our law of libel, 254. 
 
 revolution of 1789, apparently anticipated by author, 2. 
 
 G. 
 
 Geneva, now a member of the Swiss Confederation, 200, 219. 
 George III.; author's anticipation, as to his length of reign, 
 
 fully realized ; Author s dedication. 
 Grand committees of religion, justice, trade, and grievances, 
 
 sessioiral orders for their appointment, negatived in 1833, 
 
 312.
 
 500 INDEX TO THE 
 
 H. 
 
 Hale, Judge, saying of, translated by editor, 24. 
 
 High Treason, act of 1814, altering punishment of, 163, 333. 
 
 Horsley, Bishop, referred to as authority against right of re- 
 sistance, 275. 
 
 House of Lords' claim, to alter money-bills, far from useless, 
 74. 
 
 I. 
 
 Impeachment, power of, when first exercised by House of Com- 
 mons, 33. 
 
 , king's power to pardon one condemned by, 83. 
 , not abated by dissolution of parliament, 83. 
 Inaccuracy, glaring, of some of the notes of a former editor, an 
 
 instance of, 76. 
 Ireland, Act of Union with, in 1800, referred to, 51. 
 
 , represented by four Lords Spiritual, and twenty-eight 
 Lords Temporal, of Ireland, in House of Peers, 57, 74, 197. 
 -, archbishops and bishops of, appointed by the king, 
 
 since the Union, 63. 
 
 -, before Union, 204, 459. 
 
 Irish Reform Act, of 1832 ; five additional representatives, 51. 
 Qualification of county voters, 53. Qualification of city and 
 borough voters, 55. Reduction of expense, by requirement 
 of residence of town voters within seven miles; and limitation 
 of polls to two days, and division of polling places, in all 
 cases, 56. 
 
 Church Temporalities Act, of 1833, full particulars of, 
 
 363365. 
 
 Coercion Act, of 1833, full particulars of, 379, 389. 
 
 J. 
 
 Judges, act of 1830, increasing their number from twelve to 
 fifteen, 69, 97, 169, 196. 
 
 , form of their appointment in former times, 69, 167. 
 
 Present form, 69. 
 
 Puisne, of Common Pleas, act of 1830, increasing 
 
 them to four, 96. The like of King's Bench, 97. 
 Jurors, act of 1825, greatly extending qualification of, 149, 165. 
 Jury, to try an alien, 151. 
 Jurymen, right of challenging them, in much more frequent use 
 
 of late, 88. Exceptions to, 150, 151. Meaning of tales, 151.
 
 NOTES OF THE EDITOR. 501 
 
 K. 
 
 King " can do no wrong," a maxim of law consistent and essen- 
 tial, 64. 
 
 , how compelled to assemble parliament annually, 75. 
 
 , act 42 Geo. 3, cap. 90, referred to, under which he may 
 
 assemble parliament on fourteen days' notice, in case of 
 rebellion or danger of invasion, 76. 
 -, power of, to pardon one condemned by impeachment, 83. 
 
 William 4, speeches from the throne of, relative to Reform, 
 
 on the 2'2d April, 21st June, 20th October, and 6th Decem- 
 ber, 1831, and 16th August, 1832, 360 363. 
 
 Knights of Shires, when first summoned to parliament, 25. 
 
 L. 
 
 Land tax, act of 1798, which made it perpetual, 79. 
 
 Leighton, archbishop, quotation from, against right of resis- 
 tance, 273. 
 
 Letter de cachet, account of, 374. 
 
 Lex Porcia de tergo civium, account of the, 236. 
 Sempronia, account of the, 301. 
 
 Calpurnia de repetundis, account of the, 303. 
 
 Libel, opinion of the French of our law of, 254. 
 
 , in action for, between individuals, defendant may justify, 
 256. 
 
 -, course generally pursued by juries, 256. 
 
 Libels, " Fox's act" of 1792, regarding them, particulars of, 155. 
 
 Lit de justice, account of, 357. 
 
 Littleton, the Right Hon. Mr. Secretary, speech against appoint- 
 ment of grand committees of religion, justice, trade, and 
 grievances, 13th February, 1833, 313. 
 
 Livy, quotations from, translated by editor, 92, 240, 299. 
 
