V-'^^^' -•*«'■ ■,.» Mi*' •• ;^ " '»' ,»'r- *■ '* '. 's . » ARISTOCEATIC GOVERNMENT. Ho i 1 ~) I c a i ARISTOCRATIC GOYEMIENT. /BY HENRY LORD BROUGHAM, F.R.S., MEMBER OP THE NATIONAL INSTITUTE OF FEANCE. LONDON: BELL AND DALDY, YORK STREET, COVENT GARDEN, AND 186, FLEET STREET. TO THE QUEEN. Madam, By the commands of the Useful Knowledge Society, incorporated by charter of yom* revered predecessor. King William IV., I lay at your Majesty's feet the Treatise upon Political Philosophy which they have published with the view of making the Science of Government more generally understood, and of cor- recting the errors which the violence of conflicting parties, or the zeal of rival theorists, have propagated in all ages and in all countries. In presuming to solicit Your Majesty's gracious attention to this work, it is fit that I should state how far the Society and how far the author alone are severally answerable for the opinions which it explains and supports. The Society only undertakes a general responsibility for the doctrines delivered in the Treatises published under its superintendence. A general coincidence of ^ DEDICATION. opinion alone is to be expected in a body so variously composed. That all its members are agreed in holding last by the principles of our constitution, in cherishing those sentiments wliich lead to the improvement as well as the preservation of our institutions, and in favouring whatever may promote the peace of the world, may safely be affirmed. The details connected witli those fundamental positions are to be regarded as the work and as the doctrine of the writer rather than of his colleagues. But there is one subject upon which they both equally concur without any shade of difference : — That Your Majesty may long reign in tranquillity, foreign and domestic, over a free, a loyal, and a happy people, is alike the prayer of the Society, and of, Madam, Your faithful and devoted Subject, BROUGHAM. CONTENTS. CHAPTER I. OF THE NATURE OF ARISTOCRACY IN GENERAL. Aristocracy defined — Errors on this subject— Roman and Athenian Governments Germs of Aristocracy may exist and give rise to it — Illustrations from Rome and Athens — Pure Aristocracies rare — Tendency of Aristocratic Government to become mixed ..•.,... . , Page 1 CHAPTER II. OF BALANCES AND CHECKS. Dogmatical denial of Checks— This founded on theory alone — Doctrine of Checks misconceived — Doctrine explained — Its foundation — Fallacy of the objectors ex- posed— Illustration of the doctrine from joint powers : Mutual veto : Factious majority — Illustrations from English constitution — Proceedings since 1832 — Illustration from balance of Parties in Parliament — Illustration fi'om Dynamics — Checks, proper or imperfect — Example of the proper Checks : Roman constitu- tion— Example of the imperfect Check : Venetian Constitution— Absolute monarchies — English and American constitutions — Senseless project of Peerage Reform ............ 5 CHAPTER III PROGRESS AND CHANGES OF A RISTOCR AC Y —OLIGARCHY. Tendency of Aristocratic and Democratic Coi stitutions to mix with others — Dif- ference in this respect of Despotism — Tendency greatest in Aristocracies — Early pupilage of the people — Their progress to emancipation — Best course for the Aristocracy — Illustration from colonial emancipation — Natural introduction of Oligarchy — Its natural progress to greater exclusiveness — Its natural tendency to dissolution — Examples from the Venetian, Genoese, Siennese, and Lucca Governments . . • . . . . . . . .17 CHAPTER IV. FOUNDATION OF ARISTOCRACf IN THE NATURE OF THINGS. — NATURAL ARISTOCRACY. Equality impossible — Attempts made t( insure it — Influence of independent circum- stances— Of -wealth — Reflex operation— Upstart superiority — Foundation of re- spect for hereditary distinctions — Refl ex feeling —Hereditary superiority improves men — Effects of improvement — Resp('Ct for rank — Natural — Essential to artificial Aristocracy — Illustrations from Rome, Sparta, Feudal Government, Modern Italy — Effect of Natural Aristocracy in destroying Oligarchy — Political pro- fession impossible — It must necessarily be a corrupt trade — Athenian State orators — Advantages and disadvantages of a Political profession . . 23 viii CONTENTS. CHAPTER V. OF PARTY. Origin of Party— Aristocracy most exposed to it— Venice the only exception- Justifiable party unions— Factious system— Undennines principle— Destroys con- fidence in Statesmen— Corrupts private morals— Unites sordid motives with pure —Produces self-deception— Destroys regard for truth— Promotes abuse of the Press — Gives scope to malignant feelings— Passage of Dante— Operation of Faction on inferior Partisans— Effects in paralysing the public Councils— In promoting treasonable proceedings— Defence of Party : Burke, Fox— Conclusion of this subject Page 34 CHAPTER VI. VICES AND VIRTUES OF THE ARISTOCRATIC POLITY. Defects of Aristocracy — No responsible Rulere — No inttueuce of Public Opinion — Comparison Mith other Governments — Interests in conflict with public duty — Illustrations from Roman Constitution ; Modern Aristocracies ; English and Frencli Constitutions — Legislation influenced by Aristocratic interests — Similar Evils in Democracy — Evils of Hereditary Privileges — Tendency to make bad Rulers — Comparison of Aristocracy and Democracy — Corruption of Morals- Virtue of French Republicans— Galling yoke of Aristocracy — Merits of Aris- tocracy ; firmness of purpose — Resistance to change— House of Lords — Contrast of Democracy — Republican attempts to resist the Natural Ai'istocracy — Aristo- cracies pacific — Exceptions, Venice and Rome — Encouragement of Genius — Comparison with Democracy and Monarchy — Spirit of personal honour — Con- trast of Democracy — F. Paul's opinion —Aristocratic body aids the civil Magis- trate— Error committed in our Colonies . . . . . .48 CHAPTER YII. OF THE FEUDAL ARISTOCRACY. Individual influence in Aristocracies — Partial delegation of supreme power — Feudal and Civic Nobility in Italy — Polish Aristocracy — Operation of Feudal Aristo- cracy on Government — Illustration of Feudal Aristocracy from English History — Monkish Historians— William of Malniesburj- — William of Newbury — Matthew Paris — Roger Hoveden — Henry of Huntingdon . .. . .. .63 CHAPTER VIII MIXED ARISTOCRACIES — POLAND. Tendency of Aristocracy towards mixed Government— May be really pure when api>arently mixed— Examples : Venice, Genoa, Lucca, Sau Marino— Polish Con- stitution—Ancient History— Origin of factious spirit— Extinction of all jealousy of Foreign influence— Patriotism of the Czartory skis— Conduct of neighbouring Powers— The Partition— Nobles strictly an Aristocracy— Their Privileges- Palatines ; Castellans; Staiosts— Elective Crown— Foreign interference— Diet of Election — Royal Prerogative— Change in 1773— Senate— Its Constitution and functions— Chamber of Nuncios -Functions of the Diet— Absurdities in its Constitution- Propliylactiopowerand Vis Medicatrix in Governments— Miti- gating devices in the Polish Constitution— Administration of justice— Defect in the English similar to one in the Polish Government— Military System- Character and habits of the Nobles— Prince Czartoryski* . . . .71 CONTENTS. ix CHAPTER IX. MIXED AEISTOCRACIES — HUNGARY. Lombard Conquest— Magyars— Arpad Family— Feudal circumstances— Nobility — Cardinal and Non- Cardinal privileges— Magnates— Bulla Aurea— Titled Nobles— Diet— ilepresentation.; Proxies ; Votes.— Delegation— Diet's functions — Taxes— Cassa Domestica and Militaris— Count Szechinij — Local County Ad- ministration—Congregationes Generales — Municipal Government, Kozsecj ; Can- didatio— Village Government— Powers of the Crown— Sale of Titles— Peasantry — Urbarium of Mai-ia Theresa — Lords' power ; Robot — Lords' Courts ; reforms in these— New Urbarium ; Prince Metternich's reforms— Military System ; Insurrectionary Army— Frontier Provinces— Prejudices of Hungarians in favou'r of their Constitution— Conclusion of the subject .... Page 86 CHAPTER X. CONSTITUTION OF ROME. Importance ofthe subject— Its great difficulty — Ancient historians— Modern writers — Predecessors of Niebuhr — Niebuhr and his school — Scantiness of materials — haracter of Niebuhr's writings — Early history entirely fabulous— Illustrations — Early divisions of the people — Early Constitution — The Tribes — Patricians — Plebeians— Patrons— Clients — Comitia Curiata — Niebuhr's doctrine examined — Equites — Reforms of Servius — Centuries and Comitia Centuriata— Legislation of Servius — Comparison with Solon's — Tarquin the Proud — His tyranny — His expulsion —Foundation of the Aristocratic Republic — Fabulous history — Com- parison of the Roman Revolution with the French and English . . 98 CHAPTER XI. CONSTITUTION OF ROME — {Continued.) Patrician power — 1 . Patrons and Clients— Feudal resemblance — iErarii — Error of authors — Clients in Sparta, Crete, Thessaly, and Attica — 2. Monopoly of Offices — Senate— Conflicting accounts —Dionysius and Livy — Errors of authors — Censors — Choice of Senate— Practical Checks to Censorial power — Senate's functions — Variations in its power — Patres et Conscripti — Senate's influence — Dictators — Consuls — Praetors — Patrician oppressions — Public lands — Agrarian laws — Spurius Cassius — Licinian Rogations — Patrician creditors — Tribunes chosen — Their powers — Progress of popular power — Decline of Comitia Curiata — Rise of Tributa — Course of legislation — Double legislation — Anomalies — Solution of the paradox — Senatus Consulta and Plebiscita — Checks to the Tri- bunes—Superstitious rites — Laws of the auspices —Senate's errors — Democracy established — Practical defects in the Government — Decemvu's. . .119 CHAPTER XII. CONSTITUTION OF ROME. — {Continued.) Government carried on by laws and legislative decrees — Consuls — Praetors — ^diles, Plebeian and Curule — Quaestors, Civil and Military — Choice of Magistrates — Controversy de Binis Comitiis— Dictator — Progress of Popular power — Interrex X CONTENTS. —Consular functions— Provincial Pro-Prsetors and Pro-Consuls— Vigour of the Government-Religious polity- Pontiffs— Rex Sacrorum-College of Augurs— Haruspices— Sibylline Decemvirs -Singular facts— Judicial duties of Magis- trates—Cornelian laws— Judicial system— Judices—Centumviri—Qusesitores- Jus Quu'stionis, or M^^rum I mperium—Divinatio- Special judicial laws— Abuses from theiice-Analogy of Parliamentary Privilege— Impeachment— Cognitiones extraordiuaria — Examples "^S^ ^^^ CHAPTER XIII. REFLECTIONS ON THE ROMAN CONSTITUTION. Progress of Democracy— Canuleius— Address of the Patricians— Distinction of the Orders obliterated— New Aristocratic distinctions— New Plebeian body ; their baseness— Operation of Party— Plebeians at different periods— Virtues of the old Plebeians ; contrast of the new— Savage character ; warlike habits — Mas- sacres of Marius— Cicero— Julius Csesar- Corruption of the People— Canvassing; Treating ; Bribery — Sale of Votes ; Divisores ; Ambitus ; Sodalitium— Bribery Laws— Unpaid Magistracy— Popular patronage and corruption— Peculatus ; Repetundce —Popular corruption — Factions ; Civil War— Overthrow of the Com- monwealth—Conduct of the Aristocracy — Aristocracy and Princes — Error of the Patricians — American War ; Irish Independence — Roman Parties — Conduct of the People— Roman Yeomanry — Moderate use of power — Natural Aristocracy — Orders new moulded — West Indian Society — Aristocracy of middle Classes — Power useless to an uneducated People— Checks oh the People — Checks in gene- ral— Delay and Notice ; English proceedings — Factious men at Rome uncon- trolled—Catiline's conspiracy— Cicero's conduct — Middleton's error . 155 CHAPTER XIV. GOVERNMENTS OF GREECE — SPAKTA. Greek Authorities— False Chronology — Ages of the Historians — Early History — Constitution of Crete — Perioeci; Clerotes — Pure Aristocracy established — Resist- ance— Federal Government established — C'onstitution of Sparta derived fi-om Crete — Opinions of Polybius and others — Perioeci — Helots — Lycurgus — General Remarks — Authors — Classes of the People — Proofs of this Theory — Hypomeio- nes ; Homoioi ; Mothaces — Tribes ; Phylse ; Oba — Castes — Morse — Errors of Authors — Kings or Archagetse — Rules of Succession — Senate — Ecclesise — Mode of Voting — Harmosynse ; Homophy laces ; Harmosta; ; Hippagretse . . 1 74 CHAPTER XV. GOVERNMENTS OF GREECE — SPARTA — (Continued.) Object of the Spartan system— Its operation traced — Stages of Human Life as subject to it — Marriage ; procreation ; infancy ; boyhood ; paidonomus ; full age — Equality of Fortune attempted— Slaves ; their Classes ; Ti-eatment — Ephori ; their Power — Resemblance to Tribunes— Opinions of authors reconciled — Epho- ral Usurpation— Artificial Aristocracy — Natural Aristocracy— Controversy on Classification ; Opinions of Authoi's — Contradictory Usages — Unintelli o-ible Statements— Paradoxes — Duration of Lycurgus's Polity — Party Process and Changes— Agis; Lysander; Cleomenes —Spartans overpowered, join the Achsean League— Distinction of Orders ........ i87 CONTENTS. Xi CHAPTER XVI. GOVERNMENTS OF GREECE — ATHENS. Authors— Early History— Cecrops ; Theseus— Threefold Division of the People- Ancient Officers — Panathensea.— Kings — Archons — Eupatridse — Polemarch ; Eponymus; Basileus; Thesmothetae — Classes ; Pedrsei; Diacrii ; Paralii— Anarchy— Draco— Solon— En-ors respecting his Legislation— Solon's Reforms ; Archons ; CoUeges ; Paredri- Courts of Justice— Areopagus— Heliastfe-Inferior Magistrates— Pure Democracy— Classes of the People -Population— Slaves- Effects of Slavery; Xenophon; Plato; Diogenes— Phylse ; Phratrise; Genea; Trityes ; Demi— The Ecclesia— Senate— Elections ; Scrutiny— Prytanes ; Epis- tata— Euthynse ; Logistsc— Voting ; Ballot— Areopagus— Its Powers ; its Com- position—Logistee ; Euthynae-Mars Hill; St. Paul— Helisea-American Court -Ephetse Page 204 CHAPTER XVII. GOVERNMENTS OF GREECE — ATHENS — {Continued). Other Checks besides the Areopagus-State and Public Orators-Payment of Functionaries- Rules as to Alterations of the Law— Nomothetes-Syndics- Direct Repeal required— Impeachment for illegal Legislation— Quorum— Pro- hibition of Repeal— Power of Adjournment— Variety of Bodies— Appeal, and reconsideration— Ostracism— General feeling against these- Orators; their in- fluences—Advocates and Professional Orators— Legislative and Judicial Func- tions combined-Corruption of Statesmen— Demosthenes— Whigs in Charles II.'s reign— Demades— Corruption, faction, and fickleness of the People— Turbulence of Assemblies-Radical vices of the System— Advantages derived from the system 224 CHAPTER XVIII. GOVERNMENTS OF GREECE — ATHENS — {Concluded.) OTHER STATES. I'artiesat Athens-Dalesmen, Mountaineers, Coastmen, and Trimmers— Usurpation of the Pisistratidse— Their downfall— Pisistratus- Clisthenes—Miltiades— Popu- lar ingratitude— Fables on Marathon— Democratic reform— Aristides— Barbarous popular excesses— Themistocles— His maltreatment — Athenian greatness — Pericles— Alcibiades— Thirty Tyrants — Faction — Rebellion— Socrates — Other States— Bceotia—iEtolia—Corcyra—Achffia— Foreign appeals . . .241 CHAPTER XIX. ITALIAN GOVERNMENTS— MUNICIPAL CONSTITUTIONS AND ARISTOCRACY. Feudal plan monarchical— Rise of Aristocracy— Civic Nobility— Otho I.— General form of Government— Consuls— Credenza-Senate— Parliament— Wars of the Cities -Pavia and Milan— War of the Towns— Treaty of Constance • 250 xLi CONTENTS. CHAPTER XX. GOVERNMENT OF VENICE. Origin of VeuicH;— Insular Federacy— Anarchy— Doge created— Venice founded— Couquests— Parties— Doge's power restricted— Pregadi—Aristocracy founded— Grand Council- Council of Ten— Inquisitors— Spies— Lion's Mouth— Committee of Public Safety Page 260 CHAPTER XXI. GOVERNMENT OF VENICE — (Continued.) Uogy Complicated Election — Two objects kept in view — Neither attained — Examination of the process — First object to prevent factioh — Second object to prevent corruption — Jealous nature of Aristocracy — Limited Power of the Doge Ducal Oath — Officers to watch and punish the Doge — Avogadors — Doge's prerogative — Senate or Pregadi — CoUegio — Judicial power — Quarantia — Offices filled by Commoners — Procurators of St. Mark — Savii — Provincial ofl&ces— Government of Candia . . . • ► . • 269 CHAPTER XXII. GOVERNMENT OF VENICE— (Concluded.) Great vigonr of the Government— Comparison of dominions with those of England — With those of Rome— Venetian Tyranny — Examples : Carrara; Cannagnola; Foscari — Firmness and Vigour — Military policy — Equalizing laws— Merits of the system — Provincial Government— Oligarchy substantially established — Comparison with English Government — Scottish parliament — Meanness and Pride of Venetian Nobles — Improvements in modern times . .. . 278 CHAPTER XXIII. ITALIAN GOVERNMENTS — VENETIAN TERRA FIRMA. Terra Firma — Feudal Nobility — Municipal Government in their hands originally — Podestas — Factions — Montecchi and Bonifazii— Adelardi and Salinguerra — Vivario and Vicenza families— Rise of the Friars — Their fanatical preaching and influence — Their usurpation — John of Vicenza — Jordan of Padua — Ezzelino (III Romano — Ilis prodigious tyranny — Despicable Submission of the People — His destruction — Submissions of the Towns to others — Levity of Democratic Councils of Padua — Corrected by the Aristocracy — Municipal Governments — Anziani— Gastaldioni — Cane della Scala— John Galeaz Visconti — Democracy of Verona and Vicenza — Submission of the People to tyranny— War of Parties in Italy —Hired troops— Condottieri —Military operations— Surrender of rights by the people to Ciiiefs— Effects of Aristocracy, Faction, Tyranny, on the cha- racter of the People Letters and the Arts 295 CONTENTS. ^••• CHAPTER XXIV. GOVERNMENT OF GENOA. Early History— Pisan Alliances and Conquests— Constitution of 1096r-Aristocracy —Parties of the Nobles— Podesta— Turbulence of the Factions— Constant Re- volutions—Companies of Arts — Credenza — Oligarchy established Abate Capitano del Popolo— W. Boccanegro's Usurpation— Genoese Fickleness and Factions— Party movements and civil conflicts— Viscontis called in— Perpetual Revolutions— New Nobility; their Power; their Factions— Conflict with the old — Revolutions— French Conquests — Andrew Doria— Spanish Conquest— Doria's noble Conduct and Reforms— Final Aristocratic Constitution— Attempts to extinguish Party— Alberghi— New Factions— Councils—Doge— Syndics- Inquisitors — Judicial Administration— Galling yoke of the Aristocracy Folly of the new Nobles and Plebeians— Oligarchical periods— Comparison of Genoese and Venetian GoTemments— Oligarchy of Genoese settlements . Page 310 CHAPTER XXV. ITALIAN GOVERNMENTS — MILAN. Consuls— Podestas— Credenza— Patricians— Plebeians— Struggles of the Orders — Cavalry— Condottieri— Foreign Captain-General— Financial Dictatorship- Companies ; Credenzas ; Molta— Councils— Defects of History in Political Matters— Signor del Popolo— Martino della Torre— Visconti completes his usur- pation—Unprincipled Conduct of both Patricians and Plebeians— Unfitness of the Lombards for Self-Govemment— Conflict of Factions— Succession of Revo- lutions—Visconti Family— Vain attempt to erect Republic— Francis Sforza— His Victories, and elevation by the Mob— Fickleness and baseness of the People at Milan and Placentia— Charles V. obtains the Sovereignty after the Sforzas 328 CHAPTER XXVI. GOVERNMENT OF FLORENCE. Florence joins the League late— Early Constitution— Consuls ; Quarters; Senate —Burgher Aristocracy— At first mixed, then pure— Podesta established— Ex- pelled, and new Government established— Old Constitution restored— New Con- stitution after Manfred's defeat— Two Councils— Party Government within the Government— Parallel of Jacobin Club— New Constitution— Its Anomalies and Absurdities— Factious Turbulence— Interferes with Justice and Police— Ordin- ances of Justice— Monstrous Provisions— Popular Aristocracy ; Popolani Grossi — Bianchi and Neri— Absurdities of Party— New mode of electing the Seignory —Burgher Oligarchy— Duke of Athens— Progress of Tyranny— Changes in the Constitution— New Party divisions ; Natural Aristocracy— Albrizzi and Ricci —Factious Violence— Ciompi ; Mob Government— Triumph of the Aristocratic Polity— Influence of Free Institutions— Of Democratic Government— Grandeur of Florence— Feudal and Burgher Economy 341 xiv CONTENTS. CHAPTER XXVII. LESSER ITALIAN GOVERNMENTS — PISA — BOLOGNA — SIENNA — LUCCA — SAN MARINO. Want of Information respecting Pisa. Bologna.— Early Charter and Government— Early regularity of the Constitution —Consuls; Councils; Podesta; Public Orators— Party Feuds. Sienna.— Aristocracy never entirely extinguished— Consuls ; Podesta ; Council —Oligarchy established ; . steps of the transition— Intrigues of the Oligarchs with Foreign Powers— Oligarchs overthrown— Burgher Aristocracy and Oligar- chy—Government falls into the hands of the lowest Class— Surrender to Visconti —Factious Turbulence and Revolutions— Petrucci's Power— Five Orders recog- nised— Duke of Calabria— Mob Oligarchy— Revolution and New Government — Dictatorship, and Destruction of this Constitution — Government of Spain and France alternately — Union with Tuscany — Real duration of Siennese Oligarchy. Lucca.— Revolutions deserving of attention— Early Government and Parties — Castruccio Castracani's Services and Usurpation — Good Conduct of the Lucchese — Anziani ; Gonfaloniere ; College ; Great Council — Practical Oligarchy — Paul Giunigi— His great Merit— Cruel ate— Republic restored— Perfidy and Con- quest of the Medici— Martinian Law— Oligarchy finally established— Its per- manence. Sax Marino.— Antiquity of its Government — Extent and Population — Constitu- tion ; Anziani ; Senate ; Gonfaloniere ; Capitani — Judicial Authority Page 355 CHAPTER XXVIII. SWISS ARISTOCRACIES. Division of the Subject: — l. Lucern — Feudal History — Early Constitution — Aristocracy established — Sovereign Council — Senate — Avoyers — Self-Election — Aristocracy popular — Consequences in French invasion — Act of Mediation, 1803 — New Constitution — Policy of Napoleon — Constitution of 1814. 2. Zurich — Early Aristocracy — Government more exclusive — Council — Senate — Constitution of 1803— of 1814. 3. Bern — Early Constitution — Aristocracy introduced — Great Council — Senate — Seizeniers— Avoyers— Constitution of 1803— of 1816 — Self-Election — Oligarchy. 4. Geneva — Early History — Mixed Aristocracy — Parties— Great Coimcil — Senate — Revolution of 1 782 — Restoration of the old Government — Constitution of 1814 — Importance of Geneva . ' . 369 POLITICAL PHILOSOPHY, PART II. CHAPTER I. OF THE NATURE OF ARISTOCRACY IN GENERAL. Aristocracy defined — Errors on this subject — Roman and Athenian Governments — Genns of Aristocracy may exist and give rise to it — Illustrations from Rome and Athens — Pure Aristocracies rare — Tendency of Aristocratic Government to become mixed. Where the supreme power in any state is in the hands of a portion of the community, and that portion is so constituted that the rest of the people cannot gain admittance, or can only gain admittance with the consent of the select body, the government, as we have seen (Part L, Chap. II.), is an Aristocracy ; where the people at large exercise the supreme power it is a Democracy. Nor does it make any difference in these forms of government, that the ruling body exercises its power by delegation to indi- viduals or to smaller bodies. Thus a government would be Aristocratic in which the select body elected a chief to whom a portion, or even the whole, of its power should be intrusted : provided he held his appointment during the pleasure of his electors, or during some definite but short period of time, it would not be a Monarchy. So a government would be Demo- cratic in which the bulk of the people appointed a chief magis- trate with full powers, or a council with full powers : provided those powers were only exercised during the pleasure of the electors, or during some definite but short period of time, it would neither be a Monarchy in the one case, nor an Aristocracy in the other. If the people had the selection of the governing body among the privileged class, but were confined to that class in their choice, and could not themselves exercise any power, the government would still be Aristocratic, unless the privileged class were so numerous and contained persons so insignificant as PART II. B 2 OF THE NATURE OF ARISTOCRACY IN GENERAL. CH. I to be mere instruments in tlie hands of the electors ; in which case the government would be substantially Democratic, and could not fail speedily to become purely such by the abrogation of all exclusive privileges. The essence of an Aristocracy is the existence of a privileged class which engrosses the supreme power, and has sufficient force to resist the changes that any intermixture of Monarchial or Democratical institutions tend to introduce in favour of monarchy or of democracy respectively. There have been but few instances of a pure aristocracy or of a pure democracy, and governments have frequently been con- sidered as aristocratic merely because there was lodged a great power in one class, or democratic because the citizens at large had much authority. Nor has it been rare to find reasoners misled by a name, and confounding the distribution of power accordino" to certain rules with its distribution according to classes. Thus nothing can be more inaccurate than to consider the ear- liest Roman and Athenian governments as aristocracies merely because a considerable portion of the people in each were ex- cluded from power. In the former, after the expulsion of the kings, the powers of government are represented as vested ex- clusively in the families of rank, the nobles or patricians ; in the latter the class of citizens alone are said to have governed the state ; and in both it is inferred that the body of the people, the inhabitants at large, were excluded from all direct authority. But it must be remembered that the privileged families in Kome were the whole free people of whom the founders of the city consisted, or the descendants of those freemen ; and the com- moners or plebeia,ns were either liberated slaves or foreigners who had settled in the state. Consequently the governing body was the community at large, subject to certain exceptions, and could no more be deemed a separate order than Protestants in Ireland, before the abrogation of the penal laws, could be coiTectly regarded as a separate order and called an aristocracy as contra- distinguished from the Catholics, or than British-bom subjects at this day can be deemed a separate order from aliens and forming an aristocracy in the government. In fact, during the reign of the first kings and imtil the time of Ancus Martins there were no commoners or plebeians at all, the people consisting wholly of the patricians, or free and freely descended persons, and their clients, retainers, or dependents ; and though these CH. I. COISSTITUTIONS OF ATHENS AND ROME. 3 dependents had no more political functions than the slaves, they formed like them parts of the patron's or master's family ; so that the power shared by the people with the king was sub- stantially vested in the whole body. Thus, too, the whole of the Athenian free people, not being aliens, formed the governino- body : foreigners and slaves were disqualified ; but their dis- qualification cannot be regarded as constituting an aristocracy in the free native Athenians. Indeed the observation applies still more strongly to Athens than to Rome ; for it is understood that the free Athenian people, in whom the government resided, amounted to upwards of eighty thousand, and the slaves and strangers to between three and four hundred thousand, of whom all but about forty thousand were in slavery. No classification can rank this constitution Avith aristocracies, that would not make the government of the United States of America an aristocracy in respect of the slave pojDulation. But although it would be a great abuse of language to consider these governments as aristocratic, yet they plainly contained the germs of aristocracy ; the elements existed from the beginning which might give birth to aristocratic government, because, if the exclusive privileges continued to be vested in the smaller body, and the numbers of the persons excluded came to be greatly increased, it is clear that, whatever might have been the original state of the select body, and though it might at first have constituted the whole nation, it would become an hereditary aristocracy when surrounded by a numerous body of disqualified people. This happened at Rome ; at Athens it cannot with any correctness be said to have taken place. At Rome the patricians formed a distinct and privileged class, far from numerous, and surrounded by a whole nation : at Athens the governing body continued to be composed of the whole free people not being aliens ; and the number of aliens and slaves constituting the rest of the state did not materially increase. But although the Ro- man aristocracy grew out of the exclusive privileges possessed by the original free citizens and their descendants, it is erroneous to conceive that the government was at any time a pure aristo- cracy. Before the republic it was an aristocratic monarchy of the elective kind ; afterwards at all times before the empire it was an aristocratic republic, in which the two orders of patricians and plebeians, nobles and commoners, had at different periods different b2 4 OF THE NATURE OF ARISTOCRACY IN GENERAL. CH. I. proportions of power and influence, but in which there was at all times a mixture of the democratic with the aristocratic principle. In like manner, although the Athenian government never con- tained anything like the same admixture of aristocracy, yet there were privileges in practice enjoyed by those whose descent was distinguished. The Enpatridce, or well born, were eligible to offices from which freemen whose ancestors had been slaves or foreio-ners were excluded for several ages. Therefore, inde- pendent of the weight and influence which, even in the purest democracy, are possessed by persons of respectable station and descent, there were distinctions made in their favour, and recog- nised by the law, or, which is the same thing, in the practice and by the customs of the commonwealth. In so far there must be allowed to have been an aristocratic influence in the consti- tution. In Venice and in some of the smaller states of modern Italy are found instances of pure aristocracy ; in the United States of America we find the only instance of a permanently pure democracy. In the former the whole government was in the hands of a comparatively small privileged class ; in the latter the whole people partake equally in the powers of government, and may by law equally exercise all its functions. But these are the only modern instances of the aristocratic and the demo- cratic principle being found pure for any considerable time, as Sparta is the only ancient example of a lasting aristocracy. The tendency of each is to ally itself more or less with the other, or with the monarchial principle, or with both. This tendency leads us to consider the nature of mixed government, and espe- cially of the checks and balances in which it consists. Without forming distinct ideas upon this important subject we cannot advantageously examine the nature, the effects, and the tendencies either of aristocratic or of popular government, and the inquiry is equally essential with a view to its bearing upon the subject of mixed or limited monarchy. CH. II. OF BALANCES AND CHECKS. CHAPTER II. OF BALANCES AND CHECKS. Dogmatical denial of Checks — This founded on theory alone — Doctrine of Checks misconceived — Doctrine explained — Its foundation — Fallacy of the objectors ex- posed— Illustration of the doctrine from joint Powers : Mutual veto : Factitious majority — Illustrations from English constitution — Proceedings since 1832 — Illustration from balance of Parties in Parliament— Illustration from Dynamics — Checks, proper or imperfect — Example of the proper Check : Eoman constitu- tion— Example of the imperfect Check : Venetian constitution — Absolute monarchies — English and American constitutions — Senseless project of Peerage Reform. Writers on the mixed constitution of England had formerly accustomed themselves to describe its component parts as the accurately poised and balanced portions or works of a machine, and to extol its structure as if this system of checks were in practice perfect, working according to the theory not only with- out any stoppages or derangement, but without any retardation from friction or resistance. This refined and somewhat exag- gerated praise gave rise to objectors who impugned the doctrine itself, as well as the extreme to which it had been pushed, and at last came to deny that such checks and balances could ever exist at all. The reasoners to whom we refer, and Mr. Bentham was the chief, held all notion of a balance to be absurd ; they treated it as a ridiculous fancy ; they maintained, with little argu- ment, but much fluency of dogmatical assertion, and, after the manner of dogmatists, with no small portion of contempt for then- adversaries, that no such ecj^uipoise can ever exist ; they considered it as self-evident that, if two powers are found in a constitution with different and adverse interests, one must defeat and overturn the other ; they denied that both could co-exist and act ; they treated the doctrine somewhat as theologians have been wont to treat the Manichean scheme of two principles ; contending that if the two antagonist forces were equal they must destroy each other, and the whole movement of the machine be stopped ; that, if they were unequal, the greater must prevail, and prevent the lesser from at all influencing the direction or the rate of the motion. 6 OF BALANCES AND CHECKS. CH. IL It seems not a little strange that this manner of viewing the subject should have been adopted in England, and with refer- ence to the government of England, where so many facts are constantly seen to expose its inaccuracy ; and equally singular that those reasoners should complain of the doctrine they were attacking as speculative, and theoretical, and fanciful, when, in truth, their own objections are founded upon theoretical views alone, and are at once removed by examining the actual facts. But their doctrine is not confined to our own constitution ; it extends to all other forms of government, and seems to deny the possibility of effectual checks existing in any scheme of polity, consequently the possibihty of any mixed government being formed. The necessity is thus obvious of considering more nearly the grounds of the theory. The main foundation of the objection to the doctrine which rests upon the counteracting influence of different powers in the same constitution will be perceived to be a misconception of that doctrine. When properly conceived and stated, it does not represent the conflicting authorities as accurately balancing one another ; it only regards the influence of one jDOwer as capable of limiting the exercise of another, and it assumes that none of the powers is in itself absolute, or would even if left to itself be carried to all extremities. Thus it never was supposed that, a despotic prince being established in any state, and at the same time an aristocracy of equally unlimited powers, there could be any other result of the conflict than a direct collision and the complete dominion of whichever body prevailed. Place the sultan of Turkey and the aristocracy of Venice together in one system, no one can doubt that either the Vizier or the Council of Ten would gain the upper hand, and either a pure despotism or a pure aristocracy would speedily be established. But the question is what would be the result of a combination between the powers of a sovereign accustomed to regard himself as one authority, perhaps to consider himself as the supreme, but still not as the exclusive depositary of arbitrary power, and a patrician body accustomed to consider themselves as the mag- nates in a country acknowledging a monarch. In such a system both parties wiU be disposed to resist each other, to encroach upon each other, even to risk an open rupture with each other upon certaiu occasions, by no means on every occasion, and up CH. II. DOCTRINE EXPLAINED. 7 to a certain point only even on those special occasions, and by no means to take extreme courses and push matters to an iiTe- parable rupture even on those few and excepted occasions. This brings us immediately to that which is at once the foundation c/ the doctrine of checks or balances, and the exposition of the fallacy upon which the objectors rest. The efficacy of the check always consists in the general reluc- tance of all parties to risk the consequences of driving matters to extremities. To avoid this each will yield a little ; and some- times, where the concession is not fatal, one will give up the point to the other, expecting in its turn to have some point of the like kind yielded at another time. Thus the result will be that neither body will carry everything its own way, but a course will be taken different from what would have been taken had there been only either the one body or the other in the system. As far as the interests of the different bodies are concerned those of both will be better consulted than if only one had existed, and in proportion as the interests of the whole community are iden- tified with those of both the bodies will the community be a gainer by the result of the conflict. But we are not now con- sidering the checks as to their beneficial tendency ; we are on the question whether such checks can exist at all ; and it is plain that the compromise which the conflict produces shows the real existence and the efficacy of the checks. Let us then, to take the simplest instance, suppose there are two bodies in a state, the consent of both of which is required before any given measure can be adopted — for example, any law made — and that in this respect the two bodies are exactly of equal authority. A law is propounded and agreed to by one of them to which the other will not consent, or will only consent if it shall be materially altered. The first body refuses to alter it, and the second therefore will not concur in adopting it. For the present the change in the law cannot be eflected, and must be deferred. The refusal of the second body may become less unqualified another year ; or the alterations now demanded may be such that the first body will agree to them, provided some one or two things more be given up. In the end the measure passes ; not such as either body would have desired had it been alone in the legislation, but such as both can agi^ee to. But suppose, now, that one of the two is far more powerful 8 OF BALANCES AND CHECKS. CH. II. than the other in fact, though by law both are equal. It is said that the more powerful body will compel the other to yield, and that so the check ceases to be effectual. But how can this com- pulsion be exercised ? Only in one of two waj^s— either by the weaker body being afraid of resisting the stronger, for fear of its strength being used destructively, or by the stronger actually putting forth that strength ; in other words, either by fear of the 2:overnment beinir overthrown, or by its actual subversion. This, however, is an extremity to which the stronger body will very rarely resort ; in the great majority of instances it will prefer yielding many points to avoid the mischiefs of such a course ; and the weaker body, being aware of this, will generally make a stout resistance. The stronger may carry more points in this way than the weaker, because, the real power of the two bodies being unequal, the constitution inclines towards the one side. Thus, if the more powerful body be popular, the government leans towards democracy ; if patrician, it inclines to aristocracy ; but the leaning of the legislature being, as it must always be, in the direction of the more powerful body, so far from showing that the combined action of the two bodies produces no effect, only shows that the movement which results is according to the proportion of the two forces whose combined operation causes it, and that the government is carried on according to the nature and principles of its structure. Let us now, after these explanations, suppose the case of two bodies so wholly unmatched that one could in no way resist the other if they came in conflict ; and still it is manifest that their co-existence with opposite interests, and, consequently, inclina- tions, will produce' a very different action in the whole govern- ment from wliat would have taken place had only the more powerful body existed ; will effectually cause some things to be done; different from what the powerful body alone would have done, and prevent still more things from being done, which the more powerful body, if left to itself, would have done. The reluctance to bring on a collision will always operate, however disproportioned the forces may be. The opposition of even the weakest body must at any rate create delay, and thus give time for reflection. The influence of rational and prudent, as well as of tunid men, thus obtains an opportunity of making itself felt. The force of the powerftd body becomes divided, and a part is CH. II. FALLACY OF THE OBJECTORS. 9 thrown into the scale of the weaker body. The apprehension of an opposition, and its possible result, a coUisioD, also tends to prevent many things from ever being propounded, and modifies beforehand the measures actually brought forward. Grant that the one body is ever so much an overmatch for the other, unless the disparity be such as to render all attempts at resistance im- possible (in which extreme case there cannot be said to exist two bodies), no one can maintain that the check is wholly destroyed, or quite inoperative, who is not prepared to contend, as a practical position, that all men and all bodies will, upon all occasions, without any reluctance or hesitation, do whatever they have the power to do. And herein lies the whole fallacy of the argument, or rather dogma, which denies the possibility of checks and balances. It is always taken for granted that every one is at all times sure to do whatever he is able to do. Now, if this were at all true, the whole frame of civil society mast be destroyed, and all govern- ment subverted ; or rather, no society ever could, be established, and no government formed. What forms the principal strength of any government, and every constituted authority in any given government? Doubtless the mutual distrust of the subjects is one very great security : the uncertainty in which each man is that others will support him if he resists. But this may be got over, and a common understanding may be come to for a com- mon object. How seldom does actual resistance take place ! How many times is it avoided when every inducement to it is presented, and every justification afforded, even in the view of the strictest reason and the purest patriotism ! How many oppressions will be borne ; how long a time will misrule, daily and hourly felt, be submitted to ; how much grievous suffering will be endured in quiet by millions, whose slightest movement could subvert the hateful tyranny, and restore general prosperity and ease ! The main cause of this patience is the universal dis- position to avoid running risks, and the rooted dislike of pushing things to an extremity. But there is a further and most material circumstance which gives force to the constitutional check ; it is legal ; it is known and felt to be according to strict law and right ; the wrong doer is felt to be he who would encroach and usurp ; however superior he may be in might, the right is on the opposite side : and this has a direct tendency at once to in- 10 OF BALANCES AND CHECKS. CH. 11. vigorate the party resisting, however inferior in natural strength ; and to dishearten and weaken the party encroaching, however superior in actual power. Consider how in any state joint powers are exercised by subordinate authorities, and this will illustrate also the argu- ment as to the supreme authorities. There are two bodies, or a body and a single functionary, which have a mutual veto on each other's proceedings ; say, to take the simplest case, upon the choice of an office-bearer, the concurrence of both being required to make the election valid. According to the reasoning of those against whom we have been contending, the single functionary can always secure the appointment of his candidate, by refusing every person proposed by the body, until the man of his choice is returned. But this we know does not liappen in practice, and cannot happen ; because neither party is disposed to bring matters to a collision by standing on its extreme rights, and both are disposed to have the choice effectually made. There- fore the knowledge that certain persons are sure to be rejected prevents the body from selecting these, and the necessity of appointing some one induces the functionary to accept a person different from the one he would most have preferred. Neither party obtains the result most desired, but a person is chosen against whom neither has any very insuperable objection ; and the j^robability is that a better choice is made than if eithei singly had selected. Similar illustrations of the argument are afforded by those institutions in which more than a majority of voices is required to pronounce a valid decision, as where two-thirds or three- fourths must concur. The temptation given to minorities to hold out and govern the majority is in most cases a sufficient argument against such aiTangements ; they are only admissible where a necessity for decision does not exist, as where the object is to prevent some measure from being adopted, or jDerson elected, without a general concurrence, and where the entire interrup- tion of the proceeding is not accounted an evil. But practically the result is by no means such as the theoretical reasoners would expect ; the minority, having the power in its hands, is very often found to yield, and let a compromise take place. It is true that in these cases of subordinate bodies the law and the supreme government controls both, enables each to exercise CIl. II. ENGLISH AND OTHER CONSTITUTIONS. 11 its rights, and prevents the one from encroaching or usurping upon the other. But in the case of co-ordinate bodies exercis- ing the supreme power, the substitute for the control of the la-w- and the government is the reluctance which each feels to bring on a collision. The compromise is effected, the middle course taken, by the superior authorities under the influence of this dis- position, as in the cases of subordinate authorities under the control of the law and the influence of a similar reluctance jointly — the dislike, namely, to drive matters to the extremity of calling in the arm of the law, or of suspending the operation which the common interest demands should proceed. When we come to examine in detail the constitutions of the ancient commonwealths, especially of Athens and Rome, and also those of the modern republics, especially in Italy, we shall find many illustrations of the principles which have just now been adverted to. Even in those constitutions which seemed to confer unlimited power upon one body, if there was any other armed with authority, however feeble it might be in comparison, the whole power was not engrossed by the prevailing body, but a considerable share of influence was possessed also by the other, and the motion of the whole machine of government partook of both the impulses in the different directions. But a more striking exemplification of the same doctrine is to be found in the practical working of a constitution "svith which we are m.uch more familiar — that of our own country. It can- not be doubted that ever since the late reform in the representa- tion the measures of the legislature have been affected by the inclinations and opinions of the Lords as well as of the Commons. In the second Parliament after the reform there were very material changes effected by the Lords in the proposed constitu- tion of the municipal corporations, and measures affecting the church partook largely of the same influence, both as regarded tithes and church-rates. The majority in favour of further changes had no doubt been greatly diminished by the general election of 1834-5 ; but even in the first Parliament after the reform, when the majority in favour of further change was about three to one, and when the members of the lower were marshalled against those of the upper house in the same proportion, there were some measures of importance thrown out in the Lords for which the anxiety of the Commons was matter of certainty, as 12 OF BALANCES AND CHECKS. CH. IL the Local Courts Bill, lost too by the narrow majority of two votes, and other measures, as those relating to the Irish Church, which the Lords suffered very unwillingly to pass, and which were on the other hand materially altered m the Commons, with the ma- nifest design of disarming opposition in the Lords. The share taken in legislation by each of the great parties which crenerally divide both Houses of Parliament as well as the nation at large, affords another illustration of the same prin- cijDles. Between these parties there is little or nothing in com- mon : whatever may be said of the Houses of Parliament being divided each in itself, so that the Lords have a large influence in the Commons, and the Commons some supporters in the Lords, it cannot be said that the opposition have any supporters in the ranks of the Government party, and the Government party has always a decided preponderance in every question. And 3'et v^^ho can doubt that the measures of the Parliament are, at all times, considerably influenced by the opposition ? The reasoners, or rather dogmatists, who hold so cheap the idea of checks and balances, must needs suppose that when the minis- ters have a majority which enables them to carry any question they please, and successfully to resist whatever their adversaries attempt, the whole course of legislation will take one direction, and the power of the opposition be no more felt than if no such body existed. The reverse is always found to be the case ; not a session passes, even under the rule of the most powerful admi- nistration, without important changes being effected in their plans by the efforts of their greatly outnumbered adversaries ; to say nothing of the many things in almost each measure which are altered in the plan before it is brought forward, altered to disarm tlie opposition, or to smooth the passage of the bill. In all these instances, whether of contending parties or con- flicting authorities in the State, the different forces combine to produce the result, the movement of the political machine. Its course is in the direction neither of the one force nor of the other, but in a direction between those which either would sepa- rately have made it take. As a body on which two forces operate at the same time, in different but not in opposite direc- tions, moves in the diagonal between the two directions ; so does the legislature or the government of a country take the middle course between the two which the different authorities or in- CH. II. PROPER AND IMPERFECT CHECKS. 13 fluences would make it take if left to themselves. It will depend upon the proportion of the forces to each other, whether the di- rection taken shall incline more to the one or to the other ; but this affects not the argument ; the course is affected by each, and the influence of each prevails so far as to check that of the other. In all that has been said on balances and checks, we have assumed that the counteraction was of one kind ; but there are, properly speaking, two descriptions of check, differing in kind as regards their structure and constitution, differing only in degree as regards their operation. The several authorities which are each armed with power or influence may belong to, be selected by, or be otherwise under the control of the same class, and have generally the same interests ; or they may belong to, be selected by, or be otherwise under the control of diflerent classes, and have essentially different interests. The former may be termed imperfect checks, the latter perfect or proper checks. The counteracting influence exercised by the former will always be comparatively trifling, and sometimes will be hardly perceptible at all. Nevertheless some effect may in most cases be practically ascribed to it. For the most part it is rather to be regarded as the manner in which the power of the class is exercised — as its mode of operation — than as a real check. Yet in practice such divisions of the supreme authority, even though all the subordinate parts are under the same control, is found to have some tendency towards moderating its force, and a very great tendency to prevent mischief. This will immediately appear if we consider how these two kinds of checks act. Let us again take the simpler case of two powers. In the Ro- man Republic there were two co-ordinate bodies, the Comitia by Tribes and the Comitia by Centuries. Their powers were equal, and they were composed of classes whose interests were widely different, numbers alone being regarded in the one, and property alone in the other. This is the most remarkable check, properly so called, of which we have any example, and we shall afterwards find that political inquirers much more practically sagacious than Mr. Bentham's followers have found it exceedingly diffi- cult to account for the system working at all in which such an arrangement existed. Probably but for other contrivances, and certainly but for the gradual formation of its parts, such a con- 14 OF BALANCES AND CHECKS. CH. II. stitution could not have stood. The government of Venice affords another and a very opposite example, a remarkable in- stance of the imperfect check. It contained several bodies armed mth high authority, some of them with the highest ; but all were formed out of the general or greater council, and that council was composed of the nobles alone. Thus the Pregadi, or senate, which was the executive or administrative council, may be said to have had supreme powers, though the Council of Ten, which also had the same supremacy, was more efficient, from being less numerous and more uniformly constituted, con- sisting only of fourteen persons, and these the most important in the state. But both those bodies were composed of the nobles, and were chosen by, selected from, acting under, and accountable to the general or greater council, the whole body of the nobles. Here, therefore, the aristocracy was everywhere predominant ; and the division or delegation of its powers was only for the purpose of exercising them the more conveniently aad indeed the more effectually. In one point of view, then, this division rather tended to increase the aristocratic power and nothing like a counteraction can be perceived. Again, when an absolute sovereign, as we have seen (Chap. V., Part I.), delegates his powers to a minister or council, he only acts by those agents, and the superior power is still in one hand. Ne- vertheless some small mitigation even of despotic power is pro- duced by the subdivision. The petty chief of a tribe, so small that it can be governed by a single will, is probably more des- potic and exercises his power more absolutely than the head of any regular and extensive monarchy ; and the sultan and czar in their palaces are more despotic than in the rest of their domi- nions. So the mere existence of several councils at Venice must have tended to prevent some acts of violence which might have been done by a single body, numerous enough to prevent individual responsibility, and not too numerous to be efficient. This, however, is quite clear ; the existence of several bodies has a tendency to interpose delays and prevent rash councils and precipitate action. The safety of the system is thus better secured ; and so far the subdivision of authority has anything rather than the effect of checking its exercise. Yet, as all violent measures are apt to be precipitate, and as delay and reflection must ever be favourable to both justice and mercy, the tendency CH. II. ENGLISH HOUSE OF LORDS. ' 15 upon the whole of the subdivision will be found towards miti- gating the exercise of arbitrary power. The great inferiority in fact of the eSiciency of such checks, to the operation of those which are provided by the vesting of power in bodies differently constituted and having conflicting interests, is manifest. This difference may be further illustrated by referring to the constitution of England and the United States, in both of which the checks of the three members of the Legislature hold a middle place between the extreme cases of Rome and Venice, beside the further difference of there being an effective government in both England and America, so as to form a thhd component part of the constitution. The body which the American Senate represents is intimately connected with the body which chooses the House of Assembly, although, the qualification of the electors being different, property may be said to be more immediately represented in the former, and numbers in the latter. In so far as the two bodies have different interests, and are chosen for different terms, the check belongs to the perfect class ; in so far as the influence of property among the electors of the representative assembly operates upon their choice, the check becomes of the imperfect kind. So in England the connexion between the Peers and the electors of the Commons, even since the late Reform, makes the check more imperfect than by the strict theory of the constitu- tion it is supposed to be, and more imperfect than it would be if the Lords and the electors were bodies entirely separated. But in so far as the Lords differ from the nation at large in their in- terests, and in so far as they hold their places for life and by inheritance, the check is of the proper or perfect kind. Consider now what the effect would be of a plan which has frequently of late years been broached, and of which many per- sons Avere very recently much enamoured. The speculation was to deprive the House of Lords of its legislative functions, and to vest the whole power in an executive and a House of Commons. But the manifest absurdity of expecting any safe and cautious legislation from a single chamber made it necessary to devise a second for the purpose, it was sajd, of reconsidering the bills and correcting the errors into which the first chamber might fall. No doubt, the whole experience of parliament demon- strated clearly enough how great this necessity was, and men at once saw into what frightful difficulties the country must be 16 OF BALANCES AND CHECKS. CH. II. thrown if only one body had to discuss and decide upon all measures. But then nothing could be more ineffectual, even for revision, than the plan proposed. The second house would have differed very little from the first ; even if a higher qualifi- cation had been required, it would have been chosen for a small number of years only, because, had it been elected for life or for many years, it would have been liable to the very same objec- tions which had caused the House of Lords to be dispensed with. Therefore, not only would it have been no effectual check ; that was not the object ; but it would have given no effectual secmity for revision, which was the object proposed. It would have been a little, and but a little, better than adding so many stages to those through which bills must pass in the Com- mons as now constituted ; a little, and but a little, additional security for reflection and revision would have been afforded. But the great security would have been wholly wanting, which results, and can only result, from the nature, structure, origin, and interests of the two bodies being entirely different, and which depends upon the full discussion only to be obtained from such really conflicting bodies. It deserves to be noted that all these senseless projects have long since been abandoned by their thoughtless authors, who a few years ago considered the safety of the empire to depend upon what they termed " Peerage Reform." CH. III. PROGRESS AND CHANGES OF ARISTOCRACY. 17 CHAPTER III PROGRESS AND CHANGES OF ARISTOCRACY — OLIGARCHY. Tendency of Aristocratic and Democratic Constitutions to mix with others — Dif- ference in this respect of Despotism — Tendency greatest in Aristocracies — Early pupilage of the people — Their progress to emancipation — Best course for the Aristocracy — Illustration fi-om colonial emancipation — Natural introduction of Oligarchy — Its natural progress to greater exclusiveness — Its natural tendency to dissolution — Examples from the Venetian, Genoese, Siennese, and Lucca Governments. We have in the outset of this discussion remarked, that aristo- cratic and democratic constitutions have a much greater tendency to mix themselves with one another, and even with monarchical institutions, than either despotic or constitutional monarchies have to ally themselves with those of a popular nature. This arises from the different nature of those several governments. When a despotism is established, all influence, all movement ceases, except that which proceeds from the sovereign ; all power, the whole force of the state, centres of necessity in him. The least division of this force, the existence of any opposite will, unconnected with and independent of the monarch, would be destructive of the system. Consequently, the germs do not exist, out of which any popular institutions might grow ; there are no elements of gradual change ; a single step towards it, however small, would be equivalent to revolt, and, being treated as such, would terminate the effort at once. Change can only arise from some unbearable opposition, or some intrigue in the family or among the connexions of the Prince : this to succeed must be ripened into action ; and whatever may have been its origin, it has never p.ny but one result, a change in the person or the family of the despot. The alliance of the monarchical with the aristocratic principle in the constitutional monarchies of Europe is no exception to this rule ; for these monarchies arose out of the feudal aristocracy as we have seen, and are only an illustra- tion of the tendency which the aristocratic principle has to ally PART II. C 18 PROGRESS AND CHANGES OF ARISTOCRACY — CH. 111. itself witli other institutions. But the existence of aristocracy in constitutional monarchies produces a tendency to further admix- ture, which cannot exist in governments purely despotic ; and in proportion as these monarchies have more of the aristocratic or of the democratic institutions connected with them, will always be their tendency to further limitation or to progressive improvement. It is, however, in constitutions entirely popular, in those of which the main structure is either aristocratic or democratic or mixed monarchy, that the tendency to an alliance with other principles than those of the constitution is most remarkable, and much more in aristocracies than in republics. The reason is plain : the institutions which exist are of a nature to allow dis- cussion and consideration among either the whole or a consider- able proportion of the people. The desire of change has a free scope, even where it is founded upon no rational grounds, but much more where the circumstances of the government indicate its expediency or necessity. Thus, reforms tending towards a democracy may become a favourite object in a mixed monarchy, from the. progress of the people in wealth, in power, and in im- provement ; or the evils of democratic ascendancy may suggest the return to a more purely monarchical polity. So in a demo- cracy, the necessity of repressing tumults and securing the fo- reign as well as domestic peace of the state may lead to enlarging the aristocratic influence, or still more probably to substituting a monarchical for a republican regimen. Both of these courses were taken in succession by almost all the Commonwealths upon the mainland of northern Italy. The aristocratic form, however, is still more liable to form such admixtures than the democratic ; and accordingly, except the Spartan Govern- ment in ancient times, and the Venetian in modern, there is no instance to be found of an aristocracy which did not, sooner or later, become either a democracy, as that of ancient Rome, or a petty monarchy, like those of the Italian States. The reason of aristocracies being thus naturally shortlived is obvious ; and it applies still more strongly to oligarchies, or the government in which, by an abuse of the system, there has been found a kind of aristocracy within an aristocracy, a few of the privileged class usurping the whole power to the exclusion of their fellows, just as these had at first usurped the supreme power to the ex- clusion of the people. CH. III. OLIGARCHY. 19 The period in a nation's progress at which the aristocratic Dower is naturally established, must always be while the body of the people are in a low state of refinement. Their power was in proportion feeble, and the upper classes, possessed of almost all the property, and beyond comparison better in- formed, as well as more skilful in all their arrangements, found it easy to retain in their hands the entire direction of public affairs. In fact, the bulk of the people, being extremely ignorant of everything relating to the administration of the state, never thought of interfering, and only felt an interest in matters which immediately concerned themselves as individuals. Hence any disputes that arose between them and the superior or governing class related entirely to subjects of immediate and urgent indi- vidual interest, as the oppressions exercised at Rome by the patricians over their plebeian debtors, and their monopoly of the public lands without paying rent, or the feudal oppressions in modern Europe by taxation and the exaction of personal ser- vice. With the general management of public affairs it never occurred to the i^eople that they had any concern ; and their profound ignorance of everything which related to government kept them wholly aloof from all controversies respecting it, save only that in the Italian Commonwealths the people fre- quently required to have a voice in the choice of the chief magistrate. In all other respects, even in those republics, they never interfered as a body, and for their own rights or interests as opposed to those of the patricians. They were appealed to by the contending factions, and took a part with the one or the other ; but in almost constant indifference with respect to the subject-matter of their contentions, and generally ignorant of the merits of the question, only taking part with individual leaders or leading families, and knowing little more of the opposite sides of the dispute than the names by which their adherents passed. But though such is necessarily the state of things in early ages, and the power which the people must necessarily always possess from their numbers is thus divided, and, as it were, dormant, from their ignorance and neglect, the progress of society by degrees increases their influence with their experience and information. In some cases, as at Rome, where the patri- cians originally bore a large proportion to the whole body of the people, the mere increase in the numbers of the plebeians brings C2 20 PROGRESS AND CHANGES OF ARISTOCRACY — CH. III. with it an augmentation of their relative force ; Ijnt in every case their wealth goes on increasing, and augments their influence. It thus happens, that as the weight of the people increases with the progress of society in knowledge and in wealth, they are ne- cessarily prepared for passing from the state of pupilage in which they must always be in earher times ; and once prepared for their emancipation, it must, sooner or later, come with more or with less of violence if suddenly, safely and peaceably if gradually effected. The true wisdom of the aristocracy in all such cases is to foresee this necessary result, and to prepare for it betimes, as the true wisdom of the mother country always is to foresee the inevitable emancipation of her colonies, and to part from them in such a good and kindly spirit as will make them her natural friends when independent. The course which the aristocracy, like the mother country, invariably takes is to resist the change by every means in their power. But they are always obliged to yield somewhat ; and the apprehension that each conces- sion may give the people more power to demand further changes is the reason why they always resist the change, and often refuse to grant things in themselves of no importance to them, though beneficial to the people. The struggle being once begun, and the power of the people fully put forth, the aristo- cracy has never failed to take one course after finding that an admixture of democratic institutions only brought their own power nearer its close ; they have called in another auxiliary, and given both themselves and the plebeian party a master. The Romans were enslaved, as we shall find when their constitution comes to be examined in detail, by the aristocratic parties be- tween whom the corrupted plebeians might have held the balance till they overthrew the whole and re-established the re- public; but instead of that, they became the instruments by which conflicting factions tore the country to pieces, and all finally submitted to a race of tyrants. In all the republics of modern Italy, with the exception of Venice, the aristocracy which usurped the government were gradually obliged to re- strict their own powers, but soon put an end to all conflict with the people by placing sovereign princes of their own order at the head of affairs, and changing the aristocracy into constitu- tional monarchy. The introduction of oligarchical power and its short duration CH. III. OLIGARCHY. 21 are natural and almost necessary attendants upon the aristocratic constitution. At first, when the aristocratic body is not numerous,, and all, or nearly all, its members are really endowed mth the advantao'es of fortune, that is with wealth as well as with birth and rank, the supreme power is shared by them all ; and the struggle of parties is chiefly confined to maintaining an influ- ence of a personal nature in directing public affairs. But this struggle soon leads to the design of exclusively possessing this gTeat influence : and one party generally endeavours to intro- duce such a monopoly, even against his equals in birth and wealth. The most ordinary course, however, is that a certain class of the whole body, without reference to party divisions, becomes distinguished from the great body of the patricians by its superior wealth and personal influence. This is sure to hap- pen when the body of the nobles becomes numerous, and con- sequently contains many poor individuals. The rights of nobility being enjoyed by all the children of each house, the fortune will not bear so great a subdivision as would suffice to give each a reasonable portion ; and hence independent of accidental mis- fortunes or personal extravagance reducing families to poverty, the inevitable tendency of every patrician body must be, as its numbers increase, to become composed of two classes, a wealthy and a poor. The consequence is almost as inevitable that an attempt will be made by the leading families, or a portion of the leading families, to exclude all the rest, and to retain in their hands the exclusive authority of the government. This object is effected in two ways ; sometimes the law is made which vests power in a small body, or comparatively small body, of the pa- tricians, and this may be termed the siTici or legal oligarchy. But even where this arrangement is not made, the influence of wealth gives a sway to the leading families, and the others are practically excluded from the government, though not by law ; they are legally capable of exercising all the functions of govern- ment, but do not in fact share in them ; and this may be termed the natural oligarchy. Of the stricter oligarchy, the pure oligarchical constitution permanently established, there have not been many examples, partly because the resistance of the whole body of this privileged order tended to prevent its establishment ; partly because, when once established, the same cause has generally subverted such 22 PROGRESS AND CHANGES OF ARISTOCRACY. CH. III. governments very soon after their formation. It is the natural tendency of the aristocratic form generally to mix itself with either the democratic or monarchical, — with the former from the progress of popular influence, — with the latter from the attempts of the aristocracy to obstruct the growth of that influence, or of each party to strengthen itself against the other. But the ten- dency of an ohgarchy is almost inevitably to its destruction, and the restoration of the whole patrician body's power. It is the still more inevitable, indeed the necessary, tendency of an oligarchy, as long as it exists unchanged by law, to become more and more close, confined to fewer hands, and thus rendered more odious and oppressive to the rest of the community. For the select class, if the power is hereditary, becomes less numerous by the natural extinction of families, and if formed by perpetual self-election it becomes gi'adually more narrow in consequence of the disposition in each set at all times to confine it, and exclude as much as possible the successors who on each vacancy would keep up the number. Thus at Bologna, the senate had the power of creating new nobles, but hardly ever exercised it except in favour of needy and therefore dependent persons. Thus, too, at Venice, from the year 1297, there was a pure oligarchy formed ; a cer- tain number of families usurped the whole power of the govern- ment, and excluded all the rest. In the course of a few years, however, those who were excluded obtained the repeal of this ordinance, probably because they were taking steps to obtain the support of the other orders, which would have subverted the aristocracy entirely, and therefore the oligarchs preferred any- thing to that catastrophe. In 1319 the whole nobles were again admitted, but the government was confined to them. — Genoa had an oligarchical government for some years, at the end of which the distinction was abolished. — Sienna was under a pure oligarchy from 1290 to 1354 ; and the government of Lucca be- came oligarchical in 1554 by the Martinian Law, which confined all power to a certain class of families. This oligarchy lasted longer than any of which we have the history. It continued undisturbed till 1799 ; and the number of families eligible to office had been reduced so low by extinction that there were not enough to fill the public offices. • CH. IV. NATURAL ARISTOCRACY. 23 CHAPTER IV, FOUNDATION OF ARISTOCRACY IN THE NATURE OF THINGS. NATURAL ARISTOCRACY. Equality impossible — Attempts made to insure it — Influence of independent circum- stances— Of wealth — Reflex operation — Upstart superiority — Foundation of re- spect for hereditary distinctions — Reflex feeling — Hereditary superiority improves men — Efiects of improvement — Respect for rank — Natural — Essential to artificial Aristocracy — Illustrations from Rome, Sparta, Feudal Government, Modern Italy — Effect of Natural Aristoci-acy in destroying Oligarchy — Political pro- fession impossible — It must necessarily be a corrupt trade — Athenian State orators — Advantages and disadvantages of a Political profession. In order rightly to understand both the real foundations of aristocratic government, and the limits which the nature of things has affixed to its force and its duration, it is necessary that we examine the nature and the foundation of what may be termed the Natural Aristocracy. We have already made some observations upon it, as far as was necessary for discussing the principles and explaining the structure of constitutional mo- narchy ; but we must now enter more fully into this very im- portant subject. ^ The notion of equality, or anything approaching to equality, among the different members of any community, is altogether wild and fantastic. All the attempts that have ever been made to secure it have been of necessity confined to merely pro- hibiting positive distinctions of rank and privilege, which can always be effected, and to preventing the unequal distribution of wealth, which never can be accomplished, though laws may be devised for rendering this more slow, to the great injury of the public interests, and restraining of individual liberty. But the diversities in human character and genius, the natural pro- pensities of the human mind, the different actions performed by men, or which have been performed by their ancestors, lay the foundations of a natural aristocracy, far deeper and far more wide than any legislative provisions have ever even attempted to reach — because no such provisions ca.n possibly obliterate the 24 NATURAL ARISTOCRACY. CH. IV. distinctions thus created by the essential nature of man. In examining these distinctions we shall also regard the distinctions of wealtli ; because laws never can wholly prevent its unequal distribution, altliough they may interpose obstacles to it. 1. The actual possession of any superiority, whether in wealth or in personal qualities, imposes a certain respect, begets a certain deference in the community at large of inferior men. Independence, if not influence and command, are possessed by the favoured few. The mere circumstance of their small number is something ; their having, without dispute, what all would wish to have, is more. A man of this class never pays court to you, he may be civil, and you thank him for it ; he never has any occasion to be your suitor. Now nothing more tends to lessen respect for any one than his courting you, by which he seems to acknowledge you his superior. Even talents are less powerful in this respect than wealth, because they are less secure to their possessor, and their extent is less a matter of certain, undisputed estimate. All this, too, is wholly inde- pendent of the positive and certain influence which superiority, whether of riches or endowments, bestows, — the power of com- manding other men's services, assisting them in their necessities, contributing to their comfort or advancement. Nay, so great is the tendency to recognise this influence, that you shall con- stantly see a person of great affluence exercise an extraordinary power over others, jfrom the fact of feeling that they may one day be indebted to him for favours, though in reality no such thing is in any degree probable. Persons of known wealth could be named in our own day, and in this country so boastful of its independent spirit, who never were kno"v\Ti to assist any literary man, and probably never would had they lived for a century, and of whom all connected with the press stood in a kind of awe approaching to reverence, merely because they could, if they would, befriend the caste of authors. A reflex feeling greatly increases this habitual deference for personal or patrimonial superiority. He who is possessed of it is known to be looked up to by all, or almost all others. This we cannot deny, and we cannot prevent. Be our own views ever so enlightened, our disposition ever so independent, our contempt of wealth ever so philosophical, we are aware that the party is an object of observance with the bulk of mankind, and CH. IV. LONG POSSESSION OF SUPERIORITY. 25 this makes us view him as something different from what we really know him to be. 2. The length of time during which any one has possessed the attributes that command respect forms a very material in- gredient in modifying or assessing the amount of that respect. This amount bears always some definite proportion to the leno-th of possession ; and that, not only because of the greater security which long possession implies, but because there is an invincible disposition in men to consider with less respect not only those who are now on the same level with themselves, but those who only recently were lifted above that level. Indeed the supe- riority lately attained is counteracted by the impatience with which men regard the elevation of those whom they have known as their equals. " But t'other day he was no better than ourselves" is a saying in all mouths on such occasions, and comes from a sentiment that nature implants in all bosoms. This even applies to men suddenly and late in life raised by the unexpected acquisition of learning. The unexpected deve- lopment of genius has no such counteragent to the admiration which it naturally excites.. The author of the ^Botanic Gar- den' "*" or the Wa^verley Novels, the inventors of printing or the spinning-jenny, the discoverer of America, were ungrudgingly bailed as great benefactors of their race, large contributors to the pleasures or the profits of the world. The individual, in ^uch instances as these, is regarded as having all along pos- sessed the same happy genius which late in life burst forth with such resplendent lustre. But an ignorant mechanic or peasant, who has late in life become possessed of great learning, never fails to meet from the bulk of mankind with somewhat of the slight and envy that haunt the path of upstart wealth. " But yesterday he knew no more than we did" is sometimes said as well as " But yesterday he was no richer than ourselves." 3. It is only carrying the same feeling a step further to respect the distinctions which are handed down from ancestors more than those which are acquhed by their present possessor. Not only is the time of enjoyment, generally speaking, longer, * Never was there a greater sacrifice of fair dealing and sound taste to party spite than in the running down of this poem by Mr. Canning and his associates. With all its defects, and they are the defects of the didactic style and not of the poet, there are in this splendid poem passages of almost unequalled magnificence, and the feelings which pervade it are always enlightened and humane. 26 NATURAL ARISTOCRACY. CH. IV. but no one can ever recollect the party unendowed with the superiority— no one can remember him naked of the marks of distinction. He never was on the same level with ourselves. Accordingly the impatience of superiority is in this case apt to o-o back, and find that at least his father or his grandfather was " No better than ourselves." Thus all novelty has the levelling tendency ; it tends to remove the distinction on which the diver- sity is built ; it is one fewer mark, one difference more taken away — and the whole question is one of differences and dis- tinctions. This is really the foundation of respect for hereditary honours. " New nobility/' Lord Bacon says, " is but the act of power ; ancient nobility is the act of time."* Even virtue and genius, and mental acquirements, are in some sort affected by this law of our nature. A man is himself no better for his ancestor having been virtuous, more able, more learned than others, or for being sprung from a race which had rendered precious services to their country. A man is no worse for his forefathers having been of a grovelling nature, or infamous life. Yet where is the individual who can place himself above the pride of descending from Marlborough or Blake, Newton or Watt ? And where is the sage whose wisdom is so captious or heart so callous as to refuse the epithet of honest or natural to such pride as this ? The reflex feeling here again comes into action. - As it is a fact, perhaps an ultimate fact incapable of being resolved into any more general, that almost all men feel this respect, place this value upon hereditary distinctions, ancestral honours come to be prized, even by those who would not otherwise esteem them. We thus respect him who possesses such honours, be- cause we know that he is the object of deference and respect to almost all men, and is thus distinguished from ourselves ; nay we love to associate with him, on account of other men running after him, and on account of his acquaintance being of necessity narrowly limited, as well as highly prized. 4. The hereditary possession of superiority in wealth and station has a certain effect upon the character and habits of the individual, and therefore an intrinsic as well as external and accidental value in exalting the possessor. He never can have been the associate of the low and the worthless ; he has never known any servile employment or unworthy courses; he has * Essays, xiv. CH. IV. PROGRESS OF THE HEREDITARY ARISTOCRACY. 27 never been tarnished with meanness or depressed by dependence ; never suffered under insult or oppression : never had his feeL ings outraged or his taste offended and perverted by squahd or sordid contacts. His feeUngs may be supposed more dehcate, his spirit more lofty, his principles more pure, than those who have struggled with hard fortunes, and in whom the school of adver- sity has compensated for the vigour which its discipline imparts, by the coarseness and callousness which its rod is apt to imprint. It is upon the influence and authority which the circumstances just now considered bestow upon the superior members of everv community, that their power in every state naturally is built. They have the greatest weight and confer the most power in less enlightened ages ; the progress of knowledge and the general improvement of the people never fail to lessen their influence, with the exception of the last-mentioned circumstance, which is most prized in a highly refined state of society, and with the further exception of the respect due to virtue and capacity. But no progress in improvement and no power obtained by the mass of any community can ever destroy the influence of the natural aristocracy, efface the distinctions which we have been describing, or level the ranks or natural orders to which those distinctions give rise. Indeed the beneficial effects produced by such gra dations, in maintaining the peace and good order of society, are not diminished by the progress of improvement, because as much is gained of additional respect for the natural aristocracy by reflection and the perception of the expediency of giving it due weight, as may be lost in the more \'ulgar deference to wealth and birth. The artificial aristocracy must always, to a certain degree, be connected with and founded upon the natural. No force of positive institutions could ever maintain the power of a body of nobles who had no wealth, or talents, or sei^ices to distinguish them from the rest of the community. All nobility therefore has, in all ages and countries, been originally founded upon natural aristocracy ; and there never has been any instance of a nobility preserving its power, or even its place in society, without retain- ing also a large share of the natural advantages in which its supe- riority originated. The Patrician order at Rome was composed of the original freemen who founded the state, and their de- scendants born in the republic, and not aliens. But they also 28 NATURAL ARISTOCRACY. CH. IV. possessed by far the greater share of the land, the principal wealth of the community. — The Spartan aristocracy had a similar orif^in and endowment, as we shall afterwards see. — When the chiefs who overran the Roman empire established themselves in their new conquests, we have seen that they formed a privi- leo-ed body of their principal companions in arms, who were the most darino- or most skilful leaders in their armies, and whom they endowed with ample landed possessions. The foundation of the feudal aristocracy was the possession at first of the whole landed property, ever afterwards of by far the largest portion of it. When in the course of time other classes of the community obtained landed rights, the nobles still retained exclusive rights of a peculiar description in the soil ; and even when all such distinction was removed, and every one could hold his land by the noble tenures, though himself not noble, there was still the gTeatest share of landed wealth vested in the patricians. When commerce introduced a rival class of possessors, the influence of the natural aristocracy gained for the hereditary nobles the re- snect, and from thence the influence, which we have seen flows inevitably towards those whose wealth is hereditary. — In the Italian republics commercial wealth early rivalled feudal ; and a civic aristocracy was formed of the classes who had long enjoyed this distinction, and the other superiorities constituted by capa- city, public services, and long habits of command. The families thus distinguished were the aristocracy of these commonwealths, and their influence was established exactly as we have seen the natural respect for station, riches, and merits always operate. The civic nobility thus formed soon engrossed exclusive privi- leges, and became, by artificial means, the governing body of the state. In all these communities attempts were made to exclude the bulk of the people, even the bulk of the wealtliier classes, and in all, the nobles for some time succeeded in confining the political power to their own order, although their origin was exactly their filling the same station which the richer and more eminent families of the people now occupied. The descendants of the noble families becoming numerous, more of them became of course both stripped of wealth and deprived of all the other attributes of natural aristocracy. But a sufiicient number of the order continued so endowed as to preserve their natural influ- ence, and to have a real weight in the community, independent of CH. IV. PROFESSION OF POLITICIAN. 29 the privileges vested in them by the laws and customs of the state. But it is to be observed that the constant tendency of the natural aristocracy is twofold. It both restrains the power of the whole patrician body, where a proper or artificial aristocracy is established, and where no privilege" is possessed by one branch of the nobles over the rest ; and it prevents the long exclusion of the bulk of the noble order — in other words, it brings the existence of an oligarchy to a close, as we have seen happened in Venice and Genoa, the cases being but rare and inconsider- able, as at Sienna and Lucca, in which the oligarchy was of long continuance. Thus there would, in all communities, necessarily rise to influ- ence a natural aristocracy, whether the laws and the forms of the constitution established a privileged order or not. This natural aristocracy would obtain a considerable share of real power, al- though there should be no order of men legally privileged, and would affect the distribution of influence amoi% the members of a privileged order, where the law recognised such a body, and invested its whole number with equal direct power. This neces- sity grows out of the impossibility that there should ever exist to any extent, and for any length of time, a political profession. This impossibility appears manifest from several considerations. 1. If there is party spirit or party conduct in any given state, then clearly men can onl}^ drive the trade of pohtics by being corrupt or factious, or both, because, instead of only qua- lifying themselves to gain their livelihood by merit, they must also either quit their party or force it into power. Suppose a lawyer could only obtain practice by truckling to the bench, or by courting attorneys, he would be less corrupt than the trading political adventurer, the man who engaged in politics as a spe- culation of gain, because the lawyer could not advance his own interest by betraying his client's ; whereas the trafficking poli- tician must betray his client, the country, in order to live, and at the very least must set its interest at nought. He wiay do his duty, because occasionally his interest may coincide with his principles or opinions ; but this does not necessarily happen, and in order to live he must regard only that which works for his party and himself 2. Suppose party to be unknown in the given state, still cor- 80 NATURAL ARISTOCRACY. CH. IV. ruption is inevitable, because whoever has the dispensation of patronage must be gained ; and hence counsels, pleasing rather than wholesome or useful, must be given. The political trader, like the player, who lives to please, must please to live. But unhappily there must also be in his composition a little of the prostitute as well as of the more honest player. 3. But it is needless canvassing what must happen in a state devoid of party connexions. Such connexions always must exist to the extent of our present argument, for the government of every country must be conducted on one set of principles or another. But the existence of the political profession converts this state of things into the ordinary, vulgar, and worst species of party. 4. If it be said, " You can pay the political man," the ground is furnished for considering who is to select the person that shall be paid. Every man who pleases cannot be allowed to become the stipendiary servant of the public. Some selection there must needs be. Then iihis only adds one new class of functionaries to those already employed by the state ; and some one must appoint them, like the rest. 5. At Athens there were ten state orators, and hardly any one else ever took part in the debates of either the Assembly or the Senate. But all persons must undergo a severe scrutiny before they were even allowed to speak at all. The concealment of any offence or other disqualification on this inquiry was severely punishable ; and not only pure Attic descent, but the possession of property in Attica, was a necessary qualification for being appointed a public orator. There is great doubt on the question whether they received any salary or not. It certainly never could have exceeded a very small sum, because we know that the judges (or rather jurors) had only a groat of our money each sitting; there were 6000 persons qualified to act as jurors, and the choice being by lot, each could only be selected to sit on trials 100 times in a year, and gain about thirty shillings, which small sum the pay of a state orator could not much exceed. If our members of parliament were paid, as some unreflecting per- sons recommend, from a foolish idea that it would remove one of the obstacles to the lower classes sitting in the legislature, the only result would be a great increase of corruption at elections, and a complete subserviency of the representative to the will and CH. IV. POLITICAL PROFESSION. • 31 caprice of his constituents — a subserviency utterly destructive of the deliberative functions so essential to the representative system. All these reasons, which show the profligacy that must arise out of the existence of a political trade or profession, are decisive against its possibility, because no institution can endure in a popular government, whether aristocratic, democratic, or mixed, which inevitably leads to corruption and to violation of public duty. Hence it follows as a necessary consequence, that the administration of public affairs must ultimately, nay, in a very short time, become substantially vested in the natural aristocracy of any country — the classes qualified by property, by respect- ability of character, by capacity and acquirements, by experi- ence and services, to take the lead among their fellow-citizens. Where there is no order privileged by law, this class will form such an order in practice and in fact. Where there is a privi- leged order, in whom, either exclusively or rateably Avith others, power resides by law, when this order becomes numerous the portion of it distinguished from the rest by the natural aristo- cracy will obtain the lead. We have here only been considering the subject of a political profession in its connexion with the question of natural aristo- cracy. It may be proper to add a few words relative to the opinion of those who regard such a profession as wanted in the management of state affairs. These reasoners are led away by the notion that the principle of the division of labour is appli- cable to the work of government, and they contend that men must devote themselves exclusively to political science, in order to qualify themselves for conducting the public councils. It is exceedingly common to hear the argument put thus : any com- mon handicraft can be learned only by serving an apprenticeship to it ; then how can men suddenly learn the difl&cult art of government ? One great fallacy in this argument is, that no person ever contended for the intrusting of government to igno- rant or inexperienced hands ; that no person ever even con- tended for having the government of a country administered by men all of whom had other serious occupations to wliich they were devoted ; and that the only question really is whether or not the political caste shall be composed of men whose circum- stances are independent ; whether it shall consist of men who 32 ' NATURAL ARISTOCRACY. CH. V. seek their livelihood by it as a profession, or of men who, well able to subsist without it, pursue it from motives of ambition or public spirit, vanity or love of patronage, and possibly with the view of adding to a fortune already independent. It must be admitted on the one hand that if only men in easy circumstances, and having no professional pursuits, engage in politics, there will be excluded from the public service many persons of great talents and integrity whose fortunes are small. But on the other hand, the liberal professions themselves can only be pursued by persons of certain means, because no man can, for some years, gain his bread by them ; and yet no one ever complained that this excluded the public from the benefit of able lawyers, physicians, or divines, among men who might be born in the humbler walks of life. And the difficulty, or rather the impossibility, is just as great of so arranging a political trade as to enable all who are qualified for it by their talents and virtues to enter into it. Then we must not lose sight of the great mischiefs arising from having a large class of men whose sub- sistence depends upon their success as political adventurers ; for this really means that they must seek after place at all hazards. We have already shown to what evil consequences this kind of contest must inevitably lead. The greatest oversight, however, of those who argue for a political profession consists in this : they do not consider that in every ordinary profession the confidence of the customer, or employer, is given the more freely and the more entirely if he knows that the professional man follows no other vocation. The more he is known to depend on his calling, the more he is trusted. But in the political calling it is just the reverse ; no man is so little valued, none so little trusted, as he who is known to have no other means of subsistence. Who will ever acknow- ledge that his livelihood depends upon his success in parliament ? Who in the law, or the church, or in trade, ever hesitated to profess that his whole reliance, and that of his family, was upon his professional gains ? The public may be apt to over-rate the independence of wealthy men, because they who have no need of money are exposed to feel the force of other temptations. But to a certain extent and to a great extent it is quite true that needy men are apt to be dependent, even if we charitably refuse our faith to the saying that " an empty bag will not stand upright.'^ CH. IV. POLITICAL PROFESSION. 33 It is not to be doubted that sufficient political knowledge may- be acquired, and habits of public business may be formed by men busily engaged in other professions. Mercantile men have often distinguished themselves in the senate, sometimes in the councils of their country. Lawyers have always borne a forward part both in council and in debate. Soldiers have often displayed great statesmanlike qucilities. Perhaps the greatest captains have always been among the greatest statesmen in every age and in all countries. It is an error as gross as it is general to compare the training required for learning a com- mon handicraft to that which is necessary for fitting men to govern their fellow-creatures. No reading, no reflection, no observation, mil teach manual dexterity. We may on the whole conclude that the evils greatly counter- balance any advantage which can reasonably be expected to result from the existence of a political profession, which men never should follow for earning their subsistence. The most important practical considerations floAv from atten- tively examining the nature and tendency of the Natural Aris- tocracy. Of these it may suffice that we mention two : the security affi)rded in every popular government, whether aristo- cratic, democratic, or mixed monarchical, against the incapable classes of the community administering its affairs ; and the safety with which in any government except a despotism political rights may be intrusted to the people, in so far as regards the choice of their rulers. It is quite manifest that the principal weight in the State will always be possessed by those whom the Natural Aristocracy designates as its rulers ; the class best qualified to discharge that important function. Men of education, of inte- grity, of independent fortune, of leisure, of learning, — men culti- vated as well as capable, — will always be preferred by the great majority of the people themselves as their rulers and their representatives. In an aristocratic country, as Poland and Hungary, the noble who belongs to this naturally privileged class will always bear sway over him whom the law alone clothes with privilege ; and were universal suffrage established in England, not a single peasant or artisan would be returned to Parliament. PART II. D 34 OF PARTY. CH. V. CHAPTER y. OF PARTY. Origin of Party — Aristocracy most exposed to it — Venice the only exception — Justifiable party unions — Factious system — Undermines principle — Destroys con- fidence in Statesmen— Corrupts private morals — Unites sordid motives with pure Produces self-deception — Destroys regard for truth — Promotes abuse of the Press Gives scope to malignant feelings — Passage of Dante — Operation of Faction on inferior Partisans — Effects in paralysing the public Councils — In promoting treasonable proceedings — Defence of Party : Burke, Fox — Conclusion of this subject. The existence of parties in an aristocracy is one of the most inseparable attendants of that scheme of policy, and one of its greatest evils, although it affords almost the only check to the power of the governing class. Men among whom the supreme authority in any state is divided naturally desire each to engross a larger portion than falls fairly to his share. When the num- bers of the ruling class are considerable, the possession of power enjoyed by each individual is not such as to satisfy the natural appetite for dominion, an appetite ever whetted by a moderate indulgence too scanty to satiate it. The superiority over the bulk of the community being enjoyed by the whole order equally is assumed as a matter of course, and the object of all ambition is then to rise above the rest of the governing caste. Such elevation is the only distinction, except that of rank, ser- vices, and personal qualities ; the only distinction of the artificial beyond the distinctions proper to the natural aristocracy. Two consequences result : first, the most powerful of the order, the members most amply endowed with the gifts of fortune, whether of riches, or honours, or esteem for talents possessed and ser- vices rendered, seek to engross the whole power, to the exclusion of the rest of the order ; or secondly, a portion of these — a few individuals, sometimes a single individual or family — form de- signs of usurping an undue share of authority. The attempts of the first kind lead to an oligarchy ; those of the second either lead to a usurpation and tyranny, overt-hrowing the state, if successful, and if unsuccessful inoperative upon its constitution ; or they lead to acquiring a preponderating influence in the CH. V. ORIGIN OF PARTY. 35 administration of its affairs, without at all changing its govern- ment. The efforts made with this object in view, and the steps taken to attain it, give rise to party associations. No two or three families being sufficiently powerful to withstand the jealousy which such an attempt would excite universally in the rest of the order, the course taken is to extend the junction and com- prehend other families, and many of the inferior or more de- pendent nobles. The whole are thus leagued together for a common object, or an object professed to be common, but in reality for the purpose of obtaining and preserving the influence of the leaders in administering the government of the state. Nor is the combination confined to the members of the governing body ; the plebeians are appealed to, and the powerful noble families having dependents and followers among them secure support in case of any commotion to which the intrigues of faction may give rise, and obtain an appearance of force and power from the numbers of their adherents — an appearance calculated to give them weight with their own order. For it must be kept in mind that the nature of the government precludes the suppo- sition than any of the plebeian order, or even all the order acting together, can directly aid by lawful and constitutional means the proceedings of the party, inasmuch as the whole powers of the state are possessed exclusively by the patricians. But if one class of individuals or families thus combine and thus act for their own aggrandisement, their proceedings natu- rally bind together the other families and their adherents to resist the attempt. Hence the ruling body becomes divided into separate, opposing, and conflicting factions ; each having its adherents among the poorer nobles, who can directly afford support, being possessed of voices in the government ; and also among the plebeians, who can give no regular or direct support, having no such voices. The Venetian constitution presents the only instance of an aristocracy in which parties were little if at all known, and had certainly no considerable influence upon the working of the government, or the administration of public affairs. The fatal tendency of faction to destroy the existence of such a govern- ment, and constantly to mar its operations, early introduced an arrangement by which all such disturbing forces were counter- acted. The arbitrary dictatorial powers conferred upon the d2 36 OF PARTY. CH. V. Council of Ten made it as impossible for a faction to gain any- head in ordinary times, as the dictatorship at Rome rendered all factious movements impracticable while that power existed on some extraordinary occasions. The unexampled duration of the Venetian government without suffering any change was the result of this extraordinary provision in its structure. All the other aristocratic republics of Italy were, as we shall see, tlie hotbeds of constant factious combinations, and the scenes and the victims of their unprincipled operations. If the nobles were only animated by a regard for the public — the good of the state at large — or even if they were only in- fluenced by a regard for the interests of their own order, no such party divisions could have place, because no such attempts to engross the direction of the public affairs would be carried further than was dictated by a conscientious desire to further the progress of certain principles and secure the adoption of certain measures. While confined within these naiTOW bounds, nothing deserving the name of party or faction could exist. Men differ in their opinions ; the line of policy which one sin- cerely believes most conducive to the public good, appears to another less expedient, or positively fraught with peril. Thus differing, each may honestly endeavour to promote his own views, and may consistently join with others who entertain the same opinions. Great heats may even be engendered by this collision ; long subsisting animosities may exasperate the parties against each other ; but the difference is in the principles really adopted, and the course pursued is dictated by that real differ- ence. Therefore it never can go beyond a certain safe point, because it will always yield to the prevailing regard for the public good, and will therefore stop short of any proceeding by which that good can be assailed or exposed to peril. In such combinations and in such conduct there is nothing blame- worthy. They do not merit the name of factious ; they can hardly even be termed party proceedings. But it is a very different and a very pernicious kind of party to which the term faction is generally applied, and which arises out of the contentions for power, and not out of the desire to further principles ; and this weed is the natural growth of popular, but most of all, aristocratic government. Men bind themselves together, and obtain the support both of their fol- CH. V. EFFECT OF PARTY ON PRINCIPLES. 37 lowers among the ruling orders, and their dependants among the plebeians, that they may be enabled to engross the whole power in administering public affairs. The possession of power with its attendants, patronage, honour, places, wealth, impunity for malversation, indemnity against charges of maladministra- tion, all the benefits that uncontrolled dominion can bestow upon those who are clothed with it — this is the object of the party combination, and to this every other consideration, among the rest all regard to public duty, all concern for the interests of the community, is sacrificed without hesitation, without scruple, and without remorse. There is generally a pretext of principle put forward to hide the nakedness of the association ; but no one is deceived by it, and the less that the same principles are suc- cessively taken up and abandoned by all the factions successively as it suits their position and serves the purpose of the day : so that you shall see the party the most clamorous for certain mea- sures before its accession to office, the readiest to abandon, and even to oppose the same proposal immediately after that event ; and the same men who had the most loudly condemned a given course of policy, lay themselves meekly down by its promoters and join in patronizing it as soon as their interest in the clamour has passed away, 1. This is the first, and it is the worst of the evil effects which party produces. Principles are no longer held sacred in the estimation of mankind ; they become secondary and subordinate considerations ; they are no more the guides of men's conduct, but the false fabricated pretexts under which the real motive and object is cloaked ; they are the mere counters with which the profligate game of faction is played. The highest public duties are thus not merely violated, but brought into open and unbhish- ing contempt. A low tone of political morality becomes the pre- vailing sentiment of the governing classes in the state. Stern principle is scorned ; rigid virtue is a laughing-stock ; and men in the humblest stations see those who should be their patterns set them an example of the most scandalous profligacy. Add to this the disgusting hypocrisy which men practise in their loud assertions of opinions which they care nothing about ; their so- lemn declaration of doctrines in which they have no faith ; their earnest expression of feelings no deeper than their mouths ; their inflated avowal of devotion to principles wholly foreign to their nature and habits. All this makes up a picture which the 38 OF PARTY. CH. V. people must be debauched by beholding so contmually unveiled before their eyes. 2. The alienation of the people's affections and confidence is another result of the same combinations. The people see those who have assumed the entire management of their affairs wholly regardless of their mterest, only bent upon keeping power in their hand, and affecting to make the public good the guide of their conduct, when they only set up this as a hollow pretext to conceal their real object. A distrust of all public men is the in- evitable result ; and this is as much excited in the partisans them- selves, who take up the cause of the rival party chiefs, as in the portion of the community which stands neuter, and witnesses the factious conflict. The Italian commonwealths were so divided into factions, that hardly any man or woman could be said to stand aloof from them ; all were either Bianchi or Neri, Uberti or Buon- delmonti, Cerchi or Donati. But we can have no doubt that this extinguished all kind of confidence in their rulers, and ac- cordingly it undermined all regard — not perhaps for the state, because the selfish and factious hatred of some other neighbour- ing state kept a kind of false patriotism alive — but certainly all regard for the constitution of their own country. The universal consequence was, that the liberties of all those commonwealths were subverted, and the supreme power became, sooner or later, vested in some native or foreign usurper. 3. Akin to this is the fatal tendency to corrupt public and even private morals of the party union, as removing both the great incentive to virtue and the most powerful barrier against vice. Public praise and public blame are no longer distributed accord- ing to men's deserts. Whatever a man connected with party does well, he is quite sure to be undervalued, perhaps contemned, possibly assailed, by one-half the community ; and let him act ever so ill, he is secure of defence at least, if not of commenda- tion, from the others. The tribunal of public opinion becomes corrupt ; it no longer deserves the name of a tribunal. Who- ever is cited to its bar knows that half the judges are for him, and half against him, and no sentence, or nothing that may fairly be called a sentence, can be pronounced. Well might Mr. Hume remark, a hundred years ago, that " it is no wonder if faction be so productive of vices of all kinds ; for besides that it inflames all the passions, it tends much to remove those great restraints, honour and shame, when men find that no iniquity can lose CH. V. ENCOURAGEMENT OF SORDID MOTIVES. 39 them the applause of their own party, and no innocence screens them against the calumnies of the opposite/' — (Hist, cap. Ixix.) 4. But though this seems sufficient, it is far from being all the mischief done by faction. Even in those who form party com- binations with purer views, and for the promotion of worthy and patriotic objects, it inevitably works a corruption of the deepest root and most extensive contagion. The nature of the associa- tion, the bond which keeps it together, has this unfailing conse- quence,— the tie is and ever must be a combination to obtain power for the associates. It is true they always state, and in some cases really believe, that they desire power in order to carry their principles into effect. Thus the Guelphs in any given Italian commonwealth may have desired power in order to resist the Emperor ; the Ghibellines, in order to resist the See of Rome, The Whigs in the last century among our- selves desired it, in order to keep out the Pretender ; and the Tories in order to protect the church and the monarchy from republican encroachments. But admitting these to have been the real motives of the parties, their mode of action, the means which they all proposed to themselves for giving effect to their several opinions, however conscientiously entertained, were one and the same — the possession of power, vesting that power in the hands of their chiefs, and giving to the followers a rateable pro- portion of the gifts which the government patronage enabled them to bestow. Thus, too, in the very extreme case of party, that of the United States of America : it is very possible that the Federalists may sincerely believe their principles the most whole- some for guiding the government of the Union, and the Demo- crats may as honestly consider theirs the true means of preserv- ing the great Republic. This is quite possible ; but what is quite certain is, that the primary object with each party is the election of the President, and the result of its victory is the removal of above 3000 placemen, from the chief magistrate at Washington down to the postmaster in every village, to make way for succes- sors from its own body. The same excess of party violence may not take place in this country, where the same personal interest is not felt in the conflict, because so universal a change is not the result of a change of ministry. But we approach nearly to it ; and there pervades the whole community a combination of direct individual interest with the profession of political principles : so that while the nature of the game universally played induces 40 OF PARTY. CH. V. very many to espouse the cause by affecting the opinions which belong to its supporters (and of the universal tendency of this we have already spoken), the manner in which the game is and must of necessity be played creates the other, and perhaps more per- nicious evil, of which we are now speaking, by allying insepara- bly the possession of opmions, and the exertions made to give them effect, with the direct interest of the individual, and thus corrupting even men who begin by conscientiously holding those opinions, and honestly labouring for their establishment. For observe what inevitably ensues. The party principle and the personal interest for a time coincide ; but the moment is sure to come when they no longer agi'ee, and either principle or power must be sacrificed. The change is sometimes made suddenly, openly, with audacious effrontery ; more frequently it is effected with greater caution and less boldness, and with every species of falsehood and hypocrisy. But at all times the union of personal interest with political principle, the fact (the fact quite inseparable from party operations) that the same acts which tend to promote party objects also tend, in the very same degree, to further individual interests, produces, and must in- evitably produce, the most reckless disregard of all but party ties and party duties, and must sap the very foundations of private as well as public morals. This is the necessary conse- quence of the union, and this explains the conduct of men who, upon other matters, are not deficient in moral principle, but who cast all such ties away when party objects are concerned. The process of self-deception is plain. The partisan covers over the iniquity of his conduct with the guise of principle and patriotism, pursues his personal gratification as if he were per- forming only a public duty, and not only affects to be guided by the purest of motives, but oftentimes blinds himself into a belief that he has no other incentive to a course of conduct the most sordid or the most malignant. His experience of party movem(;nts must be exceedingly limited who cannot at once point to numberless instances of men, in all the other transac- tions of life tolerably honest and pure, who have gratified the most selfish propensities of our nature, or given vent to its most spiteful feelings, while they covered over the naturally hideous aspect of their intrigues or their rancour \^dth the party varnish of a zeal for the good cause, and a vehement hostility to itr-; enemies. CH. V. ENCOURAGEMENT OF FALSEHOOD. 41 It is in two ways that this injury is doae to men's morals by the party tie. A regard for truth is abandoned, and kindly, cha- ritable, even ordinarily candid feelings are blunted, nay extirpated. (1.) The basis of all morals is a sacred and even delicate regard for truth, a sentiment of proud disdain at the bare thought of being humbled to a falsehood, a feeling of disgust at all intentional violation of that paramount duty. But how many men are there who will scruple little to exaggerate or extenuate facts, nay, to suppress the truth they know, and even forge what they are well aware is false coin, so as they can make the concealment available to the defence of their party, or give the fiction currency to that party's gain ! Look to the perpetual misstatements of the party press in England, somewhat worse in America, in France not quite so bad as in either of the English countries, yet occasionally rivalling both. The un- blushing falsehoods propagated, the unretracted misstatements persisted in after exposure* for the support of their party, through these channels of public information, and which might be rendered the channels of popular instruction, made the first minister, the leader of the popular party, declare in par- liament, no longer ago than the year 1839, that he thought it questionable "if the people of England would bear much * This is the very worst of the offences committed by the periodical press. If the public will have daily newspapers — that is, works published with such haste as to render accuracy of statement and of argument impracticable — they must lay their account with errors of every kind, among others with the grossest misstate- ments being even innocently promulgated. No one can be unfair enough to blame very severely the errors flowing only from such a source ; they are the unavoidable consequences of the hard necessity under which the ephemeral work is prepared and published. But if the authors refuse to retract, still more if they persist in propagating the error after it has been exposed, the defence wholly fails, and the statement which was a mistake becomes a wilful falsehood. Nay, the unretracted error becomes a falsehood by relation backwards, if not contradicted when exposed. Now it is quite notorious that newspapers generally speaking refuse to admit such errors, nay, often persist in repeating them, for fear of injuring their credit for accuracy, and so damaging their sale. This shameful iniquity, like many others, never could be perpetrated by individuals known and accessible to the public in- dignation in their own persons. Men acting, that is, writing for publication, in the dark, whose individuality is uncertain, who may be one or may be more in number, who are not answerable in their own persons for any falsehood however gross, or any slander however foul— this anonymous tyrant, free from all control, and not even exposed to the risks which the most despotic of known tyrants cannot always escape— is licensed to do such things as we are here, in common with all honest and rational men, holding up to public abhorrence; and it must be added, that the freedom with which this licence has been used during the last twenty years has effec- tually destroyed the influence of the press, by degrading its character and by rousing a general feeling of indignation and scorn against its scandalous abuses. 42 OF PARTY. OH. V. longer the falsehoods of the press, its not sapng one word of truth, its perversion of every fact and of every reason/' The statement may be somewhat exaggerated in its detail, as speeches are wont to be which men deliver under momentary excitement ; but the foundation of the charge is wholly irre- movable. It is no light evil in any community that one part of it are trained by party to trick and deception, while another are drawn into unreflecting dupery, — that the feelings of public men are rendered callous to public opinion by seeing its oracles so often devoid of all truth and justice, — and that the dictates of right and wrong are confounded by observing how the best of party men, themselves perhaps incapable of such baseness, are yet willing enough to share in the benefits which their followers thus render to their cause. (2.) Next to the encouragement of falsehood the gratification of the malignant feelings is the worst point of the party com- pact. Indeed this is of even a more extended influence than the former mischief, because there are many who must be re- moved from all direct interest in the success of a faction, or of a factious operation, and who nevertheless are prone to gratify the spiteful propensities of their nature. This guides most partisans more or less, and converts society into a multitude of beings actuated towards each other rather with the spirit of fiends than of men. They never would feel such unworthy sentiments, assuredly they never would give them vent, but for the party spirit that moves their souls, and makes them pretend, nay, often makes them really think, that they are only further- ing an important principle when they are vomiting forth the venom of " envy, hatred, malice, and all uncharitable ness " against their adversaries. The eloquent invective of the great Italian poefc, on the effects of faction in the Italian cities of his day, is familiar to most readers ; and the pleasing contrast, which he paints with his wonted vigour and concision, of Soritello rushing to the embrace of the great Mantuan bard on simply hearing that he came from the same town with himself* The war of the * Ahi serva Italia, di dolore ostello Nave senza nocchier' in gran tempesta Non donna di provincia, ma bordello. Ah ! Italy, of crimes thou common inn, Hark -without steersman in the tempest gale, No village frail one, gentle yet though frail, > Strumpet, thy guilt's less hateful than thy din ! (;h. v. effects on inferior partisans. 43 Italian factions was carried on by arms and not by slander ; the party spleen found its vent in proscription, banishment, confis- cations, executions, tortures, massacres. But the evil plant was the same, it shot its roots into the same soil — the bad passions of the human heart ; it was. fostered by the same devices, it was sheltered from the breath of public indignation by the same self-deception, confounding selfishness with duty; its growth was encouraged and its shoots propagated by the same delu- sion which stifled the warnings of conscience, reconciled the mind to its own degradation, and thus counteracted the naturally implanted principles of its decay. The two effects of party, falsehood and malice, to which we have been adverting, have this in common, that their contagion is not confined to the higher natures which chiefs may be rea- sonably supposed to possess — they extend to the humblest of their followers. In military operations the tricks which are in- volved in a stratagem little affect the men under the command of those who devise and order it ; they are generally unaware of the part which they are called upon to execute, and have no share in the deception which is practised. Even the cruelties of which they are the blind instruments affect their moral character far less than if they unbidden performed their part in the bloody fray. But the falsehood of party warfare, and, still more, its malignity, is actively partaken of by all, down to the lowest retainer. Nor can there be a stronger illustration of this search- ing nature of the contagion than the well-knowm fact, that the humbler retainers are the most unscrLipulous and most rancorous members of every faction. You have only to compare the vio- lence of a country club or newspaper, their daring contempt of all truth, and even probability in their fictions, with the analo- gous proceedings of the factions in the capital, to be convinced how entirely the party taint permeates the mass, and how active the contagion is to gangrene the remotest extremities of the body — as the meaner parts of the natural frame furthest removed from the sources of sensation and of circulation are ever the most ready prey to mortification. (3.) The less obvious evils of party have now been enumerated and examined. Those which are most open to ordinary observa- tion need not detain us so long ; but they are not the less strik- ing for being the more obvious. It is no little evil that any commimity should be so circumstanced as necessarily to be 44 OF PARTY. CH. V. deprived of the effective services of half its citizens, whether for council in difficulties, or for defence against foreign aggression. Yet thus paralysed are states in which parties are equally balanced. Nevertheless, there is much exaggeration in the view which represents the party opposed to the ruling power as always wholly excluded from all voice in the government. That party exercises some and a sensible influence wherever the business of the state is conducted in a senate or deliberative council, open to both parties. The opposition prevents some bad measures from being carried ; prevents more from ever being proposed ; alters and amends some ; forces others upon a reluc- tant administration. So that the course pursued by the supreme power is in such states in a direction given by the combination of the two forces ; the diagonal, and not either side of the parallelogram, as we explained in the second chapter. Never- theless, though not excluded from all voice, the opposition often occasions alterations, and interposes obstacles without re- gard to the public good. The objections are taken not on their own merits, not because the measures propounded by the government are really open to objection, but merely be- cause those measures are propounded by the government. Many good measures are thus defeated ; many changes are effected in those carried, changes detrimental to the public interests. Some- times peace has been precipitated, as in the treaty of Utrecht, when the interests of the country required a perseverance in the war that had cost so much, and proceeded so successfully. But it was a Whig war, under a Whig captain, and therefore the press and the party ran it down, with its conquering general, in order that the Tories might gain a triumph over their adver- saries. What cared they if this could only be won by giving France a triumph over England ? So the most profligate oppo- sition that ever minister encountered drove Walpole into a war with Spain which his good sense disapproved, and which the party chiefs afterwards distinctly confessed to Mr. Burke that they excited solely with the view of displacing their political adversary. Among the crimes of party in modern times this assuredly stands the blackest. The peace of twenty years was broken, and Europe was involved in the countless miseries of warfare, without the shadow of a reason either in policy or in justice, solely to gratify the lust of power raging in a few families and their adherf^nts, lords of the English Crown and the English CH. V. ENCOURAGEMENT OF TREASON. 