 Baker, 287, 301. 
 
 Locke, quotations from, against right of resistance, 272, 276. 
 
 M. 
 
 Magna Charta, quotations from, translated by Ruffhead, 12, 22, 
 28, 96. 
 
 Malt tax, not now an annual tax ; act of 1825, by which im- 
 posed, 79. 
 
 Megrim of law, that " the king can do no wrong," consistent and 
 essential, 64. 
 
 Members of parliament, extent of their freedom from arrest, &c. : 
 act 10 Ceo. 3. c. 50, and authorities cited, 320, 321.
 
 502 INDEX TO THE 
 
 Members of parliament, names of those expelled since com- 
 mencement of present century, 323. 
 
 Metropolitan members, additional, under English reform act, 50. 
 
 Michaelis, quotation from, against right of resistance, 276. 
 
 Millar, professor, his remark, that " law is constantly gaining 
 ground upon equity," considered, 134. 
 
 Money-bills, House of Lords' claim to alter them, far from use- 
 less, 74. 
 
 N. 
 
 Navy, number of, including marines, in 1833, 78. 
 Nexi, account of the, 285. 
 Note on chapter 9, book I, 98. 
 , book II, 241. 
 
 17, 415. 
 
 - by editor, on concluding his task, 478. 
 
 Number of House of Commons unaltered by reform acts ; thir- 
 teen fewer members for England and Wales ; eight more for 
 Scotland; five more for Ireland, 51. 
 
 O. 
 
 Observation, dying, of William Wilberforce, relative to " The 
 
 Slavery Abolition act," 368. 
 Omnipotence of parliament, strikingly laid down by Coke and 
 
 Blackstone, 117. 
 Opinion of editor of author's sentiments on arbitrary power 
 
 and liberty, 252. 
 
 of the French, of our law of libel, 254. 
 
 Ostracism, account of, 372. 
 
 P. 
 
 Parliament, act referred to under which it may be assembled on 
 fourteen days' notice, in case of rebellion or danger of inva- 
 sion, 76. 
 
 , omnipotence of, strikingly laid down by Coke and 
 
 Blackstone, 117. 
 
 , dissolution of, circumstances connected with the 
 
 most memorable instance of, fully detailed, 359 363. 
 Parliaments, triennial, and even annual, early insisted upon, 75. 
 
 , act of 1694, enacting them, 350. 
 
 , septennial, act of 1715, enacting them, 350. 
 Pascal, quotation from, against right of resistance, 274. 
 Patres conscripti, account of the, 284.
 
 NOTES OF THE EDITOR. 503 
 
 Peers of England sit in House of Lords in own right, 57, 74, 
 197. 
 
 Scotland, sixteen sit as representatives, 57, 74, 197. 
 
 - Ireland, four lords spiritual, and twenty-eight lords 
 temporal, sit as representatives, 57, 74, 197. 
 
 Picture of progress of a popular statesman in England, several 
 references of, 184. 
 
 Piso, account of, 305. 
 
 "Pitt's acts" of 1795, restraining publications and public meet- 
 ings, referred to, 378, 389. 
 
 Placemen, acts of 1707, 1715, and 1742, disqualifying certain 
 of them from sitting in House of Commons, 344. 
 
 Plautus, quotations from, translated by editor, 111, 112. 
 
 Pleadings, and other proceedings, in courts of law, act of 1833, 
 relative to, 103, 107. 
 
 Pliny's explanation of a custom of the Romans, 101. 
 
 Popilius, account of; his wand, 358. 
 
 Power of House of Commons, to grant or withhold supplies, 
 considered, 172. To expel members, instances of its exer- 
 cise since commencement of present century, 323. 
 
 Prcemunire, this kind of prosecution now obsolete, 170. 
 
 Q- 
 
 Qualification for members of division, or riding, of a county, 
 under English reform act, 52. 
 
 of county voters, in England and Wales, 52. 
 
 , in Scotland and Ireland, 53. 
 
 of city and borough voters, in England and Wales, 
 
 53. 
 
 , in Scotland and Ire- 
 
 land, 55. 
 
 of jurors, act of 1825, greatly extending it, 149, 
 
 165. 
 Quesnel, quotation from, against right of resistance, 275. 
 
 R. 
 