45 Parliament. The factions in the Itahan repubhcs can alone furnish a parallel to this, the most disgraceful passage in our party history. It is indeed a serious evil to any community that there should always exist within its bounds a powerful body of men on whom the enemies of the state, foreign or domestic, may, generally speaking, reckon for countenance and support. They never cease to pretend that they are far, very far, from wishing to im- pede the public service. In some instances of urgent danger hovering over the country, they find it so far necessary to court the public favour, and disarm the general indignation, as to withhold their opposition, or even to lend a faint or perfunctory support to the measures of their adversaries. In other instances, where their resistance would be hopeless, they are unwilling to incur the odium for nothing. But it very rarely indeed happens that in any posture, however critical, of public affairs, the party in opposition refrains from exercising its power if it can reckon upon defeating the plans of the government. In the modern Italian Republics, as well as in those of ancient Greece, the faction opposed to the ruling party never hesitated to join the public enemy, and to serve against their own country. No man was ever abhorred or despised, or even distrusted, for such trea- son. Indeed no man was expected to do otherwise if the motive existed for such a proceeding, and the occasion favoured its adoption. In modern times the motions of the government are impeded, and the interests of the enemy are furthered, by as sure though not so shameless a breach of public duty and violation of the allegiance which all states have a right to demand from all their subjects. That certain benefits are by many ascribed to party is well known to all who have read Burke and Fox ; and it is impossible to deny that it may be expedient, and even neces- sary, in certain emergencies of public affairs, for men who appre- hend the same peril from a policy pursued by the government of their country, to form a combination in order to resist the measures adopted or threatened, and to waive minor differences of opinion in order to act in concert and with effect, preferring, as Mr. Fox says, the giving up something to a friend rather than surrender everything to an enemy — yielding themselves to the force of the bond described by Mr. Burke as unit- ing wise and good men in all ages — that arising from an identity of sentiment upon the sum of affairs. This forms the 46 OF PARTY. CH. V. true description of the party bond, where it is justifiable, and where it is formed upon public principles. But it presents no defence of a constant and perpetual existence of factious com- binations : of dividing the whole community into two or more classevS, habitually opposed to each other ; of marshalling the people as well as the leading statesmen into bands, the members of which agree in everything with one another, but most of all in both approving whatever their chiefs propose, and in resisting whatever proceeds from the other faction. Occasional party unions for a precise definite object, or for accomplishing some desirable end, beneficial to the state, for frustrating some attempt injurious to the state, differ more widely from what is called party than the life of the habitual sot differs from that of the sober man who tastes the fruit of the vine to recreate his ex- hausted strength, or counteract a dangerous disease. Some there are, indeed, who push their defence of party a great deal further, and who hold it right that at all times there should be a party united in opposing the existing government. Their argument is founded on the advantage of the people having some combined and disciplined force to resist the body which is ever of necessity combined and disciplined on the side of power, by the pay and the rank which the possessors of power distribute. These reasoners further contend that this arrange- ment secures a thorough investigation of all measures propounded by the government, and establishes a jealous vigilance of the whole of the government's conduct. There may be some little tnith in this statement ; but surely no contrivance can be more cltimsy than one which would secure a correct working of the machine by creating obstacles that may at any moment suspend its movements ; and no check can be more costly than one which must occasion a perpetual loss of power, a loss, too, always great in proportion to the force required to be exerted ; that is in proportion to the necessity of union and the danger of dissension. Only conceive a person's astonishment who should for the first time be informed that, in order to prevent an erro- neous policy from becoming the guide of a nation's councils, one-half her statesmen, and nearly one-half her people, were continually and strenuously employed in working against the other half engaged in the public service ! " What are all these able, and experienced, and active men about ? " (would be his exclamation.) " Their whole lives are spent in political con- CH. V. DEFENCE OF PABTY, 47 tention, and are as much devoted to public affairs as those of the ruling party themselves. With what \'iews do they volun- teer their toil, and in what direction are their efforts bent ? " To this there can be but one answer given, and it would cer- tainly astound the unpractised inquirer — " The only inspiration of these men is patriotism — ^their sole object the good of theb.' country ; the course they take to pursue this end is opposing every one measure of the government — working against the whole policy of the state/' It is not to be doubted that if the credulity of the inquirer made him trust the truth of this infor- mation as to the motives of the party, his sagacity would at least incline him to suggest that the end in view might be attained by somewhat more safe and more natural means. But although we have pointed out the great evils of party and its constant hability to abuse, it must not be supposed that every one who enlists himself under party banners is therefore a person devoid of wisdom, far less of integrity. Men who really wish well to their country, and who have no desire so near their hearts as the furtherance of princijDles to which they are con- scientiously and deliberately attached, will often find themselves under the necessity of acting with others professing the same opinions as themselves, because they see little or no prospect of giving effect to those opinions ff they stand and act alone in the State. The preceding inquiiy tends to make us jealous and distrustful of party unions, and of the motives of all who form them ; but it ought not to close our ears to all that may be urged in their defence. The best proof which they who thus combine can give of their motives being pure is their patriotic conduct upon gTeat questions ; the sure proof of their course being unprincipled is their holding a different conduct on the same questions when in power and when in opposition ; above all, their dislike to see their own policy adopted by their adversaries. This is a test of their sincerity which the people ought ever to apply. 48 DEFECTS OF ARISTOCRACY. CH. VI. CHAPTEE VI. VICES AND VIRTUES OF THE ARISTOCRATIC POLITY.* Defects of Aristocracy — No responsible Rulers — No influence of Public Opinion — Comparison with other Governments— Interests in conflict with public duty — Illustrations from Roman Constitution ; Modern Aristocracies ; English and French Constitutions — Legislation influenced by Aristocratic interests — Similar Evils in Democracy — Evils of Hereditary Privileges — Tendency to make bad Rulers — Comparison of Aristocracy and Democracy — Corruption of Morals— Virtue of French Republicans —Galling yoke of Aristocracy — Merits of Aris- tocracy ; firmness of purpose — Resistance to change — House of Lords — Contrast of Democracy — Republican attempts to resist the Natural Aristocracy — Aristo- cracies pacific — Exceptions, Venice and Rome — Encouragement of Genius — Comparison with Democracy and Monarchy — Spirit of personal honour — Con- trast of Democracy — Y. Paul's opinion —Aristocratic body aids the civil Magis- trate— Error committed in our Colonies. The vices of aristocratic government are inseparable from its nature, capable only of some mitigation, wholly incapable of entire counteraction, affecting other governments in which the aristocratic principle exists though mixed Avith the monarchical or the democratical, and affecting these more or less according as the aristocratical principle enters more or less largely into their respective systems. We are now to examine the vices, and afterwards to consider the redeeming virtues of the aristocratic polity. 1. The first and fundamental defect of this government is that supreme power is vested in a body of individuals wholly irre- sponsible. That the supreme power is vested in one body with- out any control from others is doubtless a great defect ; but it is only a defect which every pure form of government has, ever}'- government which is not mixed ; it is the very essence of the pure as contradistinguished from the mixed forms of govern- ment. But the lodging of supreme power in persons not indi- vidually responsible is the vice of all popular government, and of an aristocracy as much as a democracy — indeed much more ; because no democracy can exist without either the occasional or the periodical exercise of a controlling power by the body of the people. If those to whom the supreme power is confided are * Some of these, especially the evils of party, have been already examined. But party is not so peculiar to aristocratic government as the incidents here treated of. CH. VT. KO RESPONSIBILITY IN AN ARISTOCRACY. 49 not bound at certain intervals to come before the people, either for a confirmation of their acts or for a renewal of their trust, the government is no longer democratic, but aristocratic, or oli- garchial. While the democratic rulers exercise the powers of their trust, they are Uke the nobles in an aristocracy, screened from individual blame or attack by belonging to a large body, all of whom are implicated in the acts of the state. The main difference, and a most important one, is that they must account to the people, either when their acts come to be confirmed, or when their term of office expires ; whereas the nobles in an aristocracy never can be called to any account. It thus happens that these irresponsible persons have neither the institutional check to their conduct, nor the natural check, neither rendering any account nor suffering any penalty for malversation, nor yet watched and prevented by the force of public opinion. He who is only the member of a council con- sisting of five or six hundred, or even fifty or sixty persons, has the blame of misconduct, and the responsibility for failure, so much divided with his colleagues, that he cares little for the rateable share of it that falls upon himself What member of the Venetian Great Council cared for the imprecations of the people ? Who regarded the horror generally excited by such atrocious acts as the judicial murder of Carmagnola against every rule of justice, or the cruel and unending persecution of Foscari?* No single ruler, no council of eight or nine members under an absolute monarchy, would have dared to perpetrate such wicked- ness, especially when barbarous cruelty was complicated with base, and revolting, and despicable fraud. So, what Roman senator felt scared at the thoughts of the popular odium which the decrees of the senate raised against it in the Marian and Syllan contests ? —What member of our own House of Lords takes very sorely to heart all that at various times is flung out of scorn, or ridicule, or hatred, against hereditary lawgivers, in order to assail that illustrious senate ? Nor is it only that any given person may be in the minority who had no hand in doing the act reprobated. Even those who Avere its supporters, nay, its promoters, hide themselves in the number who concurred, and among them escape from all serious censure. * These will be fully treated of when we come to examine the Venetian consti- tution, PART II. E 50 ■ VICES AND VIRTUES OF ARISTOCRATIC POLITY. CH. VI. We have seen how the party union divides and even destroys all individual responsibility. Just so does the association of all the nobles forming the aristocracy, and thus governing the country. Each keeps the other in countenance, and all screen themselves under the name of the order. We have seen (Chap. V.) how all the members of a party do things for its benefit which none of them would venture to do for his own advantage. Just so do all the nobles join in doing things for the benefit of their order, the ruling body, which each would be scared from attempting on his own account by the dread of public censure or of per- sonal consequences. " It is all for the interest of the party," say the members of a faction. — " It is all for the interest of our order," say the nobles. The prince is but too much disposed to look only among princes for his public, and to regard their praise or their blame as all he has to consider. But he is far less confident in the fellow feeling of the small circle he lives in, and which he calls the world, than the aristocracy, because they are a numerous body, and each of their number can well look to the class as the public, the people, the world, none other having any voice, from the nature of the constitution, in state affairs^ It is the constant and invariable disposition of all men in resolv- ing upon the line of conduct which they shall pursue, so far as they shape it by public opinion, to cast their eyes rather upon their own class than the world at larcje. Judges and advocates look to the bar ; " The opinion of Westminster Hall " is a well- understood expression among our own sages of the law ; it is almost to them synonjnuous with the opinion of mankind. If our statesmen do not confine their reo'ards to the chambers of parliament, it is because they are subject to the direct interposi- tion of the people out of doors. Were there no House of Com- mons, and were the whole powers of government vested in the peers, each patrician would look to that body alone, and shape his conduct in accordance with its views. The case supposed would be a pure aristocracy ; and this is the first and fundamental vice of that scheme of polity. The supreme power is vested in the hands of men who form a body numerous enough to be to themselves as the whole world, and those men never look beyond it. The tendency of the constitution is to place them wholly above the influence of public opinion, which restrains even tyrants in their course. In modern times, it is true, this CH. VI. NO FEAR OF PERSONAL DANGER. 51 irresponsibility never can be complete, because the natural aristocracy interferes with it. The respect due to talents, learn- ing, wealth, even virtue, obtains for those who belong not to the privileged class a certain weight in society ; and their opinion will be in some degree regarded by the members of the rulmg body. But such a control must always be exceedingly slight and uncertain, compared with its effects upon the very few men, or the single man, who in a monarchy wields the supreme power of the state. 2. The want of individual responsibility in an aristocracy does not stop here. As the nobles, the rulers of the state, are uncon- trolled by public opinion, they are also removed above the check which acts, and alone acts, on the prince in absolute mo- narchies ; they have little or no fear of personal violence. Their numbers place them in a condition to resist any ordinary tumults ; and the risk of assassination, which even sultans and czars run, is very little thought of by individuals who form an indestructible body. Were there a powerful leader to whom the 23ublic indignation might point, he would be exposed to this peril ; but there can be no such chief in the ordinary times of an aristocratic government, all the efforts of the governing body being directed to prevent any such influence from being ac- quired as directly tending to subvert the constitution. Hence the people can only conspire, or rise against the whole order, and this risk is little heeded by individuals, or by the body at large. At the same time, as a general rising of their subjects, excluded from all participation in the administration of affairs, might be the result of great oppression, the nobles of Venice, the most lasting of all aristocracies, took care to govern with a light and kindly hand, and reserved the principal exertions of arbitrary power, as we shall hereafter see, for the factions, con- spiracies, and ambitious views which might arise among the members of their own order. 3. It is the worst of all the vices of an aristocracy that the interests of the ruling body are of necessity distinct from those of the community at large, and consequently their duties as governors are in perpetual opposition to their interests, and therefore to their wishes as individuals and as members of the government. Somewhat of the same vice no doubt belongs to a monarchy, and is corrected by the other bodies who share with E 2 52 VICES AXD VIRTUES OF ARISTOCRATIC POLITY. CH. VI. the sovereign in a mixed monarchy. But there is this great difference in an aristocracy, that the conflicting interests in a prince are confined to himself, his own amassing of wealth, his own indulgence of personal caprice, his own partiality to his family and adherents ; whereas in an aristocracy there are hun- dreds of families, all of whom with their dependents are singled out as objects of exclusive favour, and clothed with peculiar privileges, which must necessarily be enjoyed at the expense of the whole community. We have only to consider the legislation of Rome in the early or aristocratic times of the Republic to satisfy ourselves how unremittingly and how shamefully the pa- trician body Avill exercise the supreme power which resides in it for its own exclusive benefit, and in contempt of the people's interests. The public land was almost wholly monopolised by the governing class. Some small portion having originally been bestowed on the plebeians, the acquisitions obtained by con- quests which their toil and blood had made were retained in the hands of the state, but enjoyed entirely by the patricians as tenants at a nominal rent, and tenants who could transfer and mortgage their possessory titles at pleasure. The people too were prevented from exercising any but the meaner kinds onl}^ of trades, besides cultivating their pittance of the soil ; while the lucrative kinds of trafiic, and that of the sea, were reserved for the nobles. Then the capital which they were thus enabled to amass was lent at heavy interest to the poor plebeians, and the rigour of the law against debtors placed them under the most strict and cruel control of the patricians. Lastly, the military force of the state was supplied entirely by the plebeians, while for some ages the places of rank in the army, raised by a strict conscrip- tion, were reserved for the upper classes. All this is inde- pendent of the laws which secured the exclusive powers of government and enjoyment of offices to the nobility. We shall hereafter see the like fruits of patrician dominion in the Spartan legislature, and in that of the Italian aristocracies ; but no in- stance is so striking as that which the Roman history affords. It is the same in a more limited degree with several governments which give a preponderance to the aristocracy, and the mischief bears always a pretty exact proportion to that preponderance. The Swiss republics and the Polish and Hungarian constitutions will furnish us with illustrations of this proposition ; but the history of CH. VI. INTERESTED AEISTOCRATIC LEGISLATION. 53 our own legislature in England is not barren of such examples ; and the almost entire extinction of aristocratic influence in France may be reckoned a principal cause of the tendency which the leois- lature of that great, opulent, and flourishing country has in recent times exhibited towards popular arrangements. Not going back to feudal legislation, but reserving that for a separate consideration of the Feudal Aristocracy, we need only recur to the times after that feudal government had ceased, and only left behind it the influence of the aristocracy in the mixed monarchy, to find examples in abundance of its effects upon the course of legis- lation. Beside the laws made, and those retained against all principles of sound policy, and against the most important in- terests of the community, in order to retain the preponderance of the patrician body, laws restraining the commerce in land, and restricting the popular voice in the legislature — we find im- portant advantages granted to landowners above the owners of all other property. There is no occasion to enumerate more than a very few of these. The right of voting for members of parliament has never been severed from the possession of land, except in the two cases of the freemen in boroughs and the three universities. A man may possess a million of money in the funds, or acquired by commerce, and he has no voice in choosing his representatives, though the owner of an acre or two of land has his vote, and may have it in every county in which he owns an acre or two. While the law of settlement continued in its original rigour, any pauper might, though not actually charge- able, be conveyed from the place of his residence to that of his birth ; but if he owned the corner of a freehold anywhere, he might there abide and defy the unparalleled cruelty of that law. While the tax falls heavy upon succession to personal estate, the produce of a man's genius and toil for a whole life of hard fare and hard work, and pinching economy, endured by his family or by himself, and at the moment of their succession, when it may be the most wanted, this hard-earned but well- gotten treasure is condemned to pay large tribute, while the broad acres that have descended through a long line of lazy ancestors wholly escape the hand of the tax-gatherer. The laws affecting the rate of interest and the commerce in grain may no doubt be defended, the one upon the score of a tender regard for the interests of poor debtors, and the other on the ground of 54 VICES AND VIRTUES OF ARISTOCRATIC POLITY. CH. VI. securing a steady supply of food to the people ; but we cannot sliut our eyes to the fact, that these objects are accomplished, through benefits in the first instance conferred, or supposed to be conferred, upon the landed aristocracy, whose incum- brances are somewhat diminished, and whose rents are materially increased by the prohibitory system ; and we may further be assured that their persuasion of its being for their benefit has always worked powerfully in making them so zealous to up- hold it. As regards the administration of public affairs, the interests of the aristocracy as a body are always sure to be consulted, and not those of the people. But individuals are not likely to obtain the gratification of their selfish desires at the public ex- pense— the rest of the order are sure to have their jealousy aroused by any such attempts. If, however, one party obtains the decided mastery, there will be nothing to prevent its fla- grantly sacrificing the interests of the community to those of its own adherents. The only check upon such gross malversation is to be found in the party combinations of their adversaries, and this benefit of the party principle, together with the price paid for it, we have already examined at length. Generally speaking, we may lay it down as certain, that the gross malver- sation by which individual interests are predominant over those of the community at large will be found more easily affected and consequently carried to the greater excess, by the ruling party of a democratic, than by the predominant faction of an aristocratic republic. There can hardly be conceived under any form of polity a more absolutely tyrannical rule than that of the dominant body in a democracy when it has, as in order to rule for any length of time it must have, the full support of the great mass of the people. A refuge from this intolerable tyranny is only to be found in a balance of conflicting parties, which renders the community a scene of unceasing factious broils, hardly con- sistent with the existence of a regular government, and wholly incompatible with a tranquil and orderly condition of civil society. 4. The principal, certainly the most glaring defect of a mo- narchy IS, that the hereditary succession, which is an essential part of the system, deprives the community of all security for those qualities being found in its ruler which are most essentitd CH. VI. TENDENCY TO GIVE BAD RULEIIS. 55 to the public good. The chances of birth expose the state to perpetual risk of either a wicked, or an imprudent, or an imbe- cile ruler becoming intrusted with the sum of affairs. So an hereditary aristocracy exposes the country to a like risk of per- verse or incapable persons being intrusted with supreme power. The aristocratic form, then, has this vice, in common with the monarchical, but has not the redeeming quality of avoiding, by hereditary succession, the turmoil and the shocks to public tranquillity which arise from a conflict for power. On the con- trary, we have seen that the factious tendency is more predomi- nant in this than in any other constitution. It must nevertheless be admitted that the risk of many incapable or wicked rulers being found in the body of the nobles is far less considerable than the risk of a wicked or incapable ruler becoming the sove- reign in a monarchy. In one respect the two forms of govern- ment approach to a closer resemblance. The education of the rulers in both is such as peculiarly to unfit them for worthily exercising the high functions of their station. The trainino- of patricians, next to that of princes, is pecuharly adapted to spoil them. They are born to power and pre-eminence, and they know that, do what they will, they must ever continue to retain it. They see no superiors ; their only iutercourse is with rivals or associates, or adherents, and other inferiors. They are pampered by the gifts of fortune in various other shapes. Their industry is confined to the occupations which give a play to the bad passions, and do not maintain a healthy frame of mind. Intrigue, violence, malignity, revenge are engendered in the wealthier members of the body and the chiefs of parties. Insolence towards the people with subserviency to their wealthier brethren, are engendered in the needy individuals of a body which extends ail its legal rights and privileges to its present members — too proud to work, not too proud to beg, mean enough to be the instruments of other men's misdeeds, base enough to add their own. There can be no kind of com- parison between the education of rulers in a democratic, or a mixed constitution and an aristocracy ; there can be no kind of comparison between the tendency of republican and of aristo- cratic institutions, and their sinister effects on the characters of men engaged in administering their powers. The democratic regimen is, in all respects, incomparably more wholesome to the 56 VICES AND VIRTUES OF ARISTOCRATIC POLITY. CH. VI, character, and more useful in forming virtuous and capable men — men whom it is safe and beneficial for a community to trust. 5, The tendency of an aristocracy is further to promote general dissoluteness of manners, self-indulgence and extrava- gance, while that of a democratic government manifestly inclines towards the severer virtues of temperance, self-denial, frugality. Rapacity, or any care for amassing wealth, is little known in a pure republic : it confers no distinction until the time arrives when it can give influence and power, and then it becomes a subject of general and perilous suspicion. But individual wealth is congenial to the aristocratic constitution. When the Committee of Public Safety governed France for fifteen months, and almost disposed of the riches of Europe as well as of France, these decemvirs only allowed themselves ten francs (about nine shillings) a-day for their whole expenses. Each month there was issued to the Ten a rouleau of three hundred francs (about twelve pounds) for their whole expenses ; and when Robes- pierre, St. Just, and Couthon were put to death on the 10th Thermidor, 1794, there were found in the possession of each no greater sum than the seven or eight pounds of their rouleau which remained unexpended. These men had for many months the uncontrolled management of millions, subject to no account whatever. 6. The qualities which an aristocracy naturally engenders in the ruling class of insolence, selfishness, luxurious indulgence, are extremely calculated to render their yoke oppressive and galling. Accordingly there is no form of government more odious to the people. We naturally feel much less repugnance to the superiority of a sovereign, removed far above us, than to one more near our own level. The same sentiment which makes the rule of an upstart, lately on a footing with ourselves, intolerable, makes the rule of a nobility more hateful than that of a prince. It is more humbling to the natural pride and self- love of man. It is, besides, more vexatious, because it is less remote. The sovereign comes very little in contact and conflict with the body of the people ; the patricians are far more near, and their yoke is far more felt. The general tendency of aris- tocracy is not only to vex and harass, but to enslave men's mincls. They become possessed with exaggerated notions of the importance of their fellow citizens in the upper classes : CH. VI. OPPRESSIVE NATURE OF ARISTOCRACY. 57 they bow to their authority as individuals, and not merely as members of the ruling body — transferring the allegiance which the order justly claims, as ruler, to the individuals of whom it is composed ; they also ape their manners, and affect their society. Hence an end to all independent, manly conduct. We are now speaking merely of a proper aristocracy, or one in which the supreme power is held by a body of nobles in their corporate capacity. If to this be added the possession of power by each or by many individuals of the privileged order, as in the Feudal System, the grievance is infinitely greater ; but of that we are to treat separately. The general unpopularity of an aristocracy underwent an exception in the remarkable instance of Venice. The ruling body in that celebrated republic, and the govern- ment generally, was exceedingly popular. In the Roman re- public the case was widely different. While the aristocracy continued unmixed nothing could be more odious to the people ; and the constant struggles between the patricians and plebeians, frequently breaking out in open revolt, and all but civil war, still more frequently demanding a dictatorial magistracy to save them from it, were a sufficient proof that the constitution was unpopular, notwithstanding all the superstitious reverence of the Romans for established things, and all their devotion to the inte- rests of their country. We are now to see if the aristocratic constitution possesses any redeeming qualities, any virtues to be set in opposition to so many imperfections. It is by no means devoid of such merits, although they may not amount to anything like a complete equi- poise in the scale. 1. There cannot be any doubt that the quality of firmness and steadiness of purpose belongs peculiarly to an aristocracy. The very vices which we have been considering lead naturally to this virtue, and it is a very great merit in any system of government. The members of the ruling body support each other — they disregard all sudden ebullitions of popular discon- tent— they will not partake of sudden panics— nor will they abandon plans of policy foreign or domestic on the first failure, as the multitude are ever prone to do. A system of administra- tion, a plan of finance, a measure of commercial or agricultural legislation, a project of criminal or other judicial administration —may seem to have failed, yet the patrician body will give it 58 VICES AND VIRTUES OF ARISTOCRATIC POLITY. CH. VI. a further trial. They adopted it on mature deliberation, and not on the spur of a passing occasion ; they will not be hastily driven from it. So if hostilities have been entered into, the first disaster disposes the multitude to wish for peace at all hazards — they who had, perhaps, driven the government to rush into the war. But if the aristocratic rulers have taken the field they will stand the hazard of repeated defeats, and only abandon the struggle when it has become desperate, or when an opportunity presents itself of making an advantageous peace. The admirable conduct of the Venetian government will afford us signal illustrations of this position. 2. Akin to this merit is the slowness with which such a govern- ment is induced to adopt any great change. Indeed, resistance to change is peculiarly the characteristic of an aristocracy ; and the members of the ruling body and their adherents obtain at all pe- riods, in a greater or less degree, the power of stemming the revo- lutionary tide. This makes them equally resist improvements ; but it tends to steady and poise the political machine. The same quality of resisting change, and the same general firmness of pur- pose, belong to the aristocratic body in all mixed governments. In these it is productive of great benefit upon the whole, although it not unfrequently stands in the way of improvements, both con- stitutional, economical, and administrative. The history of our own House of Lords abounds in examples sufficiently striking of these truths. Whatever faults their enemies have imputed to the peers as a body, no one has been so unreflecting as to deny them the praise of firm, stedfast resolution, and of acting up to their resolves. But for their determination to resist measures which they deemed detrimental to the state, or to which they had objections from a regard for the interests of their own order, many measures of crude and hasty legislation would have passed in almost every parliament. If ever they have yielded it has been when the voice of the country at large was so unanimous, and when they were so divided among themselves, that a further resistance became attended with greater mischiefs than any which they could ascribe to the operation of the proposed changes. One, indeed the most remarkable, instance of this concession was their suffering the Reform Bill, in 1832, to pass, by seceding from the struggle. But the crown and the people were then united, and a creation of new peers, fatal to the aristocratic CH. VI. RESISTANCE TO CHANGE. 59 branch of the constitution, would have been the inevitable con- sequence of the bill being rejected. Of this its adversaries had timely notice, and they very wisely and patriotically suffered it to pass by their secession. They have since amply regained any influence which they then lost ; for, during the last ten years, they have had a preponderating share in the government of the country. The tendency of every government, as well as an aristocracy, is to resist change ; and self-preservation is, with forms of polity as with the human frame, the first law of nature. But it may be doubted whether the aristocratic form be not above all others iealous of change, quick to perceive a risk of it in every measure of improvement, and averse to whatever may by any possibility, how remote soever, arm any other class than the ruling order with the power of shaking or of sharing its dominion. It is quite clear that the democratic system has the least of this jealousy, and tends the most to promote plans of general improvement, because whatever improves the j)eople's condition augments their influence and confirms their supremacy. All jealousy is in this system directed against individual ambition and the formation of a privileged class. Attempts are made to prevent the accumula- tion of wealth, as regards landed property. Those attempts are frequencly successful, by restraining the power of devise ; and similar efforts are made, and always vainly made, to resist the force of the natural aristocracy in other particulars. The pride of ancestry, and the distinctions thence arising, can never be era- dicated : but the prevention of any substantial privileges from accruing to those who are well descended is not at all difficult ; and any such distinctions as would be conferred by an order of merit are carefully withheld even from the highest civil and military services. The project in America of a society or order of civil merit, the Cincinnati, soon after the revolutionary war had ended, and the independence was established, met with some support ; but it was speedily frowned down by the general opinion of the democratic party, and no similar attempt has ever since been made. Bestomng all offices for a very short term is the constant expedient resorted to for obstructing plans of indi- vidual ambition ; and the tendency of war inevitably to raise up a body of powerful men, frequently a single person of predomi- nant popularity and influence, has, in America, combined with 60 VICES AND VIRTUES OF ARISTOCRATIC POLITY. CH. VI. the other happy circumstances of its j)osition, discouraged all military spirit, and tended to preserve the public tranquillity. To such precautions as these the republican jealousy of chauge is generally confined, while free scope is given to all improve- ments, and encouragement afforded without any obstruction whatever to all the exertions by which individuals can either better their own condition or extend the prosperity of the com- munity. This is one of the greatest merits of democratic govern- ment ; and it stands in a very marked contrast to that extreme aj^prehension of all change which pervades both absolute monarchies, and still more aristocracies, making the rulers habitually apprehensive of every movement, however slight, and consequently of almost every improvement that can be projected — haunting them with incessant alarms, and causing them to resist all the advances which the people can make, not merely for the progress itself at any given moment, but for fear of its leading to other changes unseen, or only seen through the mag- nif3dng power of their jealous fancy. We might have set down this as among the worst vices of the aristocratic system, but that it naturally connects itself with that conservative spirit and power of resistance which in any given constitution must be deemed a merit ; it is the excess and the abuse of the conservative j^rin- ciple. 3. It is not to be denied that an aristocratic government will generally be found to be a pacific one. This grea.t virtue, cover- ing as it does many transgressions, it owes partly to its dislike of change, partly to its being ill adapted for military movements, but chiefly to its jealousy of individual eminence, likely to be raised upon the ground of military success, and to the want of any gratification of individual ambition in the progress of con- quest. When the Venetian Government addicted itself to con- quests, it was obliged to adopt the plan of entrusting its armies and navies only to foreign mercenaries, in order to escape the dangers of usurpation and change of government. The Roman aristocracy is a more remarkable exception to the rule ; but the popular party, the weight long acquired by the plebeians, had a great share in forming this warlike propensity. Sparta was at all times averse to war, and at all times proved inefiicient as a military power. 4. We may undoubtedly set down as a merit of aristocratic CH. VI. ENCOURAGEMENT OF GENIUS— POINT OF HONOUR. 61 government that it tends to bring forward genius and encourao-e attainments in various branches of human enterprise — not merely poHtical talents, but those connected with the arts and with letters. The tendency of a democratic republic is to let talents be brought into action by the stimulus which it gives to all men, and the opportunity which it affords to all classes, of rising to eminence equally. The aristocratic government throws in- superable obstacles in the way of political, and many in the way of judicial and of military capacity. But it encourages all genius in the arts and in letters. The democratic constitution en- courages talents also in those departments, but the aristocratic fosters genius of a higher order by the more refined and exalted taste which it produces and diffuses. The Italian aristocracies afforded the most celebrated examples of this merit, and the influence remains manifest to our day in the imperishable works of the fifteenth and sixteenth centuries. In this merit the aristocratic materially excels the monarchical constitution. 5. Akin to this is the excitement and preservation of the spirit or principle of personal honour. No government so manifestly excels in fostering this high sentiment as the aristocratic ; and an aristocracy, whether the sole ruler or bearing its share of rule in a mixed monarchy, is remarkable for its beneficial in- fluence in this important particular. The manner in which it thus acts is obvious. Men who belong to a limited and pri\d- leged body are under the constant and jealous superintendence of all their fellows, strict in preserving pure the honour of the whole class, and resolved that no one baseness shall be suffered to tarnish it. They feel much less repugnance to crimes, how- ever hurtful to the community, which imply no personal degra- dation, and feel no repugnance at all to crimes of fraud and perfidy as well as of cruelty committed by the whole order for its own interests. But they will suffer none of their class to incur degradation whereby the body may suffer without its interests being at all furthered. In a democracy no such senti- ments have any necessary place, nor have they in an absolute monarchy uncombined with aristocratic institutions. In the for- mer, stern virtue is held in high esteem, and any breach of the law, or disregard of moral obligation, is regarded with aversion. But the delicate sense of personal honour is lightly valued ; and a coarseness of manners and want of all refinement accompanies (J2 VICES AND VIRTUES OF ARISTOCRATIC POLITY. CH. VI. a more rigid conformity to the laws and more strict regard to moral duties. The sacrifice of all considerations in a pure aristocracy to the honour of the ruling order is exemplified by ^vhat Father Paul lays down as a clear duty in his ' Opinione 2ier il perpetuo Dominio di Venezia! " If," says he, " a noble injure a plebeian, justify him by all possible means ; but should that be found quite impossible, punish him more in appearance than in reality. If a plebeian insult a noble, punish him with the greatest severity, that the commonalty may know how peril- ous it is to insult a noble." 6. It is certain that the existence of an aristocratic body in any state, whether it be mixed with monarchy or with democracy, greatly tends to promote order, and to facilitate the administra- tion of affairs, by aiding the magistrate in maintaining subordi- nation. The manner in which a gradation of ranks produces this important effect is obvious ; equally obvious are the evils which necessarily arise from the want of such a controlling in- fluence— an influence ever superseding the more harsh appeal to the direct force of the executive power. We shall find abun- dant proofs of this when we come to examine the American and other democracies. At present we may only remark, that a very great error has been committed in our remaining colonies, those of North America especially, in not introducing into their system an aristocratic body. The plan of Lord Grenville in 1791 (for his it was) contained the groundwork of such an addition ; but it has never been built upon. OH. VII. INDIVIDUAL INFLUENCE IN ARISTOCRACIES. G3 CHAPTER VII. OF THE FEUDAL ARISTOCRACY. Individual influence in Aristocracies — Partial delegation of supreme power — Feudal and Civic Nobility in Italy — Polish Aristocracy — Operation of Feudal Aristo- cracy on Government — Illustration of Feudal Aristocracy from English History — Monkish Historians — William of Malmesbuiy — William of Newbury — Matthew Paris — Roger Hoveden — Henry of Huntingdon. We bave hitherto treated of the aristocratic government, in which a select body of hereditary nobles exercise the supreme power, to the exclusion of all others, and in which each member of that body, possessing the same privileges with his fellows, only has by law the portion of power that falls to his share as one of the ruling order. But no such scheme of polity can exist for any considerable time without these individuals acquiring personal weight and influence, not merely with their colleagues, but over the subject-classes ; and this will vary in different indi- viduals according to their wealth, their descent from eminent per- sons, the services they have rendered, the capacity they possess, in short, according to the distribution of the natural aristocracy, which has already been treated of at large. The power of an aristocratic government therefore must always consist, not merely of the supreme or corporate power vested in the ruling body and exercised by its majority, but also of the influence and authority possessed by its individual members in common with all other eminent members of the community, though greater in them, as belonging to the ruling body. It may, however, well happen that the institutions of the coun- try vest direct influence in the individual members of the patrician body, and that they thus possess individually an authority and per- sonal weight beyond that which the natural aristocracy would give them, and beyond that which the individuals of the subject-classes derive from equal wealth, descent, talents, or services. Not only 64 OF THE FEUDAL ARISTOCEACY. CH. VII. may they be protected in their persons from legal process to which others are amenable, as for debt, subjected to different jurisdic- tion for offences, endowed with titles of honour, distinguished by precedence in rank while not exercising their political func- tions, exclusively eligible to fill important offices — all of which prerogatives are almost inseparable from their position as mem- bers of the governing body ; but they may have attached to their possessions, or even to their persons, rights of a valuable nature, and tending to bestow much individual authority. They may have the exclusive power of being followed by trains of retainers ; exemptions or other privileges may be attached to those retainers ; their property may be exempt from burdens to which others are subject ; they may have direct authority over their retainers, and over all who dwell upon their property ; they may have judicial, and they may have military power over their dependents ; in a word, the supreme power of the state may to a certain extent be delegated to them, subordinate to the ruling body indeed, but supreme as regards their inferiors. We have already shown at great length how the scheme of polity, which grew up all over AVestern Em-ope after the dissolution of the Roman Empire by the inroads of the northern nations, created a class of privileged persons, whose individual power was connected with the possession of land, and who exercised over those to whom portions of their land were given u|)on cer- tain conditions, an authority much greater and more constantly effectual than any which the sovereign could exercise over them- selves. The sovereign power in such a state may either be held by an individual, as in the feudal monarchies, or by a body, as in the feudal aristocracies of the middle ages. But in either case, the barons, the noble landowners, or holders of noble fiefs, form a peculiar body, whose powers are not exercised by the whole as a corporation, but by each chief in his own district. According to the principles of the Feudal System all land was held in grant either immediately or mediately from the prince. He was the over-lord of all, and no one could hold any real property except as rendering him service and owing him allegi- ance in respect of it. All sub-tenants held of their immediate lords in the same manner. Therefore, when an aristocratic government sprung up, or a democratic, in the Italian states, it was among the nobles who held of the Emperor, the com.mon CH.VII. FEUDAL AND CIVIC ARISTOCRACIES. 65 lord paramount, or among the citizens of the towns who had grown into importance and acquired privileges, or it was among the vassals of the great feudatories — the princes subordinate to the Emperor ; but in all cases of feudal nobility there was an over-lord, and no nobles held their lands of any corporation, or of any aristocratic body, even where those corporate or aristo- cratic bodies had thro\m off the Imperial yoke and obtained the supreme power in the commonwealth. The feudal nobles often inclined towards their liege lord in the contest between him and the towns ; but they generally endeavoured to maintain a sub- stantive powder in their own body, and to resist the encroach- ments of the civic nobility. They in every case failed sooner or later, and were at length obliged to enrol themselves in the civic companies, in order to protect themselves from the encroach- ments of the popular body, or of the city aristocracy, and in order to obtain their share of the political power set up in defiance of the Emperor. But whether they united in this manner with the citizens, or retained their separate condition, they exercised great individual influence, from their possessions and the num- bers of their adherents. In all the Italian towns, as we shall hereafter find, they had their houses fortified like castles, and they exerted their individual influence by levying bodies of armed adherents, with whom they waged war against one ano- ther, to the great disturbance of the public peace, and often to the subversion of the established government. The part of Italy where the feudal nobility exercised most power was in the states afterwards possessed by Venice on the mainland. The nature of the ground contributed much to produce this effect. The hilly or strong coimtry extended in those parts to no great dis- tance from the towns, so that the fastnesses of the barons were near the scene of action, and afforded them strongholds from whence they could sally at the head of their followers, and to which they could always retreat. Under shelter of those castles theh retainers could hold out against the burgher militia. Poland affords another and a remarkable example of feudal aristocracy — in some respects the most remarkable of any. The government was not a pure aristocracy, because the crown, though elective, was conferred for life, and had some consider- able share of authority down to the first partition in 1772, after which it became nearly as nominal as that of the doge at Venice ; PART II. F 66 OF THE FEUDAL ARISTOCRACY. CH. VII. but at all former periods the effectual powers of legislation and the most important executive functions were possessed by the nobles, while those nobles excluded the people at large from all share whatever in the government, and each noble possessed more or less of feudal authority and privileges, in proportion to the extent of his demesnes and the number of his vassals. The tendency of the individual power possessed by the nobles of any country to support the aristocratic government established in it is by no means certain, and is evidently not unmixed with a tendency of the opposite kind. If, indeed, the force of the law be complete, and no individual can either violate its provisions or act against the interests and security of the whole body, whatever influence each member has over ■ his retainers must contribute to the strength of the government. But this supposes not only a complete efficacy in the law to prevent all sedition and conspiracy — it supposes also an entire absence of party and its combinations, and this we have found to be peculiarly difficult to conceive in an aristocratic constitution, Now as soon as such combinations exist it is manifest that the greatest mischiefs both to the peace of society and to the stability of the government must arise from the power of individual nobles, and little less than anarchy can be expected to prevail in a community so constituted. The whole history of the Italian commonwealths, and much of the Polish history, is one continued scene of the faction, confusion, and civil war arising from the power of individual nobles. In Italy their fortified houses, or castles, were the theatres of regular sieges. Their bands of fol- lowers, acknowledging no law but the will of their chief, carried on war against each other as if they were the subjects of separate and independent princes. The change of ministry, as it would be called in our more quiet days, was the elevation by force of one party to power, and the expulsion of their adversaries, generally attended with the razing to the ground of all their castles, and the massacre of such o23ponents as did not fly. But no country under the dominion of the feudal aristocracy could be said to possess a regular government. France and Germany were, under their monarchs, as much a prey to civil anarchy as Italy and Poland, except that the aristocratic or democratic power in the smaller commonwealths of the south had even less force than the power of the crown in the north to restrain and CH. VII. ENGLAND UNDER THE FEUDAL ARISTOCRACY. 67 control the turbulence of the barons. We have already examined at such length the nature and effects of the feudal scheme where it prevailed, that it is only necessary the reader should be re- ferred to those chapters of the First Part in which this important subject is discussed (Chap. viiL ix. X.). But we shall here add an illustration of the state of government and society under the feudal aristocracy in the middle ages ; and though it is not taken from the history of the Italian or Polish republics, but from that of England, exactly the same state of things must have prevailed among them, only that their annalists have given us less minute information respecting its details. The subject is also curious, as illustrating our owm early history, and showing, if any proof of that were wanting, the folly of those ignorant and unreflecting persons among ourselves who are fond of bidding us look to the more ancient periods of our government for the perfection of the English constitution. The period to which we shall now refer was immediately preceding the reign of King John, and the granting of the great Charter ; and that important act being on all hands admitted to have been merely declaratory, all the praises lavished on the original form of our polity must l^e understood as being applicable to the reign of King Stephen, of which we are now about to speak. The Monkish Histories certainly may be relied on for the general descriptions which they give of the state of the country, unless in those instances with which ecclesiastical controversies and the interests of the church are concerned ; and, above all, they may be trusted as not exaggerating in their accounts of enormities committed by prelates or other churchmen, as well as by lay barons. William of Malmesbury flourished in the worst of the times which he describes, about the middle of the twelfth century. His work is dedicated to Robert of Gloucester, son of Henry II. The following is his account of the year 1140 : — " The whole of this year was defaced by the horrors of civil war. Castles were everywhere fortified throughout the whole of England, each sheltering its own district, nay rather, to speak more correctly, laying it waste. The soldiery issuing forth from them carried off the sheep and cattle, not sparing even the churches or the cemeteries. The houses of the wretched peasantry were stripped of everything to their very straw thatch, f2 68 OF THE FEUDAL ARISTOCRACY. CH. VII. and the inhabitants bound and flung into prison. Many of them breathed their last in the tortures which were inflicted on them in order to force them to ransom themselves. Nor could even bishops and monks pass in safety from town to town. JSTumbers of Flemings and Bretons, accustomed to live by plunder, flocked to England to share the general booty." — {Will. Malm., 185.) " Such," says the author of Gesta, Regis Steiohani, 961, " such was the doleful aspect of our miseries, such the most dishonour- ing form of the sordid tragedy (qucestuosce tragedice inhones- tissimus 'modus) everywhere openly exhibited in England. Prelates themselves," he adds, " shameful to tell, not indeed all of them, but very many, or a great proportion of the whole {non tamen ommes, sed ijliiriimi ex ommihus), armed and fully ap- pointed, and mounted, did not scruple to join the haughty spoilers of the country, to partake of the plunder, and putting to the torture, or casting into dungeons, whatever soldiers they took, and imputing to their soldiery all the outrages of which they were themselves the authors. And to say nothing of the others (for it would be indecent to blame all alike), the principal censure of such impious proceedings fell ujDon the Bishops of Winchester, Chester, and Lincoln, as more intent than the rest upon such evil courses." — (Lib. ii. p. 962.) The treatment which the crown met with from the barons is thus described by William of Malmesbury, speaking of the year 1138: — "Their demands from the king had no end: some would ask lands, some castles ; in short, whatever they had a mind to, that they must have. If ever he delayed granting their requests, straightway they became incensed and fortified their castles against him, plundering his lands to an enormous amount. The king's profusion never could satisfy them ; the earls who had not already been endowed with crown lands rose against him ; they became more greedy in their demands, and he more lavish in his grants." — (Lib. i.) William of Newbury informs us that " he, the least of the saints of Christ, was first born unto death in the first year of Stephen's reign, and again born unto life in the second year." To describe the anarchy which prevailed he cites the text — " In these days was no king in Israel, but every one did as seemed good in his eyes." Neither the king nor the Empress Maude had any real power. — " The animosities of the contending pro- CH. VII. ENGLAND UNDER THE FEUDAL ARISTOCRACY. 69 vincial nobles waxing hot, castles had arisen in every part of the country from the fury of the conflicting factions, and there were in England as many kings, or rather tyrants, as there were owners of castles — each having power of life and death, and of administering justice to their subjects like so many sovereigns." — " Thus," he afterwards says, " by contending against each other with long established mutual hatred, they so wasted with rapine and fire the fairest regions, that in a country once most fertile almost all power of growing grain was destroyed." — (Lib. i., cap. xxiii.) Matthew Paris lived a century later, but he gives the same account of those dreadful times ; the same picture of a wretched country, abandoned to the rule of local tyrants, the intolerable yoke of a feudal aristocracy ; but flourishing as our romance writers Avill always have it under the sw^ay of chivalrous barons, the paternal rule of mighty chiefs who revelled in their halls, led forth gallant hosts to do deeds of arms, and while they ravaged the country or plundered their neighbourino- lords, entertained minstrels to sing their deeds and magnify their name. " There was no shelter from violence even in the shades of night. Everything was wrapt in slaughter and fire. Shouts, and wailing, and shrieks of horror resounded on every side." These are the words of Matthew Paris (1139), and Roger Hove- den uses the same lanouao-e. At leng-th a treaty was made between Stephen and the Duke of Normandy, afterwards Henry XL, the principal article of which was applied to the extinction of this ancient pest. It was agreed that all the castles erected since the time of Henry I. should be pulled down. No one dared to propose any destruc- tion of the old, and, as it were, established strongholds of vio- lence, rapine, and anarchy. A hundred and twenty-six were within the scope of this stipulation. It is however to be observed that the treaty itself, as given in Rymer (Feed., i. 13), contains no such provision ; and Henry of Huntingdon says that '' the brightness of the day was overcast in some degree by the meet- ing of the two princes at Dunstable, where they complained that some of these castles, erected for the worst of pui-poses, remained still entire, contrary to the treaty, owing, it was said, to the goodnature of Stephen sparing some of his barons." (398.) 70 OF THE FEUDAL AEISTOCRACY. CH. VII. William of Newbury relates how " castles were burnt after the treaty like wax melted in the fire, they having before served as retreats to mcked men and dens of robbers." When Henry II. came to the throne he took care to see the stipulation executed, destroying all the castles built since Henry the First's time, with only a very few exceptions. Such was the condition of England under the Feudal aristo- cracy ; but, no doubt, rendered far more the prey of general anarchy by the evils at the same time afflicting tlie country of a disputed succession. The consequent weakness of the govern- ment, and the incentives to civil war, acted upon the materials of revolt and turbulence which the force individually possessed by the barons collected in every part of the kingdom ; and it may fairly be questioned whether in any country pretending to have a regular government, and removed by but a step from barbarism, there ever was seen in the world such a state of things as England presented during the sad period of which we have been surveying the annals upon the testimony of con- temporary and unsuspected witnesses. CH VIII. MIXED ARISTOCRACIES. 71 CHAPTER VIII. MIXED ARISTOCRACIES.— POLAND. Tendency of Aristocracy towards mixed Government — May be really pure when apparently mixed — Examples : Venice, Genoa, Lucca, San Marino — Polish Con- stitution— Ancient History — Origin of factious spirit — Extinction of all jealousy of Foreign influence — Patriotism of the Czartoriskys — Conduct of neighbouring Powers — The Partition — Nobles strictly an Aristocracy— Their Privileges — Palatines ; Castellans ; Starosts — Elective Crown — Foreign interference — Diet of Election — Royal Prerogative — Change in 1773 — Senate — Its Constitution and functions — Chamber of Nuncios — Functions of the Diet — Absurdities in its Constitution — Prophylactic power and Vis Medicatrix in Governments — Miti- gating devices in the Polish Constitution— Administration of justice — Defect in the English similar to one in the Polish Government — Military System — Character and habits of the Nobles — Prince Czartorisky. We have already seen that an aristocracy may be easily com- bined so as to form part of some other constitution ; that its na- ture even lends itself to such changes and modifications as pro- duce a mixed government ; and that accordingly there have been very few instances of purely aristocratic constitutions lasting for any such length of time as monarchies are generally found to endure. Wherever the aristocratic principle enters into any form of government, it brings with it more or less of the conse- quences which we have seen follow from the establishment of that scheme of polity, more or less in proportion as the principle enters more or less largely into the system. This is maijifest. But it is also clear that a government does not cease to be aristocratic, and may well be so described — it does not become, properly speaking, a mixed government — by the mere addition to the aristocratic body of some other power, too feeble to con- trol it or to share with it the supreme power. Thus the Vene- tian government, as we shall presently see, was most strictly speaking a pure aristocracy, though nominally at its head was placed a kind of mock chief, a mere shadow of royalty, in the person of the Doge. The like may be said of Genoa during the time that the aristocracy prevailed and excluded the popular in- 72 MIXED ARISTOCRACIES — POLAND. CH. VIII. fluence. In Lucca and San Marino, the Gonfaloniere, though possessing more authority, could not be said to change the aris- tocratic or ohsrarchical frame of the constitution. Neither does the circumstance of the executive power, or rather a portion of it, being conferred by election, make any difference. If that power were substantial and real, if it effectually counteracted the aristocratic influence, then, although conferred by the nobles, if it were bestowed for life, it would make the government a mixed monarchy, and if conferred by the people it would be equally monarchical, though the right of election in both instances would tend to give the choosing body — ^the nobles in the one, and the people in the other — some additional weight in the balance of constitutional power. So the Doge or the Gonfaloniere being elective officers did not make them the less monarchical : it was their insignificant authority, their impotency to control the aristocracy, that made their weight as dust in the balance of the constitution. The two countries in the constitution of which the principle of aristocracy has entered most largely are Poland and Hun- gary. In both of these the government might be truly termed mixed, because the sovereign, elective in the one and hereditary in the other,* possessed coDsiderable power, although the root of the monarchy, especially of the Polish monarchy, was planted in the patrician bod}^ In both, too, there was a large addition to the influence of the crown from foreign influence ; in Poland, from, the unjust, unconstitutional, and illegal interference of foreign powers ; in Hungary, from the crown being for ages worn by the Austrian monarch, and from the consequent pre- valence of all the disturbing forces which we have seen belong to the imperfect federal system. — We shall now examine thes3 two constitutions, as affording full illustrations of the aristocratic principle, while we proceed to treat in detail of ancient and modern aristocracies. The kingdom, or the republic of Poland, for it has gone by both names, was, before its partition had been effected by one of the most detestable national crimes that human ambition ever committed, among the most extensive and important states of Europe. Its surface stretched over nearly 250,000 square miles ; ♦ The crowu was originally hereditary iu Poland, and elective in Hungary. CH. VIII, POLISH HISTORY. 73 its population exceeded twenty millions ;* its productions, vege- table and mineral, were rich and various ; its rivers gave easy- vent to its produce, though it possessed little seacoast ; and its position in the centre of Europe gave it a natural influence over the neighbouring states. The feudal polity prevailed here as over the greater portion of Europe to the . south of the Baltic Sea, although it was not reduced to so regular a system as in most of the other countries. The division of the land was more unequal ; but there were no great fiefs as in France and Italy. The sovereign had, as every- where, in theory a very limited prerogative, in practice still less authority ; and the barons had extensive powers over their vassals, and an overruling influence in the government. As there were no great feudatories dividing the country into so many princi- palities, governing each in a kind of federacy under the common superior, there was no difierence between the legal privileges and rights of the numerous barons or landowners. The more wealthy, those who possessed the largest estates, had, of course, most influence ; but ail were recognised as the ruling order, and, together with the sovereign, and much more than the sovereign, carried on the administration of affairs. The sovereign was nominally elective ; but as soon as one powerful family had obtained the crown, they had sufficient influence to transmit it, by making the election fall upon some one of their number on each successive vacancy. Thus the Jagel- lons, descended from Jagellon, Duke of Lithuania, uniting that duchy with Poland in 1385, on his marriage with Hedwige of Anjou, the Polish queen, continued to reign till 1572 ; and the Piast race, from which Hedwige had sprung, was on the Polish throne in the tenth century, and before the introduction of Christianity. The nobles chose one Piast after another for successive ages ; and it was not till the Jagellon dynasty, which had reigned for two centuries, became extinct, upon the death of Sigismund Augustus in 1572, that the elective system, the cause of all the evils which afterwards befell the country, became, after the succession of three Vasas, completely established in substance as well as in name. The first struggle, however, to which this wretched system * This includes Lithuania, the extent of which was 120,000 square miles, and the population nearly six millions. 74 MIXED ARISTOCRACIES— POLAND. CH. VIII. gave rise, was productive of considerable benefit to the nation. The " Confederation of Poland," as it was ever after called and almost ever respected, decreed that all distinction of pohtical privileges on account of religious differences should cease, and that every sect should enjoy the same civil rights. This great event happened in 1573 ; Henry of Valois was elected king, and soon after resigned the throne, when be became Henry III. of France on the death of Charles IX. The factious spirit which an aristocracy, governing with an elective king, engendered and spread over the whole community, soon took such entire pos- session of all men, that no animosity was felt towards any foreign enemy ; no jealousy was entertained of any foreign interference ; no precautions were taken against any foreign aggression. The two most formidable neighbours of the republic were certainly Austria and Muscovy. In 1586 the czar, Feodor Ivanovitch, was very near being elected ; and Maximilian of Austria was actually chosen king. It is true he had a competitor, whom his own party also elected ; but it was another foreign prince and a powerful neighbour, though less formidable than the other two, Sigismund Vasa of Sweden. A civil war, combined with a foreign, ensued from this double choice : Maximilian was defeated by John Zamoyski and taken prisoner ; and Sigismund, though he lost his hereditary kingdom of Sweden, reigned nearly half a century in Poland — ruining the country by his weakness, and oppressing it by his bigotry, which led him secretly to violate the Confederation, though he dared not openly to act against its salutary provisions. The spirit of faction joined with his mis- government to make his reign a long anarchy ; but the wise government of his two sons, who were fortunately chosen after him, esjDecially the second, John Cassimir, did much to restore the pubhc 23rosperity. The great nobles, or magnates, had hitherto the chief share both in the government of the country and the election of the king. The lesser nobles could, by combining against them, dispose of the election, though they could never long retain a permanent influence in the government from the inevitable effects of the natural aristocracy. In 1668 their combination obtained the election of Michael Prince Wisniowietzki, who was succeeded in 1673 by the heroic John Sobieski. At his decease the House of Saxony, through Russian influence, obtained the crown, which they held through the same support from 1690 to 1763. CH. VIII. PATRIOTISM OF THE CZARTORISKYS. 75 Now began tlie glorious efforts of the Czartoriskys, the most noble and virtuous of the great houses of Europe ; efforts which have been nobly persevered in ever since, and which have ended in the voluntary destruction of that self-devoted family of illus- trious patriots. Endowed with such ample possessions that their quota to the levy in times of peril was not less than 20,000 armed men ; descended from the Jagellons ; allied by marriage with all the other great families of the realm, and with many of the royal houses of Western Europe ; yet more revered for their virtues and their patriotism than respected for their power, they endeavoured to bring about those essential reforms in the consti- tution which the sad experience of past times had proved to be so eminently wanted. But Russia and her tools, the Saxon party, resisted all change ; and although she was during the Empress Elizabeth's reign most unexpectedly and most unac- countably gained over to the liberal interest, the Saxons now obtained the aid and countenance of France, which put herself at the head of that party called the republican, because they maintained the supreme power of the nobility and opposed all salutary reform, and among others the formation of a vigorous executive. Nevertheless the Russian influence joined to that of the patriots under the Czartoriskys succeeded in strengthening the power of the crown, restricting that of the nobles, and above all placing bounds to the exercise of the veto, the great flaw in the system, and which made an impossibility, the unanimous concurrence of the diet, an indispensable requisite to all legisla- tive acts. Under the same influence Poniatowski was chosen king in 1764, on the decease of Augustus III. of Saxony ; and there appeared for a while the dawn of brighter days for Poland. Soon, however, the inherent vice of the system, the interference of foreign influence, again broke out, and Russia found that her preponderance was gone if the reforms lately effected were suffered to be maintained. In less than two years the veto was restored, the crown's power reduced to its former crippled state, and the formal guarantee of Russia interposed to the existing constitution — in other words, to the perpetuation of those abuses and that anarchy which rendered the whole ad- ministration dependent upon her own pleasure, and made the Russian Ambassador nfler of the country. The fruits of the vile tree thus again planted and thus nur- 76 MIXED ARISTOCRACIES — POLAND. CH. VIII. tured were soon gathered by the hands that had cherished it. In 1772 a portion of the country containing five milhons of in- habitants was seized on, without the shadow of a pretext, by its three .most powerful neighbours, Russia leading the way in this great pillage, and receiving the lion's share of the spoil. In 1791 the progress of liberty and of free opinions, accekrated by the French revolution, gave birth to a vigorous effort in behalf of Polish reform. The constitutional diet, on the 3rd of May, in that year, promulgated a new constitution, framed on the model of our own, and to the merits of which Mr. Burke himself bore a generous, though perhaps not a very willing, testimony. Had it not contained the two cardinal defects — first, of being some- what too much in advance of the age, finding the people with their aristocratic regimen unprepared for its provisions ; and next, of making no effectual provision for raising a sufiicient national force — there is great reason to believe that, in the critical position of European affairs in which it was launched, it might have survived to bless the country with a regular and orderly govern- ment, and to secure its independence from foreign aggi^essiDn. But the spoiler was at hand : the partitioning powers -suddenly took the field ; they wasted the country and besieged the towns ; after massacres, of which there is no other example in the modern warfare of European nations, they overturned the new constitution, and, as the price of their interference, divided among themselves half of what their former crimes had left nominally independent. Two years later the final blow was struck, and, after a desperate struggle under the gallant Kosciuszko, they erased this ancient kingdom from the map of Europe. We are now to view more nearly the structure of this bad government ; the worst, without any exception, that has ever been established for any length of time in any part of the world — the one which most signally, most constantly, and most inevi- tably failed to bestow upon its subjects the benefit that all govern- ment is formed to dispense — internal tranquillity and security from foreign aggression. Whatever we have already seen of mis- fortune befalling the country, whatever we are yet to observe of tumult and anarchy in the adminis ration of its affairs, all proceeded directly from this fruitful source of public calamity. The chief power of the state, although not the supreme or the sole power, was lodged in the patrician body. Every noble CH. VIII. RIGHTS OF THE NOBLES. 77 had an equal voice in exercising the functions of the govern- ment, and he used it by voting for the election of representa- tives, called nuncios, that is, delegates or ambassadors to the chamber of nuncios in the diet, or supreme legislative assembly. The choice was made at. provincial assemblies, or lesser diets, called dietines. The rights and condition of nobility could only be conferred by the united voice of the three states composino- the diet, namely, the king, the senate, and the nuncios ; conse- quently the body was strictly an aristocracy (Chap. i. Part ii,), all the family of each noble having its privileges by inheritance, and no person having the power of entering into the body with- out its own consent expressly given. The dietines decided all claims of nobility, on the production of the claimant's title or letters of nobility ; and the severest penalties were denounced against any one who should presume unauthorised to usurp the rank, or to prefer false or fictitious claims ; he might even be put to death by any noble summarily and without trial. The rank was not lost by intermarriage with persons of an infe- rior class ; consequently the claimant had only to prove his noble male descent ; but three generations of descent must have elapsed before the privileges could be fully enjoyed, unless in extraordinary cases of public service. The noble thus descended and thus entitled was termed Scartahel (quasi Bellus ex Gharta). The rights of nobility were forfeited by crimes and by following a degrading trade ; but menial service, even in the house of a foreigner, did not forfeit ; it only suspended the right of voting during the servitude. Beside the elective franchise, the Polish noble enjoyed other immunities of an extraordinary kind. He alone could hold landed property. He had a right to all mines and minerals, including salt mines, on his lands, commoners being excluded from such rights entirely. He exercised jurisdiction over his peasants or vassals, oven to the extent of life and death. His house was an asylum, giving refuge from arrest to all male- factors, and all debtors, though he became in some sort answer- able if he shielded any. His own person was sacred, and he could only be arrested upon a judicial conviction of a crime, or if taken in the act. No great office, hardly any other of importance under the crown, could be held but by a noble ; and these were of high pecuniary vahie as well as power and in- 78 MIXED ARISTOCRACIES— POLAND. CH. VIII. fluence. The chief were palatinates, castellanies, and starosties. The palatines were governors of provinces and chiefs of the nobles within their respective bounds, heading them when called out on great emergencies, in the pospolite, arriere-han, or levy en masse, and also commanding them in war. The castellans, originally the lieutenants of the palatines, became afterwards invested with equal powers, only in smaller districts. The palatinates and castellanies were rather offices of honour and mfluence than of profit ; but the starosties re exceed- ingly valuable in point of emolument. They were attached to the lands originally domains of the crown, and no one could hold a starosty without possessing some portion of this land. They were a species of government, and many of them had civil and criminal jurisdiction. The income amounted in some to as much as 2500/. a-year. They were, like the palatinates and castellanies, conferred by the crown ; and without the royal assent did not go to the widow or heirs : but this assent was rarely withheld ; so that they became almost hereditary, like the offices in the other feudal monarchies. There were in the whole kingdom, including the grand duchy of Lithuania, no less than 452 starosties. The crown had besides a vast number of ^^llages, which were generally granted for life, with all their rents and emoluments. The king was elected by the whole body of the nobility, thus constituted and thus richly endowed. The primate. Archbishop of Gnesen, was viceroy or interrex during an interregnum after a sovereign's decease, abdication, or deposition ; and in case that see was vacant, the Bishop of Cuiavia. All the ordinary ad- ministration of justice was suspended, only extraordinary coun- sellors were appointed to dispose of criminals, and generals to guard the frontier .; but so feeble were the national forces, that foreign princes almost always marched their troops into the country as soon as an election approached. The foreign minis- ters were formally desired to quit the capital, that, the choice might be the more free ; but they as regularly refused to go. Thus a Russian ambassador answered the requisition by ob- serving that he had been sent to reside in Warsaw, and not in the country. An Austrian envoy said on the like occasion, that, if he went, he was sure his master would order the Silesian regiments to escort him back. CH. VIII. ELECTION OF KING. 79 The Diet of Election began its discussions with a statement of grievances, called exorbitances or complaints of the infractions of the constitution during the late reign, and, after resoMng to exact some new concession from the new king, they proceeded to choose him. The Deputies who were sent from the various dietaries, amounting in number to about 150 nuncios, and called Rota Equestris, occupied an enclosed space. They conducted the whole deliberations ; but they were liable to be changed during the process at the will of their constituents, who, as the last of all the absurdities in which this constitution abounded, attended in person, and partook fully in the vote elective of the crown, though not in the deliberations on grievances. The w^hole nobles marched upon Warsaw by various routes forth from their castles at the head of their retainers and dependants, all but the poorer class mounted, and all without any exception armed. As many as 130,000, frequently more, occasionally even 200,000, were thus assembled. Arriving at the scene of the operations, the elective operations, the great plain of Yola near the capital, they occupied the ground around the enclosure of the Nuncios, and there encamped during the six weeks that the Election Diet lasted by law. During this period of interregnum the re- public was termed " most serene,'' and assuredly a title of honour less expressive of the fact never was invented or be- stowed by the overweening caprice of princes, prone to fancy that they could endue their favourites with the qualities w^hich they named them by, than this appellation assumed by the aris- tocratic republic to describe its own state while exercising uncon- trolled power. The sovereign thus named, unless when the election was brought about by foreign armies or foreign gold, generally had to fight for his crown. Having in one or the other way secured the possession of it, his prerogatives were so far from being the shadow of monarchy like those of the Itahan doges, that they really gave great influence, and entitled the political philosopher very correctly to term the constitution a mixed aristocracy. He enjoyed a considerable revenue, above 60,000/. a-year for his personal expenses ; named to all the great offices, of which there w^ere forty-eight, but ten, of the highest, having places in the senate as well as in the council of state ; appointed all military officers ; had the exclusive patronage of all the seventeen bishop- 80 MIXED ARISTOCRACIES — POLAND. CH. VIII. rics and of all the greater livings ; gave away the vacant sta- rosties, and srave or refused tlie succession of deceased starosts to their families ; granted privileges to towns, so however that these interfered not with the rights of the nobles ; distributed orders of knighthood ; and bestowed titles of nobility on fo- reigners, who however obtained from thence no rights or pri- vileges.* He received foreign ministers, but in the presence of the council ; and though he could appoint ambassadors to repre- sent the republic, they could neither make alliances, nor treat of peace and war. It was among the many vices and absurd anomalies of this vile constitution that the generals and ministers named by the crown held their places iiTemovably, until they either consented to retire or were sentenced by the Diet. Finally, he had the nomination of the senate, of which body we are now to speak. But the senators, like the generals and mi- nisters, held their places independent of the crown. The number of the senate was 136, of whom seventeen were prelates. Beside these 136, the ten great officers of state had seats in the senate, and of course possessed more influence than any of the other members. The senators had constant access to the king's person, and four of tliem were required to be always near him. Without their presence he could do no act of state ; and this contrivance to maintain a watch over the cro\vn on the part of the aristocracy manifestly resembles what we shall find to have been practised at Genoa and at Venice with a similar view. No senator could quit the country without express leave of the Diet. The functions of the senate were to preserve peace and union among the various provinces or the palatinates and castellanies ; and to assist at the diet, of which, in its legislative capacity, the senate formed an integi^al part. Its consent was required for the making of any law, and the taking of any resolution of the diet, as much as that of the king and the Chamber of Nuncios. The senate could only be convoked by the king, unless in the * We have made no mention in the text of the change which was effected in 1773, after the first partition, because we are here giving an account of the old constitution while Poland was entire. That change really reduced the regal autho- rity almost to a shadow : it was the nomination by the Diet of councillors, without whose consent no act of the Crown could be performed. This was copied fronj the constitution of Venice, as we shall presently see. CH. VIII. THE DIET. 81 event of any illegal proceedings taken by him, in which case the primate might call a meeting. If the primate refused in such an emergency, the nobles could assemble it. The nobles were represented in the Chamber of Nuncios, chosen as we have seen by the dietines of the provinces, all of which were to hold their meetings the same day, except two, Zata and Holitz, which met a weeK earlier. The number of nuncios was 168, provided the electors in each of the sixty-four districts were unanimous; for unanimity was required in dietines as well as diets ; but Prussia Royal had a right to send 100 representatives of its nobility. The same absurdity which jDre- vailed at the election diet was also found to exist in the ordinary meetings of the nuncios ; for, under the name of arbiters, all the nobles claimed a right to attend the meetings of their repre- sentatives, and even to interpose their opposition and protest to the choice of the marshal or president of the chamber. This, however, was not peremptory, but only led to inquiry. Every function of the government not performed by the king alone was performed by the Diet. They only could make laws, determine questions of peace, war, or alliance, levy taxes, raise troops, coin money, confer nobility, and naturalize foreigners. But in all their proceedings the grand and revolting anomaly was introduced, which has obtained the expressive and descriptive name of the Liherum Veto, only that this is not generally un- derstood in the full extent of its absurdity. Not only was absolute unanimity required to give any vote force and effect , but if any one of the many parts or chapters of a law, or of any one law of the many discussed at a diet, was rejected, the whole legislation of that diet fell to the ground. It was necessary to adopt all or to reject all. Surely no human contrivance was ever devised so effectual to tie up the will and paralyse the judgment of any deliberate assembly. Add to this, that the duration of the diet was fixed by law — it must expire in six weeks, and even at the hour striking, whatever subject of consideration might then be before it. When any gross absurdity has for any reason found its way into the frame of a government, there seems to be called forth a protective or prophylactic power in the system, analogous to that by which the natural body throws off any noxious or any extraneous matter introduced into it ; and if mischief cannot be PART II. G 82 MIXED AEISTOCKACIES — POLAND. CH. VIII. prevented, then is exerted another power like the vis medicatrix of the natural frame — a power of making some secondary- provision which may counteract the mischievous effects of the malconformation, and enable the machine to go on working, which otherwise must be stopped or destroyed. We shall find examples of this truth in the ancient as well as modern republics of the south ; and Poland affords one as applicable to the grievous vices of its political system which we have just been describing. The king had the power of convoking extraordinary diets upon emergencies, but these could only last three weeks. However, when a diet had failed of coming to any useful decision, in consequence of the veto, a majority of the chambers might, with the assent of the crown, turn the diet into a Confederation. This usually took place on the emergency of some threatened invasion, or other public danger. If without the royal assent the confederation took place, it was called Rokosz. Sometimes even when the confederation was regular, being authorised by the crown, always in the case of a Rokosz, there were re-confederations or anti-confederations, which at once led to a civil war. The king had' the power likewise of convoking a Senatus Concilium, or senate deliberating under his presidency ; but its decrees only had the force of law tempora- rily, and required to be confirmed by the diet. Another kind of confederation was the Zivyozch or Military Zvjyozck, and this was another name for a military revolt. After every kind of confederation it was usual to hold a diet of pacification, in which the intention and the name alone were of value. The administration of justice was upon a footing nearly as singular and of a description quite as imperfect as any other branch of the Polish constitution. The king continued much later than in any other country of Europe to hold the judicial power in his OAvn hands. Until late in the sixteenth century he was the sole judge of important cases, as well criminal as civil ; and he went round the kingdom to exercise this high office, with his numerous suite, all of whom were maintained at the public cost in each district that they visited. This labour, so alien to a modern prince's habits, made Henry III. say, " Faith, these Poles have only made a judge of me, and soon they will make an advocate.'' His successor, Stephen Battori, created regular courts, reserving to himself the greater causes only. In CH. VIII. JUDICIAL AND MILITAEY SYSTEMS. 83 the reign of the succeeding princes the nobles and the clergy- obtained the judicial power, and this weakened exceedingly the influence of the crown, without materially improving the ad- ministration of justice. The want of any provision for the pro- secution of offences was a serious imperfection, though not con- fined to Poland ; and the maxim became established, and as rooted as it was pernicious — " Nemine instigante, reus ahsolvitur/' It is only by a variety of accidental circumstances concurring to counteract the evil in our own system, that a similar defect has not ended in paralysing the whole execution of our criminal law ; and the mischiefs that daily arise from it are very grievous, notwithstanding the partial remedy which these circumstances have applied. But the manner of appointing the Polish judges was as bad as possible. They who composed the higher tribunals were elected at the several dietines by the nobles, and at the chapters by the superior clergy. The places of these judges were lucrative, gave great influence, and were eagerly sought after by the nobles ; and their persons were sacred, so that the least injury or insult offered them was punished with death. They had cognizance of all crimes, treason and peculation excepted, subject to appeal. The diet was the court of re^dew, and had original jurisdiction of treason and peculation. The military state of the country was not better than its civil. There was no army that could be relied on when wanted, any more than in the other feudal kingdoms, while the armed state of the nobles and their high privileges, almost exempting them from the control of the law, made the country a prey to the worst form of anarchy, that of a military mob. The nobles did not serve in the infantry, however poor, excepting as officers ; and all the cavalry, men as well as officers, were nobles. Each had a right of bringing three servants to attend him, and these were all on a kind of equal footing with their masters. Every noble, private as well as officer, and how needy soever, was admitted to the general's table. The servants were called pachoHks : they were all armed, and all took part in the fight. The diet alone could call out the pospolite (or levy or arriere- ban) , and, on its being summoned, all ordinary administration of justice ceased ; the king alone and the senate exercised judicial functions, and martial law was administered by military tribunals. g2 84 MIXED ARISTOCRACIES — POIAND. CH. VIII. Such was the structure of the Polish constitution : its basis a completely formed and firmly cemented aristocracy, but joined and badly adjusted to a kingly power ; and certainly it would not be possible to devise a system less fitted to secure any one of the objects of all government. Bad as it was, and ill as it worked in modern times, and after its principles were settled, in earlier ages it was still more tumultuous and more mischievous, and unavoidably engendered a constant struggle between the nobles and the sovereign, to the utter and habitual neglect of the public interest. Thus it was not till the middle of the fifteenth cen- tury that the king's consent was required to the passing of any law, or that the senate was recognised as a body separate from the representatives or nuncios ; and when John Albrecht, an able and patriotic prince, at the beginning of the sixteenth century, after in vain attempting to curb the exorbitant power of the nobles, tried many schemes for the general benefit of the country, he was stoutly and successfully resisted in all his en- deavours, the aristocracy desiring only to thwart him, and caring nothing at all for the interests of the state, which he was desir- ous of advancing. In his reign began that constant disposition, much increased in the Saxon reigns, to seek foreign aid in their party conflicts, which formed the great stigma on the character of the Poles. No one was jealous of the Czar ; all fears were merged in the jealousy of the crown. The character and the habits of the ruling class were such as it might be expected that uncontrolled power thus distributed among individuals, as well as vested in the body, would form in .each of its members. They were fierce, ignorant, haughty, overbearing. The natural talents of the Polanders are great ; no people have more : they combine the suppleness and quick- ness that distinguish the Sclavonian race with far more steadi- ness and perseverance than ordinarily accompanies these brilliant and attractive qualities ; and all the insolence of the nobles was covered over and concealed by a polish of manners almost pecu- liar to that people. The inequality, however, in the distribu- tion of wealth was extreme ; and although each noble, be his condition ever so mean in point of fortune, possessed the full privileges of his order, the wealthy landowner received as much homage from his poorer brethren as from the needy com- moners. The power and splendour in which the greater families CH. VIII. PRINCE CZARTORISKY. So lived was not to be matched by anything in more refined coun- tries. The Prince Czartorisky, beside maintaining a multitude of dependents and gentlemen in needy circumstances, had a suite of young nobles who, at his residence, his court, received their education, and became fitted to shine both in that brilliant circle and in the attractive society of Warsaw. The princess was daily seen at Poulawi to take her morning drive attended by twenty gallant cavaliers, rivalling each other in their de- voted obeisance, and all but fighting for the honour of handing her from the carriage when she alighted, or picking up her fan when it chanced to fall. The military force of his domains we have already mentioned. It is this lofty position, this brilliant lot, which that great patriot, the present representative of the family, has exchanged for poverty and exile — a lot, however, that he only prized, and now only regrets, as it afforded him the power of serving that country for which he has made so vast and so costly a sacrifice.* * The works upon Poland are numerous, and some of them possess great merit. There are several in German and in Latin. Of course those in Polish are to foreigners a sealed book. The Chev. d'Eon's Description de la Pologne, in vol. i. of his Loisirs, gives the best, and, generally speaking, the most correct account of the constitution. But no one should omit reading the admirable work of Rulhieres (L' Anarchic de la Pologne, in 4 vols.), one of the most brilliant and attractive histories that was ever written. Recourse has been had, in preparing this chapter, to original sources of political information. 86 MIXED ARISTOCRACIES — HUNGARY. CH. IX, CHAPTER IX. MIXED ARISTOCRACIES — HUNGARY. Lombard Conquest — Magyars — Arpad Family — Feudal circumstances— Nobility — Cardinal and ^Non- Cardinal privileges — Magnates — Bulla Aurea — Titled Nobles — Diet — Representation ; Proxies ; Votes— Delegation — Diet's functions —Taxes — Cassa Domestica and Militaris — Count Szechinij — Local County Ad- ministration— Congregationes Generales — Municipal Government, Kozscg ; Can- didatio — Village Government — Powers of the Crown — Sale of Titles — Peasantry — Urbarium of Maria Theresa — Lords' power ; Robot — Lords' Courts ; reforms in these — New Urbarium ; Prince Metternich's reforms — Military System ; Insurrectionary Army — Frontier Provinces — Prejudices of Hungarians in favour of their Constitution — Conclusion of the subject. The Aristocracy of Hungary never was so firmly established, or endowed with privileges so extensive, as that of Poland ; and it is a question much agitated amongst political inquirers, whether or not the Feudal System ever existed in that country. The Lombards, in the year 526, overran the greater part of Hungary ; and in the ninth century, the Magyars, a people from Central Asia, obtained possession of it, dividing the lands among their chiefs, and reducing the former inhabitants to a state of slavery. The family of Arpad, their principal leader, held the chief autho- rity until its extinction in 1301. After the lapse of nearly four centuries Austria obtained a footing, and occasionally the supreme power ; but it was not till the latter part of the seventeenth cen- tury that she received the crown formally, and only since 171 1 that she has held it without dispute. It seems, on the one hand, difficult to deny that the feudal scheme ever found a footing in Hungary ; and, on the other, to admit that it was fully established. The servile condition of the cultivators of the soil, the holding of all lands under the crown, the great power of the nobles, their exemption from tribute, the exclusive possession by them of free land, and the annexation of services to the qualified possession, or rather enjoy- ment, of landed rights by the peasant, as well as the jurisdiction exercised by the lord over the tenant to a considerable extent, all savour strongly of feudality. Indeed, the gifts which the former could exact from the latter on the marriage of his child, CH. IX. NOBILITY. 87 or his own capture in war, were entirely of a feudal aspect and origin ; while we must admit that the refinements of the system and its complete symmetry, had no place among the Hunoarians. The foundation of the whole system, both of the general govern- ment and of the local polity of the community, has at all times been the influence and the privileges of the Nobles— originally, as everywhere, a select few, but become, in process of time, a numerous body, and forming now a considerable portion of the whole inhabitants. They amounted to 350,000 a century ao-o, and may now be estimated at a million and a half, the whole population being not more than nine millions and a half Of course, in this numerous body there are not many wealthy indi- viduals, and very many in the meanest circumstances : but all of them possess the same rights and exemptions by law ; all of them form an artificial aristocracy ; and it is the natural aristo- cracy alone which apportions their relative influence, confining the administration of afiairs, the real weight in the state, to such of the class as excel in wealth and other personal or accidental qualities and possessions. Their privileges are of two kinds, cardinal and nov^cardincd. The most important of the latter are the being exempt from hav- ing troops quartered on them, and the right to sell upon their estates certain articles, of which the government has the mono- poly elsewhere, and as against all commoners. It is another of these non-cardinal privileges that the nobles alone can possess lands. — The cardiyial privileges are more valuable and more numerous. The noble holds his land free from all direct taxes, all tithe, and all toll. The only service which he is bound to perform is the attendance upon the levy when the bann or insur- redion is called out on an invasion. His person is sacred ; he cannot be arrested until convicted, unless he is taken in the fact ; his house, too, cannot be entered on any account by the officers of justice. All fiefs are male, excepting in the district of Arva, where the land goes also to females on the failure of males. In that event elsewhere the fief reverts to the crown. There was till very lately (1835), strictly speaking, no power of selling the land, but recourse was had in consequence to perpetual mort- gages ; and as these were redeemable on payment of the mort- gage-money and all improvements, a double price was generally stated in the contract, great claims for expenditure were made, 88 MIXED ARISTOCRACIES — HUNGARY. CH. IX. and endless litigation ensued. But still the titles to land pur- chased are very insecure, because, all land originally granted by the crown is redeemable within thirty-two years ; and this right may, by a legal proceeding (the mere registering of the claim), be kept alive for ever. At twenty-four years of age the son can demand a provision ; and on the lord's death an equal division of the land is made, only reserving to the youngest the benefit of a house. — These customs remind the English reader of gavel- kind, once the common law of this country, though now confined to Kent ; and Borough-English, once the custom of all boroughs, though now only known in a very few places. Where the fief is male, one -fourth goes to females on failure of males when the crown takes the residue. It is another strange privilege of the nobles that they owe no allegiance to the king before his coro- nation. Originally the Magnates, or higher nobles, oppressed the in- ferior, who, combining together, exacted from King Andrew and the higher nobles, in 1222, the great charter, called the Bulla aurea, seven years after King John was forced by his barons to grant our Magna Charta. The purport of this important conces- sion was to communicate all the privileges of nobility to the whole order ; and it was plainly, like our own charter, only a declara- tion of existing and violated rights. It further declared, that every noble should be subject to the court of the Palatine, ex- cepting in capital cases and causes of forfeiture, which were reserved to the royal jurisdiction. The most remarkable article of the Bulla aurea contained, like our own great charter, a sti- pulation of resistance in case the other provisions should be vio- lated. This article has only been omitted since the year 1687, and that, as is expressed, not from any objection to its substance on the part of the crown, but only to avoid the misconstructions to which it had frequently given rise. The titled nobles are about two hundred families. — We are now to view the system of government which arises out of this aristocracy, and of which this aristocracy is the basis. The supreme power in the state, by the theory of the consti- tution, is the Diet or general assembly of the Orders ; but there is in practice a wide difference between the rights of the Hun- garian and those of the Polish Diet, and the crown has become the preponderating authority, altliough the diet still retains CH. IX. THE DIET. 89 considerable powers. It is composed of three great branches, the Prelates, the Magnates, and the Delegates of the inferior nobles and the free towns. The prelates are thirty-six in num- ber, of whom thirty-four are Catholics, and one a Greek bishop ; the magnates and the higher clergy, those who have official right to be barons and counts, and the magnates by descent and tenure of land. There are six or seven hundred in all who have a title to sit in this chamber ; but, comparatively, few attend, sometimes no more than thirty or forty. The prelates and mag- nates form one chamber {Tabula). The lower chamber is composed of deputies chosen by the forty-six counties, that is, by the inferior and numerous nobility, a million and a half in number, and of whom about 120,000 are supposed actually to vote. The free towns also send deputies : each county sends two. But there is also a singular kind of deputies, who, however, have no right of voting —the proxies of mag- nates who do not choose to attend in their own chamber, and the proxies of the magnate widows, who of course cannot sit. These proxies resemble what we may recollect to have found in the Sicilian parliaments. (Part I. Chap, xvii.) The deputies of towns are entirely under the infliaence of the crown, for, as the whole expenditure of the revenue is, except for sums less than six pounds, under the absolute control of the sovereign, if any town were to choose a refractory deputy, the sums necessary for re- pairs and improvements would be left unprovided. This entire subserviency of the town-deputies is the excuse for the nobles having long since taken away their right of voting : they are as mere ciphers as the proxies, and have not more privilege than that of cheering the speakers, and themselves debating, if they please, which however they very rarely do. A single vote was once offered to all the town-deputies collectively ; but it was at that time rejected with some • indignation. All the deputies, however, are in some sort deprived of deliberative functions, for they are merely the delegates of their constituents, and are so far bound to follow their instructions, that, should they depart from them, and be unable satisfactorily to explain their conduct, they are immediately displaced and succeeded by more obedient representatives. The lower chamber has a president called Personalis. The forty-six counties have ninety- two deputies, but only forty-six votes : Croatia has one, Sclavonia three, the free towms one, the chapters one ; making in all fifty-four votes. 90 MIXED ARISTOCRACIES— HUNGARY. CH. IX. The crown has alone the power of convoking the diet ; but the law requires it to be assembled once in three years. This, how- ever, has been so little attended to, that only three Diets were con- vened in the forty years' reign of Maria Theresa ; and Joseph II. never called a Diet at all during his ten years' reign. There was no Diet from 1813 to 1825 : the Diet of that year lasted two years. Each Diet is a newly-elected body ; no prorogation is known ; and the same Diet has been known to sit for three or four years. The most extraordinary part of its constitution is the uncertainty which still prevails as to what part of the magnates the right of votino' resides in ; for the right of created nobles to vote with those by office and estate is so much a matter of dispute, that the Palatine, who has, since the time of Maria Theresa, always been an archduke, and is chosen by the Diet from four candidates named by the crown, has frequently been known to reject the determination of an absolute majority as president of the cham- ber, and to declare a question carried or rejected by the majority of the undisputed votes. The existence of such a doubt clearly indicates either that this branch of the Diet is seldom appealed to, or that its assent is reckoned of comparatively little import- ance. It is another and a revolting absurdity in the constitu- tion of the Diet, that the nobles, like those of Poland, instead of delegating all powers to their deputies, and suffering them to act for themselves, claim the right of attending in person also ; and accordingly they crowd the chamber, taking part by cheer- ing and other interruptions, though they have never claimed the right of speech or of protest, as the Poles have on one im- portant proceeding at least — the choice of the marshal or pre- sident. The language spoken in the chamber of magnates is almost always Latin. The policy of the court has been of late years to estrange the Hungarians of high rank from their country, so that they are educated, and generally reside, at Vienna, and are unacquainted with their mother tongue. It is further to be observed, that the upper chamber has only the right of assent or refusal to the resolutions of the lower. No measure whatever can be originated in the chamber of magnates. The two chambers in Hungary, as everywhere else, formerly sat together ; their separation, which was as late as 1562, is said to have arisen from the accident of the hall being too small to contain both. In this respect Hungary agrees with the other feudal kingdoms. But it has one custom of great value, and CH. IX. TAXATION. 91 peculiar to itself. When the chambers {tabulce) differ, recourse is had to what is termed a Tnixed sitting, in which both sit, dis- cuss, and vote together. Hence concession and compromise are more conveniently effected in Hungary than anywhere else, and all collision is avoided. The Diet's principal function is legislative, that is, by the theory of the constitution ; for the Empress Queen, finding how refractory it was, and how resolved to refuse all grant of privi- leges to the bulk of the nobles and the peasantry, issued her celebrated edict, the Urbarium of 1765, which has been held to have the force of law, though part is enactive, and only part declaratory. The levying of taxes is also in the hands of the Diet, as well as their distribution for collection among the dif- ferent districts. But in practice this important right seems con- fined to direct taxation, from which the nobles being exempt, the Diet, their representative, is sure to refuse all such supplies as cannot be raised upon the townsfolk and the peasantry ; and hence the sovereign has introduced a large amount of indirect taxes, which of course fall on the nobles as well as on other classes of consumers. Thus, of the whole revenue, amounting to nearly three millions a)id a half sterling, no less than two millions are raised by a salt-tax, or salt-monopoly, which amounts to the same thing, and 150,000^. by customs ; all foreign goods pay sixty- five ]3er cent., and goods from Austria five per cent. The crown- lands yield 120,000^., and the mines 100,000^.; and the direct taxes, falling on the peasants and citizens alone, raise between 500,000^. and 600,000^. The raising a salt-tax without consent of the Diet has been always held illegal by the Hungarians ; but the imperfect federal system has always made their complaints vain. Had the sovereign no other dominions but Hungary, this impost never could have been levied ; his other resources enable him to continue a tax which, though falling equally on the poor and the rich, effectually neutralizes the privilege, so highly prized by the nobles, of being exempt from taxation ; and the tax will assuredly be •kept up until, yielding to the voice of reason and justice, the nobles shall consent to bear their share of the public burthens directly imposed. It is not only in the general taxation of the state that this ex- emption is claimed by the Hungarian nobles ; they pay none of the local taxes, called the Cassa Domestica, in contradistinction 92 MIXED ARISTOCRACIES— HUNGARY. CH. IX to the Gassa Militaris, or those raised by the Diet and the Crown for general purposes. The Cassa Domestica is wholly raised by the votes of the county meetings, and it is wholly paid by the commoners or peasants, and townsfolk. But it is wholly administered, as well as wholly imposed, by the nobles alone. Yet out of this money, thus levied on the peasants, are paid not only the expenses of a local kind, as roads and bridges, but the salaries of places which nobles only can hold, including the pay (twelve shillings a-day) of the deputies to the Diet, which has, however, now ceased. The greatest practical reformer of the ao-e, a corresponding member of this Society, Count Szechinij, has carried the point of making them, and for the first time, pay toll or pontage on using the new bridge at Pest. The Diet, but with difficulty, were persuaded to sanction this waiver of privilege — a small step certainly ; for the refusal to pay amounted to insisting upon having the benefit of a public work to the ex- pense of which they would not contribute. The local administration of the counties is twofold, as it re- sides in the country districts or in the municipalities. The forty- six counties have each its local administration, changing their officers once in three years ; and even the execution of the general laws made by the Diet, and of the edicts which the Crown sometimes issues of its own authority, must in all cases be left to the local officers. The crown names the chief of them, or lord-lieutenant, called Fd I span ; the others are chosen by the nobles of each county. Among these others the All or Vice- Ispan or Vice-Coraes, as he is called, has nearly the functions of our vice-comes or sheriff : he is constantly resident, which the lord- lieutenant hardly ever is : he directs the police and decides small causes, both of debt and breach of the peace. The place is much sought after by the nobles, not so much for the small salary an- nexed to it of about 801., as for the influence which it gives, and the practice of public business. The county magistrate, called Szolgo-Birok, is not necessarily a noble. The Crown, in its Lieu- tenant, has the important right of what is Called Gandidatio in all elections ; that is, it names three persons, of whom the nobles choose one. This right, however, is in practice much limited ; for the persons of leading influence are almost always selected — that is, such persons as are secure of having powerful support from the electors. The exercise of political functions in their county meet- CH. IX. crown's prerogatives. 93 ings, and of rights in choosing their magistrates, has tended to give the Hungarians far more pohtical knowledge, by turning their minds to state affairs, than might have been expected from a people whose press is under such strict censorship. Travellers represent them as not only singularly attentive to all passing events, but exceedingly well informed upon political matters generally. Their meetings, hc>wever, do not always pass off very quietly : on the contrary, an election is with them the scene, if not of as much corruption, certainly of far more vio- lence than either ours of England, or even those of Ireland. As many as eight persons were lately killed at the restauration or election of officers for a single county in one year. But the county meetings (congregationes generales) are of a much higher importance than may, from this statement, at first appear. They are attended by all the nobles and ecclesiastics, and as many as 4000 persons may be present. Beside directing local matters, they put in force all the decrees of the Diet : by these they are bound ; but not by the royal ordinances, which they examine most scrupulously, and, if they find anything in such an edict repugnant to the national rights or noble privileges, they have the power of putting it on the shelf (cwni honorc deponere), so that it is no more heard of in that county. Thus each county forms, in some sort, a separate state ; and Hungary has been by some deemed a kind of federal monarchy. The government of the towns is in the hands of a senate and a council, called Kozseg : these are self-elected. The Senate of Pest consists of twelve, the Council of one hundred and twenty, members. There is also a mayor, a judge, and a commissary of police. The three superior officers are annually chosen ; the others are for life. In these, as in the county elections, the Crown has the candidcdio ; but there is a wide difference in its exercise, for the town officers are all, like the town deputies to the Diet, the mere creatures of the government, and for the same reason— the veto of the crown upon all public expenditure ; while those of the country are extremely independent, generally speaking. In the villages the magistrates are elective ; the lord here having the candidatio. He has also the monopoly of meat and wine in his villages ; a right fearfully calculated to produce oppression. 94? MIXED ARISTOCRACIES— HUNGARY. CH. IX. We have now surveyed tlie privileges of the nobles, the only body of the nation whom "the constitution appears to recognise. But in this survey we have incidentally had occasion to see the main points in the position of both the crown and the peasantry or commons. The king has, beside those prerogatives which we have mentioned, the exclusive appointment of all officers, civil, military, and ecclesiastical, except those whose election he shares with the nobles, and except the Palatine, who presides in the Upper Chamber of the Diet, and is chosen by the two Houses. The king also grants the privileges of nobility at his pleasure, except the Indigenat, or nobility to foreigners, which can only be conferred by the Diet. All hereditary titles of nobility also flow from the crown. Money is often raised in this manner by the crown, as we may remember we found it to be in France (Part I., Chap. XIII.). The title of Count has generally fetched 5000?. ; that of Baron 2000^. But it is said that an eminent tailor of London, Mr. Stultz, was, probably in consideration of his callinsc, made to pay 10,000L for being made a Baron. The right of pardoning convicts is also a part of the royal preroga- tive : and a power still more important than all the rest is pos- sessed by the sovereign — he has the unrestricted control of the expenditure of all public money, whether raised by vote of the Diet, or by edict, as the salt-tax, or proceeding from crown lands and other regalia. No account whatever of this expenditure is ever rendered to the Diet. The coronation oath binds the king, not only to maintain the constitution inviolate, but also to re- unite to the kingdom all the provinces which have ever been lost, as Bosnia, Servia, Wallachia. The peasants are contradistinguished from the people ; the word jjopidus being in Hungaiy, as in ancient Rome, confined to the patrician body, the nobles, clergy, and citizens of free towns. The rest of the community are termed plebs, and fre- quently p^e5s Tnisera contrihuens — a singularly significant expres- sion, designating at once the state of the people, and the pri^d- lege or exemption, which the nobles chiefly prize. One is here reminded of the French description of the Roturiers, "gens taillahles et corveables" Originally they were astricted to the soil ; but in 140-5 a law was made suffering them, to quit with the lord's leave, which, however, was not to be arbitrarily or capriciously withheld. The language of one of the old laws is CH. IX. lord's jurisdiction. 95 remarkable ; it gives protection to the peasantry — " Ne omnis rusticitas delectitr, sine qua nohilitas parum valet." At the be- ginning of the sixteenth century, their rebellion under Dosa having been quelled, they were reduced again to complete ser- vitude by a law which was repealed in 1547, and re-enacted the year after, and afterwards much modified in 1556. In the Diet of 1764 Maria Theresa in vain endeavoured to obtain a more favourable law from the nobles ; and there- fore she issued her famous Ui'haruim, which is partly declaratory, like the Bulla aurea, in favour of the inferior nobles ; but partly also en active. The peasant had by this important instrument the free power of leaving his land, provided his debts are paid and there is no criminal charge against him ; but his lord can- not remove him. A portion of land was allotted to him of from sixteen to forty acres of arable, and from six to twelve of pasture, with a house and one acre of garden- ground. His money pay- ments were reduced to a mere trifle ; and his service or labour, called Robot, was fixed at one hundred and four days without his team, fifty-two with it, by one or two days in the week, un- less at harvest-time, when it might be doubled. He was, beside this, to render a small amount in kind of poultry or vegetables, and to contribute if the lord were to be ransomed in war, or to have a child married. The power of inflicting corporal punish- ment was likewise reduced to the bestowing of twenty-five lashes. The obligation of soc or grinding at the lord's mill was abolished : the lord's power of taking the peasant's land was confined to the case of his requirmg it for building his own house upon, and then he must find other land equally valuable ; and the peasant was allowed to take wood in the lord's forest for his needful occasions, a right resembling our fire and hedge bote. One of the greatest grievances which this wise and liberal measure left was the Lord's Court, having jurisdiction of dis- putes, not only between peasant and peasant, but also between the lord and peasant ; the judge being named by the former. The power of inflicting capital punishment is now only possessed by some few lords, or by special grant. Prince Esterhazy is one of those few. The new Urbarium of 1835, which does the great- est honour to the eminent statesman so long at the head of the Austrian Councils, removed this cause of complaint. Prince Metternich provided by this edict that the jurisdiction of the Lord's or Manor Court should be confined to causes between 96 MIXED ARISTOCRACIES — HUNGARY. CH. IX peasant and peasant, and that all questions arising between lord and peasant should be henceforth tried by a new court composed of the district magistrate and four disinterested persons. He abolished all right of inflicting corporal punishment, restricting the Lord's Court to imprisonment for a term not exceeding three days, in case the peasant failed to perform his services. Small tithes and extraordinary gifts were also abolished, and the pea- sant was not to be compelled to make long journeys with his team in order to do his appointed service for the lord. The noble was made liable to all taxes, local and general, in respect of peasant or ignoble land purchased by him ; and in return for such large concessions he only acquired the right of freely de- vising his land if childless — the right of division among children, if any, remaining ; the right to have his share of all the land lying contiguous ; and the free right of selling his land. Many nobles compound with their peasants for the robot or labour. Count Szechinij compounds for about one-third of the one hun- dred and four days, or the fifty-two with team. The military system of the Hungarian monarchy is singularly inefiicient. The insurrectionary army or levy en masse on inva- sion was found wholly useless in 1809, when Napoleon had penetrated to Vienna and occupied Presburgh itself : it was hard to say whether the troops or their accoutrements were the least capable of actual service in the field. Yet the numbers raised were 40,000 men by the counties, and 45,000 by the towns. The military frontier towards Turkey is better provided for defence. This extensive coast, reaching a thousand miles from the Adriatic eastward, and comprising 18,000 square miles of territory, is in- habited by a warlike people, all the peasants being soldiers, and holding their land by a strictly military tenure. Of these, 45,000 are constantly under arms, and their numbers might be raised to 100,000 in case of necessity. The whole system is military. The country is divided into four command eries, under so many gover- nors, and all the officers exercise both civil and military jurisdic- tion. The Aulic Council of Vienna regulates the whole. In each family a patriarchal authority resides ; the property is in common ; the chief, termed Gospodm\ being the father of the clan, and all the adult males have voices in the management of the common concerns. But this portion of the empire is not properly Hungarian. Such is the Hungarian Constitution — " the ancient idol of the CH. IX. WORKS ON HUNGARY. 97 nation," as one of their own authors has said ; and an idol to whose worship they have sacrificed their country, and made themselves three hundred years behind the rest of Europe in every branch of social improvement This constitution means, in the mouths of its votaries, the privileges of the nobles, the oppression of the people, the neglect of national prosperity, the sacrifice of real and solid advantages to a nominal glory and empty pride. It is by another of these authors charged as the cause why he deeply grieves to see his countrymen wretched, degenerated and grovelling in the dust. The contemplation of the Polish and Hungarian Governments gives rise to constant recollections of the general principles un- folded respecting the Aristocratic system. All the vices of that policy receive exemplification from the effects produced in both countries by the vices which were described as inseparable from its existence. But it would be difficult to trace, in the history of either, any of those redeeming virtues which we found reason to admire in the government of Venice, and of which the Aristo- cratic principle infuses the influence in mixed constitutions, such as our own, when it forms a part of them, and a part of the greatest value and importance. We have now examined the general principles which govern the structure and functions of the Aristocratic System, and have illustrated those principles by contemplating the mixed aristo- cracies of Poland and Hungary. We are now to inquire into the structure and functions of the other Aristocratic Governments in ancient and in modern times, beginning with the government of Rome.* * The * Statistica Hungariae' of Horvath, 1802, is one of the best works on Hun- gary.— The 'Travels' of Mr. Paget, 2 vols. 8vo., 1836, contains much valuable information upon all subjects connected with Hungary and the Hungarians. — The works which have been chiefly relied on for information upon the three material points of creation of nobles, inheritance of land, and jurisdiction of nobles, are, Novotny, ' Sciagraphia Hungarise,' (1798,) Pars I., p. 103 — Werboez, ' Coi-pus Juris Hungarici,' Pars I., Tit. 3, 4, 6, 7, 8, 40, 47-53, 57 ; Pars 11., Tit. 12; Pars III., Tit. 32 — 'Decret.' an 1630, Art. 30; 1435, Art. 2; 1550, Art. 77 — Demian, 'Tableau des Royaumes de Hongrie,' &;c. (1809) II., 329. — Original information of much value has also been obtained from eminent persons connected with public affairs. PART II. H 98 CONSTITUTION OF ROME. CH. X. CHAPTER X. CONSTITUTION OF ROME. Importance of the subject — Its great difficulty — Ancient historians — Modern writers — Predecessors of Niebuhr — Niebuhr and his school — Scantiness of materials — Character of Niebuhr's writings — Early history entirely fabulous — Illustrations — Early divisions of the people — Early Constitution — The Tribes — Patricians — Plebeians — Patrons— Clients — Comitia Curiata — Niebuhr's doctrine examined — Equites — Reforms of Servius— Centuries and Comitia Centuriata— Legislation of Servius — Comparison with Solon's — Tarquin the Proud — His tyranny — His expulsion — Foundation of the Aristocratic Republic — Fabulous history — Com- parison of the Roman Revolution with the French and English. The constitution of ancient Rome at ttie different periods of its history forms a subject of such curious inquiry, and of such useful contemplation to the political student, that we must of necessity examine it attentively, notwithstanding the great obscurity in which a considerable portion of it is involved. Nothing, indeed, can be more difficult than to obtain a distinct and accurate account of its earlier stages ; and some parts even of its later history are encumbered with much doubt. The Ro- man historians all belonged to an age very remote from that in which the foundations of the government were laid. Livy and Dionysius lived in the time of Augustus, seven centuries after the building of the city ; four and a half after the establishment of the Commonwealth. The age of Polybius was two centuries nearer the times in question ; but his detailed narrative is con- fined to the transactions of his own day, although our most cer- tain lights upon the earlier times are undoubtedly derived from what has reached us at secondhand of his general summary, and from his incidental remarks. Plutarch, besides that he lived much later —nine centuries after the building of the city — had CH. X. ANCIENT HISTORIANS. 99 been very little in Italy, and possessed an extremely imperfect knowledge of the language. Livy, too, appears to have been deficient in the essential qualities of the historian. He is now universally allowed to have been so careless in examining the evidence of facts which he relates, and so much biassed by a disposition to favour one party and one class of opinions, that he is little entitled to our confidence, and, indeed, only claims our unqualified admiration by the charm of his unrivalled style, which must have placed him at the head of all historians had he but maintained an ordinary reputation for the more cardinal vir- tues of industry and fidelity.* Dionysius, though he had con- sulted the authorities much more diligently than Livy, yet evinces no discrimination in the use of them ; and having written with the undisguised purpose of flattering the national vanity of his countrymen by representing the Roman origin and institu- tions as derived from Greece, his fidelity stands very much lower than that of the celebrated Roman author. Besides, neither the one nor the other has described the ancient government with any minuteness ; nothing upon the system is to be found in their writings : it is, indeed, by casual observations, or as incidental to the narrative of events, that we find anything like the outline of any of the institutions ; and their statements are often at variance both with one another and with themselves. The uncertainty of the whole early history of Rome had long been well known to all who critically examined it as recorded by those writers, and as referred to in other classical remains. It had not escaped the habitual sagacity and scepticism of Voltaire, f * The carelessness of Livy, the credulity of Plutarch, and the bad faith of Diony- sius, are often complained of. But can anything exceed some of the stories in Valerius Maximus ? It seems hardly credible that any respectable person should have set down such things as he has brought together. Thus he relates, as if he were describing an ordinary occurrence, that one of the ten tribunes (twenty-nine years before there were more than five, and fifteen years before there were above two) burnt his nine colleagues alive for preventing a choice of successors — that being a capital offence by a law only made thirty-seven years after — although the historian well knew that neither Livy nor Dionysius, nor any one but the inaccu- rate Zonaras, had ever made the least allusion to such a tale, and although he also knew that the alleged ground of the massacre is inconsistent with the whole current of events. — (Val. Max., vi. 3, 2.) t See particularly the Introduction to the Essai sur les Moeurs. — Bayle, with all his scepticism, does not appear to have questioned the authenticity of the ancient histories where they relate no miracles ; yet he frequently, as in his article on Lucretia, points out their discrepancies. H 2 100 CONSTITUTION OF ROME. CH. X. A more learued and accurate scholar, M. Beaufort, liad made it the subject of a separate treatise a hundred years ago.* Peri- zonius had taken nearly the same view of the matter half a cen- tury before ; and Cluverius had devoted a portion of his great work (Italia Antiqua) to an elaborate statement of the contra- dictions and uncertainties of the Roman historians. But it v/as not till the beginning of the present century that the subject underwent a full investigation, and that the portions which may be relied on were separated from those which are purely fanciful or greatly misrepresented. The Germans have, as usual with that excellent and admirable people, been the principal la- bourers in this department of literature ; and it is to Niebuhr chiefly, and after him to Gottling, and Wachsmith, and Savigny,! that we are indebted for the materials from which a more correct view of the subject is now obtained. Nevertheless those mate- rials are after all very scanty for the formation of a complete history. Writing in the first three centuries was but rarely used, and the meagre registers of events which the pontiffs kept, with whatever inscriptions had been carved on brass, almost all pe- rished when the city was sacked and burnt by the Gauls, A. U. C. 360 (364 according to Varro). The few monuments that could be collected, after the Gauls retreated, were very little consulted by the early historians, who appear, like Livy and Dionysius, to have rather occupied themselves with putting the traditions preserved in popular songs j: into the form of a narrative than with any examination of the evidence upon which those tradi- tions rested. Moreover, as even the earliest historians, too, lived five centuries and a half after the foundation of the city, their knowledge of the subject was little more likely to be cor- rect than that of later writers. It is only by examining and comparing the narratives thus composed, the fragments of old * * L'Incertitude des Cinque Premiers Siecles de I'Histoire Romaine, 1738.' His •work on the Roman Government (' La R^'publique Romaine,' 2 vols. 4to.) was published in 1766, and is by far the most learned and accurate treatise on the subject. t Heyne, in 1793, placed the subject of the Agrarian laws upon its right footing; and Vico, a learned Italian, at the beginning of the eighteenth century, had taken, with regard to some important points, the same view of the Constitution, which late inquiries have countenanced. X The learned and ingenious work of Mr. Macaulay, ' Lays of Ancient Rome,* well deserves to be consulted by the I'eader of the early Roman history.— Mr. M. might render much service by undertaking a Roman History, still a great desideratum. en. X. DIFFICULTIES OF THE INQUIRY. 101 laws, and other monuments accidentally preserved in them, the allusion to facts scattered over other matters, above all the treatise of Cicero on Government {De Repuhlica), fortunately recovered in part, and in composing which he appears to have relied for the early history'- upon the lost books of Polybius, that any approach can be made to the real truth respecting the origin of the Roman Government. That Cicero himself should in some respects have fallen into mistakes concerning it ; that in his time the subject should have been surrounded with doubt, can little surprise us, when we reflect how much controversy prevails among ourselves at this day upon the early history of the English parliament, although we only live at the distance of six centuries from the events in question, and the use of writing has been uni- versal during the whole time, and although a body of men devoted to literary pursuits has always existed, and the records of the age are still in perfect preservation. Much of the uncertainty which prevails upon these important subjects arises, both in the history of the Roman government and our own, from contem- porary writers omitting to describe matters of familiar observa- tion, and which they assumed that every one must be aware of ; a remark applicable not only to the early but to the later history also of the Roman institutions. Finally, it must be stated as an additional embarrassment to the student, that the most important work upon the subject, that of Niebuhr, is written in a manner peculiarly confused and ob- scure. He shows no management or mastery of his materials ; he never keeps in mind the necessity of proceeding from things already explained to new information ; he does not state plainly, and by way of either narrative or exposition, what he has to <^ tell, but works by reference, and remark, and allusion ; he forgets that he is to instruct us, and assumes that we already know the matter he is dealing with. A work less didactic, less clear and plain, less easily or agreeably followed, can with difficulty be named, among books of the class to which it unquestionably belongs, works of sterling value and original genius. Such are the difficulties of the inquiry upon which we are about to enter ; and if we would form a notion how necessary it is to the accurate knowledge of the Roman government, we have only to recollect the great errors into which authors of the highest reputation have been led by indiscriminately taking for granted 102 CONSTITUTION OF ROME. CH. X. whatever they find in the two most famous Latin historians. Not only have most of the commentators, as Sigonius,* Onu- phrius Panvinius,t P. Manutius^ treated as authentic every thing save the miracles, which Livy himself was fain to reject ; but Machiavel and Montesquieu actually suppose, from the manner in which Dionysius speaks of Eomulus dividing the land, that each person at Rome had a small allotment which he could not exceed without breach of the law ; and both these authors, conceiving this poverty and equality to be essential pai-ts of a republican government, regard the Agrarian laws, from time to time propounded, as attempts to restore the equality by en- forcing this imaginary maximum. § Under the pressure of these difficulties, and the influence of these inducements, it is fit that we now proceed to deal with the subject. That a certain portion of the early Roman history is purely fabulous, no one of course has ever doubted ; but it was a long time imagined that the greater part might be true, and thus men had become habituated to believe everything but the preter- natural passages. There seems, however, no foundation for the belief that the greater part of the story is an account of real events, or even that all the actors in the scenes described were really existing persons. Some of them may have had no existence at all ; and some of the events are certainly mere poetical fictions, not quite so improbable as the miraculous portions of the tale, but quite as unreal. Thus a close examination of the accounts of Romulus, and his supposed brother Remus, has led all who have undertaken it to the conclusion that the whole is a fiction, and that Romulus is only the personification of the Romans, the earliest inhabitants of Rome, as ^olus among the Greeks was of the ^olians, and Dorus of the Dorians. The personal existence of Numa is at the best extremely doubtful, though it has not been given up so completely as that of Romulus. The sounder * Dc Ant. Jur. Civ. Rom. He supposes that Romulus established the relation of patron and client universally between the patricians and plebeians. + De Civ. Rom., cap. vii. He gives the impossible fable of the Rape of the Sabines at length. X De Senatu, cap. i. He adopts the same notion as to patrons and clients with Sigonius. Paul Manutius {De Civ. Rom.) terms Livy " Scriptor interdum parum diligens ;" but in the same passage describes Dionysius as an author of the most consummate accuracy, and one " cui fidem non habere nemo debeat." § Mach., Discorsi, I. — Mont. Grand, et Dec, cap. 3. He makes this supposed equality the main cause of the Roman power. CH. X. EARLY HI&rORY WHOLLY FABULOUS. 103 opinion seems to be that these two kings must be taken merely as representing two early periods of the history of the people ; Romulus, or the age of Romulus, being the earliest period, when the Romans were at war for the existence of their* horde and town with all around them— Numa, or his age, being the subse- quent period of comparative tranquillity, when some progress was made in the arts of peace. Of the events so constantly recited , one may be mentioned, as an example of universal credit being given to a narrative almost as contrary to the ordinary course of nature as the supposed relationship of the god Mars to the founder of the city. The rape of the Sabines could not possibly have happened in anything resembling the way in which it is related ; not to mention that one account makes the number of women seized amount only to 30, while Dionysius gives it at 527, and Plutarch at 683 : numbers manifestly taken at random, either by the authors, or by the makers of some ancient ballads, from whom they copied. Similar inconsistencies and improbabilities are to be found in the succeeding reigns, even when the persons mentioned appear to have had a real existence. The fight of the Horatii and Curiatii is in all its particulars e\ddently poetical ; but the murder of the elder Tarquin by the sons of Ancus, thirty- eight years after he had obtained the croAvn in preference to them, and at the time when he must soon have been removed out of their way by old age, to say nothing of the manner in which it is said to have been perpetrated (by a peasant sent to ask at an audience redress for some injury) and of the contrivers of" the plot suffering Servius, Tarquin's favourite, to nale in his name some days after he was killed — all this is manifestly a fiction, and, if intended to pass for history, a very clumsy fiction ; and other stories expose and refute themselves. But parts of the early history, which are not so improbable, seem equally unfounded : as the accounts of Tarquin silently striking off the heads of the tallest poppies to suggest a proscription of the chief men at Gabii, when the emissaries from his partisans there came to receive his instructions. This is plainly borrowed from Herodotus, who recounts that the same symbolical advice was given to Periander ; and indeed the rape of the Sabines bears a close resemblance to a passage in his history, the rape of the Athenian women by the Pelasgi of Lemnos. — (Lib. vi. cap. 137.) 104 CONSTITUTION OF ROME. CH. X. That the city was founded about the year 753 before the Christian era, is the opinion now most prevalent, although Sir Isaac Newton's chronology fixes the date at 693- That we may find at a very ciirly period the origin of those divisions among the inhabitants, and of those institutions which with some material alterations were continued for many ages, seems nearly certain ; and these changes appear to have begun very early, some of them at the beginning and others at the end of the second century from the foundation of the city. By tracing back these divisions and institutions, with the help of tradition and the occasional mention of particulars in various classical remains, we seem justified in concluding that at the earhest period, the period assigned to R-omulus— in other words, the beginning of the nation — the inhabitants consisted of a single tribe akin to the Latins, but that another, the Sabines, was in a few years added ; and that the former were called Rarrines, the latter Titles or Titienses. Each tribe was composed of freemen, children of freemen alone ; and the whole free people formed the two tribes. Each tribe consisted of a hundred houses, clans or kindreds (gentes), consisting of different families originally re- lated to one another, but afterwards agreeing chiefly in having the same religious rites; and they were divided into bodies called curice, of ten houses (gentes). A chief, or king, was at the head of the whole : he was chosen by them, and had the command of their forces in all warlike or predatory operations. He was also the chief priest and the chief judge of the commu- nity; but the other powers of government were vested in a council or senate, chosen out of the tribes in the manner to be presently examined.* The persons composing these two tribes were not only free and free-born, but also natives, that is, born in the place and descended from natives. The tribes thus consisted of all the inhabitants who were both free, free-born and native. There were others who did not come within this description, * Among the theories propounded on this subject there is one of Gottling, which has met with great favour, and, as it should seem, very unjustly. It represents the houses (gentes) as divided into ten curise or bodies of ten, and then supposes a second division into ten decuries, consisting of parts of gentes, and so arranged for the purpose of choosing a decurio, to be the senator of each decuria, thus supposing a refinement still greater than mere representation ; for it is a division of the same bodies in two different ways for different purposes. Both Niebuhr and the other recent authorities entirely reject Livy's theory of nomination by the king ; yet it cannot be denied that the probabilities are much in favour of some such scheme. CH. X. EARLY CONSTITUTION — TRIBES. 1()5 and these were chiefly poor followers of the families, slaves set free, or the children of slaves, and strangers who had come to live in the new city. None of these were classed in either tribe ; but the followers and freed-men were dependants upon the houses or individual members of the tribe, and called clients, from the Greek word,* signifying to hear or obey. It is probable that the strangers were mostly of the same origin as the population of the country on the west of the Tiber, or Southern Etruria, and became a much more numerous and important body, when, about a century after the foundation of the city, the inhabitants of Alba removed to Rome upon their town being destroyed, and were classed with the Tuscan settlers. A third class, composed of these free men, was then added to the two former, and called Luceres; supposed by some to be a Tuscan name. It was divided, like the other two, into ten curiae, or bodies of ten houses (gentes) each, and it had, like the Kamnes and Titles (the Latins and the Sabines), its followers, dependants or clients. These houses, however, of this third tribe were regarded as inferior to those of the other two, and called the lesser {minores gentes), the others being the greater {majores gentes). There seems less reason to suppose that Tullus Hostilius, in whose reign this addition of a third tribe took place, was an unaginary person, than that Ro- mulus and JSTuma were such ; but nothing can be more impro- bable than the greater portion of the stories related of his times, especially the most remarkable of them, the battle of the Horatii and the Curiatii. In the next reign, that of Ancus, there is more reliance to be placed upon the narrative ; and it appears that in his time considerable bodies of Latins came to settle at Rome on the capture of their towns ; but they were not formed into a separate tribe, or enrolled among the three already formed. Nor of the last of those three, the Luceres, were any members admitted into the senate until the next reign, that of Tarquin the Elder, when a hundred of them were added to the senate, but called Senators or Fathers of the lesser houses (patres oninorum gen- tium)— those of the Ramnes and Titles being of the greater (majorum gentium). The Latin and other strangers thus formed a body of persons separated from and inferior to the three tribes still more than the third tribe was separated from and inferior to Kkviiv. An old Latin word had the same sense. 106 CONSTITUTION OF ROME. CH. X. the other two. This body is by some writers, of which Niebuhr is the chief, considered to have had no existence before the settle- ment of the Latins in the time of Ancus. But though its members were increased by that settlement, it must, to a certain degree, have been in existence previously ; because those who afterwards composed the Luceres had stood in the same relation to the Eamnes and Titles before they became a third tribe, in which the Latin settlers in Ancus's time stood to the three tribes ; they were aliens, and enjoyed no political rights ; the tribes, that is, the free and native people, were alone regarded. They may, in a sense, be said to have formed a privileged class, as compared with the others ; but it is much more correct to say that the whole Roman people — all the free and free-bom natives — were alone regarded in the government from the earliest times ; and that the others, chiefly aliens, had no place in it. The members of the tribes were called patres or fathers ; and afterwards, when the title of patres began to be given peculiarly to the more ancient of the body, who constituted the senate, they were called Patricians, or members of the class to which the patres belonged. Those who depended on them as clients were reckoned with them, and in some sort were considered to be part of the tribe to which their patrons belonged, though they did not share its rights, except through those patrons. The rest of the community were called p^e6s— plebeians, or commonalty. But out of this distribution there soon arose the relation of a privileged to an unprivileged class. The number of the houses was necessarily limited to those who had been of the three tribes always ; for no family could be enrolled among them unless by an act of the whole State adopting or naturalizing them, or by filling certain high offices ; consequently the numbers of their members never could greatly increase ; indeed they continued for a long course of years to do little more than maintain their origi- nal numbers, while the plebeians rapidly increased, not only by the natural progress of population, but by other means. Settlers flocked to the city as often as it conquered any Italian town ; dependants or clients, on the family of their patrons being extinct, became plebeians if they did not choose any other patron ; slaves who obtained their freedom, though they generally became clients of their former masters, yet sometimes were thrown off altogether, and became plebeians. The patricians, too, were not allowed to CH. X. PATRICIANS AND PLEBEIANS. 107 intermarry with the plebeians ; and the fruits of any connection thus formed being illegitimate, all became plebeians. As the ple- beian body, then, continued to increase, while the numbers of the patricians remained at first nearly stationary, and afterwards began to decline, a division of the whole nation into two classes was well established ; and the smaller class had rights which the larger body did not share. The only difference between the account here given of the plebeian body's origin, and that given by Niebuhr and his fol- lowers, is, that they consider the body to have been established all at once at the time of Ancus ; whereas we hold it much more consistent with the facts and with probability to consider this body as having gradually increased from the very beginning. Indeed, even Niebuhr, although he considers the great body of the plebeians to have been formed out of the Latins who became subject to Rome in the time of Ancus, acknowledges that such a body as we have described must have arisen in the very earliest times. But the existence of the patricians as a privileged order — in other words, the existence of an aristocracy — cannot, with any accuracy, be referred to the earliest times, when all the people, that is, the tribes or free and native Romans, enjoyed the privileges for themselves and their retainers, foreigners alone and slaves being excluded. It is only when a body, and a large body, of native Romans had grown up, the descendants of foreigners, freed-men, the offspring of illicit intercourse, and cast-off retainers, that we can with any correctness of speech denominate the patri- cians, descendants of the original free and native houses, a privi- leged order, and the government, in which they held exclusive authority, an aristocracy. Beside their exclusive right to places in the senate, the patri- cians exercised direct authority as a body. The curiae into wdiich the houses were formed met in an assembly called the comitia curiata, which appears to have been attended not only by the heads of the houses (gentes), but by all housekeepers, that is> by the heads of all families. Those are manifestly wrong who suppose that it was a representative body ; that is, a body of persons either named by the houses, or who, from their position at the head of those houses, might be said to attend the assembly on their part. For, in that case, whether we regard the senate as appointed by the king, or as comj^osed of decurions, officers of the 108 CONSTITUTION OF ROME. CH. X. houses, or as chosen by the houses, its composition would be substantially the same with what Niebuhr ascribes to the co- mitia curiata : so that there must have been two bodies com- posed of the same, or nearly the same persons, and appointed in the same, or nearly the same manner, yet exercising perfectly different functions in governing the same community ; an ab- surdity which never could have been established, or have grown up in any scheme of administration.* In the comitia curiata the patrons of the greater houses (ma- jorum gentium) had precedence over those of the lesser (mino- rum gentium), possessing the exclusive right to hold certain offices, as that of pontiffs, which gave them the whole super- intendence of religious rites, though each tribe had a priest (fiamen) of its own, each having deities of its own. The two greater tribes had also twenty /ecm^es, or heralds, one for each curia, and these acted as ambassadors on all occasions. They had two criminal judges, from whose decisions, however, there lay an appeal to the comitia or assembly of the curiae, as there did from the king's decision in civil, though not in criminal causes. There was thus, as it were, an aristocracy within an aristocracy ; all the patricians being privileged as contradistin- guished from the plebeians, but two of the patrician tribes (Ramnes and Titles) having privileges to the exclusion of the third (Luceres). The patricians assembled in the comitia curiata had so far legislative authority that all laws were passed by them, but on the proposal of the senate ; and the senate could only sanction, after discussion, measures proposed by the king, without the power of originating any. In like manner, and on the same proposal of the king first, and then of the senate, all officers, civil and military, were appointed in the comitia curiata ; which like- wise decided on peace and war in the same way, the decisions of the senate being only final on administrative questions. The king himself was elected by the comitia curiata, and on being elected was armed with the supreme power (iiivperiuni) by a separate law of the same body. This course was pursued in the * Niebuhr's own doctrine respecting: the senate makes it composed in precisely the same way in which he imagines the comitia curiata to have been, of a senator for each decuria (I. 21 ), so that each senator must have acted in two capacities ; a refinement, as well as an anomaly, hardly conceivable in a rude community. CH. X. COMITIA CURIATA — EQUITES. 109 case of the first four or five kings, but not in that of Servius Tullius, who, making the commons believe that Tarquin had survived his wounds, and ingratiating himself by paying their debts, first ruled for some days in Tarquin's name, and then obtained their approba4:ion to his succeeding ; but he then pro- cured a law to be made giving him the supreme power.* This singular proceeding of first electing the chief magistrate, and then by another act giving him his power, was often adopted in the choice of consuls, who, being elected by the centuries, were endowed with authority by the curiae. But it was more strange in the earlier times, when both the election and the arming with power were performed, though by separate acts, yet by the same body. The imperium of both king and consul ceased on entering the city ; out of the city they were absolute. The king first, afterwards the consuls, convoked the comitia curiata, through the officers {lictors) of the curiae, each having its own. The two tribes, or twenty curiae of the greater houses, were not the only aristocracy within an aristocracy in this singular frame of government. There was a select body, probably dis- tinguished from the rest originally by their greater wealth, and thus enabled to serve on horseback, while the others were foot soldiers. They were accordingly called Equites, or horsemen, and we have given them the name of knights. They at first consisted of three centuries or hundreds, one in each tribe, and the elder Tarquin added a second century to each of the original centuries, and then, according to some indistinct accounts, pro- ceeded to double the number of the whole. Servius added twelve centuries, or, as some say, only six, assuming there had been twelve before ; for all are agreed that there were finally eighteen. A doubt may be raised whether or not the three subordinate centuries instituted by Tarquin were taken from the plebeians ; but there can be no doubt that the twelve new cen- turies of Servius Tullius were formed of the noblest and wealthiest citizens of the plebeian order. It has been held by Niebuhr and * Livy and others have fallen into a manifest error in supposing that Servius M'as the favourite of the senate, and chosen by that body. The patricians hated him so much, and he was so sensible of it, that Paullus (the jurisconsult) has related an instance of the precautions he took against them : he made them all inhabit a par- ticular quarter of the town (thence called Viciis Patricius), because it lay so exposed to his force on the high ground above, that he could easily crush them if they were found plotting against him. 110 CONSTITUTION OF ROME. CH. X. others that when the plebeian order became numerous, and formed the infantry of the army, all the patricians had a right to serve on horseback ; and they thus consider equites and patri- cians as synonimous, contrary, it must be admitted, to the whole cuiTent of classical authority, and to all that seems most esta- blished in the maxims of the Roman government, as well as the habitual forms of expression most familiar to classical students. It may suffice to cite the common expressions of ' equestrian order,' * equestrian dignity,' ' equestrian census,' and to mention the common saying that this order was the breeding-ground of the senate (seminarium senatus) — senators being deemed irregularly chosen, if not from such patrician or such plebeian office-bearers as were also of equestrian rank. The officer who commanded the Equites {Trihnmis Celeruni) held a high rank under the kings, and was employed to convoke the curiae, and preside at their comitia. Under the republic he was called master of the horse (riiagister equiturti), but was only an occasional officer, appointed by the Dictator, of whom we shall presently speak. A very important change was introduced by Servius. Sprung himself from an humble, probably a servile origin,* owing his promotion to the favour of the commons, whom he always courted, and viewed most jealously by the patricians, whom he despised and controlled, he appears to have thought that the time was come when the growth of the plebeian body and the undue authority, oppressively exercised, of the patricians, rendered a new arrangement of the political power both safe to attempt, and expedient if successfully pursued. He began by passing many laws in the comitia curiata for regulating the rights of parties in respect of contracts, and of injuries and wrongs ; probably for defining the rights of citizens and of the two orders. He also transferred from the kings to judges the jurisdiction in private causes. He either divided more of the public lands among the commons or gave them a better title to what they already held ; and he is even said to have abolished the practice both of pledg- ing and imprisoning the person for debt. Finally, he raised both the freed-men and slaves to some consideration in the com- munity, enrolling the former among the low^est class of citizens in the distribution which we are presently to consider, and giv- * He is supposed to have been a natural son of Tarquin by a slave. Cic. dc Eep., II., 21, mentions this tradition. CH. X. REFOKMS OF SERVIUS. HI ing the latter a yearly religious festival {compitalia), during which they were treated as free. Next, in order to balance the thirty curiae, he distributed the commons into thirty tribes — four city, and twenty-six country tribes ; at the head of each he appointed a tribune ; and under his presidency the tribe met for the levy- ing of its share of the taxes and raising its quota of men to the army. This arrangement with the power of meeting could not fail greatly to increase the weight of the commons, as well as to afford them the means of acting in concert, and thus extending their power much further. But this was not the whole of Servius's reforms ; and it is remarkable that the spirit of his legislation gave no power to the multitude without at the same time, and in the same proportion, providing a safeguard against its abuse, and a security against its exceeding the bounds which he deemed safe for the state. He added twelve centuries of equites to the six already existing of the patricians (or six to the twelve), and these new equites were all plebeians of wealth. He then divided the whole people,* that is, the two orders, patrician and plebeian, into five classes, into which persons were enrolled without any regard to their rank or dignity, but merely with a view to their wealth, according to which all were ta.xed to the revenue ; and each class consisted of so many centuries of house- keepers. The property of the first class was about 320^. f of our money, or 400^. according to another calculation, and of the last the tenth of this sum ; and to a sixth division belonged those who had less than this, and those who had no property at all, and who were called proletarii and capite censi. The whole people by centuries were to assemble in comitia ; but the centu- ries, thus classified according to their property, were not com- posed numerically of so many hundreds, for this would have given the great majority to the votes of the poorer classes. The first class consisted of nearly as many centuries as all the other * People (popuhs) in the early times, and indeed until the distinctions bet-ween patrician and plebeian were greatly diminished, means properly the former order that is, the original free and native Romans and their descendants, that is, the three tribes of the houses. When the word, therefore, is used in a larger sense it is necessary to give notice. t Nothing is less certain than the old computation of money ; for undoubtedly if we reckon 100,000 asses (the highest census) at so many pounds of copper or brass, a fortune would be indicated far beyond what can have been fixed. See, however, Nieb., vol. i., pp. 448-458, Transl. 112 CONSTITUTION OF ROME. CH. X. four together : it contained eighty centuries, and an additional one of artisans for constructing military machines ; while the second, third, and fourth contained twenty each, and the fifth thirty. Then the eighteen centuries of equites, belonging to the higher or wealthier descriptions, and separated from the whole people before their distribution into classes, voted with the first class, which may be said to have had ninety-nine centuries, while all the other four classes numbered only ninety ; and only ninety-five or ninety-six, even if two centuries of military me- chanics and the centuries below the classes be reckoned.* Now? as the votes were taken by centuries in the assembly, each century voting by a majority of its members and reckoning as one vote, this arrangement gave the decided majority to the wealthier class against the more numerous ; the intention of Servius being that which Cicero says ought ever to be carefully maintained in a commonwealth, preventing the greatest influence being exercised by merely the greatest numbers : " Ne plurium valeant plurimi." (De Rep., II. 21.) The addition of the cen- tury called Ni quis scivit is remarkable ; it was in order that any one might vote who had omitted to vote in his own, as Festus says, " Ne quis civis suffi-agii jure privaretur." Both Cicero and Livy praise this whole system, and, as it seems, justly, for at once giving each citizen a voice, and yet apportioning his influence to the respectability of his station. ■[* The four inferior classes could only be called on to decide in the event, which * Five tribes were added to the thirty of the Luceres in later times, but the ■whole numbers never exceed thirty-five. At one time M-hen Porsenna had con- quered Rome, and she had lost all the left bank of the river, ten tribes were taken away, and one having been added, this explains the passage of Livy, in which the number is said to be only twenty-one. This ingenious and satisfactory explanation is Niebuhr's, to whom we also owe the emendation and interpretation of the passage in Cicero de Rep., II. 22, from which the account in the text is taken. But the numbers in Cicero, if we adopt Niebuhr's supposition, are still not reconcileable to the total of one hundred and ninety-three, always represented as the number of the centuries ; for he speaks of ninety-six as the remaining centuries, after deducting those of the first class, and Angelo Mai can only make the total one hundred and ninety-three, by making the remainder ninety-five. Cicero, if the passage is not coiTupted, seems plainly to have held that eight from the inferior classes must join the eighty-nine of the first to give a majority, and to have supposed that the equites had only six votes — and then it is difficult to see how he gets his sum of eighty-nine. t Cic. De Rep., II. 22 : — " Neque excluderetur sufiFragiis (reliqua multitudo) ne superbum esset ; nee valeret minus, ne esset periculosum." Livy, I. 43 : — *^ Gradus fact! ut neque exclusus quisquam suflfragio videretur, et \4s onmis penes primores civitatis esset." CH. X. SERVIUS'S REFORMS. 113 hardly ever happened, of the centuries in the first class differing. For an uneducated, and indeed barbarous people, there seemed no better arrangement than one which should thus recognise each man's right to vote, but only make the votes of the multi- tude decide in case there was a difference of opinion among the upper classes. It is further to be noted that the people were distributed in the centuries according to their age ; each class having an equal number of elders and younger men, or men under forty-five and above that age. So that the latter, though considerably fewer in number in each century, yet forming cen- turies, and the vote being by centuries, had an equal voice with the young men.* Thus the voices of five elderly persons had as much weight as those of nine younger ones. The distribution into centuries, and the account taken of ages, numbers, and property, was made the foundation both of the taxes and of the military service. The army was formed of the people by centuries. The seniores, or elder centuries, remained in the city as a kind of reserve, and, unless in case of necessity, the younger (juniores) alone took the field. Every one was obliged to arm himself, as well as to pay taxes (trihuta) accord- ing to his fortune, or class , and those under the fifth class were not called upon to serve excepting in cases of urgent necessity, f The comitia centuriata being established by Servius, they appear very soon, if not at once, to have come for some purposes into the place of the comitia curiata. If the kingly government had been peaceably continued, the choice of the king would have been vested in them, on the proposition of the senate ; as they afterwards chose the consuls and all the great patrician magis- trates, except the dictator, master of the horse, and interrex. They had legislative power likewise, but could only entertain questions submitted to them by the senate ; and the assent of the comitia curiata was likewise necessary to give their decision the force of law. The effect, too, of long usage, as well as of the patri- cian influence, was such that very few legislative measures were for many years brought before the comitia centuriata, the senate , * The population returns of 1831 give the proportion of ages upon 10,000,000 of males— from 15 to 39 years old, 3,608,000— from 40 to 69, 2,049,000, or as 9 to 5; and if all above 69 be added, the proportion is still as 18 to 11. t Niebuhr supposes that those who had some property, but under the census of the fifth class, were the accensi, who followed the army unanned, and took the places and armour of those killed in battle. PART II. I 114 CONSTITUTION OF ROME. CH. X. and the curiata continuing in most cases to make tlie law. The constitution of Servius being introduced towards the end of the second century, it was not till the laws of the twelve tables, and the adoption of an uniform system of jurisprudence, a hundred years later, that the general legislative power become regularly vested in the comitia centuriata. That there is much of a fabulous description in the commonly received history of Servius no one now doubts. The whole account of the conspiracy against him, his murder, the conduct of his daughter, and of Tarquin, who dethroned and succeeded him, is so full of gross improbability and contradictions that it has generally been given up as the fiction of the early poets, working upon some tradition of facts which it is now impossible to sift from their inventions. But that Servius really made the whole, or the greater number, of the changes in the constitution which have been ascribed to him seems to be admitted. He has, however, like our Alfred, and like Charlemagne in France, become the person to whom every early arrangement is traced ; whatever the Romans obtained of free and popular institutions was supposed to be a revival of his laws which Tarquin had abro- gated ; and things which it cannot be pretended that he ever did, he is fancied to have intended doing, as resigning the cro^vn, and giving the supreme power to two consuls.* Another theory, but resting on far better foundations, represents him to have taken the Greek forms of government as his model in the distribu- tion of political power. Cicero expressly describes him as having been thoroughly versed in the Greek customs, under the instruc- tion of the elder Tarquin, his protector, who is known to have been the son of a Greek.-|* And there is a striking resemblance of his reforms to those of Solon, a century and a half before ; espe- cially in his abolition of servitude for debt, his distributing the citizens into classes according to their property, his apportioning the military services and taxation to the census, and his giving all citizens, including clients, J a vote in the assembly. The like- ness however ends here ; for Solon's constitution was essentially democratic from the votes being given by individuals, and not by * Niebuhr himself adopts some of these traditions. t Cic. de R. P., ii. 20. X It is supposed that Solon's fourth or lowest class was chiefly composed of the serfs or cultivators, whose name ( Thetcs) it bore, and who stood to the Eupatridsc, or noble families, in the relation of clients to pati'ons. CH. X. TARQUIN THE PROUD. 115 classes ; and though the lower orders were excluded from all offices, and the two next from the higher, yet the judicial power was given to the whole body, and given by lot ; whereas the constitution of Servius, after all the additions which he made to the power of the commons, additions which wore an aspect much larger than their reai substance, remained essentially aristocratic as before, until those changes introduced by him enabled the commons in the course of time to obtain a really democratic government. The great favour which Servius naturally and justly enjoyed with the plebeians, was met by hatred equally sincere, but not so openly displayed, on the part of the patricians. There seems no reason to doubt that they joined in a conspiracy against him, which ended in his dethronement, probably his murder, and in placing Tarquin, the son of his predecessor, upon the throne. Although the legends and songs, and after them the historians, have without doubt exaggerated the vices of his reign, as well as the crimes by which he began it, it is certain that he exercised great tjisnanj, and that he was enabled by the aid of the patri- cians to undo nearly all that Servius had done for the commons. The meetings of the tribes were no longer held ; the centuries were only kept up with the view to taxation and the army ; the judicial power was restored to the crown ; and the law which prevented j^ledging or seizing the debtor's person was repealed, if indeed such a law had ever been enacted.* The patricians, however, suffered very speedily for their profligate support of the tyrant, and their employment of his power to crush the com - mens. All authorities represent him as having been made king without any form of election, and certainly he was not chosen by the comitia centuriata. The probability, however, is that his election was sanctioned either by the senate or the comitia curiata ; for it is hardly to be supposed that he should have omitted a confirmation so essential to his title, when he could so easily obtain it from his partizans. But the patricians did not expect him to surround himself with a body guard, and by the power which this gave him to tyrannize over themselves still more intolerably than he permitted them to domineer over the people. By charges of conspiracy, and by all the other wonted * It will presently be showu how great a share the law of debtor and creditor contributed to the power of the patricians. I 2 116 CONSTITUTION OF ROME. CH. X. acts of tyrants, he was enabled to banish or put to death such as threatened to oppose him, or such as had wealth which he desired to confiscate. He seldom assembled the senate, and hardly ever the curiae ; he made peace or war, and treaties with neighbour- ing towns, of his own mere authority ; and in all respects governed as an absolute prince. His capacity appears to have been of a high order ; and it is clear that he greatly extended the dominions of the city, both by conquests, and by colonies settled in order more easily to retain them, according to the Roman policy in all ages. He was enabled to place Rome at the head of the Latin league by his success over several of the Latin states,* and his intrigues with others. His power at home was increased by these foreign operations, and by the wealth which he thus obtained ; but those who had set him up joined on the first favourable oj^portunity to pull him down. During his absence at the siege of Ardea, a town on the coast, an insurrection broke out, said to have been occasioned by the licentious conduct of his son towards a Roman matron ; the patri- cians joined its leader, Junius Brutus, and the people gladly availed themselves of the opportunity to be revenged on him whose tjnranny had commenced with oppressing them. The Tar- quins were expelled ; and all ranks being disgusted with a form of government under which all had alike suffered, it was resolved that the chief magistrate should thenceforward be elected yearly, and not for life ; and, as a further security against usurpation, that two should be chosen with equal powers. These were called consuls, and being named by the popular assembly, the comitia centuriata, they were armed with the supreme power (imjyeriuTn) as the kings had been, by a decree of the curiae. The revolution was effected with as little change as possible in the other parts of the government ; and it was at first marked with great moderation towards the exiled family. The senate, which Tarquin had by his proscriptions reduced to a small num- ber was completed to 300, and it appears to have assumed the chief direction of affairs. They resolved to deliver up all Tar- quin's personal property, and allow him to sell his lands, in the hope that he would attempt nothing against the republic. The course upon which he entered, of intrigues and plots for his restoration, and the wars which he excited with this view among * Cic. de R. P., ii. 24. CH. X. ^UlISTOCKATIC REPUBLIC FOllMED. 117 the neighbouring states, put an end to all such kindly dispositions ; and the senate found it necessary to prepare for their defence by enlisting the commonalty still more completely in their cause. The goods of the Princes were given up to the people as plunder, and their lands were distributed among them. The patricians now found it necessary to secure the support of the other order, by giving up the gTeater portion of their domains ; and seven jugera (rather more than four acres and a quarter) were allotted to each plebeian. The laws of Servius were restored ; a solemn determination, sanctified by oaths, and fenced by the outlawry of all who should contravene,* was taken never more to suffer regal authority ; but beyond this, and giving an appeal to the plebeians from the criminal jurisdiction of the consuls, similar to that which the patricians always had from the decision of the king and judges, no material change in the polity of the state appears to have been introduced. The government continued to be aristocratic under the consuls, as it had been under the kings, with only the additional security to the patrician power which was obtained from the choice of the executive magistrates being vested in bodies, over whom the aristocracy had the most complete influence, and from the powers of these magistrates being limited to a year's duration. The legendary history of Rome has added many fictions to the true account of this revolution, both in what regards its immediate cause, the manner of effecting it, the subsequent conduct of those engaged in it, and the events of the war to which it gave rise. What foundation there may be for the story of Lucretia, the feigned idiotcy of Brutus, the con- spiracy and the death of his sons or nephews, the assassination in Porsenna's tent, and Scsevola's devotion, the voluntary abandon- ment by Porsenna of his conquest, the defence of the bridge by Codes — it is in vain now to inquire. That these things never could have happened as they are described, and that some of them are wholly inconsistent with dates t and facts, all authorities seem now to be agreed. We shall most safely read the Roman history of those ages if we confine ourselves to the general results ; and it is a somewhat remarkable circumstance that * Whoever should attempt to obtain regal authority, might be put to death without trial. t Brutus, a child at Tarquin's accession, is represented as having a son grown up twenty-five years after. 118 CONSTITUTION OF EOME. CH. X. modern times have furnished instances by no means unlike that of the Roman revolution. The conduct of the senate respecting the royal family reminds us of the early stage of the French revolution ; and the alteration which the intrigues and wars of the Tarquins occasioned in their treatment by the Pvomans somewhat resembles the changes which the first invasion of France by the Allies and the Bourbon Princes occasioned at Paris. Had the French stopped at confiscation of the emigrant property, the parallel would have been complete. The alarm excited by the invasion of France afforded no justification, nor even any palliation, of the atrocities foi- which it was made the pretext ; and though the fact of the republican party being the minority, greatly overmatched by the royalists, and generally by those averse to a commonwealth in every part of France, may explain why the system of terror, with all its enormities, was resorted to, and may account for a course of wholesale change as well as cruelty, being pursued, so opposite to the proceedings of the Roman patricians and plebeians, who seem to have been nearly unanimous in their opposition to kingly government, yet this fact affords no kind of vindication to those whose motives it illustrates. The treatment of the royal family in 1830 is con- sistent with the scope of these remarks ; and in one respect our own revolution of 1 688 seems to resemble that of Rome : as little was done as appeared possible in changing the system or even the dynasty ; and all the measures adopted had for their aim the restoration of the former constitution, and the counter- action of recent encroachments. CH. XI. PATRICIAN POWER. 119 CHAPTER XI. CONSTITUTION OF ROME. (Continued.) Patrician power — 1. Patrons and Clients— Feudal resenablance — JErarn — Error of authors — Clients in Sparta, Crete, Thessaly, and Attica — 2. Monopoly of Oflfices — Senate — Conflicting accounts — Dionysius and Livy — Errors of authors — Censors — Choice of Senate — Practical Checks to Censorial power — Senate's functions — Variations in its power — Patres et Conscripti — Senate's influence — Dictators — Consuls — Praetors — Patrician oppressions — Public lands — Agrarian laws — Spurius Cassius — Licinian Rogations — Patrician creditors — Tribunes chosen — Their powers — Progress of popular power — Decline of Comitia Curiata — Rise of Tributa — Course of legislation — Double legislation — Anomalies — Solution of the paradox — Senatus Consulta and Plebiscita — Checks to the Tri- bunes—Superstitious rites — Laws of the auspices — Senate's errors — Democracy established— Practical defects in the Government — Decemvirs. ^ There were three great constituent parts of the power possessed by the patricians — the relation of patron and chent — the exclu- sive possession of offices — and the structure of the senate ; and out of these arrangements arose in the fourth place their mono- poly of the public property in land, and their oppression of the plebeians. 1. Although the relation of patron and client was at first established for the protection of the poor dependant, and was indeed a consequence of that poverty and dependance, yet it gave great power to the patricians, because it not only attached numbers of followers to each, but continued to influence the client, and make him subservient after his circumstances had become improved. The relation was of the closest nature. The client's existence might almost be said to merge in that of his patron. He could only sue and be sued in the patron's name, and the patron was bound to defend all his suits. The patron had jurisdiction over him, and in early times he had even the power of inflicting capital punishment upon him. Like husband and wife, by our laws, they could not be witnesses for or against each other. The courts of justice did not afford any protection to the client against injuries offered by his patron ; the religious sense of the sacred duty which bound the latter was accounted 120 CONSTITUTION OF ROME. CH. XI. sufficient to restrain all excesses, but it appears to have been the only restraint. One of the oldest Roman laws, of which any fragment remains, declared the patron who injured his client a sacrifice to the gods, that is, condemned him to capital punish- ment, probably to be inflicted by the pontiff.* The existence of the patron's rights for so many ages, mthout any abuse, and of the client's subordination, is only one of the innumerable instances which the history of every constitution affords of the consolidating, the counteracting, and the healing effects produced by manners and habits upon positive institutions and their opera- tion. This relation was hereditary on both sides ; the client's children being under the protection of and bound by allegiance to the patron and his representative, that is, the hereditary head of the family. The patron, whose landed property, or whose possession of the public land was considerable, generally gave his clients portions to cultivate ; they paid in all probability a portion of the produce ; but the grant was always resumable at pleasure. In any extraordinary necessity of the patron, as the expenses of a public office, the portioning a daughter, the ran- som of himself or his sons if taken in war, the being condemned to pay damages in a civil or fines in a criminal proceeding, the client, if he could afford it, bore a part, in his patron's aid, with the gentiles or members of the same house.f The clients were often able to realize property to a considerable amount ; for while those in the country farmed the patron's land, those in the towns carried on the trades and practised the mechanical arts, from which patricians were at all times excluded by their dignity, and plebeians in the earlier period by the warlike habits of the nation, and the common feeling of antiquity, which con- nected citizenship with property in land ; and when a client died without making his will the patron was his universal heir. — It is * " Sei Patronos olienti fraudeni faxit sacer estod." This is generally con- sidered one of the laws of the twelve tables ; but P. Merula has maintained that it was a law of Ixomulus, that is, one of the most ancient of the laws, Mhich, with the modern ones, and those brought from Greece, were formed into the twelve tables. His chief arguments rest on an ancient MS. of Servius (Ad ^En. vi. 609), where the law is ascribed to Romulus and the twelve tables, the common editions giving it to the twelve tables only, and on Calpurnius Piso, who wrote in the time of Trajan. — De Lcgg. Rom., cap. ii. t The distinction between house Sind fa mil 1/ must always be carefully kept in view. In this account of the Roman constitution ya»/?7_y always means the persons related to oach other, as in the modern sense ; house means the gens, or clan, the relationship of the members of which could not be traced. CH. XI. PATRONS AND CLIENTS. 121 not surprising that with so many points of resemblance to the feudal relation of lord and vassal, authors should have traced ihe latter to the Roman times ; but the speculation seems groundless, for the very essence of the feudal relation was the holding land under a lord, and owing certain duties in respect of that land ; whereas the clientela and the grant of land had not any necessary connexion, although they might be combined. The clients are represented by most authors as having voted with their patrons in the comitia curiata, at least after the plebeians became power- ful, and endeavoured to carry measures in those assemblies. But there seems no reason to believe that they ever voted except in the comitia centuriata.* Slaves set free by their master were understood to become his clients, and probably did so become at all times ; but Servius is said to have provided for this by a posi- tive law, intended as some compensation to the patricians for the admission of freedmen to votes in the assemblies of the centuries. "I* The number of clients which the more wealthy patricians had is represented as very large. When Attus Clausus, founder of the Claudian family, removed from the Sabine territory to Rome, he was followed by 5,000 persons dependent upon his family ; and when the Fabian family left Rome, where they had for six years filled the consulate, they carried with them 4,000 clients to Etruria, where they were all soon after destroyed. But it became in process of time usual for whole towns and districts to place themselves under the protection of patricians, and thus become * Niebuhr (I. 21) has laid it down, with a dogmatism somewhat extraordinary upon such a subject, that " there cannot be the least doubt that the clients lived in vassalage, cultivating the lands of the Equites." f Dionysius states very positively the admission of freedmen to the rights of citizens by Sei'vius ; but Niebuhr holds that this was impossible, because their admission is represented as dating from the discovery of the Tarquin conspiracy by a slave, and his manumission in consequence ; and also because freedmen only obtained the right of voting in the tribes two centuries later, when Appius Claudius was censor. The facts on which these two reasons of Niebuhr rest appear to be with diflBculty reconciled. It is, however, possible that Servius enrolled the freed- men with the lowest class, which would give them no right of voting. So far as these rights of citizenship were conferred by enrolment in the centuries, the freedmen became serarii. It is an error to suppose that the term cerarii included only the accensi, proletarii, and capite censi : all whose property did not consist in land were cerarii, whatever its amount might be, and they might be enrolled and taxed in one or other of the higher classes, although not entitled to bear arms. The citizens of other states who shared in the franchise of Rome, for example the citizens of Csere, were enrolled among the ararii. 122 CONSTITUTION OF ROME. CH. XI. their clients. This must have greatly increased the power of those individuals, and the influence of their order.* The relation of patron and client has been traced not only to the other Italian tribes, as the Sabines, Latins, Etruscans, but to the Greek commonwealths. The Helots were only a tribe or caste of cultivators, and no individual landowner had any pro- perty in them, although they were attached to the soil ; and they were held in a state of abject slavery by the government. A caste of the same description existed in Crete, called the Meno'ites. But in Thessaly the penestce more nearly resembled the Koman clients ; for they were attached to particular families ; though their treatment appears to have been arbitrary and cruel. The Athenian Thetes, though much more free, and more mildly treated, were in like manner attached to the Eupatridse, or noble families, cultivated their lands, and paid in return a sixth of the produce, their persons being liable to seizure for any default. They were probably admitted to the rights of citizens by Solon, his fourth class being called by the same name. In all these instances the subject-caste appears to have been the original natives of the country, reduced by conquest to a subordinate condition ; and it is highly probable that the greater number of the Roman clients originally belonged to conquered tribes. But no distinction whatever was made between the different kinds of client, and the foreigner stood upon the same footing as the native, although he was generally of more independent fortune, only seeking protection in consequence of the disabilities under which he lay as an alien. The importance of this class of clients, together with the value of the whole body to their patrons in their contests with the plebeians, no doubt tended to secure them good treatment in times when the force of the religious * There cannot be a greater mistake than that which yet has been extremely prevalent, of confounding the plebeians with the clients. Almost all writers have been led into the error by the passage in Dionysius, that Romulus placed the commons under the protection of the patricians as clients. Plutarch and others, with almost all the commentators, and even, which is most singular, the juriscon- sults, have from thence considered the clients as constituting the plebeian body, or at least as the origin of that body. Livy clearly shows the difference in various passages, as ii. 64, iii. 14. In these, especially the first, the clients are expressly placed in contradistinction to the plebeians. How any one who was acquainted with the controversy between the patricians and the plebeians, and the oppressions of the former, could ever fall into such an eiTor, seems incompi'ehensible. How, for instance, could the patron oppress his client as a creditor when they had not even a right of action against one another ? CH. XL MONOPOLY OF OFFICES. 123 obligation may be supposed to have proved less effectual. Freed- men and their descendants, foreigners, and provincial towns, formed in the later periods of the commonwealth the only body of clients. 2. All the offices, the power of which extended over the whole nation, were at first filled by the patricians, and the office- bearers were named either directly or substantially by them- Some doubt prevails as to the manner of the election ; but it is probable that in the earlier ages the senate sometimes, and some- times the curiae, elected. As long as either the one or the other chose, the appointment was directly in the patricians ; but even after the centuries came to elect, the choice substantially re- mained in the hands of the wealthier class, that is, of the patri- cians, by means of their own votes and the votes of their clients ; and the offices were still not tenable by plebeians. The gTeatest struggle of the two orders was accordingly upon this latter point ; and as the people's power increased they by degrees obtained admission to all the magistracies. In proportion as they gained these important points, the government became less aris- tocratic, and at lenoth assumed a democratic form, with scarcelv more aristocratic admixture than seems imavoidably to flow from the natural tendencies of society, what we have termed the Natural Aristocracy. There was still, however, and to the last, one strong hold from which the patricians never were entirely driven — one body into which the plebeians never obtained free admission, except through official titles* — that was indeed the most important of all the bodies in the state, the senate itself ; and as this constituted the earliest and the most powerful support of the patrician influence, it is necessary to examine its structure with particular attention. The senate was a body originally of a hundred chief men of the houses (gentes) of the Ramnes tribe, in whom were vested some of the most imj^ortant functions of government. When the Titles were added as a second tribe, another hundred were added to the senate ; and a third hundred from the Luceres, as we have seen, were added a considerable time after the forma- tion of that tribe."f A gi^eat obscurity, as might be expected, * Taere is reason to think that some plebeians were admitted to fill up the numbers of the senate in the earliest age of the republic. t Niebuhr, i. 21, has a very unaccountable theory respecting the composition of the senate. He supposes the Luceres to have been the first senators, because they 124j constitution of ROME. CH. XL hangs over tlie origin of this celebrated council ; but a much greater diversity than could have been supposed possible exists among the accounts which have reached us of its construction.* That only patricians were at first capable of sitting in it, and that its number of 300 continued down to a comparatively recent period, the seventh century of the city, are undisputed facts ; that the senators, in what way soever appointed, held their places for life, or until removed for misconduct, or loss of quahfication (census), is equally certain ; that a certain age, and in latter times a certain fortune, were required to qualify a patrician for the place, is ahke undeniable : but the precise age and fortune are matters of controversy, probably because they were at first ill defined, and may afterwards have varied at different periods; and there are conflicting accounts of the manner in which the senators were chosen. On these accounts opposite theories have been founded, and it does not appear that the recent inquiries of Niebuhr and his followers have led to a result upon which it would be safe to rely. The two conflicting accounts are those of Dionysius and of Livy ; for Festus, who WTote in the third century of our sera, and took his materials from Yerrius Flaccus, a writer in the Augustan age, may be supposed to have derived, through Yerrius, his authority from Livy or from those writers whom JAvj had consulted : or Livy and Yerrius may both have written upon the prevailing traditions of their times. Dionysius describes the nomination as an election,-]* and an election of a somewhat com- plicated kind. Each tribe, he says, were desired to choose three («i/)eT(y9ai), then each curia to select three more {sTriKs^ai), and adding the ninety supplied by the curiae (Trpox^ip^o-civTo) to the nine appointed by the tribes {acTro^six^iffi), Romulus placed over the whole as their chief, or leader (^ys/xwv) Princeps Se7iatus, had the religious rites under their care, and the Eamnes (Latins) to have been afterwards admitted, and last of all the Tities (Sabines), and that these, and not the Luceres, were admitted by Tarqiiinthe Elder. This seems wholly inconsistent with the ascendant of the Sabines, and afterwards of the Latines and Sabines united. Nor can it possibly be conceived, that, when the Luceres did not even form a tribe, they alone should have composed the senate. * The subject of the choosing of the Roman senate is fully discussed by many of the learned antiquaries and jurisconsults of the sixteenth and seventeenth cen- turies. Magaragino, De Senatu, cap. xiv ; P. Manutius, De Leyg. Rom., cap. iv. ; F. Ilottomannus, De Senatu, ii. 1 ; Car. Sigonius, De Ait. Jure. Civ. Rom., ii. 2. t Diou. i. 12. CH. XL SENATE S STRUCTURE. 125 the one whom he had himself appointed as his lieutenant when absent from the city. Livy and Festus, after Verrius, affirm that the senators were chosen originally by the kings and afterwards by the consuls (Festus adds, erroneously, by the mili- tary tribunes), who both appointed them in the first instance, and filled up vacancies.* The election described by Dionysius is im- probable, because so great a refinement in that rude age can hardly be conceived possible. But the theory of some late writers is much more improbable, because they ascribe a still greater refinement to the institution. They suppose the tribe divided into ten curiae, or bodies of ten houses (gentes) each, for general purposes, but they say that there was another division into decurige, each consisting of parts of several gentes, and a division merely for the purpose of electing a senator. Nothing certainly can be more improbable than this refinement.f Niebuhr thinks that the decurio, or head of each gens, was, by virtue of his office, a senator; but it does not appear what constituted a head of a gens, or indeed that such a title was recognised at all. It seems upon the whole most reasonable to conclude that the king appointed the senators, and afterwards the consuls, not only because we thus at once adopt the account of the Roman historians, but because such a constitution of the body is much less refined than an elective one, and because it coincides with the subsequent nomi- nation of senators by an executive magistrate, the censor. If the patrician body had possessed the elective power ascribed to them by those who have followed Dionysius, it is not easy to conceive that they should have abandoned it altogether, when by the expulsion of the kings their influence became more predominant. * Livy, i. 8, says, " Centum creat senatores " — (i. e. Eomulus ;) and this might apply to the creation of the office, without showing that the choice was made by the king himself. But when he states that Brutus filled up the deficiencies occa- sioned by Tarquinius Superbus (ii. 1), he expressly says, "primoribus equestris gradus lectis explevit." In the speech which he makes for Coriolanus (iv. 4), we find the words, " ab regibus lecti aut post reges exactos jussu populi," The jussu populi must refer to offices conferred by the curiae and the centui'ies (it is for the present purpose immaterial which), and that by means of such offices the eligibility into the senate was obtained. The account of Festus is much more distinct — " Ut reges sibiligebant sublegebantque ita post exactos eos Consules quoque et tribuni railitum consulari potestate legebant." This, he says, continued until by the Lex Ovinia the choice was given to the censors. This law is nowhere mentioned but by Festus; and commentators and jurisconsults have doubted its existence. — ■ (J. Zamoscii de Stu. Bom., i. 3 ; ap. Grcev., i. 1074.) Livy alone makes Brutus fill up the vacancies occasioned by Tarquin; Dionysius, Plutarch, and Festus all ascribe this to Valerius, his colleague. t Gottling — History of the Roman Government. 126 CONSTITUTION OF ROME. CH. XL The passage of Cicero {Or. pro Sext.\ on which reliance has been placed, as shoAving that from the beginning of the republican government the people chose the senators ; and the expression used by Livy, that they were appointed by desire of the people, certainly can only refer to the power which all classes had of being appointed senators, when chosen to offices that qualified them.* The senators holding their office for life, it w^as only upon their death or removal, that vacancies could arise. It was always required that senators should be persons of wealth, and of a certain age, which according to Cicero was 30, though some have given a lower and some a higher age. Under the empire 3,500^., afterwards 7,000/., and then 10,000^., was the property required. If a person had become infamous, either by sentence of a court, or by notoriously bad life, he was removed, ; so he was if he had fallen into bad circumstances, and had no longer the fortune required to support the dignity of the station. Holding any of the higher offices, those called ciirule, that is, consul, praetor, curule, sedile, or censor, and also the qusestorship, though not curule, gave a claim to be chosen senator. Whoever held those offices could attend the senate, both during his office and after he retired ; but though he had the right of speaking, he was not a senator, and probably had no vote. To be a senator it was necessary that the person should be chosen at first by the consuls, or dictators, afterwards by military tribunes with consular power, when these were appointed in place of consuls, as a concession to the plebeians, who sought a share in the consulship ; and almost immediately after this struggle the register of the senate was made up by the censors, who were then chosen by the patricians, and endowed with great authority, both in order to relieve the consuls from duties incompatible with the conduct of military operations, and * •' Diliguntur ab uuiverso populo, aditusque in ilium summum ordinem omnium civium industria habuit."— (P?o Sext.) It never could be Cicero's intention to state that the whole people, plebeians as well as patricians, were both eligible, and electors of the senators, from the moment that the monarchy was overthrown. Still less is it conceivable that the plebeians had free admittance into the senate in the middle of the third century, wliile it was not till the beginning of the fourth (a.u.c. 3u8), when they obtained by Canuleius's law the right of marriage with patricians, and by Licinius's the right of being chosen consuls. Least of all is it conceivable tliat the whole body, patricians and plebeians, having had the right of election in the year 244, gave it up to the censor, a patrician officer, in 308, and without a struggle. As to the expression of Livy, jussu populi — see last note but one. Possibly in the passage of Cicero ah should be read e.r.— F. Hottom. ii. 1. CH. XL CENSORS— CHOICE OF SENATE. 127 in order to prevent the plebeians from profiting too much by the success which had attended their late struggle. The care of the revenue, the power of ascertaining not merely the numbers of the people but their fortunes, and of assessing them accordingly, the authority to stigmatize persons of bad conduct with infamy, the power of removing a citizen from one tribe to a lower, or a higher — that is, from a county to a city tribe, and vice versa — as the punishment or reward of his conduct, together with the general guardianship of the laws and superintendence of theii" due execution, rendered this an office of the highest importance, and the censors immediately obtained the right of filling up the vacancies in the senate, as they had, by the nature of their office, the power of declaring a senator no longer qualified by fortune or character, and thus of removing him. The census was taken every five years, that period being called a lustruTn; and the office of censor was only created occasionally, in general at the end of every five years; but very early after its creation (A.U.C. 321) its duration was confined to a year and a half, and only extended to three years, at a later period, in so far as any works undertaken by the censors remained to be completed. It does not appear that the power of removing and choosing senators was exercised oftener than once in five years ; and we are unable to ascertain that the other powers of degrading and promoting were exercised more frequently. The choice and removal of senators, however, was by no means left perfectly free to the censors, nor had it been in the breast of the consuls and dictators before the institution of the censorial office. A solemn oath was taken to exercise all the powers of the office without favour or partiality, and this among a religious people like the Romans must have had a great influence on the conduct of the magistrate. — Then a senator, if removed, was injured in his reputation ; and though not rendered infamous, which only liappened if he was also stigmatized (infamid notatus) by the censor, yet he must have suffered so much injury as to make the act one of great delicacy. The removal, too, could only be effectually made if both censors agreed ; for one censor might restore those whom his colleague had removed,* and a future censor, it is supposed, might restore a senator unjustly * On this, as on so many other points, much uncertainty prevails. Paul. Man., De Sen. Eom., cap. iii.— J. Zamoscius, De Sen. Bom., i. 19. 128 CONSTITUTION OF ROME. CH. XI. removed ;* certainly a future election to a cumle office might enable a censor again to choose the party. The vacancies were thus not likely to be many on each occasion ; though seven or eight removals at once have been mentioned by authors. Theses with the vacancies by death, would not much more than suffice to make room for the nomination of those who had held the five offices ; because these being annual must have supplied a consi- derable number of persons not already senators ; and it was held almost as injurious to be passed over as to be removed.-f- — Another check to the censorial power was provided by the risk which each censor ran of being himself treated harshly or unjustly had he thus treated others, and the indignation of the patrician body, had the discretion been abused as to them, and of the plebeians, had a capricious promotion or degradation been attempted in the tribes, must have contracted the power in its general exercise ; so that there is no difficulty in comprehending how the extraordinary functions of this office could be exercised for four centuries without encroaching materially upon all the other departments of the state, although its powers appear so extreme in theory that they who cannot understand the possibility of a balance in any govern- ment, or the modifications which in practice all power whatever must undergo, would at once pronounce the censorship incompa- tible with the existence of the Roman constitution, and that, at the very least, the senate must have been packed in the space of two lustrums. The commons (Plebs) never as such were directly eligible into the senate ; but as they obtained the right to all the offices in succession, they became thus qualified, and when censors from their body were appointed, the plebeian holders of curule offices were chosen senators as well as the patrician. But the plebeian offices were of themselves, after the early part of the sixth cen- tury (a.u.C. 537), considered as a qualification. Fabius Buteo * The Lex Clodia, which prohibited the mark of infamy {Censor ia nota), required the concurrence of both Censors, as well as the formal accusation before them of the party ; but Cicero regards this as having destroyed the office.— Or. pro Sext. — Or. in Pisonem. t Those passed over {prccteriti) are plainly indicated by Festus in the passage so often quoted on this subject; for he mentions the loco moti as Avell as the prceteriti; yet some have confounded these two descriptions, and have supposed the prccteriti to be those v/hose names the Censors omitted in calling over (recitaiido) the senate, — P. Man., cap. iii. CH. XI. FUNCTIONS OF THE SENATE. 1 29 having at that time been chosen dictator for the express purpose of filling up the senate, reduced to one hundred and twenty-three by the Punic war, then going on, after enrolling all who had held curule offices, he completed the number by enrolling those who had been tribunes of the commons, and also some plebeians as well as patricians, merely on account of their military services and honours* — for the senate might, therefore, now be considered as a popular body, quite as much so as the British House of Commons during the times when it was formed upon the principle of virtual representation.-|- The power and jurisdiction of the senate is matter of less con- troversy. It appears at first to have engrossed almost all the functions of government, except the command of the army, and the decision of the greater causes, which were both reserved for the king. But the senate had the power of making peace and war during the monarchy, of levying troops, of raising taxes and managing the revenue, of distributing the public lands. Every ten senators had a chief, called the curio, and the ten curiones of the Ramnes tribe governed each five days in rotation when the throne was vacant ; they were then called inteyn-eges, and the vacancy an interregnum. One of them also presided in the senate, and acted as viceroy or lieutenant {custos urhis) in the king's absence. The power of the senate, however, did not extend beyond the city ; the king had absolute power beyond its limits. In the earliest times of the republic the senate appointed the dictator. Afterwards a dictator could not be named without a resolution of the senate, but the nomination was given to one of the consuls. Until the rise of the plebeians to power, the senate's previous consent was required to the entertaining any proposition by the other bodies in the state. There seems to have been originally no effectual check upon the senate's power, except the prerogative which the king had of convoking it, and of prescribing what should be discussed before it. It is to be observed that there was a great difference between the senators of the gTeater and lesser houses. The former, those * F. Hottoman's treatises De Mag. Rom. and De Sen. et Sctis deserve to be cun- sulted as conveniently bringing together much of the learning on these subjects, ■with great accuracy and impartiality. + Liv. xxiii. 23, says that he thus chose one hundred and seventy-seven senators with extreme impartiality, showing a preference of classes, not of individuals (ut ordo ordini non homo homini prselatus esse videretur), and with universal approbation. PART IT. K 180 coNSTiTirnoN of rome. ch. xi. of the Ramnes and Titles, were called upon first to give their oiDinion ; and the latter, those of the Luceres, were only allowed to vote without speaking, unless they had been consuls. No differ- ence whatever was made between the Patres, the original senators, and the Conscrijyti, those who were added at the expulsion of the Tarquins to fill up the number. The phrase Patres Conscripti is commonly translated " Conscript Fathers ;" but it was equiva- lent in the old Latin idiom, which did not use conjunctions, to ''Patres et Conscrip)ti." As the kings originally had the exclu- sive right of bringing any subject before the senate, it is probable that this right passed to the consuls ; but it was afterwards obtained by all the consular tribunes and praetors, and of course by dictators and other extraordinary officers, and in later times by the tribunes of the commons. The senate was a great administrative council, endowed with all except the authority to make laws, to choose the ordinary magistrates (for originally it chose the dictator), and to make peace and war. These functions were vested in the comitia, that is, in the assemblies of the people ; but as the consul was almost always under the influence of the senate, and as the comitia centuriata could not be held with- out his authority, the senate could generally prevent their meeting. Although the power and jurisdiction of the senate is less con- troverted, yet it varied exceedingly in different periods. We are at present to regard it chiefly in the earlier stages, before the popular influence was established. The rise of the commons in Rome, as everywhere else, was gradual ; and we must therefore fix upon some time at which to consider the senate's influence. The greatest power which it ever possessed was immediately after the expulsion of the Tarquins : it retained all the authority which it had held at any time during the monarchy ; and when, instead of a king,* whose office was for life, and who had a body guard, there were substituted consuls who held their office for a year, and were answerable at the end of that time for whatever they had done while in office, the senate's power greatly increased. The senate was from the beginning not merely the council of the king, as the celeres or equites were his body guards ; it had * They who treat Komulus as a real person relate the tradition, that, having excited the jealousy of the senate or the patrician body, he was assassinated by them ; Livy says, torn in pieces. The encroachments of the chiefs and jealousy of the nobles were probably real events. CH. XI. INFLUEXCE OF THE SENATE. 131 powers independent of him ; engrossed the greater portion of the functions of government ; and had a great weight also in legisla- tion. Except the command of the army, the decision of private causes or lawsuits between individuals, and the duty of high priest, ail which functions belonged to the king, subject only to the religious control of the augurs or soothsayers, the govern- ment might be said to vest in the senate within the city ; beyond it the king was absolute in all respects. The senate levied troops, managed the revenue, disposed of the public lands. It had the sole power of proposing laws to the comitia, whether curiata or centuriata. The only check upon its authority was, that it could not assemble "without the king's convoking it, and that it could not entertain any question which he had not brought before it. No new law could be considered in the comitia mthout the pre- vious consent both of the king and the senate. It must, however, be borne in mind, that as regards the body of the patricians, no addition was made to their power by the previous veto of the senate ; for whether a law was proposed in the curiata or centu- riata, the patricians, in the one case directly, in the other substan- tially, decided upon its adoption or rejection. We have marked the distinction made between the different classes of senators ; those of the greater and lesser houses. But no difference was made between the Patres and the Conscripti, or those added, on the expulsion of the Tai-quins, to complete the body. When two consuls were substituted for a king, the right of assembling the senate devolved upon them, and it is likely that at first they also had, like the kings, the exclusive right of pro- pounding the subjects for consideration. This, however, was afterwards obtained by other magistrates, namely, the Praetor, together with the principal extraordinary magistrates, the dicta- tor, the consular tribunes, the interrex, and the decemvirs. The influence of the senate was always great with the consuls, as long as these were chosen only from the patrician body, and it was one of the many consequences of this, that the comitia centuriata were not often held while the power of the senate was at its height. Originally, the choice of a dictator belonged to the senate, and the consuls naming him upon the senate's appoint- ment, was only a form to testify that they did not object to this superseding of their own authority. Afterwards the consul named k2 182 CONSTITUTION OF ROME. CH. XL a dictator at his discretion, when he was commanded by the senate so to do. Without choosing a dictator, the senate could confer upon the consuls absolute power within the city, as they always possessed it beyond the walls. This was done by a vote passed m critical emero-encies, that the consuls should take care the state suffered no harm ; and sometimes, though rarely, the other great magistrates, as the prsetors, were joined in the same vote. When the dominions of the republic were much extended, the principal duty of the consuls was the conduct of the wars in which the people were unceasingl}'' engaged. The senate assigned to the consuls their provinces or commands. In like manner, when there was a necessity for a greater number of military com- manders, and additional magistrates were created with the title of proetor (besides the original praetor, who remained in the city to administer justice in civil causes), the senate assigned the provinces of the praetors ; and in later times, when it was necessary to pro- vide for the government of many conquered countries, and it had become usual to commit these to magistrates who had already passed through their year of office, and were now called pro- consuls and 'proproetors, the senate determined the provinces, that is, determined which should be consular, and which praeto- rian. Thereupon those magistrates cast lots for them. The appointment of ambassadors, the giving audiences to those of foreign states, the awarding honours, the decreeing a triumph, a supplication or an ovation, were in all ages the peculiar province of the senate. In certain causes judges were chosen out of the senate. This judicial power at a late period (A.U.C. 630) was transferred to the equestrian order, then shared with them, and afterwards by Sylla restored to the senate. The authority thus possessed by the senate during the age when the assembly was composed of patricians, whom the rigorous law preventiug plebeian intermarriages kept as a sepa- rate body, was, as might be expected, abused to the greatest degree. Not only the common people (plebs) were treated with insupportable haughtiness, and insults quite gratuitous, such as being summoned to the comitia by the sound of a horn, while the curia) were cited individually, each by the lictor of his curia ; but the public land, all that came to the state by conquest (which generally amounted to one-third, the rest being left to the con- CH. XL AGEARIAN LAW. I33 quered people, who paid rent for it*) was parcelled out among the patricians, while the plebeians, when they got any, had only small allotments, not exceeding two jiigera, or one acre and a half. These allotments were possessed by them in fee simple ; and in the earliest times the whole of the plebeians were landowners, even the city tribes being, for the most part, engaged in agriculture, as they were not allowed to occupy themselves either with trade or the mechanical arts. The patricians held only some very small portions of land in fee simple ; but they had large possessions, as they were called, that is, large tracts of the public land, which were by law resumable at the pleasure of the state, and were also by law held on condition of paying to the state a tenth of the produce of corn, a fifth of wine and all other produce, and some rent, it is uncertain what, for cattle in the pasture-land. As, however, the government was vested in their own hands, these laws were habitually evaded ; and among the first attempts made by the people to lessen the patrician power was the proposed law for enforcing the payment of the rents by the patricians, restricting the extent of their occupation, and dividing a portion of the domains among the commons. Spurius Cassius (a.xj.c. 227) firsfc made this attempt, and was put to death by the patricians, upon the pretext that he had formed a conspiracy to restore monarchy. After a struggle of ten years, Licinius Stole (A.U.C. 387) succeeded in carrying his law^ to restrict the possessions to five hundred jugera (three hundred and seventy-eight acres), the number of cattle to one hundred, and of sheep to five hundred, diWding all the residue of the lands among the commons, in the proportion of seven jugera (five acres) to each, requiring a certain number of free citizens to be employed in the cultivation, and enforcing the payment of the patrician rents to the state. The law, however, was evaded in all its branches, and Tiberius Gracchus long after (a.u.C. 630) perished in an attempt to revive and extend the Licinian rogations, or proposed laws. The possessions, though resumable, never were resumed. The court of the praetor, exer- cising an equitable jurisdiction, restrained by his interdict (or injunction) all interference with the possession. The land thus held was transmitted to heirs or devisees, and conveyed to pur- chasers as if it had been held in fee. The error, therefore, of most * The rent was one-tenth of corn and one-fifth of all other produce. Tliese reuts were farmed out by the state. 1 34 CONSTITUTION OF KOME. CH. XI. writers in treating of Agrarian laws does not, as Niebuhr main- tains, consist in considering that those laws interfered with property, for they did directly interfere, or even that they established a maximum, for a maximum was established by them ; but in con- siderino- that they prevented any person from holding above a certain extent of land by any title. The Agrarian laws did not prevent that ; they only sought to limit tlie extent which should be held of the domain lands.* But though this monopoly of land was sufficiently grievous, and the burdens imposed on the people heavy in proportion as the patricians escaped from the payment of their rent to the public, the worst oppressions exercised by that body were in their capa- city of creditors. The law gave them power of the most unlimited and of the most barbarous kind ; and the wealth of the order, amassed probably both by foreign commerce and by agriculture, f had reduced a great proportion of the plebeians to the condition of debtors. The person of the debtor could be seized and impri- soned, but he could also be worked and scourged like a slave until the debt was paid ; and he was even liable to be cut in pieces by one or more creditors, in proportion to their demands, without any punishment being inflicted if the proportion was ex- ceeded. In so cruel and bloody-minded a nation, an aristocracy so proud and unfeeling as the patricians showed themselves at all periods was sure to exercise such powers, except perhaps the last, without remorse ; and the first great resistance of the plebeians, after the time when they joined their oppressors against the king as a common enemy, was about twenty years subsequent to that event (a.u.c. 263), when they left the city at a critical period of the war, indicating, it is supposed, a disposition to have back the kings, rather than any longer to bear the tyranny of the privileged orders. A most important advantage was the result of this mea- sure. They obtained the power of assembling by tribes in a ♦ It would be quite as correct to assert that an English act of Parliament restricting copyholders to 400 acres, limiting the number of cattle they could turn out on the wastes to half the proportion of their levancy and couchancy, and giving the lord all the copyhold tenements above four hundred acres, implied no maximum and no forfeiture of vested copyhold rights, as to contend, after the manner of Niebuhr, that the Agrarian laws did not interfere with patrician property and establish a maximum. The copyhold is, in contemplation of law, a tenure at the lord's will ; and the resumption by the state in Rome would have been as violent an act. after very long possession, as the law we are supposing. t See Arnold, Hist, of Rome, vol. i. CH. XI. TRIBUNES OF THE PEOPLE. 135 comitia tributa, which, no patrician could attend,* and of choos- ing magistrates of their own, whose office it should be to protect them from all oppression. These were called tribunes, being elected by the assembled tribes. The accounts differ as to their original number, whether two or five ; t but the right of the officer is certain, although he may not all at once have been invested with it. In the course of a short time the tribune could summon any one before the comitia tributa, and impeach him there ; and he soon acquired another, and a singular power, that of stopping any measure, whether legislative or administrative, by his single negative, called his veto. So great was the force of this interposition (intei^cessio) that one tribune could throw out a measure, preventing it from becoming a senatus consultum (an order or resolution of the senate), or a law in the comitia, though his colleague supported it. The person too of the tribune was sacred, and could not be in any way affected during his office ; insomuch, that if he were to enter the senate, where he had no right to be, though his presence of itself caused the business to cease, he being a stranger, yet no steps could be taken to make him withdraw. His presence had the same effect in the senate with a motion that the house be counted, which any one might make by sajdng niimera senatum; and if the proper number was not present the business was stopped. J The same effect in the * This is the generally received opinion ; but there seems a plain mistake in sup- posing that the comitia tributa were first held on this occasion. It is much more probable that they had been held ever since the expulsion of the Tarquins, if indeed Servius Tullius had not originally established them. Certain it is that the account of the Valerian law, the law of Valerius Publicola, which so greatly endeared him to the people, is unintelligible, unless there existed comitia tributa at that time ; because it provided an appeal for the plebeian against the sentence of any magistrate — that is, any patrician ; and that could be no kind of security if the appeal was only to the pa-trician body which the comitia centuriata was, to all intents and pur- poses. It is an additional reason for disbelieving the common accounts, that we are told the trial of Coriolanus (a.u.c. 263) was the first instance of the senate giving up its judicial power to the people, and the first instance of any popular measure without a previous senatus consultum. Now this is the same date with the supposed origin of the comitia tributa. Is it likely that an assembly, then for the first time known, should at once both have obtained judicial authority, and afforded the first instance of any assembly acting without the previous authority of the senate ? Is it not much more probable that these important steps were made by a body already existing, which was well known, and which had been for a course of years increasing its power ? + Two plebeian ssdiles were also allowed thenceforth to be chosen, with judicial as well as police powers. X There is nothing known for certain as to the number which formed a quorum. For some purposes two hundred were required. It is said that for others four 136 CONSTITUTION OF ROME. CH. XI. comitia curiata was produced by a declaration of the haruspices that the omens were unfavourable, which defeated a measure ao*reed upon by both senate and comitia. If the tribune, how- ever, opposed in the senate, the decree was still recorded (pre- scriijtum\ notwithstanding that he opposed the recording. This seems to have been the only exception to his absolute veto. But o-reat as was the gain thus made by the plebeian influence, it was not till their legislative powers became recognised that the commons could be said to have thrown off the yoke of the aris- tocracy. The previous consent of the senate, by a senatus con- sultum, was first dispensed with in the year 281 (u.c), but the law so made at the comitia tributa only bound the commons. Soon after (304?) the Valerian and Horatian law is said to have cfiven the plebiscitum, or resolution of the tribes, general efficacy over all the orders of the state ; but another law was made (A.U.C. 414), the Publilian, which made the senate a party to whatever the people might order ; and the Hortensian law, at a much later period (A.U.C. 465), expressly declared the plebiscitum to have universally the force of law. The probability is that the two latter laws were only made to declare and enforce a law already in existence.* The comitia curiata fell gradually into disuse as the centuriata, and especially as the trilmta, rose into power ; latterly they were a mere form, and only kept in existence for the sake of religious ceremonials, the jurisdiction over which belonged to them. The struggles of the commons with the patricians were almost entirely made in obtaining the privileges for the comitia tributa ; the centuriata being so entirely under the control of the patricians that no opposition could arise between them and the senate. The course of legislation, however, was the same in both tributa and centuriata. In both, as in the senate, and originally in the curiata, while these continued effective, only certain persons had the right to propose measures (jus rogationis, or Icgis ferendce) originally propounded exclusively by the king. These persons were the two great ordinary magistrates, consuls and prastors ; the extraordinary ones, dictator, interrex (who acted with consular hundnid in later times "vreve required, after the total number had increased to six liumhed, and under the empire to one thousand. * Dionysius gives the first of these statutes — Livy the second — A. GeVlius, after Lsplius, the third — P. Manutius, De Legf/., cap, xxxiii., judiciously suggests the explanation. CH. XI. COUKSE OF LEGISLATION— ANOMALIES. 137 power when the consuls had not been named, and when there was no dictator, and was appointed for five days only), tribune with consular power, and of course the decemviri, appointed ex- pressly to propose laws. The law was first prepared (scripta), then propounded (jproniulgata, quasi prevulgata) by the mao-is- trate, who, if he desired to have the general assent, first obtained a senatus consultum, and on that grounded his proposal to the comitia ; if he was a demagogue he proposed the law at once. The comitia, after discussion, in which only those allowed by the magistrates took part, voted by ballot, drawing lots for which century or tribe should vote first — should be first ashed its opinion : hence the priority thus obtained was called prcerogativa, and the majority of the centuries or tribes decided.* The double legislation in this system, which has been ob- served upon by Mr. Hume as a very strange anomaly, inasmuch as the two bodies, the tribes and centuries, were wholly inde- pendent of each other, and so differently composed that the patri- cians and wealthy class preponderated at all times and of necessity in the one, and the numerous body, the multitude, without any rank, and with little or with no property, as necessarily prevailed in the other. But there was another anomaly, almost as great, in the conflicting powers of the senate ; for although its exclusive legislative authority had ceased, it retained a concurrent power upon certain matters, having, after the disuse of the comitia curiata and the rise of the tributa, become not only a great and powerful administrative council, but also exercising important legislative functions, not only in assenting to the measures which were to be brought before the comitia, but also in passing certain S. C and decrees, which had the force of laws, without any sanction of the bodies in which the general legislative power had become vested. P. Manutius has enumerated between twenty and thirty S. C. which were binding generally without any other laws to give them efficacy ; and though their subjects are chiefly of an ad- ministrative or executive nature, as raising troops, sending ambas- sadors, repairing the roads, some are legislative, as fixing the rate of interest. It is supposed that the people assented tacitly * Some writers have hazarded the assertion very confidently that, though the centuries voted by centuries, the tribes voted individually (per capita). The weight of authority is as entirely the other way as can be conceived on any such question. C. Sigonius, De Jiir. Ant. Civ. Rom., i, 17; Onuph. Panvin., De Civ. Rom., cap. 69; N. Gruch., ii. 4; P. Man., De Leyg. Rom., cap. .•]?; Rosin, Ant , viii. 2, 138 CONSTITUTION OF ROME. CH. XI. to the proceedings of the senate. But the solution of the difficulty lies in the tribunitian power. As the veto could at any moment stop the S. C, the senate was suffered to go on, just like our courts, actino- under the powers of a statute, and making laws which are binding unless either house of parliament shall, on beino- apprised of them, dissent. The same remark applies to the leoislation of the centuries. The knowledge that the tri- bunes could interpose must have tended to make the centuries often adopt measures towards which they had the greatest disin- clination. But the knowledge that the comitia tributa could pass a law without either senate or centuries must have had still more weis^ht with both. There can be no doubt that both the comitia had the same power of making laws. The tributa always exer- cised it, but until the year 414, as we have seen, the plebiscita were not generally binding. These plebiscita, like the S. C, were in most cases administrative or executive, as giving the lesser provinces to pro-praetors and pro-consuls, and making peace, it being held quite clear that the centuries alone could make war? and only a single instance being found of the tributa taking this upon itself. But the Aquilian law respecting personal injuries, the Falcidian respecting wills, A.U.C. 714 (both inserted in Jus- tinian's Codes), the Silian on weights and measures, the Attian, (A.U.C. 620,) on the right of tribunes to be named senators, were all plebiscita, and made by the tribes alone.* The centuriata are supposed by some to have made fewer laws than the tributa ; but this position must be confined to administrative measures, for the greater number of the general legislative measures were made by the centuries, with the previous authority of the senate. The power of declaring war, trying for treason, and choosing the con- suls, praetors, and quaestors, possessed by the centuries ; and the power of making peace, trying for minor offences, and naming ambassadors and inferior officers, possessed by the tribes ; appear really to have been the only exclusive privileges of these two bodies ; and there seems no reason to doubt that the senate had the same concurrent authority, together with the exclusive right of naming a dictator and interrex. Now it must necessarily result from the existence of bodies with concurrent and equal powers, that each will yield somewhat to the others. If each of our houses of parliament could make laws, each would, on being asked by * P. Man., DeLepg., cap. v. CH. XL SOLUTION OF THE PARADOX. 139 the other, adopt partially measures to which it was averse, in order to prevent the greater evil of the whole measures beino- carried in spite of it ; and the wish to gain the advantage of having a law or a measure of any kind adopted by both would incline the house which propounded it to rest satisfied with a partial accom- plishment of its purpose. There can be little doubt that this was the effect of the co-ordinate powers possessed by the three bodies at Rome.* Even the absolute veto of the tribune found a practical check in various ways. Thus, if he prevented a consul from being cliosen, the senate appointed an interrex, and might appoint a dictator — which was threatened in Pompey's case ; or it could declare by a S. C. that the tribune was answerable for all the consequences of his intercession ; or it could give absolute power to the consul, by the vote ne quid detrimenti. In these and the like instances the consuls and senate were secure as often as the tribunes plainly put themselves in the "vvrong, and were not sup- ported by a very great majority of the people. Cicero's case illustrates this. The senate and centuries were decidedly favour- able to his return from banishment ; all the tribunes but two, whom Clodius had corrupted, took his part also ; and the people being well disposed towards him, these two, Serranus and Quinc- tus, did not venture to give their veto. Clodius, it must be ob- served, was the only dissentient in the vote of the senate. There was a more direct check to the tribune's power, and generally to the authority of the tribes, in the religion, or rather superstition, of that most superstitious people. Towards the end of the sixth century the ^lian and Fusian laws were passed, by the former of which the observation of the heavens, and the auspices, or examination of the entrails of birds, suspended all pro- ceedings in the popular assemblies ; and by the latter, all holy days (dies fasti) were made to adjourn popular proceedings, and were consecrated to religious rites and to the administration of justice. The multitude had thus time given for reflection, and the upper classes for exercising their natural influence; and when Clodius obtained a repeal of the law in A.u.c. 699, Cicero declared that " the bulwarks of the public peace had been swept away " {In Pison. 4). To them he ascribed the escape of the community * Before we can adopt Mr. Falck's doctrine {Encydop^die Juridique, iii, s. 69), and Niebulir's, ii. 240, that the senate's assent was required to give plebiscita a binding effect, we must get rid of all that has been said on the Hortensian and similar laws. 140 CONSTITUTION OF KOME. CH. XI. from all former seditions.* But before this law, which was pro- bably declaratory, and to enforce the custom, the distinction had existed between the greater and lesser magistrates, with regard to the auspices. The consul, praetor, and censor could interpose at any popular meeting with the announcement that the auguries were unfavourable, and could thus prevent the adoption of any measure by the tribes, as well as by the senate and centuries. The lesser mao-istrates had no such power, although the tribune could use his veto. This privilege of the auspices put the patrician maoistrates upon an equal footing with the tribunes, giving them in fact a veto. Now the result of a mutual veto must needs be a compromise, as has already been shown (Part IL, c. ii.). The senate acted without its accustomed good judgment when, in- stead of being satisfied with these checks, and, above all, with the veto of the auspices, they allied themselves occasionally with one of the tribunes to obtain his aid in obstructing his colleagues. They had recourse to this expedient against Tiberius Gracchus, who was compelled by it to have his colleague removed — the only instance of a tribune ever being displaced. Their error was still greater when they sought the like assistance as against their own natural ally, the consul. Upon the refusal of the consuls to appoint a dictator, (a.U.C.322,) the tribunes were appealed to, and, by the threats of arrest, compelled them to obey the senate — a lesson on their supreme power which these magistrates never forgot, but once and again turned to their account, as against the patricians. It must however be allowed that when the number of the tribunes was increased to ten, this gave inevitably a considerable hold over them to the rival bodies, as it became the more likely that divi- sions should exist among the tribunes ; and so far, therefore, this may be reckoned among the checks to the plebeian domination. Of the anomalies to which we have been referring, no explana- tion whatever can be derived from the choice of almost all the magistrates who had the right of propounding laws being vested in the patrician bodies, the senate, and the centuries, because * A singular uncertainty prevails respecting the date of these two laws. The iElian is by P. Manutius held to have been a tribunitian law, as he says he can find no consul of the -^lia Gens, which Sigonius and Onuph. Pauvin. have shown that there are. But Hottoman ascribes it to Q. Celius, proetor in a.u.c. 586, and the Fusian to Publius Fusius (or Furius) Philo, in a.u.c. (>1 7, which agrees well enough with Cicero's statement that the law (in that passage he treats it as one ; elsewhere In Vatiii., us two) had existed near one hundred years. In Pis., 5. CH. XI. DEFECTS OF THE GOVERNMENT — DECEMVIRS. 141 there was one office, the most important of all in this point of view, the tribuneship, in filling up which the tribes only could act. But the powers of that office and the general authority of the comitia tributa in a very short time so far diminished that of the patricians, that the government, from an almost pure aristocracv, became democratic, with an admixture of aristocratic influence. But the machinery of government and legislation did not become capable of working without very great difficulties being encoun- tered, and serious obstacles raised by this double legislation. The existence of two legislative bodies, distinct, independent, and hos- tilely opposed to one another, became so intolerable from their constant jarring and from the confficting laws which they made, that the community had recourse to an extraordinary magistracy which should supersede both the one and the other order, be armed with dictatorial powers like a single magistrate, and at the same time resemble a popular body or council, by its numbers. Ten persons were constituted a Supreme Council to prepare a body of laws which should be binding on the whole people. They digested the old laws, with such additions as they thought expe- dient, chiefly borrowed from the jurisprudence of the Grecian States ;* and these laws of the Ten, afterwards Twelve Tables, being adopted by the senate and the comitia, became the founda- tion of the whole legal system. This important change took place at the beginning of the fourth century. * It is the opinion of Niebuhr and others that nothing at all was taken from Greece ; an opinion for which there appears no sufficient ground. 142 OOXSTITUTION OF ROME. CH. XII. CHAPTER XII. CONSTITUTION OF ROME. {Continued.} Government carried on by laws and legislative decrees — Consuls — Praetors — ^diles, Plebeian and Curule — Quaestors, Civil and Military — Choice of Magistrates — Controversy de Binis Comitiis — Dictator — Progress of Popular povrer — Interrex — Consular functions — Provincial Pro-Prsetors and Pro-Consuls — Vigour of the Government — Religious polity — Pontiffs — Rex Sacrorum — College of Augurs — Haruspices — Sibylline Decemvirs— Singular facts— Judicial duties of Magis- trates— Cornelian laws — Judicial system — Judices — Centumviri — Qusesitores — Jus Qusestionis, or Merum Imperium — Divinatio— Special judicial laws — Abuses from thence— Analogy of Parliamentary Privilege — Impeachment — Cognitiones extraordinarise — Examples. In treating of the Senate and the Comitia, we have nearly ex- plained the subject of the Roman constitution as far as the supreme power is concerned, whether legislative or executive. For the administration of the government, as well as the machinery of legal enactment, was carried on almost entirely by what were called laws or decrees of those bodies ; and the magistrates had little more to do than to bring propositions before them, and to carry their resolutions into execution, whether in their political or their judicial capacity, of which the latter formed by far the greater portion of their duties, unless in the case of the consuls who commanded the forces and governed the provinces, the quaes- tors who managed the financial concerns of those provinces, and some of the inferior provincial officers, as pro-consuls and pro- prsetors. The consuls originally succeeded to the whole power of the kings, and could order any one to be summarily put to death for disobeying their orders. This power was soon restrained by the Valerian law, which gave an appeal to the tribes in the case of a plebeian, the patricians having already an appeal to the curiae or the centuries. Out of the city the consul was absolute ; and in the city, when he acted with the senate's advice and con- CH. XII. CONSULS PR^TORS — yEDILES — QUJESTORS. 14o sent, as he generally did, his power was only bounded by the veto of the tribunes, and checked by the knowledge that at the end of the year he became a private citizen, and was answerable for all he had done in his office. The creation of censors restrained the functions of the consuls, as we have seen ; and their judicial power was transferred to the praetors. But still they retained the military command of the State, and could both raise and distri- bute its forces, appoint the officers, and take the money appointed for the payment of the troops, which the quaestors, who were at the head of the treasury, could not refuse unless upon extreme occasions. The tribunes were in fact the only magistrates not subject to their authority ; and they had the duty of executing all the decrees of the senate, and all the laws made by the comitia centuriata. The praetors were, strictly speaking, judicial ; and they exer- cised extensive jurisdiction. But although edicts which they made at entering upon their office laid down the laws by which they were to be governed, and although some of these were termed translatitious, being taken from former edicts, and others new, yet there is no reason to believe that they departed materially from the received laws of the State. Whatever they added to the edicts of their predecessors v/as probably a mere statement in writing of the customary or common law. Their numbers were increased to six in the year A.u.c. 604, and sometimes there were as many as eight. The plebeian aediles were ancient magistrates created in A. u. a 261, and they had both the superintendence of police and a petty jurisdiction in such causes as the tribunes delegated to them. They bore to the tribunes the same relation which the praetor did to the consul : they were his deputies to act under him, and his substi- tutes in his absence ; but they did not, like the praetor and curule aedile, issue any general edicts. The curule aediles created in A.u.c. 388 had a high jurisdiction, chiefly in matters of economy and police ; but as connected with these, they kept a watch upon cases of an immoral description. They had the same practice with the praetors, of issuing an edict on entering upon office, to declare the rules which they should follow. The quaestors or treasurers were either civil or military, the former having the control of the financial affairs of the State, the latter accompanying the consul on his military service for the 144! CONSTITUTION OF ROME. CH. XII supply of the troops. Tacitus is supposed to be mistaken in his statement, that the office existed under the kings ; that after- wards the consuls appointed the quaestor until the year 807, when the people elected him ; and that the military quaestors were the more anciently appointed, the office of city quaestor not being created till a much later period. All other authorities are agreed in representing the city quaestor, or general financier, as coeval mth the commonwealth, and the military as appointed long after — Li^^ says in the year 333. There were then two of each de- scription ; and in 488, when all Italy was conquered and divided into four governments, four new quaestors were chosen, one for each. The office was the first in the course of promotion towards the consulship and the senate ; as such it was much sought after ; and accordingly the number of quaestors was in later times in- creased for party purposes. Sylla raised it to twenty ; and Julius Caesar, whose kindly disposition ever kept pace with his thirst of power, made no less than forty, to gratify his adherents. There is no part of the Koman constitution supposed to be better ascertained than that which relates to the choice of magis- trates, and none which seems to have been less broken in upon by violence and usurpation. The comitia centuriata chose the con- suls and praetors, censors, curule aediles, and quaestors. The tributa chose the tribunes and all inferior magistrates. The senate appointed the dictator and interrex ; and the tribes chose the tri- bunes with consular power. A controversy, however, was long carried on between two learned jurists, N. Gruchius, and C. Si- gonius, upon the question called " de binis comitiis,'' that is, whether the choice of the centuries required confirmation by the curiae, and after them by the tribes ; and whether in like manner the choice of the tribes required confirmation by the centuries. The affirmative was maintained by Gruchius, the negative by Sigonius, in a series of learned treatises in the latter part of the sixteenth century. The arguments of the latter appear greatly to preponderate ; nor can the complete success of the plebeians in their struggle with the patricians be deemed compatible with the doctrine of Gruchius The choice of a dictator stood in peculiar circumstances. The senate decreed that there should be one appointed, but never named him ; this was left to the consul, it is said, because the l)i)wer conferred seemed to supersede his own, and therefore his CH. XII. DICTATOR — INTERREX. 145 assent must be interposed. Certain it is that although the consul was generally supposed to take whatever name the senate pleased, his acting in the nomination was deemed absolutely necessary, and the senate never acted of itself in it ; insomuch that when there was a manifest necessity for a dictator in the second Punic war, and one consul being killed, and all communication cut off with the other, instead of proceeding to appoint Fabius Maximus, the senate referred the choice to the people ; and to prevent this from being drawn into precedent he was only called pro-dictator. Though the consul generally adopted the senate's suggestion, there were exceptions. Thus Clodius, to insult the senate and the office, named a door-keeper (Gricia), and P. Lacsenas (a.u.c. 397) named, in opposition to the senate, a plebeian, the first time the office had ever been so filled. The appointment of a dictator being odious to the people was more and more disused as their power increased, and from a.u.c. 5^^ to Sylla's time, 671, none was appointed. Sylla and Julius Csesar were chosen dictators by the people, now reduced to submission. Till their time, with the exception of Fabius, the senate and consuls had in all cases named the dictator. During the struggle of the plebeians for the con- sulship the consular tribunes were chosen by the people when they had the ascendant, and when the patricians were stronger consuls were elected. This state of things lasted from the time of Canuleius's attempt to open the consulship (a.u.c. 807 to 887), when the first plebeian consul was chosen. These consular tri- bunes at first were three in number, and a fourth was added in 327 ; two more in 348 ; and they never were more than six. Notwithstanding the struggle between the Orders out of which this office arose, the plebeians were satisfied with the point which they had gained of being eligible, and elected none but patricians for half a century ; nor after that time did they choose nearly as many of their own as of the other Order. At length their ad- mission to the consulate itself put a period to the contention, and consular tribunes were chosen no more. It is singular that with so great hatred of the mere name of king the Romans should have preserved that of interrex through all times of the commonwealth. In the vacancy of the consular office he was appointed, and only by the senate, only from the patrician body, and only for five days ; but during these days he had the whole authority, civil and military, of the consul, as far part II. L 146 CONSTITUTION OF ROME. CH. XII. as it could be executed without leaving Rome. At the end of the five days he named his successor, and the second interrex held the comitia for the choice of consuls, which in practice came to be the principal function of the office. His power of proposing laws was necessarily limited, because no law, though adopted, could be confirmed and passed until it had been published about four weeks (three market days, at nine days' interval), and his own power did not extend to the second publication. In trou- blous times, however, the interrex appears to have acted more than ministerially. The law giving Sylla absolute power was pro- pounded by an interrex ; and the interrex and pro-consuls near the city were once armed by the senate with the extraordinary au- thority of providing for the public safety. The consuls were almost always, in the earlier times of the commonwealth, employed in commanding the armies of the state, and the consular power in their absence devolved upon the praetor, then called custos urbis. If the war had not been brought to a close when the consul's year exphed, he was frequently intrusted in the command either till the operation in which he was engaged was finished, or for a time certain ; and he had the title of pro-consul during this prolonga- tion of his authority ; but with all the authority, civil as well as military, though local, of consul. This prolongation was first resorted to in the year 427.* As the conquests of Rome increased, the provinces were given to pro-consuls and pro-prgetors, that is, to the consuls and praetors upon the expiration of their office, and with a view to government merely, though there might be no warlike operations to conduct. In these provinces they exercised supreme power, and the possession of them formed the great object of ambition towards the latter periods of the repubhc. A third kind of pro-consul, and pro-praetor, was that of the military com- mand being given in any expedition or province to an individual who was not at the time, nor had been immediately before, in office. This last was not a magistery, but a mere command : the two former were magistrates, having the potestas, or jurisdiction, as well as the iTnperiurn, or command. The senate appointed in all the three cases ; but in the first case, that of prolonging con- sular jurisdiction, and in the last, that of a private person being * Nothing can be more clear than that Dion., lib. ix., is wrong in the statement of a pro-consul having been created in the year 275. Beaufort, i. 336, explains this error satisfactorily. CH. XII. REVOLUTIONAKY VIGOUR OF THE GOVERNMENT. 1 47 commissioned, the concurrence of the tribes by a plebiscitum was required. In this third case the authority of the comitia curiata was also necessary to give the command, and it was necessary in order to clothe the consuls or praetors in the second case with the fullest powers. Accordingly they almost always either obtained it before leaving the city, or had it immediately conferred under their successors. In the distribution of provinces the senate was held alone to decide, although the tribes occasionally interfered, and with more or less success, according to the state of parties and their relative strength at the moment. For some time after the establishment of the tribunate the senate generally obtained the assent of the tribes, but this practice was gradually laid aside- In the year 631 a law proposed by C. Gracchus confined the senate's right to distribute the commands of the consuls and prae- tors, without any power of interposition being allowed to the tri- bunes, provided the distribution should be made before the elec- tion of these magistrates, and while it was unknown on whom the choice should fall. But this law only referred to the appointment for the conduct of warlike operations. The whole review of the Roman government, as regards the magistracy and assemblies, shows how large a portion of its functions was performed by the latter, how inconsiderable in comparison by the former. The administrative as well as legis- lative power resided substantially in those bodies. It is enough to cite as an instance the first appearance of Cicero before the assembly of the tribes. It was in support of the Manilian law, and gave rise to one of his most exquisite orations. That law was simply a resolution that the command of the war against Mith- ridates should be taken from the pro-consul Lucullus, and given to Pompey, who was then with an army in Cilicia, upon another expedition. It cannot be doubted that this mode of carrying on a government, exposed as it is to various most serious objections, and among others to that of preventing any cert;ain niles of con- duct being prescribed, and of opening a wide door to oppression and abuse, has one great recommendation in times of difficulty, provided the people are not divided by party. Nothing tends more to inspire animation and vigour into the public councils, and promote the execution of whatever designs may be formed. It is in its nature a revolutionary kind of government, and, with all the e\dls, it possesses the advantages of that course of proceeding. L 2 148 CONSIITUTION OF ROME. CH. XII. Rome was so constantly engaged in wars which placed her existence in peril, that for many ages she might be said to be m a revolutionary state. The combination, however, was not confined to the legislative and administrative powers. The judicial functions were also too often interfered with by the assembhes ; and for this no excuse can be offered upon any principle, or in any cir- cumstances, which would not justify the suspension of all law during some extraordinary and momentous crisis. Hitherto we have spoken only of secular or civil offices. But the religion of the State was at all times a most important part of its policy ; it was entirely subordinate to the government, and formed a part of it. There were originally four pontiffs or high priests, and a chief (Pontifex Maximus). The king had been hio-h priest, though not supreme in religious matters. On the expulsion of the Tarquins, a king for sacrifices {Rex sacrorum or sacrificialis) was created, whose wife was a priestess and had the title of queen ; but he was under the chief pontiff. . The number of pontiffs continued to be four till the year 453, when for the first time the plebeians obtained the right of filling that office, and four plebeian pontiffs were added. Until 649 the college itself filled up all vacancies, when by the Domitian law the election was given to the tribes, seventeen of whom being chosen by lot, their majority named the pontiffs ; and this continued until Sylla re- stored the rights of the college, and doubled its numbers, among his other Isivvs in favour of the aristocracy. The Domitian law was revived in 690 in favour of Julius Caesar, whom the people elected and made chief pontiff, that place being vacant by death. The ^choice of chief pontiff among those who were already pontiffs appears always to have been with the tribes ; and it was always an office for life. Until the year 500 no plebeian ever held it. All priests were subject to the pontiff: they could ajDpoint any one to the priesthood against his will ; and the more powerful priests, as those of Jupiter and Mars, attended the college of pontiffs. But the pontiffs were themselves subject to the juris- diction of the comitia, although the interference seldom took place. The college had, besides its superintendence of temples, ceremonies, festivals, and the calendar, juiisdiction in certain matrimonial causes ; and their consent was required for the adop- tion of children. The qualifications for the priesthood consisted in freedom from personal defect, and in there being no other CH. XII. AUGUKS — HARUSPICES — SIBYLLINE BOOKS. 149 member of the same family in the same college. Moral character and mature age were not required. The dissolute in manners and the young men of seventeen could hold, as Julius Csesar did, the office of High Priest of Jupiter. The College of Augurs was, next to the pontiffs, the most important religious body ; but its functions were confined to observing the signs supposed to be given of good or bad fortune, from the flight of birds, and from the manner of feeding of those kept as sacred by the State. Any sinister appearance gave the augTirs the power of interfering with whatever proceeding, civil or military, they were pleased to interrupt. As men of opposite parties held the office, and their conduct must therefore have been watched, it may be inferred that there were certain rules or principles laid down to guide these absufd decisions. In the year 453 the place of augur was opened with that of pontiff to the plebeians, and five were added to the former number of four. Sylla added six more. The College originally filled up the vacancies in its numbers ; but the Domitian law introduced the same mode of election as in the case of pontiffs ; and that law, after being repealed by SyJla, was restored in 690. The haruspices were a lower kind of augur, but forming no separate body, and having apparently no commission. They were irregular, and might for money be consulted by any one. They were held in great contempt by rational and respectable persons, though frequently consulted even by these. As there was abso- lutely no difference in their art, except that they examined the- entrails of birds, and the augurs observed their flight and feeding, nothino^ can be more strang-e than the different estimation in which they were held, their science being precisely the same. The only other religious fraternity which requires to be men- tioned is that of the decemviri , and afterwards, in Sylla's time, the qidndecemviri, for the custody of the Sibylline books, which they were not allowed to consult without an order of the senate. These books, which the legendary history represents to have been sold by a prophetess to one of the kings, probably contained nothing but directions for prayers and sacrifices. But the reports of what was found in them on any given occasion had often the effect of controlling or encouraging the people. The plebeians were admitted into this body in the year 386. The appointment 150 CONSTITUTION OF ROME. CH. XII. was made in the same way and underwent the same changes as that of the pontiffs and augurs. The entire control which the patricians had of the auguries and auspices greatly increased their authority with the people, until the plebeians were also admitted to the religious offices. But even after that change had taken place, the same superstition was constantly used to maintain the influence of the government, and also in the armies, to control or excite the troops. There is, however, a thing wholly unintelligible in all this if there were no principles or rules by which the augur was guided. That all parties should agree in showing reverence for the religion, and those who disbelieved, as well as those who had faith in it, can easily be understood ; but that of conflicting parties one should allow the other to invent omens for its discomfiture, and that a person hostile to the college, when admitted to a knowledge of the gross impositions practised, should take no advantage of the discovery he had made, appears very hard- to explain on any supposition except that of there having really been some general rules which were more or less followed by all. With the exception of the military department under the con- suls, and the legislative in the hands of the senate and the comitia, in which the magistrates acting as legislators, the whole duties of these magistracy were of a judicial description. The judicial system was somewhat complicated. In cases of treason the comitia centuriata decided ; in cases which were punishable only Avith fine, the tributa. Trials were either private, that is, questions of civil right and injury, including minor offences ; or public, that is, questions affecting the state, including the graver criminal cases. Beside the presiding magistrate, there appear always to have been a certain number of judges (judices). For this purpose a number of judices were annually selected from the body which by law was possessed of the privilege. The senate had it exclu- sively till the year 620 : it was then transferred, at the sedition of the Gracchi, to the Equestrian order, with whom it remained for sixteen years, and it was then given to the senate and them jointly, three hundred being taken from each. The plebeians then obtained the right of adding a certain number from each tri})e. Sylla, desiring to restore the power of the senate, which in that age had been exceedingly reduced, restored by his laws CH. XII. JUDICIAL SYSTEItl. 151 {Leges Comelice) the sole privilege to that body. At his death the Aurelian law divided this privilege among the senate, equites, and paymasters {trihuni cerarii), numerous plebeian officers who had the care of paying the troops ; and finally Julius Caesar restored the exclusive power to the senate and equestrian order, with whom it remained. The praetor annually appointed four hundred and fifty of these two orders, and, according to the nature of the case, a certain number of these were chosen either by lot or by what was called editio exhibitus, that is, by the one party selecting one hundred, from whom the other chose fifty. Beside these judices there were centuTnviri, that is, one hundred and five, chosen five by each tribe, and supposed to be acquainted with the law. In cases before the praetor, if he felt a doubt upon the law, he referred the matter to the centum viri ; if upon the fact, he referred it to one or more of the judices to examine. Upon the report of either, or both bodies, he pronounced his decree ; and if he felt no doubt either on the law or the fact, he decided at once himself The similarity of this to the practice of our courts of equity is striking ; and as the account is taken from an author who wrote in the sixteenth century, and long before our present practice was established, no suspicion can arise of his having fancied the course of proceeding.* A power of challenging the judices, as drawn by lot, was given to each party. Originally the supreme criminal jurisdiction was in the kings, and the consuls for a short time succeeded to this ; but their juris- diction was reckoned by the Valerian law, which gave an appeal to the people, that is to the tribes, and still more by the Horatian law half a century after (a.u.c. 304), which made it a capital offence to create any magistrate without appeal. The administration of criminal justice until the year 604 appears to have been confided in each case specially by decrees of the senate to the higher magis- trates, consuls, praetors, and dictators, who are armed with the high judicial power called jus qucestionis — under the empire called TneruTn iTnperium — which concluded all cases affecting the life or the civic rights of citizens, and the power of examining slaves by torture. Qucesitores parricidii were also appointed occasionally to try murder and other grave offences. Perpetual and regular criminal jurisdiction of this kind was only given to those magis- trates in that year. Beside these judices quaestionis there were * Nic. Grucb., De Com. Rom., i. 2.— C. Sig., Be Jiidicii, ii. 6, 12. 