 Reason for not giving translation of Latin quotation, 284, 291, 
 300. 
 
 Reformed Parliament, certain acts of. referred to, 363. Irish 
 Church Temporalities' Act, full particulars of, 363 365. 
 Slavery Abolition Act, full particulars of, 365368. Re- 
 ference to act of 1806, abolishing the slave-trade, as far as 
 this country was concerned, 368. 
 
 Reply, celebrated, of barons to king, 90.
 
 504 INDEX TO THE 
 
 Resistance, right of, very fully considered, 271 277. Autho- 
 rities against it, cited Locke, 272 ; Archbishop Leighton, 
 
 273 ; Bishop Beveridge, 273 ; Bishop Jeremy Taylor, 274 ; 
 Dr. Whitby, 274; Pascal, 274; Beausobre and Lenfant, 
 
 274 ; Quesnel, 275 ; John Calvin, 275. Authorities referred 
 to 10th Homily; Bishop Horsley; Robinson; Calvin; Scott, 
 275. Other authorities quoted Judge Blackstone, 276 ; 
 Locke, 276 ; Michaelis, 276. 
 
 Revolution in England, of 1689, editor's opinion of, 46. 
 in France, of 1789, apparently anticipated by au- 
 thor, 2. 
 
 in Sweden, of 1772, referred to, 338. 
 
 Right, of challenging jurymen, in much more frequent use of 
 late, 88. 
 
 of resistance ; see Resistance. 
 
 Robinson, referred to, as authority against right of resistance, 
 275. 
 
 Rochford, Earl of, understood to be alluded to. Author s Ad- 
 vertisement. 
 
 Royal assent, to Bills, now frequently given by commission, 60. 
 
 , form of, to public bill, private bill, bill granting 
 
 subsidies, 60. 
 
 , form of refusal of, 60, 463. 
 
 -, not refused to any bill since author wrote, 349. 
 
 Ruffhead's collection of statutes, translations from, 12, 22, 
 
 28, 96. 
 , interesting extracts from 
 
 preface to, 26, 27. 
 
 S. 
 
 Sallust, quotation from, translated by Murphy, 332. 
 
 Scotland, Act of Union with, in 1706, referred to, 57. 
 
 , represented by sixteen peers of Scotland in House 
 
 of Lords, 57, 74, 197. 
 
 , trial by jury in criminal cases in, act of 1822, im- 
 proving it, 309. 
 
 in civil causes in, act of 1815, first in- 
 
 troducing it ; acts of 1819 and 1825, improving it ; act of 
 1830, perfecting it, 310,311. 
 
 Scotch reform act of 1832 ; fifty- three representatives for Scot- 
 land, 51. Qualification of county voters, 53. Qualification 
 of city and borough voters, 55. Reduction of expense, by 
 requirement of residence of town voters within seven miles ; 
 and limitation of polls to two days, and division of polling 
 places, in all cases, 56. 
 
 Scott, referred to as authority against right of resistance, 275. 
 
 Seldens remark on courts of equity, 121.
 
 NOTES OF THE EDITOR. 505 
 
 Septennial parliaments, act of 1715, enacting them, 350. 
 
 Sheriffs of counties' courts, act of 1833, creating them, 103, 
 107. 
 
 " Six acts the," of 1819, restraining publications, public meet- 
 ings, &-c., referred to, 378, 389. 
 
 Slaver / abolition act of 1833, full particulars of, 365 368. 
 
 Slave-t ade, act of 1806, abolishing it as far as this country 
 was concerned, referred to, 368. 
 
 Spartacus, account of, 263. 
 
 Speaker of House of Commons, has casting vote, if numbers 
 equal ; and may speak and vote when house in committee, 
 232. 
 
 Special verdict, entry of, 154. 
 
 Speech of the Right Hon. Mr. Secretary Littleton, against ap- 
 pointment of grand committees of religion, justice, trade, and 
 grievances, 13th Feb. 1833, 313. 
 
 Speeches of members, not allowed to be taken down and pub- 
 lished, but practice connived at, 257. Publishers punishable 
 for false reports of speeches, 257. 
 
 from the throne, of King William IV., relative to re- 
 form, on the 22nd April, 21st June, 20th October, and 6th 
 December, 1831, and 16th August, 1832, 360363. 
 