152 CONSTITUTION OF ROME. CH. XII. others who had the same name, and who assisted the higher ma- gistrates, and attained to the office of sediles. They assisted in the trials by superintending the choice or ballot for judices, by ex- amining accounts and documents, by takiug the evidence of such witnesses as were not examined viva voce, and taking that of slaves by the torture. *■■ The presiding magistrate did not decide the cause, he only ap2olied and carried into execution the law ; the judices gave the verdict, and upon that the magistrate pro- nounced the sentence and saw it executed. The judices were sworn, except in one kind of cause, divinatio,-f or determining the title of parties to prosecute a suit, and they voted by ballot. Originally, they voted openly ; the ballot was introduced in the year 666 for all but cases of treason, and soon after for these also. A judge {judex) was allowed, if he pleased, to vote openly, and Cato did so in Milo's case, being one of the minority of thirteen who were for an acquittal. As at all times a law could be easily obtained for an extraordinary trial, or trial by a special tribunal, so the course of procedure was sometimes entirely changed by the same law — a natural consequence of the manner of governing, of carrying on the executive government by the means of laws or decrees w^hich the legislative body made for each case. In Milo^s case Pompey obtained a law, directing that out of four hundred whom he should choose from the senate, equites, or paymasters (trihuni wrarii), eighty-one should be taken by lot ; and that after they had heard the cause, each party should challenge five from each class, reducing the number to fifty-one. The law also named a special judge, who filled no office ; and it required the evidence to be taken first, during three days, then the cause to be argued, allowing the prosecutor two hours, and the defendant three. It is by some authorities maintained that this law, though intended for one case, was applied generally ; and Tacitus J (if the treatise be his) gives it as one cause of the downfall of eloquence. Nothing could tend more to impair the judicial system and to introduce abuses into all its parts, than the combination of the legislative with judicial office ; and the practice to which it gave rise of making a law, or ordinance in the nature of a law, for each The opinion that they were not magistrates at all, but private persons, is fully refuted by C, Sigouius, DeJud., ii. 5. The notion probably arose from confounding them with the qugesitors. t The dispute which frequently arises in our courts of equity as to who shall have the management of a suit, or the carriage of a commission, is properly a divinatio. X De Causis Corruptee Eloquentiae. CH. XII. SPECIAL JUDICIAL LAWS. 153 case of any moment. Until the year 604 every thing was done by these special laws ; each trial being directed by a particular order of the senate or the comitia. Even after the regular tribu- nals were established, the interference of legislative acts was per- petual. Now, if there be any thing more undeniable than an- other in jurisprudence, it is, that the door for misdecision and injustice can never be opened more wide than by making rules for trying the particular case instead of general prospective re- gulations. In truth, such special laws are always more or less retrospective, and for this reason full of abuse and oppression. But if it were only that they are sure to be dictated by partial considerations, and not by enlarged views, this would be enough to prove them a fruitful source of error. It may safely be affirmed that a general law laid down l)y a body little entitled to respect, and even swayed by sinister views, would be a far better rule to guide both the parties and the judges, than a resolution taken by a far more trustworthy authority, upon the spur of the occasion, and to meet its peculiar exigencies. The allowing our Houses of Parliament to define their privileges by resolutions on each case as it occurs would be a far more certain means of working injustice to the people, and finally of destroying the inde- pendence of Parliament itself, than the adoption of a general rule of law to be administered by judges who do not take their opi- nions upon it from the facts of the case, but from previous and un- biassed consideration of the subject. The same circumstance in the nature and practice of the government, the union of executive and legislative powers in the same body, occasioned at Rome many trials for offences of a political nature especially to be had before the people, by what we should term impeachment. The general rule was that the crimes against the state, treason or sedition, and peculation; including extortion {concussio), alone should be tried before the comitia, and that all others should be tried by the ordi- nary judges, or by commissioners (qusesitors) appointed specially. But there are few offences which we do not find to have been tried by the people in the way of extraordinary or special inquiry {cogni- tiones extraordinarice), and this not only in the earlier times, but at all periods of the commonvrealth, though less frequently in the later. In 802, P. Sestius was tried in the comitia on a charge of murder, a body having been found in his garden (Liv. iii. 33) ; Fulvius, in 426, for adultery (lb. viii, 22) ; Scantinus, a plebeian 154 CONSTITUTION OF ROME. CH. XII. tribune, in 527, for infamous and nncliaste conduct (Val. Max. vi. 1. 7). After the establishment of regular courts in 604, the comitia ordered Vestal virgins to be put to death though the pontiffs had acquitted them, and censured these pontiffs ; and in 690 Silus was tried for endeavouring to seduce a matron by the offer of money (Val. Max. vi. 1. 8). This jurisdiction was exercised by the centuries in cases which involved the life or rights of citizens (capital cases). The tribes could only try for offences punishable by fine, though they sometimes, as in the case of Cicero's banishment, assumed also jurisdiction in the higher cases ; and once, in that of Coriolanus, were authorized to try treason. The truth is, that from the union of legislative with judicial power, it was hardly possible to confine the different bodies to their several provinces. The senate itself, though only in later times, appears to have superseded the law, and some- times, as in Catiline's case, to have awarded outlawry and capital punishment. Certain forms were observed in the mode of trial, especially as to the citations and notices, and the time allowed before trial ; but in the decision the same mode of voting was pursued as in making laws or choosing magistrates, that is, by centuries or by tribes, according as the trial was before one comitia or the other ; and after the year 666 the vote was by ballot. Before that time, the comitia, which voted by ballot on all other matters, had voted openly in judicial proceedings. CH. XIII. REFLECTIONS ON THE ROMAN CONSTITUTION. 155 CHAPTER XIII. REFLECTIONS ON THE ROMAN CONSTITUTION. Progress of Democracy — Canuleius— Address of the Patricians — Distinction of the Orders obliterated — New Aristocratic distinctions — New Plebeian body ; their baseness — Operation of Party — Plebeians at difiFerent periods — Virtues of the old Plebeians ; contrast of the new — Savage character ; warlike habits — Mas- sacres of Marius — Cicero— Julius Csesar — Corruption of the People— Canvassing; Treating ; Bribery — Sale of Votes ; Divisores ; Ambitus ; Sodalitum— Bribery Laws — Unpaid Magistracy — Popular patronage and corruption — Peculatus ; Repetundoe— Popular corruption — Factions ; Civil War — Overthrow of the Com- monwealth— Conduct of the Aristocracy — Aristocracy and Princes — Error of the Patricians — American War ; Irish Independence — Roman Parties — Conduct of the People — Roman Yeomanry — Moderate use of power — Natural Aristocracy — Orders new moulded — West Indian Society — Aristocracy of middle Classes — Power useless to an uneducated People— Checks on the People — Checks in gene- ral— Delay and Notice; English proceedings — Factious men at Rome uncon- trolled— Catiline's conspiracy — Cicero's conduct — Middleton's error. Such was the constitution which, from monarchical and repub- lican mixed together, had become aristocratic, but in the course of less than a hundred years was republican again. In fact, after the tribuneship had become established, and the legislative right of the tributa was recognised, there wanted nothing to bring about the change but the acknowledgment of the plebeians being entitled to hold the higher offices of the state, in like manner as their right to appoint inferior magistrates had been recognised. In the year 308, Canuleius having obtained the important con- cession of the right of marriage with the patricians, attempted the admission of the plebeians to the consulship ; but matters were not yet ripe for so great a change, and the patricians evaded the demand by appointing military tribunes with consular power, to be chosen from both orders alike ; and they created the office of censor, to be held by patricians alone, with a view to take a large portion of the consular power, so as to give the plebeians far less than the rest of the change appeared to bestow. But in 402, soon after the legislative power had been obtained by the tribes, the censorship was opened to the plebeians ; they had some time before (397) obtained the curule sedileship, which with the proetorship had been created for the purpose of diminish- ing the consular jurisdiction ; and in 417 the plebeians also 156 REFLECTIONS ON THE ROMAN CONSTITUTION. CH. XIII. obtained the prsetorsliip. The Licinian Eogations, too, which had been evaded chiefly by the appointment of dictators, and by the oppressive conduct of creditors, became really operative in 41 -i. In 453 the plebeians were made eligible as pontiffs and augurs. So many of them became magistrates, or be- longed to the equestrian order, tha.t after the second Punic war in the 6th century there were more plebeian than ]3atrician sena- tors. The two consuls in one year, 581, were plebeian — the two censors in another, 622. So that the former distinction of the orders into patrician and plebeian no longer existed to any prac- tical purpose, the only preponderance being that which is pos- sessed by wealth, by illustrious bu-th, or by nobility — which consisted at Rome in having a right to statues, either of the party himself or of his ancestors, in consequence of their having filled curule offices. A change had gradually, but entirely been effected in the com- position of the orders. The commons (plebs) which at first were the inhabitants, small landov/ners born free, and generally of free parents, but of families originally foreign, and not of the oriscinal free and native Romans, had afterwards so increased in numbers, and so risen in importance, from the wealth of some and the merits, chiefly warlike, of others, that they both acquired great consideration in the community, and had many families distinguished by a succession of magistrates, and were thus en- nobled, in the Roman sense of the term. It was between this great body and the patricians that the contest chiefly was carried on, and the success of the plebeians had been complete. But the more respectable portion of the plebeian body by degrees separated itself from the rest, and every one was ranked accord- ing to his own circumstances and those of his family, without any regard to whether he was born of a house that belonged to the one order or the other. The lower orders as distinguished from the higher — those who had come to fill the place originally occupied by the plebs, as contradistinguished from the patricians — were now either freedmen, or aliens unprotected by any patron, or the spurious issue of the better classes, or such as by their misconduct or misfortune had fallen into abject poverty ; and, according to all the accounts which have reached us, a more base, profligate, and desperate multitude never existed in any part of the world. They differed almost as much from the commons of older times as they did from the more respectable order of citizens CH. XIII. PLEBEIANS AT DIFFERENT PERIODS. 157 in their own day. It was by appeals to their passions, by cor- rupting them and by exciting them, that the leaders of parties were enabled to use their numbers, armed as they all were, and habituated to war, to use them in the bloody conflicts by which the republic was first disgraced and then overturned. The parties which thus tore the community in pieces were now only in name patrician and plebeian ; the leaders, and a great portion of those who joined them, were indiscriminately of all orders and all de- grees, except the rabble ; and the rabble formed the common stock from which those patrons drew their supplies of armed followers, mere tools or instruments in their hands. Principles, as never fails to happen, v^ere adopted merely as the rallying cries or watch-words of faction ; and though Sylla was of a patri- cian, and Marius of a plebeian and very humble family, the one cared as little for the preponderance of the senate as the other did for that of the tribes. But the sanguinary disposition of the whole people had a principal share in these enormities, and in the final catastrophe to which they led. It was the habit of constant war for centuries that formed this character, and the republican insti- tutions Lad no share in producing it. The original structure and character of the plebeian body was of a peculiarly estimable kind. It would be difficult to find any great vice in it save the fondness for war, naturally incident to a rude state of society, and which, at Rome, was perpetuated by the whole institutions being formed upon a military principle — the work of the patricians, whose wealth and power depended mainly upon the progress of conquest. But the people were a body of very small landoAvners, whose lives, when not engaged in war, passed in cultivating their fields and gardens, in attending religious ceremonies, and occasionally partaking the amusement of rustic games. They may be said to have been a yeomanry living in and near a great city. Their frugality was strict ; their course of life sober and chaste ; their honesty and good faith unvaried ; their fortitude exemplary ; their reverence for the laws and customs of the state rehgious ; and their veneration for their gods and the observances taught by their superstitions so habitual, that it became a part of their nature, and only wanted the lights of a purer faith to make it deserving of the highest respect to which the religious character can be entitled. Unhappily there was early inculcated upon their minds a belief that the glory of the community, by which was meant the extension of its dominions, 158 REFLECTIONS ON THE ROMAN CONSTITUTION. CH. XIIL formed the only object worth pursuing, and that each man's virtue and his value was proportioned to the share he might have in pro- moting it. The whole people were soldiers ; the whole country a camp ; and the gains of the system becoming at first the sole pro- perty of the patricians, and at all times theirs in an extremely un- due proportion, the people fought and suffered, and perished for the profit of this heartless body, much more than for any interest of their own. But the consequence of the system was to diffuse throuo"h all classes a hard and unfeeling disposition, a disregard of all suffering, whether of ourselves or of others, a contempt of death, and a familiarity with scenes of bloodshed, which never spread so w^de or took so deep a root in any other extensive community. This inhuman character survived even to the most polished times. Slaves were not only tortured to extort their testimony, but killed for the pastime of their masters. Foreign princes taken in war were sometimes, as in Jugurtha's case, loaded mth chains and left to perish in a dungeon, or put to more instant death as a part of the ceremonial at a triumph. The amphitheatres were filled by persons of all ranks and of both sexes to witness the de- struction of their fellow-creatures by each other's hands or by wild beasts hardly more ferocious than themselves, and the audience frequently gave the command that the life of a vanquished com- batant should not be spared. It was at a very late period of the commonwealth, and when Cicero had grown up to manhood, nay, not twenty-five years before his consulship, that the atrocious pro- scriptions of Sylla were perpetrated, and the far more horrible massacres with which Marius feasted his eyes for five days and five nights while on the brink of the grave ; and the great moralist and patriot, himself of the most humane dispositions, though he repeatedly in his philosophical writings expresses, not very strongly, the feelings unavoidably raised by one of his enormities, yet hardly ventured even tenderly to blame them when addressing the people a few years later upon the subject of the massacres, and while their memory was still fresh in the minds of all ; and he pronounced on another occasion, before the judges themselves, a magnificent panegyric upon the monster, without making the least exception of the scenes that closed his sanguinary life.* * In the Tusc Qusest., -v. 19, referring to the savage command of Marius, often repeated, to put Catulus, his companion in the Cimbrian victory, to death, Cicero uses the expressions, " nefaria vox " and " scelerata," and says that Marius, " inte- ritu talis viri," overwhelmed the fame of his six consulships, and stained the close of his life. He says nothing of the thousands whom the wretch had made be put to CH. XIII. SANGUINARY CHARACTER OF THE ROMANS. 159 Next to the sanguinary habits formed by their devotion to war, the corruption of the people by the abuses of their government was the most important of the remote causes of the common- wealth's destruction. The votes of persons in a low condition were necessary to the obtaining of the inferior offices through which political leaders rose to the prsetorship and consulship, be- cause these inferior offices were bestowed by the comitia tributa.* death before his eyes. In the De Nat. Deor., iii. .32, he makes one of the speakers in the dialogue argue against the existence of a providence, from Marius dying in his bed at an advanced age, and a seventh time consul, after the man, " omnium perfi- diosissimus," had, not massacred thousands, but ordered Catvilus, " a man of the highest station," to be killed. In the De Or,, iii. 2, he mentions " Marii csedem crudelissimam," but it is after deploring his " acerbissimam fugam;" and in the De E. P., i. 3, though he calls it " acerbissima clades," he adds " principum caedes," clearly showing what it was that he mainly regarded. In the oration to the people {Post Reditum, 8) he contrasts Marius's vengeance after his return with the peace- ful conduct he meant himself to pursue, but without at all blaming him ; and in the oration to the judges (20), pro Balbo, he describes him as the disciple of Scipio Africanus, and asks, " Queeris aliquem graviorem? constantiorem ? praestantiorem virtute, prudentia, religione, sequitate ?" This was not above thirty years after the massacre. In what other civilized part of the world could such a man have been so spoken of in a court of justice, when the recollection of his atrocities was yet as fresh in the minds of all men, as if they had been perpetrated the day before ? This speech, it must be recollected, was made in the year 697, long after the judicial body had been, by the law of Julius Csesar, restoring Sylla's constitution (694), confined to the senators and equestrian order, excluding the plebeian magistrates (tribuni serarii), and settling the administration of justice upon a regular plan, touching the age and qualifications of the judges, as well as the whole course of judicial proceed- ings taken. But the whole of their history is full of similar proofs how rooted in the minds and habits of the people were cruelty of disposition and carelessness of human life. No man in any other country could have treated Milo as a model of patriotism and excellence, and almost a martyr to his party , when it was admitted that, however the affray began, he had ordered his servants to put the wounded man to death, and that they had also killed the keeper of the tavern into which he had been carried. In no other country could one of Brutus's high character have published a speech in which he admitted the facts, and defended Milo on the ground of Clodius being a public enemy — a defence which Cicero had judiciously rejected, at the consultation of Milo's friends. The bai-e fact of Milo travelling with a band of gladiators, desperate ruffians proverbially ready for any slaughter, is an illustration of the manners of the age and nation. What respectable man could, in any other place, have had such an attendance ? The savage tumult excited to oppose Cicero's return from banishment is another illustration. It seems to have made but little sensation, and caused no horror. Clodius and the actors in it were suffered to go unpunished — as might happen here at every trifling election riot; — and yet so many were killed in it that " the forum flowed with blood — the Tiber and the sewers were filled with dead, and such masses of these had never been seen in the city, except in Marius's massacres." Cic. pro Lep., 35 to 38. Julius Caesar, himself the mildest and most generous of men, thought it no shame to avow that his wars cost 1 ,200,000 lives. * In the latter times of the Commonwealth that which had been ahvays the custom became required by positive enactment. One of Sylla's laws prohibited any one from being chosen consul who had not been praetor, or praetor who had not been quaestor. 160 REFLECTIONS ON THE ROMAN CONSTITUTION. CH. XIII. But the centuries were to be gained as well as the tribes ; for though the comitia centuriata, when opposed to the tribes, and when not divided among themselves, were so arranged as to exclude all the numerous and poorer classes from any share in the decision, yet when the question lay between opposing candidates of whatever order, tlie votes of all the four inferior classes became as important as those of the first, their centuries deciding when the smaller, but more numerous centuries of the wealthy could not agree. Thus was introduced, with the view of obtaining both the higher and the inferior offices, the practice of both courting, or as we should say canvassing, the multitude, and also of giving them the entertainments of public shows, which they so highly prized. To this was soon added the treating, or giving them dinners. Then came the distribution of provisions, and finally of money. Though these practices began with the tribes, they were extended to the centuries also. The law allowed much of this corruption ; and one candidate (Crassus) gave an entertainment at which ten thousand tables were served, so that the whole people partook of it, and each also received a donation in money. The most open and profligate bribery succeeded ; it became undisguised and universal. Votes were openly sold ; tables or shops were opened in the public places for the traffic ; there v/ere persons who carried oii the business of providing votes as undertakers ; there were others {divisor es) whose profession it was to distribute the candi- date's money ; others, as a kind of stakeholders, received it in deposit till the votes were given. Against this general corruption laws were early made, but were found unavailing. As early as the year 321 the senate proposed to put down canvassing, by prohibiting any one from appearing in the white or candidate's dress. In 895 the sohciting votes was strictly prohibited, in order to prevent it from being done at fairs and other meetings. It was at a later period made capital, that is, punishable with banish- ment (571 and 594?), to purchase offices, that is, to bribe the electors (Polyb. vi. 54). In 604 tribunals were created solely for trying offences against the freedom and purity of elections. One to try bribery (aTnbitus), another to try acts of violence {vis), another to try combination or conspiracy {sodalitiuon), but all in vain. At one time the tribes made a law so severe that the senate judiciously objected, and desired it to be reconsidered, on the ground tliat no party would be found to prosecute, and no judge CH. XTII. BRIBERY — TREATING. 161 to condemn. They therefore proposed, through the consuls, as more effectual, a mitigated law of fine and disqualification, with rewards to prosecutors and a prohibition of the traffic in votes ; but the same year Sylla and his colleague were convicted of gross and extensive bribery, and removed from the consulship. The penalty of ten years' banishment for treating, giving shows, and hiring armed mobs, was then inflicted : first by a S. C, and then by a law which Cicero prevailed upon the comitia to pass. But so little did it check the practice, that soon after (a.u.c. 700) the violence of the candidates and their mobs prevented any choice of consuls for six months. Nay, to so great a height had corruption proceeded, and so hopeless did the cure of evil appear, that Cato himself approved, on one remarkable occasion, of the senators raising a sum among themselves to enable the candidate whom they favoured for the consulship to outbid his adversary in bribing the centuries.* . It is not to be denied that much of the corruption of which we have been speaking must be traced to the pernicious practice of allowing the magistrate's emoluments to depend, not upon an adequate provision directly and avowedly made for his suj)port, but upon other advantages to which he might look as incidental to his office. The magistracies, through which men passed to the prsetorship and consulate, were rather expensive than lucrative, from the theatrical exhibitions, which were part of the -^dile's duties, and the largesses to poor citizens, expected from all office- bearers. The fortunes made by praetorian and consular com- mands, and especially when the provinces became numerous and wealthy, formed the great temptation both to avarice and ambi- tion, and these were regarded as the sure source of wealth and power. The profits of the quaestors were in all probability also considerable. It was to obtain such prizes that the fortunes of the patricians were expended, and that debts were incurred, as a speculation certain to repay all that might be advanced, provided the bribing was successful in securing the place.f * Julius Csesar had promised a sum to each voter, in order to secure the election of a colleague, -whom the senators expected to become his tool. They therefore offered the same sum on the part of Bibulus. t M. Beaufort (Rep. Rom., tom, i. p. 428), while he admits that " all ancient authors keep a profound silence on the emoluments of each office," has no doubt that each was provided with an ample salary. The mere fact of no mention being any- where made of this seems strongly to negative its existence — the passages which PART II. M 1 62 REFLECTIONS OX THE ROMAN CONSTITUTION. CH. XIII. The practice of bribing appears to have kept exact pace with the advance or abatement of the patronage in the hands of the people. Julius Caesar recommended both consuls, and half the other office-bearers, and substantially named them : bribery became less frequent. Augustus restored the election to the people, and with it bribery mcreased ; insomuch that, finding the punishment of five years' disability with a pecuniary forfeiture ineffectual , and being desirous to prevent it — at least in the two tribes in which he was enrolled — he could only do so by himself distributing as much money among the members of those bodies as the candidates offered. The same state of things continued until Tiberius gave the elective power to the senate, which was then only exercised nominally, and his successors avowedly filled up all offices themselves. Bribery was now confined to the pro- vincial towns {mwiiicipia) and colonies, where the people still appointed. The corruption of the people extended to those in the upper classes. The peculation (peculatus) and extortion (repetundce) of persons in office became universally and openly practised. The trials before the comitia tributa, which frequently took place, and the erection of special tribunals (a.u.c. 604) to try these offences had little effect. The punishment, indeed, of restitution, sometimes double or treble, which always till the latter end of the common- wealth was inflicted for these offences, appears not to have stamped them with any infamy. Lentulus, two years after his conviction of extortion in the year 606, was made censor, to watch over the morals of the people and the purity of their magistrates. Under the empire the punishment was exile, and the vigour of the government appears to have somewhat checked the practice. No society can be conceived more corrupted or more hardened, of principles more loose, or of feelings more despicable and callous, than that of Rome towards the termination of the commonwealth. It only required such desperate leaders as did not long delay ap- pearing to destroy the whole system, by an^aying against each other bodies of a rabble whom the habits of war had made as lie cites for the most part would seem to authorise an opposite conclusion. Thus, Livy, saying that the consul's camp eciuipage was furnished by the state, if it proves anything, is rather against the supposition of a large salary ; and as to Cicero living in splendour, though born to a small fortune, and refusing all govern- ments, no one can be ignorant of the vast profits which he made by the exercise of his most lucrative profession. CH. XIII. FACTION — CIVIL WAR — DESPOTISM. 163 cruel as the conflicts of faction had rendered them turbulent, and the unprincipled acts of their patrician superiors had taught them to be venal. The hiring soldiers from the rabble of the city was first prac- tised in Marius's time, and had the most fatal eftect upon the constitution. Nothing tended more to maintain the conflicts be- tween the two parties which divided the community — that of Sylla or the senate, and that of Marius or the commons ; and to their civil wars succeeded the more regular and sustained contests between Pompey and Caesar. The state was now exhausted by the sanguinar}' game of the factions ; foreign conquests rapidly increased, arming the leaders with new treasures and new forces, and no resistance was made to whatever chief, having gained the greater military power, chose to use it for establishing his own dominion on the ruins of the republican constitution. The forms of the old government were alone preserved : Julius, and after him Augustus Caesar, obtaining the votes of the subservient senate and comitia, were created sometimes consul, sometimes perpetual dictator, and ruled under those titles, and with the assent of the public bodies. But their real power was wholly derived from the troops in their pay, and they were succeeded by princes, who, ruling by the same means, extinguished the very name of liberty, and practised a tyranny which has in all ages been regarded as the most profligate and detestable ever known in an advanced state of society. The successive changes in the Roman government, and the struggles which first led to them, then were increased by them, may easily be explained by attending to the operation of the aristocratic principle and the improvident conduct of the patrician body. In the earliest period of the monarchy the power was in the hands of the whole free native people, with an elective chief, and no plebeian body having yet been formed, he could not find a balance to the power of the people, that is, the patricians. The Constitution was now more republican than nionarchical ; certainly it could with no accuracy of language be called aris- tocratic. When the plebeian order became numerous in propor- tion to the patricians, the latter retained their ascendant, and notwithstanding occasional attempts of the king to court the commons, he did not succeed in curbing the privileged body ; the government was now aristocratic. The patricians and plebeians m2 164« TvEFLECTIOXS ON THE ROMAN CONSTITUTION. CH. XIII. combined to dethrone the king, and for a short time acted in con- cert ; but the domineering spirit of the aristocracy soon broke out into new excesses, and their power being much augmented by the revolution, their oppression of the poor, but numerous and increas- ino-, order became greater than ever. They committed the error, fatal to all privileged classes, of forgetting that while their own numbers are nearly stationary, and their progress in wealth is limited and slow, the mass of the community increases rapidly and its wealth becomes proportionally extended ; but they still more omitted in their calculation a circumstance peculiar to Rome, that the whole nation being military, and all its occupation war, the force of the multitude must needs become overwhelming, and that any attempt must be hopeless to deprive them of their share in those conquests which were made by the force of their arms. The patricians were bent upon continuing to govern the country as exclusively after the commons were reckoned by hundreds of thousands, and the territory had stixtched over and far beyond the neighbouring districts, as they had been suffered to do when the plebeians were not much more numerous than themselves, and the city and suburbs were the whole extent of their dominions. The apprehension of the commons gaining more power by what- ever was bestowed upon them, v/hether of the public lands or of political privileges, made the patricians adhere the more tenaci- ously to their exclusive rights, each concession being deemed not only an immediate diminution of their own power, but the means of still further lessening it ; so that it might be impossible to tell where the rise of the lower, and the decline of the superior class, would end. This alarm at encroachments operated, as it ever does, to prevent them even from abandoning rights of no value to themselves, and allowing privileges that did not come into con- flict with their own ; because such changes, by augmenting the popular influence, w^ould lead the way to more hurtful sacrifices: being extorted. In acting upon such views an aristocracy differs not materially from a prince, except only that it is relieved from the checks of fear and reputation which individual responsibility imposes, and except also that a body often is swayed by Adolent feelings which the contagion of numbers embitters while it propagates them. But in another respect the conduct of the body is always worse than that of the individual. Oppression, where it tends to no I CH. XIII. ARISTOCRACY. 165 end, is apt to be exercised by a number of persons more harshly because they come personally more in contact with the objects of their hatred, or jealousy, or dread. At home, accordingly, the patrician was filled with haughty contempt and fierce dislike of the plebeian ; and the law which he had made enabled him to gratify these feelings not only against the body, but in crushing and tormenting individuals, his debtors. A single ruler becomes the more cruel from fear, knowing that he stands alone with the community against him ; but a minority, a select privileged few, not only act under the influence of the sa,me dread, and are equally impelled to make up by terror for the inequality of their natural force ; they are also the more excited to whatever may intimidate their adversaries by being always set in opposition to them, always matched and balanced against them, and conse- quently acting under a constant sense of their own dangers from the conflicting power being let alone. The Roman aristocracy was marshalled in a more especial man- ner by its powers being exercised, not in electing rulers, but in ruling of itself. When the curiae and their more select body car- ried on the government with the king, they were the whole patri- cians in a body. When the commons had their own assembly the opposition of the two orders became more regular and more fierce? and the pretensions of the patricians were the more peremptory, and their domination the more overbearing. The same system of the ruling power being exercised by the whole body had another most fatal effect : it prevented the wise foresight and virtuous moderation of a few leading men from having its due weight with the bulk of their order, and gave to the course pursued that cha- racter of violence, impatience, and irreflection, which too often be- longs to the proceedings of the multitude. The inevitable necessity of concessions being granted too late to compulsion and through fear, if they were not in due season given with a good grace, never once appears to have been present to the patrician's mind. He always thought and acted as if his order could retain its predomi- nance, and as if the plebeians were never to increase in power. A single ruler or a select body of counsellors would, in all proba- bility, have granted some share of the public lands in the time of Spurius Cassius, but the patrician body put him to death as a traitor for the bare proposal. When Licinius renewed the attempt it was evident that in the end some measure of the kind must be 166 REFLECTIONS ON THE ROMAN CONSTITUTION. CH. XIII carried, and almost as evident that by timely concession much of the hostile feeling might be allayed which both filled the state with sedition, put its existence once and again into jeopardy, and ended in far more power being given than any one at first thought of demanding. But the patricians were inflexible, and when com- pelled to 3rield in outward appearance, defeated the measure by such chicanery as brought on new stmggles and higher demands. It was only in times of gi^eat public danger, or by proceedings which amounted to open resistance, that the commons could gain any of their rights ; by refusing to serve at one time when there was a formidable war, or by leaving the city in a body at another critical period. The patricians never acted as if the people were daily growing in strength, and themselves stationary ; they forgot that it is as impossible to keep a whole nation in pupilage, as to keep a man in leading-strings ; they were not aware that their true interest required them so to treat the people while under their control, as to postpone the period of their emancipation by the influence of kindly trea,tment, and to secure a mutual good understanding when at length the period should arrive. If, in the American war and in the conflict with Ireland, there had been only a prince and his ministers, without a popular assembly to consult, it cannot be doubted that for a while the same results would have followed among ourselves. But it may be reasonably questioned whether anything but the bitterness of contending bodies could hav6 so long maintained the policy which lost Ame- rica long before the separation became necessary, and with hostile feelings established almost as a part of the national character on both sides of the Atlantic ; and it seems equally probable that the independence of the Irish parliament would have been granted, and the elective franchise conferred upon the great body of the people, without waiting until the volunteer army created by the necessities of the American war forced the one measure, and the difficulties of the French revolution obtained the other. If there be any doubt whether these things would have been better without a governing body, such as the British parliament, it only can arise from the influence of the people affecting its deliberations, and being exerted — as upon full consideration it is always likely to be — in the right direction, although at first joining in the pre- vailing errors. In proportion as the parliament approached the constitution of the patrician body, tliat is, an aristocracy uncon- CH. XIII. PARTIES— POPULAR VIRTUES. 167 nected with the oppressed orders (in this case the people of the colonies and of Ireland ), in the same proportion was it likelv to misgovern by giving scope to its jealousy of the other classes, and its desire of monopolising all power. The consequences were produced at Rome, which must always ensue from the same exclusive and engrossing spirit. The two orders grew up into a settled and a mutual hatred ; and when the people had gradually attained its full strength, it obtained not merely a share, but the preponderance in the government, so as to establish a powerful and most turbulent democracy. Under this the patricians suffered constant mortification ; and although the natural influence of their wealth and attainments preserved them from being trampled upon and crushed, as they would in their former state have overpowered the commons, they had less than their just and natural influence in consequence of their former conduct, and the mutual hatred to which it had given rise. If they had yielded and conciliated betimes, the government would still have been republican, but with a control in the hands of the upper classes which must have both improved the form of the constitu- tion, and prevented the factious excesses that proved its ruin. The hatred of the two orders, which survived their distinct existence, ranged the different parts of the community against each other, when the terms patrician and plebeian had entirely lost their original sense ; and gave rise to those factious contests which pro- duced the massacres, proscriptions, and civil wars that destroyed at once the character of the nation and its free constitution. The conduct of the plebeians throughout the struggle, that is, in the age when the character of the body was respectable, and its original structure remained, clearly proves how safely the patricians might have trusted to the influence of the Natural Aristocracy for securing to them an ample share of authority in the state. The moderation of the popular proceedings has often been commended, and it has been deduced from their sober habits and honest, con- scientious nature. That they possessed many of the qualities which distinguish an uncoiTupted yeomanry, little advanced in knowledge any more than in refinement, may be admitted, and, among other qualities, the modesty and even humility incident to that cha- racter, and the aversion to violent courses, although, from living in crowds, habits of combined action were formed, which country people in general have nothing of. But the principal cause of the 168 REFLECTIONS ON THE ROMAN CONSTITUTION. CH, XIII. moderation in question was the natural influence of the patrician class, from wealth, rank, habits of command, eminent services, and superior information. Their oppressions drove the commons to resistance, but a Httle concession soon appeased them, and then the Natural Aristocracy resumed its influence. We have many remarkable instances of this. It may suflice to cite two. When the struo-oie for the consulship had so far proved successful that as a compromise consular tribunes were allowed to be chosen from both orders indifferently, the plebeians, without any exception, chose patricians ; and it was nearly half a century (from A.U.C. 309 to 353, when Licinius Calvus was chosen) before they ever availed themselves of the right to choose a plebeian. They first were allowed to choose a consul from their own order in 387 ; from that time both consuls might have been plebeian, though only one could be patrician. Yet nearly two centuries elapsed before the commons chose both from their own body (581). So the censorship was opened to them in 402 ; but it was not till 622 that both censors v/ere plebeian. The influence of the patricians was alike powerfully felt in the elections to the other offices which were open to both orders. Tribunes and plebeian sediles they could not be by law ; but curule sediles and quaestors were chosen by the tribes alone ; and notwithstanding the power of mere num- bers in that assembly, the patricians were as frequently chosen to fill these places as to hold the higher offices, the appointment of which belonged to the centuries, with whom numbers had com- paratively little sway. Instead of wisely and virtuously trusting to their natural influence, the patricians maintained the contest with the people to the last, and when defeated, employed their wealth in corrupting the multitude, and their authority, their force, their example, in exasperating it, setting man against man, family agaiust family, till the extinction of privileges so grievously abused became, if not a public benefit, certainly no injury to mankind. But if such were the changes which the plebeian body under- went, we may rest assured, although history only gives general indications of it, that the admission of the plebeians occasioned a separation of the patrician party into those who still maintained its exclusive privileges, and those who, more moderate in their opinions, had no repugnance to form with the more eminent plel)eians a new aristocracy. The high or (jld patrician party CH. XIII. ORDERS NEW-MOULDED. 169 continued the struggle, as such bodies always do, long after it became hopeless. They had the augurs with them, for those places were still exclusively patrician, and instances are not want- ing of the most barefaced partiality shown by them in farthering the views of their party. • Thus, when ComeUus had named as dictator Marcellus, who, though consul some years before, was of a plebeian family, the augurs pretended that the auspices were wrong taken, and declared the nomination void, they having been at Rome and the appointment made at Samnium. It was only in the process of time that this difference among the patricians gradually wore oat, and the new aristocracy was established. While it lasted the senate was always more moderate and rational than the order at large. The transition of parties and orders from their original state, of the patricians on one side and in one class, the plebeians on the other side and in the other class, into that state in which the natural aristocracy was formed, and separated the wealthier and higher born from the inferior classes, was of course gradual, and only abolished the distinction of patrician and plebeian, substitut- ing a new arrangement for it, in a long series of years. The steps must have been the same as in all such cases ; and the principal one alvvays is made by the inferior class itself. The habitual respect for the upper class, and the desire of belonging to it, or if not of belonging to it, of being connected with it, and of being distinguished from the rest of their comrades, is the powerful engine in bringing this change about. The class below the privileged class always the most highly prize those privileges, and most eagerly desire to separate themselves from those below them, and ally themselves with those above. Hence the more wealthy and powerful among the plebeians were at all times desirous of likening themselves to the patricians, and no sooner obtained access to patrician offices than they engrossed these almost as much, and excluded the bulk of their order almost as entirely from them as the patricians had before done with reference to the whole plebeians. The barriers being now removed which separated the two orders, first by intermarriages being allowed, and then by the magistracies being opened, the plebeian families whose ances- tors were distinguished by having held offices, or by any other eminence in the state, formed, together with the patricians, the aristocracy of the state ; and such of the patricians as fell into bad 170 REFLECTIONS OX THE ROMAN CONSTITUTION. CH. XIII. circumstances, or became discountenanced for bad conduct, or for conduct of a mean description, such as engaging in occupations that were thought degrading, were numbered among the lower orders, notwithstanding their birth. Supposing slavery in our colonies had been gradually abolished, and the distinctions of colour had not separated the descendants of the master from those of the slave, there would in the course of ages have been formed a class of society which would be the higher or aristocratic order, and the lower order would consist of the descendants of slaves and freemen indifferently. Nor could any one fix the time when this distribution of rank by natural aristocracy had succeeded to the artificial distinction of slave and free. The oppression of the more numerous body at Rome by the new aristocracy, composed of the patricians and higher plebeians, was just as great as it had ever been when exercised by the patricians alone. So would the West Indian aristocracy oppress the inferior classes in the case sup- posed. Indeed the maltreatment of their own order by the up- start plebeians, and by the descendants of West Indian slaves, would probably exceed that of the old aristocracy. It must however be observed that the structure of the govern- ment is not answerable for evils of this class. The oppression of the patricians while the plebeians were excluded from a share of the government, must be laid to the account of the aristocratic constitution, the artificial aristocracy. The continuance of the same oppressions exercised by a body somewhat different, after the plebeians had obtained not only their share but a preponderat- ing influence in the government, was owing to the natural influ- ence of wealth and rank, the natural subserviency of the inferior classes, and, as parcel of that subserviency, their natural tendency to covet such distinctions, and to trample upon those beneath them. It is not that any wonder can ever be felt at the more eminent persons in the community rising to the top ; or that any one can suppose it possible for the bulk of the people to confide their affairs to persons of their own class. Whatever be the structure of the government, the higher stations must generally, almost universally, be filled by the upper classes, let the power of ap- pointing to them be ever so absolutely vested in the people, and without any rule of exclusion. This is the law of our nature. But the Roman people disregarded their own interests in the choice they made of magistrates, and the support they gave to measures. CH. XIII. CHECKS UPON THE PEOPLE. 171 They might have selected from the upper classes, and excluded all those whose station disqualified them from holding power, and yet have consulted the true interests of their own order, and of the state. Of this they were incapable by their ignorance. They had obtained power, but they used it to further the interests of their leaders. They had obtained political power before they were politically educated, so as to exercise it beneficially for them- selves and for the state ; and the acquisition only prov(id hurtful to both. The control over their superiors which they possessed, the power of providing for their own interests, was almost entirely thrown away ; it enabled them, but did not dispose them, to pur- sue the course most for their own benefit. They were the mere instruments in the hands of others, and the recovery of their rights availed them nothing. A survey of the constitution of Rome is calculated to suggest another general observation respecting the people, as important as that on which we have been dwelling, relative to the aristocratic body. The exertion of the popular influence, such as it was after the tribunes were established, and after the universal power of legislation and of government became vested in the tribes, would have been wholly incompatible with the existence of any other power or privileges in the state, and must have led immediately to the supremacy of the multitude, but for the operation of the nu- merous checks which the forms of proceeding and rights of various functionaries provided. Now these checks all resolved themselves into gaining time for more full deliberation ; but this was found sufficient in most cases to prevent serious mischief, partly because the opportunity was thus afforded for the upper classes exerting their natural influence, and partly because the people themselves had certain feelings and principles deeply implanted in them both of a patriotic and of a superstitious kind, which produced their eifects when time was allowed for their operation. The force of these feelings and principles secured at all times the observance of forms and a deference to official privileges. The most furious assembly might be stopped short in its proceedings by the warn- ing of a magistrate, or of an augur ; and the same habits of thinking in most cases enabled the superior orders, or the reflect- ing persons even of their own, to turn them away from extreme coiu"ses before any irreparable evil had ensued. Whoever doubts the safety of entrusting a large share of influence to a well-edu- 172 REFLECTIONS ON THE ROMAN CONSTITUTION. CK. XIII. cated people, may do worse tlian reflect on the safety mtli which for many ages the absolute power of the Roman tribes was en- joyed by them, with no better substitute for sound political infor- mation than their ancient hereditary prejudices in respect of civil and religious customs. But an examination of the Roman government is also fitted to place in a strong light the use of checks, and to show how erro- neous the arguments are of those who contend that every thing which a body has the power to do will be done. The various provisions of the constitution operated by delay, and the delay was in most cases sufficient, because all was not done that could legally be done, because reflection had its free scope, and because compromise and mutual concession was preferred to extreme mea- sures. Whoever ha.s considered the effects produced by notice both in our courts of law and our legislative assemblies, will at once perceive how much they resemble the effects of the delays at Rome. In courts, the consequence of notice is, that parties can- not be taken by surprise, and that an application to undo what had unfairly hf^en done may be unnecessary. But in Parliament the advantage is gi eater; for the delay interposed both prevents many things from being attempted by individuals or by parties, which might on the spur of an occasion have been successfully tried, and induces the body itself to adopt a resolution very diflerent from that which might at first have been taken. But there arose out of the conflict of authorities at Rome and the influence possessed by bodies as well as by individual magis- tiates, one most pernicious mischief, affecting at all times the security of the state, and which, with the always sanguinary and latterly corrupt character of the people, finally effected its ruin. There was no effectual control over dangerous men, men of turbu- lent ambition and profligate character, and who might be disposed to seek their own aggrandisement in the confusion of public affairs. In earlier times such risks were avoided, sometimes by acts of sudden and irregular energy on the part of the magistrates, and sometimes by the appointment of dictators. When the people would no longer submit to the dictatorial authority, the senate by its extraordinary resolution ne quid detrhnenti, endeavoured to supply its place, and to make it safe and regular for magistrates to^act as they had formerly done illegally and at their own peril. But still the influence of the different bodies, and of the different CH. XIII. CATILINE^CICERO. 173 orders in the state to which persons belonged, was sufficient to prevent the law from taking its regular course, even when the most atrocious conspiracies had been detected. The suddenly putting to death CatiUne's associates, after they had been clearly detected and had indeed confessed their treason, was an act of vigour beyond the law : it was certainly done by the consul and the senate in breach of the forms of the constitution ; and indeed Cicero was afterwards impeached for it. At the moment, it was rendered practicable by the state of public feeling on the recent discovery of the plot. But so little could Cicero reckon upon this frame of mind lasting, that he had the prisoners strangled on the same night on Avhich he had, with considerable difficulty, obtained the vote for their punishment. And as for the principal criminal himself, Catiline, not only had no attempt been made to sei^e his person and proceed against him, but the whole efforts of the consul were directed to make him quit the city, of which the gates were thrown open to favour his retreat, although it was ascertained that he was going to head a rebel army for the sup- port of his accomplices at Rome, and although he stood so clearly convicted by his own furious declarations, that none of the senators would degrade themselves by sitting near him in the same part of the house. There was no want of ^dgour in the magistrate, any more than of proof against the criminal ; but there were large bodies of powerful men with whom the one was connected, and of whom the other was in prudence obliged to stand in fear.* — The blessing of an escape from the perils of such a terible state of things is well worth a large sacrifice of power to all the orders of a community. * Middleton's attempt to turn the proceeding into a panegyric on Cicero's skill is as great a failure as his endeavour to place him on a level with Demosthenes in eloquence, and almost with Lucretius in poetry. It is plain that he had a sufficient case against the criminal, if he had only had a tribunal of magistrates before which to use it. But the same state of parties and of manners which made it safe for Clodius to insult him by his mob in the streets, and impeach him before the assembly of the tribes, for saving the country, and only five years after this service— which made it also safe for men like Crassus and Julius C 196 GOVERNMENTS OF GREECE— SPARTA. CH. XV. tyrants also. The constitution was aristocratical, and as the op- pressed people had a very numerous body of slaves and of serfs still more oppressed than themselves for their natural allies, the result took place which never fails to follow from a minority ruling over a hostile majority ; terror was called in to supply the want of force, and a perpetual apprehension of the Spartans that the Helots and Messcnians might join the Lacedaemonians in throwing oft' the common yoke, mingled with an occasional alarm that those servile castes might join a foreign enemy, was some- times the cause, and always the pretext, of the dreadful cruelties exercised upon those hapless races, to the lasting disgrace of the Spartan name. There can be little doubt that if the independence of the state had continued for some ages, and the privileged body had been reduced still more in numbers, while the bulk of the people in- creased, the same struggle would have ensued which elevated the plebeian order at Rome, and the Lacedaemonians would have obtained the preponderance. The Natural Aristocracy would then have been formed without regard to Spartan extraction. The families of distinguished men, the descendants of the senators and kings, the persons of wealth and renown, would have held the highest places in the senate and the magistracy. While the commonwealth lasted no such arrangement took place. But there must have been the usual conflict of individuals and of their supporters — the usual struggle of parties for power— and the Na- tural Aristocracy, to a certain extent, must have had its influence within the circle of the privileged class (homoioi), among whom the senators, in all probability, carried on the intrigues of faction. We find the kings and other leading men paying court to the Ephori ; Agesilaus always rose when they entered the room, as indeed he courted the senate by making a present to each person on his election. There was thus the Natural Aristocracy, as it were, within the Artificial, and the party game was played with- out any reference to the people, because as yet the people had obtained no privileges, and it was not worth the while of any party to court them. They might be formidable enough in an insurrection, just as the Helots, the Messenians, and the slaves might be ; and accordingly Cinadon, in describing his resources, names the Lacedaemonians, the perioeci, with the freedmen and the serfs. But until a faction had determined on rebellion the CH. XV. QUESTION OF CLASSIFICATION. 197 help of tlie people was unavailing, and tlie proceedings of party are always framed upon the plan of only using the means which the existing constitution makes lawful. The ancients were a good deal divided in opinion upon the question to what class of governments the Spartan properly belonged. Plato, in one passage {Leg. iv.), seems to think that the difficulty can hardly be solved ; but he, in another passage of the same book, treats the denial of it being an aristocracy as absurd (aroxov). Aristotle, without pronouncing a decided opinion himself, says that some consider it as a mixture of monarchy, oligarchy, and democracy, while others regard the ephoral power as a t}Tanny, and the institution as in many re- spects democratic {Pol. ii.). But he afterwards says that the power of the Ephori converted the aristocracy into a democracy. Plutarch so entirely differs in his view of the question, that in one of his works (on the Three kinds of Government), he gives Sparta as the example of aristocracy ; and in another (Life of Lycurgus), he describes the power of the Ephori as the power of the aristo- cracy. Others, as Isocrates {Panoih.\ regard it as a mixture of aristocracy and democracy. The safest course seems to be that which we have ventured to take, of considering the different periods of its history as presenting different forms of the government, and of disting-uishing carefully between the Spartan body and the nation at large. But it is a much more difficult thing to ascertain how far we can trust the accounts of so strange and unnatural a state of society as the Spartan institutions are represented to have esta- blished ; the more especially as those accounts appear frequently to involve contradictions, as well as matters the operation of which they afford no means of comprehending. 1. Among the former class may be reckoned those extraordi- nary provisions respecting female chastity, to which reference has already been made. Children born out of wedlock had no civil rights ; but adulterine bastardy w^as occasionally encouraged by the law. A strict watch was kept over the chastity of women (a vigilance which the best accounts show to have been exceedingly ineffectual), while, with the husband's consent, the wife was suf- fered to form a connexion with another man merely to gratify his passion, and independent of the adultery permitted for the sake of securing an offspring. Then, with all this indifference on the 198 « GOVERNMENTS OF GREECE— SPARTA. CH. XV. subject, it was a common form of swearing at Sparta to wish an enemy four great curses, of which one was, that his wife might have a gallant. It is true that the other three (a taste for build- ing, for embankments, and for horses) all turn upon expense, and so tlie gallantry might be reckoned only pernicious from its costliness;. The compelliijg all to dine in public seems difficult to reconcile with the ballot and exclusion from the messes. How were those excluded to comply with the law ? Then how were those to obey who could not pay the monthly contribution ? Was the table only for the homoioi ? But then the hjrpomeiones must have had more freedom than the privileged class ; and so greatly was free- dom prized above everything else, that the Spartan looked down with contempt on all who even laboured voluntarily, and respected the indolent as the most free. The only meat allowed is said to have been the black broth and boiled pork. Yet we are told that whoever went out to hunt sent what he caught to the public table. By whom was the game eaten, and how was it cooked to avoid improving the fare, and introducing a taste for luxury ? Each person was allowed to drink as much wine as he pleased, in order to show that reliance must be placed on his temperance, and that it was no virtue unless it were voluntary. But then, to prevent it from being voluntary, every one must find his way home^ in the dark. Not to mention that this late hour of dining or sup- ping assumes the whole company to have eaten in private during the .day, contrary to the fundamental principles of the system. There was an inscription or notice fixed to the wall, and the young Spartans were often reminded of it by the elders ; nothing- said in the dinner-room was to be repeated out-of-doors. But as all the people, or nearly all, were admitted, it is difficult to under- stand how any harm could be done by the disclosure. 2. But the division of property seems the least comprehensible part of the polity. The allotments of land could not be sold or divided, and all encouragement was given to bringing up a numer- ous family. Then how were the younger children maintained ? Yet the law seemed to assume that every citizen had the means of subsistence ; for in the earlier times all who served in war defrayed their whole expenses, and every male from twenty to sixty years of age was a soldier. It was only in later times that CH. XV. PARADOXICAL STATEMENTS. 1 99 the state furnished the expenses of its troops. After the system of Lycurgus had been estabhshed about a century, the conquest of Messene gave a large increase of national domain ; but two or three generations must have again filled tiie country with paupers. Were the Helots and Messenians (the actual owners of the land, subject to fixed rents) regarded as liable to be dispossessed, that is, to have an additional number of manorial lords imposed ujDon them as the numbers of the peoj^le increased? And yet all authors are agreed in stating that the rent paid by these serfs was never raised. Observe — no explanation of the difficulty is afforded by the fact of the Spartans diminishing in numbers ; for the Lacedaemonians, the perioeci, freemen inhabiting the country districts, had the property in the land as well as the Spartans, and their numbers increased exceedingly. At the first division 30,000 allotments were distributed among them, above three times as many as fell to the share of the townsfolk. It is another difficulty that while all fortunes were required to be equal, certain citizens, because of their wealth, furnished horses for the cavalrv • and these were used only by inferior troops, the infantry beino- reckoned the more honourable service. Nor will it suffice to uro-e as aj:i explanation of such difficulties that the ancient writings have preserved only an imperfect record of the facts ; for the ancients themselves appear to have felt how hard it was to comprehend the Spartan economy. Aristotle points out the inconsistencies of some of Lycurgus's provisions {Pol. ii.). Plato, as well as he, describes the luxury and insolence of the Spartan women, whose domineering nature and profligate habits have hardly been denied by any writer excepting Plutarch. The prohibiting a circulating medium appears to be if possible more unintelligible. For if it was meant to prevent the accumu- lation of wealth, no such object could be accomplished, unless barter were forbidden ; and though free men and women mio-ht not be allowed to work at all handicrafts, in some they could em- ploy themselves ; at any rate they could buy slaves and make them work. There were prohibitions of luxuries, such as fine furniture and costly ornaments ; but any one might amass such property, though he could not display it ; and to the possession of slaves and cattle there were no limits. It was however held that every man's cattle might be used freely by his neighbours ; his horses ridden, his slaves driven, his 200 GOVERNMENTS OF GREECE— SPARTA CH. XV. cliildren corrected. Then what subjects of dispute could there be for judges to determine, except perhaps assaults ? And yet we are told that the magistrates sat daily to determine causes, and that the army was always accompanied by judges to settle the disputes between individuals, without troubling the commanding officers. Though no professional advocates were suffered, the character of the people was litigious ; and their avarice was almost as proverbial as the want of all chastity in both sexes.* In all the doubt and difficulty, however, which encompass the subject, there appears every reason to believe that the extra- ordinary state of society which Lycurgus's institutions either created or completed had a duration very little to be expected from the principles upon which it was founded, and only to be explained by the system of education which formed its principal constituent part. The original distribution of property must needs have been constantly broken in upon ; and the complaints made of harsh creditors, at an early period, prove that Vv^ealth was gradually accumulated in different hands. The introduction of luxuries, to a certain extent, also took place, and the severe discipline generally was in some measure relaxed. But the great features of the system were to be traced according to the commonly received accounts at the end of five centuries, although the Peloponnesian war and the conquest of Athens had produced considerable changes, and though Xenophon admits, at the end of three centuries, that important deviations had taken place from the ancient regimen, particularly in the disposition of men to obtain provincial and foreign governments, to amass wealth, and rather to possess eminent places than to qualify themselves for deserving them {Rep Lac. xv.). It can hardly be doubted that the de- generacy went on increasing till the wars of Lysander and Agesi- laus. The consequent intercourse with foreigners, and especially with the East, a century later, introduced great laxity of discipline, and rendered the Spartan habits little less luxurious than those of other nations. A great change in the laws respecting property had been introduced, probably soon after the Peloponnesian war though the time is uncertain, by one of the Ephori, Epitadius, who carried an ordinance allowing the alienation of property both by gift, sale, and devise. But it is probable that the strictness of the former law had been gradually relaxed before this change, * Aax«w?£ii> was the coiiiuion expvcssion in Greece for unnatural practices. CH. XV. PROCEEDINGS OF PARTIES. 201 and that it only added the power of devise to a right already- recognised of conveyance intei' vivos. A considerable number, however, of the privileged class, (homoioi) still continued to take a pride in adhering to the old discipline, and to distinguish themselves by this which had now become a peculiarity among the Spartans, as it had once been a mark of the whole class, distinguishing them from the Lacedaemonians and others of the common orders. It appears always to have been regarded with respect by the people at large ; and the general recurrence to it made a principal part of the reforms occasionally propounded by those who were desirous of changing the aristocratic form which the govern- ment had assumed. We are not informed in what respect this was urged by Cinadon ; but it formed a material part of the plan proposed by Agis, and afterwards executed by Cleo- menes. Aois havinsj become king about four centuries and a half after the time of Lycurgus, took the lead of the popular party, and his colleague, Leonidas, appears to have been at the head of the Spartan or privileged order. Agis, with the con- currence of at least one of the Ephori, Lysander, whose elec- tion he had influenced, proposed the redistribution of the lands, the reduction of the Spartans to their original allotment, the grant of the residue to the Lacedaemonians, the admission of these to all the privileges of citizens, and the filling up their num- bers from the perioeci, together with the subjection of all classes of citizens to the ancient discipline. He made a voluntary sur- render of the whole property, real and personal, of his family, as an earnest of the sincerity and honesty of his motives in bringing forward this important measure. The senate rejected the propo- sition by a majority of one ; the people supported Agis ; Lysander impeached Leonidas, the leader of the aristocratic party ; and, with the aid of the people, dethroned him, placing Cleombrotus in his room. A new election of Ephori was on the point of restor- ing Leonidas, when Agis and Cleombrotus by force removed them from their office, and prosecuted their reforms with the help of Agesilaus, whose election as an Ephorus they had brought about. He appears to have betrayed them, having a large estate and heavy debts, and resting satisfied with a measure for absolving all creditors, but delaying the promised distribution of lands. This completely ahenated the people from the party of the two kings 202 GOVERNMENTS OF GREECE — SPARTA. CH. XV. and Agesilaus, who began to act oppressively, and excite a strong disposition in favour of Leonidas. A party of the aristocracy therefore recalled him, and the people, deceived in their expecta- tions of the only reform tliey cared for, stood by and saw Leonidas restored, and Agis dethroned and barbarously murdered, with his mother and grandmother. Cleomenes, who succeeded his father, Leonidas, and married Agis's widow, is represented as having been induced by her to renew the measures of her husband, for whom she is said to have filled him with the greatest admiration. It is much more probable that he found the power of the EjDhori had become intolerable, and that the war which was carrying on with the Achseans gave him a pretext for introducing a change of government, as indeed it afforded a good reason for inducing the people to make extraordinary efforts, by awakening their zeal for the public service. What we know for certain is that he put four of the Ephori to death, abolished the office, and banished eighty of their partizans, brought forward at the same time the measures of Agis for dividing the lands, set the example, like Agis, by giv- ing up his own estates, admitted a selected body of the perioeci, so as to complete the number of the homoioi, cancelled all debts, and restored the strict education and discipline established by Lycurgus. It should seem that for some time at least he had been sole king. How this happened we are not told, but the prejudices of the people being strongly against monarchy, or the government of one king, to which they liad not been accustomed, he had his brother elected king with him, being the first instance of both kings taken from the same family. These changes hap- pened in the year 230 B. c. The vigour which they gave the government enabled Cleomenes to carry everything before him in the war wi^h the Acheeans, who could only make head against him by obtainmg the aid of Antigonus, the JMacedonian general. He defeated the Spaxtans, drove Cleomenes from liis kingdom, and upon the same principle whicli led the Russians and their allies to maintain the Polish anarchy, restored the government of the Ephori, and indeed all that Cleomenes had abolished. Tlie Spartans were soon after compelled to submit and join the Achsean league, abandoning for ever the institutions of Lycurgus. It is manifest that, before the time of Agis, the aristocracy had become divided into two classes, the wealthy families, about one hundred in number, and the remaining six hundred, who, though CH. XV. DISTINCTION OF ORDERS. 203 possessed of the political supremacy, were dependent upon the richer citizens, and probably in most cases their debtors. The class below these, the hypomeiones, and descendants of freedmen and foreigners, in all probability formed nearly the same kind of order with the poorer of the homoioi, and took part with them in supporting Agis and Cleomeues in their revolutionary measures ; hoping, if not to share in the lands distributed, at least to have their debts cancelled. The party of the Ephori, the aristocracy, or rather the oligarchy, as contradistinguished from the rest of the aristocracy (homoioi \ were probably the wealthy families, eighty of whom Cleomenes banished. 204 GOVERNMENTS OF GREECE — ATHENS. CH. XVI. CHAPTER XVI. GOVERNMENTS OF GREECE — ATHENS. Authors — Early History — Cecrops ; Theseus — Threefold Division of the People — Ancient Officers — Panathensea — Kings — Archons — Eupatridse — Polemarch ; Eponymus ; Basileus ; Thesmothetse — Classes ; Pedraei ; Diacrii ; Paralii — Anarchy — Draco — Solon — Errors respecting his Legislation — Solon's Reforms ; Archons ; Colleges ; Paredri — Courts of Justice — Areopagus— Heliastae — Infe- rior Magistrates — Pure Democracy — Classes of the People — Population — Slaves — Effects of Slavery ; Xenophon ; Plato ; Diogenes — Phylae ; Phratria; ; Genea ; Trityes ; Demi — The Ecclesia — Senate — Elections ; Scrutiny — Prytanes ; Epis- tata— Euthynaj ; Logistse — Voting; Ballot — Areopagus — Its Powers ; its Com- position— Logistse ; Euthynae — Mars Hill ; St. Paul — Helisea — American Court — Ephetse. The government of Athens and ttie Athenian history generally are more fully known than those of Sparta. The writers whose works have reached us are all Athenians, or inhabitants of the colonies and jDrovinces which had constant intercourse with Athens. They therefore, though living at a distance of time from the earlier stages of the constitution, were yet fully acquainted with its structure and working in their own age, and wherever they have left any uncertainty m treating of their earlier institu- tions it has rather been owing to their omitting to describe what they consider every one must know, than from the subject being unknown to themselves. The more early portions of their con- stitutional history are necessarily involved in the doubt and obscurity inseparable from such inquiries. About thirty years before the Phoenicians made their inroad into Greece, as we mentioned in Chapter XIII., Athens is sup- posed to ha.ve been founded by Cecrops. The date of this event is, as we before stated, variously assigned. Sir I. Newton j)lacing it nearly five centuries later than the gTeater number of ancient authorities ; but with the balance of probabiUty altogether on his CU. XVI. EARLY HISTORY 205 side, he assigns the year 1080 B. c. for the foundation of the city. Cecrops is generally believed to have come from Egypt ; but he may very possibly have been a chief of the Pelasgi, the original inhabitants of Greece ; and the Athenians over whom he obtained his dominion were most probably a tribe of that nation, first called Cranai, from the name of a former chief, though they are fre- quently described as a tribe of the lonians who had invaded Greece from Thessaly. Cecrops is represented as having col- lected them into twelve tribes or towns, of which Athens, then called after him Cecropia, was the most considerable, being built around a rocky hill or stronghold where he had fortified himself The other towns were only very imperfectly under his dominion, each having its own chief and senate or council of elders, and all living in constant alarm from the Boeotians, a powerful nation in their neighbourhood, as well as in a state of frequent war with each other. Under the successors of Cecrops Athens retained, in general, the same kind of precarious and irregular influence over the other eleven states, and it was not till the time of The- seus, in the latter part of the tenth century before our era, that anything like a regular system of government can be said to have been established, even if we take the traditions which remain of his times as authentic history. The Cretans having obtained some decisive victories over the Athenians, he restored their inde- pendence, and using the power which this gave hun, partly by persuasion, partly by the protection which he could afford them against invasion, he induced the eleven towns to give up their separate councils, and all unite under one government and one council at Athens, whither he had attracted a great concourse and established in it a powerful force.* He is said to have given up in a great measure his own regal authority, retaining only the command of the forces and execution of the laws, and to have divided the people into three classes, the well-born or patricians {eupatridce),-^ the agriculturists (geomori), and the artisans (de- * Thucyd., ii., 15, says he was powerful .is well as prudent or wise — fUTu to'j ^uviTcu xcci ouvitro;. f 'Eyr«T^/5a;, yiufjbo^ot, ^yi/jbiov^yoi. The division into four tribes whose names were repeatedly changed has probably given rise to some confusion ; for it is said that Erechtheus gave them the names of armed artisans, farmers, and shepherds, which is plainly the threefold division expanded. Yet it is also possible that the two divisions were different, and that the fourfold division may have been only of the Eupatridae, or of the Eupatridaj and Geomori. 206 GOVERNMENTS OF GREECE— ATHENS. CH. XYI. miurgi), confining to the first the right of sitting in the council or senate,* of superintending religious rites, making laws, and holdino- mao-istracies. There seems to have been a judicature (j^trytanewiii) as well as a council established. \ What these ma- gistracies were, or how they were conferred, and how the council and judicature were chosen, we have not the least information, except that folemarchi, or commanders, colacretce, or treasurers, naucrarii, or collectors of imposts, and phylohasileis, or chiefs of tribes, are all mentioned occasionally as most ancient officers ; but the frequent mention in after times of a popular government as the work of Theseus makes it probable (as U. Emmius has observed^) that the choice of magistrates was lodged in the upper class, if not in the others also. We are equally ignorant in what manner the confederate or subject toAvns sent their deputies to the council, or indeed whether they sent any at all, and were not entirely under the power of the Athenian government for the sup- port of which all appear to have paid tribute. § But the one institution which can with tolerable certainty be traced to Theseus, and which continued ever after, had a direct reference to the federal union, and was plainly designed to maintain it. A yearly festival was established, at which all the inhabitants of Attica were present, and which was hence called the panatlienoea.W The chiefs or kings who succeeded Theseus soon extended their authority, and diminished that of the council and people ; and Codrus, who reigned about a century and a half after him, having fallen (it is said, voluntarily sacrificed himself) in the first war between the Athenians and Dorians, the royal power was much abridged, and the name of king changed to archon or first magistrate. A century and a half later, '^ the archon's office in- stead of being for life was given only for ten years, and in less * BovksvT'^oiov. Plutarch ( Vit. T/ies.) says the senate still met in the same place where Theseus had planted it. t Plutarch (whose account is the most minute in other respects) mentions less distinctly than Thucydides there being a prytaneum as well as a senate. X Vet. GrcEcia. ( De Rep. Ath.) § Thucyd.. ii., 15. II lleivciffyivaioi. There were other games called fjt.iToix.iot. or migratory, and ffwoixia. or cohabitative, with a reference to a union of tlie provinces, similar to that of the Ta.)iu6rivu,ia,. % The ordinary account makes the hereditary archous continue for 315 years (C. Sigon., De Rep. Ath., and Be Ath. Temp.—lJ. Emmius, Vet. Gr. Rep. Ath.) ; but the Newtonian account is followed in the text. CH. XVI. ARCIIONS. 207 than fifty years it became annual. Tlie principal change intro- duced on the death of Codrus appears to have been that the archon was rendered accountable to the senate and people like other magistrates ; but the office continued to be hereditary, the senate and people only interfering in cases of disputed succession. When the decennial archons were substituted, the election became vested in the people, that is, in the patrician class {eivpatridce) ; and when the office became annual, it was held, not by one, but by nine, chosen in the same manner,* of whom one was the chief, giving his name to the year, and hence called e'ponymus; another was poleTuarch, or commander of the forces ; and a third was called king, having the superintendence of religious matters. The other six were called thesmothetce, having the guardianship of the laAvs, probably, ^\dth the patrician body, a legislative, and certainly a large judicial power. The whole government appears to have been in the hands of the nine, and they were elected by the patrician order and out of their own body. The order had now obtained great power over the community. They had lent money to the poorer landowners, and by usury not only had amassed sufficient wealth to purchase almost all the land in the country, but had obtained the j^ower of exercising gTeat oppres- sion over the inferior classes. There were no longer any consi- derable number of small proprietors, unless in the mountainous districts ; and the country, in consequence of the distribution of landed proj)erty, was split into parties opposing each other with bitter animosity. These factions had continued from the time of Cylon, who, endeavouring to destroy the influence of the Alcma30- nidse family, descendants of the last hereditary archon, and to make himself tyrant or chief of the state, had failed in the attempt But three parties were now formed — the pedrcei, inhabitants of the plains, who were oligarchical ; the diacrii, inhabitants of the hilly country, who were democratic ; and the paralii^ or those con- nected with the commerce of the coast, who wavered between the other two, but generally were said to favour a mixed form of government. The confusion which their proceedings first occa- * Thucydides (i., 126) speaks of the nine archons as well established at the time of Cylon's sedition. But they must have been known from the time of Creon, the first yearly archon, which by the common chronology was 90 years, and by the Newtonian 45, before Solon. The former places Solon at the beginning, the latter about the middle, of the sixth century before Christ. 208 GOVERNMENTS OF GREECE — ATHENS. CH. XVI. sioned, induced the community to call upon Draco, a man of tried integrity and great capacity, though of a severe and unyielding temper, to prepare a code of laws, which till then they never had possessed ; and when this was found ineffectual, chiefly because he had left everything untouched that related to the government and its administration, recourse was a few years afterwards had to Solon, one of the wisest and most learned men of the age. Being himself of a noble family, he obtained the confidence of the patricians, who seeing that some reform was absolutely necessary to prevent anarchy, were better pleased it should be in the hands of a man of their own order than intrusted to the common people. Ho was enaljled to keep, and even to extend his favour with both the patrician and plebeian classes : with the former, by giving the constitution a somewhat aristocratic character in one important particular ; with the latter, by a strong measure which he carried for relieving debtors not only from arrest, but from a considerable portion of their existing burdens."^ Of course everything that had existed before, as well as every- thing that he introduced into the institutions of the state, was afterwards ascribed to Solon. But it is demonstrated beyond all possibility of question that the principal feature of the government, the nine yearly archons, with their several departments, existed at least half a century before Solon's legislation, — that the Areopa- gus, though greatly improved by him, was established long before his time, — and that the chief doubt rests upon the existence of a senate in former ages, though some council of the kind probably was established. It is certain that he adopted the more important of the fundamental principles of the old constitution, and retained its most important parts. Then, as many things were ascribed to him which he found already established and only improved, so other things, which were introduced long after his age, were sup- posed to be parts of his plan. It becomes therefore very difficult to describe the government as he left it, and then to trace the changes which it afterwards underwent. We know that most of his institutions were preserved ; that the usurpation of Pisistratus during his lifetime, and the supreme power which he left to his * The Seisachthia, or relief from burdens, is variously understood. Some con- ceive it to have been an extinction or reduction of interest upon an increase of the priLcipal, -whicli seems improbable ; others represent it as a raising the denomina- tion of tlie currency ; others as a partial amnesty. CH. XVI. SOLON'S REFORMS. 209 family (the Pisistratidse), did not cliange any of Solon's laws, and consisted only in their engrossing the chief of the offices which he had established ;* that Clisthenes upon their expulsion, half a century after Solon, extended the influence of the people, new modelled the tribes and senate, and greatly curbed the aristocracy ;-[• that Aristides thirty years later destroyed the last remains of the ohgarchical power by opening all magistracies to the lowest class of the people ; and that ultimately a republican government was established, though originally the form had inclined towards aristocracy. But the particular changes through which this event was accomplished we have no means of tracing, and it therefore becomes more convenient that we should at ouce proceed to con- sider the government in its last stage, when all the arrangements to which ancient writers refer had been introduced. We may, therefore, look at the constitution as it existed in Philip's time. The names and many of the duties of the ancient magistrates were retained by Solon ; but their powers were first in his time, and then by the gradual encroachments and final supremacy of the democracy, reduced within very narrow limits. They were all chosen by the people, and all held their offices for a year only. The principal change made by Solou in the form of their proceed- ings was that the archons before his time all acted separately — not merely the three first, but the six thesmothetse ; whereas he gave them the functions of tAvo colleges, euabling them to sit together as judges. It should seem, however, that these six came to act chiefly in the capacity of judicial officers and guardians of the police of the city ; the three chief archons presiding with two assessors each (paredri) in one or other of the ten high courts or tribunals in which civil and criminal justice was administered. In five of these courts the presiding archon chose by lot the other members of the court acting as jurors, and who generally amounted to five hundred, upon extraordinary occasions to twice as many in the more important court. In four of them, which tried homicides of different descriptions, the numbers were much * Herodotus (i. 59) praises Pisistratus for his good and just administration of the govei-nment, and says that he changed nothing of its fundamental principles. Thu- cydides (vi., 54) praises the valour and wisdom of the Pisistratidae, and says that they governed by the existing laws, always taking care to appoint themselves to the higher offices. t The changes recorded as made by Clisthenes, except the ostx'acism, do not appear to bear directly on the oligarchy. Concerning Clisthenes, see Herod, v. 66-G9. PART II. P 210 GOVERNMENTS OF GREECE — ATHENS. CH. XVI. smaller, and were taken from a list of fifty-one returned by the tribes. In one, the Areopagus, the places were held for life, and no jurors attended it. The person of every archon was held sacred, and any insult to him was punished by the loss of all civil rights. Their election was vested in the people, and, by the law of Aristides, abrogating that of Solon, every citizen was ca- pable of being chosen. But every person chosen underwent two scrutinies ; one before the senate, or rather a select body of the senate, the prytanes ; the other before the tribunal of the heliasts* Tliey must show that they were descended of Athenian parents for three generations, that they had borne arms in the service of the state, and that their domestic character was free from reproach. At the end of their year they were eligible to the Areopagus upon passing their accounts, and undergoing a new scrutiny as to their official conduct. Of the inferior magistrates, some were chosen by the people, and others by lot. Most of these magistracies were in the hands of ten persons, each tribe choosing one either by election or by lot, and none held his office above a year. The various officers possessed some, but only a moderate de- gree of influence ; the archons chiefly, when they could agree and act in one body. But the government could hardly be said to be administered by them at all. They were in truth the ser- vants or instruments of the great councils, the Assembly, the Senate, the Areopagus, and the Helisea, all of which bodies being chosen annually, and chosen by lot, except the AreojDagus, the government might truly be said to be directly administered by the great body of the people. In what manner this administration was carried on we are now to see. The first division of the people is that into natives, foreigners (metoeci), and slaves. The numbers of the Athenian people have given rise to considerable dispute among antiquaries and political reasoners. Mr. Hume, in arguing against the supposed popu- lousness of ancient nations,-]- estimates the free inhabitants of Athens at 84,000, the foreigners at 40,000, and the slaves at 160,000 only. But though he probably comes near enough the * The avccx-^nrii seems to have come before the election ; the lo>ctfji.a.(nu. after. The former tried the qualification, as citizenship by three descents ; the latter scrutinized character. t Essays, Part II., 2. CH. XVI. SLAVERY ; ITS EFFECTS 211 truth as to the two first classes, there is every reason to beheve that the slaves were much more numerous ; accordiDOf to the most credible accounts 400,000.* The treatment which they received was very different from that of the Spartan slaves, still more from that of the serfs or helots ; it appears not to have been extremely severe. Yet we may remark the extent to which slavery had perverted the feelings of even the worthiest and most humane persous from the manner in which such a writer as Xenophon speaks of the servile condition. He mentions the in- solence of slaves, and, indeed, of foreigners, whom he treats as if they belonged to the class of freedmen, if not of slaves ; and he seems almost to complain of the law which prevented beating them, — that is, beating another man's slave to repress his inso- lence,— assigning as the only reason for the prohibition that other- wise there would be a risk of beating free citizens, who could not be distingTiished from slaves by their outward-f* appearance. It is another proof how deeply rooted the existence of slavery was in the minds of the Greeks, indeed of all ancient nations, that free citizens of all their own states might be sold into slavery, and held as slaves equally with foreigners, or, as they were termed, bar- barians. Plato himself was, in returning from Sp^acuse, sold into slavery by the perfidy of a Spartan ambassador, acting in league with the tyrant Dionysius, to whom the philosopher had given some offence : he was ransomed for about a hundred pounds. Diogenes was sold by pirates, who captured the vessel he was sailing in ; and refusing to be ransomed, he passed the rest of his life in slavery, but as the instructor of his master's children. The whole people were divided into ten tribes (phylce), CHsthenes having changed the ancient division of four into ten. Each of the four ancient tribes was divided into three vestries or phratrice (resembling the Roman curice), and each jphratria into thirty families (genea). The ten tribes, which were local, were made up of demi. There was a division of each of them into three parts, called Trityes. These divisions seem to have been chiefly subservient to the sacrifices and other religious solemnities, like the Roman division of gentes. There was another division into dis- * Mr. Hume's arguments have been refuted by other writers. See particularly Clinton's Fasti Hellenici ; and he may have been misled by the supposition that the passage in Athenaus refers to the proportion of slaves fit to bear arms. t Xen., De Rep. Ath., cap. i. p 2 212 GOVERNMENTS OF GREECE — ATHENS. CH. XVI. tricts or villages called demi ; and this had a reference to the en- rolment of the citizens ; for no one could claim his civil rights unless he belonged to a demus and a 2^hyla (a village and tribe). There were officers at the head of each division and subdivision : over the tribes there was a j^hylobasileus ; over the vestry a phraU'iarcha ; over the village a demarchus. This division was also subservient to the military system, the tribes raising each its quota of men, and commanded by the phylarchus, and those of the subdivisions, demi, under the several demarchi. A classifi- cation of another kind had, however, been made by Solon. He not only retained but extended the aristocratic principle of the older government ; but he substituted an aristocracy of wealth for the old one of birth. He divided the citizens into three classes according to their income, as they had an income of five hundred, three hundred, or two hundred bushels of grain. From these classes alone could magistrates and senators be chosen : all the inferior orders formed a class by themselves, excluded from political office, but allowed to act as a kind of juryman, in assist- in oi- the magistrates at the trial of causes, and allowed also to sit and vote in the assembly of the people (ecclesid). Aristides abolished all distinction between the classes, making every one eligible to all offices.* In that assembly (ecclesia) the whole legislative as well as ad- ministrative power was lodged, subject only to the powers of the archons as executive and judicial officers chosen annually by the assembly. Peace and war, alliances, taxes, expenditure, legis- lation, were all intrusted to the same body, which likewise chose all the superior magistrates, the inferior ones being selected by lot. To the assembly, also, were all magistrates responsible for their official conduct ; liable to be tried before it by impeach- * G. Postellis, De Rep. Ath., c. 21. This treatise gives a distinct and concise summary of the magistracies, but it is written with a political bias, at least with frequent reference to Venice. — J. Meurs., Solon, cap. 14. — Car. Sigon., De Rep. Ath. ii. 2— J. Meurs., Attic. Led,, v. 20. — In some writers there is a reference to J. Pollux on the Census of Solon; and there must be an error, possibly in the editions (codices), as great as any of those corrected by J. Meursius in his various most learned treatises. It is said that the first class paid a talent in taxes, the second half a talent ; yet the whole income of the first was five hundred bushels, and of the second three himdred, which at five drachms a bushel (the price cited in various places) would make the whole income of the one class eighty-four, and of the other fifty pounds, out of which they were to pay nearly two hundred and a hundred pounds respectively. This subject is elaborately examined in Beckh's Public Economy of Athens, book iv., sect. 5. CH. XVI. GENEKAL ASSEMBLY. 213 ment, and to be punished by its sentence. This assembly met four times in every prytaneia of thirty-five days, or about once every nine days ; but it was called together on any occasion that required its interposition, either by the senate or by the chief archon, or by the military commanders with the senate's permis- sion. The checks upon its power were originally considerable ; and some of them continued at all times, though some had ceased to operate. The president (the epistata, or chief of the proedri) was always a member of the senate, and it was he who generally brought the business forward. No resolution could be taken by it unless the senate had pre\iously sanctioned it by its vote. A measure adopted by the senate was valid and binding for one year, whether the assembly confirmed it or not ; but no decree of the assembly could bind till the senate confirmed. But as the power of the people increased, even though the senate, having so much to hope or fear at their hands in the amount and distribution of magistracies, became extremely subservient to the assembly, yet the latter, not content with their influence, by degrees assumed the direct power, not only of rejecting the senate's propositions, a power which they always possessed, but of making decrees and laws to which no previous sanction of the senate had been given. To sit and vote in the assembly required no qualification, except being twenty years of age and a native Athenian ; but whoever was degraded by any infamous crime was incapacitated from at- tending ; and it was a capital offence for a foreigner to be present The ordinary meetings were thinly attended, and it was often necessary to send officers around for the purpose of compelling those in the street to come in under pain of being fined. The strict rule required six thousand to be present when personal laws, as decrees of banishment or naturalisation, were made ; but Thucydides tells us that, for many years of the war, so many citizens had been abroad on service or on business, that it had never been found possible to assemble five thousand. The ex- pedient of giving pay to such as attended was latterly resorted to ; and four pence a day was found sufficient to attract tlie poorer classes. On great emergencies all the citizens, that is, all the people of Attica as well as the townsfolk, were summoned.* It was some check upon their proceedings that the old were allowed to speak first, and for some ages no one under fifty could begin a * Thucyd. vii., 72. 214 GOVERNMENTS OF GREECE — ATHENS. CH. XVI. debate. It was a more effectual practical restraint that, though every one had a right to speak, hardly any one ever thought of it but the appointed orators of the state. But the proceedings were generally as tumultuous and as noisy as might be expected in these circumstances.* The Senate was probably at first the council of the king, and then of the archon ; but when that office became annual, the senate's authority must have greatly increased. Solon appears only to have increased its numbers, and made its power more solid. The chief prerogatives of the government being after- wards transferred to the popular body, the senate had much less influence than before ; but it always retained considerable weight in the administration. Solon had required that every resolu- tion of the popular assembly should first be sanctioned by a decree of the senate ; but this afterwards ceased to be the law. Yet the ordinary course of proceeding was that both should con- cur, and it was held to be a principle of the constitution that the senate's decrees had, without any confirmation by the popular assembly, the force of law for a year. Certain questions seem to have been reckoned its peculiar province, and those of great im- portance, as peace and war, the raising of money for the public service, the care of the navy, and of all matters concerning the religion of the state. But it entertained apparently all questions of a public nature. Its jurisdiction as a court was exceedingly confined. If any case of a pressing nature arose, not admitting delay, the senate considered it, and either sent it to be tried by the ordinary tribunals, or inflicted a fine, in imposing which it could not exceed five hundred drachmse (about 15l.)-f It had the power of expelling its own members, as well as of deciding upon their qualifications v/hen returned. The numbers of Solon's senate were four hundred ; Clisthenes raised them to five hundred ; and they were chosen by lot from all the tribes. Each tribe returned fifty, § and fifty more as substitutes,! to take the places of those who might die, or be found disqualified on the scrutiny. On being so returned each person underwent a scmtijiy ( dociTnasia) as to his character and life, and he might afterwards be impeached before the senate itself for any- • U. Emmius, Vet. Grcec. {Rep. Ath.)—C2ir. Sigou., De Rep. Aih., ii.. 4 t Demosthenes expressly states this to be the limit of its judicial powei* CH. XVI. PRYTANES. 215 thing tending to disqualify him, as we see in some of the orations that still remain.* The five hundred being chosen were divided into bodies or sections of fifty each, who presided in their turn each of the first four sections for thirty days, each of the other six for thirty-five. The presiding section was termed the prytanes ; and there is some controversy as to the manner in which the pre- siding officers of the sections were chosen. One opinion seems to be, that each section divided itself into five bodies of ten each, and that each of the first seven of each ten was the chief, or epistata, in his turn presiding one day in the senate, while the other three of each ten were left out altogether. — Another opinion is, that thirty-five or thirty-six of the -prjismesbn. section were, each in his turn, epistatse of the prytanes, and consequently presided one day in the senate, while the epistata chose by lot one from each of the other nine sections, not being prytanes, and these nine were the proedvi, who presided at the general assemblies of the people. — All accounts agree in this, that no one presided above a day in his turn, and that all the selections were made by lot. The president of the senate, of whose authority the jealousy was thus great, generally opened the business for their consideration ; and he kept the great seal of the state as well as the key of the citadel and treasury. The prytanes formed a kind of college during their month, and lived at the public expense in a place called the tholus, close to the senate-house, entertaining there the public guests and any citi- zens who received that high honour for their services. It was the duty of the prytanes to receive all proposals of a political nature from every qi*arter, to reduce them to writing if deserving atten- tion, and to lay them before the senate. They prepared the busi- ness generally for that body, and their president (epistata) opened it to the meeting. Any proposition of a legislative kind, made in the senate, was referred to them. Some have supposed tliat the scrutiny into the conduct of magistrates was performed by them ;t this seems doubtful ; but certainly they are represented as exer- cising great authority in the administration of public affairs from * Lysias, In Philonem — passim. t J. Laurent. De Rcbuspah., cap. i. An account sometimes given of the matter is this : — The scrutiny into the conduct of magistrates was conducted by the ivSuvoi asfl XoyKTTrx.1, oflBcers appointed for that special purpose ; and if there was ground for a charge of malversation, the Xoyi/rrctt brought the case before an ordinary court of justice, in which they presided on those occasions, and the iv^wot seem to have acted as public prosecutors. 216 GOVERNMENTS OF GREECE - ATHENS. CH. XVI. their weight in the senate. The daily pay of a senator was double that of a person attending the assembly, about eightpence ster- ling. The voting was generally by the bean, or ballot in later times. Originally it was, as in the assembly, by holding up the hands. * The ancient authorities are full of allusions to the ballot, of which two are remarkable. Demosthenes says that the law required, when a foreigner was to have the rights of citizen conferred on him, that the voting should be not only by the bean, but so secretly, before strangers were admitted (that is, foreigners), that every one might be entirely master of himself, and examine in his own mind the merits of the party.f ^schines says that the senators had excluded Timarchus, voting by the leaf, that is with the names written down, but retained him afterwards voting by the bean ; for which the people punished them by withholding the olive crown,;]; the reward given to senators on quitting their office. It is here obvious to remark, that if the choice of the senate and of all those who presided in it, as well as in the assembly, were really made by lot, as was professed, there could have been no security whatever for the selection of fit persons. The scrutiny could not have been at all effectual for this purpose if it be true, as is represented, that only an equal number of supernumeraries (^sTriXxxovTcs) were returned. For how is it conceivable that out of twenty thousand individuals, the great majority of whom were of the lower description, the lot should fall upon only five hundred unfit persons in the one thousand returned ? The probability cer- tainly is, that seven hundred or eight hundred out of the one thousand should be unfit for the office. Possibly the inferior classes, * Car. Sigon., De Rep. Ath., ii., 3— G. Postelli, Rep. Ath., c. 7 — U. Emmius, Vet. Gr. {Rep. ^/A.)— Thuc, viii., c. 69. Plutarch ( Vit. Puhlicolce) says that the senate existed before Solon, but he doubted its numbers. f Kv^ios aiv eivTo; ocvtov inaffros ffKO'Tr-nTO.i TTgoi ocvrov ovtivo, f^iXXii, &C. — In Necer. ap. Reiske, Cr. Gr., ii., 1375. lie speaks of it as if the common voting by bean was not a complete ballot — \}^-^ipiZ,(ifjbivoi and x^vi*,2'/iv ■4'>iMtt.tuv xa< /a£tiX«j8£ Itxxirreov rovouTuv 200. CH. XVI. EPHET^. 223 for having caused such a law to be passed, its repeal, as well as his punishment, was sought by the articles of the charge. In this respect they appear to have had a jurisdiction somewhat resem- bling that of the Federal constitutional court in the United States of America. There is every reason to suppose that most of the gTeat political causes of which we have any account were tried before this tribunal. The EphetcB were, next to the Areopagus, the most ancient of the judges, being, in the time of the kings, fifty Athenians and fifty Argives, who tried all crimes of homicide. In Draco's time they were reduced to fifty-one (to avoid the chance of equal divi- sion), and the Argives no longer formed part of the court. After- wards each of the ten tribes chose five persons of the age of fifty at least, and of unblemished reputation; another was added by lot. These judges formed four courts, called the Prytaneum, Phrea- trium, Deljpliiuini, and Pcdladiumi, which tried the different kinds of homicide ; the Prytanes, for example, that which was occa- sioned by animals, or by inanimate objects. Solon is supposed to have given extended powers to the Areopagus as a counter- balance to the influence of the ephetse. Some have confounded this tribunal with the senate, misled by the Prytaneum, which formed one of its divisions.* But the members, as well as its functions, were totally different. These Prytanes however, that is, the tenth part of the senate in rotation, beside presiding by their epistatse and proedri over the senate and the assembly, exercised, as we have seen, great powers, but not apparently any judicial functions. * J. Stephanus, De Jitrisd. Vet. Greec, cap. iv. In cap. iii., the learned author treats the court of the Prytanes as the senate, and there is no inaccuracy in so doing, the senate having civil jurisdiction. But in cap. iv. he gives the same court juris- diction as to homicide by animals and inanimate objects, which belonged to the branch of the 51 under the archon called king. He supposes Socrates to have been tried in the Prytanes or senate. 224 GOVERNMENTS OF GREECE— ATHENS. CH. XVII. CHAPTER XVII. GOVERNMENTS OF GREECE — ATHENS. ( Continued.') Other Checks beside the Areopagus — State and Public Orators — Payment of Func- tionaries— Rules as to Alterations of the Law — Nomothetes — Syndics — Direct Repeal required — Impeachment for illegal Legislation — Quorum — Prohibition of Repeal — Power of Adjournment — Variety of Bodies— Appeal, and i-econsidera- tion — Ostracism — General feeling against these — Orators ; their influences — Advocates and Professional Orators — Legislative and Judicial Functions com- bined— Corruption of Statesmen — Demosthenes — Whigs in Charles XL's reign — Demades — Corruption, faction, and fickleness of the People — Turbulence of Assemblies — Radical vices of the System — Advantages derived from the system. Such were the constituted authorities of the Athenian system, resolving themselves all, more or less, immediately into the bulk of the people ; and we are now to consider in what manner any control or check was provided, beside the Areopagus, to render the working of the machine regular, and keep it subject to any fixed law, or any influence other than popular caprice. 1. The appointment of public orators may be deemed some kind of check upon the popular proceedings, though it perhaps rather evinces the great sense which there was of some check being required, than the efficiency of the expedient resorted to. Ten orators were chosen (latterly at least, by lot), who both in the senate and the assembly were to debate for the people, repre- senting their interests, as it were ; and they were paid a small sum each time they spoke.* They appear to have undergone a scrutiny before being allowed to act as orators, probably before * It was one drachma, or eightpence. Nothing is more puzzling than the small sums which appear to have been received as adequate payment for public services, and to have been eagerly sought after. Three oboli (four pence) a day for attending the assembly ; for the senate, six oboli ; nay, only the same for the Areopagus itself when sitting judicially. CH. XVII. RESTRAINTS ON CHANGES IN THE LAW. 225 they were drawn by lot ; and any immoral conduct, or political or other offence, or any misbehaviour in war, precluded them from being chosen. They were also required to be natives, born of Athenian parents, to have one or more legitimate children, and to possess property in Attica. The same character and qualification, ascertained by the same scrutiny, was required of all others who would address the assembly, as well as of the Public Orators ; and whoever succeeded in concealing any part of his former life from the court which examined him previous to his admission, was liable to be punished, as well as disqualified from acting in future, upon the imposition being discovered. In practice, hardly any one but the Ten Public Orators ever addressed either the senate or assembly ; and this, as well as what has been stated respecting the choice of the senators, makes it very difficult to conceive that the lot really decided upon all these elections. Practically there may have been some arrangement or understanding by which the names of comparatively few of those eligible were placed in the urns. 2. The strict rules, however, respecting alterations of the law were a much more effectual check upon the wild democracy of the Athenian constitution. Fortunately a tolerably exact account of this is given in the orations which remain of Demosthenes and Andocides ; an account which, if it is far from explaining every particular of the legislative process, yet shows clearly that there were delays interposed, and notices required to be given, which afforded an opportunity for reflection to the people themselves, for the exertion of such influence over them as the Areopagus pos- sessed, and for the operation generally of the authority that always resides in the Natural Aristocracy of the community. The constancy with which the Athenians adhered to these rules rather than their original adoption, which was probably owing to oligar- chical influence, is a proof how conscious they were of their own unfitness to be trusted with the supreme power, of the little re- liance which they had upon themselves. The three first assemblies each year were devoted to the consi- deration of new laws ; but the two first of the three could only consider of such as were not repugnant to any law already exist- ing. The proposal of a repeal or other law inconsistent with the old was then received, but it was rigorously exacted that no such law should be propounded without a previous repeal of the old. As soon as the proposition was made the senate appointed a num- PART II. Q 226 GOVERNMENTS OF GREECE — ATHENS. CH. XVIL ber of persons called N'oinothetes, or law-makers (some think fifty*), not by lot, but by selection, to digest and reduce it to writing. In that form it was laid before the Prytanes, who were to make it public by immediately affixing it to a portico in a fre- quented part of the city, called the Eponymi, or Statues of the Ten Heroes. It was required to be thus placarded daily until the assembly again took it into consideration. Other nomothetes, said to have been five hundred, and chosen by the districts who returned the senate-f* (the demi), then examined it, as did the senate itself All the nomothetes must have served as Heliastae, and taken the solemn oath of these judges. Then five persons were chosen, but not by lot, called Syndics, whose special duty it was to defend the old law, and of consequence to resist the intro • duction of the new. Finally the assembly, on the full discussion of the question, determined upon adopting or rejecting the pro- position. 3. But another important restraint was imposed by positive law, and it operated at all times, and actively, though it was per- verted, like everything else in that turbulent commonwealth, to the purposes of faction. It was criminal to bring forward any decree or any legislative measure which was contrary to the existing law : the first step to be taken was propounding a direct repeal. This of itself was a great security ; inasmuch as men will often be averse openly and at once to abrogate an old law, or destroy an ancient institution, who would have little scruple about suffering it gradually to be undermined or indirectly assailed, and frittered away, as it were by piecemeal. But suppose a person pro- pounded a total repeal of the old law, he was compelled to substitute another in its place ; and if this was not beneficial to the nation, J he was liable to be prosecuted at any time within a year, although * Reiske supposes the word "is to have been originally the cipher for fifty ( Or. Or. And. de Myster,, iv. 40), and he translates it so accordingly. t There seems some reason for suspecting an error here, if not in the text, at least in the interpretation that has been given to it. Andocides says 500 no- mothetes, ovi 01 hfiorai uXovro (Reiske, Cr. Gr., iv. 40); and adds that they, mean- ing the nomothetes, were sworn before they proceeded. Demosthenes says they took the oath of the heliastae {In Tim.), but he says nothing of their appointment. If the demi, as Reiske supposes (viii., 336), actually elected the nomothetes, it is the only instance known of their making any choice ; 'iyifjuorxi would describe the people, indeed, the assembly as well as the demi. X ETirnliiov TO) IfifjuM. (Dem. In. Timoc.) The proper meaning is fitted — well adapted. But in which way soever we translate the word, the argument must rtinain the same. CH. XVII. IMPEACHMENT OF ILLEGALITY. 2*27 the people and the senate should have sanctioned his proposition and passed the law — nay, although the same should have been acted upon. If his proposition, being adopted, had proved ever so beneficial, he was liable to prosecution unless he had brought it forward and carried it according to the strict forms of legisla- tive procedure, having regard, among others, to the important rule which required direct repeal, and prohibited any indirect breaking in upon the existing law. Thus the responsibility under which the supreme power, the people and the senate, could not be placed, was cast upon each member of the community who chose to put that irresponsible power in motion. Every person, be he ever so insignificant, was entitled, on this condition, to make what pro- posals he pleased ; and no person, how powerful soever, was ex- empt from prosecution for his attempts to change the law, or to obtain decrees inconsistent with its principles. Nor was the con- currence of the state itself any guarantee of his safety. The same body which to-day joined in carrjdng his measure, might some months hence, nay some years hence (for it sufficed if the prose- cution were commenced within the year, the trial might be at any time*), join in working his ruin, and that without any original fault on his part or on theirs ; because all might have been formally done, and the event might still prove the change to be hurtful. It is no wonder that the orators and party chiefs at Athens stood in great dread of such a proceeding, and regarded with the most serious apprehension the responsibility which they thus incurred in the discharge of their public duty, if you will, but certainly in the pursuit of their own ambitious objects. This species of prosecution or impeachment was termed yqoctpn 9ra§avo/xa;vf — charge or accusation of illegality ; and it was in constant use between the contending parties, or rival statesmen * The most elaborate prosecution of this kind, of which we have any knowledge, that of Ctesiphon for obtaining the decree crowning Demosthenes, was commenced indeed within the year, but argued and decided after seven or eight years had elapsed, and the most important events had entirely changed the face of things. t There appears to be some doubt whether this prosecution could be maintained against a person who had only attempted to carry an unlawful measure ; and if we were to take the passage in Andocides so often referred to as some have understood it, there appears a colour for the opinion that the attempt was sufficient. But the word ^ouXivuv, which is rendered senator by Reiske and others, seems to imply more. It is coupled with 'za.^a.'hi'haxriv rtu liKocsryi^tM, and may therefore be taken to mean that Speusippus had by his counsels obtained a decree of the senate putting Andocides's father on his trial. Had it been senator, the expression would rather have been Q 2 228 GOVERNMENTS OF GREECE —ATHENS. CH. XVII. and commanders, down to the time of the Thirty tyrants who abolished it. The greatest orations of the two first orators of any age, Demosthenes and ^schines, were delivered npon trials of this description ; and some others of Demosthenes, hardly less noble, were prepared by him upon similar occasions to be deli- vered by different parties, 'it being the practice at Athens for pri- vate accusers to deliver speeches prepared by professional orators, as well as to defend themselves when charged, in those instances in which advocates were not allowed. Some doubt hangs over the question which of the tribunals had cognizance of this charge. There seems no doubt whatever that the great case of Timocrates was tried before the Heliastae, and the probability is that the case of Aristocrates was also tried by them. There can be very little question that the case of Ctesiphon was disposed of by the same tribunal.* 4. Some additional check was interposed by the rule which was laid down as to the numbers whose concurrence was required in the kind of proceeding most likely to be influenced by popular violence. It was a rule constantly in force that no law could be passed to affect any one person without affecting equally the whole people, unless 6000 persons were present at the least. Be- side the general law, many instances occur of this number being specially required by other laws, not indeed to join in the vote, but to vote in the question. Thus the admission of an alien to the rights of citizenship,! — the restoration of those citizens who had been disqualified by crimes or default — the remission of any debtj due to the public — are cases provided for by particular laws ; although they all appear to come under the description of personal laws or decrees, and might therefore have been supposed provided for by the general law. It is to be observed that this * Demosthenes {In Timoc.) quotes a clause in the senator's oath, and then, to show that it does not bind those to whom the speech is addressed (i5/*aj), he has the Heliast's oath read, in which the clause does not occur. This oration was made for Diodorus, the prosecutor of Timocrates, as the one against Aristocrates was made for Eajpicraies. The address is throughout in this to the Athenians, as in the two orations on the Crown,"except in a single instance. But that is not decisive ; for the large judicatures were always addressed as the Athenians. There is one pas- sage in each of the orations of Demosthenes and iEschines, which refers to judges, and to those standing round as contradistinguished from the judges, clearly showing that these speeches were not delivered in the general assembly. In all these cases, too, the oaths are referred to under which the persons addressed were acting. t Dem. In Neceeram. + Id. In Timoc. CH. XVII. OTHER CHECKS. 229 rule only applied to the proceedings of the assembly ; for the senate could act by the bare majority of its numbers ; and the tribunals, such as the Areopagus and Helisea, could proceed to sentence against individuals by the majority at meetings com- posed of comparatively few voters. 5. Beside these restraints there were others much more feeble, because they were attempts, as it were, of the people to put them- selves under disabilities, and had little more effect than to show how much some control was desiderated. Upon a new law being- made, it was not unusual to add a perpetual prohibition of any repeal or alteration. The funds for the army had been by Peri- cles diverted to give the people the power of attending theatrical exhibitions, in which they so much delighted. Eubulus, a dema- gogue, at the very time when the expenses of the war most re- quired this supply to be restored, had a law passed making it a capital offence so much as to propose it. — The exemptions from serving certain expensive offices had been carried to excess ; and Leptines proposed a law not only recalling some of those already granted, but prohibiting, under pain of confiscation and infamy, any one to propose new exemptions in future ; and it is to be re- marked that, in the able and well-reasoned oration which Demos- thenes wrote for one of the movers of the repeal (the time for pro- secuting Leptines having elapsed), the absurdity of a law assum- ing to bind the legislature prospectively is not one of the grounds taken.* It is an observation of Mr. Hume, marked by his wonted sagacity, that such laws proved " the universal sense which the people had of their own levity and inconstancy." j 6. There was a power vested in the presiding officer similar to that which we may remember to have found of such importance at Rome, of adjourning the meetings of the assembly upon any omen appearing to authorise it. The archons, too, appear to have pos- sessed this privilege ; certainly the prytanes and proedri ; though it seems to have been much more rarely resorted to than at Rome. 7. The referring so many important questions to bodies different from the assembly must be deemed a check upon its rashness and violence, even if those bodies were constituted in the same way with itself, which neither the Areopagus nor the Ilelisea were. The * Dem., 2iid Olijnth., and In Lept. f Essays, Part ii., 10. 230 GOVERNMENTS OF GREECE — ATHENS. CH. XVII. Helisea came nearest to it in composition, being taken by lot, and without any permanent functions. But even if out of six or seven thousand persons five hundred are chosen by lot, the merely set- ting them apart, especially if they are to act under the sanction of an oath, is likely to make their conduct more cautious and deli- berative. We know how differently a very small number acts from the body out of which it is taken, in the instance of juries. To a certain degree the same kind of difference will be found to affect the proceedings of a much less select body like the Heliastse. The same observation applies to the senate. There can be little doubt that the pr3rtanes, though chosen like the other 450, and their president, though also selected by lot, felt an individual responsibility which did not influence the senators at large. 8. The uncertainty in which we are left regarding the right of appeal, and the course taken for obtaining the judgment of dif- ferent bodies on the same matter, prevents us from being able to trace distinctly the operation of probably the most effectual of all these checks. One thing is however clear ; there was a tendency to have the proceedings of each judicature reviewed by some one or more other bodies, and an option given of going before one or other of courts of concurrent jurisdictions. In some instances it is believed that two decisions of the same body were necessary to give any sentence effect. It should indeed seem from the oration of Demosthenes against Timocrates, that hardly any resolution or judgment was final until it was executed, and that two successive determinations of the Senate and of the Assembly did not prevent the whole ground from being again gone over before the Heliastse. If there lay no direct appeal from the Areopagus there were few instances in which that body did not, either after or before pro- nouncing a final sentence, send the case to the Heliastse. We have the remarkable instance of Demosthenes being either tried for bribery as to the whole matter, or at any rate as to the punish- ment to be inflicted, before the latter tribunal, after a unanimous sentence, or at least a resolution against him, of the Areopagus. The converse of this case was that of Antiphon, stated in the oration upon the Crown. He had been arrested for treason and sent to take his trial in the Helisea, where by the arts of a party he was acquitted, and he left the city. The Areopagus had him seized again, and again put on his trial before the same courts, CH. XVII. OSTRACISM. 231 though probably not composed of the same members, when he was put to the torture, convicted, and executed.* There can be no doubt that such a course of proceeding exposed parties to great hardships, an acquittal being no protection ; but it is equally manifest that a security was derived from it against rash and inconsiderate determinations. There was one kind of proceeding not peculiar to Athens, but more practised there than anywhere else, and which may be thought rather to operate in a contrary direction to those rules and principles now under consideration, giving a freer scope to the democratic power, rather than providing a restraint to it. It was an ancient custom, the origin of which is left in great uncer- tainty, that when any citizen had either from his wealth or his renown, and it might even be from the reputation justly acquired by his eminent services or his singular virtues, attained an ex- traordinary degree of weight and influence, he w^as liable to be removed for a length of time by banishment, in order to prevent his acquiring a power dangerous to the liberties of the people, and inconsistent with the democratic form of the government. This extraordinary proceeding was not of course regarded as a degra- dation ; it was even affected to be treated not as a punishment ; and it accordingly differed from ordinary or penal exile, because it was attended with no forfeiture, which always attended the other. In another respect it differed, that generally the place of banishment was assigned, although some have doubted this from the example of Themistocles, who, as a reward for such services as hardly any man had ever rendered to his country, was banished to Argos, and Thucydides nevertheless tells us that he went to all parts of the Peloponnesus.t It can hardly be supposed, how- ever, that a person so unjustly treated as to be naturally bent on revenge should be suffered to go wherever he pleased ; and we may therefore presume that the general rule was to assign the place of residence. The rules were very strict by which this proceeding was conducted. A day was appointed on which the people as- sembled in the public place or forum, where ten passages were prepared ; by these all the tribes might go to the urns in which each person was to put his shell, or rather piece of earthenware in the shape of a shell, from whence the operation was termed ostracism. On this ware he was to write the name of the person * Dem. De Cor. t Thuc, lib. i., c. 135. 232 GOVERNMENTS OF GREECE— ATHENS. CH. XVIT. whom lie desired to banish. The nine archons attended, with the prytanes on the part of the senate, and they first of all counted the people present ; if there were fewer that 6000 there could he no sentence passed ; and there are three wholly inconsistent accounts given of this quorum ; one representing the presence only of the fixed number to be necessary ; the second represent- ing the number of 6000 votes to be required, but a majority of these to be sufficient ; the third representing 6000 votes as neces- sary to sentence any person.* There is also an opinion adopted by men of great name on the authority of an ancient writer, that no person under sixty years of age could vote, but that there must be 6000 present of the legal age of twenty.t The time of banish- ment was ten years; but sometimes a decree of the assembly shortened this period. Some of the greatest and most virtuous men in Greece, Themistocles, Cimon, Aristides, suffered by os- tracism for the influence which their merits had acquired ; and it has been a general remark in all ages, that the excesses of popular violence never brought greater odium upon republican government than was cast upon it by this refinement of cruelty and injustice. The professed object was to give a security against the introduction of tyranny and the subversion of the popular consti- tution ; but it would not be easy to imagine a worse result of any tyranny or of any change in the popular constitution than the enormity of ostracism itself. This detestable custom was in use both at Argos, Melitus, and Messina ; and at Syracuse, where it was called fetalisTn, from the names being vn-itten on leaves. In the three former places the Athenian term of ten years was adopted ; in Syracuse it was only five : nor was it long tolerated there, even in this somewhat mitigated form. It is manifest that all the circumstances which we have been considering depended for their influence, indeed for their exist- * The account given by Plutarch ( Vit. Arist.) seems, in one respect, very unin- telligible. He says that different persons were proposed for ostracism, and that he whose name appeared on the greatest number of shells was banished. It is easy to see that when one party proposed to banish an adversary his friends would retaliate. But if the vote was taken as Plutarch describes, it would follow that one or other must be bauished, and only one ; whereas the majority might be of opinion that both should be banished, or neither; and in the event of more than two being denounced, the consequence would be still more absurd. t Car. Sigon., De Repnb. Ath., ii., 4 ; and he quotes Plutus's Comment. Gra;c. U. Emmius {Vet. Grac.) and A. Thysis (Rep. Ath.) adopt the same account. J. Mcursius {Alt. Lect. v., 18) gives all the other learning on the subject. CH. XVII. GENERAL CONSERVATIVE FEELING. 233 ence, upon the strong disposition of the community, and especially of the numerous and inferior class, to abide by ancient customs, and to make the deviating from them an exception of rare occur rence. This principle was mixed up with religious feelings ; and it was carefully inculcated by almost every one who pretended to acquire any sway over the people. A\[ reflecting men must have early perceived that unless some rules were held sacred and immovable in the guidance of their proceedings, an entire de- struction of the state must speedily ensue ; the catastrophe which should involve the whole in anarchy, accompanied in all likeli- hood with subjugation to a foreign power, would almost certainly be attended with the rebellion of their numerous slaves ; and the massacre of the free native inhabitants by these enraged inmates, the resident foreigners heading them, must have been a risk seldom out of the Athenian's view when political contention came to an extremity. The contemplation of a hazard never remote from the commonwealth was sufficient to prevent a people so singu- larly quick, acute, and intelligent, from lightly neglecting esta- blished rules, on the enforcement of which their very existence seemed to depend. Nothing but such a phrenzy as seized the people of Paris once in two thousand years, and spread to infect the colonies, could have made the factious divisions that ruined St. Domingo possible in a settlement where, as in Attica, a few thousand free men were surrounded and might at any instant be overwhelmed, by myriads of slaves. The modes of proceeding, then, to which we have been referring, were generally speaking maintained by common consent and as a matter of course ; and they must have had some tendency to moderate the power and regulate the caprice of the multitude. But after making all allowances, we must perceive that this power and caprice had quite scope enough to work the most extensive and the most re- mediless mischief The body of the people in whom so predominant a power was vested were for the most part in needy circumstances ; they voted secretly ; they were therefore exposed to corruption in all its forms, from the more refined influence of canvassing to the grosser substance of threats and bribes. Even supposing them to have acted without interested motives, their poverty, which was such that a large proportion received a small allowance daily from the public treasury or granary for their support, must have 234 GOVERNMENTS OF GREECE — ATHENS. CH. XVII. greatly jarred with any patriotic principles if they had been suf- ficiently enlightened to feel their influence. But they were only half educated, and being wholly incapable of thinking for them- selves, abandoned themselves to the guidance of demagogues, who drove the disreputable trade of gaining an influence over them by a life of artifice and intrigue. The statesmen of Athens were the most consummate artists in their calling of orators that the world ever saw, and they were among the most profligate and unprincipled men that ever obtained dominion over a nation. The power possessed by the multitude to be exercised in crowded public assemblies, where nearly the whole business of the state, — executive, legislative, and judicial, — was earned on, made the profession of an orator the only important civil occupa- tion, and they who pursued it united the calling of the hired advocate with that of the politician. Now the necessity of advo- cates in every community governed by a system of laws is quite manifest ; the service which they render is exactly this, that mthout their aid justice could not be administered, men's rights could not be secured, and the simple and the feeble coidd not be protected from the cunning and the powerful. But it is most essen- tial to morals that the advocate should be only the representative of other men in that openly avowed capacity, and that all he says and does should be said and done by him as standing in the stead of the party. The politician, whether sitting in a senate by personal right, or delegated by others to consult for their good, acts in a judicial capacity, acts in his own proper person, and upon his own judgment ; he delivers his opinion because such are his convictions, and there cannot be a more corrupt or a more debasing employment of his faculties, or a more pernicious use of his position, than being alike prepared to support any side of any question. If all the members of both houses of the English parliament, or both the French chambers, who ever bear a part in their debates, were also advocates practising at the bar, the con- stitution of those assemblies would suffer considerable damage from the unavoidable effect of the professional habit upon the political character. The large admixture of other leading men prevents this from happening to any great degree. If not only there were no such admixture, the advocate and the senator being completely identified, but if also the professional and the political fmictions were entirely blended and confused, by the judicial busi- CH. XVII. COKRUPTION OF STATESMEN. 235 ness being carried on in tlie same assemblies mtb the legislative, nay, in the greater number of cases the same question being both a cause, and a law or other state measure, it is easy to see how- deep a wound must be inflicted upon public virtue — how wide a door opened to the contamination of statesmen's purity. The Athenian orator in some meetings of the Helisea spoke as the hired advocate of a party who was on his trial, or was prose- cuting an adversary ; in others he wrote for lucre the party's speech which he was to deliver in his own person ; and the greatest of all this celebrated body was known to have occasion- ally written the addresses of both sides. In other meetings of the same tribunal he was to advise the state, but standing in the same place, addressing the same audience, employing the same re- sources, using the same artifices. No versatility of powers, no steadiness of principle, could in such circumstances enable any man to draw the line between the two capacities ; and while he gave himself wholly up to his client in the one, reserve himself wholly for his conscience and his country in the other. It was of inevitable necessity that he came soon to regard the conflict of the senate and forum as the same, and to be ready for any side of any question in both. Bad enough is it for the state, degrading enough for the individuals, that there should occasionally be men, or bodies of men, actuated by party views to the excess of regarding principles as indifferent, supporting whatever measures may tend to further such paltry interests, and opposing, it may be, the self-same measures because their adversaries have adopted them. But what only happens on rare occasions in France or in England, and is the pity or the scorn of all good men, according as they happen to be of a more humane temper, or a more severe, was the constant state of things at Athens, marshalling men on whichever side they found it for their interest to take, and making all principles be treated in very deed as the counters wherewith the game of faction was to be played.* There can be no question that these men exercised the powers of government by leading the multitude ; and as the military commands were bestowed by the assembly in the same way with the magistracies, the generals were drawn into the political con- tests, and became partisans of the orators, in some instances sharing in their corruption, though generally much freer from * See Chap. V. * 286 GOVERNMEXTS OF GREECE — ATHENS. CH. XVII. that taint than the gownsmen. These apparently were accessible to foreign influence, and even to corruption in its coarsest form. If all that is urged against Demosthenes resjDecting the embassy be put out of view, and his conduct before Philip be merely ascribed to embarrassment and timidity, there seems no ground for ques- tioning the bribery that afterwards led to his conviction. That we have only the powerful speech of his accuser, and are without the reply which he may have made to it, and that a tradition remains of Harpalus sending an account to Alexander of the manner in which he had squandered the treasure embezzled from him, with- out any mention of Demosthenes as receiving a part, is surely nothing like an argument to be set against the unanimous opinion of such a body as the Areopagus, by whose judgment, moreover, the great orator had professed his readiness to abide. Nor can the same excuse be urged for him that has been set up for the party in England which has been charged with receiving foreign pecuniary aid to farther its attacks upon arbitrary power, and the estabhshment of its own principles.* The Athenian partisan had deemed it for the interest of his country to reject the proposals of the Macedonian, whose peculations made him the enemy of the prince he had robbed, until the fruits of those peculations were employed to silence the most eloquent of human tongues ; and it never has been suggested that the money, if received at all, was employed for any public purjDose.f The mercenary nature ot Demades was never disputed — it was hardly disguised by him- self ; and Antipater's saying has been recorded, that he had two * There seems every reasoB to disbelieve the story, that the more distinguished leaders of the Whigs, especially Russell and Sidney, were parties to the assistance which some of them are believed to have had from Louis XIV. through his ambas- sador. Mr. Rose {Observations on Fox's Historical H'ork^ sec. iv.) appears to acquit them of the charge, and he admits that the Tory leaders, with the King's con- nivance, received considerable sums, and even, like their master, pensions. Lord J. Russell, in his able and temperate Life of his illustrious ancestor (Chap, x.), has convicted the principal author of the charge, Sir J. Dalrymple, of a misstatement so gross as well to deserve the epithet of '^ dishonest," which he gives it ; and Ba- rillon's predecessor, Colbert, it is curious enough to observ^e, describes the commis- sioners whom he was employed somewhat earlier to bribe, and among whom was the profligate and despicable Buckingham, almost as Antipater had described Demades — persons, he says, whom he plainly saw nothing would satisfy. t Plutarch ( Vit, Dem.) relates other instances of Demosthenes's corruption. If we may believe his account, Alexander found letters of the orator's in Persia that proved his having received sums of money from that court. But no one can impeach his purity during the long struggle with Philip, his enmity to whom seems tc have been the predominating passion of his mind. CH. XVII. CORRUPTION — FACTION — FICKLENESS. 237 mpporters at Athens, Phocion who would receive nothing, and Demades whom nothing would satisfy. Others made an open profession of such profligacy, and this became even the language of society among the political classes. In fact those politicians, looking to the support of the multitude, could always reckon upon a good chance of escape from prosecution ; and if they were not actually condemned, they had always a sufficient number of partisans to cover them from the effects of public opinion. The operation of party "in removing the chief incitements to good con- duct, and the most powerful restraints upon bad, has been already explained.* The Athenian factions and democracy worked in this manner more effectually than faction in our times ; it was often easy for an individual, without party connexions, to obtain by rhetorical arts, especially when joined with corruption, in- demnity for the worst conduct ; and once secured by a vote, however narrowly carried in his favour, the clearest proof of infamy, in the eyes of all virtuous and reflecting persons, was of no avail in effecting his downfall. That the fickleness of the people afforded chances of escape we have numerous proofs. The instance of Antiphon's first acquittal has already been men- tioned. The acquittal of Ctesiphon was perhaps justified in all the circumstances of the case, though it must be observed that the preponderance of the legal argument was against him, and that an award of the honour in question to Demosthenes, avowedly given as an irregularity, though to be excused by his services, was all that in strictness should have been decreed. But the numerous court suffered itself to be carried away by his elo- quence, and, not content with honouring him, ruined his adver- sary, driving him into banishment by the failure of his prosecu- tion. How little it was possible to reckon upon the course which the people would take in any given case appeared the more clearly from this, that they were then for the most part attached to the Macedonian party, and hostile to the great orator, whose own fate was not long afterwards sealed by the same fickleness of the same people, recalling him from a just banishment to serve their own purposes, and immediately afterwards abandoning him to the fury of his enemy and their own, at a moment when he was wholly occupied with providing for their defence. The turbulence of the Assembly, and even of the less numerous * See Chap. V. 238 GOVERNMENTS OF GREECE — ATHENS. CH. XVII. tribunal, the Helisea, was as remarkable as the intrigues and pro- fligacy of the leading men. On many occasions there was an uproar excited by the predominant party, for the purpose of pre- venting an adversary from being heard, and this so successfully, that it is exceedingly uncertain that some of the noblest remains of Attic eloquence were ever delivered.* Such scandalous scenes were iiot confined to meetings held upon political questions ; those of a judicial kind were sometimes, though not so frequently, dis- cussed under the same sinister influence ; and instances were not wanting of the most eminent men, charged with the greatest offences, and desirous to defend themselves, yet prevented by clamour from obtaining a hearing. This happened to Demos- thenes himself in one stage of the accusation brought against him for corruption, and it was therefore that he afterwards obtained a decree referring the case to the Areopagus. So sensible were the Athenians of this vice in their constitution, that an arrangement was made for the tribes taking upon themselves in rotation to guard the public meetings, and endeavour to maintain some order in their proceedings. The same causes, however, in which the evil originated affected also the remedy, and too often frus- trated its operation, namely, the fickle, inconstant, volatile temper of the people, and the great number of persons appointed to keep down tumult. These preservers of order were themselves led away by the predominant feelings, yielded to the excitement, and joined in the violence which they were stationed to control. That the Athenians had not formed those sober and calm habits of both thinking and acting upon state affairs which alone can fit men for bearing a useful part in the government, and which may be wholly wanting even to a people of great acuteness, and very well acquainted with the particulars of each separate question brought before them (Part I., Chap. III.), seems quite indisputable. It is also extremely probable that the same bad constitution might have worked far better with another nation, or with the same in a more advanced stage of improvement. But its vices were deeply rooted, and of a mischievous influence, which could in no circumstances have been fully counteracted. The want of the representative principle — the consequently too large numbers which attended the meetings of the most powerful body m the state — the exercise of administrative powers by such a This controversy exists even as to the oiations upon the Embassy. CH. XVII. ADVANTAGES DERIVED FROM THE SYSTEM. 239 number — the formation of the less numerous bodies by lot — and the confusion of judicial as well as legislative functions with executive — were defects of a nature so radical and pernicious as no improvement in the character and habits could ever be ex- pected to countervail. The entirely promiscuous nature of the assembly, and the extension of the same vicious composition to the Senate and the Helisea by the lot, exceedingly limited, though it did not wholly destroy, the influence of the Natural Aristocracy. This would of itself have been a fatal defect ; but even had these assemblies been composed entirely of the classes most fit to govern and had their numbers been in consequence greatly diminished, the confusion of functions, and the consequent imperfection of the judicial system, would have still made the constitution inadequate to provide for its own stability, and to perform the most important of the services for the purpose of securing which all governments are established. It is, on the other hand, no less certain that the Athenian con- stitution was calculated to bestow those important benefits which flow from all popular systems, however ill contrived, and that at different periods it in fact did bestow those benefits. The uni- versal competitiou of talents, the emulation in virtue, the personal interest in the public welfare, the zeal for promoting it often at the expense of individual sacrifices, and very generally at the risk of individual suffering, not only led to the possession of extraordinary accomplishments, and the performance of bril- liant exploits, but placed the whole powers of the community at the disposal of its government, and, when sound counsels were followed, produced results out of all proportion to the natural resources of the country. The very defects themselves of the system had this tendency ; the part which each person was en- abled, and even called upon to take in the administration, and the risk to which failure in any civil measure or any military enterprise exposed all statesmen and captains, must often have produced exertions little likely to be made under a more regular and a more just dispensation. These results were dearly pur- chased by their concomitant mischiefs, and they were never to be relied upon in a scheme of polity such as we have been contem- plating. The extraordinary efforts which were successfully made to resist foreign aggression, in circumstances which, after every allowance is made for the gross exaggerations of historians, re- 240 GOVERNMENTS OF GREECE— ATHENS. CH. XVII. cording, as usual, the traditions of national vanity, must be con- sidered as all but desperate, and the great power which, after these exertions, Athens obtained for a considerable period of time, are probably without a parallel in the history of any other nation. No one, however, can examine the annals of those times without perceiving how precarious the advantages were that thus accrued from the system, and with how many serious mischiefs they were accompanied. CH. XVIII. GOVERNMENTS OF GREECE -ATHENS. 241 CHAPTER XVIII. GOVERNMENTS OF GREECE — ATHENS {concluded)' OTHER STATES. Parties at Athens —Dalesmen, Mountaineers, Coastmen, and Trimmers — Usurpation of the Pisistratidse — Their downfall — Pisistratus — Clisthenes — Miltiades — Popular ingratitude — Fables on Marathon — Democratic reform — Aristides — Barbarous popular excesses — Themistocles — His maltreatment— Athenian great- ness— Pericles— Alcibiades— Thirty Tyrants— Faction— Rebellion — Socrates — Other States — Boeotia — iEtolia — Corcyra— Achaa — Foreign appeals. The opposite parties of the patricians and the plebeians, the landowners in the plains (or dalesmen) and the mountaineers, between which Solon had steered his course with so much address, continued, in his time, and after him, to distract the nation. But the party of the coast had grown up to importance, and (as the phrase used to be in England a hundred and eighty years ago) trimmed between the other two. The Alcmoeonidse, the most powerful family, descended from the kings and perpetual archons, and always desirous of regaining their family's mastery over the state which was termed tyranny or the supreme government of an individual, set themselves at the head of this third party ; but not- withstanding their great influence, they exposed themselves to a degree of public odium from which they never could entirely recover, by violating a sanctuary in order to destroy the rival party, that of Cylon, the leaders of which had taken refuge there when his attempt failed to usurp the chief power. While the contest lay between the trimmers, headed by the Alcmoeonidse, and the dales- men, headed by the patrician Lycurgus, Pisistratus, the chief of another great family, paid his court to the mountaineers, and seized by their help upon the chief power. The other two parties coalesced against him, and drove him out of the country ; their leaders quarrelled, and he was enabled to return, but was again expelled ; new dissensions enabled him, after thirteen years' exile, PART II. R 242 GOVERNMENTS OF GREECE— ATHENS. CH. XVIII. again to return, and by the aid of a force which he brought with him, and of his adherents in the popular or mountain party, to re- possess himself of the government, which he retained till his death, and left to his sons. All the institutions of Solon were preserved during the fifty years of this tyranny ; the family governed strictly according to his laws ; they conferred many benefits on the com- munity, and made many improvements; they were always favoured by the people, to whom they paid unceasing court ; but an act of dolence and injustice which was connect(3d with unchaste passions both in them and in those they endeavoured to oppress, and which was calculated, like the excesses of Tarquin at Rome, to excite j)ublic indignation, was taken advantage of by the patrician and coast factions to ruin their credit. One of them was killed by the injured individuals ; and the others ha,ving become the objects of public indignation, the AlcmceonidgB family now saw an opportunity of attaining the great object of their ambition, the tyranny, by taking the line which Pisistratus had pursued. They left the trimmers, or such of them as they could not persuade to join them in heading the mountaineers, and Clisthenes, their chief, obtained the power which Pisistratus had held by the same means, by paying court to the popular party, and by also avail- ing himself of assistance from Sparta. But he gave the people an influence which the Pisistratidse had withheld; he made those additions, of which we have already spoken, to the tribes and senate, and to the officers chosen by the people. The patricians, under Isagoras, struggled against him, and finding they had no chance of success, they in their turn also called in the assistance of Sparta, and the party of Clisthenes appealed to Persia for help, which was refused, unless upon terms that the Athenians would not submit to. The Spartans, joined by the Boeotians and others, were at first successful ; and Clisthenes with seven hundred fami- lies of his party were driven out of the country. A quarrel between the two Spartan kings, on the eve of a great battle, occa- sioned their forces to be withdrawn, and the Athenians defeating their allies, Clisthenes and his party were recalled. The accident of his adversaries, the aristocratic party, under Isagoras, ha^dng been assisted by Sparta, not only confirmed the attachment of the Alcmoeonidge to popular principles, but to the cause of Athenian independence. Sparta being the leader of the aristocratic, oli- garchical, or Dorian faction in Greece, Athens was at the head of OH. XVIII. MARATHON — MILTIADES. 243 the Ionian or democratic ; and the decidedl}'^ democratic turn which the Athenian government took began with Clisthenes though it was only completed by the Persian war. This celebrated struggle was mainly occasioned by the family and faction of the Pisistratidae, who had taken refuge in the court of Darius, and by their intrigues led him to undertake the con- quest of Greece. The Athenians, deserted by the other states, met his invading army, in which the exiled chief of that faction, Hippias, had a forward appointment. Three generals, with the right of commanding in rotation, headed the Athenian army ; and when two of them, Aristides and Themistocles, desired to give up their turn that Miltiades, the more experienced leader, might conduct the fight, he knew the nature of the people he served too well to accept it, being quite aware that any mischance must prove his ruin, had he commanded out of his turn. He waited till his day came, and gained the immortal victory of Marathon, certainly one of the greatest achievements in the history of war, although the accounts preserved by Greek writers, our only au- thorities, give it almost a fabulous aspect.* For a little while the illustrious captain, who had performed this prodigious service, was the idol of his countrymen. But an expedition which he had been allowed to undertake on representing the great treasure that would accrue from it, proved unsuccessful ; he was tried upon a charge of misconduct whilst commanding in Thrace at a former period of his life ; like Sir Walter Raleigh, he w^as sentenced be- cause the avarice of his tyrants had been disappointed; and, like that great man, he was punished upon an obsolete charge by the ingratitude, not indeed of the prince, but of the people whom he had faithfully and brilliantly served. The war was renewed after Darius's death by his son, with a force altogether overwhelming. Athens was now joined by Sparta, * We are desired to believe that 120,000 Persian troops, brought over in 600 vessels, were entirely defeated by 11,000 Greeks, with a loss of between 6000 and 7000 men, the conquerors only losing 182. Nor is any explanation given of the means by which the remainder of the beaten army, still sufficient to overwhelm the Athenians, were prevented from executing their plan of doubling Cape Sunium, and marching to Athens immediately after the battle. The other Greek states had held back fi-om the contest, being well disposed to yield the merely nominal sub- mission which would have satisfied Darius. That the Athenians refused to yield" this submission is perhaps less a proof of their constancy than their sagacity ; for they well knew that as the whole quarrel was with them, no terms they could submit to were likely to save them from the king's tyranny. r2 244 GOVERNMENTS OF GREECE — ATHENS. CH. XVIII. while Thebes and other states took part with the invader. After an ahnost miraculous display of valour and self-devotion at Ther- mopylae, and the greatest naval victory of ancient times at Salamis, the force of numbers prevailed, and Athens was twice taken and sacked within a few months. It was at this crisis that Aristides conceived the design of completing the reforms of Clisthenes. Though a decided supporter of the patrician party, he had early perceived the powerful effect of those reforms in calling forth the exertions of the people, and he introduced the great change in the constitution by which all offices were thrown open to every class of the people. There might be the greatest objections to this measure, though it seemed difficult to stop short in reform at the point where Clisthenes had left it ; but all must confess that Aristides deserved the greatest commendation both for overcoming his early prejudices, and for rising superior to the paltry fear of being deemed inconsistent. The spirit of the nation was now raised to the highest pitch of excitement, and while it enabled the chiefs to perform the greatest exploits, it also burst forth into the most barbarous excesses both of cruelty and injustice. Splendid victories were gained against great superiority of force, and after that of Platssa above 200,000 of their enemies were massacred when incapable of resisting. The most strenuous opposition was by the spirit of the people made to the invading army, while the odds seemed wholly against them ; and they stoned to death at different times two of their orators (Cyrsilus and Lycidus) for merely proposing to negotiate in desperate circumstances, their women in one of these instances acting the part of furies and murdering the wife of the offender.* The naval power of Athens was founded, and the city rebuilt and fortified, by the wise and vigorous counsels of Themistocles ; and he was soon after banished from the country he had so often saved. This petty state not only rose to the head of all the Greeks, and gave the law to them for above fifty years, but ex- tended its dominion over the islands, obtained possession of the coast which forms the key of the Euxine, and at one time held a large part of Egypt. This too was the period when the fine arts made the greatest progress, when those works were produced * Demosthenes reminds the Athenians of this brutal passage in their history as one of peculiar glory, and as well calculated to rouse up a spirit equally honourable. {]>€ Corona.) CH. XVIII. ATHENIAN GREATNESS. 245 whicli are still the admiration of ttie world even in the fragments that time has spared to us, and when the foundations were pre- pared for those more precious works of a higher art which happily bids defiance to its ravages. Though Pericles, under whose aus- pices these great things were done, went far in corrupting the people to retain his power, yet he kept himself wholly independent, consulting their interests and his own glory as bound up with theirs, but rather dictating to them than suffering them to pre- scribe his course ; whereas, says the historian, those who followed him shaped the public measures for their own aggrandisement and profit, accommodating themselves and giving up the manage - ment of affairs to the mere pleasure of the people.* The Peloponnesian war exhibited constant proofs of the inevit- able consequence of the new leadership, and the radical vices of the constitution. But it may suffice to mention the Sicilian expe- dition, and the conduct of Alcibiades. His personal influence, and that of his faction, induced the people to undertake the con- quest of Sicily, for which their resources were utterly inadequate, and against the soundest advice of their most experienced generals. On the eve of his departure he was impeached for sacrilege, but allowed to sail, his trial being postponed. On the eve of a battle he was recalled, but escaped and joined the Spartans, the chiefs of the league against his country, while the two Athenian armies in Sicily were destroyed. After reducing Athens to the greatest straits and peril at the head of her enemies, he intrigued with the Persian king — regained his influence at home — established an oligarchy of four hundred — was suffered to return — became more popular than ever— removed the new constitution and substituted another — was actually offered the supreme power in the state — suddenly lost the favour he had acquired, by the giddy people laying on him the blame which another officer had alone incun^ed, refusing to hear his defence, and driving him into exile. After many years of various fortune Sparta succeeded in over- coming her great rival, overthrowing the popular government, and planting an oligarchy, commonly called the Thirty Tyrants * Thucyd.,ii., 65, The expression is remarkable, and stronger than in the text — Er^aTovro xad ridoia,? tu '^yiujM xa) rot, <^^a.yfjba,rx, &C. ETpa-TovTO is " turned round " "jumped about," as men do in treading grapes. He had said just before, that though, in the time of Pericles, the government was nominally democratic, yet in reality it was in the hands of the first men in the state. 246 GOVERNMENTS OF GREECE— ATHENS. CH. XVIII. in its place. A system of terror, maintained by numerous assassi- nations, had led to the establishment of the Four Hundred, and contributed to maintain their power. Other murders under the colour of judicial proceedings attended their overthrow. Their tyranny, and the outrages both committed by them and against their adherents, were far exceeded by the Thhty, who in the short period of eight months put upwards of 1500 citizens to death, and indulging in every excess of arbitrary power, sacrificed not only all who were likely to shake their dominion, but all whose wealth offered any temptation, or whose death could gratify any per- sonal animosity.* Their overthrow restored the democratic con- stitution, and the government by factions and their chiefs, among whom there was constantly scope for the interference of Sparta, now predominant by land in Greece, as Athens still continued to be by sea. The same system of tumult and intrigue, but rendered more pernicious than ever by the destruction which the Thirty Tyrants had effected of almost all the eminent men in the state, continued during the rise of the Macedonian power, and prepared the way for that final ascendancy which destroyed the independ- ence of Athens, and secured her comparative tranquillity, without any remains of her ancient glory, until with the rest of Greece she became part of a Roman province. In the whole history of Greek faction and democracy there is nothing more remarkable than this, that in the very communities which of all that ever existed were the most inflamed with national feeling of patriotic spirit and mutual hatred, one of the most ordinary occurrences should have been the appeals of con- tending parties to the enemies of their country for helj) in carry- ing on their factious contests ; and that the worst kind of treason — -joining the public enemy, and both counselling and assisting his operations — should have formed almost a regular part of the political conduct pursued by the leaders of every faction which happened to be defeated. A French, or English, or American faction does not form a coalition with other parties once adverse to his own, nay, hardly appeals to the country at an election against the faction that has removed him from ofiice with less * They governed by a larger council of 3000 well-armed men, selected from among the wealthier classes, and by whose aid they disarmed the rest of the com- munity. The scenes which took place in this assembly, and the destruction by its uicans of their adversaries, and sometimes, as in the case of Theramenes, of mem- bi'is of their own body, strongly remind the reader of the reign of terror in Paris. CH. XVIII. FACTIOUS REBELLION. 247 reluctance or fewer scruples than an Athenian patriot, upon being ill-treated by the people, showed in betaking himself to the Spartan camp or the court of the Persian despot. JSTor does the reputation of the man who so acted appear to have suffered any indehble stain, any more than his return to popular favour was prevented by their openly avowed treasons. The low standard of patriotism and political feeling, the want of a genuine pubhc spirit, and the frightful vehemence of faction, is not the only matter which such facts as these illustrate. The odious tyranny of the multitude must have reached a height, and become a grievance altogether intolerable, giving to the country itself the aspect of a capricious and cruel despot, clothing it in attitudes at once frightful and hateful, and stripping it of all that should naturally win affection or respect. We may well believe how unbearable a tyranny it must have been that could induce a man of such perfect virtue as Socrates to espouse the party of those who, under the dictation of the victorious enemy, overthrew it to set up in its stead the oligarchy which proved beyond measure more insupportable still ; nay, could even make him adhere to that oligarchy when its hands were stained with the blood of the most eminent persons in the state. To his political connexion with these men, and his having been the teacher of Critias and Theramenes, their leaders, and the worst among them, his own condemnation, under the most false pretexts, was undoubtedly owing ; and this judicial murder adds one, and not the least dis- graceful, to the catalogue of crimes for which the constitution and the people of Athens are answerable.* * Socrates had nobly distinguished himself in resisting the determination of the people to condemn the generals who had gained the battle of Arginusa. The clamour of faction against these great public benefactors succeeded in obtaining sentence of death upon them immediately after their victory, and Socrates exposed himself to the fury of the mob by refusing, as presiding officer in the assembly {proedrus), to let the question be put. The judicial murder was nevertheless per- petrated immediately after. He exposed himself to the resentment of the Thirty in like manner, by refusing to join in executing an order of theirs to put a wealthy man to death in their proscription. He, however, had been named as one of those deputed to do the work, and he remained at Athens unmolested, and even adhering to them during their reign. He and Xenophon had the utmost aversion to the democratic constitution and party, and the prosecution against him was instigated by the leaders of Thrasybulus's party, which had overturned the tyrants. A solemn oath having been taken by the people to maintain animosity gi'ounded upon 248 GOVERNMENTS OF ANCIENT GREECE. CH. XVIII. It would be impossible, from the extraordinary and conflicting notices left of them, to examine minutely the constitutions of the other Greek states, even if there were any good purpose to be served by the inquiry, after having entered so much at large as we have done into the subject of the two leading commonwealths. Most of the others appear to have borne a general resemblance to Athens, both in the form of their government and in their history ; some, however, having a more aristocratic or oligarchical system. But the defects of the great democracy seem to have been still more strikingly exhibited in some of these less considerable sys- tems of polity than in the Athenian, while in all of them that intolerable and factious violence, wliich prevailed in Athens and Sparta, was carried to a greater pitch. The Theban, or rather Boeotian, government was in the hands of a council from all the eleven towns, or petty states of the union, and of eleven chiefs called Boeotarchy, who, as well as the two polemarchs at the head of domestic concerns, were chosen for a year ; and such was the jealousy of those chiefs acquiring inde- pendent power, that it was an offence punishable with death to refuse quitting their office within one month after it expired. No person could fill any high office until he had ceased for ten years to carry on any retail trade. Other instances of jealousy towards the mas^strates are to be found in different commonwealths. Thus the ^tolians, a federal union like the Boeotians, had a chief annually chosen, and whose duty it was to convoke the general council, called Pancetolon. He was to lay before it the cause of its assembling, but was prohibited from making any speech whatever upon the subject. To him, however, was intrusted the execution of the decrees and laws made by the assembly. This imposing silence upon the executive is the converse of the scheme in earlier times adopted in Crete, and at Sparta, of allowing the assembly only to determine on the matters propounded without any discussion. Corcyra seems, of all these ancient states, to have been the most renowned for violence and sedition, insomuch that "Cor- cyrian sedition" came to be a proverbial expression. One of these violent anarchies is recorded in which, besides butchering or that charge, and the restoration of the old democracy, it was impossible to trv Socrates for the real offence which he had given, and the superstitious ground was found as effectual. CH. XVIIL TWO GREAT PARTIES. - 249 banishing the sixty senators, each town, and even each house, was divided against itself ; brothers, nay, even parents and chil- dren, shedding each other's blood. In all these commonwealths the great bulk of the people were slaves ; and in the Achaean state it happened that the grown-up men having been greatly reduced in numbers by the Spartan invasion, the slaves rose, took the whole management of the government into their own hands, and had entire possession of the country for some years. How they were overpowered we are not distinctly informed, but they were either extirpated or banished in a body. Each of the states, and indeed each town of every state, was divided into two factions, arranged against each other with that implacable and unscrupulous fury which is only known in petty states, subject to the curse of unbalanced popular government. These two parties, the democratic and aristocratic or oligarchical, were always in openly avowed correspondence with the two great leaders of the party, Atheus and Sparta ; so that besides the mis- chiefs of civil broils, of themselves sufficiently intolerable, they were exposed to the yet more unbearable evils arising out of foreign influence. The worst of all wars is, no doubt, a civil war ; but a civil war, in part waged by foreign co-operation, is a worser form of civil war. 250 ITALIAN GOVERNMENTS. CH. XIX. CHAPTER XIX. ITALIAN GO VEENMENTS -MUNICIPAL CONSTITUTIONS AND ARISTOCRACY. Feudal plan monarchical — Rise of Aristocracy — Civic Nobility — Otho I. — General form of Government — Consuls — Credenza — Senate — Parliament — Wars of the Cities — Pavia and Milan — War of the Towns — Treaty of Constance. The feudal system, of whicli we formerly traced the establish- ment in Italy, especially in its northern and middle divisions (Part I., Chap. XVIIL), created a state of society out of which aristocratic government arose as its natural growth. We have seen the i^ise of such institutions in Rome and Sparta from the separation of the class which had effected the conquest of the country, and retained for itself and its descendants the exclusive possession of political power, treating the original inhabitants, and all foreigners who settled among them, as an inferior order of persons. The northern nations who overran Italy, beside their superiority as conquerors, introduced a new distinction, not at first so powerful in maintaining the difference of ranks, but much more deshable — that of territorial possession. The land became the property of the conquerors ; and such portions of it as were left to the original inhabitants could only be possessed by them on paying a portion of its produce. The portion of land which was entirely taken from them, was again subdivided among the con- querors, so as to create distinctions in their ranks ; but all of them — all the free and military settlers and their descendants, whether holding whole provinces under the prince, or only holding smaller portions under those great proprietors — formed an order distinguished from the rest of the community, who'were either in a state of bondage or of vassalage to them if they were allowed to possess or to cultivate the land ; and if unconnected with the land, were, whether free or bondsmen, reckoned of no account in the state until their industry as artisans and traders had given CH. XIX. FEUDAL ARISTOCRACY. 251 them wealth and importance. There was thus a privileged class or aristocracy in all those feudal states ; but the government was monarchical ; it was a gradation of monarchical divisions ; and the lord or baron was the monarchical chief of his vassals ; the great feudatories, the duke or count, or on the frontiers the marquis, was the chief of the barons ; and the king or prince was the chief of the great feudatories. Whatever division there was of power and of influence consisted in the sharing of it between the prince and those great feudatories, or between the great feudatories and their barons. Between the barons and their vassals there was no such partition, any more than between the vassals and those sub- feudatories who held of them, or between any of those classes of landowners and the serfs who cultivated the ground. It is, for our present purpose, immaterial in what way we de- cide the questions which have been raised on this subject: whether the whole army obtaining grants of land, the whole of the ori- ginal conquerors in any district, became the privileged, the noble class, or only the superior portions of them, the companions of the chief or prince ; and whether in subsequent times the privi- leges and rank of nobles were confined to those landowners who held immediately under the prince, or were extended to those also who held under the great feudatories. It is most probable that in some places where the number of the invaders was small, or soon became small, as a separate class they might form, like the ancient Koman and Spartan patricians, the privileged class ; while in other provinces this distinction was confined to a limited number in a large body of settlers. It is also likely that the im- mediate holders under the prince enjoyed distinctions over the other landowners ; and when the great feudatories became them- selves rather princes federally connected with the common chief, king, or emperor, than subjects of his crown, their barons formed a noble class as holding under princes rather than under subjects. But in what way soever we consider these questions, the establish- ment of distinct classes or orders of men in each community is clear ; in each community there was a body different from the bulk of the people, and possessing privileges which the people did not enjoy. This body originally consisted of considerable landowners — at all times it possessed the great bulk of the landed property, either directly or by rights which it held over the immediate cultivators. But as its privileges were hereditary, and 252 ITALIAN GOVERNMENTS. CH. XIX. descended to all the posterity of the first proprietors, in process of time the body consisted of many persons possessing very little landed property, and of many possessing none at all, as well as of great proprietors. The importance of the class depended upon the territorial rights of its more considerable members. The more numerous and poorer members had privileges which distin- guished them from the rest of the commumty ; but they were, like the mere vassals, rather followers of the chiefs than partakers of their power. There was thus an aristocracy within an aristo- cracy ; the whole body of the nobles was distinguished from the rest of the people ; but the real aristocracy consisted of the wealthy nobles, according to the distribution of the Natural Aristocracy. We have already (Part I., Chap, xiii.) traced the origin of the great titles both in France and Italy, originally personal offices conferred by the sovereign upon the more powerful nobles, as governors of districts or towns ; afterwards, through the negli- gence or weakness of the prince, made hereditary in their families. In the Lombard kingdom, but still more universally under the Carlovingian, all the considerable towns of Italy were under governors — at first under dukes, who held a large district ; but afterwards under counts, who represented the sovereign in the several towns. In each town the count (who was sometimes the bishop also, and always commanded the forces as well as presided in the tribunals) had a kind of court or council in administering justice ; it was composed of burghers, chosen by the count, and approved by the rest of the inhabitants, and called sculdasci, as we have seen (Part i., Chaj). xvii.), answering to the scabini or Eschevins of the Franks. The count, accompanied by these ma- gistrates, attended the sovereign's court or general assembly, at which his decrees were published, and received the kind of sanc- tion, little more than a formality, required to give them the force of laws. The villages were the property of the barons, and inha- bited by their vassals, who cultivated the land under them, paying a certain proportion of the produce, and rendering certain services, as well as attending the subordinate courts, in which the barons, with their assistance, administered justice, and following them in war as their militia. The burghers by degrees acquired some importance, and be- came in many instances a counterpoise on behalf of the people to CH. XIX. CIVIC NOBILITY. 253 the count's authority. But in the country the barons met with no opposition, and found no one of any importance in wealth or of any influence to match with their own. There subsisted a con- stant jealousy between the towns and the barons. The burghers considered that the country districts which lay under the dominion of the barons naturally belonged to the town, which depended upon them for its supplies ; and the barons, who disliked any rivalry of the burghers, were better pleased to remain constantly among their own vassals in the country, avoiding all intercourse with the towns. Meanwhile the power both of the towns and the barons was increasing, though in very different degrees, the towns making a much more rapid progress towards independence. The first step made, however, was common to both. The northern nations, from jealousy of the conquered people, had made it a settled rule of their policy to destroy all fortifications, to keep every town open, and to prevent all country residences from being surrounded with walls or other outworks. This policy was main- tained during the subsistence of the Lombard kingdom, from the latter part of the sixth to the latter part of the eighth century. But during the Carlovingian monarchy, and the unsettled times which succeeded it, the sovereign found it necessary to pursue a different course in order to protect the countiy against the new swarms of barbarians, especially the Huns, who were continually making inroads into Italy ; and in the ninth and tenth centuries charters of fortification were granted by the sovereign, who alone was considered as intrusted with the public defence, to all towns of any consequence, and even to most villages, monasteries, and baronial residences ; so that these all became places of strength, afforded shelter to the neighbourhood, were places of refuge to the people whom the barons or their followers oppressed, and also enabled those baronial followers to escape, whom the quarrels of the barons placed in frequent jeopardy. A considerable increase in the population, in the wealth and generally in the importance of the towns, especially of the larger ones, was the consequence. But this additional importance of their inhabitants was attended with the almost entire separation of the nobles, who now confined themselves to their castles, and the domains cultivated by their vassals and their enfranchised serfs attached to the soil, and neither liable to be removed by the owner nor free to quit it of themselves. 254 ITALIAN GOVERNMENTS. CH. XIX. The government of the towns, too, the municipal police, and administration of justice was exceedingly imperfect, until the foundation of the Saxon kingdom of Italy by Otho I., commonly and justly called the Great, under whose reign a very important chang-e was made in the condition of the Italian towns. It is not often that men have happened to bestow this appellation on those whose warlike exploits were their least remarkable distinction, and whose conquests over barbarism and anarchy long survived the influence and even the memory of their mihtary exploits. This eminent person finally overthrew, in 965, after a contest of four years, the kingdom of Italy, which had been a prey to various princes during the anarchy of half a century after the Carlovingian dynasty ended in Charles le Gros. The feudal army by which this conquest was effected could only have been kept together so as to retain the country in subjection by seizing the greater part of the land and dividing it among the commanders and their fol- lowers. Notwithstanding the hatred in which he was naturally held by the Lombard barons, Otho was too just and too wise to adopt such a policy. He ran the risk of his conquests being ren- dered insecure by the return of his German troops to their own country when the respective periods of their service expired, and he left the Italian barons in possession of their lands and their castles, however ill-disposed towards him he knew them to be. Instead of establishing an authority which must always have been shaken by his absence from the scene of his victories, consequently rendering each visit to his hereditary dominions dangerous to his new acquisitions, he judiciously laid the foundation of an admir- able influence by giving the towns such privileges as should secure their good government, and at the same time render them his steady allies against the discontented barons, by establishing their independence, and making them owe it to his favour. He took the precaution, indeed, of bestowing upon his own brother, Henry of Bavaria, the duchy of Carinthia and the marquisate of Verona and Frioul, because this secured the entrance into Italy. He created three other great fiefs — Este, Modena, and Monfen^at — into marquisates for his adherents. But the other fiefs he left un- touched : in these the power of the great feudatories was greater over their barons and vassals than was that of the new feudatories wliom he had created, and who could make no resistance to the attacks upon tlieir authority, except by entirely quitting the towns OH. XIX. MUNICIPAL CONSTITUTIONS 255 and strengthening themselves in their castles. But in all the fiefs the baronial power, as opposed to the towns, became exceedingly- weakened, in consequence of the municipal institutions which Otho allowed the burghers to obtain. Hitherto the count intrusted with the government of each town had been assisted by a council of sculdasci chosen from the body of the burghers. There was now a general desire of returning to the ancient Roman plan of municipal government. Otho, ever inclined to gratify the wishes of the citizens, allowed each town to appoint two consuls, annually chosen by the people ; and these were charged with the administration of justice, and with the com- mand of the town's militia. It was also the office of the consuls to convoke and to preside over the councils, which were two in number : one called the credenza, or secret council, an executive body, small in number, and charged with the financial concerns of the community as well as its foreign relations, assisting and also controlling the consuls ; the other, a more numerous body, and forming a senate — the name by which it went in many towns, though in some it was called the greater, in others the special council, its principal office being to prepare the legislative and administrative measures which were to be laid before the general assembly of the people. Tn that assembly, or parlimnent, as it was generally termed, the supreme power might be said to reside ; but it was only convoked upon important occasions, and in almost all the towns its deliberations were confined to those matters which had received the previous sanction of the two councils, the senate and the credenza. These councils were chosen by the dif- ferent districts or wards into which the town was divided, and each of which also furnished one or more troops of horse and companies of heavy infantry : the former troops chosen by the wealthier burghers, the latter from those next in degree, while the rest of the inhabitants joined the military levy lightly armed — every person between eighteen and seventy being obliged to serve. The service of the state was not the only one in which these forces were employed. The towns asserted their independence against the barons of the adjoining territory, and against the great feuda- tories themselves, and Otho and his successors encouraged this struggle. Nor could they prevent another incident of the feudal system — the general right of private war — from extending itself to the 256 ITALIAN GOVERNMENTS. CH. XIX. towns, which, accordingly, carried on frequent hostihties with one another. The chief contest lay between the two most powerful towns, Pavia and Milan, and their hostility was bitter and of long duration. When the Saxon family was extinct in 1002, on the death of Otho's grandson, those two towns took opposite parts in the war of the disputed succession ; and both they and all the other towns established their municipal privileges more securely during that contest. The separation of the burghers and the nobility had now become everywhere complete ; and the progress which the former had made in wealth and importance from the gradual increase of their commerce during the eleventh century excited the jealousy of the barons, who, except when they attended the occasional general assemblies or diets, held by the emperors on their visits to Italy, found their importance reduced within a narrow compass, and had not the benefits of the police which the towns maintained, but were obliged to provide for their own secu- rity by the force which they severally supported. This jealousy broke out in the reign of Conrad IL (the Salic) between the barons and the city of Milan, then under the government of Arch- bishop Heribert ; and after hostilities in which other towns took part, the emperor brought about a general pacification by the new and very important ordinances which he promulgated in the diet held at Roncaglia in 1026, establishing the hereditary right to fiefs, unless on the forfeiture of the vassal for felony, and declaring all serfs personally free, though annexed to the soil. Soon after Conrad's decease in 1039, the practice became general for the inferior nobility, especially the less wealthy landowners, to enrol themselves as burgesses in the neighbouring towns, and thus acquire the protection of the burgher forces, as well as a voice in the administration of the civic affairs. The townspeople were inclined to pay them court, and to obtain the fellowship also of the more powerful barons, by giving them a share in the municipal offices, both because of their capacity to form the cavalry of their burgher militia, and because of the power which the command of the castles enabled them to exert over the traffic of each town. Out of this state of things arose the governments of the towns in the north and middle of Italy. We have in the former part of this work (Part I., Chap. VIII.) described the long war carried on by the See of Rome with the Franconian emperors upon the dispute of the investitures. For CH. XIX. WAR OF TOWNS. 257 sixty years the to^vns were . divided by this controversy, taking part, some "vvith the emj^erors, some with the see ; but the effect of these operations, both the civil intrigues and the military move- ments, was greatly to increase the influence of the townspeople, and to make their subjugation by the emperor more difficult when he was afterwards disposed to take part with the barons, and revoke the municipal privileges granted by the Saxon princes. The war of the investitures was closed in 1122 by the peace of Worms. Thirty years after this treaty, Frederick Barbarossa, being related by blood both to the Guelph and Ghibelline families, as our Henry VII. was to the House of Lancaster by blood and the House of York by marriage, was enabled to ex- tinguish during his long reign the feud, which afterwards broke out more fiercely than ever upon his election as emperor, and his assumption of the Italian kingdom. He was encouraged by the advantages of his position, at the head of both the parties, to at- tempt subduing the Italian cities. The people of Lodi having ap- pealed to him for aid against the Milanese, who had for forty years kept them in cruel subjection, he took their part, and re- pairing to Koncaglia, where he held the diet as was customary, he there received the complaints of other towns against their oppressors. He vv^as soon at the head of a formidable league, the principal member being Pavia, and he was immediately in- volved in hostilities against Milan and the towns which sided with her. This war continued for thirty years to lay waste the Italian territories and tovvms ; but it called forth displays of patriotism and of courage which rendered their conquest impossible, even if Frederick's German resources had been far more available than those of any feudal monarchy ever could be. We have already seen (Part L, Chap, xix.) that he was compelled to acknowledge the entire independence of the towns and their municipal go- vernment by the treaty of Constance, which terminated this long conflict. The acknowledgment of independence by the peace of Con- stance was an event of great importance to the Italian cities, and may be regarded as the foundation of their governments. Although before this war they had, ever since the time of Otho I., asserted their freedom, and during the >Saxon dynasty had in fact enjoyed it, they were always regarded as by law subject to the empire, and they never openly claimed to be independent of it. They PART IL S 258 ITALIAN GOVERNMENTS. CH. XIX. swore fealty ; they paid tribute ; and five years after the war had commenced, and notwithstanding that Frederick had concluded a treaty with the Milanese, recognising their right to elect consuls, and engaging that his troops should not enter their town, his military operations having failed, or only proved successful by the plague and famine that aided him, yet a diet held at Ron- caglia, with the full consent of the laity, though influenced by the slavish counsels of the clergy and the lawyers, had given up to the crown the rights of regalia, as toll, coining money, mills, fisheries, with the power of seizing the great fiefs, and of levying a general capitation tax, and of naming all consuls and judges, but with consent of the burgesses. Frederick had accordingly sent to all the to^vns strangers to act as judges, under the name oi podestas ; and these being his creatures, devoted to his interests, were found in constant opposition to the consuls, who, though chosen by him, belonged to the cities in which they were appointed, and had been accepted by the people. Hence the great object of the war on Frederick's part had been to supersede the consular authority, or abolish the ofiice altogether. The right of private war had also been taken from the towns, as well as from the great feudatories and barons at the same diet ; but so manifest an improvement in the administration of the government had excited no avowed op- position, however much it might secretly be disliked by those whose powers of annoyance and oppression were thus restrained. The position in which the peace of Constance had placed the empire and the towns was widely different from that in which the diet of 1158 had left the parties. All rights of royalty (regalia) within the walls of each town were secured to its government, together with all rights which had actually been exercised in the adjoining district or country territory belonging to it. Every town was, moreover, recognised as entitled to levy troops and exercise civil and criminal jurisdiction within its territory. The right of the to^vns to continue their league, and renew it as often as they pleased, was further declared and confirmed by way of securing to them the performance of the articles stipulated. On the ottier hand, the rights reserved to the crown were more nominal than substantial. The consuls chosen by the people were to re- ceive, but without any appointment, investiture from the imperial legate, unless in towns in which tlie bishop or count had been \ised to give it ; and each to^vn way to swear fealty once in ten CH. XIX. TREATY OF CONSTANCE— VENICE. 259 years, to defend the imperial rights against towns not belonging to the league ; and, on the emperor's progress through Ital}'-, to provide forage and market for him, and repair the roads and bridges. The only interference of any moment with the municipal governments was the appointment in each city of a judge of ap- peal for all causes of a certain amount (about sixty pounds of our money) ; but he was sworn to decide according to the local laws and customs, and could not postpone the final decision of any case beyond two months. In this treaty, as we have already seen (Part. I., Chap, xix.), were comprehended on the side of the league, Milan, Mantua, Verona, Bologna, and thirteen other great towns ; on the imperial side, Pavia, Genoa, and six others. Ferara had the option of joining within a limited time. Imola and six others were excluded. Venice had joined in some of the military operations, having taken part in the league formed by Verona, Vicenza, Padua, and Treviso in 1164, but had never been considered as comprised in the great confederacy, never having submitted at any time to the imperial authority. Accordingly she would not, by joining in the peace of Constance, give any colour to a claim which she had always suc- cessfully resisted. While the other towns had been engaged some- times in war with one another, sometimes in contests with the emperor and the Roman see, she had risen to a far greater im- portance than any of them, and at an earlier period. Never having been subdued by the northern barbarians, she claimed to deduce her origin from the ancient state of Rome. Her history and constitution are therefore peculiarly deserving of attention. Of all the municipahties she was the most powerful, and her go- vernment was of far longer duration than any other in Europe, her state having grown up to importance at a much earlier period. This subject, therefore, may conveniently be considered before we examine this commonwealth, which on the mainlalid of Italy arose out of the feudal kingdoms. s 2 260 GOVERNMENT OF VENICK CH. XX. CHAPTER XX. GOVERNMENT OF VENICE. Origin of Venice — Insular Federacy — Anarchy — Doge created — Venice founded — Conquests — Parties — Doge's power restricted — Pregadi — Aristocracy founded — Grand Council— Council of Ten — Inquisitors — Spies — Lion's Mouth — Com- mittee of Public Safety. The Yenetians {Veneti or Heneti), inhabiting the north-eastern corner of the Italian peninsula, were very late brought under sub- jection to the Roman republic. It was not till the great victory of Marius over the Cimbri and Teutones that their territory was re- duced into the condition of a Roman province. It followed the fall of the other provinces during the struggle of the factions which tore first the commonwealth and afterwards the empire in pieces, sometimes falling to the share of one party or chief, and some- times of another, and occasionally partitioned between contending claimants. The barbarians afterwards ravaged the continental portion of it ; but the inhabitants both of the country and of Padua, Verona, Vicenza, and the other towns, found a refuge in the islands, which were never subdued by any of the northern invaders. In those fastnesses the proprietors of the continental territory re- mained after the retreat of Attila in the year 450 ; but the pea- santry returned to the mainland and resumed their occupation, the owners of the soil continuing to inhabit the islands. Here they estabHshed a kind of government formed somewhat accord- ing to the model of the Roman, to which they had so long been accustomed. Each island chose its chief, called a tribune, whose principal office was the administration of justice ; but who re- ceived instructions for the guidance of his proceedings from the general assembly, or coviitia of the inhabitants. Occasionally the tribunes of the different islands met to confer upon matters of com- mon interest, and their decisions bound the whole of this kind of federal body, or insular confederacy. CH. XX. APPOINTMENT OF DOGE. 2^1 It should seem that their insular position, convenient for com- merce, and their natural habits derived from thence, givino- them the command of the coasting trade and the traffic up the rivers of the mainland, their numbers and power had soon increased to a considerable pitch ; for early in the sixth century they carried on a successful war with the Sclavonians settled on the north-eastern parts of the Adriatic ; and in the year 527 they overran and seized upon Dalmatia. The Lombard invasion, in the latter part of the century, dro\'emore of the Venetians into the islands, and the go- vernment being feeble, the seventh century was spent in constant quarrels of the different islands and their tribunes among them- selves ; so that the Lombards by land and the Sclavonians by sea, taking advantage of these fatal dissensions, harassed the republic, and were on the point of effecting its destruction, when a general assembly, held in 697, resolved upon a measure necessary to save the independence of the state and to extinguish the seditions which were working its ruin. This was the appointment of a magistrate invested with sufficient authority, and holding his office for life. They gave him the title of doge, or duke : he was to have the command of the forces, and the jDOwer of appointing to all offices civil and military, and to exercise the prerogative of making peace and war. In other respects he was to be under the control of the general assembly. This change of government appears to have an- swered the purpose of those who proposed it ; for Paolo Anafesti, the first doge, repelled all the aggressions which had threatened the republic, obtained the acknowledgment of its independence from the Lombard kings, and quelled all the seditions which had disturbed the public peace. Attempts were afterwards made by the Carlovingian princes to subdue the Venetians, but their only result was causing the seat of government to be transferred, in the year 800, to the island called Kialto, on which, and sixty neighbouring islets, the city of Venice was built. While it was increasing in commerce and wealth, the maritime towns of Istria and Dalmatia obtained from the Greek empire, to which they belonged, the privilege of arming for their defence ao^ainst the barbarians, and of choosinof ma^is- trates for their government. But the piracies of the barbarians kept them in such alarm, that they formed a defensive league, and at the end of the tenth century placed themselves under the protection of Venice, which, partly by intrigue and partly by force, 262 GOVERNMENT OF VENICE. CH. XX succeeded in reducing them to subjection. They became provinces governed by Venetian nobles, that is, having justice administered to them and their forces commanded in the name of the republic by those nobles, who bore the title of podestas, and the doge assumed the title of Duke of Venice and Dalmatia. The eleventh century was wasted in factious contests between the leading noble families, of whom the Morosini and Caloprini were the chief; but whether these were cant names assumed by the families as the leaders of the parties, or taken by the parties from families so called, seems to be uncertain. The force of the republic was so weakened, and her councils so kept in a state of inaction, by these party broils, that no extension of her power was effected, nor was an adequate progress made in her internal improvement. But the part which her traders were enabled to take in the crusades greatly extended her conimerce during the next century, and her military co-operation in Asia obtained for her not only valuable mercantile privileges in the kingdom of Jerusalem, but the power of planting Venetian settlements there to be governed by their own laws and their own magistrates. The Venetians at the same time made an easy prey of several of the Greek islands now that the Eastern empire was crumbling to pieces, and they were enabled to extend their footing in Dal- matia with the same facility and for the same reason. These conquests tended materially to increase the power of the doge, and the people, headed by the .nobles, became alarmed for their liberties. During four centuries no check was effectually interposed to restrain his preiogative. A sedition had been raised by the tyrannical conduct of the third doge, who was put to death ; and for five years magistrates were elected under the title of mas- ter of the forces (jnaestro delta milizici), but this plan was aban- doned in consequence of their misconduct, and the office of doge was restored with all its former powers. Nor was any permanent change in those powers effected, how frequently soever the tyranny of the doges occasioned revolts and led to their violent deaths, or their depositions, with the punishment of having their eyes put out, a cruelty which the Venetians imported from the East during their conquests in the Levant. During the first century after the office was created, ten persons enjoyed it, and of these six were killed or deposed ; but no check had been devised upon their prerogative, except the appointment during one short reign of two tribunes, CH. XX. KESTRICTIONS OF DOGE's POWER. 263 whom the doge was to consult before undertaking any measure of importance. But this institution had no permanent duration, and the doges went on as before, extending their power with the in- crease of patronage and influence which the newly-acquired domi- nions of the republic gave them, and they were frequently suffered to associate their sons with themselves in the office, and thus to make it for a generation or two hereditary in their families. Se- ditions as before occasionally broke out ; depositions and assassi- nations of doges took place, though less frequently ; but no steps were taken to limit the ducal power until the year 1030, when the dethronement of a doge gave the nobles and the people an oppor- tunity of at length imposing restraints upon the authority of the chief magistrate, before that time only liable to the same control from revolt and personal violence, which in the Russian monarchy is still the only check upon the autocrat's prerogative. But in that year an important change was effected, which for the first time restricted the doge's power. The former plan of two councillors was revived, and their consent made indispensable to all the doge's acts ; the joining of the son with the father in the office was strictly prohibited ; and upon occasions of importance the doge was fur- ther bound to request the attendance of the chief citizens at a council, for the purpose of deliberation and advice. The citizens thus requested were from thence called pregadi, and though the doge had the choice of them, as there was a general agreement in opinion and interest among the nobles, and as the people were united with them in all questions relating to the doge's power and the means of resisting it, the power of choosing made little difference, and this council afforded a substantial protection to the community. It was the origin of the most ancient of the Venetian councils. During a century and a half after this change the combined influence of the nobles and the people introduced a still more im- portant alteration in the government, the foundation of the aristo- cratical constitution which soon supplanted the ducal monarchy, and continued for above six hundred years to occupy the attention of pohtical reasoners. In 1173 an expedition against Constanti- nople, under the Doge Vitale Michieli, had signally failed, partly through his feeble councils, but chiefly from the ravages of the plague, which the remains of the fleet brought back to Venice, and occasioned the laying waste of the city. A revolt, the assas- 2G4^ GOVERNMENT OF VENICE. CH. XX. sination of the doge, a six months' interregnum, were the conse- quences of these errors and calamities ; but those six months were employed in framing a new constitution upon a republican model. The foundation of the whole was a grand council of four hun- dred and eighty members, in whom were vested exclusively all the powers not held by the doge, and who were also to share with him all the sovereignty which he possessed. The members were an- nually chosen, not by the nobility at large or by the people at laro-e, but by twelve tribunes appointed yearly, two for each of the six quarters into which the city was divided, each tribune choosing forty councillors. It never seems to have been doubted that the choice would be confined to the noble houses ; but there was a restriction which prevented the tribunes from taking more than four from any one family. The first tribunes appear to have been chosen by the people of each quarter, and for about thirty years there were remains of this popular election. But the council had the absolute nomination of all other ojfices, and its members soon usurped the power of rejecting whatever names were presented as their successors ; thus rendering the annual election a mere form, and retaining the places of councillor almost entirely in the same hands. The council had thus almost come to be jDermanently hereditary in fact long before it was made so by law. This step was taken a century and a quarter after the creation of the council, and it was taken in consequence of an attempt made by the people to regain their share in the election of the doge. The attempt failed by the cowardice of Tiepolo, whom they chose, and who fled before the steady determination of the grand council. They allowed the' popular ferment to sub- side by delaying the election for a few days after Tiepolo's flight, and then chose Gradenico, who seconded the efforts of the aris- tocratic party ; and in 1297 it was declared by law that none should be excluded at the annual election but those who had done something to render them unworthy of a seat ; that the grand council of forty (the quarantie) should decide upon the exclusion ; and that whoever had twelve votes of the forty should be retained in his place. It was further provided that three electors should be annually appointed by the council to form lists of citizens worthy of being added to the council, the number to be fixed yearly by the doge and senate, and that whoever of the list had CH. XX. ARISTOCRACY — OLIGARCHY. 265 twelve votes of the forty should be elected. This provision was designed to flatter the people, to keep them quiet under the chanofe now niakins: in the constitution, and to conceal the transi- tion which was making, at least in the legal frame, and which in practice had been made already, from a popular to an aristo- cratic government. But next year a new law was introduced which completed the establishment of the aristocracy. It was provided that those only should be elected v/ho had previously been of the council or were descended from ancestors who had belonged to it. Thus an hereditary aristocracy was finally esta- blished. If no further change had taken place it was an oligarchy, not a pure aristocracy, for the supreme power was confined to a certain number of patrician families. But it has always been found more difficult to undermine the rights of the people, and by a succession of subtle devices to de- prive them of power, than to deceive the patrician body and endow a portion of them with the supreme authority to the exclusion of the rest. An abortive attempt in 1299, made by some of the plebeians to rescind by force the law of the preceding year and reopen the door of the council to their order, was succeeded ten years after by a much more formidable conspiracy of the excluded nobles, whom some of the most distinguished members of the council and a still greater number of plebeians joined ; and they were headed by a brother of Tiepolo, who had formerly been the object of the popular choice. The plot failed, and some of the ringleaders were put to death ; but it was so nearly succeeding, and it had so powerful a support, that the greater number even of its chiefs were allov/ed to leave the city in safety, and two ma- terial changes were made in the constitution, with the view of preventing the recurrence of a similar danger. The one of these was a law made in 1315, but completed in 1319, abolishing the three electors, and entitling every person who had either sat in the council, or was of a noble family, to become a member with- out any election, further than an examination of his qualification. This finally established the aristocratic constitution. The otlier change was the appointment of the celebrated Council of Ten, and this was effected the same year with the failure of Tiepolo's conspiracy, while the alarm was at its height which that event had occasioned among the whole patrician body. This council was at first named only for two months, with a commission to 266 GOVERNMENT OF VENICE. CH. XX. watcli the movements of the banished conspirators, and to prevent any renewal of their attempts. It was, in the strictest sense of the word, a dictatorship ; for it was vested with absolute power to arrest and punish summarily any nobles suspected of treason or felony ; to dispose of the public treasure, and generally to exercise all the powers of the grand council for the safety of the state. But armed with such authority, it became immediately a perma- nent body. At first it was continued for three years, with a pro- vision that each member should be re-elected or excluded at the end of four months; afterwards it -was adopted as an integral portion of the government, and, next to the grand council, it was the most important branch of the constitution. Indeed it may be regarded as having superseded the grand council itself, but for the control retained over it by that body continuing to choose it for short periods of time. Although called the Council of Ten, it consisted of seventeen members, all taken from the grand council and chosen by it ; ten, called the black {neri), from their official robes, and chosen at four meetings in the months of August and September — six, called the red (rossi), for the like reason, and chosen every four months, three at a time ; consequently the ten held their office for a year, and the six for eight months. The doge alone held his place in it for life, and acted as president. The whole members of the grand council were eligible, with one exception : two per- sons of the same family, or even of the same name, could not be chosen ; an example of the extreme jealousy of each other which j)revails among all the members of an aristocracy, as we have already had occasion to observe (Pt. ii. Chap. v.). The proceed- ings of the Ten were all secret ; the accused was not confronted with the witnesses ; he did not even know their names : the punishment of death was inflicted sometimes in public, sometimes secretly ; and then the body of the criminal was exhibited, or he was only announced as having been put to death. The members were not responsible for their conduct either individually or as a body, and from their sentences there lay no appeal. Though in general they acted arbitrarily and without any regard to law, they occasionally laid down rules for their guidance when they were apprehensive that they might be induced to review their decisions. In that case they sometimes fixed a time within which their sentence should not be changed, or determined the number CH. XX. COUNCIL OF TEN — INQUISITORS 267 of voices which must concur to alter it. Like all the Italian tribunals, it used the torture both to the party accused and the witnesses. As if the j^owers of this council were not sufficient to secure a viscorous administration, there were three of its members who in succession held for three months the office of inquisitors ; they could order the instant execution of any citizen not noble, and inflict upon the nobles themselves any punishment short of death : to inflict capital punishment upon a noble required the vote of the couDcil at large, and the presence of fourteen mem- bers. As might be expected, the existence of such a tribunal led almost from its creation to the employment of spies in an abundance, and with a reliance upon their information and in- ventions, unknown to any other system. It was not even necessary that the secret informer should be seen by the council or inqui- sition. Boxes (called Lions Mouths from their form) were placed in different parts of the city, into which any one might fling his denunciations. The keys of these boxes were intrusted to the inquisitors. The punishments ordered by the inquisitors were always inflicted secretly in tlie prisons. The Council of Ten, as might easily be foreseen, speedily usurped the whole authority and power of the government ; but, what could not have been expected, it never made any attempt what- ever to continue its existence and erect itself into a body inde- pendent of the grand council. On the contrary, when the grand council refused to re-elect it, which it might at any time do effec- tually by witholding the number of votes necessary to constitute an absolute majority,* the Council of Ten submitted, and a kind of interregnum took place, until the grand council thought proper to revive the governing body. This happened for the first time in the year 1580, and the last instance of the kind was in 1761, when the jurisdiction of the Ten was confined to criminal cases, and their power in other respects somewhat limited. With the exception of their never having continued their own authority, the relation of the Council of Ten to the grand council closely resembled that of the Committee of Public Safety to the National Convention in the French republic : and it secured to the state many of the advantages which France derived from that too celebrated committee. All plots, all attempts to plot against the * A majority of the whole members of the Grapd Council was requii'ed for the election of each of the Council of Ten. 268 GOVERNMENT OF VENICE. CH. XX. government were rendered impracticable by a system of vigilance, jealousy, spycraft, sudden arrest, and summary punisbment by wbicb, while it made every man suspect his neighbour, besetting and surrounding with peril all the common intercourse of social life, stifling the seditious purpose before it could find vent in words — an extraordinary degree of vigour was imparted to the adminis- tration of affairs both civil and military, foreign and domestic The continuance of such a constitution as the Venetian for so many centuries can only be explained by the constant watchful- ness of this dictatorial and inquisitorial body, the terror which its proceedings inspired, and the mutual distrust which they sowed universally among the citizens. It must, however, be added, that the body of the people, though excluded from all share in the govern- ment, felt this tyranny far less than the privileged classes ; and that the burthen of maintaining the public expenditure fell as lightly as possible upon the inhabitants of the city, the foreign dominions fully defraying it in all ordinary times. The aristocracy was po- pular at Venice ; the government was at all times beloved by the people. It pressed light upon them in every way ; its despotic powers were hardly ever exercised but upon the privileged classes ; and it was both successful in keeping the peace at home and in raising the name and extending the commerce of the people abroad. CH. XXI. DOGE — COMPLICATED ELECTION. 269 Ifr CHAPTER XXI. GOVERNMENT OF VENICE. {Continued.) Doge — Complicated election — Two objects kept in view — Neither attained — Ex- amination of the process — Fii'st object to prevent faction — Second object to prevent corruption — Jealous nature of Aristocracy — Limited power of the Doge — Ducal Oath — Officers to watch and punish the Doge— Avogadors — Doge's prerogative — Senate or Pregadi — Collegio — Judicial power — Quarantia — Offices filled by Commoners — Procurators of St. Mark — Savii— Provincial offices — Government of Candia. When" we have examined the structure of the Grand Council, and its committee the Council of Ten, we have in fact examined the whole effective portion of the Venetian government; the real power resided in those bodies, and all the other authorities of the state were subordinate. In considering these, therefore, we are rather about to view the arrangements, the details, by which the Grand Council and Council of Ten carried on the government, than to contemplate any other power in the state which could be said to have a substantive existence. It is, however, necessary to examine those nominal authorities, because they have at all times attracted the regards of political reasoners, and also because their structure is calculated further to illustrate the jealous character of the aris- tocratic system and the refinements of Italian polity. The first of the constituted authorities that claims our attention is the doge, once the master of the state, but ever since the creation of the grand council in 1173, an officer of rank only, with no real power and very little influence of any kind. The choice of the doge, was, as we have seen, at first entrusted, for once only, to a committee of eleven ; soon afterwards the Grand Council assumed it permanently, appointing first twenty-four, and afterwards forty of its members, from whom eleven electors were chosen by lot. But in 12-19 a new and very complicated manner of exercising this elective power was devised, which continued to be -practised as long as the republic lasted, that is till the year 1 798. First 270 GOVERNMENT OF VENICE. ^ CH. XXI. of all, thirty of tlie council were drawn by lot, and these again were reduced by lot to nine, who selected, by a majority of seven at least of their number, forty of the council, and those were by lot reduced to twelve. These twelve elected twenty-five of the council, which were reduced by lot to nine, and the nine selected forty -five, of whom eleven drawn by lot selected forty-one of the council to be electors of the doge. A majority of twenty-five of these electors was required to join in choosing the doge. The prevailing view in this combination of choice and chance must have been twofold — to prevent the combination of partisans and thus neutralize or weaken party influence ; and to prevent the knowledge of the parties who should elect, and thus firustrate or obstruct the exercise of bribery or other undue influence. The first of these objects could not be at all secured by the contrivance ; the second could only be most imperfectly attained. 1. In order to try its effect upon party, we must suppose two or more factions to divide the great council ; suppose, too, an aristocratic, which for shortness we shall call the Whigs, and a monarchical, the Tories, and first suppose them unequal in the pro- portion of two to one. The chances are that the first lot gives twenty Whigs to ten Tories, and the second six Whigs to three Tories. As seven must then concur to choose the forty, it is certain that the minority may make terms ; but nothing can be so impro- bable as that they should obtain, by holding out, any proportion of the forty which could affect usefully for their purpose the next or fourth operation, the lot reducing the forty to twelve ; for unless they get so many of the forty as to give them a fair chance of having seven out of the twelve, they do nothing, a bare majority of the twelve being enough to choose the twenty-five by the fifth operation. The twenty-five, then, will be all Whigs, and so will of course the nine to which they are reduced by lot. These, by the seventh operation, will choose eleven Whigs, whom the lot re- ducing to eight, these eight will choose forty-one, all Whigs, twenty- five of whom will, therefore, by the tenth and last operation, choose a Whig doge. In fact, the whole result is certain, notwithstand- ing the complication, after the two first lots ; and the complication then becomes useless. These two lots make it a chance who will have the choice of doge, and make it possible that the minority should choose him — make it even possible, though not likely, that CH. XXI. COMPLEX ELECTION OF DOGE. 271 if the council is divided so as to have four Whigs for one Tory, the small Tory minority should choose him. If by lot seven Tories and two Whigs are found among the nine, this is inevitable. It is the result of the chance which presides over the first operation, and all the subsequent complication cannot counteract it. If there is any advantage in a scheme which makes it possible for a small minority to bind the whole body, this is secured, but it is secured by the lot, and not by the combination of lot and selection. — Again, if parties are very nearly balanced, the lot may give one the free choice ; but it may also give a narrow majority of the nine ; in which case the Tories might obtain a large minority of the forty. But this would be wholly unavailing unless the next lot gave them a majority of the twelve, because a bare majority of these choose the twenty-five. Therefore the only effect of the complication here is to introduce a second chance, which the ma- jority of five to four in the nine would probably struggle to make a small chance by not allowing any considerable number of Tories to be of the forty. It is quite clear that in every possible case, and whatever division we suppose to exist in the council, there is an end of all doubt and an end of the whole operation as soon as the twelve are chosen. For a bare majority of these twelve de- cides the election, and the remaining five operations are absolutely thrown away. Thus the only possible effect of the contrivance in preventing the combinations of partisans is the introduction of chance by drawing lots for one of the electing bodies. As the absurdity of choosing the doge by lot would have been too glaring, the lot is only applied to the choice of electors. But as far as it is intended to prevent faction from interfering, the choice of the doge depends upon chance, that is, the lot decides from what party he shall be taken. The complication of the process mani- festly has no effect at all. Nor can the effect even of the lot very materially obstruct the operations of party ; the factions will alw^ays be represented in the thirty first drawn by lot, and all their intrigues will be practised, only within that narrow range, instead of having the whole council for their field. The history of election committees in the English House of Commons proves how impossible it is to exclude party from a much smaller number of persons chosen by lot. 2. It may be admitted that the lot threw some impediment in 272 GOVERNMENT OF VENICE. CH. XXI. the way of coiTuption and intimidation, preventing those undue influences from being used towards the gi'eater number of the council. When, however, the thirty were once drawn and then reduced to nine, it is not easy to see how those nine should be exempt from the arts of the candidates. Even if they were to vote secretly, the bargain might be made by the candidate or his party, that the bribe should only be paid if earned, that is, upon the final election taking place. If we suppose seven of the nine to be thus bought, it is clear that they could secure the event by choosiDg as many of the forty as made it certain a majority of the twelve should be friendly, and then the election was certain, always supposing as we have done throughout, that there were a sufficient number of sure voters in the council itself; and we shall presently see that numbers and the dependent circumstances of most of its members after the earlier times of the constitution, always secured the existence of many voters ready to take any part. The obstruction given to bribery and intimidation, be it greater or less, was plainly confined to the first operation of the lot. It is not possible to understand how the combination of choice and lot, in a word, how all the subsequent operations, could increase the difficulty of bribing ; but it is manifest that the necessity which the contrivance created of finding voters at each stage of its operation, in the Grand Council, extended the field of corruption. Each time that any new voters were to be selected, as the twenty-five, the forty, the forty-one, it became necessary to corrujot or intimidate those who were thus chosen ; and there would have been much less of those undue practices required, had the operation been confined to a choice of the doge by the first thuty upon whom the lot had fallen. In one respect it may, perhaps, be supposed that the compli- cated contrivance has a beneficial tendency ; the repeated choice, and in two iu stances by greater numbers than the bare majority, may be conceived to secure fuller dehberation, and to give the mmority some influence, some power of effecting a compromise. But, then, the admixture of chance by the several times the lot is interjoosed can have no effect, except to disturb the process of selection ; and a single choice, by a defined majority, would pro- bably give as great a security against rash election, and as great a probability of a middle course being taken, as all the five selec- CH. XXI. RESTKICTIONS UPON THE DOGE. 273 tions of the system. The door which the lot opens for a minority of the electors by possibility determining the result is of itself a decisive argument against it, if there were no other. We may, therefore, confidently affirm that this contrivance, which has so often been vaunted as the perfection of skill, as a refinement in political wisdom only to be expected from the suljtle genius and long and various experience of Italian statesmen, is wholly undeserving the praise lavished upon it. There can be as little doubt that it abundantly proves the refining nature of these politicians, and illustrates the morbid jealousy, the ever- watchful suspicions of aristocratic rulers, — no sooner bestowing any power than they are alarmed lest it be used against them, — compelled to vest authority and discretion in some hands, and then fettering its exercise by checks, and not unfrequently seeking security against those checks themselves. The same spirit was displayed in the control provided for the exercise of the doge's authority, which presided over the nomina- tion to the office. He was bound in all things by the advice of tlie six councillors, called the red {rossi), who formed with him the signoria, or little executive council. Originally he had the choice of his councillors, the pregadi, as we have seen ; but about half a century after the revolution in the year 1229, the choice of the pregadi was vested in the great council ; and, their number being increased to sixty, they were formed into a Senate, six coun- cillors having ever since the revolution been assigned to the doge, who were chosen by the Grand Council, and only chosen for eight months, four going out every four months, so as to be con- stantly under the superintendence and control of the council. These six formed, also, as we have seen, part of the Council of Ten. Not only was the doge bound to follow the advice in all things of these six delegates and representatives of the great council, but he could not leave Venice without the Great Council's permission ; receive foreign ministers or open despatches, except in presence of the Little Council ; nor even have his effigy upon the coin, though it bore his name. It might have been supposed that the doge's authority was sufficiently controlled by this arrangement ; but this did not suf- fice. Before the revolution of 1173, and while the doge was a real monarch, the principal checks upon his power were the pro- mises which he made in the oath which he took at his election, PART II. T , 274 GOVERNMENT OF VENICE. CH. XXI. and which received alterations and additions almost each time the office was vacant. These promises were continued after the revo- lution, and even after the ducal power became a mere shadow. In 1240 they were formed into a kind of code, m one hundred and four chapters, and this code was continued during the rest of the thirteenth century. But the oath continued ever after to be taken, and it was, in fact, a renunciation of all power and prerogative. It bound the do2re to execute the decrees of all the councils, to hold no correspondence with foreign powers, not to receive their am- bassadors, or open their despatches, except in the presence of the little council, the six ; not even to open the letters of any of his subjects, but in the presence of one of the six ; neither to acquire nor to hold any property out of the Venetian territories ; and to permit none of his relations to hold any office whatever for his benefit, either within the territory or without. Adding insult to tyranny, this oath further bound him never to make any attempt at increasing his power, nor ever suffer any citizen to kneel before him or kiss his hand. At the same time with the formation of the senate (1229) five magistrates were created for the express purpose of receiving this oath at each vacancy of the doge's office, and of making, under the great council's direction, such additions as might seem necessary for causing it to be better observed. They were called correctors of the ducal oath {correttori delta promissione ducale), and three other magistrates were also created, called inquisitors of the late doge (inquisitori del doge defunto). Their office was to examine minutely the conduct of the late doge, and, comparing it with the laws and with his oath, not only to condemn his memory, but to fine his heirs in case he was found to have violated either. But the constitution did not trust to the effect of this post- humous inquiry, or exempt the doge, any more than his nominal subjects, from responsibility at all times. There were three ma- gistrates appointed for the express purpose of watching over all the laws, and restraining all violation of them, whether by the doge, or the nobility, or the people. These were termed avoga- dovs of the community {avogadori delta commune), and they were authorised to bring the conduct of the doge at any time be- fore the great council. All attempts at usurpation could thus be at once punished, by whomsoever made. In truth, the prerogative of the doge was reduced to little more than his rank and an inconsider- CH. XXT. DOGE S PREROGATIVE. 275 able patronage. The letters of credence to ambassadors and other similar commissions bore his name before the other authorities, though he was not allowed to sign or to seal them. The foreign despatches, which he was not allowed to open, were addressed to him. He presided in the councils, and had the right of proposing any measure without the previous assent of or communication with any other authority. The prebends of the Cathedral of St. Mark were all in his gift, as were the nominations to the knighthoods of the same order. His revenue was only 12,000 ducats, or 3500Z., which seemed to render the exemption of his family from all sumptuary laws somewhat of a mockery, the more especially as neither his sons nor brothers could fill any place of importance, nor were they allowed to receive from the pope ecclesiastical pre- ferment, with the sole exception of the cardinal's hat. Thus it might most truly be said, in the words of the old proverb respecting this unfortunate functionary, that he was a king in his robes, a captive in the city, a private person out of it {rex inj^UT- purd, in urhe captivus, extra urhem privatus). The saying adds that he was " senator in curia.'^ He presided in the pregadi, which, after 1229, became a senate. It very easily obtained the superintendence of all matters relating to trade and to the foreign affairs of the republic, and prepared all measures for the delibera- tion of the great council. But it was composed of sixty elected by that council, and as, in the course of time, it became customary for the Council of Ten, all the ministers, and the criminal council {quarantia), also to attend it, the consequence was that it really contained all the important members of the great council, and the most material deliberations of the government were conducted by it : in fact, it represented the great council. Thus in the pre- gadi resolutions were taken for making peace or declaring war, choosing councillors, appointing ambassadors, regulating trade, directing expenditure, imposing taxes. Its members in later times were about three hundred ; but the substantial power over its deliberations was of course exercised by the Council of Ten. The body next in importance to the pregadi was the college {collegio), of which the signoria, or the doge, and his six coun- cillors formed the principal members, though there were added about eighteen others, being the chiefs of the quarantia and the ministers of different departments. In the college all foreign ambassadors were received, and the despatches and the petitions T 2 276 GOYEKNMENT OF VENICE. CH. XXI. addressed to the government from any quarter were there read. It was understood to meet every morning. The judicial power was, very early after the revolution of 1173, taken from the doge. The criminal jurisdiction was in 1 179 vested in a council of forty, called the quarantia, or the old criminal council, to distinguish it from two others, also composed of forty each, and exercising criminal jurisdiction. All these bodies were chosen by, and out of, the great council ; their secretaries, as those of all the councils, might be commoners, and excepting the office of chancellor, the dignity of which was greater than its authority, these were the only places open to the commons at large. The chancellor was generally chosen from among the secretaries, and almost always a commoner. The old quarantia was divided into three departments, the chiefs of each of which sat in the college. The office most in request at Venice, after that of doge, was the place of Procurator of St. Mark ; these procurators were nine in number, and held their places for life. They had jurisdiction over charitable foundations, causes testamentary and tutorial, and kept the archives of the state ; they had also the power of protect- ing debtors from the extreme rigour of the law in favour of creditors. Their functions, and the tenure of their office, gave them considerable weight, and the doge was generally chosen from their body. Of the councillors, or ministers of different departments, some had, and others had not, seats in the college. The five ministers of the Terra Firma provinces (savii di terra firma) and the five ministers of marine {savii delle ordini) had seats in that body. But by far the most important offices under the republic were those of the provinces. In these the governors and judges were at all times Venetian nobles, appointed, and appointed only for a time, by the government — that is, by the ruling powers in the great council ; and three of them, the Morea, Candia, and Cyprus, were always termed subject kingdoms. The example of Candia will serve for the others also. During the four centuries that this fine island belonged to the republic, its affairs were ad- ministered by a chief governor (procurator-general), with four subgovernors {jproveditori) under him, for the four provinces into which the island was divided. Judges {rettori) were likewise sent from Venice, and each of them was assisted by two coun- cillors, natives of the island. The administration of the towns was CH. XXI. GOVERNMEisT OF CANDIA. 277 in tlie hands of the Candiotes, who formed the municipal councils. The Candiote nobles had feudal privileges ; but they were bound to have a certain number of militia among their dependents ready for the public service. This was reckoned at 60,000 ; so that the numbers of the people must have been then much greater than they are now ; for they are at present only estimated at 300,000. The wars with the Turks for the possession of Candia, in the latter part of the seventeenth century, are supposed to have cost the republic twenty -five milhons of ducats. 278 GOVERNMENT OF VENICE. CH. XX EI. CHAPTER XXII. GOVERNMENT OF VENICE. (Concluded.) Great vigour of the Government — Comparison of dominions with those of England — With those of Rome — Venetian tyranny — Examples: Carrara; Carmagnola; Foscari— Firmness and vigour— Military policy— Equalizing laws— Merits of the system — Provincial Government — Oligarchy substantially established — Com- parison with English Government— Scottish Parliament — Meanness and pride of Venetian Nobles— Improvements in modern times. We have now examined tlie details of this singular constitution, as far as it is at all necessary for understanding in what manner, and according to what arrangements, the sovereign power re- siding in the Great Council, and its committee, the Council of Ten, was exercised in administering the government. But we must never lose sight of the real and efficient ruler, the Council of Ten ; for that was at once the mainspring and the regulator of the whole machine. The Council of Ten, and the system which it administered, may be regarded as the natural and genuine growth of the aris- tocratic scheme. A government thus constituted must, as we have before seen, be subject to constant apprehension from two different quarters, the dislike or restlessness of the people who are excluded from power ; and the ambition, sometimes of the more powerful of the privileged class, sometimes of the others who are jealous of influence unequally distributed. Party being the constant attendant of aristocracy, unless it can find a vent, as in the representative system, it will work by intrigue and conspiracy. The constant alarms which this risk excites, and the constant desire to prevent any undue power being acquired by one or more of their own number, naturally gives rise to such jealous precautions as created and maintained the Council CH. XXII. GREAT VIGOUR OF THE GOVERNMENT. 279 of Ten. But it also in part owed its continuance to the necessity which every popular government, whether aristocratic or demo cratic, always finds inevitable, of supplpng the natural want of unity and concentration in the executive power. The Roman aristocracy early resorted to an occasional dictatorship), and con- tinued its recourse to this expedient when gradually mixed up with democratic institutions, sometimes by appointing a dictator, sometimes by arming its ordinary magistrates with dictatorial powers. The Athenian democracy would, in all probability, have much longer preserved its preponderance in Greece, and its independence of a foreign power, if its executive administra- tion had been in firmer and steadier hands. The Spartan aris- tocracy, which was paralysed by the want of an executive, hardly ever undertook extensive operations, and generally failed when it did. But both the Spartan and Athenian governments had recourse to expedients for preventing revolution ; the ostracism of Athens was dictated by jealousy of revolutionary attempts ; the impeachment for illegal legislation (y§a{pyj Traqa,- vo/xcvv) was the fruit of similar alarms, and of the people's dis- trust of their own fitness for self-government. But in Venice alone was the public alarm, the consciousness that it required something to obviate the risk of conspiracy, and supply the natural defects of popular government, reduced to a system ; in Venice alone was the dictatorial power made an integi^al part of the constitution, and the results of it are sufficiently remarkable. No government ever had so long a duration as the Venetian with so little of sudden and violent change, and so few shocks from attempted revolution ; nor is there any instance of foreign dominion being acquired and an influence sustained so dispro- portioned to the natural resources of the state. England herself, supposing her to possess at will the whole of her East Indian as well as colonial empire, has a population of about one-fourth part of her remoter subjects, and a mass of wealth incomparably greater than that of all her dependencies together. But Venice, with a number of inhabitants which never reached 200,000, perhaps never exceeded 150,000, had between three and four millions of people subject to her, not only possessed herself, from the beginning of the fifteenth century, of her rich Italian provinces in the Terra Firma — Verona, Vicenza, Padua, — but 280 GOVERNMENT OF VENICE. CH. XXII. had, from a much more early period, nearly all Dalmatia, had carried her arms by sea and land into the Eastern empire, taking its capital, Constantinople, and obtaining for her share two ninth parts of the remaining Latin empire —retained possession of the Morea for three centuries (from 120^ to 1492), and again took it from 1684 to 1715 — held Cyprus for a century (from 1473 to 1571), Candia for above four centuries (from 1224 to 1669), the Ionian Islands for an equal period — and gave such uneasiness and alarm to other states, that a grand alliance was formed to reduce her power by no less important monarchies than France, Spain, Austria, and the see of Rome. The commercial wealth of this extraordinary commonwealth no doubt furnished the resources which enabled its government to work such wonders ; but the frame of that government, so well calculated for the councils of deep, unscrupulous policy, and for prompt and vigorous execu- tion, must be allowed its full share of the m.erit, if conquests can ever deserve admiration ; and the extraordinary ability dis- played for so gTeat a length of time by the Venetian statesmen who administered its powers has certainly no parallel in the history of any other nation. Ancient Rome could alone have furnished one, and that only if the circumstances had been materially different in which her conquests were made, and if, instead of having in only one instance met mth an adversary equal in skill, she had, in all instances but one, been matched ao'ainst nations as far advanced in civilization as herself This was the case with Venice in all her wars, saving only those waged against the remains of the Latin empire. A system of polity which could thus unite lasting stability with extraordinary vigour, draw forth the resources of its subjects, in- crease them beyond what their nature seemed to permit, apply them with steady determination, and almost constant success ; which could train a succession of the ablest statesmen, while it fostered the enteiprises of the richest merchants, and controlled the am- bition of the one and the influence of the other so as to make both work as parts of the machine, without ever obstructing its operations, and render all men the mere instruments of the public aggrandisement, in which their individual importance was habitually merged, — presents no ordinary claims to our admiration. — " Has tantas vu^tutes ingentia vitia sequabant ; CH. XXII. TYRANNY OF THE GOVERNMENT. 281 mliiimana crudelitas, perfidia plusquain Punica, nihil veri, nihil sancti, nullus deonim metus, nullum jusjurum, nulla rellio-io'' (Liv. xxi. 4). — Nothing can be more profligate tlian tlie disre- gard of all principle, nothing more daring than the contempt of all engagements, nothing' more heartless than the cold-blooded and calculating cruelty by which the republic was ever ready to compass her objects, prevent opposition or extinguish it, and occasionally to seek, like animal instinct, for the gratification of revengeful passions, — as like an individual she yielded to alarm, and to the excess of fury which fear alone engenders. An aris- tocracy in fiill and uncontrolled dominion, subject to the pas- sions of the multitude, but pursuing their gratification with the determination of an indi\ddual, yet exempt from his responsi- bility, and able to keep itself in countenance because of its numbers, could alone have beeu able to do the mcked thinsfs Avith which all authorities have charged the Venetian govern- ment : things of which some were murders under the mask of public executions, — others, though committed in public, had not even the doubtful i^alliation of that pretext, — and not a few, being perpetrated in secret, may have been no better than common assassinations. When all that the people were suffered to see or to know was the strangled corpse of some obscure person, with an inscription that he had been put to death in the night for treason, and when the whole particulars were veiled for ever after in a secrecy which, if broken would have brought down the same fate on the councillor or the clerk, we can cer- tainly give no examples to illustrate what, if human nature were the same at Venice as elsewhere, must have been the inevitable abuse of powers so exercised. But enough remains on record of the more public transactions of the government to show how far men can go when they themselves form the public whose opinion alone they regard, and are subject to none of the personal responsibility which checks even the most absolute despots. The family of Carrara had been lords of Padua for nearly ninety years, and all Italy had produced no more gallant, ac- complished, or humane prince than Francis IT. When, at the beginning of the fifteenth century, the Venetians made war upon him as j)art of their policy, then turned towards obtaining do- minions on the mainland, he resisted the attacks of their merce- 282 GOVERNMENT OF VENICE. CH. XXII. nary troops with a far inferior force, and after prodigies of valour and of fortitude, in the midst of famine and of a pesti- lence such as perhaps never ravaged any other city,'"" he and his two sons were overpowered, and were made prisoners by acts ^f the most shameless perfidy on the part of the Venetian government, his other two sons having been despatched to Florence. The pregadi proceeded to try them, and it was expected they would have been banished to some distant fortress ; but the Council of Ten caused them all three to be strano-led in prison, and this after they had been honoured with a solemn public reception suited to their rank, and placed on the same bench with the doge. The signoria (or executive council) then offered a reward of 40,000 florins (equal in value to SOOO^. of our present money) to whoever would seize and bring to Venice alive either of the other two sons, and 3000^. for the assassination of either. It is honourable, perhaps, to the Itahans of the age that none ever claimed the reward. One of them died a natural death : but, twenty years after the war had ceased, when all revenge would have been extinguished in the bosom of any single tyrant, the implacable Council of Ten, having taken the surviving brother in an attempt upon Padua, put him publicly to death. A few years before this, Carmagnola, the most skilful general of the age, after leaving the Milanese service, had been twice employed by the Venetian government, and had gained for it the most important victories, which, after adding Brescia and Bergami to their dominions, encouraged them to meditate the entire conquest of Lombardy. After a peace, to which this ambitious lepublic reluctantly submitted for three years, they again made war upon Milan, and their great captain proved no longer victorious, though their chief disaster was the loss of a fleet, with the command of which he had nothing to do. He was invited to attend the senate (pregadi), that the conditions of a negotiation for peace might be discussed. Eeceived with the utmost respect, attended by a brilhant procession, he was placed in the seat of honour, and loaded mth professions of esteem and admiration. The consultation on which his advice was desired lasted till a late hour, and he was pressed to let his * Some accounts say that 40,000 perished of it in Padua ; and none rate the num- ber lower than 28,000. CH. XXIL CARMAGNOLA — FOSCARI. 283 suite retire for the night after the fatigues of their journey. No sooner was he left alone with the senators, than they ordered in their guards, who hurried him to prison and loaded him with irons. The pretext of this enormity was, that his late want of success had arisen from wilful neglect or treacherous disposi- tions. Next day he was put to the torture ; he suffered the more excruciating torment that he still had a wound open which he had received in the service of his savage executioners ; and the story ran that he had in his agony confessed the charge. What we know for certain is, that a few days afterwards he was publicly executed, with a gag in his mouth to prevent him from denying this imputation upon his memory. That such a body as the Committee of Public Safety, during the ferment of a revo- lutionary crisis, was capable of judicially murdering an unsuc- cessful general, and that the mob, of whom it was alternately the tyrant and the slave, were capable of ascribing any reverse of fortune to treachery, no one will think of denying ; nor would the infliction of torture have been spared at Paris, any more than it was at Venice, had such an atrocity formed part of the jurisprudence of the age ; and we may even admit that the gagging of the victim has not been without its parallel in the more recent scenes. But not even the tribunals of 1793 and 1794, nor the wildest and most savage of the mobs to whom massacre then became familiar, were capable of the cold-blooded plot which the regular government of Venice formed as an act of its ordinary administration, or of the consummate treachery Avith which the select body of its patricians all joined in carry- ing it on. A more signal proof cannot be imagined of the degree to which men banded in parties, and looking only to their own order, learn to lose the power of blushing as well as of feeliug. Francis Foscari had been doge during the brilliant campaigns of Carmagnola, and had by his councils been a strenuous pro- moter of the Lombard war, so long an especial favourite with the nation and its mlers. His popularity and an influence extraor- dinary in so crippled an office, but acquired by the talents, the courage, and the firmness which he had uniformly displayed, raised the jealousy of the senate and the Council of Ten, subjected him to an unremitting vigilance ; but nothing could be found in all his proceedings to justify a suspicion in a country where sus- 284 GOVERNMENT OF VENICE. CH. XXIl. « picion was fatal to its object. Of his four sons, one survived ; and against him, to the great joy of the council, a Florentine exile, settled at Venice, preferred in secret a charge of receiving some presents from one of the Yiscontis, enemies of the republic. He was put to the torture ; under its extremities he made a confession ; and he was banished for life. His wretched father, now in his eighty-sixth year, and bent down by family afflictions, was desir- ous of having his office taken from him, his oath and the law pre- ventino- his resignation ; but the Council refused him this favour, and insisted on retaining him in a position which every day added to his sufferings. One of the inquisitors of state was assas- sinated. Upon the mere suspicion arising from the son's ser- vant having been seen in Venice, both he and his master were cruelly tortured ; but no confession was extorted. The real assas- sin on his death bed confessed his crime ; but this could obtain no relaxation of the more severe exile to which Foscari had been condemned upon the suspicion now proved to be wholly ground- less. The torments he had suffered produced insanity ; he was suffered to revisit his family at Venice, but sent back to the place of his banishment the moment his reason returned. There he wrote a letter to the Duke of Milan and let it be seen, for the ex- press purpose of obtaining his recall to Venice in order to be tried for the offence. The inexorable Council recalled him, and when the cause of writing the letter was stated in his defence, they a third time ordered him to be tortured, in order to try if he would main- tain his story. He did so, was sent back to his exile, and as soon as he landed died of the agony he had endured. There being no longer any means of making the unhappy doge suffer through his family, the execrable Ten, now at the instigation of Loredano, a personal and hereditary enemy of the Foscaris, resolved to humble the old man by insults. They ordered another election and desired him to resign ; he pleaded his oath, and at length they removed him by a compulsory decree. The pubhc voice was raised in accents of indignation at such treatment, such con- tinued persecution of this venerable person, so long the favourite of his countr3rmen. The council issued a proclamation, forbid- ding all persons to speak upon the subject on pain of being car- ried before the state inquisitors. Foscari died suddenly, but it is supposed a natural death, at the moment his successor's elec- tion was proclaimed. CH. XXIT. ZENO — FALIERL 285 Of the government's jealous nature abundant examples have already been given ; nor did the former services of those who were the objects of its suspicions at all operate in allaying them, even where no apprehension of ambitious encroachment could be entertained. Carlo Zeno was the most distinguished person of his time, both for his great capacity, which had rescued the re- public from extreme danger, and as being one of the most irre- proachably virtuous of her citizens. He was accused before the council of having received a sum of about lOOl. from Francis Car- rara, whose accounts showed the payment merely, without stating on what ground it had been made. Zeno at once admitted the fact, but stated that it was in repayment of a sum he had lent Carrara while in banishment at Asti. His character made it im- possible for any of his judges even to charge him with corrup- tion, and yet they deprived him of all his employments, and con- demned him to imprisonment for two years, as if to punish him for having proved that their suspicions were utterly groundless. As a last illustration of the courage and confidence produced by supreme power being entrusted to a select body, or a party looking only to itself, and above all responsibility, may be given the proceeding against the celebrated Marino Falieri ; and it is an instance in which the conduct of the government may be con- sidered as free from blame. In this case the popular feeling was on the doge's side : his life's virtue had been attemj)ted by one of the chiefs of the council ; a most inadequate reparation had been made by the offender's colleagues ; the citizens, whose families had for some years been invaded by the young nobles in the same manner, made common cause with the doge : Ber- tuccio, a leading man among them, had himself suffered from the licentiousness and the insolence of these privileged intruders ; and the consequence was, a conspiracy formed to chastise the offenders and to overturn the aristocratic government which pro- tected them. The secret of the plot, however, was betrayed on the eve of its execution ; and the usual expedient of torture being resorted to, obtained a confession that the doge was implicated. He was brought to trial immediately before the Council of Ten- As there had been no instance of a doge being thus treated, the council called in as assessors twenty persons of the highest rank, and this sonta, or quinta, became a permanent body, as we have seen. He was condemned to death and executed, but with closed 286 GOVERNMENT OF VENICK CH. XXII. doors, as indeed the whole proceeding had been conducted in secret. One of the council appeared immediately at the window with the bloody sword in his hand, and informed the assembled multitude that "a gi'eat criminal had fallen by the hand of justice/'' The doors were flung open, and they saw the headless trunk of their favourite weltering in his blood. Now it may safely be affirmed that in no other government could the extraordinary step of putting the chief magistrate to death as a common culprit have been taken in this manner. There was no precedent of his being amenable to the law ; and though he undoubtedly was so by the constitution of 1173, the acting upon this for the first time without the presence of the public, and then executing the sentence upon a popular prince, in a cause known to be favoured by the people, showed a degree of confidence in them- selves and their order on the part of the Council, which we should in vain look for in any but an aristocratic government. A despotic court would have secretly poisoned, or secretly ba- nished or imprisoned, the powerful enemy whom it did not ven- ture openly to try and punish. A popular government, while in- flicting an extraordinary punishment, would have sought sup- port in publicity for its doubtful authority. The Council of Ten did not even fortify itself with the sanction of the body of which it formed a part ; but joining to itself a handful of leading men, tried, condemned, and executed the doge, and only let the people know of the proceeding after it was terminated. We have said that the course pursued by the Council in this in- stance was justifiable, always of course excepting the mode of trial and the torture, for which the judicial system was to blame rather than those who administered it. The disregard of the popular voice can certainly not be reckoned blameable ; on the contrary, it is entitled to great respect ; and the history of Venice abounds in similar examples, some of which show that the firm- ness of the Council saved not merely the established constitution, but the independence and the veiy existence of the republic, which the universal voice of the common people was prepared to sacrifice. When the Genoese, in 1379, had almost entirely de- stroyed the Venetian navy and taken Chiozza, the port of Venice, from whence the city was itself exposed to immediate and most imminent danger, the firmness of the doge and the government alone checked tho "universal panic which prevailed. The people CH. XXII. MILITARY POLICY. 287 insisted upon making peace upon any terms, and at once aban- doning tlie conflict ; the government resisted this base clamour, and a^ected to put a bold front upon the aspect of affairs ; yet so Avell aware was it of their desperate posture, that it secretly sent am- bassadors to accept any conditions, except such as should sacri- fice the independence of the republic. The refusal of this offer by Doria's haughty declaration, that " the Horses* of St. Mark must be bridled before the Genoese could treat for peace,'' at length roused the people to support the government, which had previously taken the determination (Hke that of the Dutch, in similar circumstances, three centuries later) to abandon Venice and seek a refuge in Candia. The consequences of the Genoese violence and folly are well known ; they were themselves, through the signal achievements of Pisani and Zeno, reduced in a few months to ask for the peace which they had before refused to treat of The jealousy of the Venetian government has been already remarked, as shown in all the arrangements of its structure, as well as in all its cruel treatment of individuals. But its most singular exhibition was in the military concerns of the state. Though early bent upon foreign concjuests, and having from a period before the formation of its aristocratic constitution al- ways held possession of distant territories, the republic never would have an army of its own citizens, nor even suffer a Vene- tian to command the land-forces employed in its service. Sol- diers were hired from the different Italian states, and Dalma- tians and Istrians also entered the army. No Venetian noble ever served in it ; no soldiers were ever allowed to enter the city, whether in peace or war ; and the general was always a foreigner, to whom there were assigned two councillors, as residents at his head-quarters, for the purpose of watching and controlling his operations, on behalf of the government whom they represented. Carmagnola's army consisted of nearly 2^^,000 of these condot- tieri, or mercenaries, and the forces employed in the Lombard war amounted in the whole to 1 8,000 cavalry and as many in- fantry. On the other hand, the navy was chiefly manned by Venetians ; and all their naval commanders belonged to the city. It seems as if the Council of Ten thought it could easily * The group of four brazen horses, one of the most precious remains of antiquity, forms the just boast of the Place of St. Mark at Venice. 