 Spelman, quotation from, translated by editor, 6. 
 
 Stanley, the right hon. E. G. S., proposed to parliament the Sla- 
 very Abolition Bill, and the Irish Coercion and Irish Church 
 Temporalities' Bills, in the same session, 368. 
 
 Strangers excluded from House of Commons the moment their 
 presence is noticed, 257. 
 
 Summons to parliament, (first,) of knights of shires, 25. 
 
 of citizens and burgesses, 25. 
 
 ancient form of, to Lords, 26. 
 
 , to Commons, 20. 
 
 Supplies, power of House of Commons to grant or withhold 
 
 them, considered, 172. 
 Sweden, revolution in, of 1772, referred to, 338. 
 
 T. 
 
 Table of thirty-seven acts of last and present reign, ameliorating 
 
 criminal code, 469 473. 
 Tacitus, quotation from, translated by editor, 35. 
 
 - by Murphy, 475. 
 
 Tales (to complete number of jury), meaning of, 151. 
 Tarpeian rock, account of the, 436. 
 
 Taylor, Bishop Jeremy, quotation from, against right of resist- 
 ance, 274. 
 
 L I.
 
 506 INDEX TO THE 
 
 Translations by editor, of quotations from Cicero, 199, 226, 
 229, 238, 302, 475. 
 
 from Coke, 117, 150, 
 
 151, 154. 
 
 from Du Cange, 9. 
 
 from judge Hale, 24. 
 
 from Livy, 92, 240, 299. 
 
 ; from Plautus, 111, 112. 
 
 from Spelman, 6. 
 from Tacitus, 35. 
 
 , Miscellaneous, 26, 60, 69, 71, 91, 92, 
 
 94, 95, 99, 101, JOB, 113, 114, 118, 123, 124, 125, 166, 170, 
 183, 199, 208, 216, 218, 227, 272, 281, 282, 289, 330, 377, 
 393, 399, 427, 463. 
 
 by Guthrie, of quotation from Cicero, 229. 
 - Baker, of quotations from Livy, 287, 301. 
 
 Murphy, of quotation from Sail ust, 332. 
 
 Tacitus, 475. 
 
 from Ruff'head, of quotations from Magna 
 Charta, 12, 22, 28, 96. 
 
 Treason, high, act of 1814, altering punishment of, 163, 333. 
 Treating, act of 1696, enacting that persons convicted of, shall 
 
 not sit in parliament, 56. 
 
 Trial by Jury, institution of, considered, 164. Act of 1825, 
 greatly improving it, particulars of, 149. 
 
 , in criminal cases in Scotland, act of 1822, im- 
 proving it, 309. 
 
 -, in civil causes in Scotland, act of 1815, first in- 
 
 troducing it; acts of 1819 and 1825, improving it; act of 
 
 1830, perfecting it, 310, 311. 
 
 Triennial parliaments, act of 1694, enacting them, 350. 
 Triumvirate, second, of Rome, alluded to, 420. 
 
 U. 
 
 Union with Ireland, act of, in 1800, referred to, 51. 
 with Scotland, act of, in 1706, referred to, 57. 
 
 V. 
 
 Vatinius, account of, 467. 
 
 Venice, now united to Austria, 199. 
 
 Verres, account of, 305. 
 
 Vice- Chancellor, act of 18 13, creating office of, 133. 
 
 Viriatus, account of, 263.
 
 NOTES OF THE EDITOR. 507 
 
 w. 
 
 Wilberforce, William, reference to his exertions for the aboli- 
 tion of slavery ; death ; and dying observation, 368. 
 
 Wilkes, John, probably alluded to by author, 139. 
 
 W kitty. Dr., quotation from, against right of resistance, 274. 
 
 Work) whether first published in France or Holland, Authors 
 advertisement. Edition of, which received author's last cor- 
 rections, published in 1784, 357. First edition, published 
 in 1775, 460. 
 
 Writs, meanings of titles of, 114, 118, 151, 166, 170. 
 
 THE END. 
 
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 IB<>TSON AND FA1.MM:, PRINTERS, SA V(M -SI K tlT, SI HAND.
 
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 THE LIBRARY 
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