288 GOVERI^JMENT OF VENICE. CH. XXII. cope with the ambition of any naval commander who should be raised to eminence by his services, but dreaded the conflict with land-forces ; or perhaps felt unequal to withstand the junction of a successful general with a victorious admiral. The jealousy of foreign influence arose from the same source — the fear of any citizen acquiring power dangerous to the state, that is, to the equality among the nobles, which all the arrange- ments of the constitution were framed to preserve. No precau- tions could prevent some from becoming wealthier than others, although their entering into trade was forbidden by law until the year 1788, when a proclamation encouraged their engaging both in manufactures and commerce. But the marriage of a noble, or the daughter of a noble, "with a foreigner, was at all times strictly forbidden. The apprehension of direct foreign influence likewise operated in the same direction. No Venetian could be a knight of Malta ; nor could any priest belong to any of the councils, for fear of papal influence. We have already stated, that with all its faults, and notwith- standing the cruel civ^spotism which it exercised over the nobles, the Venetian government had great merits as far as the people were concerned. No one under a certain rank was exposed to its suspicions and its oppressions, though any one, by becoming rich and powerful, became also the object of its vigilant superin- tendence. But that which deprived it of the most bTirthensome qualities of an aristocracy was the feudal attributes. No castles, no vassals, no territorial possessions either in the mainland or elsewhere, but enjoyed the same influence from their property with the wealthiest commoners. They had no doubt the protec- tion which belonged to their exclusive possession of the govern- ment ; but although at times (and we have seen one instance in considering the history of Marino Falieri) they availed them- selves of their favour with the tribunals to oppress the citizens, yet generally speaking they were far too jealous of each other to allow such unlawful proceedings, and they administered the government so as to control their own order and give satisfaction to the people. They were in no sense of the word an insolent and domineering aristocracy. The turbulence of faction was also in modern times httle experienced at Venice. During the eleventh century it had reached its height, and, as we have before seen, suspended the operations of the government in its provincial CH. XXII. PRO VINCI AL GOVERNMENT. 289 affairs ; but after that time, and even long before the revolution which founded the aristocratic power, it had almost entirely ceased. ^ There is no instance of such a government having been so little a prey to party dissensions and intrigues. This can only be accounted for by the rigorous control which the Council of Ten habitually exercised over all who could enter into factious measures. The provincial policy of the government was in almost every respect inferior to its domestic administration, excepting always its treatment of the Italian dominions — those of the Terra Firma. The want of an army and fortified places in those provinces, as well as the natural hostility of the feudal nobles, made it neces- sary to take part with the people against the barons. Accord- ingly everything there wore a democratic aspect, as in Venice all was aristocratical. Hence the people regarded the govern- ment as their protector, and were ready to sacrifice their lives and fortunes " for St. Mark" (as the metropolis was familiarly termed), while the barons were reduced to insignificance, and humbled if not oppressed. In the remoter provinces it was widely otherwise. Though the republic maintained only a small military force to keep them in subjection, her navy was powerful, and the Greeks having a hatred and a fear of the Turks greater than any which Christian oppression could excite, the Venetians could always reckon upon their submission, and even upon their service in the militia. The provincial go- vernment of St. Mark, .then, afforded no exception to the position that commonwealths have in all ages been the most tyrannical of rulers. The senate was wise enough to leave the local administration in the hands of the natives when all the places of profit and power were engrossed by its own delegates. But with that single exception the unfortunate Greeks and Illy- rians enjoyed no consideration. Their markets w^ere subject to the most galling monopoly ; their agriculture was oppressed with heavy taxes ; the Venetian, whether noble or commoner, never thought of settling, but resorted to the province in order to make money by oppressing it ; and the general hatred of the Greeks as being corrupt, and the contempt of the Illyrians as being- barbarous, communicating itself to each individual, filled up whatever the government had left wanting in the measure of provincial maltreatment and vexation. The venality and cor- PART II. U 290 GOVERNMENT OF VENICE. CH. XXIT. ruption which marked the government of the eastern dominions, and which tainted the administration of justice as well as of political power, presented a singular contrast to the purity with which the city and the Terra Firma were always ruled. It remains that we observe how entirely the frame of the Ve- netian government conformed itself to the law which seems general in aristocratical systems, and became, in the natural course of things, an oligarchy. We have hitherto been considering that government as it orio-inally was formed, and assuming that its powers continued to be vested in the whole body of the nobles. By law and in theory, no doubt, they did so continue to the very end. But in fact, a great change had taken place, though so silently and so gra- dually, that it is quite impossible to trace it, or to point out the time when and the steps by which it was effected. At first it is probable there were few nobles excluded from the Great Council of four hundred and eighty, and that the whole body of the nobility consisted of no more than six hundred, if so many. It is certain that in those early times there were none of the class who did not possess sufficient fortime and weight to be really component parts of a patrician or aristocratic body. Several circumstances, however, concurred with the natural increase of their numbers and the accidents of life, to create a division of the order into rich and poor. It was very early held disgraceful for a noble to follow any profession but that of arms or public employment ; and as they would not serve in the land-forces, their choice was reduced to the navy or the civil service of the state. The law forbade the exercise of trade, and also prohibited their holding more than one office at a time. They were alike prevented from repairing their fortunes by foreign alliances ; and marriage with wealthy mercantile families was their only resource. Thus it happened that the numbers increasing to about thirteen hundred, many of them, invested with the whole privileges of their order were reduced to the lowest poverty, and led a miserable and dependent life, pensioners upon the charity of the state or serv- ing their wealthier brethren in almost a menial capacity. It was reckoned that no less than five hundred received public charity, and several hundreds besides had nothing that could be called an independent fortune. Yet all of these were in- scribed in the golden book like the wealthiest ; and all of them CH. XXII. NATURAL OLIGARCHY ESTABLISHED. 291 equally had votes in every one of the many elections which were continually going on to form the councils that administered the government. There were only about sixty families who really possessed sufficient influence ever to be chosen as members of the government from their wealth and rank — that is, from the number of years they had continued in such circumstances, and the number of considerable persons belonging to them, and of other but poorer nobles devoted to their interests. The general ex- istence of bribery and corruption of all sorts between a body of candidates and a body of voters thus constituted may easily be imagined. The original body of nobility received very rarely any recruits. In times of great financial embarrassment nobility was sold to the wealthiest citizens, but for a price so high that few could purchase it ; as much as 100,000 ducats, or 80,000^. of our money, was required to be paid, and in times when the value of money was twice as high as it now is. The nobles of the Italian provinces were never regarded as members of the order ; but in later times they were admitted on proving a noble descent for two centuries and the possession of an income from land of 1600^. a-year ; conditions with which very few could comply. Thus there was formed an aristocracy within an aristocracy, in fact an oligarchy — an hereditary body of sixty families, in whose hands the whole powers of the government were placed. Every one of the thirteen hundred was equally eligible to all offices from that of doge downwards, as every one could equally vote at all elections; every one could be procurator of St. Mark, governor of Corfu, of Verona, member of the Council of Ten, or Inquisitor of State ; but to such offices no one ever dreamt of aspiring, except about ninety or a hundred persons, perhaps not half as many, since only one of a house could hold some of the higher offices, and the accidents of health or incapacity would disqualify several of the select few. In this respect they accurately resembled our own nobility in England ; or rather, in this most material respect, the Venetian and the English constitutions, strange as it may seem, stood till very late times exactly upon the same footing. The chief power was vested in the House of Commons and those who elected it. Not supreme and unchecked, as at Venice, it was lodged in the privileged class and councils chosen by u2 292 GOVERNMENT OF VENICK CH. XXII. them, but still tlie chief power, and which, if exercised with firmness and union among those who held it, could not be resisted by the other branches of the government. The chief class which chose the House of Commons w£is a comparatively small number of persons. These had originally formed a kind of minor nobility, the freeholders, or persons holding imme- diately of the crown, and they had originally sat themselves in parliament, probably in England, certainly in Scotland, and not by their representatives. But to them were afterwards added the chief persons in the towns. By changes which took place in the fifteenth century both in England and Scotland, a portion only of the freeholders was allowed to retain the right of election, and the elective franchise was afterwards gradually restricted to a few of the burghers. Let us cast our eyes back upon the Scottish parliament, in which the resemblance to the Venetian aristocracy is the most striking. The commons sat in the same chamber with the peers, and orio-inally without any representation. The peers were the greater barons ; the commons the lesser or gentlemen. The rest of the community had no share whatever in the govern- ment, no political rights ; and except that the power of the crown was much more substantial than that of the doge, and that the clergy were not represented by the prelates, the govern- ment was an aristocracy of the same kind in its fundamental principles with the Venetian. The introduction of representa- tion took place in both systems, except that in Scotland a portion of the nobles continued to sit in person, while at Venice the whole of the councils became elective for a time ; and afterwards the great council, the body of electors, did little more than ex- ercise its functions of choosing the bodies by whom the govern- ment was administered. But this leading feature was common to both Scotland and Venice — the enjoyment of political power was strictly confined to a very small class of the community, the great body of the people being wholly excluded from the con- stitution. It is, however, to be observed that a considerably larger proportion of the people exercised the power of election at Venice, that is, had a share in the government, than in Scot- land. There were 1300 nobles, all equally entitled to vote and to be elected to every office and every council, nay, actuall}^ sitting in one of the councils. This formed about one in 115 CH. XXII. COMPARISON OF ENGLAND AND VENICE. 293 of the people. In Scotland before 1882 the number of voters was 4000, in a population of 2,360.000 — or one in 590 — five times fewer than at Venice. Even now the proportion is not three times greater than it was at Venice, between the privileged class and the wliole body of the people. But the resemblance holds not only with respect to the origin of the privileged class and its small proportion to the com- munity at large ; the manner in which it became divided so as to engender an oligarchy, and the quality in general of its mem- bers, were by no means so dissimilar as they might at first sight seem to be. In Scotland, as at Venice, the lesser barons became numerous by natural increase, and many of them fell necessarily into poverty. Take even the body of 4000 voters and compare them with the 1300 Venetian nobles, there will be found fully as great a proportion of the latter as of the former class in a mean and dependent condition. On the other hand the aristo- cracy within the aristocracy, the natural oligarchy, existed in as great perfection among our Scottish privileged persons as among the Venetian. Though all could by law be elected to parlia- ment and hold offices in the state, in practice there was an impassable barrier between the poor man and either parliament or place. The main distinction between the two systems was that all who could acquire very moderate wealth found among us no barrier excluding them from becoming electors ; having once become electors, they could overleap the second barrier by the further acquisition of wealth, but in this respect the two systems were alike. In one other material particular the ruling caste of the northern aristocracy is most honourably distinguished from its parallel in the south ; there may have been as much canvassing, bribery, corruption, and undue influence in Scotland as at Venice, but the voters, with all the pride of the Scottish character, were not slaves to that pride of family, so ludicrous if it were not so melancholy, which, while it prevented the high- born pauper from earning an honest independence, and taught him to look down upon the genius of his fellow-citizens, the most wealthy and enterprising merchants in the world, did not prevent the most ancient nobility of Europe * from seeking a discredit- * Of this there can be no doubt. The Venetian nobility goes back to the seventh century at least — probably to the sixth. 294 GOVERNMENT OF VENICE. CH. XXII. able livelihood by holding up a prelate's train, or bearing a rich lord's sword. In many respects, and among others in their mingled pride and meanness, and spirit of intrigue, the Venetian nobles con- tinued to the end of the republic such as the form and the prac- tice of the government had made them. But the progress of improvement had greatly mitigated the harsher features of their administration, as well as lessened the more profligate propen- sities of their character. The possession of wealth became a title to respect in all particulars ; the cultivation of letters and the liberal arts raised another description of men to consequence. Society gradually became somewhat more mixed ; and the nobles in the same proportion became responsible to public opinion. They still considered their own order to be the tribunal before which, whether as private individuals or as acting in the different administrative councils, their conduct was chiefly to be tried ; and therefore many things were done and many duties neglected which a differently constituted state would not have permitted. But the perfidious massacre of the Carraras, the offering rewards for assassination, the torture and banishment of Foscari, and even the execution of Marino Falieri, could no more have happened at the end of the 18th century at Venice, than the cruelties of Lauderdale and the profligacy of Charles could have been repeated, after having stained, and witliout any risk to their perpetrators, the period marked by Blackstone as the most perfect era of the English constitution. CH. XXIII. ITALIAN GOVERNMENTS. 295 CHAPTER XXIII. ITALIAN GOVERNMENTS— VENETIAN TERRA FIRSLA. Terra Firma — Feudal Nobility — Municipal Government in their hands originally — Podestas — Factions — Montecchi and Bonifazii — Adelardi and Salinguerra — Vivario and Vicenza families — Rise of the Friars — Their fanatical preaching and influence — Their usm'pation — John of Vicenza — Jordan of Padua — Ezzelino da Romano — His prodigious tyranny — Despicable submission of the People — His destruction — Submission of the Towns to others — Levity of Democratic Councils of Padua— Corrected by the Aristocracy — Municipal Governments — Anziani — Gastaldioni — Cane della Scala — John Galeaz Visconti — Democracy of Verona and Vicenza— Submission of the People to tyranny — War of Parties in Italy — Hired troops — Condottiei-i — Military operations — Surrender of rights by the People to Chiefs — Effects of Aristocracy, Faction, Tyranny, on the chai'acter of the People — Letters and the Arts. We may now proceed to consider those governments which aroFe out of the feudal monarchies. We examined the scheme of policy created in the Venetian islands in the first place, be- cause it is the only Italian commonwealth which never was subject to either the Gothic, the Frank, or the Saxon kingdoms, and which seems to have arisen directly out of the ruins of the Roman empire. But we have seen that it acquired, though at a comparatively late period, a footing on the mainland by the conquest of Padua, Verona, Vicenza, and Friul. We may there- fore now conveniently begin with considering the governments of the Terra Firma before this conquest by the ambitious and powerful city. The barons of Terra Firma were distinguished from those of the other Italian districts by a very important peculiarity. Their possessions extended so as to come into the immediate neighbourhood of the towns ; but the country was mountainous, bold, and difficult; and hence their castles were much more independent of the burgher power when that rose, as we have shown it did generally, in the twelfth century (Part ii. Ch. xix.). Those nobles, like the others, enrolled themselves among the 296 VENETIAN TERRA FIRMA. CH. XXIII. citizens of the neighbouring towns, but not, as elsewhere, in order to obtain protection either in their struggles with the sovereign, the prince, or great feudatory, or as against the civic power itself On the contrary they early conceived ambitious designs upon the independence of the towns, and besides enrolling themselves, they built palaces within the walls and fortified them so as to make each house a castle. In Ferrara there were not fewer than thirty-two such fortresses within the walls. At first they remained united amongst themselves as against the burghers, obtained possession of all the civic ofiices, kept all the power in their own hands, and domineered over the citizens. But, as always happens in aristocratic governments, party spirit soon gained admission, and every town was divided between two contending factions. There is nothing more singular in the history of the Italian republics than their at first violently opposing Frederic Barba- rossa upon the substitution which he aimed at, of podestas for consuls, and afterwards, when they had successfully resisted him, adopting that institution voluntarily, although their repug- nance to it and to giving up their consuls had really been the main cause of the quarrel, the chief ground of the contention with him. These podestas were always foreigners ; the nobles had the choice of them in the Terra Firma cities ; and neither party could trust the important functions of the office to an adverse partisan connected with the place. The podesta both com- manded the forces and presided over the distribution of justice ; and he brought with him a body of his own followers to give his administration weight, as well as to provide for his own security. These arrangements were willingly submitted to by the people, because they found in them the only means of quell- ing the fury of the aristocratic factions, and securing the great object of a tolerable police. The choice of consuls had been much more in the hands of the people ; the podestas were almost always named by the select body, the credenza, or the senate ; substantially by the nobles. But they exercised their powers with vigour, and made examples of all who committed acts of violence, without regard to their station. Indeed their administration of justice was much of a military or dictatorial character. They were quite independent of both the people ,CH. XXIII. FACTIOUS DIVISIONS. 297 and the nobles ; whereas the consuls had always been more or less under the influence of then- fellow- citizens. The podesta never scrupled to arrest a refractory noble, appeal for help to the body of the citizens as well as to his own followers, put to death any one committing treason against the community, and rase his fortified house or castle to the ground. The people willingly purchased, by a sacrifice of their own power, this relief from the outrages of the contending factions. Sometimes each party chose one podesta, and these two joined in choosing a single podesta. At Verona the two parties were the Montecchi (who were Ghibellines or imperial) and Bonifazii, sometimes called Gapeletti (who were the papal or independent party), and they commonly joined in the choice of a podesta. The parties in most of the cities were denominated, as we have seen (Part i. Ch. XVIII.), either from some nickname, or from the leading family of each. At Verona the two families were the Montecchi and Bonifazii, and their memory has been preserved by our Shakspere under the names of Montagu and Capulet. The same arrangement took place at Ferrara as at Verona, the Adelardi, Avho were Guelfs, joining with the Salinguerra, the Ghibellines, in the appointment. At Vicenza the parties of the Vivario and Vicenza families commonly joined in naming a corrinfiissario, and he chose the podesta ; but at one time each party chose its own podesta. It is needless to observe, however, that in many instances the violence and profligacy of the factions became an overmatch for the podesta's authority, though backed by the aid of the citizens at large. In Ferrara one quarrel of the two leading families about the marriage of an heiress kept the republic in a state of constant civil war for forty years, from 1180 to 1220. During that period the city was no less than ten times exposed to the proscriptions, the pillage, and the destruction of houses con- sequent upon each reverse that gave the victory to one or other of the factions. In the two other Guelf towns, Vicenza and Padua, a tempo- rary change took place soon after this time, and extended itself also to Verona, the chief Ghibelline towTi in the north-east of Italy. The fanatical preaching of the Franciscan and Dominican friars, whose order had recently been established, obtained them extraordinary influence with the multitude. They used this to 298 VENETIAN TERRA FIRMA. CH. XXIII. inveigh against a luxury which had really no existence, the manners and habits of all classes being of extreme simplicity ; but the ascetic life which the monks and hermits practised made the most ordinary indulgences appear excessive. They did a far better ser\TLce to humanity by opposing with their utmost zeal the bloodthirsty and turbulent habits of the rival factions and rival towns, and endeavouring to put down all private war. But their most favourite object was of a very different descrip- tion the establishment of inquisitorial tribunals, and associations for the extirpation of heresy by fire and sword. The zeal of the crusaders appears never to have taken this new direction. John of Vicenza, one of these Dominicans, distinguished himself chiefly by the more holy of these works— the preaching of peace. He obtained so great an influence, not only with the people, who had always hated the wars of the patrician factions, but even with the nobles themselves, that they took the oaths of peace which he presented ; and the magistrates of the principal towns called upon him to reform their municipal statutes, in order to repress more effectually the outrages against which he had inveighed. Padua, then the most powerful of the common- wealths in the March of Treviso, Vicenza, Verona, Treviso, Belluno, all submitted to his legislation, as did also Mantua, Brescia, and Bologna, cities not in the March. Encouraged by his success, he convoked a general meeting of the inhabitants of the towns, to hear the blessed doctrines of peace preached. It was held in the plain of Pasquara, near Verona, and is said to have been attended by above 400,000 persons, who flocked to it under their prelates, nobles, and magistrates from Bologna on the south, to Acquileia on the north of the Adriatic. Moved by his eloquence, and by the novelty of being thus addressed with scriptural texts, and vehement exhortations by learned men,* * The remains which have been preserved to us of the sermons that produced such marvellous effects are mere strings of texts, accompanied by the most homely remarks in no great number. The language chiefly used was Latin, which the people generally understood, though they could not speak it. Frequently the preacher made his commentary also in the mother tongue, then beginning to acquire form and symmetry. The usual operation of a vehement manner must have combined with the as ordinary influence of a numerous crowd to produce the effects which all the authorities ascribe to the exertions of those preachers, not only in leading multitudes, but inducing men of all ranks to obey their injunctions, making most governments submit to their arbitration, and leading barons to quit tlui world for the liermitage, and even princes to seek the cloister. CH. XXIII. RISE AND FALL OF THE FRIARS. 299 the assembled thousands entered into the pacification which he enjoined, under threat of the heaviest curses ; and the famihes of D'Este and Romano, the leaders of the most turbulent of the factions, ratified the treaty by a marriage which he dictated. Whether it was that the success of this assembly filled the preacher with an am])ition of the more ordinary kind, or that his real views had always partaken of the secular nature, and that he now found the moment opportune for realizing them, certain it is that he who hitherto had confined himself exclusively to his lioly ministry, all at once assumed the attitude of a temporal chief; and after spreading abroad the fame of many miracles which he pretended to have wrought, he obtained the ready assent of the municipal council, first of Vicenza, and then of Verona, to the assumption of supreme power, as duke and count, in their commonwealths. The multitude in both towns manifestly overpowered the patricians, both hurried on by the influence which he had acquired over them, and seduced by his promises to curb the aristocracy, and distribute the ofiices and powers of the community more equally. He made many new laws, which gave little satisfaction; he, however, checked the barons by obtaining hostages for their pacific conduct, and he garrisoned some of their castles with the public force. But his usurpation was attended with the most odious persecution. At Verona he condemned many persons for heresy, and caused sixty, all members of the first .families, to be publicly burnt. Meanwhile another monk, Jordan, a Benedictine, had obtained nearly as great power, and by similar means, at Padua, though he never assumed the title of sovereign. Excited by his remon- strances, the Paduans attacked Vicenza, liberated the inhabitants from the tyranny of John, and after taking him prisoner, only gave hitn up at the Pope's intercession, on his exihng himself, and taking refuge in his original obscurity at Bologna The flight of the monkish ruler restored the domination of the nobles at V^icenza, and brought back a still worse curse than Friar John had proved to Verona. Some years before, in 1225, the senate of that commonwealth, a body of eighty nobles, annually chosen by their own body, had been returned entirely under the influence of the Montecchi party, and the Guelfs had been driven away. Eccelino, or Ezzelino, da Romano, the Ghibelline leader, 300 VENETIAN TERRA FIRMA. CH. XXIII. prevailed on tlie senate to create for him the office of captain of the people, and under that title to appoint him podesta. At first he made no change in their institutions, bat in a few years he was allowed to introduce an imperial garrison into the town as the most effectual means, it was represented, of maintaining the ruling faction and " keeping out'' the Guelfs. He soon obtained the most absolute power in Verona. The other towns, though under the influence generally of some one powerful family, had not as yet given themselves hereditary princes. The government in each of them was really possessed by a few of the nobles, to whom the others were as submissive as they were tyrannical over the vassals on their estates, and over the common people in the towns. In those places where a single family possessed the chief influence this abject submission was shown towards its chief But in all of these republics the intrigues and contentions of parties were uninterrupted, and the councils of the community were fluctuat- ing and distracted. The Marquis D'Este had been made chief {rettore) of Vicenza ; but, without consulting him, the Yicentines and Paduans joined in an attack on Verona. Ezzelino, at the head of the imperial troops, took Vicenza, and treated it like a town that had been stormed. The Paduans put D'Este at their head, and placed the government in the hands of sixteen nobles, who proved cowards and traitors, first flying to their castles, and then, on their return, delivering over the town to the Ghibellines. Ezzelino thus became sovereign under the Emperor of Padua and Vicenza, and introduced an imperial guard into those towns as he had done into Verona. He began by destroying the resi- dence of every noble in the town who had opposed him ; and one half the places or castles of Padua are said to have been rased by him to the ground. It appears certain that Ezzelino exceeded, in the cruelty of his ferocious reign, all the atrocities of the other tyrants whose history has reached us, either in ancient or modern times. That he put none of his victims secretly to death, if it were true, which there never could be any means of ascertaining, would only show that his audacity and contempt of all men's feelings kept pace with the relentlessness of his savage nature. Murders were openly committed by his orders, sometimes by public ex. ecution, sometimes accompanied with torture, sometimes by CH. XXIII. TYRANNY OF EZZELINO. 301 walling up the cells of his victims and leaving them to perish of hunger, and so near the street that the air was rent with their cries. His own nephew was among the number whom he de- stroyed, having first starved to death the young man's uncles, barons of Yado. His practice was to imprison, frequently to kill, the relations and friends of the parties on whom his ven- geance was wreaked. Once he put to death the whole of a numerous family who had been his most devoted adherents, and their offence Avas that one of them had married a Guelf. When Padua was rescued from his gripe, he revenged himself upon all its inhabitants who happened to be in his army. These, to the number of 11,000, were dispersed in small bodies and massacred, only 200 having escaped. When at length he was overthrown, his prisons were found filled with many hundreds of victims of both sexes, and many children among them, whom the monster had caused to be blinded and otherwise mutilated. His lieu- tenants, whether the podestas whom he appointed in the towns, or the officers whom he placed in the castles of the subject barons, were to the full as bloody-minded as himself, if they had less audacious courage. One of them put a whole audience of persons to death for having applauded some verses which he supposed contained a dark allusion to the tyrant. Nothing can be more disgraceful to human nature than the length of time during which this execrable fiend was suffered to outrage humanity. Full two-and-twenty years elapsed after the capture of Padua, when he perfidiously seized and impri- soned twenty of the noblest Paduans, as well as friar Jordan, the favourite of the people, and began to pull down the castles of every one who fled from his cruelty ; and during that long period nothing like an insurrection of the people, nor any con- spiracy of the nobles, can be traced to have taken place. One attempt only was made to destroy him ; and one to destroy a creature of his whom he had armed with his delegated tyranny, nature and education having already qualified liim to represent his master. A noble prisoner, brought before Ygna, the podesta of Yerona, rushed upon him and stabbed the wretch to the heart before the guards could cut his destroyer in pieces. This passage is said to have occasioned the Italian proverb, which purports that whoever sets no value on his own life is master of 302 VENETIAN TERRA FIRMA. CH. XXIII. the king's. It was a crusade preached by the pope against the common scourge that finally raised a sufficient force to destroy him ; and the singular courage and capacity of the man made the event for some time doubtful, the first symptom of defection from him that he ever experienced having been on the morning of the day he received the wound, of which, being taken pri- soner, he refused to be cured, and died fiercely and fearlessly as he had lived. All the commonwealths which Ezzelino had enslaved now recovered their liberty, but only to lose it some years later, though to less oppressive masters. Verona made Martino della Scala podesta, and thus laid the foundation of that principality. Vicenza placed herself again under the senate of Padua, which appointed her podesta, and also their own. Padua retained her constitution much longer, and it was always more or less popular during the remaining part of the thirteenth and a portion of the fourteenth century. The government was indeed at different times almost purely democratic, when the people so far pre- vailed over the nobles as to vest the whole administration in the companies of artizans. At the head of these were popular tri- bunes, called Oastaldioni. The senate itself then became a popular body, for it was composed of* citizens to the number of one thousand, elected yearly. The nobles, even those most eminent for their talents, were without discrimination excluded absolutely from all places of power or trust. Yet, with an in- consistency of which, except in the Italian republics, there are no examples, the people had no jealousy of the most powerful and ambitious family of all the nobles ; they had recourse to the Carraras as leaders against the rest of the patricians, and gave them a preponderance which enabled them, early in the four- teenth century, to possess themselves of the supreme direction of affairs. Nothing could exceed the levity and uncertainty "of the Paduan councils as long as this democratic influence prevailed. Vicenza threw off their yoke ; sought the protection of Cane della Scala (the patron whom Dante has celebrated as affording him refuge when banished from Florence), and, preferring the rule of an absolute prince to the tyranny of their Paduan neigh- bours, had vested in him the uncontrolled government of their state, and soon found him taking the usual precautions against CH. XXIII. PADUAN DEMOCRACY. 303 their fickleness, by introducing a foreign garrison, and maintain- ing body-guards. The Paduan democracy fluctuated between its hatred of Cane della Scala and its fears of the emperor Henry YII., then engaged in an expedition to recover the imperial authority in Italy. When they had resolved to resist the emperor they immediately took fright, and endeavoured to obtain peace. For this they had to pay in the harshness of its conditions. They then violated these, and recommenced the war. Against Delia Scala they raised the largest army that had in modem times been seen in Italy — 10,000 horse and 40,000 foot — ^but it remained inactive, and gained no advantage, when a pestilent disease, to which its ill- chosen position subjected it, rendered the whole design abortive. It was always remarked that when the errors, inconsistencies, and incapacity of the popular government had brought the state within a hair's breadth of destruction, the nobles were looked to as the only resource, and generally interfered with effect. Their party having obtained once more the superiority, the people turned their eyes towards the Carraras, who, in 1 314, headed a sedition against the ruling body, at the head of which were two wealthy men, self-raised to power from being citizens, yet supporting the exclusive or aristocratic policy. The old popular government was thus restored by the general assembly of the inhabitants. The administration of affairs was vested in eighteen senators (called anziani) ; these were to be assisted by tribunes (gastcddioni), and a foreigner was chosen podesta. The affairs of the commonwealth, however, prospered no better than before ; and an attempt to regain Yicenza was defeated with great loss. Della Scala threatened reprisals, and seemed prepared to besiege Padua ; and Jacob Carrara, whom he had made prisoner in the unsuccessful attack of the Paduans, having gained his confi- dence, is supposed to have obtained for his country the favour- able terms of the peace which was made, and no sooner made than broken by the restless government of Padua. Cane then attacked Padua in good earnest, but spared all the Carrara estates ; notwithstanding which, and the other manifestations of the secret understanding that prevailed between himself and that family, it continued as popular as ever, had exclusive pos- session of all the places of trust ; and its partisans, taking advan- tage of the desperate state of public affairs, assembled the senate 304) VENETIAN TEKEA FIRMA. CH. XXIIL and magistrates, and easily carried a resolution abolishing the democratic constitution and restoring the government in Carrara and his family. This happened in 1318. Four years after they found themselves unable to support their independence against the power and genius of Cane della Scala, who added Padua to his other principalities of Verona, Vicenza, Ferrara, and Tre- viso, and retained Carrara as his lieutenant in Padua. But the successors of Cane soon lost the power which his great capacity and o-ood fortune had enabled him to acquire, and a league formed against them by Florence, Venice, and other republics, alamied by the universal encroachments of the family, terminated in their losing the gTeater part of their principalities. At Padua, the Carraras, aiding the Guelf party, regained their authority, which they retained (with an interval of two years, when Vis- conti seized upon it) till, at the beginning of the fifteenth cen- tury, they were conquered, as we have seen, by Venice, which had obtained previously no other part on the mainland, except Treviso, ceded on the peace dictated by the allies to Della Scala in 1348.* John Galeaz Visconti (the first Duke of Milan) overthrew the remains of the Delia Scalas, and succeeded to the princi- pality both of Verona and Vicenza. Though the league formed against him succeeded in recovering Padua, which he had also taken, he retained his other possessions; and it was only during the minority of his sons, and the bloodthirsty and feeble re- gency of his widow, that Verona was taken by Carrara, and became subject to his government, and that Vicenza was given up to Venice as the price of her joining the regent against Carrara. The effects of the democratic government at Padua in dis- tracting the councils of the community, and supporting per- petual factious contests, have been already noted ; the same consequences were produced in the less important common- wealths of Verona and Vicenza. In all the three states, too, there was the same disregard of liberty on the part of the people, the same disposition to give themselves masters, so as they might only insure a triumph over some adverse party. At * In 1381, being attacked by Carrara, and unable to defend it, they sold Treviso to Leopold of Austria, from whom Carrara bought it soon after; and it came to Venice with the rest of Carrara's possessions in 1406. CH. XXIII. POPUTiAR SUBMISSION TO TYRANTS. 305 Vicenza the domination, first of the Scalas, then of the Viscontis, was welcomed as the means of avoiding a union with Padua under the mild rule of the Carraras, both from the natural antipathy to the Paduans and from the Ghibelline hatred of the Guelfs. When the Viscontis had, by the unexpected re- storation of Carrara at Padua, for a short time been overthrown at Verona also, and the burghers would have re-established the republican government, the populace insisted on taking back the representative of the Scala family, a child of six years old, and restoring its absolute sovereignty, without any condition or limitation. Francis Carrara himself was rescued at Padua with- out the least attempt at reviving the popular government, though circumstances gave the citizens the power of making whatever terms they chose. So when his father abdicated three years before, the forms of the old popular government were gone through, and the people stood by as passive spectators of a show. They were assembled in the old hall, where the former meetings had been held before the beginning of the century ; four senators, a gonfaloniere, and a mayor {syndaco) were ajo- pointed : into their hands the sovereignty was resigned, and they transferred it to the prince's son, without a moment's de- liberation, the people taking no more part than if there never had been a commonwealth in Padua. It is generally said that such was the effect of a tyi^annical government, at least of an absolute monarchy, which had for many years been founded upon the ruins of the republican or aristocratic constitution. But this will not account for the entire disregard of popular rights, and the proneness to choose a single master, which, long before the downfall of the Viscontis at Verona, the abdication of the elder Carrara at Padua, and the submission to the Scalas at Vicenza, had marked the con- duct of those republics. Seventy years before the abdication, and one hundred and twenty-eight before the downfall, the same indications had appeared on the part of the people, and the same conduct had been held by them. The misgovernment of the nobles, the maladministration of the popular bodies, above all the contests of the factions, were the real causes of the utter indifference with which the people had come to regard the changes in the dynasty, or rather of the inclination which they showed to have rulers who should give them some chance of PART II. X 306 VENETIAN TERRA FIRMA. CH. XXIII. escaping from the miseries they had so long and so largely en- dured. No one can suppose that, with their active and intelli- gent nature, the Itahans had ceased to take an interest in the management of public affairs. Even if the habits had not been formed, of mino-ling with every movement of the state as it were a private and individual concern, they were very sure to have interested themselves in whatever was passing, but much more when, for a long course of years, they had been constantly appealed to, sometimes for their active co-operation, alv/ays for their countenance and acclamation, by whatever power was ex- erting itself in each community. But then this state of things had been attended with most serious consequences to every member of society, not even excepting the humbler classes, over whose heads, in all other modern states, the storms of civil discord are wont to sweep innocuous. For the conflict of parties in an Italian commonwealth, and of different to^vns or commonwealths with ane another, was not carried on by one class only of the community, but engaged every description of the people. When the great bell tolled to intimate either that there was a revolt, and the magistrates must be supported, or that there was an invasion, and the citizens must defend their country, all were bound to join the standard of their quarter ; no delay was allowed, nor was any excuse accepted. A candle was sometimes lit under the gate, and before it burnt into the socket the citizens must be armed and in the field, and before the tolling of the bell had ceased. The only troops, however, on whom reliance was placed were the heavy-armed cavalry ; and the practice had become universal at the beginning of the four1;eenth century to have these com- posed wholly of foreigners. Before the end of the century it had been found that an ample supply of such hired troops might be obtained in Italy ; and, accordingly, there were cap- tains everywhere, who made it their calling to raise and train bands whom they hired out indiscriminately to all states and all factions. These condottieri also introduced another practice : the campaigns they carried on were marked with little blood- shed for the soldier, but, in compensation for this, the citizens and the peasantry bore the brunt of the war, and their indis- criminate pillage, as it was the great aim of the military move- ment, so it was the unfailing consequence of its result. CH. XXIII. EFFECTS OF PARTY CONTESTS. 807 The economy of every state was arranged with a view to the operations of this predatory warfare. The country was not studded with houses, or barns, or buildings of any kind ; all the peasants lived in villages, walled and fortified, and protected by the castle of the baron or his lieutenant. On the first alarm, all the cattle, and stores and implements, and moveable property of every description, were removed within the shelter of the castle. To overpower the whole country, scores of such places must be taken. There were in the Florentine territory three or four hundred such fortified villao-es or sing-le castles. Hence the in- vading army much more frequently rested satisfied with com- mitting as much havoc as it could in the deserted country, and taking as many of the castles as it could overpower by a sudden and unexpected movement. The instant that the place sur- rendered, every enormity was practised, as a matter of right and of course, upon the persons of the wretched inhabitants to whom it had afforded a shelter, and upon their property, which was given up to indiscriminate and unrestrained pillage. It is not to be wondered at that the people grew tired of con- tests which the nobility thus carried on for its own benefit, and at their cost. But it is certain that the remedy was a most ineffectual one to which they had recourse, that of giving up the government to the arbitrary disposal of a single chief ; and there were as many wars and as much suffering under the petty tyrants, as under either the aristocracy or the democratic rulers whom they superseded. Nor must we omit to mark the benefits which resulted from popular constitutions, with all their serious evils, and the mis- chiefs which accompanied the establishment of absolute princes. We have seen how ill the affairs of Padua were administered by the democratic government. Yet during the usurpation and tyranny of Ezzelino the whole industry and commerce of the state was, as it were, suspended ; and the half century which followed his downfall, though distinguished by constant errors and mismanagement of the public concerns, so that neighbour- ing powers could hardly tell in what the Paduan government consisted, was yet still more marked by the great and general progression of the people in every branch of industry, and in the acquisition of all kinds of wealth. The erection of a court in every city, with all its attendants of oppression, flattery, false- x2 308 VENETIAN TERRA FIRMA. CH. XXIII. hood, and subserviency, would have been a high price to pay for even the precious benefit of freedom from factious conten- tion and intrigue ; but these were not extirpated, they only changed their course and their complexion. We have already had occasion to explain the evils of petty principalities (Part I., Chapter XVIII.). It is impossible to rank among these any pe- culiar tendency to produce by far the worst vices which stain the character of Italian society in the middle ages, and especially in the fourteenth century — treachery and cruelty, the utter dis- regard of good faith, and of human life and suffering, which mark the conduct of all the wars and all the factious move- ments of the times. The hardness of heart produced by uncon- trolled power, the corruption engendered by the unalterable smiles of fawning dependents, the callousness to all sense of shame induced by party connexion and party hostility, are quite sufficient to explain the worst practices of the period, and they belong to the aristocratic fully as much as to the princely times. Assassination itself, the most atrocious feature in the aspect of the age, can never be a more natural product of any soil than of that in which slavish obedience to a master always in sight affords boundless supply of ready tools, and a selfishness fostered from the cradle makes every rival be regarded not merely as an enemy, but a wrongdoer. The constant agitation, however, in which these states were kept by their factions, their wars, and their rivalry with each other, both during the existence of their popular constitutions, and especially during the period which immediately succeeded under their first princes, had the effect of drawing forth genius, and promoting acquirements of every kind. The fourteenth century was distinguished from all that had preceded since the Augustan age, by its able statesmen and commanders, its culti- vation of the fine arts, and the great works of architecture which it left, and which continue still the admiration of man- kind. A more melancholy proof could hardly be given of the degree to which genius and activity may be perverted to useless, or even mischievous purposes, and of the possible disconnexion between the successful pursuit of the arts or of letters and the happiness of mankind. Succeeding ages have profited incalculably by the genius, the learning, and the taste which were awakened in those days ; but the bulk of the peoj)le have seldom been CH. XXIII. ARTS AND LETTERS. 809 more miserable than the contemporaries of Dante and Petrarch, Giotto and Cimabue ; while the great capacity of the Viscontis and the Scalas was the curse of their own age, and only benefited posterity by the patronage which men of letters obtained from their vanity, or from their poHcy of amusing the people whom they enslaved. 310 CxOVERNMENT OF GENOA. CH. XXIV. CHAPTER XXIV. GOVERNMENT OF GENOA, Early History — Pisan Alliances and Conquests — Constitution of 1096 — Aristocracy — Parties of the Nobles— Podesta — Turbulence of the Factions — Constant Revo- lutions—Companies of Arts — Credenza — Oligarchy established — Abate — Capi- tano del Popolo — W. Boccanegro's Usurpation — Genoese Fickleness and Factions — Party movements and Civil conflicts — Viscontis called in — Perpetual Revolu- tions— New Nobility ; their Power ; their Factions — Conflict with the old — Revolutions— French Conquests — Andrew Doria — Spanish Conquest— Doria's noble Conduct and Reforms — Final Aristocratic Constitution — Attempts to extin- guish Party — Alberghi — New Factions— Councils — Doge — Syndics — Inquisitors — Judicial Administration — Galling Yoke of the Aristocracy — Folly of the new Nobles and Plebeians — Oligarchical periods — Comparison of Genoese and Vene- tian Governments — Oligarchy of Genoese settlements. Although the Genoese were not, like the Venetians, entirely separated from the Gothic, Lombard, and French monarchies, they were nevertheless much less connected with, and dependent upon, those conquerors than any other inland people in the north of Italy. This exemption they owed partly to their situation, which was protected by the Apennines towards the land, and by the sea on the other side ; but they owed it in great part also to their poverty. Until the ninth century, when -they had made considerable progress in commerce, they displayed little to invite a conqueror ; their land and their waters were equally unpro- ductive ; and their magnificent harbour was really the only advantage which they could be said to derive from nature. Hence when the Lombards took possession of Genoa, they did not use much pains to maintain a strict dominion over it ; and though it was formed into a county by Charlemagne, and conferred by Pepin upon his kinsman Ademar's family, who thus held it for about a century, it asserted its independence upon the fall of the Carlovingian monarchy, deposed the counts, and formed a repub- lican government, upon the model which was followed by most of the Italian commonwealths in the dark ages. About the middle of the tenth century it had been taken and pillaged by CH. XXIV. EARLY GENOESE CONSTITUTION. 311 the Saracens ; but had soon expelled them, and taken reveno-e, by joining with Pisa in an attack u^on their colony of Sardinia, the sovereignty of which was given to the Pisans by the terms of their treaty of offensive alliance, the Genoese reserving the whole of the booty resulting from the combined operations. The possession of the island, however, was subsequently a bone of contention between the two states, and the Genoese frequently had a footing in it. Of Corsica they became possessed at the beginning of the eleventh century, and retained it till the latter part of the eighteenth, when it was given up to France. The constitution adopted in 1096 vested the supreme power in a senate of nobles, or rather in consuls chosen by and out of the senate ; for the senate appears to have been a council of these magistrates, and, if we may judge by the rare mention of it in early Genoese histories, a council of no great authority. The number of the consuls varied from four to six, and they were at first chosen for three or four years; but in 1122 the office was made annual ; and soon after they were divided into two classes, the one class having only the functions of supreme judges. When this division took place, the number of the con- suls was increased ; for those who had the political authority continued to be sometimes four and sometimes six in number. They exercised very extensive powers, having the whole executive government in their hands, unless when, upon important occasions, they assembled the people in a General Assembly or Parliament. They commanded the forces, superintended the execution of the laws, corresponded with foreign powers, and managed the ex- penditure of the revenues, rendering an account of their dis- bursements to the general assembly when they quitted office. The care of making alterations in the laws devolved upon com- missioners especially appointed for the purpose, and called cor- rectors {correttori), twelve or fifteen in number, and lawyers by profession ; but their office appears to have consisted mainly in adopting and applying the principles of the Roman law. Any constitutional changes were the work of the consuls and the people, influenced no doubt by the lawyers, who always had much weight, and always leant towards the arbitrary doctrines of the Roman imperial code. The judicial consuls were chosen by the seven companies (some accounts represent them as six, some as eight) into which the commoners were divided, and each ad- 312 GOVERNMENT OF GENOA. CH. XXIV. ministered justice to the body that appointed him. Each of the six quarters of the to^vn cho^ likewise an officer called captain, who was considered as bound to protect the commons of the quarter like a tribune ; for the jealousy of the nobles began to operate at a very early period, and not without cause. From the earliest time, the senators, the consuls, and all func- tionaries of any importance, were taken from the nobles ; and their ambition produced its wonted effects : they formed parties under the more powerful families, each desiring to obtain the undivided power by engrossing all offices, and especially by ex- clusively holding the consulships. The earliest division of this sort which is recorded was that of the avogadi and castri (or castelli), which went so far that the consuls were obliged to in- terfere, and allow them a time and place for terminating their differences by arms. When, however, the hostile meeting was to have taken place, the archbishop, with the aid of the magis- trates and the urgent entreaties of the people, prevailed upon the partisans to lay aside their animosity and swear to keep the peace. A government so feeble as against the nobles and their parties could manifestly not expect that such a pacification would long endure. Accordingly the history of Genoa for ages pre- sents a constant succession of violent scenes, from the outrages of the noble families and their adherents in their struggles for power, and their mutual efforts to gratify their revenge. The feature which all these confficts present of the successful party not only driving their adversaries from the country, but rasing their houses to the ground, indicates that each noble had fortified his mansion, and that the civic nobility, if they had fewer re- tainers than the feudal barons in the country districts, had as many castles. At the time when the singular pacification was effected to which wc have referred, the republic had been for about fifty 3^ears continually engaged in wars with the Pisans and the Barbary Corsairs. A universal relaxation had been the result, from the attention and the exertions of the government being so constantly directed to the foreign service of the state. The magistrates had no longer any authority ; the multitude was turbulent and rebellious ; all police was at an end ; disbanded soldiers in troops robbed upon every highway. The senate, as a last resource, sent for three hundred regular troops to perform CH. XXIV. FACTIONS AND TURBULEXCE. 313 the duties of policemen, and appointed three commissioners to bring malefactors to trial and punish them summarily. The severe examples which they made had the effect of restoring obedience to the laws ; but the nobles and their adherents con- tinued to set all law at defiance in their mutual contentions. About this period the intolerable evils of such a state of things gave rise to the substitution of a podesta for the consuls, he being a foreigner, chosen for a year, and almost always a man of rank and of some influence in his own country ; he was attended by two lawyers and by two gentlemen of the degree of knights, whom he brought with him. The principal advantage, however, in Genoa, as elsewhere, which the people derived from this magistrate, as compared with the native consuls,* was his having no party or family connexion, and being chosen only for a year, and without the possibility of acquiring such influence as to make him, or anv one else, ever think of extendino: his power or the tenure of his ofiice. He was not only the chief criminal judge, but the commander of the forces. A very few years only elapsed before parties of the nobles began their attempts to restore the consulship, in order that they might have an opportunity of obtaining the chief power, and overturning the popular constitution. Thus consuls were restored in 1182. Then the contending parties were marshalled under the Cortes and Voltas ; the former had such influence in the senate as to choose three consuls of their own house, and the latter flew to arms. Both these families fortified their houses, and carried on war openly in the streets of Genoa ; nor could anything quell the civil broils which were thus excited, but the war with Henry IV., in which the republic was soon after engaged. In the course of the next year the office of podesta was revived. It appears that the Genoese nobles early arranged themselves into companies as the artisans did in other towns. Of these companies there were generally eight,' each of which chose one councillor and a member of the credenza, whose office continued for a year. Its office was to assist, and of course to control, the podesta in his executive functions, and to superintend the revenue and expenditure of the state. This council was the only body which possessed any real power ; the popular assembly * When mention is made of the consular office being abolished, the political and not the judicial consuls are alone meant. The latter (consoli dei placiti) were always retained. SI 4 GOVERNMENT OF GENOA. CH XXIV. was only convoked occasionally, and never except by the exe- cutive government, seldom by that, unless in some pressing emergency of public affairs ; but the council was always in operation. The eight companies appear to have excluded all the families which had not been originally enrolled in one or other of them. Hence an oligarchy was in reality established, and the result took place which we have always observed in such cases ; the excluded nobles could not brook the monopoly of their brethren and peers, and were disposed to take part with the commoners in attacking them. Several attempts were made without success to destroy the oligarchical system ; and in 1227 a formidable conspiracy formed with this design failed. The select body being of the Guelf party, the Ghibellines aided their brethren, who were the excluded part of the aristocracy, and the civil war of parties v/as complicated with the less pernicious malady of foreign invasion. But the Guelf and the oligarch prevailed. It must be added, however, that the people had always an officer, called the abate, to watch over their rights and interests ; he had a kind of tribunitian power, and was elected by themselves. The origin of his office was the usurpation of Doria and Spinola as captains of liberty in 1270. To gratify the plebeian party and keep them quiet, they gave them this functionary. At length the people were induced to take an active part against the oligarchy. The excluded nobles pre- vailed on them to rise, and one of that class, William Boccanegro, who had played the part of a demagogue against his own order, was, in the heat of the sedition, chosen captain or podesta of the people (capitano del popolo), a new office, and which at a later period proved destructive of all liberty in other repul)lics, as we have already seen. They gave him, however, a council of thirty-two anziani, or senators, four from each company ; and if these were taken from the company of nobles, and not from the commons in their eight quarters, the proceeding must be ad- mitted to have been of a very moderate and judicious kind. However, whether the council thus appointed was of the select body or not, tlieir proceedings were framed upon the plan of the whole revolution which had been effected, and were dictated by its spirit ; for they immediately declared the captain's office to be for ten years, settled upon him a revenue of a thousand golden florins (equal to twice as many pounds of our money), gave him a body guard, beside an establishment of officers, and placed the CH. XXIV. BOCCANEGRO -FACTIONS. 815 office of annual podesta at his disposal, that functionary's powers being now, in consequence of the captain's prerogative, reduced to those of chief civil and criminal judge. Boccanegro soon began to grasp at still larger power ; to ex- tend his salary, increase his guards, and govern without the least regai'd to his council. But he also excluded the nobles from all places of trust and authority, and this raised a conspiracy against him, in which the people deserted their champion to join with their adversaries. After having been five years in office he was driven from it, and the old government was restored. The oligarchy therefore was continued ; and among the families who had any real power, four only are to be named, the Dorias, Spinolas, Grimaldis, and Fieschis. All the companies could belong to the council and could choose their representative in that body ; but the families who alternately governed the repub- lic were those four. The tvv^o former, being Guelf, generally were found combined, as were the two latter, being Ghibellines But frequently one afifected, and for a season obtained, supreme power, sometimes as captain of the people, sometimes as consul, and then the other would join the opposite faction; and all on both sides would appeal to the people. On one occasion, 1291, by the consent of the party who held the office of captain, the government was changed ; that office, being made annual, was declared only tenable, like that of podesta, by a foreigner ; and a provision was added that equal numbers of nobles and plebeians should always be placed in the other offices. The changes, and factions, and civil dissensions of Genoa, the turbulence of the nobles, and the fickleness of the people during the thirteenth century became proverbial, and were regarded, even in Italy, as a thing wholly without example But the fourteenth century opened with a scene unprecedented even at Genoa, and to which we may safely defy the whole his- tory of party to produce a match for its baseness and its folly, much as we have been accustomed to see party movements con- ducted on similar principles within the very narrow limits assio^ned to the enormities of modern faction. The Doria, or Spinola party, having gained the mastery over the Grimaldi and Fieschi, soon quarrelled about the sole possession of the prize— the supreme power. They went to war, and the Spinola had the advantage ; whereupon both the Grimaldi and Fieschi took part with the Doria ; and proving too strong for them, and after 316 GOVERNMENT OF GENOA. CH. XXIV. theii* united efforts had defeated and banished the Spinola, the Doria, too, retired and left the field to the other two. The Doria and Spinola were thus, in consequence of their former joint success, in joint defeat and exile — for in the Italian party wars, defeat, always involving military overthrow, implied the banish- ment of the survivors. Their common misfortune brought them again together, and they signalized their coalition by calling in foreio-n assistance, as did their successful antagonists ; the one sendino- for Visconti, the other for the King of Naples, to whom, jointly with the Pope, the people were pleased to give the lord- ship of the republic for ten years ; and the Visconti and see of Rome accordingly named them lieutenant-governors of Genoa as soon as the war was ended. This happened in 1331 ; and whether it be that a thirteen years' civil war, with foreign interference, had wholly exhausted the patience of the people — or that the Doria and Spinola parties, when exercising the office of joint captains, insisting to choose the abate, a plain usurpation upon the Commons, was a degree of tyranny not to be borne — or that a patrician faction inimical to the oligarchy was, as on the former occasion of the first captain's appointment, at the bottom of the movement — in 1338 a sedition was begun at Savona, where the nobles were all driven away, and two captains chosen, with a couDcil of twenty mariners, and this sedition spread immediately to Genoa, where the multitude chose Simon Boccanegro, first as their abate ; and when he objected that, his family being noble, he could not legally hold the tribunitian office, he was by accla- mation created doge, with almost absolute power ; and by his great decision and firmness, as well as the justice and moderation of his government, he appeared to justify this extraordinary proceeding. But he had removed all the nobles from office, and that body soon began to plan his overthrow. It was not, however, till 1344 that they could, bring together a force sufficient to defeat him. He at first agreed to such a change in the government as placed the whole power in the hands of a council, composed of half nobles and half commons. But he was then compelled to resign, and he removed to Pisa. A doge who united both patri- cians and plebeians in his favour was then chosen ; but the Spinolas took arms and fortified themselves in the suburbs and on the hills, many of the people taking part with them. A sedition against the nobles again began at Savona, and again extended CH. XXTV. CRIMES OF PARTY. 317 itself to the capital. The doge, with the concurrence of the people, banished all the senators of noble family, and ordered a general disarming of the patricians by a search in all their houses. Both parties now agreed that all their differences should be sub- mitted to the arbitration of Yisconti, then lord of Milan ; and he awarded that all the exiled nobles, with one or two exceptions, should be recalled. Soon after this transaction the Genoese fleet sustained a general and nearly fatal defeat in Sardinia, in the war against the Pisans and Catalans. The courage of the people was completely cut down, and all the attempts of the Florentine allies to make them bear up against the blow were ineffectual. The whole commu- nity appeared utterly disheartened ; and when the senate, calling together an assembly of the people, proposed to place the repub- lic under the protection of Yisconti, the measure was received with unanimous and hearty assent. Visconti readily accepted the office, dethroned the doge, and appointed a governor. The senate next year chose his nephew to succeed him ; and the Viscontis having exasperated the nobles by their arbitrary pro- ceedings, the people joined in restoring the former government, and Boccanegro was brought back as doge from the exile in which he had lived for fifteen years. It would answer no good purpose to follow the dull, monoto- nous course of the Genoese revolutions which generally ended in giving power to a foreign state ; and always evinced, both in the conflicting factions of the patricians and in the unsparing and unprincipled hatred of the people towards the nobles, an utter disregard of all duty to the country, and a constant readi- ness to sacrifice at one time the liberties of the community, at another time its independent existence, for the poor satisfaction of gaining some triumph over an adversary, or exalting a friend at his expense ; a degTee of baseness hardly exceeded by those wretched beings who in other countries have been found capable of plunging their country into all the horrors of war that their hold of place might be made more secure, or then- spleen be gratified by heaping difficulties upon the heads of their adver- saries and successors.* * One example, but not a solitary example of this worst enormity of faction, has been more than once refen-ed to in this work, namely, the Spanish war in Walpole's time. 318 GOVERNMENT OF GENOA. CH. XXIV. Nor was the profligate game of party played by the old nobi- lity alone. ' The frequent expulsion of these nobles from office, sometimes even from the dominions of the repubhc, led the way to many wealthy families of the commons rising into importance. They filled offices of trust ; they acquired influence in the ma- nagement of public affairs ; they were regarded as noble fami- lies ; but they were considered as a new or inferior nobility ; and their conflicts with the others were natural enough ; but also they imitated these others in soon raising conflicts among them- selves ; and the Adorni and Fregosi families were as much dis- tino"uished for their contentions as the Dorias and the Grimaldis, the Spinolas and the Fieschis. In truth, the new nobles were orio-inally the Natural Aristocracy ; but as soon as they obtained a preponderance, they were bent upon excluding all other classes, both the old nobles and the common people. Hence from the time of Boccanegro being made doge, in the middle of the four- teenth century, the old nobles were excluded from all offices ; but the plebeians were never chosen. The new nobles held every place exclusively, from that of doge downwards, excepting durino- the occasional changes which followed different attempts of the old nobles to establish a tyranny, when a comi3romise generally took place, and a council, sometimes of twelve, some- times of twenty-four, was instituted, with the provision that one- half should be noble and one-half plebeian — that is, nobles of the new or plebeian houses. When the supreme power was given up to the Duke of Milan, chiefly Avith the view of restraining the factions, the republican constitution was retained, a treaty being made which provided that half the magistrates should be taken from each order. In 1499 the French overran the duchy of Milan, and annexed it to their croAvn. Genoa was transferred with it as a kind of appanage, and under stipulations similar to those which had been made with Milan. The power of the Grand Duke had been effectual in keeping down the factions ; he had, generally speak- ing, observed the conditions of the treaty, and had held the balance even between the conflicting orders. But when a French governor was substituted for a Milanese the case was widely different. All the leaning was towards the nobles, whose inso- lence broke out more intolerably than ever. Their contempt for the new families led to constant insults and breaches of the peace. CH. XXIV. REVOLUTIONS — FRENCH INFLUENCE. 319 No redress was afforded by the courts of justice, because the order of the wrongdoers formed always one half of the mem- bers, and took part against the injured party. The governor leant in the same direction The nobles were even found to carry daggers with a motto indicating at once their bitter feel- ing towards the other class, and the use to which the instrument was destined — {castiga vilani) " chastise the plebeians.'' This state of things became intolerable; and in 1507 a revolt was the consequence. The body of the people took part with the new nobles, and the result was that their terms were granted — the chief of which was that, as they outnumbered the old nobility two to one, one-third only of the magistracies, in- cluding the places in the council or senate, should be filled by the old nobility, and the remaining two-thirds by the other orders. The new nobles, however, immediately claimed the whole of this proportion for themselves, excluding the real commoners altogether. Hence these now revolted, claiming their share as against both classes of nobles. Although they were opposed by the new nobles, they completely defeated the old, and drove them from the country. The consequence was . their obtaining the right to choose for themselves eight tribunes as guardians of their rights. The King of France (Louis XII.) confirmed all the concessions which both the new nobles and the commons had thus extorted from his lieu- tenant, but upon condition that the fiefs and castles of the Fieschi family which had been taken should be restored. The new nobles agreed to this ; the commons strenuously opposed it, and further insisted upon measures being adopted for seizing Monaco, the fortress of the Grimaldis, and which had been by them made the shelter of pirates who infested those seas. The popular leaders, flattering themselves with the hope of obtaining assistance from Rome and from the Emperor, persuaded the people to refuse all accommodation with Louis, to throw oft his authority, and to choose a doge. Left to themselves and panic- struck, they were entu-ely overthrown ; the French king, beside putting the doge and many of the revolters to death, and levying heavy contributions on the city, burnt the charters and treaties containing its privileges, restored the former equal division of the magistracy between the two orders, and put an end to the appointment of popular tribunes. 320 GOVERNMENT OF GENOA. CH. XXIV. In 1522 the Emperor, Charles V., succeeded in surprising the town, and it was subjected to the most cruel and unsparing pil- lage of which even Spanish troops are capable. But five years after, notwithstanding the heavy loss which the French had sustained at the fatal battle of Pavia, they were enabled, chiefly by the skill and courage of Andrew Doria, their most famous admiral, to regain possession of Genoa. This eminent person, how illustrious soever his name has become, was in truth a naval condottiero. He was a distinguished member of the great Doria family, but had early entered into the service of various foreign princes, and being possessed of several galleys, or ships of war, had latterly hired himself and them to Francis I., who was then engaged in his memorable war with Charles V. The term of Doria's service expired in 1528 ; and they who would find excuses for his conduct, which he never could himself even profess to approve or defend, have said that he refused to renew his en- gagements because France had broken faith with his country, and that he was resolved to restore her free constitution. But the fact is unquestioned that he had borne arms, if not against her, yet against the power which had become possessed of her territory ; and that in this warfare he had reduced her by a blockade, that is, by endeavouring to starve her people, his fel- low-citizens. The fact is equally unquestioned that this success restored her to the dominion of the very prince whose breach of faith with her is the alleged gTOund of quitting his service ; nor did he, when thus instrumental in effecting the restoration, seek to impose any terms upon those whom he had made the con- querors of his native country. It might well have been ex- pected, that the same desire to restore her liberties which is given as the ground of his proceedings in 1528, should have actuated his conduct in 1527. Again, it is not denied that, when he sent his envoy to announce his withdrawing from the French service, he not only gave the breach of faith as his ground of com- plaint, but the arrears of pay due to himself ; and that, like a true condottiero, he put the payment of those arrears in the front of the conditions upon which he again tendered his services. The stipulation of an ample pay (60,000 florins a-year) was in like man- ner coupled with the restoration of the Genoese constitution in his offer to the emperor, who readily accepted the terms ; and partly l)y Doria's fleet, partly by the co-operation of the Genoese them- CH. XXIV; ANDREW DORIA. 321 selves, the French were expelled and the Spaniards admitted, whose sacking of the city he had, during the whole course of the war while fighting against them, never forgiven, refusing to make any Spaniards prisoners of war, but sending all he took to the galleys. Here ends the blameable or equivocal part of this great man's conduct. Nothing could be more truly noble and disinterested than all that followed. The constitution, with important amend- ments, was, under his auspices, restored. He refused all the offers of the emperor, who, averse to popular, even to aristocratic government, urged him to accept the principality into which he offered to erect Genoa for him ; and when the office of doge was once more established, and all voices joined in beseeching him to accept it, he declined, recommending that it should no longer be conferred for life, but only for two years. He passed the rest of his days, prolonged to an extreme old age, among his countrymen, universally esteemed and beloved, and, in all the emergencies of their affairs, respectfully consulted. His liberal spirit, notwithstanding all his opportunities of amassing wealth, prevented him from leaving any considerable fortune ; and so entirely did he hold himself to be at the service of the state, that he took the command of its fleet in one of its wars at the as'e of eighty-five, and was in his ninetieth year when he finally re- signed the command of the Spanish navy.* The constitution as it was now remodelled, with some mate- rial changes made in 1576, continued to govern the Genoese commonwealth, until it was finally subverted in 1799 by the French invasion. It was framed by twelve functionaries, styled Reformers of the Law {Riformatori), who had been appointed to suggest amendments of the law, and to effect a general recon- cilement of the contending factions the year before, when the French, under Doria, obtained possession of the country. The French government had thrown no impediment in the way of their judicial labours, and the changes which they proposed in * It may be observed that the reason he gave for refusing the dogeship was his wish to continue in the Spanish command, which he thought incompatible with that high office; and some may conceive that the old condottiero habit here again broke out. The cruel punishment of the Fieschi conspirators has also been laid to his charge ; but the murder of his favourite nephew and heir, the intended murder of himself by that infamous gang, and the general habit of the age as to severe inflictions in such cases, must be taken as a great palliative of his guilt. TAET II. Y 322 GOVERNMENT OF GENOA. CH. XXIV. the constitution upon its restoration, were adopted by the Spanish government acting under Doria's advice when the French were succeeded by the emperor. The fundamental provision by which the factions were to be united, and their conflicts terminated, consisted in abrogating the exclusion of the patrician or old noble party, opening all the offices and honours in the state to all alike, that is, to all the nobles, whether old of the year 1338, or new, and distributing the whole body, without distinction of title, name, or party, into twenty-eight alberghi ; each family which had six houses occu- pied by its members, or adopted adherents, being reckoned an alhergo. Among these twenty-eight all the others were dis- tributed, so as to mingle Guelfs and Ghibellines, patrician and plebeian nobles, in the same albergo, and to sink their names in those of the family to which they were enrolled. Two names were wholly suppressed, those of the Adorni and Fregosi, whose contests had so bitterly divided the republic for the last hundred years. From very early times there had always been a practice among the noble houses of adopting others into their own circle, and making them, as it were, members of their own famihes. The object of this was evidently to increase the number of their adherents ; and the resemblance of the system to that of the ancient clientela would at once present itself, were it not repulsed by the consideration that the adopted families were of distinction, and, though only of plebeian degree, yet of wealth sufficient to rank them with the adopting houses. The adopting family was termed alhergo, the inn ; and not only gave protection to the other, but communicated its name and as much of its privileges as the law permitted. It was upon this old practice that the Riformatori now built their strange plan of exterminating par- ties ; and, as well might be expected, if it put an end to old, it gave rise, before long, to new divisions. The old parties might easily be abolished, because they were marshalled according to names and persons, the factions having no distinguishing prin- ciples, and not even pretending to adopt any, as their successors have often done in modern times to conceal their selfish and per- sonal views, which formed the real bond of their union. Con- tention, and even civil war again broke out between the old and new nobles, while the people murmured at being excluded from all share in the government ; and before half a century had CH. XXIV. NEW AND FINAL CONSTITUTION. 323 elapsed, the names of the alberghi were abolished, and each family resumed its own. The great council, too, or the chief senate, which in 1528 had been formed of the whole nobles in rotation, four hundred sitting each year, was now composed of all who had been inscribed in the Libro d'Oro (or Golden Book), and were twenty-two years old. The number of those families was about one hundred and seventy : but the senate had the power of adding ten yearly, seven from the city, three from the country, provided the heads were persons of a similar station and fortune to those of the nobles ; a power which, of course, was rarely exercised, and then only by elevating elderly persons who had no children, and were not likely permanently to increase the number of the ruling body. They also added a number of persons in needy circumstances, who became mere dependents upon the wealthier class. To this body belonged the choice of the lesser senate, or council of two hundred, the doge, the councillors of the signory, sometimes called also governors {rettori\ and the 'procurators of the town (procuratori di commune) . The governors were originally eight, and afterwards twelve. The procurators were equal in number, with the addition of those who had been doges, being those who had immediately before been governors. All these offices were held for two years, except that the doge became procurator for life, if no charge was proved against him upon quitting his office. He could not be re-elected doge for ten years, nor could the governors till after an interval of five. It thus happened that the members of the doge's council were partly in office for two years, partly for four, and partly for life. The Doge's election was complicated, as at Venice, though much less so : that of the governors was by thirty electors, whom the great council appointed, and who selected one hundred and twenty names, from which twelve were taken by lot. The government was in the hands of the lesser council, and the doge's council, sometimes called the Signoria, though the Signoria, properly speaking, formed only a part of it. The great council could alone levy new taxes, or make any fundamental changes in the constitution ; but it was only called together by the Signoria on extraordinary emergencies, the lesser council having the power of making peace and war, and even of making laws, provided they did not alter the constitution of 1576, and y2 32i GOVERNMENT OF GENOA. CH. XXiV were agreed to by two-tliirds of the voices. Inferior magistrates were also chosen by this body ; and where the senate is men- tioned, we may in general assume the lesser council or lesser senate to be meant. The Signoria, or doge's council, possessed all the other powers of the executive government, conducting foreign affairs, receiving ambassadors, superintending the execu- tion of the laws, providing for the peace of the country, and mana.; anarchy, ib. ; Draco, 208 ; Solon, ib. ; er- rors respecting Solon's legislation, ib. ; Solon's reforms, archons, col- leges, paredii, 209 ; courts of jus- tice, ill. ; Areopagus, 210 ; Heli- asta3, ib. ; inferior magistrates', ib. ; pure democracy, ib. ; classes of the people, ib. : population, /Z). ; Slaves, 211; effects of slavery, ih.; Xenophon, Plato, Diogenes, ib. ; phylae, phratriae, genea, trityes, demi, ib. ; the ecclesia, 212 ; se- nate, 214 ; elections, scrutiny, ib. ; prytanes, epistata, ib. ; eu- thynae, logistae, 215 ; voting, bal- lot, 216 ; areopagus, 217 ; its powers, ib.; its composition, 218 ; logistae, euthynae, ib. ; Mars hiU, St. Paul, 220 ; hehaea, 221 ; American court, 223 ; ephetce, ib. ; other checks besides the areojDagus, 224 ; state and public orators, ih. ; payment of func- tionaries, ib. ; niles as to alter- ation of the laws, 225 ; nomo- thetes, 226 ; ejDonymi, ih. ; syn- dics, ih. ; direct repeal required, ib.; impeachment for illegal legis- lation, 227 ; quorum, 228 ; prohi- bition of repeal, 229 ; power of adjournment, ih. ; appeal and reconsideration, 230 ; ostracism, 231; general feeling against this, 233 ; orators, their influences, 234 ; advocates and professional orators, ib.: legislative and judicial functions combined, 18 ; corrup- tion of statesmen, 235 ; Demo- sthenes, 236 ; Whigs in Charles II. 's reign, 236 ; Demades, ih. ; corruption, faction, and fickle- ness of the people, 237 ; turbu- lence of assemblies, 238 ; radical vices of the system, ib. ; advan- tages derived from the system, 239; parties in, 241; dalesmen, mountaineers, coastmen, and trimmers, ih. ; the Alcmaenidae, i&.; usurpation of the Pisistratidae, ih. ; their downfall, 242 ; Pisis- tratus, ib. ; Clisthenes, ib. ; Mil- tiades, 243 ; Popular ingratitude, ih. ; fables of Marathon, ib. . de- mocratic reform, 244 ; Aristides, ib. ; barbarous popular ex-cesses, ib. ; Themistocles, ib. ; Athenian greatness, ib. ; Pericles, 245 ; Al- cibiades, ih.; Thirty Tyrants, ib.; faction, 246 ; rebellion, 247 ; So- crates, ib. Athens, duke of, vide Florence. Augurs, 149. Auspices, law of, 140. Avogadi, vide Genoa. Avogadors, vide Venice. Avoyers, vide Lucern, Bern. INDEX. 385 Bacon's, Lord, opinion on ancient and new nobility, 26. Basileus, vide Athens. Bayle's criticism of history, 99. Beaufort's work on Rome, 100, 161. Bentham's denial of checks in the constitution, 5. Bern, early constitution of, 375 ; aristocracy introduced, ih. ; great council, 376 ; senate, seizeniers, avoyers, ih. ; constitution of 1803, 377 ; of 1816, ib. ; self- election, 378 ; oligarchy, ih. Bianchi and Neri, vide Florence. Binis comitiis, controversy de, 144. Boccanegro, GuHielmo and Simone, vide Genoa. Boeotian government, or BcEotar- chy, 248. Bologna, creation of nobles in, 22 ; early charter and government of, 356 ; early regularity of the constitution, ih. ; consuls, coun- cil, podesta, public orators, 357 ; party feuds, ih. ; Gierenci and Lambertazzi, ih.; loss of liberty, ^6. Bonifazzi and Montecchi, 297. Bulla aurea, vide Hungary. Buondelmonti, vide Florence. Burke's defence of party, 45 . Burke lauds the Polish constitution of 1791, 76. Csesar, Julius, character of, 151, 161, 163. Calabria, duke of, vide Sienna. Can della Scala, 302. Candia, vide Venice. Candidatio, vide Hungar3\ Canulejus, law of, 155. Capite censi. 111. Capitano del Popolo, vide Genoa. Carmagnola, vide Venice. Carrara, vide Venice. Castellan, vide Poland. Casba domestica and militaris, vide Hungary. Castri, vide Genoa. Castruccio Castracani, vide Lucca. Catiline's conspiracy, 173. Cecrops, vide Athens. Censors in Rome, 125, 126, 127. Centum viri, 151. Centuries, 111. Charles V., emperor, takes posses- sion of Milan, 340. Checks, system of, in the consti- tution of England, extolled by many writers, 5 ; their existence PART II. dogmatically denied by Bentham and his school, ih. ; this denial founded on theory alone, 6 ; doc- trine of the, in the British con- stitution misconceived, ih. ; doc- trine of, explained, 7 ; foundation of this doctrine, 8 ; fallacy of the objections to this doctiine ex- posed, 9 ; illustration of this doc- trine from joint powers, 10 ; from mutual veto, ih. ; from a factious majority, ih. ; from the British constitution and the proceedings in parhament since 1832, 11 ; from balance of powers in par- liament, 12 ; from dynamics, ih. ; proper, or perfect, and imperfect, 13 ; examples of proper, from Roman constitution, ih. ; exam- ples of imperfect, from the Veni- tian constitution, and absolute governments, 14 ; examples of imperfect from the constitution of England and of the United States of America, 15. Checks on the power of the people in Rome, 171 ; in general, 172. Chrysonetes, vide Crete. Cicero, 101, 112, 114, 126, 139, 147, 158, 16], 162, 173. Cinadon, vide Sparta. Cincinnati, order of, in America, abohshed by the jealousy of the democratic party, 59. Ciompi, vide Florence. Civic nobihty in Italy, 64. Cleomenes, vide Sparta. derates, vide Crete. Chents in Rome, 105, 106, 119 ; m different parts of Greece, 122. Clisthenes, vide Athens. Clodia lex, 128. Cluverius's work on ancient Italy, 100. CoUacretse, vide Athens. CoUegio, vide Venice. Colonies, which is the wisest policy of the mother-country towards its, 20. Comitia curiata, 107, 136, 163 ; tri- buta, 136. Compitaha, 111. Condottieri, 306, 330. Confederation, vide Poland. Congregationes generales, vide Hungary. Conscripti, 130. Consuls in the Italian cities, 255, vide also Milan, &c. ; of Rome, 116, 132, 142, 146. 2 c 386 INDEX. Corcyra, government of, 248. Conieliari law, 151. Cosmi, vide Crete. Cragius, on Sparta, 180. Credenza in the Italian cities, 255, vide also Genoa, Milan, and other Italian republics, ete, constitution of, 175 ; _ cosmi, eponymus, 176 ; perioeci, ih. ; clerotes, chrysonetes, ih. ; pure aristocracy established, 177 ; re- sistance, ih. ; federal government established, ih. ; isopoliteja, ib. Curia, 104. Curio, office of, 129. Curule offices, 126. Custos urbis, 129, 146. Czartoryski, family of, their gran- deur and patriotism, 75 ; splen- dour in which they lived, and noble sacrifices submitted to by its present representative, 85. Dante's passage on the effects of faction, 42. Decemviri, 141. Demades, vide Athens. Demi, oide Athens. Demiurgi, vide Athens. Democracy, definition of, 1 ; pure, a rare occurrence, 2 ; errors on, ih. ; pure in the United States of America, 4 ; tendency of, to mix with other constitutions, 17 ; this tendency lesser in, than in aris- tocracy, 18 ; responsibility of rulers in, 48 ; tyranny of, 54 ; better calculated than aristocracy to form virtuous and able citizens, 55 ; inclined to changes, 59 ; en- deavours to resist the growth of natural aristocracy, ih. Demosthenes, vide Athens. Despotism has no tendency to mix itself with other institutions, rea- sons thereof, 17. Diacri, vide Athens. Dictator in Rome, 131, 144. Diets, vide Poland, Hungary. Dietines, vide Poland. Diogenes, vide Athens. Dionysius, 98, 99, 121, 122, 124, 136. Divinatio, 152. Divisores, 160. Doge, vide Genoa, Venice. Draco, vide Athens. V^cclesia, vide Athens, Sparta. Education, origin of the word, 188. Ehzabeth, Empress of Russia, 75. Emmius, on Sparta, 180. England, revolution of, compared to that of Rome, 118 ; government compared with that of Venice, 291 ; dominions of, compared with those of Venice, 279. Ephetse, vide Athens. Ephori, vide Sparta. Eponymus, vide Athens, Crete. Equality impossible, 23 ; attempts made to insure, ib. Equites, 109. Eupatridse, vide Athens. EuthyUte, vide Athens. Ezzelino da Romano, 299. Faction, vide Party. Falieri, Marino, vide Venice. Fasti dies, 139. Feciales, office of, in Rome, 108. Feodor Ivanovitch, czar of Muscovy, candidate for the throne of Po- land, 74. Feudal plan is monarchical, 250. Feudal nobihty in the Venetian terra-firma, 295. Flamen, office of, in Rome, 108. Florence joins the league late, 341; early constitution of, 342 ; consuls, quarters, senate, «'i.; burgher aris- tocracy, ih. ; at first mixed, then pure, ih. ; podesta established, 343 ; factions — Buondelmonti and Uberti, Guelfs and GhibeUines, ih. ; podesta expelled, and new government established, 344 ; old constitution restored, ih. ; new constitution after Manfred's de- feat, 345 ; two councils, ih. ; party government within the govern- ment, ih. ; parallel with the Jaco- bin club, 346 ; new constitution, ih. ; its anomahes and absurdities, 347 ; factious turbulence, ih.-, in- terferes with justice and police, ih. ; ordinances of justice, ih. ; popular aristocracy; Popolani grossi, 348 ; Bianchi and Neri, 348 ; absurdi- ties of party, 349 ; new mode of electing the seignory, ih.', burgher oligarchy, 350 ; duke of Athens, ih. ; progress of tyranny, ib. ; changes in the constitution, 351; new party divisions ; natural aris- tocracy, ib. ; Albizzi and Ricci, 352 ; factious violence, ib.\ ciom- pi, mob-government, ih.\ triumph of the aristocratic polity, ih. ; in- INDEX. 387 fluence of free institutions, 352 ; of democratic government, 353 ; grandeur of, ih. ; feudal and burgher economy, 354. Fo-Ispan, vide Hungary. Foreign appeals common in the Greek republics, 244. Foscari, vide Venice. Fox's defence of party, 45. France, effects of the extmction of aristocratic influence on, 53 ; re- volution of, compared with that of Rome, 118. French republicans, disinterested- ness of the, 56 ; conquest of Ge- noa, .321, Friars, rise of, in Italy, 297 ; their usurpations, 298 Gastaldioni, of&ce of, 393. Genea, vide Athens. Geneva, early history of, 378 ; mix- ed aristocracy, 379 ; parties, ih. ; great council, ih. ; senate, ih. : re- volution of 1782, 380 ; restoration of the old government, ih. ; con- stitution of 1814, ih. ; importance of, 381. Genoa, early history of, 310 ; Pisan alliances and conquests, 311 ; con- stitution of 1096, ih. ; aristocracy, 312 ; parties of the nobles, ih. ; Avogadi and castri, ih. ; podes- ta, 313 ; turbulence of the fac- tions, ih. ; parties of Cortes and Voltas, ih. ; constant revolutions, ih. ; companies of art, ih. : cre- denza, ih. ; oligarchy established, 314 ; abate, ih. ; capitano del popolo, ih. ; GuUielmo Boccane- gro's usurpation, 315 ; fickleness of the inhabitants of, ih.; Simeon Boccanegro, 316 ; party move- ments and civil conflicts, ib.\ Vis- contis called in, 317 ; Perpetual revolutions, ih. ; new nobiUty, their power, their factions, 318 ; conflict with the old, 319 ; revo- lution, ih. ; French conquest, ih.; taken by the emperor ; Doria's history, 220 ; Doria's noble con- duct and reforms, 321; final aris- tocratic constitution, ih.; attempts to extinguish party, 322 ; Al- berghi, ih. ; new factions, ih. ; councils or signoria, 323 ; doge, 324 ; syndics, ih. ; inquisitors, ih.; judicial administration, ih. ; gall- ing yoke of the aristocracy, 325 ; folly of the new nobles and ple- bians, ih. ; oligarchical periods, 326 ; government of, compared with that of Venice, ih. Genoese settlements, ohgarchy of, 327 ; Justiniani, ih. Gentes, vide Rome. Geomori, vide Athens. Ghibellines, vide Guelfs. Gierenci, vide Bologna. Giunigi, Paul, vide Sienna. Gonfaloniere, vide Lucca, San Ma- rino. Gottling's theory of the early divi- sions of the Roman people, 104. Greece, authorities on the history of, 174 ; false chronology, ih. ; ages of the historians, 175 ; early history of, ih. Grachius on Rome, 144. Guelfs and Ghibellines at Florence, 343. Harmostoe, vide Sparta. Harmosynae, vide Sparta. Haruspices, 149. Hehsea, vide Athens. Heliastse, vide Athens. Helots, vide Sparta. Henry of Huntingdon, a monkish historian, quoted, 69 ; of Valois, king of Poland, 74. Hereditary distinctions, foundation of respect for, 25 ; their effects on individuals possessed of them, 26 ; privilege, vide Aristocracy. Hippagretae, vide Sparta Homoioi, vide Sparta. Homo-phylaces, vide Sparta. Horatian law, 151. Hortensian law, 136. Hottoman's work on Rome, 129. Hume's opinions quoted, 38, 137. Hungary, history of, 86 ; Lombard conquest of, t6, ; Magyars, ih. ; dynasty of Arpad, ih. ; dynasty of Austria, ih.; feudal circumstances in, ih. ; nobles of, 87 ; their pri- vileges, cardinal and non- cardi- nal, ih. ; tenure of fiefs, ih. ; mag- nates, 88 ; balla aurea, ih. ; titled nobles, ih. ; diet, ih. ; representa- tion, proxies, votes, tabula per- sonalis, 89 ; functions of the diet, 90; taxes, 91; cassa domestica and mihtaris, ih. ; Count Szechini's efforts to introduce reforms, 92 ; local county administration, ih. : functions of Fo - Ispan and 2 c 2 388 INDEX. Ali-Ispan, ib. ; of Szolgo birag, ib. ; congregat tones generales, 93 ; municipal government, Koszeg, ib. : village government, ib. ; powers of the crown, 94 ; indige- nat, ib. ; sale of titles, ib . ; pea- santry, ib. ; urbarium of Maria Theresa, 95 ; lords' power, ib. ; robot, ib. ; lords' courts, ib. ; re- forms in these, ib.; new urbarium, ib. ; Prince Metternich's reforms, 96 ; mihtary system, ib. ; insur- rectionary army, ib.; military frontier, ib. Hungarian prejudices in favour of their constitution, 97 ; conclusion of this subject, ib. Hungary, works on, ib. Hypomeiones, vide Sparta. Ignorance of the people makes it in- diflFerent to the public affairs, 19. Indigenat, vide Hungary. Inquisitors, vide Venice, Genoa. Interreges, 129. Interrex, 145. Irish independence, reflections on, 166. Isopohteia, vide Crete. Italian governments, municipal con- stitutions and aristocracy, 250; feudal plan monarchical, ib. ; rise of aristocracy, 251 ; civic nobility, 253 ; Othon first grants municipal institutions to the towns, 254 ; general form of government of their towns, 255 ^ consuls, ib. ; credenza, ib. ; senate, ib. ; parha- ment, ib. ; wars of the cities, 255 ; Pa via and Milan, 256 ; war of the towns, 257 ; treaty of Constance, ib. Jacobin club compared with party government in Florence, 346. JageUon dynasty in Poland, 73. John Albert, king of Poland, 84. John Casirnir, king of Poland, 74 ; of Vicenza, 298 ; Jordan of Pa- dua, 299. Judicial system of Rome, 150. Justiniani, vide Genoa. Kosciusko, 76. Koszeg, vide Hungary. LogisthcD, vide Athens. Lambertazzi, vide Bologna. Letters and arts flourish in Italy, 308. Liberum veto, vide Poland. Licinian rogations, 133. Lictors, 109. Lion's Mouth, vide Venice. Lithuania, vide Poland. Livy, 98, 99, 109, 112, 122, 124, 125, 126, 136, 144, 162. Lombards, unfitness of, for self- government, 334. Lords, house of, resistance of the, to change, beneficial to the country, 58. Luceres, 105. Lucerne, feudal history of, 369; early constitution, ib.: aristocracy esta- blished, ib.; sovereign council, ib.; senate, 371; avoyers, ib.; self-elec- tion, ib.: aristocracy popular, ib.; consequence of this popularity in the French invasion, 372 ; act of mediation, ii.; poHcy of Napoleon, ib. ; constitution of 1814, 373. Lucca, revolutions in, deserving of attention, 364 ; early government and parties, ib. ; Casti-uccio Cas- tracani's services and usurpation, ib. ; good conduct of the inhabit- ants of, 365 ; anziani, gonfalo- niere, college, government coun- cil, ' ib. ; practical oligarchy, ib. ; Paul Giunigi, ib. ; his great merit, 366 ; cruel fate, ib. ; republic re- stored, ib. ; perfidy and conquest of the Medici, 366 ; Martinian law, ib. ; oligarchy finally esta- blished, ib. ; its permanence, 367. Lycurgus, vide Sparta. Lysander, vide Sparta. Macaulay's Lays of Ancient Rome, 100. MachiaveUi's en-ors in Roman his- tory, 102. Magister equitum, 110. Magnates, vide Hungary. Manfred's, emperor, defeat, followed by a new constitution in Florence, 315. Manihan law, 147. Mariutius, P., errors in the history of Rome, 102. Marathon, vide Athens. Marino, San, antiquity of the go- vernment of, 367 ; extent and population, ib. ; constitution, an- ziani, senate, gonfaloniere, capi- tani, judicial authority, 368. Martinian law, vide Lucca. INDEX. 88.9 Mediation, act of, vide Lucerne, Zu- rich, Bern. Medici, vide Lucca, Sienna, Flo- rence. Merum Imperium, 151. Messenians, 190. Meursius on Sparta, 180. Middleton's error respecting Cicero, 173. Milan, government of, 328; coun- cils, ib. ; podestas, ih. ; credenza, ib. ; patricians, 329 ; plebeians, ib. ; struggles of the orders," ib. ; cavahy, 330 ; condottieri, ib. ; fo- reign captain-general, ib. ; finan- cial dictatorship, ib. ; companies, credenzas, motta, 321 ; councils, ib. ; defects of history in pohtical matters, 332 ; Signer del Popolo, ib. ; Martino della Torre, 333 ; Visconti completes his usurpa- tion, 334 ; unprincipled conduct of both patricians and plebeians, ib.: unfitness of the Lombards for self-government, 334 ; conflict of factions, ib.; succession of revolu- tions, 335 ; Visconti family, 336 ; vain attempt to erect a republic, 337 ; Francis Sforza, ib. ; his vic- tories, and elevation by the mob, 338 ; fickleness and baseness of the people of Milan and Placentia, ib. ; Charles V. obtains the sove- reignty of, after the Sforzas, 340. Miltiades, vide Athens. Montecchi and Bonifazii, 297. Montesquieu's errors on the history of Eome, 102. Morse, vide Sparta. Mothaces, vide Sparta. Motta, vide Milan. Napoleon's policy in Switzerland, vide Lucern. Naucrarii, vide Athens. Neri and Bianchi, vide Florence. Niebuhr's opinions on the history of Rome, 100, 107, 108, 112, 114, 121, 123, 124, 125, 134, 139, 141. Nobility, vide Aristocracy. Nomothetes, vide Athens. Nuncios, vide Poland. Oligarchy in Venice, 290 ; in Genoa, 314, 327 ; of burghers in Florence, 350; in Sienna, 358, 359, 360, 362, 363 ; in Lucca, 365, 366 ; in Bern, 378. Orators, state, vide Athens. Ostracism, vide Athens. Otho I. emperor, grants municipal institutions to the Italian towns, 254. Padua, 299, 301, 302, 303. Psedonomus, vide Sparta. Palatine, vide Poland. Pansetolian, 248. Panathensea, vide Athens. Panvinius, Onuphrius, errors in the historj' of Rome, 102. Paralii, vide Athens. Paredii, vide Athens. Parliament of the Italian cities, 255. Paris, Matthew, quoted, 69, Party, origin of, in aristocracies, 34 ; had no existence in Venice, 35 ; justifiable, 36 ; factious, ib. ; bad effects of the factious, 37 ; weak- ening of principle, ib. ; destruc- tion of confidence in statesmen, 38 ; corruption of private and pubhc morals, ib. ; Hume's opi- nion on this subject, ib.; union of sordid motives with pure, 39 ; examples thereof from history, ib.; produces self-deception, 40 ; de- stroys regard for truth, ib. ; pro- motes abuse of the press, 41 ; ge- nerates malignant feehngs, 42 ; passage of Dante on, ib. ; opera- tion of, on inferior partisans, 43; eflects of, in paralysing public councils, 44 ; examples of the mischief done by factions in Eng- land, ib. ; promotes treasonable proceedings, 45 ; defence of, by Fox and Burke, 45 ; general re- marks on, 46. Patres et conscripti, vide Rome. Patricians, vide Rome. Patrons and clients in Rome, 119 ; in diff"erent parts of Greece, 122. Pavia, 256. Paul's, Father, opinion on aristo- cracy, 62. Peculatus, 162. Pedrsei, vide Athens. Peerage, senseless project of a re- form of the English peerage, 15. Pericles, vide Athens. Perioeci, vide Crete, Sparta. Perizonius' work on Roman history, 100. Personalis, vide Hungary. Petrucci, vide Sienna. Phylse, vide Athens Phylobasileis, vide Athens. Phratrioe, vide Athens. 390 INDEX- Piaat, dynasty of, in Poland, 73. Pisa, want of information respect- ing, 355. Pisan alliances with Genoa, 311. Rsistratus, Pisistratidse, vide Athens. Plato, vide Athens, Spai-ta. Plebeians, vide Rome. Plebiscitum, 136, 139. Plutarch, opinions on, 98. Podesta, fimctions of, 296 ; vide also Florence, Milan, Bologna, Sienna. Poland, constitution of, 72 ; history of, ih.; confederation of 1573, 74 ; effoi-ts of the Czartoryskis to im- prove the constitution of, 75 ; election of Poniatowski to the throne, ih. ; the improvements of the Czartoryskis overturned by the intrigues of Russia, ih. ; first dismemberment of, 76 ; constitu- tion of the 3rd May, 1791, ih.\ nuncios, diet, dietines, ih. ; of- fices of palatines, castellans, and starosts, 78; election of the kings, ih. ;• rights and privileges of the kings, 79 ; composition and func- tions of the senate, 80 ; chamber of nuncios, 81 ; liherum veto, ih. ; confederation, rokosh, senatus concilium, 82 ; administration of justice, ib. ; courts of justice created by Stephen Battari, ih.; election of judges, ib. ; pospolite, or arri^re ban, ^7^ ; vain attempts of John Albert to curb the exor- bitant power of the nobles, 84 ; character and habits of the nobles, • ih. ; splendour of the Princes Czartoryski, and patriotism of the present representative of this family, 85 ; works on, ih. Polemarch, vide Athens, Sparta. Political profession impossible, 21 ; must necessarily be a corrupt trade, ih. Polybius's account of Sparta, 178 ; opinion on, 98. Pontiffs in Rome, 148. Popolani grossi, vide Florence. Pospolite, vide Poland. Praetor in Rome, 132, 143. Pregadi, vide Venice. Princeps senatus, 124. Proconsul and propraetor in Rome, 146. Procurators of St. Mark, vide Venice. Proletarii in Rome, 111. Proveditori, vide Venice. Prytanes, Prytaneum, vide Athens. Pythii, vide Sparta. Quarantia, vide Venice. Quaesitores in Rome, 151. Quaestionis jus, ib. Quaestors in Rome, 143. Ramnes, vide Rome. Repetundae, 162. Rex sacrorum in Rome, 148. Ricci, vide Florence. Robot, vide Hungary. Roger of Hoveden, a monkish his- torian, quoted, 69. Rokosh, vide Poland. Rome, government of, not an aris- tocracy, 2 ; contains germs of aristocracy, 3 ; became a mixed aristocracy, ih.; oppression of the people by the aristocracy of, 52 ; aristocracy of, odious to the people, 57 *, constitution of, 98 ; importance of this subject, ib. ; its great difficulty, ib. ; ancient historians of, ib.\ modern writers, 99 ; predecessors of Niebuhr, lOO; Niebuhr and his school, ih. ; scantiness of materials, ih. ; cha- racter of Niebuhr's writings, 101; errors of eminent authors on the history of, ih. ; early history en- tirely fabulous, 102 ; illustrations thereof, ih. ; probable era of the foundation of, 104 ; early divi- sions of the people, ib. ; early constitution, ib. ; the tribes, ih.\ patricians, 106 ; plebeians, ih. ; patrons, ib.\ clients, 105; comitia curiata, 107 ; Niebuhr's doctrine examined, ib.; equites, 109; re- forms of Servius, 110 ; centuries, 111; comitia centuriata, 113; legislation of Servius, 114; com- parison with Solon's, ih. ; Tar- quin the Proud, 115 ; his tyranny, 116 ; his exj)ulsion, ih. ; founda- tion of the aristocratic republic, ib. ; fabulous history, 117 ; com- parison of the revolution of, with those of France and England, 118; patrician power, 119; pa- trons and chents, ib. ; feudal re- semblance, 121 ; aerarii, ih. ; error of authors, ih. ; chents in Sparta, Crete, Thessaly, and Attica, 122 ; monopoly of offices, 123 ; senate, ib. ; conflicting ac- INDEX. 391 counts of it, 124 ; Dionysius and Livy, ih. ; errors of authors, 125 ; censors, ih. ; choice of senate, 126 ; power of censors, ih. ; practical checl\S to censorial power, 127 ; senate's functions, 129; variations of ibs power, ih.', patres et conscripti, 130 ; senate's influence, ih. ; dictators, 131 ; consuls, 132 ; prsetors, ih. ; pa- trician oppressions, ih. ; public lands, ih. ; Agrarian law, 133 ; Spurius Cassius, ih. ; Licinian Rogations, ih. ; errors of writers on Agrarian law, 134 ; patrician creditors, ih. ; tribunes chosen, 135 ; their power, ih. ; progress of popular power, 136 ; decline of comitia curiata, ih. ; rise of comitia tributa, ih. ; course of legislation, 137 ; double legisla- tion, ih. ; anomalies, ih. ; solution of the paradox, 138 ; senatus considta and plehiscita^ ih ; checks to the tribunes, 139 ; su- perstitious rites, ih. ; laws of the auspices, 140 ; senate's errors, ih. ; democracy established, ih. ; practical defects of the govern- ment, 141 ; decemvirs, ih. ; go- vernment carries on laws and legislative decrees, 142 ; consuls, ih.; prsetors, 143; aediles, ple- beian and curule, ih. ; quaestors, civil and military, ih. ; choice of magistrates, 144 ; controversy de hinis comitiis, ih. ; dictator, ih. ; progress of popular power, 145 ; interrex, ih. ; consular functions, 146 ; provincial proconsuls and propraetors, ih. ; vigour of the go- vernment, 147 ; rehgious polity, 148 ; pontifis, ih. ; rex sacrorum, ih. ; college of augurs, 149 ; haruspices, ih. ; Sibylline decem- virs, ih. ; singular facts, 150 ; ju- dicial duties of magistrates, ih. ; Cornehan laws, 151 ; judicial system, ih. ; justices, ih. ; cen- tumvirs, ih. ; quaestores, ih. ; jus quoestionis, or merum imperium, ih. ; divinatio, 152 ; special ju- dicial laws, ih. ; abuses from thence, 153 ; analogy of parha- mentary privilege, ih. ; impeach- ment, ih. ; cognitianes ej:traor- diyicirice, ih. ; examples, ih. ; progress of democracy, 155 ; Canulejus, ih. ; address of the patricians, ih.; distinctions of the orders obliterated, 156 ; new aris- tocratic distinctions, ih. ; new plebeian body, their baseness, ti.; operation of party, 157 ; plebeians at different periods, ih. ; virtues of the old plebeians, contrast of the new, ih. ; savage character, warhke habits, 158 ; massacres of Marius, ih. ; Cicero, ih. ; Julius Caesar, 159 ; corruption of the people, canvassing, treating, bribery, ih. ; sale of votes, divi- sores, ambitus, sodahtium, 160 ; bribery laws, ih. ; unpaid magis- tracy, 161 ; popular patronage and corruption, 162 ; peculatus repetundce, ih. ; popular corrup- tion, faction, civil war, ih. ; over- throw of the commonwealth, 163; conduct of the aristocracy, ih. ; aristocracy and princes, 164 ; error of the patricians, 165 ; American war, Irish independ- ence, 166 ; Roman parties, 167 ; comiuct of the people, ih. ; Ro- man yeomanry, ih.; natural aris- tocracy, 168; orders new moulded, 169; West Indian society, 170; aristocracy of middle classes, ih. ; power useless to an uneducated people, 171; checks on the peoj)le, ih. ; checks in general, 172 ; deJay and notice, English proceedings, ih.; factious men uncontrolled, ih.; Catiline's conspiracy, 173 ; Ci- cero's conduct, ih. ; Middleton's error respecting Cicero, ih. Roman dominions compared with the Venetian, 280. Salinguerra, family of, 297. Saint Croix's work on ancient fede- ral governments, 178. San Marino, vide Marino. Savii, vide Venice. Saxony, house of, on the throne of Poland, 74. Scotch parhament compared with the Venetian government, 292. Seisachtia, vide Solon. Senate of Rome, 123, 126, 129, 130; of the Itahan cities, 255. Senatus concihum, vide Poland. Servius Tullius, Eongof Rome, 109, 110, 114, 115. Sforza family, vide Milan. Sibylline books and Decemvirs, 149. Sienna aristocracy never entirely 892 INDEX. extinguished, consuls, podesta, council, 357 ; oligarchy esta- bhshed in, steps of the transition, 358 ; intricrues of the ohgarchs with the foreign powers, 359 ; oli- garchs overthrown, 360 : burgher aristocracy and oligarchy, ih. ; government falls into the hands of the lowest class, 361; surrender of, to Visconti, ib. ; factious tur- bulence and revolutions, ih. ; Petrucci's power, 362; five or- ders recognised, ih. ; Duke of Calabria, ih.; mob ohgarchy, ih. ; revolution and new government, ib. ; dictatorship and destruction of this new constitution, 363 ; governments of Spain and France alternately, ih. ; union with Tus- cany, ih. ; real duration of Sien- nese ohgarchy, ih. Sigismund Augustus, King of Po- land, 73. Sigismund III., Vasa, King of Po- land, 74. Signer del Popolo, vide Milan. Sigonius's opinions on the history of Rome quoted and examined, 102, 144, 152. Sodalitiura, 160. Solon, vide Athens; Solon compared with Servius, 114. Sparta, the only lasting aristocracy of ancient times, 4 ; constitution of, derived from Crete, 1 78 ; opi- nions of Polybius and others, ih. ; perioeci, ih., 180 ; helots, ih., 181 ; Lycurgus, 179 ; general remarks, ih. ; authors, 180 ; classes of the people, ih. ; proofs of this theory, ih. ; hypomeiones, homoioi, mo- thaces, 182 ; insurrection of Ci- nadon, ih., 183 ; tribes, phylse, oba3, 183 ; castes, ih.\ morse, ih. ; errors of authors, ih. ; kings or archagetse, ih.:, rules of succession, ih. ; senate, 184 ; ecclesife, 185 ; mode of voting, ih. ; polemarchs, harmosynse, homophylaces, har- mostse, hippogrense, 186 ; object of Spartan system, 187 ; its ope- ration traced, ih. ; stages of hu- man hfe as subject to it, ib. ; marriage, procreation, infancy, boyhood, psedonomus, full age, 188 ; equality of fortune attempt- ed, 189; ephors, 191; their power, ih. ; resemblance to tribunes, 192 ; opinions of authors recon- ciled, ih. ; Ephoral usurpation, 193; artificial aristocracy, 195; natural aristocracy, 196 ; contro- versy on classification, oj)inions of authors, 197 ; contradictory usages, ih. ; unintelligible state- ments, ih. ; paradoses, 198 ; du- ration of Lycurgus' polity, 200 ; party process and changes, ih. ; Agis, Lysander, and Cleomenes, 201 ; Spartans overpowered, join the Achsean league, 202 ; distinc- tion of orders, 203. Spurius Cassius, 133. Stephen Battori, King of Poland, 82. Swiss aristocracy, 369 ; division of this subject, ih. Synodus, vide Athens. Szecheny, Count, vide Hungary. Szolgo Birok, vide Hungary. Tabula, vide Diet of Hungary. Tarquin the Proud, his character and expulsion, 116. Ten, Council of, vide Venice. Theban government, vide Boeotian gOTemment. Tliemistocles, vide Athens. Thesmothetee, vide Athens. Theseus, vide Athens. Titus, vide Rome. Torre, Martino della, vide Milan. Tribes, Roman, 184. Tribunes of Rome, 135, 139, 140. Tribunus celerum, 110. Trityes, vide Athens. Tuscany, Sienna united with, 363. Uberti, vide Florence. Upstart superiority less respected than a long-estabhshed one, 25. Urbarium, vide Hungary. Valerian law, 135, 142. Valerius Maximus, opinion on, 99. Vasa, dynasty of, in Poland, 73. Venice, oligarchy of, 22. Venice free from political parties, 35 ; aristocracy of, popular, 57 ; origin of, 260 ; insular federacy, ih. ; anarchy, 261 ; doge created, ih. ; town of Venice founded, ih. ; conquests, ih. ; parties, 262 ; doge's power restricted, 263 ; pregadi, ih. ; aristocracy founded, ib. ; grand council, 264 ; ohgarchy established, 265 ; council of ten, ih. ; inquisition, 267 ; spies, ib, ; INDEX. 393 lion's mouth, ih. ; committee of public safety in France compared with the council often, ih.; doge, 269 ; complicated election of the doge, ih. ; two objects kept m view by this comphcation, 270 neither of them attained, ih. examination of the process, ih. first object to prevent faction ih.\ second object to prevent cor- ruption, 271 ; jealous nature of aristocracy, 273 ; limited power of the doge, ih.. ; ducal oath, 274 ; officers to watch and punish the doge, ih. ; avogadors, ih. ; doge's prerogative, 275 ; senate or pre- gadi, ih. ; collegio, ih. ; judicial power, 276 ; quarantia, ih. ; of- fices fiUed by commoners, ih. procurators of St. Mark, ih. savii, ih. ; provincial offices, ih. proveditori, ih. ; government of Candia, 277 ; great vigour of the government, 278 ; comparison of the dominions of, with those of England, 279 ; comparison with those of Rome, 280 ; tyramiy of, 281 ; examples, Carraro, Carmag- nola, Foscari, 202 ; Zeno, Marino Faheri, 285 ; firmness and vigour of the government of, 286 ; mih- tary pohcy, 287 ; equahsing laws, 288 ; merits of the system, ih. ; provincial government, 289 ; oli- garchy substantially estabhshed, 290 ; comparison with the Eng- lish government, 291 ; Scottish parliament compared with, 292 ; meanness and pride of the nobles of, 293 ; improvements in mo- dern times, 294. Venetian terra firma, 295 ; feudal nobihty, ih. ; municipal govern- ment originally in their hands, 296 ; podestas, ih. ; factions, 297 ; Montecchi and Bonifazii, ih. ; Adelardi and Salinguerra fami- hes, ih. ; Vivacio and Vicenza families, ih. ; rise of the friars, ih. ; their fanatical preaching and influence, ih. ; their usurpa- tion, 298 ; John of Vicenza, ih. ; Jordan of Padua, 299 ; Ezzelino da Romano, ih. ; his prodigious tyranny, 300; despicable sub- mission of the people, 301 : his destruction, ih. ; submission of the towns to others, 302 ; Cand deUa Scala, ih. ; lexiij of the democratic councils of Padua, ih. ; corrected by the aristocracy, 303 ; municipal governments, ih. ; anziani, ih. ; gastaldioni, ih. .; John Galeaz Visconti, 304 ; de- mocracy of Verona and Vicenza, ih. ; submission of the peojDle to tyranny, 305 ; war of j)arties in Italy, 306 ; hired troops, ih. ; condottieri, ih. ; mihtary opera- tions, 307 ; surrender of rights by the people to the chiefs, ih. ; ef- fects of aristocracy, faction, ty- ranny, on the character of the people, ih. ; letters and arts, 308. Venetian government compared with the Genoese, 326. Verona, 297, 298, 299, 300, 302, 304. Vicenza, 297, 298, 299, 300, 302, 304. Vico on Roman constitution, 100. Visconti, y/c/e Milan, Genoa, Sienna. Vivacio, family of, 297. Voltaire's criticism of Roman his- tory, 99. Wealth, foundation of aristocracy, 24 ; respect of talent for, ih. West Indian society, 170. Whigs bribed by Louis XIV., 236. William of Malmesbury, a monkish historian, quoted, 67 ; of New- bury, ditto, ditto, 68. Xenophon, vide Athens Zamoscius, vide Zamoyski. Zamoyski, John, 74 ; his work on the Roman senate, 125, 127. Zeno, vide Venice. Zurich, early aristocracy of, 373; government of, more exclusive, ih.\ council, 374 ; senate, ih.\ con- stitution of 1803, ih.\ constitutior of 1814, 375. PART II. 2d LONDON : PRINTED BT WILLIAM CLOWES AND SONS^ STAMFORD STREET. ^\ i p r ! I V ^ r-v ^,) J ON DEMOCRACY AND MIXED MONARCHY BY HENRY LORD BROUGHAM, F.R.S., MEMBER OF THE NATIOXAL INSTITUTE OF PKANCB. LONDON: BELL AND DALDY, YORK STREET, COVENT GARDEN, AND 186, FLEET STREET. TO CHARLES EARL GREY, K.G., Sfc. ^c. Sfc, This Volume, expounding the principles of Constitutional Polity that guided his brilliant and useful Administration, is Inscribed by the Author, in token of the friendship which has lasted during his whole public life, and of the veneration which, in common with men of all classes and all nations, he cherishes for a Statesman whose virtues have rarely been equalled, never surpassed. PREFACE. This volume forms the concluding portion of the Poli- tical Philosophy, as far as the great subject of Govern- ment is concerned. It comprehends also a full account of all the Constitutions in both ancient and modern times. There is no other work in which the principles are systematically expounded, and none in which the various forms of Government are described. The discussion is kept quite free from all party and all national bias. N.B. — The present half volume contains all the general principles of Democratic and of Mixed Government. The application of these principles to the several constitutions of Great Britain, France, America, and the Netherlands, will be published at Christmas, and will close the volume. The Structure of Government having been consi- dered, to finish the whole course of Political Science, the Functions of Government will remain to be explained, including Political Eco- nomy and Political Arithmetic. But the work on the Structure of Government is quite complete of itself. 52 CONTENTS. CHAPTER I. OF THE NATURE OF DEMOCRACY IN GENERAL. Connexion of the Subject — Definition of Democracy — Definition illustrated — Ex- amples : America ; England ; Neckar's Republic ; Athens — Purest Democracy — Ancient Democracies filled places by lot — Error upon Disqualifications — Term Democracy preferable to Republic ....... Page 1 CHAPTER H. ORIGIN OF DEMOCRACIES. Origin of ancient Democracies obscure — Roman, Theban, Athenian, Carthaginiau — Modern Commonwealths — Italian, Swiss, Dutch, French, American — Popular Government natural to Towns — Four Causes of this . • . . p. 7 CHAPTER HI. NATURAL LIMITS OF PURE DEMOCRACIES. Limits to Popular Assemblies — Calculations of Numbers — Paradoxes of Authors — Montesquieu, his merits and defects — Two strange Positions of his — ^Millar, his speculative Errors — True relation of Government to Territory . . p. 12 CHAPTER IV. EXTENSION OF DEMOCRACY— PROPER FEDERAL PRINCIPLE. Devices to extend Democracies — Three of these — Boeotian Federacy — Lycian Union — United States — United Provinces — Swiss Federacy — Swiss Democratic Cantons . . . . ..*..... p. 18 CONTENTS. CHAPTER V. EXTENSION OF DEMOCRACY— IMPROPER FEDERAL PRINCIPLE- ROMAN POLITY. Roman Provincial Polity instructive — Conquests kept subject — Provincial Govern- ment— Subjection of Inhabitants— Their partial admission to privileges— Muni- cipia or free towns ; their Government — Colonies — Oppression of the Provincials — Social War — Admission of all Italy — Exclusion of Cisalpine Gaul — Exclusion of Provinces relaxed under the Empire — Universal admission of the Provinces — Elective Measure of Augustus— Influx of Provincials into Rome . . p. 23 CHAPTER VI. EXTENSION OF DEMOCRACY— REPRESENTATIVE PRINCIPLE. No Representation in ancient times — Representative and Federal Principles distin- guished— Examples, ancient and modern — Definition of Representation — Defini- tion illustrated and proved — Representatives must be free — Historical Illustrations — England, Old Writs ; France ; Sicily ; Scotland ■ . . . p. 30 CHAPTER VH. ORIGIN AND HISTORY OF REPRESENTATION. Near approaches of the Ancients to Representation — Feudal Councils — Franks ; Saxons; Spaniards; English Heptarchy — Gemotes — Origin of English County Representation — Errors of some authors — Admission of Town Representatives — ■ Evidence from Statutes — Evidence from Writs — Towns attended to be taxed — Town representation derived from County — Royal demesne Towns first repre- sented— Scotch Representation — Early Scotch Statutes — Difference of Scotch and English Parliaments — Irish Parliament — French Councils and Estates — English Controversy . . . . . . . . . p. 38 CHAPTER VHI. QUALITIES OF REPRESENTATION. Evils of Federal Union — Advantages and Disadvantages of Small States — Feeble- ness of Federal Government ; limits to its extent — Representative Government free from such evils — Benefit of entrusting power to small numbers — Of the People being able to meet in small bodies — Prudent measures and orderly de- liberation— Increased responsibility of Rulers — Selection of Deputies — People confined to acts of which they are capable — Corruption of ruling class lessened — Diligent performance of duty — Greater Security to Liberty — Longer preservation of Popular Power — Country admitted to Government — Towns prevented from domineering over it — Real power of the People increased — Illustrations from French Republic and English Commonwealth — Rousseau's error . • p. 52 CONTENTS. xi CHAPTER IX. MODIFICATIONS OF THE REPRESENTATIVE PRINCIPLE— THOSE ONLY AFFECTING THE MODE OF ELECTION. Two kinds of modification ; one regarding the manner of voting, the other limiting its extent — Double Election — Its nature in France — Its evils — Inconsistent with the Representative Principle ; duty of electors ill performed ; corruption facilitated ; minority made powerful — Does not lessen the Popular Power— Combined choice — Manner of Voting — Distribution of Representation — Proportion to population — Errors in English System — Voting by Ballot— Contrary to principle — Ineffectual — Encourages Falsehood — Protects Tradesmen — Useless to Tenants — Means of Preventing Corruption and Expense — Efficacy of Registration— IneflScacy of Ballot— Disfranchisement — Extension of Franchise— Of Electoral Districts p. 62 CHAPTER X. MODIFICATION OF THE REPRESENTATIVE PRINCIPLE- RESTRAINTS UPON THE RIGHT OF VOTING. Modifications Umiting the Right of Voting — Combined Choice— Representative Qualification — England ; Scotland — Inconsistency of English System — Error of extreme Reformers — Elective Qualification — Pretended grounds of this— Real grounds — French and English Qualification — English Criterion of Respectability the worst — Rule " Once a voter always a voter " — Exclusion of the best persons — Objection to Property Qualification — Immorality encouraged — Qualification a recent Invention — History of Representation in this respect — Form of Govern- ment not affected by Qualification— Supposed advantages of Qualification — Good Representatives — Education Qualification— Check to Corruption — Extension of Suffrage and of Electoral Districts . . . . . . . p. 72 CHAPTER XI. CANONS OF REPRESENTATIVE GOVERNMENT. Freedom of Representative — Non-interference of the People— Overawing the Repre- sentative very criminal — Representation should be direct — Choice not to be com- bined— No Representative Qualification — Distribution of Representation by im- portance of Classes —Numbers alone an insufficient criterion — Great disproportion to population improper — Electoral districts to be large — Elective franchise extended to all educated persons — Secret votes inexpedient, except for tradesmen . . , . , , , , , , . p. 83 CHAPTER XII. APPLICATION OF THE REPRESENTATIVE PRINCIPLE- FOUNDATIONS OF MIXED GOVERNMENT. Universality of the Canons — Risk of popular interference — Its limits — Aristocratic interference through the people — Interference with Elections — Restriction of Franchise does not affect Democracy — Illustrations from the English Common- wealth ; the Dutch ; the French — Illustrations from Authors ; Harrington ; Sidney ; Milton — Influence of the other Estates over Popular Representatives — King's Xli CONTENTS. Friends in England — This influence now more difficult — Direct interference of the other Estates criminal— True theory of the Constitution— Securities of the other orders against popular Usurpation — Unwillingness to go to extremities — Defensive Physical Force— Resources of the Sovereign and Aristocracy — Resist- ance necessarily the foundation of Mixed Government— Mutual right of resistance — Its limits— True use of the doctrine— Objections answered . . p. 85 CHAPTER XIII. EXERCISE OF POPULAR POWER. Mode of the People exercising power does not affect the Democratic form — Delega- tion of Executive Functions — Of Judicial Functions — Limits of the proposition — Judicial Usurpations ; Israel; Carthage; Sardinia — Judicial Functions at Rome : Athens — Mode of exercising Popular Power — Necessity of preventing rashness and violence — Evils of numerous assemblies — Mob proceedings — Three Checks on rash decisions — These do not lessen Popular Power — Delay ; Notices ; Stages — Discussion by several bodies — Long period of delegation — Objectionable checks — Initiative — Fixed majority — Prohibition of Repeal — Examples — Penalties on Innovation — Athenian Checks of the right kind — Of the wrong kind — American Checks of both kinds — These Checks always existing without positive law— Orders of proceeding ; Experience of business ; Contention of different classes p. 95 CHAPTER XIV. VIRTUES OF THE DEMOCRATIC POLITY. Rulers have no sinister interest — Personal ambition has no scope — Illustrations : Lewis XIV. ; Charles XII. ; French Republic and Empire ; Washington —Progress of improvement— Purity of public men ; its two causes— No incapable and wicked Rulers — Benefits of popular Discussion — Cheap Government — Comparison with Monarchy and Aristocracy— Public Defence — Purity of Manners . p. 109 CHAPTER XV. VICES OF THE DEMOCRATIC POLITY. Power in irresponsible hands — In hands above all risk — Irresponsibility of popular Chiefs — Popular Tyranny intolerable— Suspicion and Terror — Flattery of the People — Illustrations ; France ; England, America — Prevention of free Discussion — Disproportioned attention to Questions — Power of the periodical Press— of Party — Impunity to popular Outrages — Alleged want of Secrecy pnd Vigour t . , . • « • • • • . p. 116 CHAPTER XVI. OF RELIGIOUS ESTABLISHMENTS. Connexion — Religious Establishment impossible ia a Democracy — Peculiarity of Religious differences — Obje ttion that Establishments violate Conscience — That CONTENTS. xlii they are made State Engines— That they restrain Natural Liberty— Benefits- Secure Instruction— Equalise the Burthen— Avoid evils of Election— Check Religious Excitement— Prevent Sectarian Zeal— Prevent Sectarian Political ^^«^«nce p J25 CHAPTER XVII. PROVINCIAL AND COLONIAL ESTABLISHMENTS. Popular Ignorance and Inattention on Provincial Affairs— Jealousy— Illustrations from America ; from Canada— No Natural Incapacity in Democracy— Roman History— Origin of the Opinion— Roman Policy— Carthaginian Policy— Grecian Policy— Dutch Policy— Conduct of Spain— General Inference . p. 135 CHAPTER XVIII. NATURE AND ORIGIN OF MIXED GOVERNMENT. Connexion — Checks imperfect in a Democracy — In an Aristocracy — In a Monarchy —All Make-shifts, and Why— Illustrations from Action of two Legislative Bodies — From Measures of English Parliament in 1834— Definition of Mixed Government— Illustrations : Poland ; Hungary ; Sparta ; Carthage ; Rome— Modem Mixed Monarchies— Opinion of Tacitus ; Cicero— Essential Qualities of Mixed Government— British and French Constitutions— Illustrations— Origin of Mixed Governments— Of the Spartan; Roman; Venetian; Genoese; Dutch; French; Scandinavian; British . . . . , , . p. 142 CHAPTER XIX. VIRTUES AND VICES OF MIXED GOVERNMENT. Defects of checks in all pure Governments— Illustrations; Athens; Rome; Eastern Despotisms—Mixed Governments the only efi'ectual check— Virtues of Mixed Government — Its checks and balances perfect — Secure full discussion— Protect Rights and Liberties— Maintain the Stability of the System — Alleged vices of Mixed Government p, ^55 CHAPTER XX. ULTIMATE TENDENCY OF MtSlED GOVERNMENT. Ultimate Destiny of all Governments the same — Universal Progress towards Popular Power — General Improvement in Men's Condition and Habits — African Despotisms — Oriental — Connexion between Improvement and Change — Mitigation of Absolute Governments : East ; Prussia ; Russia — Efiects of Revolution on Despotisms — General Interest in Extension of Popular Rights — Popular Improvement makes Checks less necessary — Illustrations from English History xiv CONTENTS. —People's Rights derived from their Power— Advance of Power with Improve- ment— Prophetic View of an improved Age— Upper Class and Property safe —Representation safe— Religion safe— Double Legislation safe— Hereditary Executive less certain to be maintained ..... p. 163 CHAPTER XXL RESERVED POWERS OF THE PEOPLE. Connexion Influence of the Press — Popular interference ; its limits — Publicity throu^-h the Press — Proper and improper influence — Illustration — Twofold mis- chiefs from the Press — By private Speculators ; by Factions — Anonymous writing — Motives of concealed Writers — Party — Twofold evils from abuse of the Press — Athenian Mob Government — Press has disarmed itself — Progress of knowledge has disarmed it — Duty of the People. Application of principles to Public Meetings — Popular excesses — Illustration — French Revolution ; England in 1715 ; in 1819 — Irish Meetings — General prin- ciple— Errors of Mr. Canning on our Constitution — Illustrated from County Courts : Freemen ; ancient right of voting. People's share in judicature — Athens; Rome; Modern Jury Trial — Three cases fitted for it — Its uses to the People — No admixture of evil in it • p. 174 CHAPTER XXH. GOVERNMENT OF ENGLAND.— ITS STRUCTURE IN THE ANGLO-SAXON TIMES. Obscurity of early Constitutional History ; its two causes — Royal Prerogative in early Times — Errors from National Vanity and Party Spirit — Resemblance with other Feudal Monarchies — Difi"erence as to Legislative Power — Royal Authority traced from the Roman Times — Saxon Constitution — Heptarchy — Constitution after the Union — Power of the Crown — Great Officers ; Eorlderman ; Gereefa ; Boroughreeve — Danish Body-Guard, or Thingman — Legislative Power — Witan and Witenagemote — Royal Revenue — French and Anglo-Saxon INIonarchies compared — Aristocratic Nature of the Anglo-Saxon Government — That Govern- ment not properly a mixed Monarchy . . . . . p. 191 CHAPTER XXm. GOVERNMENT OF ENGLAND.— ANGLO-NORMAN MONARCHY. William the Conqueror — Lord Coke's Error— Influence of Foreign Dominions — Great Possessions of the Conqueror's Family — Royal Authority not absolute, though great — Parliament or Colloquium ; its composition — Extension of Feudalism by AVilliam — Almost all his immediate Successors Usurpers — Occasions of assembling Parliament — Examples : Henry II. ; Stephen ; Richard I. ; John — Taxation — Legislation— Henry II.'s Profligacy — Royal Power over the Church — Two practical Tests of Royal Authority— Tyranny and Profligacy of the Anglo-Norman Kings; William L; William II.; Henry I.; Henry IL ; Uichard I. — Anglo-Norman Monarchs practically almost absolute . p. 204 CONTENTS. XV CHAPTER XXIV. GOVERNMENT OF ENGLAND.— FOUNDATION OF ITS PRESENT CONSTITUTION. Four essential Requisites of limited Monarchy — Error of supposing nominal Priri- leges real— Causes of the Resistance to John — Great Charter — Forest Charter — Broken by John— Civil War — French aid called in — Henry HI. — Pembroke Re- gent— ^Confirmations of the Charters — Mad Parliament — King deposed — Simon de Montford — His Parliament with Borough Members — Edward I. — Earls Bohun and Bigod — Statute against Taxing by the Crown — Parliamentary Constitution fully established in Law — Merits of Cardinal Langton — Compared with Arch- bishop Winchelsey — Errors of Romish Historians — Edward I.'s Legislation — His Wars p. 220 CHAPTER XXV. GOVERNMENT OF ENGLAND.— THE PLANTAGENETS. Edward II.— The Ordinances — Virtual Deposition of the King — His actual Depo- sition— Edward HI. — His Encroachments — Checked by Parliament — Right of levying Men — Restrictions on it — Parliamentary Elections and Procedure more obscure — County and Borough Elections — Composition of the Lords' House- — Of the Commons — Places of meeting — Powers of the Houses severally — Partial Parliaments summoned by the Crown — Procedure — Triers ; Petitions ; Bills — Preparing of Statutes — Mode of executing them — Vacation Committee — Richard II, — Revolutionary times — Henry IV. — Henry V. — Progress of the Commons under the Lancastrian Princes — Henry VI. — Progress of Parliamentary Privilege — Base conduct of the Plantagenet Parliaments — Richard III. — Henry VII. — Decline of Baronial Power ....... p. 234 CHAPTER XXVI. GOVERNMENT OF ENGLAND.— THE TUDORS. Men's conduct more important than Institutions— Tudors and Plantagenets compared —Sources of the Tudor power : Title ; Economy— Infamy of Henry VIII.'s Parlia- ments—Three Examples worse than the rest— Henry VIII.'s Judicial Murders- Henry VII. and VIII. compared— Edward VI.'s Reign— Subserviency of Mary's Parliament— Privy Council Jurisdiction; Star Chamber— Its operation on Parlia- ment and Juries— Abuse of the Power by Individuals— Elizabeth's Reign ; Pro- gress of Parliamentary Privilege— Question of Monopolies— New Boroughs added —Tudor Measures touching Religion— Elizabeth's Persecutions— Causes of the Subserviency of the Tudor Parliaments , . . . • p. 250 XVI CONTENTS. CHAPTER XXVIL GOVERNMENT OF ENGLAND.— THE STUARTS— COMMONWEALTH- RESTORATION. Contrast of James L to Elizabeth— Divine Right— Error of Authors on this — Com- mons struggle for their Privileges — Slavish Conduct of the Judges — Impeachments by the Commons — Extravagant assertion of Privilege — Conflict between the King and Commons — Oppressions exercised by the Crown — Revolting Doctrines of the Stuart Princes — Character of Charles I. — Early Errors of his Reign — Favouritism to Buckingham — Baseness of the Judges — New Oppressions of the Crown — Long Parliament ; its admirable Conduct at first — Petition of Right — Strafford's At- tainder— Violence of the Parliament — Overthrow of the Constitution — Common- wealth—Causes of the Rebellion — Error of Romish "Writers — Evils of suffering a Minority to rule through Terror — Cromwell's Usurpation — His Plans and Consti- tutions—Obliged to call a Parliament — Restoration . . , p. 266 CHAPTER XXVHI. GOVERNMENT OF ENGLAND.— THE STUARTS— REVOLUTION. Reigns of Charles II. and James II. the same in a Constitutional View — Characters of these Kings — Policy of Charles — His Alliance with France^ — Escape of the Country from Subjugation — Clarendon's Profligacy — Revolution delayed by Charles — Popish Plot: Exclusion Bill — Alarming Change of Public Opinion on James's Accession — Base Conduct of the Lawyers — Selfish Conduct of the Church — James's Attacks on the Church — Banishments — Narrow escape from absolute Monarchy — Revolution : it originated in Resistance ... p. 284 CHAPTER XXIX. CONSTITUTION OF ENGLAND. Resistance the Foundation of our Government — Necessity of keeping this always in view — Security derived from the late Parliamentary Reform — Universality of the Mixed Principle — Apparent Exceptions — Only real Exception, Privilege — Evils of that Doctrine ; its Abuse — Conduct of the Commons — Recent History. Outline of tlie Constitution — Prerogatives of the Crown ; Extent ; Limits — Substantive Power of the Sovereign — Hereditary Principle — Errors on the Re- gency Question — King's Influence in Parliament — Lords' House — Claims of the Commons : Taxation ; Elections — Peerage — Large Creation of Peers ; Crisis of 1832 — Prelates; Convocation — Judicial System — Independence and Purity of Judges — Security of the People — Parliamentary Superintendence ; Meetings ; Press — Vigour of the Executive — Resources of the Country called forth — American Government — Three Defects in the Parliamentary Constitution — Bribery — Power of Adaptation to Emergencies — Extraordinary Powers ; Habeas Corpus Suspension ; Alien Act ; Restraint of Meetings — Errors of Bentham School on Unconstitutional Measures — Writers on the English Government p. 293 CONTENTS. xvii CHAPTER XXX. GOVERNMENT OF THE UNITED STATES. First Settlement of the Colonies — Virginia— New England — Different Charters Colonial Constitutions — Provincial ; Proprietary ; Chartered — General Resem- blance to English Government — Causes of the Separation — Progress of Indepen- dence— Great Importance of the Event— General Frame of the Republican Government — Fundamental Principle — Legislative Power — Congress Repre- sentatives ; their Election ; Qualification — Senate — Powers of Congress Powers of the Two Houses— President ; his Election ; his Powers— Judicial System — General Law — Alterations of the Constitution — Supremacy of Judicial Power — Annulling Laws as unconstitutional — Nature and Grounds of this Doctrine — Its connexion with the Federal principle — Amphictyonic Council in Greece — Further Illustrations — Examples of its application; to Laws of particular States ; to Laws of Congress— Works on the Constitution of the United States . . , . . . , , , ^ p. 323 CHAPTER XXXI. GOVERNMENT OF FRANCE.— REPUBLIC. French Revolution— Its Causes — Five Republican Constitutions— Abolition of Ancient Privileges common to them all— Constitution of 1791— King of the French— National Assembly— Elections— Executive Power— Royal Prerogative —Legislative Power— Judicial System— Tenth of August, 1792— Convention- Revolutionary Government— Constitution of 1793— Committee of Public Safety — Directorial Constitution of 1795 — Two Councils — Elections— Choice of Functionaries— Powers and Proceedings of the Councils— Executive Directory — Judicial System— Court of Cassation— High Court of Justice— National Guard —Council of Revision — Revolutionary Proceeding of 18 Fructidor, 1797 Merits and Defects of this Constitution — Opinions upon it . » p. 341 CHAPTER XXXII. GOVERNMENT OF FRANCE.— CONSULATE-EMPIRE. Return of Napoleon— Sieyes ; his Genius— Constitution proposed by him— Grand Elector ; Tribunate ; Council ; Legislative Body ; Conservative Senate ; Droit d' Absorption— Consular Government— Choice of Functionaries— Their Removal —Conservative Senate— Tribunate— Legislative Body— Process of Legislature— —Judicial System— Consuls— First Consul's Power— Its extensive Nature Checks found inconvenient— Change in 1802— Consul's Power extended in the Provinces— Senate subjected to him— Other Powers added to him— Tribunate changed— Minister of Justice— Consul for Life, and Successor named by him —Imperial Dignity— Emperor's Power— Dignitaries and Nobility— Tribunate further restrained — Finally abolished, and Emperor absolute — Limited Monarchy of 1815— Resemblance to the EngUsh Constitution . p. 354 XVlll CONTENTS. CHAPTER XXXIII. GOVERNMENT OF FRANCE.— RESTORATION— EXISTING CONSTITUTION. Restoration — Charte — King's Prerogative — Chamber of Peers — Chamber of Deputies — Powers and Proceedings of the Chambers — Ministers — Judicial System — Fraudulent manner of giving the Charte — Revolution of 1830 — Changes in the Constitution — Compared with that of England — Evils of Peerage for Life — "Want of a real Aristocracy — Distribution of Property — National Guard — Resistance the foundation of the Constitution .... p. 364 CHAPTER XXXIV. CONSTITUTION OF HOLLAND AND BELGIUM. Early History — Government always limited — Cause of this — 'Burgundian Princes — Progress of the Principality — Charles V. — Constitution before and after his reign — Recognised Principles — Annexation to the Empire — Philip II. — Revolt and establishment of the United Provinces — Glory of the Netherlanders — Orange family — Stadtholder — Democratic spirit — Attempted revolution — Prussian interference — Dutch shamefully subdued — Executive power ; Stadtholder — Deputies — States-General ; their constitution and proceedings — Council of State — Grand Pensionary — Provincial Constitutions — Details — Principle of Delegation pervaded the system — Its evils — French Conquest — Federal Government — Constitution of 1798 — Constitution of 1801 — Regency of Twelve — Legislative Body — Councils of Administration — Judicial System — Change in 1805 ; Grand Pensionary — Kingdom instead — Changes — Union with France — Existing Consti- tution of 1814 — Revolution of 1830— Differences from English Constitution — Succession to the Crown — Restrictions in Royal Family — Regency — Addi- tional Prei'ogative as to Colonies ; Judges ; Dispensing Power — Restrictions as to Pardons ; Territorial Cession ; Council — Chambers — Election of Deputies — Pov.ers and Proceedings — Provincial States — Judicial System — Alterations in the Constitution — Vicious Constitution of the Upper Chamber . p. 372 CHAPTER XXXV. GOVERNMENT OF SWITZERLAND. Connexion — Early Swiss History — Independence established — Morgarten — Confe- deracy formed by the three Forest Cantons or Wald-Stetten — Junction of others : Lucerne ; Zurich ; Zug ; Glaris ; Bern— Their several and federal Constitutions — Ammans ; Councils ; Avoyers — Soleure and Fribourg joined ; Basil ; Schaff- hausen ; Appenzell — The Constitutions of these five new Cantons — Three bases of the Federal Union — Greater privileges of the eight old Cantons — General Diet ; its Proceedings — Allied Cantons — Confederates ; Associates ; subject Bailliages — Grison Federacy ; its constitution ; its corruption — Revolution of CONTENTS. xix 1798 effected by France — New Republican Government — Conferences of Napo- leon— Constitution of 1803 ; Manner of its Formation — Genius of Napoleon — Provisions of his Constitution — Contingents of Men and Money of the Cantons — Their great inequality — Population — Perfect Federal Union ; its Advantages and Defects — Double Votes invented as a Remedy — Insufficient — Restrictions on the individual Governments — Directing-Canton ; its functions — Diet ; its meeting ; its proceedings ; its powers — Absurdity of the manner of Voting — Foreign Enlistment — Internal Constitution of the Cantons — Two Classes ; six democratic — Their Constitution — General Assembly or Land-Gemeinde — — Councils — Thirteen Aristocratic or Mixed — Great and Little Councils — Mode of Election — Grabeau — Courts of Appeal — Table of Details — Napoleon's Conduct — Existing Constitution of 1815 — Twenty-two Cantons — Contingents of Troops and Money — Arbitration — Diet ; its constitution ; powers — Vacation — Commission — Directing-Cantons — Restoration of selling Troops, and Monastic Institutions — Six Democratic Cantons — Their Constitutions ; General Assem- blies ; Councils — Table of Details — Seventeen Aristocratic Cantons — Their Constitutions- — Great and Little Councils ; composition and powers — Catholics and Protestants — Bad Principle — Elections ; duration of office ; qualifications — Table of Details. — Conclusion of this Work — Its Objects — The want of it — Duty of the People p. 389 CHAPTER L OF THE NATURE OF DEMOCRACY IN GENERAL. Connexion of the Subject — Definition of Democracy — Definition illustrated — Ex- amples ; America ; England ; Neckar's Republic ; Athens — Purest Democracy — Ancient Democracies filled places by lot — Error upon Disqualifications — Term Democracy preferable to Republic. We have now examined the three great divisions of government : Absolute, or Eastern Monarchy — ^Constitutional, or European Monarchy — and Aristocracy. The tendency of the first is, as society advances, to become in some degree constitutional, though this has not often happened to any considerable extent. The ten- dency of the second is, with the advance of society, to become aristocratic, as happened to it in Sweden and Denmark, or to become aristocratic without any considerable social improvement, as in the Feudal Monarchies. It has also a tendency towards mixed or limited Monarchy. The abuse of the Monarchical form of government is Absolute Monarchy or Despotism. The tendency of Aristocratic Commonwealths is towards Monarchy, either con- stitutional or mixed ; and their abuse is Oligarchy. Upon the ruins of either a Constitutional Monarchy or an Aristocracy, but more rarely of the latter, a Republican or Democratic constitution has frequently been built ; and, again, an Aristocracy, as we have seen in the second part of this work, has frequently grown out of popular republics both in ancient and modern times. — We now proceed to the examination of the two kinds of policy which remain to be considered. Democracy and Mixed Government — and first of Democracy. This, as its name implies, is the government of the people, and of the people at large. The name is, therefore, preferable to PART III. B 2 OF THE NATURE OF DEMOCRACY IN GENERAL. [CH. I. republic, because a republic may be aristocratic, as the Roman, most of the Italian, and some of the Swiss republics. It may even be Monarchical, as the Spartan and the Polish. But Demo- cracy denotes the constitution which allows the superior power to reside in the whole body of the citizens, having never parted with it to a Prince, or vested it in the hands of a select body of the community, from which the rest are excluded. In order to constitute a Democracy, therefore, it is necessary that the people should be either formally or substantially pos- sessed of the supreme power, not sharing it with any other party independent of themselves, still less exercising authority subject to the control or revision of any other and independent body. I have said formally or substantially. If, as in the smaller repub- lics of the old world, and in some of the smaller Italian and Swiss States of modern times, the whole people, without any preference of one class, or any distinction of ranks, make the laws by which the State is to be governed, and choose the magistrates by whom they are to be executed, then there is a Demiocracy in form as well as in substance ; but if the whole people exercise the legis- lative power through deputies or representatives chosen by all, and either directly or by such delegates appoint the Magistrates, then there is equally a Democracy, the supreme legislative and executive authority being vested in the people. The making laws by delegation to representatives is no more an abdication of the legislative power in this instance, than the executing those laws by delegation to the magistrates is an abdication of the executive power in the case first put of a pure and formal Demo- cracy. Nor will the government cease to be Democratic, if a certain class of the people are excluded from direct power, provided that disqualified class is not prevented from becoming members of the qualified body. The United States of America have undeniably all of them a Democratic constitution, although there is in most of them an electoral qualification. If in England the Monarchy and the House of Lords were, unhappily, abolished, and the whole power of the state, executive as well as legislative, were vested in the House of Commons, it would be an abuse of terms to call the constitution aristocratic, although the elective fran- chise, and therefore the direct exercise of political power, would be confined to less than a million of persons — about the sixth part CII. I ] DEFINITION ILLUSTRATED. 3 of the community, that is, of males above twenty-one years of age, because the other five sixths would not be excluded from admission into the qualified class. The very essence of an aristo- cracy is, that a class should exist endowed with the supreme power, while into that class admission is denied to the people at large (Part ii. Chap. i.). When M. Neckar, 'in 1802, in dis- cussing the question whether a Monarchy or a Democracy be the best form of government for France, concluded in favour of " a republic, one and indivisible ;" he proposed a constitution which vested the elective franchise, both as to the legislative and the executive functions, substantially in a body chosen by persons of considerable property; for the qualification was the payment of 8/. a-year of direct taxes. Yet he deemed this a purely Repub- lican Constitution.* No doubt there may be degrees of Demo- cracy as of aristocracy ; and a government may be termed most purely Democratic which is in the hands of all the males whose age gives them the right to be trusted by their fellow-citizens, just as the government may be termed most purely aristocratic that is vested in an hereditary body, all entrance into which is denied to every one else on any account whatever. Some of the Italian Republics gave the select or Patrician body a power of adding to their numbers. The Patrician body at Rome of old was con- stantly augmented by the admission of Plebeians officially. Yet it would be a great abuse of language to term these governments on that account Democratic. It would be equally erroneous to give the British Constitution on the supposition now made the name of aristocratic, as it would be to call the States of Carolina and Vir- gmia, or of Attica, aristocracies because the slave population were excluded from all rights, and the political power, as well as all other authority, was vested in the free citizens. We have seen (Part i. Chap, ii.) that a Monarchical Govern- ment does not cease to be absolute merely because the Sovereign exercises his authority through certain functionaries, or certain Councils, appointed by himself In like manner a government does not cease to be Democratic merely because certain arrano-e- ments are made by which the bulk or body of the people exercise * " Dernieres Vues de Politique et de Finance." Mr. Hume, in his " Idea of a perfect Commo7iwealth," intended todesign latheramixed republic, partly aristocratic, though leaning towards democracy. The substantial power was vested in persons of I 20/. a-year in the country, and 500/. capital in the towns.— Esmi/s, vol. i., p. 487 ) B 2 4 OF THE NATURE OF DEMOCRACY IN GENERAL. [^CH. I. the supreme power, although these arrangements should exclude a certain number of the poorer and more ignorant citizens. Such arrangements may be adopted for the purpose of giving effect to the genuine popular will and voice ; they may be used in order to prevent misgovernment and anarchy. Thus, if the community consist of a small body of well-informed persons, and a large body wholly illiterate, to give an equal voice in all affairs to the latter would be subjecting the councils of the state to the ignorance, imbecility, and incapacity of the community. Nor could we term it less a Democracy because its laws required every person to have a certain degree of knowledge, before he was entitled to exercise political power. It would not be an Aristocracy, because any one could become qualified, if he chose, for admission into the governing class. It must, however, be granted that there is one difference be- tween the case put and that of the Absolute Monarchy, admini- stered by the Sovereign with Councils. These Councils are the creatures of his power and pleasure : a breath from him can un- make as it made them. They exercise no direct control what- ever over him, and only share his prerogative to the extent to which it pleases him that they should. Whereas the exclusion of a great body of the people, whatever be the ground of it, and however beneficial to the State, either on account of poverty or of ignorance and incapacity, leaves a superiority in one class over the rest, and prevents the excluded classes, a considerable portion of the people, probably their majority, from enjoying political rights, while their circumstances remain unchanged. Hence it must be admitted that the Democracy is more pure which allows of no such distinctions, as in ancient times at Athens, where every citizen had the power, equally with every other, of deciding upon the legislation and the policy of the Republic. The constitution was much the worse on this account, but it was also the more \ purely and entirely Democratic. Indeed the more pure of the ancient Democracies, such as the Athenian, carried the equality of pohtical rights, and the distri- bution of the supreme power in the state, a step further. They made a violent endeavour to counteract the natural aristocracy, not adopting the Spartaa plan to prevent all accumulation of wealth, and thus cause its equal distribution, to preserve which is manifestly impracticable, but making arrangements which either CH. I. ' DEFINITION ILLUSTRATED. 5 gave the selection of persons who should fill certain situations to chance, or establii^hing some kind of rotation in the succession to those situations. Thus the Senators at Athens were chosen by lot ; and the presiding body, the Prytanes, took their place by rotation. The Helisea, or occasional grand council, was also composed by lot ; and ten of the fifty Ephetse, or judges in cases of homicide, were so chosen (Part ii. Chap. xvii.). In the spirit of excessive dis- trust and jealousy which prevails with all Democratic governments, an additional security for the division of power was taken by the short period for which office was conferred. Except the Areopagus no places were for Ufe ; all were annual. Nor was the choice of magistrates by lot peculiar to Athens. It seems to have been deemed essential to pure and genuine Democratic government. When Herodotus describes the reasons given for the different forms of government by the Persians, on overturning the sove- reignty of the Magi, he makes Otanes, who supported a Demo- cracy, give as one of the characteristics, that all oflfices were conferred by lot.* Now it would manifestly be most erroneous to consider the choice by lot of all or the greater part of the councils in a republic, an essential requisite of Democracy ; or to consider a mixture of lot and rotation as such a characteristic. Such institutions, such contrivances of jealous distrust, might render the ancient Demo- cracies more rigorously pure ; but they never can be considered as indispensable to a Democratic form of government. A consti- tution may be in the ordinary sense of the term Democratic which fills very far short of such extremes; and so in like manner it never can be called mixed, much less aristocratic, with any pro- priety of speech, merely because a portion of the people is in point of fact excluded from direct power, provided there be no insepa- rable obstacle in the way of that portion becoming part of the ruling or privileged body.f * UaKcp fi€v apxas o.px^'-- (Thalia. 80.) f A very respectable class of men in this country are exceedingly apt to fall into the error of confounding disqualifications and exclusions in fact, with disqualifications and exclusions in law. If a system were established which gave to all persons equally the right of voting for any important office-bearers, as parish officers or schoolmasters, the Dissenters object, because they would, in country parishes especially, be outvoted by the Churchmen. This is only because they form a minority. What they really seek is, that the minority should govern the majority, or at least that each class should choose one, which assumes that the office is to be held by two, and also that re'igious distinctions are to be perpetuated. 6 OF THE NATURE OF DEMOCRACY IN GENERAL. [CH. I. To avoid all confusion, therefore, it seems expedient to use the term democracy rather than republic for the governmeni which is in the hands of the people. Republic does not really express this idea correctly ; it means commonwealth. Many writers have used it to designate a popular government, a government in which the supreme power is exercised by any portion of the people, as con- tradistino-uished from monarchy. Thus they divide republics into two classes — Aristocratic and Democratic, accordmg as a portion or the whole ot the people govern. But the name of a republic has also been applied to a monarchy, as in the case of Poland ; nor, indeed, could the principalities into which the Italian repub- lics declined, and the mixed government of the United Provinces, though termed republics, be considered in any other light than as a species of monarchy. The term Democracy is free from all ambiguity, and stands plainly distinguished both from monarcliy and aristocracy. CH. Il.j ( 7 ) CHAPTER 11. ORIGIN OF DEMOCRACIES. Origin of ancient Democracies obscure — Roman, Theban, Athenian, Carthaginian — Modern Commonwealths — Italian, Swiss, Dutch, French, American — Popular Government natural to Towns — Four Causes of this. The origin of Democratic governments in ancient times is involved nnavoidably in great obscurity, and there is so much of fancy, so much indeed even of mere fable in the common accounts which national traditions have furnished of these as well as of ancient monarchies, that we are more likely to be misled than instructed by consulting them. Their details are absolutely to be rejected ; if we can safely lend them any credit, it must be confined to the^: most general outlines. Thus we may easily assume that the ear- liest government of Rome, as indeed of all communities, was a rude monarchy. AVe may also be safe in supposing that the kings had a council of the principal inhabitants, which was called a senate ; and there is no reason to doubt that the tyrannical conduct of the sovereigns occasioned a change of government, and the establish- ment of an Aristocratic, then of a Democratic, which soon became a mixed aristocratic, republic. But it would not be safe to trust the traditions which have been handed down of the particular incidents that attended the early revolution. We know still less of the change which at Athens substituted a Democracy for the original monarchy, or of the stages by which the archons succeeded to the kings, further than that upon the death of Codrus the power of the sovereign was much abridged, and the name of archon, or first magistrate, given to the king. But the particulars of the subsequent changes which made the office cease to be hereditary and become elective, lasting first for ten years, afterwards for a year only, are involved in com- plete uncertainty. Nor have we any accurate account of the 8 ORIGIN OF DEMOCRACIES. [CH. II. degree in which the government was Democratic before Solon's reforms, or the extent to which these reforms altered it. The probability is that the pure Democracy was only formed by degrees. The origin of the Theban or Boeotian Democracy is still more obscure ; but is not always that the ancient historians make so honest a confession of their ignorance as Pausanias does when giving an account of their kings. After enumerating sixteen who followed Cadmus, he says, that being unable to find any better account of them, he has taken his narrative from fable.* How the uir(>tings were not great. The \\\uAo Wswom of the realm were only, aeeording to the most aeeurate enumeration, 005, of whom 140 were ecele- siastieal : hut a very large proportion, from their distant resi- dcnee. \\v\or allended the court. The stated meetings were prohahly oeenpied rhieHy with matters of form and routine, while the important eoneerns of the kingdom wcM'e nv'^erved for oceasion.'il nieelinu;?!. whieli the Prinee sunnnoned when he found that he wanted Oieir aid in hivS wars, or their assent in makuig laws, and hringing great otienders to punishment. It is chiellv from the Interposition of these occasional assem- blies, whenever matters of importance were to bo transacted, ih.'il we learn the strength of the Parliament, and can estimate the degree in which the lloyal Prerogative was limited hy the established Constitution, sul)ject to (me remark which 1 shall lind it necessary afterwards to subjoin. Let us nuMition a few of the principal occasions on which the very imperfect history of our early Constitution has ju'cserved the memory of this parliamen- tary interference, and we shall be convinced that, though the (\>n«picst consolidated and extended the pnM'ogativ(% it did not materially break in Ujion the functions and authority of the Great National Council. \Vhen the Conqueror had nearly matured his plan for feudal- izing the kingdom, he assembled a Parliament in London ; and the coimtry was divided into Knights' fees, the whole landown- (M's. as well clerical as lay, being obliged to send for each fee, that is, each live hides, or iiOO acres of land,* a Knight equi])])ed for llu^ tield to serve during forty days.f This raised a body of 60,000 horse, there being 00,215 Knights' fees, whereof 20,015 were in the hands of the clergy. Quo of the most certain occasions of calling a Parliament was the death of the King ; when the old form of election was re- stored : and indeed as all of the C\>n(]neror's successors, except Henry 11.. that is, William Kid'us, Henry 1., Stephen, Hiclwud, This ip nlxmt a fnir nvrrixpo ; but of oouvpp, ns (ho n\>|iortlonirioii( v ns by vnliio, there must hnvp hopn n groat rlilloronce in the extent, noronlintr to tlio quality of tl^e goll. f Wllkins. LA.. Sax.. 227. CH. XXiri.] ANGIX>-NORMAN MONAflCJIY. 209 and John, were usurpers upon the rightful heirs, the assent of the Council hecarne a rnat^3rial confirm.'! tirju of a ba/l title. 'J'hus William IT. was chosen according to his father's dying request, Robert, his elder brother, being aet aside. Stephen was crowned without any Parliament, but he convoked soon after a Synod of the Clergy, who assumed to dispose of the Crown. The Em- press Maude had been acknowledged Henry's next successor at a Parliament held nine years before his death. On Henry H.'s decease the Queen convoked a Parliament to receive Richard I. and fix his coronation. At his death John held one at South- ampton, which gave him the preference over his nephcAX^ Arthur, the rightful heir to the Crown. It is manifest that little or no reliance can be placed up^)n such appeals to Parliament, as evincing the legal stnicture of the Constitution ; because the power of the great Barons was such as made it necessary for the Sovereign who would suc- ceed upon an infirm title to conciliate as many of them as he could, and no better way presented itself of strengthening a defective claim to the Crown than obtaining the consent of a council composed of those Barons and the heads of the Church. There seems great reason for believing that this also was the main if not the only reason for assembling Parliament when any measure of policy or new law was to be sanctioned ; and this is the remark subject to which I before stated the proposition, thai appeals to Parliament were evidence of some power existing iff the Constitution independent of and even superior to the King's. It is possible that this was rather an expedient to which the King resorted in (ionsequence of the power and wealth vested in the Barons, than an acknowledged and fundamental principle of the Constitution. Nevertheless the appeal to those assemblies on all important occasions, whether executive or legislative, i§ unquestionable. When a prince was disposed to make any grant or concession to the people, it seems not to have \)een held necessary that a Parliament should be summoned. This arose from the original principle of the Anglo-Saxon and Norman legislation. TTie law was held to be the King's decree ; he made it generally on the petition of the Witan, or great lords and prelates; but he might also make it of his own free will, provided it was a con- cession to the nation, which might be presumed as of fx>urse to p2 210 GOVERNMENT OF ENGLAND. [CH. XXIII. meet with their consent. The modern constitution retains this form, but extendino; it to all cases, as well those in which the prince yields something as those in which he claims something. According to this view of the matter Henry I. promulgated his famous Charter, renewing and confirming the old Saxon laws and those of the Confessor, of which we have no account, unless that of Henry's confirmation. It is a very important statement in this charter that all the alterations made by the Conqueror in Edward's laws are distinctly stated to have been made with the consent of the barons as well as the prelates. The treaty (1153) between Stephen and Henry H. was ratified in an assembly of Prelates and Barons^ who witnessed the charter then granted by Stephen. Stephen held three other councils, in which he agreed to confirm all the rights granted by Henry I. to the nation. The celebrated Constitutions of Clarendon, by which the clergy were subjected to the jurisdiction of the temporal courts, were made at a parliament attended by thirty-seven barons and eleven counts.* In 1191 a Parliament was held against the usurpation of Longchamp, in Richard I.'s absence, and to appoint a council of regency. In 1205 a Parliament at Winchester ordered every tenth knight in the realm to be raised and mounted at the charge of the other nine, as a force to aid in recovering the continental dominions of the Crown, and required every man, on an enemy landing, to rise and serve on pain of perpetual slavery with a heavy poll-tax. This Parliament is said to have been attended by the Prelates, Barons, and " all the faithful people of the King," which last term means only, as we have frequently shown, that the assent of all not summoned was assumed. When, in 1213, John surrendered the kingdom into the hands of the Pope, and agreed to hold it as a fief, doing him homage as his liege lord, a council of the Barons and Pre- * It is curious to observe the working of clerical-prejudice in an accurate, and, generally speaking, a liberal mind. When Dr. Lingard (i. 386) is mentioning the most important of those provisions, that which makes a clergyman triable for a crime before a civil or temporal judge, he treats it as an innovation upon the rights of the clergy ovei-turning the old law, and only says of it, " however it might have been called for by the exigencies of the time." Can he really mean to affirm that it required any peculiar '! exigency of the times " to render a priest amenable for theft, rape, or murder, like the rest of his fellow-subjects ? CH. XX [II.] ANGLO-NORMAN MONARCHY. 211 lates was held, and two Bishops, nine Earls, and three Barons signed the instrument. Nor were the Barons willing to forget this transaction, or indisposed to avail themselves of its disgrace- ful import when it suited their purpose. Soon after, they ap- pealed to Pope Innocent, as their liege lord, against John, for whom however his Holiness not unnaturally decided.* Although it seems to have been understood that all general laws must have the consent of the Parliament, it seems equally clear that the limits of the Royal authority in regard to taxation were very imperfectly defined, especially in the earlier period of the Anglo-Norman monarchy ; yet it is not very easy to determine whether the Prince in his exactions was committing an usurpation or only acting according to his prerogative. The Conqueror and his successors, beside their exactions from their vassals in the name of marriage, wardship, and the fines which they levied upon them on many other accounts, also levied tolls at fairs and markets, and on the passage of goods over bridges. No ancient charter granting a right of market with tolls, pickage, and stallage, ever purports to be by consent of Parliament. Customs were also levied on goods imported and exported at the havens of the realm. On towns, especially those in the demesne lands of the Crown, a tallage, in the nature of excise, was levied, and the inhabitants used to offer a composi- tion, which occasionally was refused. The Conqueror, of his own authority, revived the payment of Danegelt, which the Confessor had remitted ; and he is said to have raised by such means the incredible sura of nearly 11,000,000/. of our money. One of the provisions of Henry I.'s charter was a restriction of the Crown's power of fining. Instead of the culprit being in the King's mercy, as had been the case under his father and brother, that prince restored the Saxon were gelds, which ascertained the amount of fine for each offence. He also provided that no new taxes should thenceforth be imposed, and he materially lessened the burthen of the feudal incidents. Yet notwithstanding this charter, the result of the infirmity of his title at the beginning of his reign, his extortions were fully * Dr. Lingard, though he does not defend this base transaction, is anxious to extenuate it by all the means in his power. Nor can anything be conceived much more flimsy than the topics he resorts to ; for example, that the condition of vas- salage was reckoned honourable in those times ! 212 GOVERNMENT OF ENGLAND. [^H. XXIII. equal to those of his predecessors, although from the Barons making no complaint it is probable that he confined himself to oppressing the inferior classes and the towns. He also kept bishops' sees vacant three and even five years, during which he received all their revenues, and sometimes he seized all a pre- late's property at his decease. Canons being made against the marriao-e of the clergy, he sold at a high price licences to break these. Desiring to raise a large sum, by fining the parochial clergy who had transgressed some canon, and finding this yield very little, he at once and of his own authority raised a general tax upon them, and called it a fine for breach of the canons. It is certain that, with great talents and address, he was one of the most unprincipled and tyrannical princes that ever sate upon the English throne. The quarrels in which Henry II. was constantly engaged with the Church, probably restrained his violent and cunning nature so far as to prevent him from exciting general odium by interfering with the property of his subjects. But his suc- cessor, the favourite theme of all our romance-mongers' praises,* the gallant Coeur-de-Lion, was the most rapacious prince of his age. His shameless sale of Earldoms for money, and his re- storing to the Scots their castles long in the hands of the Crown, for large ransoms to feed his extravagance, as well as his eman- cipating them from their fealty to the English Sovereign, are acts of as scandalous and as mean profligacy as any which his despicable successor ever committed. The regent, De Burgh, whom he left to scourge the country when he went abroad in 1194, is said to have raised in two years a sum equal to eleven millions of our money at the least. The exactions of this functionary drove the citizens of London to resistance, and Fitzosbert's rebellion was the consequence. The Council of Regency in 1193, for his ransom levied a tax of 20^. on every knight's fee, and 25 per cent, on all income, ecclesiastical as well as lay. They appear to have had no Parliamentary authority for this ; although they were named to the Regency by the Parlia- Whoever admires Sir "Waltgr Scott's genius for romance-writing — as who must not .•' — naturally feels concerned for the failure of his Crusade tales to interest us in Richard. Nothing more unnatural, more upon stilts, more unbearable to read, than the speeches he puts into his hero's mouth, is anywhere to be found ; hardly his manufacture of speeches for Elizabeth, and of light conversation for Bucking- ham and Charles I. about " Sweet Will " (i.e. Shakspeare) and other matters. CH. XXIII.] ANGLO-NORMAN MONARCHY. 213 inent held in 1191, as has been already stated. Following their example, John, in 1199, soon after his accession, levied a seventh of the income as well as the personalty of his Barons by way of penalty for their having deserted him in his disastrous Norman campaign. In short, with the exception of the Parliament held at Nottingham in 1194, of spiritual and temporal Peers, we see hardly any example of a tax imposed by the National Council. That assembly imposed a tax upon land. The numbers which attended it, however, are a proof how little the principles of the constitution were understood, or the interference of the Parlia- ment valued ; only fifteen Peers of both kinds, lay and clerical, were present. It appears that in England as in France, a sem- blance rather than the reality of general assent to taxes was alone required for their being imposed. The great difference between the two constitutions was that the general laws appear in England always to have been made in the National Assembly or Parliament, while in France the King and his Council did no more than promulgate their edicts to the General Assembly, making sure of its assent, if indeed that assent was ever asked, of which there remains nothing like evidence. The power of the Crown in respect of the Church formed in these times a very important article of the constitution. In England, as in all other countries since the establishment of Christianity, the Bishops were originally the mere overseers of the clergy, and possessed of no temporal wealth or power under a religion of which poverty was the chief characteristic ; and they were chosen partly by the clergy, and partly by their lay flock, as we have seen in the first part of this work (Ch. xi., XVI.). But in proportion as their importance increased, the Church showed a desire to exclude the laity from interfering in the choice, making a decree in the Council of Constantinople, 869, against all lay votes at elections, and also against the Chap- ters receiving any royal nomination. At the same time the sove^ reigns evinced an equal disposition to interfere with their choice of prelates. Sometimes they accomplished, by main force, their purpose of directing the election ; more frequently by influence. In Spain alone was the power of appointment vested dirc-ctly in the sovereign, by a grant of Urban II., in 10c58. In France, although the princes of the two first races assumed the nomina- tion, they afterwards yielded it, at least nominally, to the clergy. 214 GOVER]\3IENT OF ENGLAND. [CH. XXIII. In England the right of the Chapters was not denied ; but then the King claimed two important privileges; he insisted upon his licence to elect being necessary before the Chapters could proceed, which gave him the previous power of recommending whom he pleased, and he then required the presentment of the prelate when chosen for his confirmation or acceptance, which gave him a veto on the election in the last stage. The monas- teries in some cases claimed the right to the exclusion of the secular clergy, a claim admitted by even the stoutest advocates of the Romish Church to be wholly preposterous. The quarrel between John and the See of Rome began from the monks of Christ Church claimhig to elect the Archbishop of Canterbury, and the Pope allowing this claim upon an appeal to him by all parties. The Anglo-Norman Kings may be said substantially to have directed the choice of all their prelates, though not to have directly named them. On particular occasions they made their appeal to the Great Council of the Barons, or Parliament, as when William the Conqueror appointed Lancfranc in 1070, by consent, it was said, of the Barons, probably because he was a foreigner, being a native of Pavia. The Barons appear occa- sionally to have interfered in this matter without being con- sulted, for we are told that they combined against Guitmond, to whom the King had offered an English see, which he refused on the ground that the King had no right to impose superiors on the clergy ; and this answer was said to have been so distasteful to the Barons, that they drove him from Normandy after pre- venting him from being raised to the See of Rouen. The only instance in which the Anglo-Norman Kings lost any of the Prerogatives which those of the Saxon times had possessed, was on the Earldoms becoming hereditary, as in Nor- mandy, instead of being, as formerly, conferred for life only. This difference was probably more in name than in substance ; for the Earl's son must generally have been so much more pow- erful than the rest of the Barons in the district as to ensure his nomination upon his father's decease. But, even were it other- wise, we may easily perceive that, with such influence over the clergy, with the direct power of appointing to all judicial and otlii^r executive offices, with their exorbitant landed property, and their numerous retainers, to say nothing of their privilege of mterfering with the course of justice and with property by its CU. XXIII.] ANGLO-NORMAN MONARCHY. 215 administration, they must have possessed a power so extensive as to reduce the privileges of the subject within narrow limits. There are two tests of the extent to which Royal prerogative is enjoyed in any community. The one is the power of making, or concurring in making, the laws by which the state is go- verned ; the other is the power of ruling arbitrarily, so as to set at defiance any laws which may nominally exist for the govern- ment of the state. The former in theory may appear to occupy a larger space, because the legislative in truth means the su- preme power in every country. But the force of the law itself, and consequently the value of the legislative authority, is truly tested by the latter circumstance, inasmuch as the silence of the law before the Monarch sets him above it, and if all his other attributes enable him to defy it, there is but little lost to him in having no power to change its provisions. Practically he may be absolute, though forming part of a constitution theoretically limited ; not to mention that if the existing laws do not interpose obstacles to his tyranny, it signifies very little that he should be unable of his own mere authority to change them by new enactments. If we apply these principles to the prerogative of the Anglo- Norman Crown, we shall find little reason for believing it to have been of a very limited nature. The Princes who reigned from the Conquest to the granting of the Great Charter were, in the strictest sense of tlie word, tyrants ; and Stephen, were he excepted from this description, owed his curbed authority to the constant rebellion of his Barons, and his disputed succession to the Crown, which filled his reign with anarchy, and covered the country with desolation. These Princes not only displayed th(3 fiercer disposition of tyrants, with the caprice of their ungo- vernable humours, but they were constantly gratifying their arbitrary or cruel propensities at the expense of their subjects, and without exciting resistance or suffering restraint. The Conqueror, not content with possessing sixty-eight forests, with other old parks and rights of free chase for the amusement of hunting, to which, like all his race, he was passionately addicted, threw into a New Forest (the name it still bears) great part of the fine county of Hants, thirty miles square in extent. This operation was repeated in other districts by his sons and grand- sons, and it implied the destruction of all the property within 216 GOVERNMENT OF ENGLAND. [CH. XXIII. the district thus seized, the razing houses and cottages to the ground, the throwing lands out of tillage, the expulsion, and often the destruction, of the inhabitants. A promise to abstain from such waste was frequently made by these Princes when they had any point to gain, as to excite a spirit of hostility to the refractory Barons ; and it was as often broken as made. At length the Charter of the Forest was extorted from John ; its effect was to disafforest all that had been thus wasted since Henry II. 's time, and it prevented the future spread of this in- tolerable mischief. These Princes often prohibited under severe penalties any person from hunting on his own domains, or granted to one the exclusive right of chase over another's pro- perty, a right not yet wholly extinguished in all parts of the island.* But the worst of the Conqueror's crimes remains to be told, and the one which most strikingly proves under how little re- straint the caprice and the cruelty of the Norman Princes were placed by the Constitution, how much soever they may have been occasionally thwarted by their Nobles, barbarians as cruel, as overbearing, and as lawless as themselves. He resolved to draw a zone of desolation — a desert country — between his do- minions and the northern tribes, who had given him trouble by their incursions ; and accordingly he dispersed over the northern comities bands of soldiery, with orders to burn, sack, and ravage the land, sparing neither man nor beast. The whole country between York and Durham was thus laid waste; upwards of 100,000 persons of all ages and both sexes, not enemies but subjects, were slain ; and a century afterwards the traces of this awful devastation were discernible on the whole of that road for above seventy miles. When we hear of Eastern Despots we must confess that they would be greatly slandered by any comparison of the Norman king's conduct with theirs. No instance is on record of any Oriental Prince ever thus treat- ing the territory and the people subject to his dominion ; their ravages are confined to hostile countries and inimical nations. William Rufus passed his short reign in the unbridled gratifi- cation of his voluptuous passions and his cruel disposition ; butchering prisoners with his own hand ; laying waste districts * The maxim in "William's time was — " Whoso shall slay hart or hind, men shall him blind." CH. XXIII.] ANGLO-NORMAN MONARCHY. 217 to extend his parks ; putting out the eyes of his captives when they were of rank — ah Oriental cruelty, in which all the Anglo- Norman Kings indulged. It was his encomium on his rapacious minister, Ralph Flambard (the devouring torch), that to please a master he would brave the vengeance of all mankind ; and his exactions were so intolerable, that the blow which deprived Wil- liam of life was supposed to have been directed by private revenge. Henry I., the scholar, as flattering historians have named him, when alarmed by the resistance of his Barons, pursued a policy the most profligate and tyrannical ever known in modern times ; he employed all the energies of the law and the services of corrupt judges to entrap and convict great landowners, whose forfeited estates on their attainder he bestowed on men of the basest extraction and most abandoned lives. Outlaws themselves for infamous offences, they thus became suddenly possessed of immense wealth, and formed a trusty body of alHes against the old Barons of the realm. His dissimulation was proverbial ; his violent temper bespoke him the son of William ; his dungeons were crowded with victims ; and, at his death, there was found his cousin, the Earl of Mortoil, who had long been in the dun- geon, and had likewise been deprived of sight. Barre, a trou- badour poet and knight, prisoner of war, was ordered by him, in revenge of a satire he had written, to lose his eyes, notwith- standing the remonstrance of the Earl of Flanders, who was against a proceeding as cowardly as it was against the laws of chivalry and war. Henry persisted, and the unhappy victim dashed out his brains in a paroxysm of grief and indignation. The passion of the chase was not merely shown by the Anglo- Norman Princes in laying the country waste to extend their forests ; they established a code of forest laws the most cruel and barbarous of any known among men pretending to the least degree of civilization. All within the forest precincts, and all who dwelt on the borders, were subject to this sanguinary code. It punished the slightest of the innumerable offences which it denounced against the game and the timber, with mutilation, loss of limb, and loss of sight. Henry II. had, at the commence- ment of his reign, when his crown was doubtful, substituted for these punishments the more merciful penalty of fine and im- prisonment ; but as his authority became better established he 218 GOVERNMENT OF ENGLAND. [CH. XXIII restored the old and savage inflictions. His rapacity yielded to no Prince's since the Conquest ; justice was openly bought and sold durino- his lono- reign, and instances are not wanting of his tak- ing money from one party to accelerate the decision of a suit after having been bribed to retard it by the other. That he was the best of William's successors may easily be admitted, without bestowing upon his memory any great praise ; but when Hume r(ipresents his character as " almost without a blemish ;" and adds, that it " extremely resembled that of his grandfather Henry I.," we are naturally led both to reflect on the sangui- nary forest laws revived by the one Prince after he had yielded to the voice of nature in their repeal, and on the corrupt admi- nistration of justice, as well as on the barbarous cruelty of the other, in which he had not been surpassed by any sovereign who ever filled the English throne. As for Richard, Hume himself, with all the " childish love for kings " which Mr. Fox so justly ]*!! putes to him, has confessed that he was cruel, haughty, tyrannical, and rapacious; and indeed his courage appears to have been his only redeeming quality. I apprehend, therefore, that the exercise of such tyrannous acts as we thus find to have signalized the Anglo-Norman reigns, and without ever producing resistance from the subject, much less remonstrance from the Parliament, demonstrates the extent of the Royal authority and the feeble restraints imposed upon it by the constitution. Provided the King only called his Barons together upon great occurrences, to confer with them touching measures of peace and war, or to obtain their assent to new laws^ it should seem that he was at liberty to act as he pleased ; that the administration of justice afforded no protection to the people ; and that the privileges of the Parliament afforded no real check to the caprices, or the cruelty, or even the rapacity of the Prince. It is quite certain that although in England there was at all times a legislature, of which the King formed only one portion, and though the foundations were then laid from the most remote antiquity for the free government which was gradually raised upon them, yet as far as regards the actual power of the Sove- reign it was fully as great to all practical purposes, and that the rights and liberties of the people were fully as contracted, as in the neighbouring kingdoms of France and Germany* Indeed CH. XXIII. 1 ANGLO-NORMAN MONARCHY. 219 the Baror>ial power, which formed the principal counterpoise in practice to the exercise of the Royal prerogative, was unquestion- ably more curbed and subdued in England than in the monarchies of the Continent. There can be no creation of national vanity more groundless than the notions which represent our ancestors as enjoying more freedom, and their princes as holding a more limited authority, than was known in the feudal monarchies of the neighbouring nations. ( 220 ) [CH. XXIV. CHAPTER XXIV. GOVERNMENT OF ENGLAND — FOUNDATION OF ITS PRESENT CONSTITUTION. Four essential requisites of limited Monarchy — Error of supposing nominal privileges real Causes of the resistance to John — Great Charter — Forest Charter — Broken by John — Civil War — French aid called in — Henry III. — Pembroke Regent — Confirmations of the Charters — Mad Parliament — King deposed — Simon de Mont- ford — His Parliament with Borough Members — Edward I. — Earls Bohun and Bigod — Statute against Taxing by the Crown — Parliamentary Constitution fully established in Law — Merits of Cardinal Langton — Compared with Archbishop Winchelsey — Errors of Romish Historians — Edward I.'s Legislation — His "Wars. The history of our ancient Constitutioii, as far as we have now traced it, appe^Prs very fully to prove one material proposition respecting its structure. The mere existence of a legislative body independent of the Sovereign, though endowed with the right to share in the making of all laws, and though even admitted to the occasional privilege of being consulted upon extraordinary emer- gencies, whether of war or of finance, did not of itself secure the freedom of the country, or fix limits to the exercise of the Royal authority. In order to attain these great objects of all free government, it is absolutely necessary first of all that the national assembly should be composed of persons entitled to sit in it of their own right, or by some other title than a Royal summons, which may be withheld at pleasure. But it is equally essential, in the second place, that it should be summoned regularly, or that the Royal authority should be so circumstanced, the Sovereign so situated, as to make his calling the members together a matter of necessity. Thirdly^ even if they are secure of meeting, unless their assent be required to all measures of importance, and the Sovereign be held bound by the laws of the realm, no effectual check can be provided to his arbitrary power. Lastly^ unless the members, of one at least of the assemblies, owe their seats in that assembly to the voice of the community at large, or are CH. XXIV.] FOUNDATION OF THE CONSTITUTION. 221 taken from the body of that community, and so have the same interest with their fellows, the security of the public interests and liberties must be altogether imperfect ; the Crown may be limited in its power ; the Parliament may be clothed with important privileges ; many of the greatest abuses may be pre- vented, considerable assurances of the general good being the guide of the government in its administration may be obtained ; but nothing can prevent the machine from working with a bias towards the interests of particular classes in the community, those classes composing the assembly, because the deliberations of that body must lean towards the interests of those who form its members. It is necessary to keep these fundamental principles constantly in view while considering the ancient structure of the English Government, else we shall surely' be deceived by the mere name of a Parliament, and fancy that because there was always in England a National Council, there was always a free Con- stitution. There cannot be a greater mistake. When William laid waste Hampshire for a hunting ground, Yorkshire* and Durham for a security to his conquests — when his successors each in his turn imitated his example as far as their pleasures were concerned — when they imprisoned in English or in Nor- man dungeons those grandees who had offended them, and put out their eyes like Persian or Egyptian Sultans — when they proclaimed the life of a man and of a stag of equal value, and mutilated the peasant who presumed to kill the deer or the hare that had trespassed on his corn-fields — those tyrants, thus well earning the character given by the Chronicles, " that while the rich moaned and the poor murmured, all must follow the King's will who would have either lands or goods," yet could none of them make any law without calling together a Parlia- ment in order to obtain the assent of the Prelates and the Barons. No more clear proof surely needs be given of their thoughtless folly who, in the zeal of party or the overflowing of national vanity, scruple not to affirm that the English have in all ages enjoyed a free because a Parliamentary Constitution. The four great requisites of a real and effectual Parliamentary government — independent right of the members to sit, security for meeting regularly, necessity of being consulted, and general representation — were only obtained by our ancestors in the long 222 GOVERNMENT OF ENGLAND. [CH. XXTV. course of ages, during which the Constitution became gradually more and more perfect. The foundations of the whole, how- ever, were laid at a very early period, when the Barons came in conflict with the violence of the King, and when they found that the most effectual way of resisting his encroachments and securing their own rights, was not by making war upon him, but by securing the calling them to the national assembly, of which they formed the most important part as regarded influence in the country, although less important than the clergy in point of personal weight and authority. This first step was made in the reign of John, and others of almost equal importance were at the same time partially made. The immediate cause of the quarrel between John and his Barons is extremely immaterial. From the beginning of his reign he had fallen into genefal contempt, by the feeble conduct which lost Normandy to the Crown ; and the Barons resisted all his attempts to make them aid him in recovering it. For their disaffection he had rapaciously levied large sums, as we have -seen (Chap, xxiii.), the seventh, it is said, of their per- sonal property, under pretence of punishing their misconduct. The cruel murder of his nephew Prince Arthur impressed men's minds with the greatest abhorrence of him ; and his general conduct was that of a profligate, a cowardly, and a blood- thirsty tyrant. An association of the Barons was formed, and they held a council at St. Alban's in 1214, under the Justiciary, when, without the King's concurrence, they republished the Charter of Henry I., and threatened the King's oflScers with death if they in any way exceeded the bounds of their lawful authority. Soon after a second Council was held by them at St. Paul's, in London, and an oath taken to stand by one another with their lives and fortunes until redress should be obtained. After fruitless attempts to divide their league, John was next summer compelled to yield their demands by granting both the general or Great Charter and that of the Forest, hardly of less practical importance than the former. The Barons had found it necessary, in carrying on their long struggle against the tyrant, to take measures for conciliating the people and securing their support in case matters were pushed to the extremity of a civil war. Hence the same concessions which they demanded from the King to his vassals, they them- CH. XXIV.] FOUNDATION OF THE CONSTITUTION. 223 selves made on their parts to their own ; and the feudal oppres- sions were thus mitigated both to themselves as tenants in chief of the Crown and to their sub-tenants. The King and the other feudal lords were restricted in their demands of aid from their vassals to the three cases of knighting their eldest son, marrying their eldest daughter, and ransoming their person if taken in war ; all other aids must have the consent of Parliament. The King's ministers were deprived of all the jurisdiction by which they had previously levied fines arbitrarily for offences in order to fill the Royal coffers. His officers were no longer permitted to take provisions for his use on his progresses through the country, termed purveyance. Justice was declared to be no longer within the King's breast to deny, or delay, or sell it to the highest bidder, as Henry 11. had so shamelessly done. Judges were henceforth to go the circuit all over the country at stated times. It was expressly provided that no free man should be imprisoned, or his goods seized, unless upon conviction by a jury of his peers, according to the law of the land. But the most important pro- vision in the Great Charter, as regards the form of the govern- ment, related to the summoning of Parliament. The clause which prohibited the raising of aids without the consent of a Council, required it to be composed of Archbishops, Bishops, Abbots, Earls, and greater Barons, all of whom were to be sum- moned individually by the King's writ, and of the other tenants in capite of the Crown, who were to be summoned in the mass by the sheriffs of counties. The notice of forty days was to be given them, and the subject-matter of their deliberations was to be stated in the summons. It is remarkable that this important clause formed no part of the original demand of the Barons ; and that it was omitted in the charter subsequently granted by Henry III. There seems reasonable ground for suspecting that the Barons little valued this provision ; they were obliged to attend the King's court as a burthen incident to their feudal tenure ; and the principal object in the clause was to declare that those who neglected to attend should, if the Parliament were duly summoned, be bound, though absent, by the deter- minations of those who were present at any council. It must be further observed that this provision refers exclusively to one spe- cies of council, that which should be held for the granting of an PART III. Q 224 GOVERNMENT OF ENGLAND. [CH. XXIV. aid or supply to the Crown. But, on the other hand, the inser- tion of the provision sufficiently proves the greater attention which was now paid to the subject of taxation. We have seen in the last Chapter how irregularly the power of levying money was exercised, and how seldom the Norman Princes resorted to Parliament for their extraordinary supplies. The loss of many landed possessions, especially during the civil wars of Stephen and Maude, and the loss by John of the Norman dominions, had now so far impoverished the Crown that recourse was more fre- quently had than formerly to the levying of extraordinary aids ; and hence the care taken to make this provision in the Charter. It is a further and important proof of the progress which the towns and ports had made in wealth, that their privileges and liberties are guaranteed by a specific clause ; so that the power hitherto exercised of levying tolls and customs upon the markets and upon imports could no longer be lawfully used by the King. The Forest Charter declared that all the land taken in to form parts of Royal forests, since John's accession, should be thrown open, and that twelve Knights should be chosen in each county court to inquire into forest abuses, and abolish all illegal cus- toms which ha.d been introduced, as well as to examine the con- duct of the sheriffs and inferior officers of the Crown. In order to secure the execution of the Great Charter, an ex- traordinary step was taken. Not only the Tower of London was delivered into the hands of the Barons for two months ; but twenty-five of their number were chosen, without any limitation of time, as Conservators of the Privileges of the Realm, autho- rized, upon- a complaint made, to admonish the King, and em- powered, if redress were refused, to levy war against him. All persons were required to swear obedience to them, and, in fact, the executive power was entrusted to their hands. Nothing can more clearly show that the whole proceeding was of a revo- lutionary character; and, accordingly, John no sooner saw the Barons disperse than he collected his troops, ravaged the whole country, and, finding no resistance from the League, would have entirely effaced all recollection of his submission at Runnimede, had not the Barons, unable to cope with him, called in Louis, the French King's son, and delivered over the crown to him, in the defence of which he was engaged when the death of John and the able administration of the Resent Pembroke enabled CH. XXIV. J FOUNDATION OF THE CONSTITUTION. 225 the Barons to defeat him, and to restore the independence of the kingdom. The first step taken by the Regent, when preparing for this important operation, was to assemble a Great Council or Parlia- ment, which was attended by all the Prelates and Abbots, some Barons, and many Knights. The Great Charter was renewed and confirmed with some omissions, among others that of the clause authorizing resistance, that respecting the summons to Parliament, and that respecting the forest abuses. But those provisions were expressly reserved for further consideration in a full assembly. Another confirmation of the Charter was given soon after. Many years later Henry called a Parliament to grant him an aid, which was at first refused, but afterwards given, on the ground of a threatened invasion from France. The assembly granted a fifteenth of personal property, but made the ratification of both the Charters an express condition of the grant. Notwithstanding the two former confirmations, little effect was given to the provisions of those Charters by the King's officers. They were since renewed no less than five-and- thirty times in the reign of the Plantagenet Kings down to Henry VI. ; and always in the same form which they assumed in the 9th of Henry IH. This Prince was ever in want of money, and he confirmed the two Charters in all six times ; once or twice he was compelled to swe^r that he would observe them religiously. The misfortunes which afterwards befel him are well known. In 1258 a Parliament called by him at Westminster was at- tended by the Barons, who assembled in armour, and, requiring redress of their grievances, compelled him to deliver over the greater part of the Royal prerogatives to a commission of lay and clerical peers, who should be named in a Parliament speedily to be holden at Oxford. This, which is known by the name of the " Mad Parliaments^ virtually deposed the King, vested the re- presentation in twelve persons, and appointed Parliaments to be held three times every year. The victory of Simon de Mont- ford at the Battle of Lincoln led to his usurping the Royal autho- rity ; and, in 1264, he assembled such a Parliament as he consi- dered would be favourable to his views. The writs of summons ran not only to Prelates, Abbots, and Barons, such being selected as were known to favour him ; but four Knights were called to q2 220 GOVERNMENT OF ENGLAND. [CH. XXIV. be elected in the court of each county, and two deputies from each city and borough town. The lesser Barons and free tenants had in all probability for some time before been in the practice of sending two or four of their own number to attend the Council, and save the whole freeholders the trouble and ex- pense of attendance ; but it seems certain that this was the first occasion in which the towns sent representatives. I have entered so much at large into this controverted question in the Seventh Chapter of this Third Part, that there needs no further discussion of it here. But we may observe, that, although the ovWm of our burgh representation seems thus to be fixed, we are alto«^ether in the dark as to the mode in which the represen- tatives were chosen. The freeholders chose their representa- tives at the county court; we know not how the townfolk chose theirs. In the Chapter just referred to I had occasion to trace the early history of the Parliament thus for the first time composed as it has ever since been. It appears that during the whole of Ed- ward I.'s reign, till towards the latter end, though the cities and towns were summoned, yet their members did not attend regularly unless when the question of taxes upon these places arose. This seems to be the result of the best examination which I have been able to give the Statutes and the Writs. The towns which had the earliest writ of summons were those in all probability of the Royal demesne, they being in the nature of tenants in chief of the Crown. For the details of the question regarding the origin of the representation, and for the early history and the peculiarities of the Scotch Parliament, the reader is referred to the Seventh Chapter, in which it appeared, for the reason there assigned, ne- cessary to anticipate a portion of the subject, belonging naturally to the present discussion. The most im|)ortant step which was made in those times to- wards the establishment of a Parliamentary constitution, was the concession extorted from Edward I. towards the close of his reign. We have seen that the clause in King John's Great Charter, forbidding the Crown to levy any aid not granted by Parliament, was immediately afterwards struck out of the con- firmations granted in Henry III.'s time ; and greater oppressions than ever were practised in levying taxes upon the people. The revenues of the Crown from land were much diminished ; the CH. XXIV.] FOUNDATION OF THE CONSTITUTION. 227 numbers of men liable to military service had also greatly de- creased from the negligence of the mustering officers ; and the turbulence of the feudal militia rendering the sovereign unwill- ing to employ them, he had recourse to hiring mercenaries, or bargaining with the Barons for paid forces. A great necessity for supplies was thus experienced by Edward in the course of the constant wars which he waged in Wales, in Scotland, and in France. To obtain these supplies he had frequent recourse to Parliament. In the first thirty- four years of his reign he had twelve times assembled that body for this purpose, and obtained twenty-one grants from the laity and five from the clergy. The former amounted in all to nearly the whole personal property in the kingdom ; the latter did not fall much short of a whole year's income of the Church. Yet still his wants were pressing, and he had recourse to the most violent means for supplying them as often as the Parliament refused the aids which he required. He occasionally levied tallages, or a per centage, on all personal pro- perty, of his own authority. All his predecessors had maintained their right to do so. John had sent itinerant justices round the counties for the purpose of swearing the bailiffs of all the land- owners to the amount of their goods and rents. Henry HI. had caused the same inquisition to be performed by four knights in each county, these commissioners being chosen by the justices. They swore each person to the amount of his own and the personal property of his two next neighbours ; and a jury of twelve men was to decide if the amount thus given in was disputed. Edward likewise sent out commissioners round the country to ascertain and levy the amount of tallage, as well that granted by Par- liament as that which he imposed, more rarely, of his own autho- rity ; and the oppression and corruption of these officers was a cruel grievance to the people. But when he found a diflSculty with the Parliament he did not confine himself to exacting tall- age after the manner of his predecessors ; his' expeditions made other supplies necessary ; and, fortunately for the liberties of the country, he had recourse to means which proved still more vexa- tious, till the evil worked its own cure. He raised, arbitrarily, the duties on exported wool, and forced the merchants to give him a loan equal to the whole value of the quantity shipped by them, and he more than once seized all their wool and hides, and sold them for his own use. He equally assailed the landowners, 228 GOVERNMENT OF ENGLAND. [CH. XXIV. seizing their live stock, and issuing orders to the sheriffs to col- lect both provisions and grain for his army. A spirit of resist- ance was excited by these violent encroachments unequalled even in the worst times of his predecessors, and the Barons under Bohun and Bi"-od so far intimidated the officers as to stop the purveyances which the King had ordered. Edward was alarmed by the proceedings of the two earls, made his peace with the clergy, gained over the citizens of London by a flattering speech, and sailed for the Continent. But he soon ordered a large levy to be made on the clergy, and thus united them with the people in support of the earls. The council appointed to assist the Prince of Wales in the regency took the same course, and Ed- ward was compelled most reluctantly to grant a solemn confirma- tion of the two Charters, with this important addition, that no aid or tallage should thenceforth be raised, unless by the assent of Parliament — that is, of the Prelates, Barons, Knights, and Bur- gesses of the realm ; that no seizure of wool, hides, or other goods should be made by the Crown, nor any toll taken upon them ; that all customs and penalties contrary to the Charter and to this additional article should be void ; that the Charter so amended should be read twice a year in all cathedrals ; and that all persons acting against it should be excommunicated. Edward endeavoured soon after to evade the force of the obli- gation thus solemnly contracted ; and added a clause, saving all the Crown's rights. This, when proclaimed, excited so great a clamour in the city of London, that he again became alarmed, and gave his unqualified retractation of the clause. The year after, 1300, complaint being made in Parliament that the Charters re- mained unexecuted, he was obliged to grant an additional article, that the Charter should be read four times a year in all the she- rifts' courts, and that three knights in each county should be chosen by the freeholders, with power from the King, to punish summarily all offences not otherwise provided for against the Charters. In the course of two or three years, however, he openly violated the new law thus made, levying tallage and poll-tax without resistance. He also appealed to the Pope to be absolved from the obligations which he had contracted ; but though he obtained a rescript declaring all his concessions void, as it artfully contrived to state the supposition that they had been contrary to the lawful rights of. the Crown and saving to the sub- CH. XXIV.] FOUNDATION OF THE CONSTITUTION. 229 jects their ancient rights, he never ventured to use it ; so that at his death, two years after, he left the famous statute prohibit- ing all taxation without the consent of Parliament, as the established law of the land. Although we should admit that the provisions in the Charter, thus confirmed for the tenth time, and the important additions made to it, were but imperfectly kept, that they were so often violated as to require constant renewals with repeated pledges, no less indeed than fifteen times in the next reign but one, it is nevertheless certain that a prodigious advantage was gained to Constitutional Government and popular rights by the nation having the text of a treaty to cite, the provisions of a lav/ so- lemnly made in writing and universally known to rely upon in their disputes with the Crown. The Prince who now levied money without the consent of Parliament, or who assembled a few dependent Barons and Burgesses instead of the whole Lords and Commons, acted avowedly and openly an illegal part, and plainly violated a known, established, and fundamental law of the land. It might depend upon the temper of his subjects at the moment, upon the force at his command, upon his success in courting and gaining one class of men to side with him against the rest, upon the courage and patriotism of the Parlia- mentary and popular leaders, above all upon his own personal endowments, and his credit with the country for an able and successful administration of its affairs, whether he should be suffered to break the law with impunity, — whether he had to dread resistance to his oppressive acts, — and consequently it would naturally depend on all these circumstances whether or not he should venture upon so unlawful a course. But there can be no doubt that he was sure to be often restrained in making the attempt, sometimes opposed when he made it, and occasionally punished when he ventured so far. The most im- portant part of the new law of Edward was the renewal of the provisions originally inserted nearly a century before, and im- mediately afterwards left out, with the more precise recognition of the power of Parliament, and the important addition of the (bounty and Burgh representation. From this period we may truly say that the Constitution of Parliament, as now established, took its origin ; and however that body may have occasionally nad to struggle for its privileges, how often soever it may have 230 GOVERNMENT OF ENGLAND. [CH. XXIV. submitted unworthily to oppression, how little soever it may have shown a determination to resist cruelty and injustice, and even a disposition to become the accomplice in Mch acts, we must allow that, generally speaking, it has, ever since the end of the thirteenth century, formed a substantive and effective part of the Constitution, and that the monarchy then assumed the mixed form wliich it now wears. The great outline was then drawn ; the details and shades and tints have since been filled in. The English nation ought piously to hold in veneration the memory of those gallant and virtuous men who thus laid the foundations of a Constitution to. which they are so justly attached. The conduct of the Barons in John's reign is indeed above all praise, because it was marked by as much moderation and wis- dom as firmness of purpose and contempt of personal danger. Tliey had no sooner held their Council at St. Albans, and pro- claimed the Charter of Henry I., than the tyrant, landing with his foreign troops, marched to lay their estates under military execution, and take signal vengeance on their persons. Car- dinal Langton, the Primate, who, though forced on the kingdom by papal domination,, had ever shown himself a true patriot stayed his progress by his peremptory remonstrances, and by his threat of excommunicating all who should engage in such a warfare, while the legal course of bringing offenders to trial was open to the Crown. He afterwards encouraged the Barons, at the Council of St. Paul's, to insist on Henry's Charter, and ex- cited them by his persuasive eloquence to take the famous oath, which he solemnly administered to them, that they would die sooner than depart from this demand. He had already com- pelled John to promise the same Charter, then termed the Con- fessor's Laws, as the condition of reversing his excommunica- tion. Once more, in the assembly of Bury St. Edmunds, he influenced them by his eloquence, and they took their oath at the altar, to make endless war on the King until he granted their demands. Nay, when John, in order to gain over the clergy as a last expedient granted them a charter, abandoning all right of interfering with the choice of Bishops, and declaring that their election, though not confirmed by him, should still be valid, promising, moreover, to lead an army to Palestine, and taking the cross himself as a pledge of his pious resolution, the CH. XXIV.] FOUNDATION OF THE CONSTITUTION. 231 Primate was so little to be moved from his principles, or duped by such tricks, that he adhered to the party of the Barons throughout, only so far gained the King as to make himself the bearer of propositions for their consideration, and, when the Pope had commanded him to yield, positively refused to excommu- nicate them, according to the papal threats, but threatened to excommunicate John's foreign troops unless they were instantly disbanded.* But as the Pope's whole conduct in this important affair was wholly unjustifiable, and indeed despicable, and as his successor in Edward's time had no share in the resistance offered by the Barons, the Romish advocates are fain to claim for their Church a share not only in the proceedings which extorted the Great Charter from John, but also in those which rendered it effectual to its purpose under Edward. Accordingly, Dr. Lingard, while he places Langton on a level with the Barons of Runni- mede, pronounces Archbishop Winchelsey the author, with the two earls, Norfolk and Hereford, of the great change in 1297. Nothing can be more absurd. He wholly overlooks Langton's great praise, of having alike opposed the encroachments of Rome and of the domestic tyrant, of having faced the indignation of the Vatican, refused to execute its menaces, and used its thun- der against John and his foreign mercenaries — of having shown so noble a disregard of his order and its interests, that the bribe of the January charter fell as powerless before him as the threats both of Innocent and his vassal. Winchelsey, on the contrary, was ever in league with Boniface VIII., obtained from him the bull against lay encroachments, took up his posi- tion in defence of the Church revenues behind that bulwark, was melted by Edward's speech and tears at Westminster, as much as the mere mob, to whom the crafty Prince appealed * I feel assured that this is the correct view of Laugton's conduct, notwith- standing the suspicion that may be supposed to rest on it from his having been employed by John after his Charter of the 15th of July in favour of the Church. It is certainly true that the Primate was tendered with the Bishop of Ely and Earl of Pembroke as his security to the Barons for his promise in January to give them an answer at Easter to their demands. He was also joined in the mission to the Farls of Pembroke and Warenne in April. But his refusal to excommunicate them, his threats of excommunicating the foreign troops, and the Pope's letter in Marrh, insinuating that he fomented the dispute, seem decisive in his favour*; not to mention that his suspension from his see by John continued to the end of that tyrant's reign. 232 GOVERNMENT OF ENGLAND. [CH, XXIV. against bis Barons, and was evidently disarmed by tlie order immediately after issued in imitation ot John's early Charter, so utterly scorned by Langton, to protect the clergy in the en- joyment of all their possessions, and Edward immediately took him into favour, appointing him one of the young Prince's tutors and Council as Regent in his absence. His conduct in this office has been extolled. But to what did it amount ? On the Barons refusing to attend the Council's summons to Parlia- ment unless the gates of London were given up to their keeping, Winchelsey advised that this requisition should be complied with, clearly against his duty as the Regent's chief councillor. He appears throughout to have acted an interested pari, prompted solely by a regard for the interests of his order ; and the whole merit of the great change which we have been contemplating belongs to the Barons, the merchants and their leaders, Bohun of Hereford, and Bigod of Norfolk.* The clergy all behaved like th^ir Primate. Edward's corcessions won them over to his side, and they left the barons and the people. On his sailing he, forgetting these concessions, ordered a heavy tallage to be levied upon their personal property ; straightway they left him, and once more took part with the country. While Edward has justly obtained the highest praise from lawyers for the great improvements which he introduced into our jurisprudence, we may remark that the two great changes which he made in the law were pointed in directions not merely different, but diametrically opposite. The power of the Barons and of all landed proprietors was exceedingly increased by the famous statute de Donis, which allowed them to entail their real property, and thus to sustain the landed aristocracy. But the restraints upon alienations to the Church by the laws of mort- main tended exceedingly to restrain the power of the spiritual Barons, though they might also give some additional protection to the lay aristocracy. * The answer of the latter to Edward, when ordered to follow him abroad as commander-in-chief, is well known. " By the eternal God, Sir Earl, you either go or hang." — " By the eternal God, Sir King, I neither go nor hang." The Primate and his Clergy were contented with a lower tone. They begged the Commissioners sent by the King to represent that they had a spiritual head as well as a temporal, and must first lievc his leave to pay their money — adding, " We dare not speak to the King ourselves." CH. XXIV.] FOUNDATION OF THE CONSTITUTION. 233 The conquests of Edward had no sensible tendency to increase the power of the Crown. Scotland was a source of expense and of weakness. Wales was a still greater diversion to his forces, without producing the least return either in men or money. On the Continent he was generally unsuccessful, and he found the expense and defence of his dominions there fully equal to any benefit they ever yielded him. ( 234 > [cii. XXV CHAPTER XXV. GOV^ERNMENT OF ENGLAND THE PLANTAGENET8. Edward II. — The Ordinances — Virtual Deposition of the King — His actual Depo- sition— Edward III. — His Encroachments — Checked by Parliament — Right of levying Men — Restrictions on it — Parlianr\entary Elections and Procedure more obscure— County and Borough Elections — Composition of the Lords" House — Of the Commons— Places of meeting— Powers of the Houses severally — Partial Parliaments summoned by the Crow^n — Procedure — Triers ; Petitions ; Bills — Preparing of Statutes — Mode of executing them— Vacation Committee — Richard 11. — Revolutionary times— Henry IV. — Henry V. — Progress of the Commons under the Lancastrian Princes— Henry VI.— Progress of Parliamentary Privilege — Base conduct of the Plantagenet Parliaments— Richard 111. — Henry VII. — Decline of Baronial Power. The more regular establishment of the Parliament, and the more full recognition of its privileges, was plainly to be seen in the events of the next reign. Edward, on his death-bed, had extorted a promise from his son that he would never allow his unpopular favourite. Piers Gaveston, to return from banishment without the Parliament's leave. That body made the favourite's return without their assent the ground of hostile proceedings against him, and his perpetual exile was made one of the conditions annexed to their first grant of a subsidy to Edward II. The annexing as a condition the redress of public grievances was now the course taken by them as a natural consequence of their acknowledged power to give or to withhold supplies. But a short time, how- ever, elapsed before all regular and constitutional government was at an end, the Barons having, by an armed demonstration, compelled the King to allow the appointment of a Commission, called the Ordinances^ consisting of Prelates and Barons empow- ered to pre})are new Ordinances for the redress of grievances. Their proceedings agreed to by the King in Parliament nearly resembled those of the Mad Parliament in Henry III.'s reign ; as their authority was plainly modelled upon that of the Commit- tee of Barons then appointed. Some of their Ordinances were valuable improvements, especially that regulating the choice of sheriffs ; abolishing all but the ancient purveyances, and repeal- CH. XXV.] THE PLANTAGENETS. 235 ing the new and oppressive taxes on wool and other merchandize. One clearly resembled the Mad Parliament's law, that three parliaments should be held yearly. The Ordinances required " one to be held each year, or oftener if need be." Another also resembled the former precedent, for it transferred the whole functions of the Crown to the Parliament. The King was bound to obtain the consent of the Barons before he could either levy war or quit the realm ; and the Regent, in his absence, was to be chosen by the Parliament, whose advice and consent was also made necessary to the appointment of all the great officers of state and governors of the foreign possessions of the Crown. The other transactions of Edward II.'s reign are immaterial to our present purpose, but throughout the whole of it there prevailed the assumption that no matter of great importance could be transacted without the presence, interference, and sanc- tion of Parliament. Nor is there any part of the Constitution practically of more importance than the recognition of this prin- ciple. The King's deposition was effected by a Parliament which the Queen and her paramour, Mortimer, summoned at West- minster, in the name of the King, by means of the Prince, whom the Prelates and Barons in their interest had named guardian of the realm, or Regent. The Parliament also passed an act of in- demnity for all offences committed during the revolutionary crisis, and appointed a Council of Regency, the young sovereign being only fifteen years of age. The weakness of the Crown in the second Edward's reign bad prevented all violent measures for raising supplies by the Royal authority alone. But his son, whose wars occasioned a great in- crease of expenditure, was frequently induced to exert the pre- rogative which, like his grandfather, he always asserted, and which he maintained that the famous statute of 1297 had not validly abridged. He contended that he had the right to impose tallage " in cases of public emergency, and for reasonable cause ;" nor would he even so far yield to the representations of the Commons as to declare such imposts illegal, always adding a saving clause for these extraordinary occasions. He several times, in defiance of the statute " De Tallagio non Concedendo^ levied a tallage of his mere authority. He did so in 1338, at the beginning of the war wl ich led to 'his great naval victory of Blakensberg ; and moreover had recourse to forced loans, and to 23G GOVERNMENT OF ENGLAND. [CH. XXV. seizures of all the tin and wool of the year, the Maletolte of his grandfather. Nevertheless the war was extremely popular with both Lords and Commons ; both urged him to prosecute it, and were satisfied with his promises that the Maletolte should cease in two years, to which effect a statute was made. In 1342, however, he was allowed to levy it for three years longer, by the assent of the Lords and a Council of Merchants whom he had irreo"ularly summoned, instead of assembling the Commons. The Parharaent suffered this on express condition that no such maletolte should ever after be imposed. For some years he found that the grants of Parliament were a more convenient re- source, and to these he confined himself. He yearly assembled his Parliament, and obtained grants for the prosecution of the w^ar, illustrated as it was by the great victories of Crecy in 1346, and Poitiers in 1356, the capture of Calais in 1347, and the great sea-fight of 1350 in the Channel. The consequence of this con- stant recourse to Parliament was that taxation became in some sort regulated upon a system ; and sometimes when the King had exceeded his lawful authority and imposed a tax, the Parlia- ment w^ould, after remonstrance, themselves grant the same duty, evidently for the purpose of preventing an illegal precedent, and v/isely preserving the bulk of their constitutional privileges. On one occasion, in 1346, when he had issued an ordinance that all landowners should furnish knights and archers in proportion to their rental, and each burgh so much money, the Commons re- monstrated ; v/hen he stated the necessities of the war, and the assent of the Lords. This, however, did not satisfy the Com- mons ; and he promised that it should never be drawn into a precedent. Several further remoni^trances follow^ed, and an act was passed, that for the future all such ordinances should be deemed contrary to the liberties of the realm, and further that no petition of the clergy should be granted without the Council certifying that it contained nothing against the rights of the I^rds and Commons. To all this the King assented ; but when the Parliament further insisted that no statute should be made at the petition of the clergy without the consent of the Lords and Commons, he gave their request a civil refusal. In raising men for the public service, the King, during the early reigns of the Plantagenets, appears to have been under less restraint than in raising money. This greater latitude arose en. XXV.] THE PLANTAGENETS 237 from two causes : the pretext of danger to the state was always at hand, and the great bulk of the men levied w^ere of the com- mon people, whose interests were little regarded by the Barons, Knights, and traders that composed the Parliament. Hence v/e can trace hardly any limits to the King's authority in calling out his subjects on emergencies. In the Anglo-Saxon times, and even under the Anglo-Norman Princes, the reliance of the Crown was entirely upon the feudal services of the vassals with their sub-tenants ; and it was a force much better calculated for home defence than for the operations of foreign war, because it only served for a limited time, and was seldom in the field. The number of men which the land was bound to furnish had so exceedingly decreased from the changes in the distribution of property, and from the neglect of the public servants who had charge of the musters and arrays, that they were supposed to have been ten times more numerous in the twelfth than in the thirteenth century ; and the main reliance of the Edwards was upon contracts, for men properly equipped, made with the Barons at the hire of enormous sums, as much as one shilling and sixpence a-day for a mounted archer (equal to thirty shil- lings of our money) ; and upon infantry raised by mere Royal authority in the counties. It was indeed understood that no man could be compelled to leave his county unless in case of invasion ; but pretexts were never wanting of such threatened dangers ; and it was often urged that the interest of the people was rather to fight at a distance than have their homes ravaged by the war. Not only fighting-men were thus pressed into the military service of the Crown, and vessels to carry troops abroad, sometimes all the shipping to be found in any of the ports, with as many seamen as were wanted to man them, but workmen and artificers were swept away in great numbers and exposed to the perils of war. Thus near 400 of these were carried over to the siege of Calais in lo48. As many as 1100 vessels were seized in this manner and used by Edward III. before the battle of Blakensberg. When, in 1346, before Crecy he issued the ordinance which has been mentioned above, the Commons com- plained of the practice as regarded levies of men, inasmuch as the landowners were anected by that proceeding, and not merely the peasants. An Act was in consequence passed forbidding the 238 GOVERNMENT OF ENGLAND. [CH. XXV. carrying of any man out of his county in future, excepting in the case of actual invasion. Such was the struggle always maintained in those times be- tween the Crown and the Parliament, that is, between the Sovereign and the great and little Barons and the mercantile classes, then first rising into importance. There were many in- fractions of the laws made to protect the subject, many inva- sions of the constitution as it was allowed to stand upon the pro- visions of the Charters, and the statutes confirming and extending those Charters. But the progress was steadily making towards a more exact observance of the law, a more secure enjoyment of popular rights, and a more strict limitation of the Royal authority. The reign of Edward III. was distinguished, as we have seen, by an additional statutory declaration of those liberties and those restraints, both as regarded taxing and the levying of troops, if indeed the latter enactment be not rather to be regarded as a new chapter added to the rights of the people and the limita- tion of the King's power. Another statute in his reign regu- lated and defined the right or abuse of purveyance, that is, the exaction of provisions on the Royal journeys. A third, made in 1351 by what has been in consequence called the Blessed Par- liament, abolished the fanciful heads of the old treason law, and confined that offence within known and narrow bounds, which it has, in the further progress of legislation, never materially ex- ceeded, unless for short periods of time. Hitherto in tracing all the branches of the Constitutional pro- gress in these three reigns, we have been upon well-known ground; but if we proceed further and inquire into the consti- tution of Parliament, as regards the mode of its election, and the course of its proceedings, we are involved in extraordinary difficulties. The ancient authorities, for the reasons stated in Chap. XXII., are either silent or give us very meagre informa- tion on those most important matters ; and we know little more for certain than the result, without being able to ascertain the steps by which it was attained. Thus, though we know that the whole Freeholders, first the tenants in capite, and afterwards, but at a period unknown, also the sub-tenants of the Crown,* * Mr. Hume erroneously thinks that the statute 7 Hen. IV. gave rear-vassals their right of election, but both that and the statute 11 Hen. IV. evidently assume that they already possessed it. CII. XXV. 1 THE PLANTAGENETS. 239 chose the Knights of the shire, we are little able to tell how the Burgesses were elected. The probability is, that all the Burghers In each town had a voice ; but we cannot say what regulated the issuing of the writs to the different towns, and whether this de- pended on the Royal will, or on that of the sheriff, or on the right of some towns to send representatives, and of others to be excused from the burthen, as it was then considered in consequence of the obligation to pay the members wages during the session. So we are left in some doubt as to the right of the Barons. All Prelates had seats in Parliament by virtue of their episcopal baronies ; and all who held lands by tenure of barony had a right to sit. But how these were distinguished from the lesser Barons, the freeholders, and how far the King could withhold the writ, as well as how he was to distinguish the classes of Barons, we are imperfectly informed ; only we may aflBrm, that a large discretion in this respect appears to have rested in the Crown. Again, mitred Abbots had seats at first as well as Bishops ; and their right to sit only ceased upon the dissolution of the monasteries in Henry VIII.'s reign. Beside Barons, lay and clerical, the Judges and Privy Coun- cillors were also ■ summoned to Parliament, and formed part of the upper or Lords' house when this was separated from the lower. They at first sat and voted as well as attended ; when they ceased to be component parts of the Lords' house, and be- gan to attend as assistants only (which the Judges do still), we are unable to say. The number of the County members was generally two from each shire; but in the 11 Edward I. four were chosen. The Burghs were, about the same period, not more than twenty ; each of which chose two members. In the reign of Edward IIL the Burghs amounted to one hundred and twenty, and continued of this number till Elizabeth's time. The precise period at which the Commons first sat apart from the Lords is equally unknown : indeed, it is perhaps less known than any part of the Parliamentary history. It can hardly be supposed that the different orders ever sat together after the Burghs sent members. At first the Knights sat in all proba- bility with the Barons, and afterwards with the Commons. That in early times the separation of the orders, and even of different members of the same order, was frequent, there remains PART III. R 240 GOVERNMENT OF ENGLAND. [CH. XXV. clear proof. In 1282 the members for towns north and south of Trent met in different parts of the kingdom, and each came to separate resolutions as to supply. In 1360 the Commons met in as many as five different places. Nothing can more clearly show that the purpose in summoning the Commons was to obtain grants from them of supply. The clergy met in Con- vocation, and taxed themselves in their separate character. The Prelates who attended Parliament formed an entirely dif- ferent body from that properly representing the Church; they sat as holding their lands and their bishoprics generally by the tenure of barony, and in this respect were exactly on the same footing with the lay Barons. The Commons only by slow de- grees obtained a full equality with the Lords ; they were gradually admitted to an equal voice upon the greater concerns of the State. All questions respecting the succession to the Crown, the guardianship of the infant Sovereign, the Royal marriages ; treaties concerning the foreign possessions of the realm ; all questions, indeed, that did not immediately concern the imposing of taxes or regulation of trade, appear to have been confined to the cognizance of the Lords. But the Commons occasionally took the opportunity of a difficult crisis to interfere at first only with their assent, and in support of the prevailing party in the Lords, generally by an almost unanimous resolution ; and in the time of the first Plantagenets there are few instances of even this interference. The ordinary course of the Crown was to con- sult the different orders upon different matters, and no one order was held entitled to have its assent asked as necessary to the passing of any bill that did not affect its separate interests. The whole were only understood to be consulted of necessity on matters affecting the whole, and the Commons hardly ever upon the higher affairs of State. Thus the Lords were entitled to refuse their assent to bills affecting the Peerage or Prelacy, and generally on the ardua regni^ and the Burgesses on m -tters affecting trade. But the Commons were not entitled to be heard on measures of the former description, or the Peers on those of the latter. Thus in Edward III.'s time a duty of 2s. tonnage on foreign wines, and 6c?. in the pound on goods imported, was granted by the Citizens and i.urgesses only, the consent of the Lords not being held necessary, as they were not supposed to be interested in the matter. Edward attempted once or twice to CH. XXV. J THE PLA.NTAGENETS. 241 carry this notion much further, defending his imposition of duties on foreign merchandize upon the pretext that it was paid by foreigners and did not affect his English subjects. But the Parliament remonstrated, and generally obt-iined his consent to abstain from such impositions. Another course was more than once resorted to by him upon the same principle. He would assemble on^ class, as the foreign merchants in London, and ask an increase of the duties im- posed by Parliament, in consideration of granting them certain commercial privileges. They agreed ; and he then issued writs to all the towns that he might meet the members from each and offer them the same privileges on the same conditions. They met in an irregular kind of Parliament, and very wisely refused his offer. Another proceeding of his was liable to less objec- tion, though it would at this day be deemed very irregular. He would assemble the Lords and obtain their approval of some measures, or the Lords and Knights of the Shire, or Deputies from the merchants, and thus fortified would hold a Parliament and propose the bill to them. But it was also usual to hold assemblies of the Lords apart from the Commons, and these were termed Councils rather than Parliaments. If any of the Commons attended, they were there only in their capacity of great officers of state or Privy Councillors ; and it could but rarely happen that these offices were held by any but the Peers, lay or ecclesiastical. The time of holding Parliaments was, as we have seen, early the subject of legislative enactment. In Henry III.'s reign, in Edward I.'s and in Edward II. 's, provision was made that Par- liament should be holden yearly at the least. In Edward III.'s time a new Act was passed requiring a Parliament to be held every year. When the Parliament met there was generally an adjourn- ment to give the members time to arrive. The Chancellor then explained the King's reason for assembling them, and directed each order to go to its own chamber. Two committees were then appointed of what was called Triers^ that is, to examine and decide on petitions. The Lords chiefly occupied themselves with such subjects, administering justice in the last resort, de- ciding cases when the Judges differed or thought they had no authority, and granting relief generally on the application of r2 242 UUVERNMENT OF ENGLAND. [cil. XXV. parties. The number of petitions presented is said to have been enormous under the first Plantagenet Princes after Magna Charta. It is related that a practice grew up of lawyers getting counties to elect them, and then surreptitiously intruding the claims of their clients into Petitions or bills of the Commons, which thus appeared to back those claims before the Lords. This led to the statute prohibiting lawyers from being chosen knights of the shire. There was little chance of the merchants and others in burghs returning them. All propositions in either house took the form of Petitions to the King for his order, assent, or edict, which thus had the force of law ; and at the close of each session, the Clerks of the Chancery reduced the whole to the form of Statutes, which were then sent to the Judges for their guidance, and to the Sheriffs of Counties for general publication. But it thus often happened that the matters in the bills underwent great alteration ; that the King caused the redress which the Parliament had sought, and which he had promised them, to be omitted in the statute ; and that the clerks themselves, from carelessness, ignorance, or sinister motives, changed the terms of the law. It also constantly happened that as soon as the supplies were granted Parliament was dismissed by prorogation ; the promised redress v/as forgotten ; and the King's officers and others, v/hom the Acts commanded to do certain things, entirely disregarded the command. Indeed, the King even claimed a right to alter in his Privy Council the provisions of the Acts that had been passed during the session. These abuses, which never could at any time have been the law, were complained of, and regulations were made to prevent them in future. The Commons required that all enactments should be put into their final shape before the Parliament was prorogued ; and in 1354 a statute was made strictly forbidding any alteration whatever of an Act after it had been made, with- out the consent of both houses. It was not so easy to compel the strict executiop of the laws made, and we meet with constant complaints of their being inoperative. It is remarkable how the careless manner of preparing Acts of Parliament has been handed down even to our day. It is a'rem- nant of the " olden time," and the practice of leaving everything to the clerks, that there is at this day so very imperfect a security against careless or wilful error, or alteration in the most impor- OH. XXV.] THE PLANTAGENETS. 243 tant of all records, that of the statutes of the realm. There is no time record, no constat of even bills being read as often as the law of Parliament requires, nothing except a mere note of the clerks of the Houses ; and when an alteration is made in a bill by one House, it is made on an unsigned and wholly unauthen- ticated slip of paper. A serious irregularity lately arose in this way, and gave rise to much discussion. The imperfect provision made in the old Acts for carrying into effect the avowed intention of the legislature is well known. Thus when an aid, or a tallage, or a subsidy was granted, the machinery for raising it was left undescribed. A tallage was in fact a property tax, and the Act granting it gave in a few lines what it takes now a hundred pages to describe. The whole manner of levying the money (a thing fully as important to the subject as the amount to be levied) was left in the King's discre- tion. The greatest oppression having been suffered in Edward II.'s time from his collectors, Edward HI. fell upon an expedient which gave very great satisfaction to all, though it was certainly an unauthorised act of legislation in itself; he appointed commis- sioners to compound with each county and each town for the amount which they should pay towards the tallage or subsidy that had been granted in general terms by the Parliament. When the King dismissed, prorogued, or dissolved the Par- liament, and it seldom sat more than one session, a committee was sometimes appointed of. the Lords to sit during the recess, for the purpose of finishing the judicial or administrative busi- ness which had proved too bulky to be dispatched during the session, the time being always very short during which Parlia- ment was kept together. Abuses arose out of this practice, the committee assuming powers of a legislative kind ; and another practice of a far worse nature was resorted to in troublous times, of which we have seen already two instances under Henry III. and Edward 11., that of delivering over the Prerogative of the Crown and the legislative power of Parliament to a select committee, always composed, like the Vacation Committee, of Lords only. The constitution of Parliament appears to have undergone little or no alteration from the time of Edward III., but its func- tions became gradually better defined; the authority of the Com- mons was pretty regularly on the increase ; and the privileges of its members became more fully secured. In the turbulent reign 244 GOVERNMENT OF ENGLAND. [CH. XXV. of Richard II. the Lords alone gave absolute power to the Duke of Gloster during the King's minority. But the Commons carefully looked after the public expenditure, required to have the inspection of the accounts, insisted on the supplies being en- rolled, in order that the expenditure might be better examined, and only granted a subsidy on finding that everything had been regularly carried on. This was in 1378, and next year the King offered to produce, all accounts ; when the Lords chose a com- mittee of their number to examine even his household expendi- ture. The Parliament having now required that the ministers of state should be chosen with their consent, and having imposed a poll-tax, the well-known insurrection of the common people under Wat Tyler broke out, and the sufferings of the villeins or serfs, the bulk of the people, excited such fury that the King granted a charter of emancipation to appease it. The aristocracy immediately revoked this grant. The Commons now required, for the first time, the removal of one obnoxious minister, Suffolk, the Chancellor : the King said he would not at their desire dis- place the meanest scullion in his kitchen. He was, however, forced to yield, and Suffolk was at first dismissed, then impeached. The Lords now appear to have usurped the powers of the.Go- vernment, which they handed over to a committee of their num- ber, creatures of Gloster, with legislative as well as executive authority, as in Henry III. and Edward II.'s time. This hap- pened in 1386, and the next Parliament was devoted to that am- bitious Prince. The Commons, however, suddenly took part with the King,* protected him in his resumption of the Royal authority, and even after his murder of Gloster, helped him to pass the statute of Provisors, which finally excluded the papal power, and established the Royal authority in all ecclesiastical ap- pointments ; and they gave him both a subsidy for life and appointed a committee of his creatures, vested with supreme legislative powers. The result is well known ; an universal disgust was excited by a revolution which changed the government into a despotism — a revolution, too, effected by the people's representa- tives, and for the benefit of a Prince whose life was as disreput- able and base as his capacity was mean. Henry of Lancaster was enabled to dethrone and murder him, and that family reigned for * Nothing can be more obscure and more defective than the records which have reached us of all these sudden changes CH. XXV. J THE PLANTAGENETS. 245 two generations peaceably, for a third with constant resistance and various fortunes during a desolating civil war. But the infirm title of the Lancastrian Princes, although supported by the universal consent of the country, and backed by the great talents of the first and the brilliant victories of the second monarch, was in that early age a source of such weakness, that none of them ever ventured upon any excess of the legal prerogative ; all of them were fain to await the will of their Parliaments for grants of money, and all of them suffered the privileges of Par- liament to grow up and be consolidated. Thus Henry IV. was no sooner seated on the throne than a Parliamentary declaration was made that all transfer of the supreme power of legislation to any committee of Parliament was illegal. The interference of the King in elections, which had first been practised by Richard IL, was complained of as soon as the importance of the Commons came to be partially felt, and the sheriff was restricted from exercising the power he had hitherto assumed of returning persons not chosen by the true majority of votes. Moreover the Commons now began to inter- fere with all parts of the administration, and to insist upon being consulted on other matters as well as on questions of taxation. They were allowed to have freedom from arrest, though an Act to declare this immunity was at first refused, and only granted in the reign of Henry VI. They claimed fi-eedora of speech ; and on the sentence which had been passed on Haxy, one of their mem- bers, in the last reign, for words spoken in Parliament, being now reviewed, a complaint was made of the Speaker making verbal speeches to the Lords and the King — a practice, however, which has been continued to our time, and which gave rise, within my recollection, to a formal motion against Mr. Abbot, supported with great ability, and characteristic and hereditary love of liberty, by my excellent friend Lord William Russell, that Speaker having taken upon him to pronounce an opinion against the Catholic question while addressing the Throne at the close of the session. The false entries made after the end of the ses- sion were again complained of, and it was agreed by both houses that these should be in future made in presence of a joint com- mittee. Grievances were regularly stated, and redress promised, previous to any supply being granted. The King was even obligted to send out of the country on one occasion persons dis- 246 GOVERNMENT OF ENGLAND. [CH. XXV. tasteful to the Commons, among others four foreign attendants on the Queen, and against whom the King vowed that he knew no <^round of complaint whatever but that the two houses dis- hked them. About 1401 a most important step was made by the Commons requiring to determine in each grant the appro- priation of the money, to which the King assented, excepting only such moderate sums as might be left at his free disposal. The brilliant career of Henry V., and his marvellous achieve- ment of nearly conquering France, and obtaining the French crown, which a singular combination of accidents aiding the gallantry and skill of his military operations enabled him to per- form, while it gratified the vanity of the nation, and made his wars as popular as they were pernicious to the country, had no effect whatever upon the balance of the constitution. On the contrary, while he always obtained his resources from the grants of the Commons, he treated respectfully their complaints ; pledged himself that no alteration of the statutes, when made, should ever be permitted without their consent ; and, what had never before been distinctly admitted, and what was directly contrary to the understood rule and practice in the time of the Edwards, he agreed that no statute should have any force or effect without their express assent, although they granted him the tonnage and poundage for his life, a thing never before done except in Richard II. 's reign, and on the eve of his usurping absolute power. Henry laid before them his negotiations with the Emperor Sigismund, and he applied to them for interposing the security of Parliament to the loans which his wars obliged him to contract — a precedent now first given, and unfortunately followed afterwards to so ruinous an extent. To his unhappy son he bequeathed the crown of France as well as England ; and his quiet inheritance of both the great genius of his brother, the Duke of Bedford, would have ensured if anything could have maintained such a conquest, or anything could quiet the English Barons. But beside losing his foreign dominions, this ill-fated prince was doomed to pass a life of thraldom, of deposition, of constant vicissitudes, while his king- dom was torn by the most violent factions, and his people became a prey to all the evils of civil war. In the earlier part of his reign, indeed, he was only nominally on the throne. From his accession, ut nine months old, to the age of twenty-one, he had little or no CH. XXV.J THE PLANTAGENETS. 247 power. The regency was committed to a Council and a Pro- tector by a resolution of the Lords, without any interposition whatever of the Commons. Thirty-two years afterwards, when he had fallen into a state of mental alienation, the Lords alone appointed a committee of their number to visit him, and ascer- tain his capacity ; and on their report an Act was passed appoint- ing a Protector. He recovered his reason and his authority some time after. He again fell ill, when the Commons went no further than to request that the Lords would provide for the emergency by appointing a Protector. They named York ac- cordingly. He required as a condition to his accepting the place that his authority should only be determined by the King in Parliament, with the advice of the Lords Spiritual and Tem- poral. By the Lords alone then was the defect of the Royal authority supplied, and they named the great officers of state, as well as the Protector, without any interference of the Commons. On one occasion, while Henry possessed his authority, the Com- mons, who never were consulted on such high questions, unless when a grant of money was required, or a statute was to be passed regulating the administration of the government, yielded to a popular clamour wholly groundless, and impeached a minister, Suffolk. The sentence of banishment was not pronounced by the Lords, but by the King alone, the Lords protesting that it was his act, not theirs. The mob, as is well known, dissatisfied with the punishment, put him to death. To speak of this period, therefore, as one of the least authority upon questions relating to the Regency, or indeed to the powers of either house of Parliament, seems one of the wildest and most unreflecting errors that could be committed. Nevertheless in the discus- sions on the regency, 1789, no precedent was made more the subject of reference and argument than those furnished by this troublous reign : a singular proof of the value attached to precedents, and the disposition blindly to consult them ! In some respects the Commons made progress during those times. They obtained that Parliamentary recognition of the privilege to be free from arrest which Henry V. had refused. They likewise were allowed to pass statutes regulating the modes of election and preventinsj false returns. Early in this reign, too, the qualification of forty shillings was fixed to the right of voting for knights of the shire, an encroachment certainly upon 248 GOVERNMENT OF ENGLAND. [CH. XXV. the rights of freeholders, but a clear proof of the growing value attached to a seat in the lower house. The conduct of the Parliament, both Lords and Commons, in the times of which we have been treating, was as bad as possible in all particulars save what related to their own privileges. The nation can never be sufficiently grateful for the steadiness with which they then persisted in establishing their legislative rights, and their title to interfere in the administration of public affairs. But their whole conduct towards individuals and parties, the use they made of their power, was almost always profligate and unjust in the greatest possible degree. During all Richard II. 's reign, all Henry VI. 's, all Edward IV.'s, and Richard III-'s, up to the accession of Henry VII., they blindly followed the dic- tates of the faction which had the upper-hand — the prince whose success in the field had defeated his competitors, the powerful chief whose authority prevailed at the moment. The history of their proceedings is a succession of contrary decisions on the same question, conflicting laws on the same title, attainders and reversals, consigning one day all the adherents of one party to confiscation and the scaflfold, reinstating them the next, and placing their adversaries in the same cruel predicament. Thus, in 1461, on Edward IV.'s victory, they unanimously attainted Henry VI. and all his adherents, including 138 knights, priests, and esquires, as well as princes and peers, and declared all the Lancastrian princes usurpers. A few years after both Edward IV. and Henry VI. were actually prisoners at one and the same time. The next year Edward, who had not regained his free- dom and his crown for many months, was fain to fly the realm, when all his adherents were attainted without exception. Richard III., notwithstanding the unusual horror excited by his inanifold crimes, after a few months wearing the crown, which he had been oflTered by many of the Lords and some citizens and gentle- men, but by neither house of the legislature, found it quite safe to assemble a Parliament, which at once recognized his incurable title, and attainted all his adversaries. When the Earl of Rich- mond defeated and killed him at Bosworth, and took the crown ofi'ered him by the soldiers on the field of battle, the Parliament immediately reversed all the attainders of the Lancastrians, and declared the princes of that house to have been lawfully seized of the crown. Nay, the Commons settled tonnage and CH. XXV.] THE PLANPAGENETS. 249 poundage on him for life. They however added as a kind of condition, in which the Lords concurred, and to which he assented, that he should strengthen his- confessedly bad title to the crown by marrying Elizabeth, the representative of the York family. At the same time, partly as a means of finance, somewhat inconsist- ently with their opinion of the York title, they attainted, that is confiscated, thirty of the York party, on the unreasonable and indeed unintelligible ground of having been in rebellion against Henry when he was only a private gentleman, Earl of Richmond. But it is to be observed that the statute limiting the crown to Henry and the heirs of his body was made by the assent of the Lords at the request of the Commons. Except in these Acts, in requesting Henry would marry, and in obtaining from Richard HI. a declaration against the legality of the grants extorted by Edward IV. under the preposterous name of benevolences, the Commons never interfered in state affairs, successions, regencies, or appointment of protectors, during these latter Plantagenet reigns, any more than they had done in the earliest periods of the family's history. Richard was chosen Protector by the Council, as Gloster had been named with a Council of Regency, on Henry V.'s decease, by the Lords alone — as Henry IV. had been by the Lords, when they declared Richard II. dethroned — as Richard of York had been declared also, by the Lords alone, heir to the Crown on Henry VI.'s decease. The Lords too declared Edward IV. King after the battle of Barnet. The aristocratic form of the government is sufficiently proved by these passages ; by the power of the Barons, which disposed of the crown repeatedly in the field as well as in Parliament ; by the occasional arbitrary authority conferred upon committees of their own body. It was only by slow degrees, and after the Crown had succeeded in curbing the Baronial influence, during the next period of our history, that the Commons could be said to have obtained their full equality with the Lords in the frame and practice of our Constitution. To this fourth period, the reign of the Tud )rs, we now proceed. ( 250 ) I CH. XXVI. CHAPTER XXVI. GOVERNMENT OF ENGLAND — THE TUDORS. Men's conduct more important than Institutions — Tudors and Plantagenets compared Sources of the Tudor power : Title; Economy — Infamy of Henry VlII.'s Parlia- njents — Three Examples worse than the rest — Henry VIII. "s Judicial Slurders — Heniy VII. and VIII. compared — Edward VI.'s Reign — Subserviency of Mary's Parliament — Privy CouncilJurisdiction ; Star Chamber — Its operation on Parlia- ment and Juries — Abuse of the Power by Individuals — Elizabeth's Reign ; Pro- gress of Parliamentary Privilege — Question of Monopolies — New Boroughs added — Tudor Measures touching Religion — Elizabeth's Persecutions— Causes of the S«lbserviency of the Tudor Parliaments. Nothing in the history of Government so strongly illustrates the position that the tyranny of rulers and the liberties of their subjects depend still more upon the manner in which the people and their leaders act, and as it were work the constitu- tion, than upon the frame of the government itself, as a com- parison of our history under the Plantagenets and under the Tudors. The powers of the Crown and of the Parliament, the political institutions of the country, its municipal as well as its organic laws, were the same under the two lines of Princes ; nor had any event happened, except the destruction of the ancient nobility, to arm the latter family with a force not possessed by the former race ; and that important event had not taken place all at once, by any sudden revolution, but by a series of civil wars, with their consequent attainders and confiscations, which left hardly any of the old baronial families, and substituted in their room a number of new ones, neither possessing the same large domains, nor enjoying the same influence over their vassals, nor holding the same place in the public estimation. The great diminution of aristocratic power, that is of the feudal aristocracy, thus occasioned during a century, from the reign of Richard II. to that of Richard III., had not materially increased or confirmed the power of the Sovereign, partly because of the infirm title of the House of Lancaster during the earlier portion of the period, partly because of the constant struggles of the King fur his crown with one party or other of the Barons CH. XXVI.] THE TUDORS. 251 during the remaining and greater portion of the time. But when Henry VII., by his marriage with Elizabeth of York, put an end to the contest of the two Roses, it was of great im- portance to the Royal authority that the feudal power had ceased to be formidable. Nevertheless, no change whatever had been effected in the fundamental principles of the constitution from the time of Edward HI. — hardly indeed from that of Edward I. — as far as the extension of the prerogative was concerned ; and the progress of the constitution had since the decease of Richard 11. been altogether in the opposite direction, of confirming the rights of Parliament, and extending the influence of the Commons over the administration of public affairs. The Tudors, however, reigned with a more absolute authority than their predecessors had possessed. The better title of these monarchs no doubt contributed much to their authority as compared with that of the Plan- tagenets who immediately preceded them. But they owed still more to the state of their finances. Almost all the conces- sions which had been obtained from the Crown for the last two hundred and fifty years had been extorted by the pecuniary difficulties in which the successive princes were placed, first from the defects of the feudal policy, throwing the Sovereign upon the resources of his land revenue and the services of his vassals, afterwards from the expensive wars carried on upon the Continent. Henry VII. was the first of our kings since Henry III. who ever lived within his income. His avaricious habits inclined him to rigid parsimony; when the grant of tonnage and poundage for life was made to him, he found that he could gratify his propensity to accumulate without having recourse to Parliament for supplies, and he only applied in 1504 to that body for the feudal aids on knighting his eldest son and marrying his eldest daughter. So little, however, was he in want of their liberality that he accepted but 30,000/. of the 40,000/. which they granted him. The treasure which he left enabled his more brilliant and spendthrift successor to go on, if he had so chosen to do, for some years without a Parliament. Thus, had it not been for Perkin Warbeck's rebellion, which gave room to forfeit the estates of those attainted for adhering to him, there would have been no Parliament assembled from that which ratified Henry VII.'s title in 1485 to that which he called 252 GOVERNMENT OF ENGLAND. [CH. XXVI. in 1504 for a special purpose, nor from that till his son's in 1517 ; and as the Parliament of 1494 only met for a few days, on account of the rebellion, and that of 1507 for a like period, these two princes might have ruled without any national as- sembly for a period of above thirty years. But a comparison of the number of Parliaments called by the Tudors and the Plan- tagenets will set this in a very clear light. The first three Edwards reigned 105 years, and called 119 Parliaments. The five Tudors reigned 118 years, and called only 58, not nearly half the proportion. The whole Plantagenet reigns from Ed- ward I.'s accession to Richard IIT.'s were 205 years ; and there were called 193 Parliaments. Even if we deduct the several Parliaments held in the same year, and take it by years, the Plantagenets held Parliaments in 130 years of their 205 years' reign; the Tudors only 56 years in their 118. Edward III. held 53 in the 50 years of his reign ; Edward I. 49 in 35 years ; while Henry VII., in 25 years, held but 7 ; Henry VIII.,* in 37 years, 21 ; and Elizabeth, in 43 years, only 13 But the conduct of the Parliament in the reign of the first Tudors presents the most degrading and the most disgusting spectacle which our history has to record. The successive Par- liaments in Richard IL, Henry VI., and Edward IV.'s reign were subservient to the faction of the day, and committed violence by wholesale upon whatever party happened to have lost the superiority in the field. But it is more offensive to all feelings of honour, and betokens a baser spirit, or rather a more complete want of all spirit, that the same body, without any revolution having happened in the state to inflame men's passions, or any physical force having been actually impressed upon it, should for the whole of a long reign have made itself the un- resisting instrument of whatever oppression a ferocious tyrant could devise for gratifying his cruelty, his lust, or his caprice. Upon one only occasion can we perceive any disposition to resist Henry VIII. : it was in 1525, when he attempted to levy a tax, and afterwards a benevolence. The clergy, whom he first attacked, excited the citizens of London to object, and the Parliament remonstrated, first against the illegal exaction of the tax, afterwards against the demand of a benevolence, as against * These numbers are taken from the Statute Book, which omits several Parlia- inents; but the proportions are probably not varied by such omissions. CU. XXVI.J THE TUDORS. 253 the statute of Richard III. Nevertheless, the King obtained what he sought, forcing men to compound for fear of violent treatment ; and no step whatever was taken to make those answerable who were the instruments of his oppressions — those for instance through whom Henry sent an alderman of London to serve in the Scotch invasion as a punishment for refusing to contribute. Let us, however, enumerate some of the statutes which were made, and which were immediately acted upon in defiance of all justice and all principle, though not of law. It was made treason to deny the King's supremacy, though two years before this notable law, to assert it would have been deemed rather insanity than wickedness. Under this act Bishop Fisher and the famous Sir Thomas More both suffered death. It was made treason for any person to marry the King after leading an unchaste life in any respect. To have any criminal conversation with any of his reputed children, with his sisters, •aunts, or nieces, was in like manner made high treason. The marriage with Catharine was declared invalid in the face of the whole facts of the case ; and the marriage with Anne Boleyn and the legitimacy of her issue were declared by law, with the penalty of imprisonment and forfeiture against all who refused to swear to it, and of death against all who slandered either the Sovereigns or their issue. Then when he tired of Anae Boleyn and put her to death by a mock trial, the Parliament declared that the same marriage had from the beginning been void, and the issue counterfeit or bastard. Not only did this servile body gratify all his caprices in respect of his wives and progeny, mar- rying and unmarrying him, legitimatizing and bastardizing his issue, at his nod, but in settling permanently the order of the succession they allowed him to alter that order, and to entail the Crown at his pleasure ; and thus gave him a power of disturbing the realm, of plunging it once more into all the horrors of civil war, the security from which is really the only benefit, except the Reformation, that the country owes to the Tudors. Their full gratification of his rapacity was in part owing to their timid ser- vility, in part to their religious zeal ; but how great soever may have been the benefits derived from suppressing the monastic orders or the exclusion of the Abbots from Parliament, it must be allowed to have been purchased at a costly price, when we 254 GOVERNMENT OF ENGLAND. [CH. XXVI. reflect, first, on the wholesale confiscation of the property belonging to nearly 900 bodies, besides above 2300 chantries and chapelries, and, next, on the scandalous perversion of all justice by which the parties were by thousands condemned to poverty and stigmatized in their reputation, unheard and before a judicature of their enemies ; and, lastly, on the use made of the spoil thus greedily seized upon false and slanderous pretexts, or given up with reckless profusion to the tyrant, and parcelled out by him among the creatures of his favour, the tools of his oppression. Whatever victims he chose to destroy, the Parlia- ment attainted, often without hearing them in their defence and against the bills. This was done, too, after they had asked the opinion of the Judges on the possibility of reversing in a Court of Law a statutory attainder, and after the Judges had stated, that though such judicial reversal was impossible, yet it became the Parliament to set an example to all inferior judicatures of not violating the principles of justice. Thus Cromwell, having lost the tyrant's favour because he had recommended the mar-- riage with Anne of Cleves, and Henry had tired of her, the Parliament readily attainted him of treason and heresy without any hearing ; and they did the like by Dr. Barnes, who was burnt for heresy. Many others shared the same fate. Any- thing more ridiculous than the reasons alleged can hardly be conceived. Surrey, the most accomplished nobleman of his age, suff*ered death by Act of Parliament, because he had quartered the Royal arms with his own, and this the savage despot called treason. Three acts of Parliament, however, stand out before all the rest in their infamy : — 1. The King was, in 1529, formally released of all the debts he had contracted six years before, although his se- curities had passed into the hands of third parties, and many per- sons held them by purchase for various sums ; and this abomin- able precedent was followed, in 1541, with the incredible addition that if any one had been repaid his debt the money was to be refunded by him. 2. The King was empowered,* as a general law, on attaining the age of twenty-four, to repeal all Acts of Parliament made while he was under that age ; so that whatever was enacted during the Regency became of no avail unless he chose ; and even after the Regency had ceased, he was suffered * 28 Hen. VIII. c. 17. • CH. XXVI.J THE TUDORS. 255 to rescind whatever had been done for six years. 3. The pro- clamations of the King in Council, if made under pain of fine and imprisonment, were declared to have the force of statutes, provided they affected no one's property or life, and violated no existing law ; but the King by proclamation might make any opinion heretical, and might denounce death as the penalty of holding it.* The judicial, or rather statutory, murders of Henry VIII. were far more numerous, and, in their circumstances, more re- volting than those of his father. Yet that Prince must be allowed to have left him the bad example. He inveigled Warwick, the unfortunate son of Clarence, into a confession that he had con- trived, with Perkin Warbeck, his escape from the Tower, where he had been confined since he was twelve years old ; he was now fifteen. For this he was tried as for a conspiracy, and exe- cuted. Suffolk, a nephew of Edward IV., and near in the order of succession to Henry's Queen, had engaged in a conspiracy in the Low Countries ; and Henry, having obtained possession of the Archduke's person by the accident of his shipwreck, obliged him to deliver up the Earl on a promise of sparing his life. He died before he could, as he wished, break his word ; but his dying injunction to his son was that he should put the Earl to death ; which Henry VIII. did a few years after, upon the old attainder. There was little difierence in the disposition of the two tyrants, as far as an unfeeling nature and overbearing temper ministered to their absolute sway. But the son's more careless expenditure of money, more frank, indiscreet habits, and more affable man- ner, partaking, in outward show, of generosity, honesty, and even kindness, gave him a popularity in his own times, especially dur- ing the first half of his reign, which the father never possessed, labouring as he did under the two greatest drawbacks to popular favour that a Prince can have, avarice and reserve ; while the cruelty of the son's whole conduct has made him justly more abhorred by after ages, when the services rendered by his lusts, and his rapacity, and his caprice, to the cause of the Reformation can no longer blind us, as it did his contemporaries, to the enor- mities of his execrable character. As much of the disgraceful subserviency of which we have * 31 Hen. VIII, c. 8. PART III. S 256 GOVERNMENT OF ENGLAND. [CH. XXVI. oeen contemplating the fruits was owing to the severe character of the first Tudor, and the violent temper of the second, we ttvight naturally expect the Parliament to recover somewhat of its mdependence under the infant prince who followed them, and in the necessarily feeble government of a Regency. Accord- ingly, the first Parliament of Edward VI. abrogated all the new treasons invented to gratify his father's caprices.* Others of his bad and cruel laws were mitigated ; though the power of proclamation was exercised by declaring all propagators of tales and lies aflfecting the Government liable to work in the galleys. An important improvement, however, of the Treason Law, the only constitutional gift of the Tudor race, was made during this reign ; two witnesses were now first required t to convict. The illegal conduct of the Council of Regency, which owed its exist- ence to Henry VIII. 's appointment under the powers of an Act made late in his reign,J and which nevertheless wholly altered the Regency's own constitution and made Seymour, the King's maternal uncle, Protector, with full power, was submitted to with- out any objection or hesitation, by the same Parliament ; and his brother the admiral's attainder was easily passed by the same body to gratify that powerful nobleman. The tendency of Parliament in those times to obey the Royal dictates is perhaps still more clearly seen in the early acts of Mary than even in all their subserviency to her father. The restoration of the Catholic religion and the Romish supremacy was accomplished by this young woman with a severe struggle it is true,§ but accomplished by a person void of capacity, with- out any experience, unpopular in her address, only armed with the name and prerogative of royalty, only supported by her own fanatical firmness of purpose, and by the remains of the sect which had been defeated and crushed in the two former reigns. The resistance made, though ineffectually, to this change is rather a proof that religious feeling will arm men against the influence of their fears or their sycophancy ; it was the only sure indication of the Parliament having recovered its tone. The Spanish marriage, however, confirmed and increased the opposition which the Queen's bigotry at first excited ; and * 1 Ed. VI. c. 12. t 5 and 6 Ed. VI. c. 11, § 12. X 28 Henry VIII. § Mary tells Cardinal Pole, in a letter to him, that the Supremacy Bill had not been c&rriod without " contention, bitter discussion, and the utmost pains of the faithful." CH. XXVI.] THE TUDORS. 257 her third Parliament rejected some of her favourite bills. The care taken by her to influence the House of Commons, where alone she encountered any opposition, illustrates this still fur- ther. Edward had added twenty-two burghs, of which seven were insignificant and easily influenced. She enlarged the number by fourteen, and she wrote also a circular letter to the sherifl's, directing them to recommend good Catholics to the electors ; and the Spanish ambassador is believed to have ap- plied the influence of money directly in favour of the marriage with Philip. The French ambassador addressed himself zea- lously to the same quarter, the Commons, while engaged in resisting the Queen's profligate and infatuated design of trans- ferring her kingdom to the Spanish monarchy, and lavishly promised the aid of France against this abominable scheme. In all these four reigng, as well as in that of Elizabeth, the criminal judicature of the Privy Council, exercised in one branch called sometimes the King's Ordinary Council, some- times the Council of Star Chamber, from the ceiHng of the room in which it met, was a very important addition to the Royal authority, and a great restraint upon both the Parliament and the people. The Crown had recourse to this power origi- nally in order to control the factions of domineering Barons, who, yielding to the forms of the ordinary jurisdiction, entirely defeated its substance by overpowering the juries and even the judges before whom they or their retainers were brought, and by whom their civil rights were decided. A statute had been made early in Henry VII.'s reign* confirming the jurisdiction of the Star Chamber in cases of combinations to obstruct the due administration of justice ; and there can be no doubt that much benefit resulted from the interference of the body in times when the feudal power reduced the judicial to a mere name whenever great men or their followers were concerned. The preamble to the statute I have just mentioned sets forth, that by the practices of the great men, the " police and good rule of the realm was almost subdued, and the security of all men living, their lands and goods, destroyed."! But the most grievous * 3 Hen. VII. c. 1. t Lord Bacon (Life of Henry VII.) describes as the evils aimed at by this Act, " combinations of multitudes, and headship of great persons." These, as he observes, are the two main supports of force against law. The Statute of Fines, also made in this reign, gave another blow to the aristocracy, by facilitating the alienation of lands. s2 258 GOVERNMENT OF ENGLAND. [CH. XXVI. abuses arose out of this Star Chamber jurisdiction; and the Sovereign was enabled by it, not only to intimidate all who would oppose him legally in Parliament as well as factiously in the country, but to interfere with the administration of justice fully as much as the Barons had ever done, and more syste- matically. Not only did the Plantageuets and the Tudors commit to prison or ransom for heavy fines those against whom they conceived an ill will, thus depriving them of the protection of the common law, and signally violating the most remarkable provision of the Great Charter ; but they exercised a like con- trol over members of Parliament who had offended them, and jurors who had given verdicts displeasing to them ; committing such members and jurors, interrogating them, sentencing them to imprisonment, and only releasing them on payment of heavy fines. A capital jurisdiction was never exercised by them, at least directly ; but it really amounted to the same thing, whether they sentenced obnoxious men to death or compelled timid jurors to find them guilty through dread of personal conse- quences. It was in this Council that all the Sovereign's more violent acts were performed, because he was thus covered over with an apparent authority by the concurrence of an ancient body. Mary committed by this sentence a knight to the Tower, for his opposition to her in Parliament. She committed to prison by a like order in Council all the jury that acquitted Throckmorton ; four were released on acknowledging their offence ; the others proving refractory were fined, some in the enormous sum of 2000/. It even appears that individual Privy Councillors, assuming to be clothed, as it were, with an emanation of Royal authority, would commit persons who offended them. As late as the latter part of Elizabeth's reign (1592) there was a representation made by eleven of the twelve Judges to the Chancellor and Treasurer, complaining that this outrageous power was used to prevent parties from bringing actions, as well as to punish or threaten them for other lawful acts. Other interferences with the administration of justice were likewise practised by the Crown. The Sheriffs selected Jurors, according to the Crown's presumed and frequently declared wishes. That officer was always employed as representing the Sovereign in his Bailiwick. Thus we find letters from two of CH. XXVI.] THE TUDORS. 259 Elizabeth's Council, to which one Ashburnham had presented his complaint, but without prosecuting it, requiring that the Sheriff of Sussex should not aid his creditors to molest him until the pleasure of the Council be known. An appellate ju- risdiction in earlier times appears to have been exercised by the same body. A case, mentioned in Hale's MS., was lately cited by our Judges before the House of Lords (Reg. v. Milliss), showing that the Star Chamber had revised a judgment of the Common Pleas in a real action — a Writ of Dower. The Star Chamber took upon it to superintend the abuses of the Press. It prohibited the circulation of Roman Catholic works, and ordered them to be seized. With its concurrence Elizabeth issued a proclamation for trying by martial law the im- porters of bulls and libels ; another, denouncing capital punish- ment against those who attended riotous meetings, or committed acts of vagrancy ; and a third, ordering Anabaptists to quit the realm, and Irishmen to return home. The power of regulating generally all matters punishable by law, and of enforcing by particular modes things commanded by statutes which did not describe the means of their enforcement, was always, under the Tudors as well as the Plantagenets, as- sumed by the Crown ; and within this general and important head came under both families the power of regulating com- merce. But the Tudors much more rarely interfered to levy money without Parliamentary sanction, and Elizabeth only once appears to have done so, when she imposed a duty on sweet wines, and retained one of her sister's duties on foreign cloths. She also, in 1586, made the Clergy pay an assessment not voted by Convocation. Loans or benevolences were two or three times exacted by her, notwithstanding the statute of Richard IIL, but her economy always enabled her to repay them ; and she was truly said to have been the first sovereign in whose reign the constitutional right of Parliament to grant supplies was practically made of universal application. The independence of Parliament generally was much more secure under her than under her father or her sister, and it showed a far higher spirit, notwithstanding her strong assertions of her prerogative, and her exalted notion of its extent. In her father's time the Commons had punished, with his concur- rence, those who arrested members during the session. This 260 GOVERNMENT OF ENGLAND. [CH. XXVI. under her reign became a common assertion of privilege ; and both strangers and members were now severely punished for contempts of the House and its jurisdiction. Even with the Queen herself the Commons ventured to struggle in a way very different from anything that her father would have borne. They disre""arded her positive commands, intimated through the Speaker, that they should no longer discuss the question of her namino" a successor, and though she continued to desire that they should leave matters of state alone, she nevertheless revoked her former injunction. The Commons may be said to have obtained another victory over her in their remonstrance against Monopolies — an oppres- sive source of revenue, but one not denied to have been vested in the Crown. In the session 1571, though Bacon, the Chan- cellor, had, in answer to their claims of liberty of speech, re- newed the recommendation against meddling with state affairs, the Commons began their struggle against that great abuse. The Queen, who set great store by this prerogative, calling it the fairest flower of her garden, desired them to spend little time in motions, and make no long speeches. The chief mover against monopolies (one Bell) was called before the Star Cham- ber and frightened ; the Lord Keeper Bacon severely repri- manded them at the close of the session for meddling " with matters not pertaining to them, nor within the capacity of their understanding." Next year, however, the new Parliament chose Bell for their Speaker, but proceeded no further ; indeed, they seem to have been terrified by the proceedings in the Star Chamber at the close of the last session, and they begged the Queen on presenting their bills " not to form an ill opinion of the House if she should dislike them." The next time they met, the most bold and even violent language against her infringe- ment of their privileges was freely used ; and she was plainly told, that if they had committed faults, " so had she great and dangerous ones," and taxed with " ingratitude and unkind- ness to her people." AVent worth, the person who had led the way in this freedom of speech, was committed to the Tower for a month, and reprimanded on being discharged when the Queen had forgiven him. At their next meeting, in 1581, the usual warning as to interfering in state affairs was given. Went- worth was again committed to the Tower by the House, and CH, XXVI.] THE TUDORS. '?{]l detained till its dissolution, for new acts of boldness in debate. Again, in 1588, he moved on the question of the succession, and was, with one who seconded him, committed by the Council to prison ; as was another member soon after for presenting a bill against abuses in Ecclesiastical Courts contrary to the Queen's injunction. She did not release them while the session lasted, although petitioned by the House on the ground that no subsidies could be granted from places whose members were in custody. At length, although in 1597 the Queen prevailed on them by soft and pleasing words to leave the remedy of monopolies to her care, yet finding she did not correct the abuse, in 1601, after four days' debate, and the refusal of the Commons to adopt^the contemptible advice of Cecil and Bacon that they should proceed by petition and not by bill, the Queen sent a message to promise a general revocation of all such grants as were found on trial to be against law. The importance of the House of Commons in Elizabeth's reign, as in that of her sister and brother, is evinced by the pains taken to secure an ascendancy in it. She added no less than sixty-two burgh members, chiefly by enfranchising petty burghs under royal or noble influence. The general attendance was under 250, and hence those new members must have given great weight to the Crown. The ministers and the peers also used every exertion to influence elections elsewhere. The services rendered by the Tudors to religion, in freeing us from the yoke of Rome and the superstitions of popery, have been more than once glanced at. But it must be recollected that these favours were bestowed with the characteristic tyranny of the family. Nothing can be more clear than the connexion between Henry VHI.'s revolt against the Pope, and his desire to break his first marriage from his wish to espouse Anne Boleyn ; and his adherence to the Catholic errors not only lasted for life, but was testified in the most arbitrary Acts of his reign, Acts which his submissive Parliament almost immediately enabled him to pass. The very worst, perhaps, of all his sta- tutes is that called the '^ Law of the Six Articles,^' or as the Pro- testants termed it, " The bloody Act,'' made after he had reigned thirty years and separated from Rome five years. Some of the Grossest errors of Romanism were there laid down as undoubted truths, including transubstantiation, the obligation of monastic 262 GOVERNMENT OF ENGl^ND. [oH. XXVI. VOWS, clerical celibacy, and auricular confession, and were com- manded to be believed on pain of death, without power of escape by al'juring errors once uttered ; so that if any person once denied the real presence, though he afterwards confessed his error and recanted, he was liable to be burnt.* The cruelties of Mary are known and are proverbial ; they have prevented us from reflecting how entirely her Parliament, so lately Protestant, supported her in them, and how far her sister went in following her example. It cannot be doubted that the Reformation in Elizabeth's reign was carried by force, even by military force, as far as the people were concerned ; for they adhered to the religion of their forefathers. Bishop Burnet, a witness wholly above all suspicion on such a point, is con- strained to allow that she had to send over German troops in 1549 from Calais, on account of the Catholic bigotry of the nation at large. The use made of the Church revenues too de- serves our attention. Henry VIII. was not the only sovereign who endowed great families out of this spoil. In Edward's time, Winchester and Canterbury suffered much for this purpose ; Exeter and LlandafF were impoverished, and Lichfield was stripped to endow Lord Paget. Somerset House was founded out of Church lands by the Protector. Cecil's estate at Bur- leigh was made out of Peterborough : part of Hatton's in Holborn retains the name which shows that it had belonged to Ely ; and Lord Keeper Puckering obtained it for a simoniacal prelate, that he might obtain a part of the estate on lease for himself. Elizabeth, though friendly at all times to the Reformation, held the Puritans in far more hatred than the Catholics, on account of their republican propensities and their dislike of the episcopal discipline. It was against them that the Act compel- ling all persons to go to church under pecuniary penalties was passed ; an Act never yet repealed, and of late warmed into a i.oxious vitality, after being long torpid, in consequence of some magistrates having failed to convict some poor men of poaching. The ijraemunire Act was extended so as to subject all the Catholics in the country to capital punishment for refusing a * A denial of the other five articles was, in the first instance, punishable ^A•ith forfeit ire and imprisonment, and with death for a second offence though followed by recmtation. CH. XXVI.] THE TUDORS. 2id'd second time to abjure their religion, a law so cruel, that tne Queen ventured not to execute it generally. An Act punishing ^^^th death any publication containing seditious matters, or de- faming the Queen, was wrested to include the offence of writ- ing against the Liturgy, and Puritans suffered death under this strange perversion. Many Catholics also suffered under an Act making it high treason to import bulls, relics, or crosses ; and others, after being tortured to confess having denied the Queen's supremacy, were executed. The Anabaptists were also persecuted ; many driven beyond the seas ; some burnt for heresy ; sixty-one clergymen, forty- seven laymen, and two ladies, suffered death in misery for being Catholics during fourteen years of this Queen's reign. To all these vile proceedings Elizabeth's Parliaments were as willing parties, or as callous instruments, as their predecessors in the time of Henry and Mary. The support therefore of the Reformation, whether by the father or the daughter, is rather to be regarded as an indication of that body's subserviency and the Sovereign's power, than any proof of the progress that had been made by constitutional liberty. Upon the whole, however, there can be no doubt that the Parliament had become more independent and the Crown more under restraint in the reign of Elizabeth, high as were her notions of prerogative, and submissively as her reproofs were ge- nerally received ; and the Speaker, Onslow, was justified in his remark upon the difference between our government and those of the continental kingdoms ; justified by the fact, but also justi- fied by the safety with wliich in her time the Commons could address language to the throne such as her father would never have permitted to be used in his presence. " By our common law," said he, " though there be for the Prince provided many princely prerogatives, yet it is not such as that the Prince can take money or other things, or do as he will at his own pleasure without order ; but quietly to suffer their subjects to enjoy their own without wrongful oppression, wherein other Princes by their liberty do take as pleaseth them." Let us now mark the main causes of the subserviency which so utterly disgraced the Tudor Parliaments, until under Eliza- beth they gradually began to feel some sense of their duty, and to show, though bat rarely and faintly, some spirit of resistance • 264 GOVERNMENT OF ENGLAND. [CH. XXVI. for we must lay entirely out of our view in considering this subject the violent Acts of Henry VIII.'s Parliament, authorising him to repeal statutes and giving his proclamations the foi-ce of law. These Acts were only, like the attainders in which they concurred with their master, indications of their submission to his will, and not real alterations effected in the Constitution, and enlarging the powers of the Crown. But the causes of that general submission, and the circumstances which enabled the Tudors to reign so absolutely in a limited Monarchy, were these : — In the first place, the character of the Aristocracy, in whose hands the whole Parliamentary power was vested. They were a half-civilized, imperfectly enlightened, and exceedingly unprin- cipled body, just emerged from a state of feudal anarchy, re- pressed by the Sovereign's increased and constitutional authority, careless of what befel their countryman at large, only anxious each for himself and his own retainers, and all willing rather to find protection in their individual pov/er and following, than to seek it from the safeguards which the laws and institutions of a country provide for both high and low within its bounds. No tenderness for liberty, no feeling for the rights of the commu- nity, no regard for the laws could be expected from a body so constituted. The Lords were always found ranged on the side of power and of the prince. Secondly^ the Commons were ex- ceedingly affected, as, indeed, were the less powerful of the Lords, by the powers which the Sovereign exercised through the Council, the Star Chamber. Examples were occasionally made of punishing by fine and imprisonment discontented members ; and the course of justice was, as we have seen, mate- rially affected by the operations of the same force. Thirdly, — and to this I attach much greater weight, because otherwise the powers of the Star Chamber never could have stood against an united legislature — there was operating in favour of the Crown, and against all resistance, that principle which gives every established government the greater portion of its solidity, by preventing all effective opposition ; that principle which enabled the triumvirs of France in 1793 to domineer through terror over both the Convention and the people for nearly two long years of suffer- ing and crime. Men distrusted each other : every man feared to ]je made the sacrifice were he to move first ; as no one in a CH. XXVI. J THE TUDORS. 265 mob will rush willingly on, till forced by those behind him, upon a single individual armed with a pistol ; because each knows that though it can kill but one, he may be the one. AVho could venture to protest for a nioment against any of Henry's worst schemes of profligacy and cruelty, when he felt that an attainder being suddenly propounded against himself should he oppose the attainder pressed upon the legislature, he must be the sacri- fice to the honest discharge of a public duty ? Nothing else can account for the obsequious and pusillanimous demeanour of the Parliament, first under the Platagenets, but afterwards far more under the Tudors. The personal character of these Tudor Princes entered for something into this account of their tyranny, because the main stay of their power was the terror which operated upon the Commons, with their distrust of one another, and their reckoning upon the Lords always taking the Sovereign's part. Accordingly we find them far more inclined to follow an independent course under Edward and the Regency than under any of the other four princes of that family. We also observe them kept down by dread of Elizabeth while she was in the vigour of her faculties and the height of her pride. The favourite subject of the monopolies had been somewhat broached by the Commons as early as 1566 ; it was very openly taken up in 1572 ; but the fear of her indig- nation afterwards made them press it very feebly till towards the end of her reign, when, her energy being impaired rather by the melancholy that clouded her latter days than by the liand of age, they could venture upon matters which at a former period they dared not breach. ( 2G6 ) [cH. XXVII. CHAPTER XXVII. GOVERNMENT OF ENGLAND— THE STUARTS C03JM0N WEALTH- RESTORATION. Contrast of James I. to Elizabeth — Divine Right — Error of Authors on this — Com- mons strntr"-le for their Privileges — Slavish Conduct of the Judges — Impeacliments 1)Y the Commons — Extravagant assertion of Privilege — Conflict between the King and Commons — Oppressions exercised by the Crown — Revolting Doctrines of the Stuart Princes — Character of Charles I. — Early Errors of his Reign — Favouritism to Buckingham — Baseness of the Judges — New Oppressions of the Crown — Long Parliament ; its admirable Conduct at first — Petition of Right — Strafford's At- tainder— Violence of the Parliament — Overthrow of the Constitution — Common- wealth—Causes of the Rebellion — Error of Romish Writers — Evils of suffering a Minority to rule through Terror— Cromwell's Usurpation — His Plans and Consti- tutions— Obliged to call a Parliament — Restoration. The bold, determined, impetuous character of the Tudors sud- denly found a great contrast in the feeble mind and contemptible manners of James I., and though his capacity was far from mean and his acquirements were very considerable, both his abilities and his accomplishments were of a kind the least useful on the throne ; consequently the genius of Elizabeth, peculiarly formed for com- mand, was as manifestly superior to his, as the vigour of her mas- culine nature surpassed his paltry disposition. Men were not slow to mark the change in the hand that now held the sceptre ; the statesman perceived it in a day ; the Parliament showed that they were aware of it on the morrow of their meeting. Accordingly, with this Prince began the real contest between the Crown and the Parliament, which ended in the full establish- ment of our free Constitution. A movement in this direction had been made in Elizabeth's time ; towards the end of her reign it had become very perceptible ; and no attentive observer could doubt that, even under the same race of vigorous and able tyrants who had long filled the throne, the increased importance of the towns from the progress of commerce, and the daily diminishing influence of the feudal aristocracy, as well as the gradual dif- fusion of knowledge, accelerated with the spread of free prin- ci})les since the Reformation, would in time have occasioned the same great and useful struggle. But the change of the iamily, CH- XXVII.] THE STUARTS — COMMONWEALTH. 267 and the character of its first sovereign, contributed much to brinor on this conflict, and give it a turn favourable to hberty. This, however, was in no wise owing to any moderate views entertained by the Stuarts of their prerogative ; on the contrary, they held this fully as high as the Tudors. It has been remarked by writers on our Constitutional History, and particularly by Mr. Hallam, that, singularly enough, the family which held such lofty notions of Royal prerogative and rights of legitimacy (as they are now termed) should themselves have owed their succession to the very influence of which they most were jealous, deriving their sole title to the crown of Eng- land from the people, whose right to interfere with such high and sacred subjects they wholly denied. Perhaps this discre- pancy between their title and their principles is more apparent than real. It is perfectly true that an Act of Parliament gave Henry VIII. the power of naming his successor, and limiting the Crown to any series of heirs whom he might choose to appoint in a will executed by himself It is equally true that he named the Suffolk family, descended from his youngest sister, and passed by the King of Scots, issue of Margaret. Much doubt has been cast upon the point whether or not the will was signed by him ; whether, as the lawyers say, the power was well or ill executed. The balance of evidence appears in favour of the due execution ; and there was lawful issue of the Countess of Suffolk living at Elizabeth's decease. So far the succession of James appears to have been pre- cluded by statute, and he only to have been let in by the voice of the Nation disapproving the Act of Harry's Parliament, which had, however, never been repealed, and by the recognition of his own first Parliament in a statute declaring his title. But there can be no doubt that the same persons who maintained the high prerogative doctrines of the Stuarts, would equally deny the right of Parhament in Henry VIII.'s time to set aside the elder or Stuart branch, and to substitute, by Henry's appointment, the younger. They regarded the title by hereditary succession as paramount to any legislative enactment. If any proof of this were wanting, surely it is furnished by the Jacobites persisting in regarding their Stuart Kings as the true and lawful Kings of England, after the Crown had been limited to a younger branch of the family, and possession held under that limitation for near a century. The inconsistency is thus rather apparent than real ; 268 GOVERNMENT OF ENGLAND. [CH. XXVII. though the absurdity of the Stuart doctrine is as flagrant as if it were not irreconcilable with itself. James, in his proclamation for summoning his first Parliament, had required that neither Bankrupts nor Outlaws should be re- turned. One Goodwin, who had been outlawed, was returned for Buckinghamshire. The Return was refused at the Crown Office, and Fortescue was elected in his stead. The Commons as soon as they assembled unseated hira, and declared Goodwin duly elected. This brought on a controversy with the King ; and the Commons asserting their undoubted privilege to decide upon all elections, it ended in a compromise that neither Good- win nor Fortescue should sit. Immediately afterwards, a mem- ber arrested for debt was liberated by a summary application to the Crown, and an Act was passed declaring the privilege of Parliament, and indemnifying the Sheriffs and Gaolers for setting free all members so committed to their custody. Moreover, when the King upon one or two occasions would take notice of speeches and proceedings in the House of Commons, they drew up a full statement of their privileges ; and as he had referred to the freedom of speech asked and granted at the beginning of each Parliament, they distinctly affirmed that it was their right, without any grant, and that their asking it was a mere form, and " words of manners only." He persevered in alluding to their proceedings, and they persisted in complaining of this as against their undoubted privileges. But he on one occasion went much beyond this, and ventured to impose a duty on currants imported. One Bates, having im- ported without paying the duty, was sued in the Exchequer, where the Barons supported the King's right to levy the customs, and used arguments still more base and slavish than their judg- ment. The Commons took up the subject, and the King desired they would not interfere. They however maintained, in most explicit terms, their undoubted right to discuss every one griev- ance of the subject ; and so effectual was their resistance, that when soon after he would have raised money by making vic- tuallers pay for a licence to retail wines, he was obliged, by the representation of the Commons, to revoke his proclamation. It must be added, with some feelings of shame, that Lord Coke himself agreed with the Court of Exchequer in their judgment on Bates's case, though for very different and far less objection- CH. XXVII.] THE STUARTS — COMMONWEALTH. 269 able reasons ; and in his Book he distinctly condemns the case as decided against law. (2 Inst. 57.) The Court, too, over which he presided, declared the issuing of proclamations creat- ing new offices to be unlawful, on the ground that the Crown had no power to alter the law of the land. The authority of Bates's case and of Lord Coke's concurrence had encouraged the King to levy customs without Act of Parlia- ment at the out-ports the absurd distinction being taken by the Judges between these and the Port of London and Cinque Ports. But the Commons strongly remonstrated against this proceeding as wholly illegal, and refused all supply until these demands were withdrawn. The consequence was an interval of six years before any new Parliament was called ; and, in the mean time, James was put to many shifts for obtaining pecuniary assistance. He was fain to ask loans from wealthy citizens as a favour ; and, failing to get supplies from this source, he had fecourse to his well- known expedient, the sale of Honours. He invented the order of Baronets, and sold the title for 1000/. About 200 were created, but not much more than half were at first so disposed of. One St. John, who had incurred his displeasure by writing a treatise recommending men not to advance their money by way of loan, was imprisoned by the Star Chamber and fined 5000/. — a striking proof that even now, when the Commons had their attention strenuously directed to the Royal claims, and were occu- pied in maintaining the privileges of Parliament and rights of the people, they were not yet prepared for laying the axe to the root of the great evil, the illegal proceedings of that court. They, however, obtained from him an unlawful order, probably through that arbitrary court, prohibiting the publication or sale of a work which appeared, written by one Cowell, and asserting in the most absurd terms the absolute powers of the Sovereign and the insignificance of Parliament by the constitution of Eng- land. It must be added that in all these struggles the High Church party uniformly took part with the Crown, and against the Parliament ; and thus was begun that mutual enmity which half a century later overturned the Ecclesiastical establishment of the realm. The attainders of individuals under the Tudors had formed the most hateful and disgusting part of their domination, and of the Parliament's pusillanimity. In James's reign the attacks 270 GOVERNMENT OF ENGLAND. [CH. XXVI I. upon individuals were almost all grounded upon sound and just principles, and did great good to the Constitution. They pro- ceeded not from the King, but the Commons, and not seldom were levelled at Ministers of the Crown. The right of impeach- ment had not been exercised since the Lancastrian Princes were on the throne. Now, all great delinquents were visited with its terrors. For the Commons impeached Mompesson of frauds and abuse, and oppressive use of patents he had obtained ; Marshall, his accomplice ; Barnet, a judge of the Prerogative Court, for corruption in his judicial conduct ; the Bishop of LlandafF for bribery; and Middlesex for bribery and official corruption. It must be confessed that the Commons carried occasionally their privileges somewhat further. The grossest case of oppression on record in the history of Parliament, one not exceeded by any act of the most despotic of Princes, is Lloyd's ; but religious zeal here mingled with their own privileges. The King was under- stood to be less warmly interested in his support of the Elector Palatine against the Emperor than suited the Protestant tastes of the Commons. This unfortunate gentleman, a Catholic, was re- presented as having used expressions disparaging to the Palatine and his wife — a charge which, if ever so fully proved, could in no conceivable way touch the privileges of Parliament. He was sentenced by a vote of the House to ride ignominiously on a horse with his face towards the tail, to stand in the Pillory, to be whipped from London to Westminster, to pay a fine of 5000/., and to be imprisoned for life ; and all of this iniquitous sentence he underwent, but the whipping. This Parliament, the last in James's reign, closed with an open quarrel between them and the King. A remonstrance respecting his slackness in supporting the Palatine, his son-in-law, drew from him a severe reproof, in which he ascribed jtheir freedom of speech to the Royal forbearance. The Commons took fire at this, and asserted in the loudest tone their absolute independence and supremacy. He was far from yielding ; and dissolved them with a new reprimand — adding, however, that he should con- tinue to govern by Parliaments. But as soon as they separated he committed several of the opposition leaders, among others Sir E. Coke and Mr. Pym, to prison. While the Commons were thus establishing tlieir power, and boldly facing the Crown, it is humiliating to think that the CH. XXVII.] THE STUARTS — COMMONWEALTH. 271 Judges, from whom so much better things might have been ex- pected, showed, with one single illustrious exception, the most base subserviency, and the most unblushing abandonment of principle. Being asked by. the King if he had a right to stay any judicial proceedings as often as he deemed his interest or the prerogative of the Crown assailed, all, except Lord Coke, humbly testified their submission to his demands, and in a tone of meanness and an abject spirit yet more disgusting than the answer itself. Little wonder then is it that we find Fuller, a lawyer, committed to prison, and there kept till he died — his offence being that he sued out a writ of Habeas Corpus for a client detained by the Court of High Commission ; or Whitelock and Selden threatened with the like fate, and averting it by humble apology, their offence having been the just and true opinion they had given their clients that certain acts of the Government were illegal. Notwithstanding these illegal acts, and notwithstanding the shameful dereliction of their most plain and obvious duties by the Judges, the liberties of the people gained prodigiously in James I.'s reign. Now it was that the Commons first entered into a contention with the Crown for the vindication of their rights, and for the restoration of those securities to the lives and properties of their constituents, which had repeatedly been de- clared to be theirs by law in the various renewals of the Great Charter, and in the laws extorted fi*om the Plantagenets. Now it was that the encroachments of those Princes, and the still fur- ther usurpations of the Tudors, were exposed, and the only fit and effectual means taken to restore the constitution and extend its spirit through its details. The greatest abuse of all, indeed, the powers assumed by the Privy Council in the Star Chamber and High Commission, continued ; but its operation was closely watched ; and all men saw that the conflict which had begun between the Crown and the country under the guidance of an unskilful Monarch, on the one hand, obstinate, perverse, pre- sumptuous, but of limited capacity for state affairs, and the great men of the day, the Cokes, the Wentworths, the Pyms, must end sooner or later in a popular victory. The " universal fermentation," which Mr. Hume (Chap, xlv.) describes as about the begmnmg of the seventeenth century occasioned by the revival of letters, then first became operative in the diffusion of VART III. T 272 GOVERNMENT OF ENGLAND. [CH. XXVII. knowledge among the people, at least among the bettermost classes, enlarged men's ideas, and by a necessary consequence led to discussions of political rights, and dissatisfaction with abuses of all kinds ; and, fortunately for the cause of constitu- tional freedom, this was the very period chosen by the Stuart family and their infatuated adherents in Church and State for promulgating the highest notions of arbitrary authority, con- temning all popular privileges, and setting the Sovereign above all human ordinances by a right claimed as inherent in the blood of Princes, and derived immediately from Heaven. The frank- ness with which these revolting doctrines were openly and explicitly proclaimed, although not at all greater than was shown by their Tudor ancestors, produced a far more strenuous opposi- tion, because the age to which they were addressed was very differently instructed, considert^ble progress had even been made by the Parliament in an opposite direction, and the freedom of religious opinion inculcated by the Reformation was calculated inevitably to extend itself also to state affairs. It was another blessing derived from the same family, that their capacity was far inferior to their pretensions — that the unyielding obstinacy of their nature was supported by no skill, not always by adequate firmness in pursuing its object. It was in these circumstances that the memorable reign of Charles I. began, and that the struggle between the Crown and the Commons descended to him from his father with that crown, and lined it with thorns. In character he materially differed from his predecessor. More courageous, more manly, of more winning address, of less pedantic conceit, and, though not deficient in accomplishments, yet not priding himself on those which fit men rather for the contests of the college than for those of public life, he was, never- theless, far less honest and sincere, more unforgiving, quite as selfish, and altogether r^s much imbued with the notions of his paramount rights and his contempt for those of the people. His private conduct was more pure, and his religious impressions more strong ; but he as easily tolerated breaches of morality and decorum in others ; and in religion he was as intolerant, with a leaning towards Popery, which was enlarged by an imperious and bigoted wife, and a profligate, unprincipled favourite (Buck- ingham), fondly cherished by him as he had been by his father. CH. XXVII.] THE STUARTS — COMMONWEALTH. 27^ recommended by none but superficial accomplishments and aban- doned character, and who proved one of the chief banes of his early life. His first measure in this warfare to which he was doomed must be allowed to have been as bad a one as was possible, for it was a trick ; it deserved not the more respectable name of a stratagem. He caused the popular leaders to be named Sheriffs, that they might not be returned to Parliament ; but the only consequence was their being chosen for other places. Thus, Coke, the avowed leader of the Opposition, was elected for Derbyshire instead of Norfolk, of which he had been named Sherifi*. His next step was of more open violence, and according to the very worst example of past times, no longer safe to be followed. Digges and Elliott, two of the most distinguished friends of liberty, were cast into prison for words spoken in Parliament ; for having taken part in the impeachment of the favourite. This ill-judged step was no sooner taken than re- tracted, on the House declaring they would proceed to no business until their members were released ; and he was fain to confess that he had been mistaken. A peer too, Arundel, whom he had imprisoned, was released on the claim solemnly made by the Lords that none of their members could be arrested unless for treason, felony, or a breach of the peace. They gained another success on the important right of each Peer to have his writ of Summons, which had been refused to Bristol, and which was now issued on their remonstrance. To screen Buckingham, whose fall he perceived was doomed, Charles now had recourse to a step which he repeated several times, in spite of the warning he each time received, that of dis- solving the Parliament — the result inevitably being a new one afterwards elected with increased hostility towards the Royal authority which had put an end to the old. Money had been voted, but no bill passed ; and he foolishly thought he might assess all his subjects to a loan of the amount voted, each accord- ing to the portion he would have paid if the subsidy had been enacted by law, requiring the names of these who refused their money to be reported before the Privy Council. This was fol- lowed up by pressing the inferior people to the Navy, and ordering only gentlemen to be committed by the Council. Five of these, including the illustrious Hampden, sued out their Habeas Corpus, t2 274 GOVERNMENT OF ENGLAND. [CH. XXVII. and the return being that they were detained according to the exigency of the commitment, the sufficiency of the return, and consequently the validity of the writ of commitment, came before the Court of King's Bench, the Judges of which, to their lasting disgrace, decided in favour of both. But the King was forced to call another Parliament, the third of his reign, and now was assembled that truly illustrious body to whose wisdom and for- titude we owe our liberties, in spite of the over violence by which its successors outdid its great example, and the inexorable ty- ranny of the faithless Prince with whom they had to deal. Bent on his destruction, while yet the elections had not been finished, Charles, at the moment that he paid court to his sub- jects, by releasing persons from unlawful imprisonment, em- ployed Commissions to raise money just as unlawfully, their orders being " to regard the necessity of the substance more than the form and circumstance ;" in other words, the want of supplies for an impolitic war of the favourite's advising, rather than the illegality of robbing the people against law. The re- sult was that famous proceeding, the Petition of Right, whereby the Lords and Commons obliged the King to declare the ille- gality of requiring loans without Parliamentary sanction, or bil- leting soldiers, or commitment without legal process, or proce- dure by martial law. When, however, they further required him to give up the right of levying tonnage and poundage, the infatuated monarch again had recourse to a dissolution, which was immediately followed by the imprisonment of opposition leaders. Elliott was prosecuted in the Court of King's Bench for words spoken in Parliament, and the Judges, as usual, ser- vilely and profligately acquiesced, affii*ming the jurisdiction, and allowing a conviction — a judgment which was solemnly reversed by Writ of Error, as contrary to law, after the Restoration (^1667). Other instances of judicial baseness were also exhibited on this occasion ; but when the merciful King, the sacred Martyr, wished to have Felton put to the rack for the murder of his favourite, the Judges could not go quite so far ; they declared torture to be illegal. A majority of seven to five soon after (1640) de- cided that the levying ship money was legal without consent ot Parliament, in Hampden's case. But the Commons went a step furtlier than their purpose required, as usually happens when in troublous times such strong measures are resorted to ; they vi- ClI. XXVII.] THE STUARTS — COMMONWEALTH. 275 sited every word spoken or written in disparagement of their ])roceedings with the penalties of breach of privilege, thus at once declaring themselves above all censure, and founding their claim of absolute power upon a fiction of absolute infallibility. They even treated respectful petitions * as breaches of privilege. The oppressions of the Star Chamber were multiplied at the same time. A greater number of punishments were inflicted, and severe ones, perfectly odious and revolting to the feelings of mankind, especially when compared with the station of the parties and the nature of the charges, were more frequent than even under the Tudors. Thus not only the pillory, but whip- ping, slitting the nose, and cutting off the ears, were ordinary inflictions ; and fines, so heavy as sometimes to reach 12,000/., were exacted, of which the greater portion always went to the King, thus forming an important item of his revenue. Of the kind of crimes thus visited we may form an estimate from this, that one person paid 8000Z. for having said " Suffolk is base born," and that Laud made Bishop Williams be condemned to pay the like sum, of which 3000/. went to himself as a compen- sation, for that Prelate having written a letter in which the Primate was turned into ridicule by a single expression. He was likewise imprisoned three years for the same jest, and for being so partial to it as to refuse apologising to the indignant metropolitan. For some libel on the Church Leighton was whipped, pilloried, had his nose slit and his ears cut off, and was condemned to prison for life ; Lilburn was whipped and pilloried ; and Pryime suffered two several inflictions, the second of which cut off whatever of his ears the former had spared. The discontent occasioned by such proceedings, and the im- possibility of obtaining the necessary supplies by all the violence to which he had had recourse, and with all the support he de- rived from an unprincipled bench of Judges, forced Charles to assemble Parliament, after an eleven years' intermission. It met in April, 1640, and showing great moderation, united with as much firmness as had distinguished its predecessor, it was dissolved after it had sat three weeks. The increased rigour of his illegal exactions soon increased the prevailing discontent, in which his favour towards the religion of his Queen, and its pro- fessors, especially those in her service, entered largely ; and after * Pari. Hist., 1147—1188. 276 GOVERNMENT OF ENGLAND. [CH. XXVII. in vain seeking to evade the necessity he most feared by assem- bling a great Comicil at York of all the Peers, he was obliged by their advice to summon that Parliament which in a short time overthrew his authority and brought him to the block. The first proceedings of this celebrated assembly were admi- rable in every respect, and marked by equal firmness and mode- ration. They passed a bill to secure the calling of Parliaments every three years, and prevent any interruption for more than that period of their authority : the Lords to issue writs if the Crown refused ; the Sheriffs if the Lords refused ; the Electors if the Sheriffs refused. This triennial bill likewise prohibited the King from dissolving without its consent, until it had sitten fifty days. The judgment in Hampden's case was then reversed ; all levies of customs, and generally all imposts, without consent of Parliament, were declared illegal, and strictly forbidden ; all pressing of soldiers, unless in case of actual invasion ; and as the crowning work, without which neither Parliament nor people could be safe for an hour, the Star Chamber and High Commis- sion Courts were for ever abolished, by depriving the Privy Coun- cil of all jurisdiction in criminal matters, and confining it to the more necessary operations of police, and commitment for trial by due course of law. The King submitted to pass all these important bills, but he interfered with the debates upon them, and this was so far resented by the Parliament that no instance is known of that offence against privilege being repeated. These were great and glorious achievements, and these must bound our praise of this renowned body. Their whole subse- quent proceedings were framed, possibly intended, to alter the form of the Government, and not to protect it fi'om attacks. The impeachment of Strafford alone of these violent acts leaves a doubt on the mind whether it were justified or not. The de- stroying", him, and by attainder, was plainly without any excuse. The ruining him in the King's estimation, or rather the prevent- ing his future employment by intimidating his master, was per- haps necessary from his talents, his courage, his influence with Charles, and the part he had since his apostacy openly and zealously taken against the people. His tyrannical and uncon- stitutional proceedings furnished a sufficient ground for convict- ing him of high crimes and misdemeanors. But the pretext that it was necessary to take his life because there was no other CH. XX VII. J THE STUARTS COMMONWEALTH. 277 way of securing the people against so powerful an adversary was exactly the reason which Henry VIII. would have given for destroying his victims ; the manner of accomplishing his de- struction was borrowed by the Parliament from the example of that tyrant ; the right which they had to destroy him, if grounded on their fears of his power and talents, was no better than Henry's right to put any formidable opponent to death ; and the shameful submission of Charles, contrary to every principle of duty and conscience, was exactly a counterpart of the subserviency of the Parliament to his despotic predecessor in passing his bills of attainder.* The other acts of the Long Parliament are without excuse and placed beyond any question. The Act to prevent a disso- lution without their own consent was an open and audacious assumption of supreme power, not by the people, but by a num- ber of individuals, who thus made themselves absolute, and founded an oligarchy rather than a democracy in their own persons. It was passed with a truly revolutionary speed, being brought in upon the 5th of May, carried to the Lords on the 7th, and agreed to by them on the 8th ; so that in three days the whole Constitution was changed, and the King's power be- came little more than nominal. The Bishops were then excluded from Parliament ; and the King's assent to this was his last con- cession. What followed was done by main force, and on the eve of taking arms, or in the midst of that din which proverbially puts all law to silence. The immediate causes of the rebellion were, first, the religious zeal, or rather fury, excited by the encouragement which the King and Queen gave to Popery, and which was greatly magnified, at least as concerned him. The alarm of the Pro- testants at the danger to their religion, not only drove many churchmen into the communion of the Puritans, but led the Parliament to the most preposterous assumption of privilege. Thus they treated as a question of privilege any alteration in the ceremonial of worship, declaring all " new-fangled cere- monies " to be a breach of their undoubted privileges. This was, of course, levelled at Laud, whose tendency towards Popery closely resembled that of a powerful body of the clergy * Mr, Hallam falls into the great error here pointed out, in his remarks upon Strafford's case. 278 GOVERNMENT OF ENGLAND. [CH. XXVII. in our own times. — In the second place a conspiracy was disco- vered of some leading persons in the King's party, to march the army to London and subdue the Parliament; the petition was even prepared, which the army numerously signed, praying to be heard by the Parliament ; and Charles had the incredible folly to countersign it, but retracted before it could be acted upon, instead of keeping aloof from the movement until it could be successfully executed. — But in the third place, and which more than all the rest hurried on matters to extremities, he took the insane step of entering in person the House of Commons, and claiming the surrender of five members, the leaders of the party opposed to him, but who had the whole Commons and nearly the whole Lords for their followers. He had the day before desired the Attorney- General to prosecute them and a popular Peer for high treason, the charge being grounded on their Parliamentary conduct, in which they had all the Parliament for their accomplices. Even Mr. Hume, the staunch apologist of Charles and all the Stuarts, treats this step as an indiscretion beyond " the fondest wish of his enemies ; " as a course entered on "without concert, deliberation, or re- flection ;" as an act " the prudence of which nobody pretended to justify " (Chap. lv.). Lord Clarendon confesses that this un- warrantable and infatuated act alienated the generality of those who were beginning to judge more favourably of Charles, pro- bably alarmed by the growing violence of the Parliamentary proceedings. Dr. Lingard, who repays the favour of the Stuarts towards his Church by extreme partiality for them, admits it to have been a proceeding equally blamed by his friends and his enemies.* That it led immediately to the vote which vested in * The extreme prejudice under which this able and respectable author writes is a great drawback to his work. His history is far more learnedly and carefully com- posed than any other of our country ; and yet, owing to his partiality, it leaves unsupplied the lank admitted by all to have been left by jNIr. Hume : for we meet in every one part of his narrative with the apologist or the advocate of the Pope and Popery. So Romish a history could hardly have been supposed possible to have been written in this country, and by a person of the most respectable character. As for the Stuarts, Mr. Hume, with all his prepossessions, and his habitual " love of kings and queens," must be admitted to have been very far surpassed by Dr. Lingard. The former had too masculine an understanding to let Mary's conduct pass unrcproved. The latter carries his partiality to the Romish Queen so far that he not only acquits her of all knowledge of Darnley's murder, but of all belief that Bothwell was an object of suspicion, and of all blame respecting his mock trial and •candalous escape ; nay, he cannot even bring himself to censure the marriage itself, CH. XXVI I.J THE STUARTS — COMMONWEALTH. 279 Parliament the nomination of the Militia officers, — in other words, the command of the army, — cannot be doubted ; and this was the commencement of the Civil War. It is wholly beside the design of this work to follow the his- tory of the great events which that war produced, or to con- template the extraordinary display both of civil and military genius by which it was marked. A revolution which unsettled the whole finance of the state, and changed in almost all par- ticulars the established order of things, could not fail to force as in a hotbed the talents and the virtues, as well as the vices and the weaknesses, which peaceful times and regular government either nip in the bud, or stint in their growth, or cast into the shade, when they chance to attain maturity.* But it is equally certain that in England, as in France a century and a half later, a vast majority of the people were averse to the change which overthrew the monarchy ; that the republican party, utterly in- considerable at first, was always a much smaller minority than in France ; that the extremities to which the leaders went against the King found very few supporters among the people, and were disapproved by a majority of the Parliament itself, from which a military force in one day expelled two hundred of its members, leaving the minority in possession ; and that the in- fluence of the two most powerful motives which can affect the conduct of nations, religious fanaticism and terror, was required to make those violent proceedings be patiently borne. The hatred of the Church abuses in France supplied there the place of that fanaticism, and the terror was exercised in a much greater excess. But in both revolutions the success of a party was se- cured by similar means, and in both the indolence and timidity of the well-disposed enabled the enemies of the people to prevail. The same moral is to be drawn from both these sad tales alike. It teaches all men that he who permits injustice and cruelty to triumph, when by doing his duty to his neighbour he could de- looks upon it as quite a becoming thing for a woman to marry a few weeks after her husband's violent death, and seems quite satisfied that a Queen can be married by force : but, worse than all, he appears absolutely to be the apologist of Bothwell himself, and gives an account of his latter end wholly different from all other writers. * They who are fond of representing as revolutionary the changes operated in our Government by the measures of 1831 and 1832 should reflect that there is wholly wanting, among other things, this one indication of a revolution. Hardly any men of talents have by that revolution been cast up to the surface. 280 GOVERNMENT OF ENGLAND. [CH. XXVII. feat them, shares the guilt though he may not share the spoil ; and that the risk of being overpowered in the struggle for right is not an excuse for inaction which can satisfy any but the most callous feelings and the most easy conscience. The abolition of Monarchy was complete — it was declared treason to give any one the title of King without Act of Parlia- ment— the House of Lords, as well as the Crown, was set aside ' — and the supreme power, legislative as well as executive, re- mained vested in the House of Commons, now attended by less than a hundred members, and wholly under the influence of the army. A council of forty-one, three-fourths of whom were members of the House, was appointed for a year to preserve the peace, dispose of the forces naval and military, and represent the country with foreign states. A new seal, representing the Commons, was made and intrusted to three Commissioners ; and an oath to be true to the Commonwealth was directed to be taken by all persons in office. Half the Judges took it; the others resigned ; the former made it a condition that Parliament would engage to maintain the fundamental laws of the realm. To this the House agreed, and the Judges never seem to have reflected that the Kingly power runs through all the jurispru- dence of England, from the foundation upwards. New writs were issued to fill up vacancies which had reduced the Commons to a seventh of their number, and 150 at length were found to compose the House ; but it was seldom that fifty could be got to attend, and hardly ever 100. Five or six eminent loyalists were tried and executed, but the reign of the Commonwealth was little stained with blood. Their puritanical rigour made them denounce severe penalties against offences which no penal law can ever well or safely reach ; acts were passed punishing incest and adultery with death, and fornication with three months' im- prisonment— acts the severity of which, as might easily be fore- seen, prevented their execution. But the public prayer for general reformation of the law was attentively listened to, and an important commencement was made of amendment in the system and in the practice of our jurisprudence. A full inquiry was instituted into financial abuses and frauds upon the revenue, especially in the management of forfeited estates. These must have been of importance, as in one year (1651) seventy indi- viduals, chiefly of rank and fortune, were forfeited, for their ad- CH. XXVII.J THE STUARTS — COMMONWEALTH. 281 herence to the King. The year after, previous to the fatal battle of Worcester, which extinguished the hopes of Charles II., his followers were also attainted ; 71 first, and then 682 were thus punished ; all however being suffered to redeem at one- third of their value. The Catholics were persecuted, but only one suffered death. The Presbyterians had been far worse per- secutors than the Independents, insisting on uniformity of wor- ship. But the Independents showed fully as much rapacity, and it was reckoned that the income of Catholics in the hands of sequestrators amounted to above 60,000/. a year, though only two-thirds of England were included in this calculation. The rigour of their measures was not confined to the rich and noble ; their violence descended to artisans, peasants, and menial ser- vants. The Long Parliament had naturally become unpopular, both from its duration of eighteen years, from the expulsion of a large portion of its members, and from its subserviency to the army and their chiefs. Cromwell's usurpation, therefore, was accept- able to the nation ; but he had little other hold over the people than what their dislike of Parliament and the dread of his mili- tary power gave him. He collected about 120 men of puritani- cal and sanctified habits, chosen by himself from a greater num- ber returned by different congregations, and to them he entrusted the whole Government. This ghostly body (commonly called Barebones' Parliament), how ridiculous soever in many of its proceedings, showed no little wisdom in prosecuting several im- portant reforms, and correcting some glaring abuses ; it also showed some disposition towards independence in the exercise of the powers conferred upon it. This of course displeased Cromwell, and on dissolving this body, and taking upon him the executive Government, under the title of Protector, as tendered to him by a party of its members, he proclaimed the Instrument of Government in forty-two articles, vesting the legislative power in the Protector and Parliament, no dissolution of which could take place, without its own consent, in less than five months. The Protector had the command of the army and navy; the power of making peace and war, with his Council's consent ; the power of appointing the great officers of state, with consent of Parliament ; and the successors of the Protector were to be named by the Council. The Parliament consisted of 460 282 GOVERNMENT OF ENGLAND. [CH. XXVII. members, chosen by the larger boroughs, exercising their former rights of election, and by persons in counties possessed of 200/. in any kind of property : 400 were for England, 30 for Scotland, and as many for Ireland. It met ; and finding after five months' trial that the members were far from being very pliable to his wishes, he dissolved it, and alarmed by a royalist movement in the west, delivered over the kingdom to eleven Major- Generals for as many districts, who were commissioned to levy a tax of ten per cent, which he imposed on all royalists. He also continued a duty on merchandise beyond the time limited by law. Some refusing to pay this illegal impost were fined by the collectors, and sued them for damages. The Judges showed their wonted subserviency and pusillanimity, and Cromwell sent to the Tower the counsel for one party who sued. He also erected a High Court of Justice, by which several of his adversaries were con- demned to death, and suffered accordingly. The Government was now a military despotism, and it is certain that nothing but Cromwell's brilliant success in all his foreign expeditions, and the dread of the Stuart family being restored, could have main- tained him on his usurped throne. After an interval of about two years he was obliged to call another Parliament ; the Scotch and Irish members were sub- missively obsequious ; the English so little disposed to obedience that he previously examined the returns, and by an act of vio- lence excluded about ninety of them on pretence of their im- morality. No one was suffered to enter the House, guarded by his sentinels, but those who had a certificate from his Council. The result was an obsequious assembly, which addressed him to take the title of King, and agreed to many amendments on the Instrument of Government. He refused the Crown, as is well known ; but the amendments of the Instrument gave him the power of naming his successor, and of naming an Upper House of not more than seventy nor less than forty members. In virtue of this sixty-two members of the Lower were summoned to the Upper House. The removal of his principal supporters from the Commons weakened his influence in that House, and he was soon obliged to dissolve this Parliament, the fourth that he had so dismissed, and the last he ever called. It has sometimes been considered by historians that the first form of Government under the Protector, that of the Instrument, CH. XX VII. J THE STUARTS — COMMONWEALTH. 283 was republican, and the second, under the petition and advice, was monarchical ; and Mr. Hallam is of this opinion. But ex- cept in the power of naming his successor, and the institution of the Upper House, the first was really as monarchical as the second. The Protector's death, and his son Richard's incapacity to hold his oflfice, led, after an interval of eighteen months, during which the Government was at one time in the hands of a Council of general officers, to the restoration of Charles II., without any security whatever being taken for his constitutionally governing the kingdom, beyond the effect which his father's fate and his own sufferings might be expected to produce upon his mind. ( 284 ) [cH. XXVI [I. CHAPTER XXVIII. GOVERNMENT OF ENGLAND THE STUARTS — REVOLUTION. Reigns of Charles II. aud James 11. the same in a Constitutional view — Characters of these Kings — Policy of Charles — His Alliance with France — Escape of the Country from Subjugation — Clarendon's Profligacy — Revolution delayed by Charles — Popish Plot : Exclusion Bill — Alarming Change of Public Opinion on James's Accession — Base Conduct of the Lawyers — Selfish Conduct of the Church — James's Attacks on the Church — Banishments — Narrow Escape from absolute Monarchy — Revolution : it originated in Resistance. • The history of the Constitution from the Restoration to the Re- volution, although usually viewed as divided into two portions, the proceedings of Charles II. and those of James II., is in fact properly to be considered as one and the same ; the course of events being uninterrupted, the proceedings of all parties being the same, and the conduct of the brothers only varying in the accelerated pace with which the more honest and bigoted of the two hurried matters to a crisis. The only real difference in the two reigns is, indeed, to be found in the personal characters of those Princes ; the one indolent, careless, unprincipled, loving his ease rather than anxious about power, unless as it might secure him from interference with his pleasures, or save him from the equally ungrateful interruptions of business ; not at all envying others their freedom so he might only enjoy his own ; — the other a stern ruler, jealous of his prerogative from religious as well as political principle ; a furious bigot from conviction ; little averse to labour, and fearing no risk in the pursuit of his object ; ever ready to sacrifice a temporal to an eternal crown, and though afiecting much regard for his word, yet unscrupulous of breaking it when its strict observance stood in the way of his predominant passion. Though in religion Charles had gra- dually become a Romanist, he never was prepared to avow his conversion, or to make any sacrifice for his faith ; his religious principles hanging almost as loosely about him as his private. CH. XXVIII.] THE STUARTS — REVOLUTION. 285 But James, though a rigid devotee, confined his self-restraint to matters of faith and the promotion of his Church, having lived at all times the same licentious life with which his brother and the rest of the Cavaliers, combining party feeling and personal indulgence, had debauched the English morals and outraged the feelings of the puritanical classes, even after their restoration to power. It not only little suited Charles's habits to risk what he termed " going again on his travels," in order to battle for Prerogative and Popery, as James would have had him do ; but he even would himself have preferred ruling by Parliaments as the easier course to pursue, could he only have found them reasonably tractable. He had no mind, as he told Lord Essex, to sit like a Turk and order men to be bow-stringed ; but then he " would not have a set of fellows spying and inquiring into all his pro- ceedings,"— and some laws which he found established he openly avowed his detestation of, declaring for example that he never would suffer any Parliament to be assembled under the famous Triennial Act of 1641. This was accordingly repealed. Still he tried how far he could go on amicably with such assemblies ; and it was only when he found they refused him money, and would inquire into the public conduct of his Ministers, that he threw himself into the arms of France, made his power and influence wholly subservient to the profligate ambition of Louis XIV., re- ceived regular supplies of money from him to evade the necessity of meeting his people's representatives, bartered for this price at once the honour and the policy of the country, and entered into a shameless conspiracy both against the liberties of Pro- testant Europe and the Free Constitution of his own kingdom. It is manifest that had the English Patriots in 1670 been ap- prised of his proceedings, the Revolution never ought to have been delayed an hour ; the calling in of William at that time would have been on every principle equally justifiable ; and the expulsion of the restored family would have been an act still more necessary for saving both the liberties of Englishmen and the independence of their country ; for that which James's pro- ceedings never even threatened, was absolutely sacrificed by Charles — the national security as against France. For a long time doubts were entertained by many and affected by some of Charles's criminality ; nor were these wholly re- 286 GOVERNMENT OF ENGLAND. [CH. XXVIII. moved until the publication of a secret treaty entered into with Louis XIV. in 1669, made all further denial of the conspiracy impossible. He thereby stipulated for a regular pension of 200,000/. a year, equal in value to half a million at the present day, and 6000 men ; in return for these means of both govern- ing without Parliament and overpowering all resistance from his subjects, he became party to a plan of partition upon a scale not exceeded by the northern powers in the case of Poland a century later, and to whom indeed these infamous transactions may well be considered as having served for a model. France was to seize the larger portion of the United Provinces, while England should have the greater part of Zealand, with Ostend, Minorca, and part of the Spanish provinces in South America ; a Bourbon prince occupying the Spanish throne, and abandon- ing part of the Spanish empire as the price of his quiet posses- sion. It is worthy of observation, as fixing upon Louis XIV. still more incontestably the invention of the Partitioning system, that he had twice three years before entered into a similar scheme with the Emperor for dividing the Spanish dominions. The inequality of the conditions had made the Emperor abandon this notable project ; he perceived plainly enough that while Louis was to occupy the Peninsula and the Dutch provinces at his ease, the Emperor would have no part of the spoil that he did not win by force of arms. It was certainly fortunate for this country that the suspicions raised in Louis's mind by the vacillating conduct and apparent bad faith of Charles prevented the prompt performance of the conditions thus entered into. Had a well-appointed French army entered England, while abundant supplies of money sup- ported the tyrant, he had only to keep on gratifying the Esta- blished Church with means of oppression towards the Dissenters, and to remain wholly inactive in his support of the Catholics, and his work of usurpation was complete. The abominable acts excluding all non-conformists fi-om corporations, and preventing them from ever coming within five miles of any corporate town, had won prodigious favour in the eyes of the clergy ; and Charles had no such bigoted zeal for the religion which he secretly had embraced, or rather which he was in the course of adopting, as to risk " going upon his travels again," by giving it open and offensive protection. Add to this, that he had shown a truly CH. XXVIil.j THE STUARTS REVOLUTION. 287 regal facility of abandoning his oldest and ablest servants, when Clarendon was impeached, suffering him to be declared guilty of treasons that he never had committed, because he timidly or prudently fled from an accusation of high misdemea- nors of which he was undeniably guilty. His sending persons to remote and even foreign prisons, where they lingered without a -trial for years until his fall ; his accession to the French Alliance, and his procuring for Charles pecuniary supplies to preclude the necessity of meeting Parliament ; were crimes of a deep dye, how little soever they could give his profligate and ungrateful master a pretext for leaving him to his fate. His detestable conduct on the occasion of his daughter's marriage, when he besought the King to refuse his consent, and declared he had rather she were treated as a strumpet, or put to death for a conspiracy against the prerogative, than that the Crown were sullied by such an alliance, though it be an offence incomparably less heinous to the State, has more than all his other crimes fixed upon his memory the just scorn of all good men in after ages. In carrying on his Government two things were to be remarked of Charles, in both of which he differed extremely from his bro- ther, and accordingly prevented the Revolution from taking place in his time, towards which, however, all things manifestly tended. He showed much address and temper in avoiding diffi- culties, which he seldom if ever met in front or endeavoured by force to surmount ; and he displayed no obstinacy nor even firm- ness in the pursuit of objects, which so careless and self-indulgent a nature little regarded. Thus, although it cannot be supposed that he gave implicit credit to the Popish Plot, and most likely disbelieved it altogetlier, he yet contrived to keep a certain neu- trality through the whole of the excitement into which it threw the nation, and was able to take advantage of the reaction which succeeded when the wretches who had deceived the people so successfully pushed their attempts a step too far, and accused those connected with the Royal Family. But his want of steadi- ness was apparent when, after issuing his declaration suspending the penal laws on the assumption of a prerogative to legislate absolutely in ecclesiastical matters, he was fain to withdraw it upon the anxious remonstrance of the Commons, alarmed, per- haps, more for their religion than their liberties. The extreme PART III. U 288 GOVERNMENT OF ENGLAND. [CH. XXVIII. unpopularity of the Duke of York on account of his religion had given rise to a bill for excluding liim from the succession. Charles used all his influence against it, and succeeded in throwing it out when it came to the House of Lords. The Duke himself was fully resolved, had it passed, to have tried even the desperate extremity of civil war rather than submit to the law ; declaring to Barillon, the French Ambassador, that there remained no other means but this of restoring the Royal authority in England. Yet so bent upon taking security against his bigotry were even those who chiefly opposed the Exclusion Bill, as Halifax, that they framed as a substitute for it another bill which entirely changed the form of the Government, providing that, on a Catholic suc- ceeding, the veto upon bills should cease, all civil and military offices be bestowed by Parliament, and a Committee of both Houses sit during the prorogation. It may further be cited as a proof of the excess to which Anti- Catholic alarm was carried, that, early in 1680, the Commons passed a unanimous resolution declaring the Fire of London to have been the work of Papists, with a design of destroying the Protestant religion ; and excluding from a seat every one who should accept any office under the Crown. In the whole history of human weakness there is no parallel to be found for the sudden change which speedily after came over the nation and its representatives. Whether the extre- mities to which they had been carried during the plot, or the violence which had been shown against the Duke of York, or the natural alternations of fickle and ill-informed men composing the multitude of all nations, or the shameful zeal displayed by the Established Church in vituperating the conduct of the late Parliament, or a part of all these circumstances, be the reason, certain is the fact, that hardly had the session closed when from one end of the island to the other there burst a cry loud and con- tinual against all that the Parliament had done ; and an universal disposition was disclosed to suffer whatever assaults upon liberty the prerogative of the Crown might make. The corporation of London, threatened with disfranchisement by a quo warranto issued against its charter, and aware of the habitual subserviency of the Judges, was glad to accept any terms that were offered, and submitted absolutely to the dictation of the Crown. The same base and pernicious example was followed in the other cor CH. XXVIII.j THE STUARTS — REVOLUTION 2yy porate towns. The late King's death in the bosom of the Romisli Church, and the ostentatious display of his religion by Jame« going openly to mass in Royal state, failed to open men's eyes and alarm their religious fears. He ventured early upon calling a Parliament, and a revenue of 2,000,000/., equal to 5,000,0007. at this day, was settled on him for life, with 700,000/. a year for supporting a standing army. An address on behalf of the Penal Laws was altered on a suggestion that its expressions might give offence to the King. A bill passed one House at least, and that the people's House of Parliament, declaring it high treason to make any motion for altering the order of suc- cession— the very House which a few years before had passed a bill to exclude the reigning monarch for ever and bestow the Crown as if he had been naturally dead. It seemed a most superfluous plan which the profligate Sunderland had formed to dissolve the Parliament during the King's life, and trust to supplies froHi France in case any extraordinary occasion for them should arise. James, so lately the object of all men's dread and aversion, was now extolled for his courage, his ad- herence to his promises, his patriotic services to the country, his patience under the late persecution, which had forced him to reside abroad ; so that he became now, to use Lord Lonsdale's expression, " the very darling of all men." Meanwhile, notwithstanding his promise to rule constitution- ally, and his pluming himself on being a man of his word, he began his reign by declaring permanent the customs which had been voted for a fixed time. He assumed the power of dis- pensing with the penal laws, and issued a " Declaration for Liberty of Conscience " on that ground, taking care all the while to gratify at once his own monarchical dislike of the Non- conformists and the Church's prejudice against that body, by joining in severely persecuting them. In Scotland, where the Crown's prerogative was always more restricted than in Eng- land, he suspended the penal laws, as he stated, " by virtue of his sovereign authority, prerogative royal, and absolute power, to be obeyed without reserve by all subjects ;" and for these acts the whole country, both counties and towns, poured in their warmest addresses of thanks. The gratitude of the Spanish mob, actuated by their priests and fired with superstition, was never in our own day more eagerly displayed for the restored u 2 290 GOVERNxMENT OF ENGLAND. [CH. XXVIII. blessings of despotic government than was that of the English people in 1686 and 1687 for the arbitrary rule of James II. Now was exhibited above all the base sycophancy of the lawyers, rendered more disgusting by the learned garb in which it clothed the vile language of crouching slaves; their subser- viency the more glaring as it was the more pernicious and the more infamous in the more elevated positions of the profession. Now were seen the Benchers of the Middle Temple first hailing with delight the earliest act of the tyrant's reign, his levying money without consent of Parliament, for which wholesome exercise of the prerogative those sages of the law humbly and heartily ten- dered him their thanks. Again, the raptures of the same vile body knew no bounds when James, spurning himself all bounds, assumed the full dispensing and suspending powers. They averred that the Royal prerogative is the very life of the law, gratefully thanked him for asserting it, declared it to be given by God, and beyond the power of any human tribunal or authority to limit, and vowed to defend with their lives and their fortunes the grand truth, a Deo rex — a lege rex. Then, too, were seen the whole twelve Judges, save only one, declaring the right of the King to dispense with penal statutes, most solemnly made for the purpose of restraining his power ; a Pemberton wresting the rules of evidence, to the sacrifice of innocent per- sons hateful to the Court ; a JefFeries campaigning in the north against all corporate rights, in the west against all dissenters from the doctrines favoured by the Prince, and causing streams of the purest and most innocent blood in the land to dye its furrows that he might do his profligate employer's butchery, pave the way for absolute monarchy, help the overthrow of the national religion, and meanwhile provide convicts to be spared by redeeming their lives or their exile with money to meet the cravings of a profligate and insatiable Court. A Parliament, however, seemed still wanting to give the Catholics their estab- lishment in the form of law ; and to prepare for this Regulators of Corporations were commissioned to examine all their titles and all their acts, and to new model their structure under the threat, amounting to inevitable certainty, of judicial sentence if they resisted. Happily the moonstricken Prince had gone a step too far. He had done in a month or two what if a year or two had been con- CH. XXVIII.] THE STUARTS — REVOLUTION. 291 sumed in doing might have been unresisted. He had expelled the members of one college for being Protestants, named a Catho- lic principal of another, and prosecuted seven Prelates for represent- ing against his Declaration appointed to be read in all Churches. The Church had mainly been the cause of his excesses. The declarations of the University of Oxford some years back against all freedom of discussion and in favour of absolute government, followed up by their slavish submission at his accession, and the zeal with which the clergy had everywhere taken his part, run- ning down all his opponents, and especially the Protestant Par- liament last held in his brother's reign, had not unnaturally in- duced him to believe that he might rely on their neutrality, if not on their help, in all his designs. In truth he had persuaded himself that there was no substantial difference between his faith and others ; for he had been entirely converted to Romanism by reading the controversial writings of the English Divines in the school of Laud ; and it must be admitted that, like a certain sect of the Anglican clergy in our own day, the bounds which separated that school from Romanism were very difficult to trace. However, he reckoned on their adherence in vain. Sud- denly Oxford led the way in deserting him, as she had led the way in seducing him. The communication had now been opened with the Prince of Orange. James saw that he must fight for his crown ; and though he prepared himself by the measure of drafting a great number of Irishmen into his army, men pre- pared to fight for any cause or any person, the precaution was taken too late ; the Bishops were acquitted, even the Judges now venturing to do their duty ; the army refused to quit the Church ; the clergy rallied in defence of their benefices, and their pulpits, and their faith ; the country declared generally against the King, and for the Prince. A convention first, then a Parliament, after much subtle discussion, which we have ex- plained at large in the First Part (Chap, ii.), declared the throne vacant, and setting aside James's children, as well as himself, except the two Princesses, Mary and Anne, who had gone over to his enemies, settled the succession to the Crown upon William and upon them, and it was afterwards further limited to the descendants of James I.'s daughter, married to the Elector Palatine. This Revolutionary arrangement, grounded entirely upon the will of the people in a state of resistance to their 292 GOVERNMENT OF ENGLAND. [CH. XXVIII. hereditary rulers, is the whole foundation of the title by which the House of Brunswick now enjoys the Crown. Cavils have sometimes been attempted as if there had been no actual re- sistance in 1689, and they are only worthy of those antiquaries who deny a conquest in 1066, and read conqueror, acquirer. There had been arms taken in almost all parts of the country ; but especially and on a large scale in Yorkshire, Notts, and Cheshire. There was a foreign army in the country, for no other purpose than to put down all attempts on the King's part ; his troops for the most part joined the Prince ; and by resistance to James he was deposed. The form of words used out of regard to tender consciences and legal niceties in the Acts of the Convention offering the vacant throne, and of the Parliament offering the sovereignty for William and Mary's acceptance, is wholly immaterial. The Abdication was known and felt by every one to be constructive, not actual ; James was well understood to have returned to London as King, and never by any act or word to have re- signed the Royal authority which he claimed by hereditary title. But the people had rejected him, and their representa- tives held him to have vacated the throne, because he had been guilty of acts which justified them in deposing him. Moreover, suppose he had formally abdicated, he could not prejudice his son's title to succeed upon the vacancy which his resignation made. But the same power — the will and voice of the people—: which had pronounced the throne vacant in spite of James, set aside the title of his son ; called to the succession William, who stood five or six off, and by the course of nature could not easily have hoped to succeed ; and then made the Crown here- ditary in the daughters of James, living his son, and afterwards limited it to a remote branch, excluding that son's issue. Nothing can be more clear, therefore, than that the whole proceeding was Revolutionary ; that the change was effected by the Resistance of the people to their sovereign ; that his assent was neither obtained nor asked, nor in any way regarded ; and that the supreme power having been forcibly seized by the nation, was used to install a new chief magistrate in the throne. cu xxix.j ( 293 ) CHAPTER XXIX. CONSTITUTION OF ENGLAND. Resistance the Foundation of our Government — Necessity of keeping this always in view — Security derived from the late Parliamentary Reform— Universality of the Mixed Principle — Apparent Exceptions— Only real Exception, Privilege — Evils of that Doctrine ; its Abuse — Conduct of the Commons — Recent History. Outline of the Constitution — Prerogatives of the Crown ; Extent ; Limits — Substan- tive Power of the Sovereign — Hereditary Principle — Errors on the Regency Question — King's influence in Parliament — Lord's House — Claims of the Com- mons : Taxation; Elections — Peerage — Large Creation of Peers ; Crisis of 1832 — Prelates ; Convocation — Judicial System — Independence and Purity of Judges — Security of the People — Parliamentary Superintendence ; Meetings ; Press — Vigour of the Executive — Resources of the Country called forth- -American Government — Three Defects in the Parliamentary Constitution — Bribery — Power of Adaptation to Emergencies — Extraordinary Powers ; Habeas Corpus Suspen- sion ; Alien Act ; Restraint of Meetings — Errors of Bentham School on uncon- stitutional measures — Writers on the English Government. The National Resistance was not only, in point of Historical fact, the cause of the Revolutionary settlement, it was the main foun- dation of that settlement ; the structure of the government was made to rest upon the people's Right of Resistance as upon its corner stone ; and it is of incalculable importance that this never should be lost sight of. But it is of equal importance that we should ever bear in mind how essential to the preservation of the Constitution, thus established and secured, this principle of Resistance is ; how necessary both for the governors and the governed it ever must be to regard the recourse to that ex- tremity as always possible — an extremity, no doubt, and to be cautiously embraced as such, but still a remedy within the people's reach ; a protection to which they can and will resort as often as their rulers make such a recourse necessary for self-defence. The whole history of the Constitution, which we have been occupied in tracing from the earliest ages, abounds with proofs how easily absolute power may be exercised, and the rights of the people best secured by law be trampled upon, while the theory of a free Government remains unaltered ; and all the institutions framed for the control of the executive government, 294 GOVERNMENT OF ENGLAND. [CH. XXIX. and all the laws designed for the protection of the subject, con- tinue as entire as at the moment they were first founded by the struggles of the people, and cemented by their labour or their blood. The thirty renewals of Magna Charta — the constant and almost unresisted invasions of the exclusive right of Parliament to levy taxes by the Plantagenet Princes of the House of York — the base subserviency of the Parliament to the vindictive mea- sures of parties, alternately successful, during the troublous times of the Lancaster line — the yet more vile submission of the same body to the first Tudors — their suffering arbitrary power to regain its pitch after it had been extirpated in the seventeenth century — the frightful lesson of distrust in Parliaments, and in all institutions and all laws, taught by the ease with which Charles II. governed almost without control, at the very period fixed upon by our best writers as that of the Constitution's greatest theoretical perfection — and, above all, the very narrow escape which this country had of absolute Monarchy, by the happy accident of James II. choosing to assail the religion of the people before he had destroyed their liberty, and making the Church his enemy instead of using it as his willing and potent ally against all civil liberty — these are such passages in the history of our government as may well teach us to distrust all mere Statutory securities ; to remember that Judges, Parliaments, and Ministers, as well as Kings, are frail men, the sport of sor- did propensities, or vain fears, or factious passions ; and that the people never can be safe without a constant determination to resist unto the death as often as their rights are invaded. The main security which our institutions afibrd, and that which will always render a recourse to the right of resistance less needful, must ever consist in the pure constitution of the Parliament — the extended basis of our popular representation. This is the great improvement which it has received since the Revolution. As long as the House of Commons continued to be chosen by a small portion of the community, and to be thus influenced by the feelings and the interests of that limited class only, the Government resembled more an Aristocracy, or at least, an Aristocratic Monarchy, than a Government mixed oi the three pure kinds ; little security was affbrded for constant and equal regard to the good of all classes ; and little security was provided against such a combination between the Crown CH. XXIX.J THE EXISTING CONSTITUTION. 295 and the Oligarchy as might entirely destroy even the name of a free Constitution. The increased influence of the Crown from large establishments, the result of the burthens left by expensive wars and of extended foreign conquests, seemed capable of undermining all the safeguards of popular liberty, and threatened to obliterate all the remains of free institutions as soon as some bold and politic Prince should arise equal to the task of turning such an unhappy state of things to his own account. In 1831 and 1832 the Parliamentary constitution was placed upon a v/ider and a more secure basis ; and although much yet remains to be accomplished before we can justly affirm that all classes are duly represented in Parliament, assuredly we are no longer ex- posed to the same risks of seeing our liberties destroyed, and the same hazard of having to protect ourselves by resistance ; nor can any one now deny that the democratic principle enters largely into the frame of our mixed monarchy. This great chanoje is much more than sufficient to counterbalance all the increase of influence that has been acquired by the Crown since the Revolution, including the vexations which unavoidably attend the administration of our fiscal laws for the collection and pro- tection of a vast revenue, and the creation of a numerous and important body, always averse to struggle under the worst oppressions, and always the sure ally of power — I mean the vast and wealthy body of public creditors, whose security is bound up with the existing order of things. The great virtue of the Constitution of England is the purity in which it recognizes and establishes the fundamental principle of all mixed governments ; that the supreme power of the state being vested in several bodies, the consent of each is required to the performance of any legislative act ; and that no change can be made in the laws, nor any addition to them, nor any act done affecting the lives, liberties, or property of the people, without the full and deliberate assent of each of the ruling powers. The ruling powers are three — the Sovereign, the Lords, and the Commons : of whom the Lords represent themselves only, unless in so far as the Prelates may be supposed to represent the Clergy ; and the Scotch Peers to represent, by election for the parliament, and the Irish, by election for life, the peerages of Scotland and Ire- land respectively ; the Commons represent their constituents, by whom thev are for each iKri'liament elected. 29(5 GOVERNMENT OF ENGLAND. [CH. XXIX. If it should seem an exception to the fundamental principle now laid down that the Crown has the power of making peace and war, and of entering into treaties with foreign states, ope- rations by which the welfare of the subject may be most mate- rially affected, it is equally true that no war can possibly be continued without the full support of both Houses of Parliament ; and that no peace concluded, or treaty made, can be binding, so as to affect any interests of the people, without their subsequent approval in Parliament. The Sovereign, therefore, never can enter into any war, or pursue any negotiation, without a posi- tive certainty that the Parliament will assent to it and support the necessary operations, whether of hostility or of commercial regulations ; and thus the only effect of this prerogative is to give due vigour and authority to the action of the Government in its intercourse with foreign powers and its care of the national defence. It is, however, a more serious infringement of the fundamen- tal principle if either of the three branches assumes, under any pretence, a power of acting without the concurrence of the other two, and without the sanction of any known general law to which the obedience of the people may be required. The several branches of the system have each at different times endeavoured to exceed this limited and balanced power, and to exercise alone a part of the supreme functions of Government. The Crown long struggled with the Commons to be allowed the right of taxing ; it assumed repeatedly the right to imprison individuals without bringing them to trial ; it claimed the power of suspend- ing laws or of dispensing with them at a much later period, and exercised this, at least in ecclesiastical matters, down to the period of the Revolution. The abandonment, or the prohibition by law of these dangerous pretensions, was the main victory of the people, both in the seventeenth and eighteenth centuries ; the freedom of the Constitution was deemed to consist chiefly of the restraint under which the Sovereign was thus effectually laid. But the two Houses of Parliament, and more especially the Commons, have laid claim to certain privileges by no means consistent with the mixed nature of the Constitution, and repug- nant to the liberty of the subject. The judicial power exercised by the Lords as a supreme Court of Judicature in all matters of law, whether civil or criminal, CH. XXIX. J THE EXISTING CONSTITUTION. 297 and a Court of general appeal in all equity suits, has never been deemed inconsistent with the liberties of the people. If indeed it were exercised, as by the letter of the Constitution it should be, by the whole body of the Peers, in like manner as their legislative and political functions are, great abuse must ensue, and wide-spreading oppression must be the consequence. But the Peers very wisely have in practice abandoned this right, and left their whole judicial business in the hands of some five or six of their number, professional lawyers, who have filled or continue to fill the highest judicial offices in the state. There have only been two instances of the Peers at large interfering in such questions for the last hundred years; only one within the memory of the present generation, and that nearly forty years ago. Both Houses, however, claim to visit with severe punishment what are called contempts or breaches of their privileges, the Commons by imprisonment during the session, the Lords by im- prisonment for a time certain, and by fine. Nor would this be objected to if it were confined to cases of actual contempt and ob- struction, as by refusal to obey their lawful orders issued in furtherance of the judicial proceedings of the Peers, or of the inquisitorial functions of the Commons, or of any matter without the compassing of which either House could not proceed to dis- charge its duties. No court, from the highest to the lowest, can exist for any useful purpose if its proceedings may be interrupted by any unruly individual, or riotous mob, or if its members may with impunity be obstructed or threatened in the discharge of their duties ; and it is absolutely necessary that such lawless conduct should be at once repressed by immediate punishment. But very different have been the powers of visiting contempts claimed by the two Houses, especially by the Commons' House of Parliament. They have punished summarily as breaches of their privileges acts which could in no way be construed into an obstruction of their functions, and which might most safely have been left to the ordinary visitation of the criminal law. We have in the course of the last two Chapters seen the latitude which they frequently assumed in classing whatever they dis- liked under the head of breach of privilege, and punishing it with extreme severity. In the time of James I. the Commons ordered a person who was charged only with having spoken disrespect- 298 GOVERNMENT GF ENGLAND. [cH. XXIX. fully of the Palatine, then an object of popular favour, to be led ignominiously in procession on horseback, with his head towards the tail of the beast, to be whipped from London to Westminster, to pay a fine of 5000/., and to be imprisoned for life ; and all but the whipping was executed upon this unfortunate gentleman. In Charles I.'s time they habitually voted any act which dis- pleased them a breach of their privileges. In order to reach an obnoxious individual, whatever he did was declared against their privileges ; thus to reach Archbishop Laud all " new- fangled ceremonies in the Church service " were voted contempts of the House. The same inordinate assumption of power under the name of privilege was in the next reign not unfrequent. The persons of members' servants too were held as sacred as those of members themselves. Nay, down to a late period, the last year of George II.'s reign, there are instances of mem- bers preferring their complaint in questions of private right to the House, instead of trying the matter by actions at law, and of the House treating the assertion of adverse rights as breaches of its privileges, and punishing the parties accordingly. Even in this day a libel on the House is treated as a breach of its privi- leges, as if any possible injury or obstruction to its proceedings could arise from prosecuting this as the King prosecutes it, and as every other person in the realm prosecutes attacks on his character. It is impossible to deny that this povrer assumed by the Houses of Parliament, and especially abused by the Lower House, is an infringement on the whole principles of the Constitution, and a great violation of all the ordinary rules which ought to regulate the administration of criminal justice. In the first place the party wronged, or complaining of injury, not only institutes the trial without the intervention of a grand jury, but assumes to be the sole judge of the charge, to find the guilt, and to mete out the punishment. Secondly, the proceeding is of the kind most ab- liorrcnt to our laws ; for the party is called upon to confess or deny the charge, and if he refuse to criminate himself he is treated as guilty. But thirdly, and chiefly, he is tried, not by a general law, previously promulgated, and therefore well known to him whose duty it is to obey, but by an ex post facto law, a resolution passed by his accuser declaring the criminality of the act after it has been done. This appears to be quite intolerable. CH. XXIX.] THE EXISTING CONSTITUTION. 299 Any law, anyhow made, provided it be made calmly, and before the event occurs which it embraces, is far preferable to a law contrived and promulgated for the first time on the spur of the occasion, when the passions are heated by the offence done or alleged. If even an indifferent party, a court of justice, or a legislature, were to make the law by which the defence should be defined, and the accused convicted, in one breath, the griev- ance would be intolerable of such an anomalous justice. But how incomparably worse is the justice of the party complaining, himself making the law by which his adversary is to be tried, and pronouncing the rule, and the conviction, and the punish- ment, at one and the same time ? I say nothing of the manner in which this proceeding precludes the Royal prerogative of mercy, because possibly breach of privilege, whether actual or construc- tive, is a case which ought to be exempt from the protection of the Crown. But the other objections are quite sufficient to make all considerate persons, all who are not, like one great party in the state, carried away by an undistinguishing love of party supremacy, and disregard of all the rules that should regulate judicial proceedings, agree entirely with the very sound and judicious opinions on this important subject, expressed in tha resolutions of the Lords on the Aylesbury case in the year 1701 They declared that "neither House of Parliament hath an} power, by any vote or declaration, to create to themselves any new privilege that is not warranted by the known laws and customs of Parliament ; that the Commons by their late commit- ment of certain persons for prosecuting an action at law, under pretence that it was a breach of their privileges, have assumed to themselves a legislative power by pretending to attribute the force of law to their declaration, and have thereby, as far as in them lies, subjected the rights of Englishmen, and the freedom of their persons, to the arbitrary votes of the House of Com- mons." In 1721 the Commons went yet further, for they committed to Newgate the printer of a Jacobite paper, merely because it was a public libel, and without yjr. tending even to declare it a breach of their privileges ; so that, by the same rule, they might punish any person for any kind of msidemeanour, without judge or jury. I sincerely wish that I could perceive in the more recent 300 GOVERNMENT OF ENGLAND. [CH. XXIX. history of Parliament any disposition on the part of the Com- mons to recede from so untenable a pretension as the claim to declare at any time their privileges, and to add new chapters to their Criminal Code as new events arise. Not only did they commit Mr. Gale Jones to Newgate, on the flimsy and indeed ridiculous quibble that debating in a club a question concerning the parliamentary conduct of a member was in violation of the Bill of Rights, which forbids questioning in any court or place any member for his proceedings in Parliament (a provision plainly intended to prohibit all judicial proceedings or quasi- judicial proceedings against members for their parliamentary conduct) ; not only did they send Sir Francis Burdett, and a few years after Mr. Hobhouse, to prison for libels published against them, which the ordinary process of the law reached, and would have been quite sufficient to punish ; but they afterwards assumed in 1836, and defended in 1837, the power of publishing whatever attacks on individuals they might think fit, and of protecting their agents from all responsibility, civil or criminal, for the act ; a power never in modern times pretended to be exercised by the Crown, whose servants are responsible for all acts done by its orders. Upon the same memorable occasion they adopted a resolution reported by a committee charged to inquire into the matter, and in that resolution they asserted their unqualified right at all times to create new privileges, and denounce new acts as a breach of those privileges ; so that as the law of Parlia- ment now stands the two Houses are invested each with a sepa- rate and uncontrollable power of making laws as occasion may require, of grinding as it were a little new law as they want it, and to suit the particular cases which arise ; nor is any limit but their own discretion assigned to this pretended right. It may be quite necessary to give them the right of removing and of summarily preventing all obstructions ; quite right to let them visit, and severely visit, all misrepresentations in public of their proceedings, only made publicly known by sufferance ; but to give them anything like the power of several legislation and jurisdic- tion claimed by both Houses, must be an infringement of the Mixed Constitution of the English Government. It is in vain to deny the origin of this claim, and the motive for preferring it. They dare not trust to the ordinary administration of the criminal law ; they dare not go before an impartial judge and indifferent CH. XXIX. J THE EXlSl'lNG CONSTITUTION. 301 jury ; they dread the consequences of leaving the law to take its course ; and therefore they must needs take it into their own hands, and at once make themselves party prosecuting, grand jury, petty jury, judge, and even law-giver, by one sentence forming the law, promulgating it, prosecuting for its violation, convicting the accused under it, he being their adversary, and sentencing him to suffer for the wrong done, or alleged to be done by him, to themselves. Let us now shortly consider in what the Constitution of Eng- land consists, how its structure is preserved, and how its func- tions are performed, having generally surveyed the principles on which it rests, the sacred right of resistance, the separation and entire independence of its component parts, and the admission of the People as well as the Prince and the Peers to an equal share in its powers and prerogatives. The whole Executive Power is lodged in the Sovereign ; all the appointments to offices in the army and navy ; all movements and disposition of those forces ; all negotiation and treaty ; the power of making war, and restoring peace ; the power to form or to break alHances ; all nomination to offices, whether held for life or during pleasure ; all superintendence over the adminis- tration of the civil and the criminal law ; all confirmation or remission of sentences ; all disbursements of the sums voted by Parliament ; all are in the absolute and exclusive possession of the Crown. An ample revenue is allotted for the support of the Sovereign's dignity, not only in a becoming but in a splendid manner, and his family share in due proportion the same liberal provision. To which is added a sum formerly unlimited, of late years restricted to 1200/. a-year, for the reward of merit, by way of gratuity or pension. Such are the powers and prerogatives of the Crown ; but they are necessarily subject to important limitations in their exercise. Thus the Sovereign can choose whom he pleases for his minis- ters, dismiss them when he pleases, and appoint whom he pleases to succeed them. But then if the Houses of Parliament refuse their confidence to the persons thus named, or require the return to office of those so removed, the Sovereign cannot avoid yielding, else they have the undoubted power of stopping the whole course of Government. So, too, if war is declared,, or peace concluded, contrary to the opinion of Parliament, the 302 GOVERNMENT OF ENGLAND. [CH. XXIX. Sovereign has no means of conducting either operation, and his own inclination must he abandoned. We have before seen at large (Pt. ii. Ch. ii.) how there is often a compromise effected between the conflicting branches of the Government ; and how, to avoid a collision, each giving up a portion of its demands, the result of the combined movement which the machine of the state pursues, is one partaking of the impulse which eacli has given to it. If it cannot on any account be affirmed that the Sovereign has full and independent powers of action, so it cannot any more be affirmed that he is not without power, and very considerable power, in the state. If he can find any eight or ten men in whom he reposes confidence, who are willing to serve him, and whom the Houses will not reject, he has the choice of those to whom the administration of afikirs shall be confided. When he has obtained a ministry, on many important points they are likely to consult his opinion and wishes rather than bring matters to a collision with him. Many modifications of the measures of Parliament are likely to be adopted rather than come to a rup- ture with him. The vast patronage at the disposal of the Crown, and the great revenue allotted to meet the Sovereign's per- sonal expenses and those of liis family, are a source of individual influence which must arm him with great direct power. His opi- nions, if strongly entertained, like those of George III. on the American war and Catholic question, his wishes and feelings, if deeply entertained, are thus certain to exert a real influence upon the conduct of public afikirs, and with even the most con- flicting sentiments of the people and the Peers, secure a sensible weight to his views in the ultimate result. This is the spirit of the Constitution, which wills that the individual Monarch should not be a mere cipher but a substantive part of the political sys- tem, and wills it as a check on the other branches of the system. Of all the Sovereign's attributes none is more important than his independent and hereditary title ; nor can a greater inroad be made upon the fundamental principles of the Constitution, than the bringing this into any doubt or any jeopardy. Hence, in the event of his infancy, illness, or other incapacity, it is a serious defect in the system that no general law has provided for supplying his place, because this leaves the question to be dis- cussed and debated each time that the Royal authority fails, and CH. XXIX.] THE EXISTING CONSTITUTION. 303 in the midst of all the passions sure to be engendered by the adherents of contending parties and the advocates of conflicting opinions. There can be no manner of doubt that Mr. Fox's opinions in 1788 were far more in accordance than those of Mr. Pitt with the spirit of a constitution which abhors all approach to election in the appointment of the Chief Magistrate. Yet that precedent, followed as it was by Mr. Perceval's ministry in 1811, in both instances, from the mere personal views of the parties and their hostility to the heir apparent, has established it as the rule of the Constitution, that in the event of the Sovereign's incapacity the two Houses of Parliament shall always legislate to choose the Regent and define his powers, as well as to provide for the custody of the King's person. This is a complete anomaly in our form of government, and it perpetuates the risk of the worst mischiefs arising as often as the incapacity occurs, by providing that the whole of the subject most exciting to all classes shall be discussed during the greatest heats which that excitement can kindle. Of the same Parliament which in its wisdom has declared itself the best judge in its own cause, and has resolved that the law of its privileges, the measure of its prerogative, shall be taken from occasional decisions made for the purpose of each case, it may be pronounced worthy and in exact consistency to refuse settling by a general law the manner of supplying any defects in the Royal authority, of preserving the prerogative of the Crown, and to leave the rule for special, and partial, and inflamed consideration as often as the incapacity occurs. As it has dealt with Parliamentary privilege so has it dealt with Royal prerogative, according to the factious views of the hour, and with no regard for the wellbeing of the Consti- tution. The most important check upon the Royal authority is the necessity of yearly meeting Parliament, and of having recourse 10 it for the means of carrying on the government. The power of the sword is really only given for a year to the Sovereign ; the only means which he possesses of keeping the army and the navy together, and enforcing the strict discipline required, flow from an act passed yearly and for a year each time. There are many branches of the revenue which in like manner are only granted for a year — in fact all save that portion which is mort- gaged to the public creditor. If then a King were to retain PART III. X 304 GOVERNMENT OF ENGLAND. [oH. XXIX. the troops on foot without a Mutiny Bill, and to levy the revenue not voted by Parliament, not only would the soldiery be released from obedience to their commanders, not only would the people be released from their allegiance, and justified in resisting the Crown, but the courts of law would refuse to aid the ministers by either suffering soldiers to be tried by courts martial or re- quiring the subjects to pay their taxes. No soldier needs fear punishment for his disobedience, no person needs pay any of the taxes beyond those mortgaged to pay the interest of the national debt. Thus it becomes absolutely impossible for the Crown to govern without assembling a Parliament, or to govern without a general good understanding with the Parliament so assembled. Besides, whoever should remain in any office of trust under the Crown while illegal attempts were making, much more, whoever should aid in making them, would as soon as Parliament met be impeached by one House and tried by the other ; and although the Crown might pardon him, it could not prevent his trial and conviction. Over the Parliament, thus essential to the administration of public affairs, the Sovereign no doubt has great influence. He can at any moment dissolve it, provided the Mutiny Bill is passed and the necessary supplies are granted ; and thus, by appealing to the nation at large, he can defeat any factious cabal which an oligarchy not faithfully representing the body of the people might contrive for enslaving the Prince. There is even some risk of this power being abused, by the Royal influence being first employed to excite a popular clamour against par- ticular men or particular measures, and then advantage being taken of such delusions in an immediate general election. The shortening of the duration of Parliaments affords the best security against this hazard, because if the Parliament has only been assembled during a short period of time the Sovereign is less likely to encounter another general election. The Lords who form the upper and permanent branch of the legislature, may be considered as representing not merely them- selves, but also their powerful families and immediate con- nexions, and in some sort as representing all the greater land- owners in the country. We have shown (Part ii. Chap, vi.) how great a tendency the habits and the interests and even the prejudices of this important assembly have to make it a conser- CH. XXIX.] THE EXISTING CONSTITUTION. 305 vative body, ever ready to fling its weight into the scale of the existing Constitution, and to prevent matters coming to extre- mities between the Crown and the people. Its veto upon all the measures that pass the Commons, the weight derived from its judicial functions, its general superiority in the capacity and learning required for excelling in debate, its more calm delibera- tion on all questions, unbiassed by mob clamour, its more states- manlike views of both foreign and domestic policy, give the Upper House an extraordinary influence on all questions of national concernment. But to these sources of weight, the ele- ments of the Natural Aristocracy, must be added the influence and indeed the direct power bestowed by vast possessions, as well as illustrious rank ; and against this can only be set the popular connexion of the other House and its tenacious adhe- rence to certain privileges with respect to the Lords.' I allude particularly to the exclusion of the latter from the originating of any measure of supply, and from all alterations upon any financial measure sent up from the Lower House. Although the Lords have never abandoned their claim to originate and to alter money bills as well as the Commons, yet in practice they never assert the right, and we may therefore take it, that by our Constitution the Commons alone can begin any measure of supply, and that the Lords have no power to alter it as sent up to them, but must either accept it wholly or wholly reject it. It seems quite clear that this exclusive right of the Commons is wholly useless to them, while it greatly tends to impede pub- lic business, by loading the Commons with Bills which might be considered in the Lords while they have nothing else to do, and occasioning Bills to be thrown out in their last stages, and then introduced in the Commons and reconstructed, in order to meet objections taken in the Lords. That the Commons gain nothing whatever by this pretension is clear ; and nothing can be more absurd than citing the case of the Upper House's judicial func- tions as a parallel one ; for in that instance the CommxOns cannot interfere at all, the whole matter beginning and ending in the Lords ; whereas the assent of the Lords to a money-clause is just as necessary as to any other part of a Bill. The claim is grounded on mere violent and factious excitement ; on mere romantic and poetical declamation ; on views consisting of exag- geration ; of confounding things like as if they were identical, x2 306 GOVERNMENT OF ENGLAND. [cil. XXIX. or substituting one idea for another, or a determination to act unreasonably and according to fancies and figures of speech, not soKd arguments. It must be remarked, too, that the Commons, after treating this exclusive privilege as of paramount import- ance, as the safeguard of all its other privileges, have suffered it to be broken in upon once and again ; as when it withdrew from the absurd pretence that a prohibition being enforced by a pecu- niary penalty could not be touched by the Lords, because it was a money-clause. Another point, on which the Commons claim the exclusive right to begin measures, relates to the election of its members. They hold that the House cannot part with this to any other body ; and further, they will not suffer any Bill touching it to begin in the Lords. Yet nothing is more certain than that, as far back as 1770, they abandoned this exclusive right altogether, transferring the whole judicature touching elections from them- selves to a committee, authorized by an Act of Parliament, to which of course the assent of both King and Lords was absolutely necessary. It is equally certain that this and the subsequent statutory amendments of the Election Law have proved among the most useful, as they were among the most necessary improve- ments in the practice of the Constitution. Nor does any one now doubt that a further delegation of the judicial power in dealing with contested elections, such a delegation as should transfer it wholly from the Committees of the House to independent and impartial Judges, would be a still more valuable improvement in the constitution of Parliament. No reasonable doubt can exist that the most perfect arrange- ment of the mutual rights of the two Houses would be that of entire equality ; and that neither ought to have the exclusive right to originate or frame any law. In discussing certain mea- sures there would naturally be a greater weight attached to one House than the other, a greater deference shown to its opinions, and a proportionable reluctance to reject its propositions. Thus the Commons, as representing the numbers of the community, as well as a portion of its wealth, would naturally be listened and deferred to, upon all questions of public burthens, whether on the property or the labour of the people, and on all questions touching the elections of their members. The Lords would, in like manner, be more listened and deferred to on matters affect- CH. XXIX.] THE EXISTING CONSTITUTION. 307 ing the judicial system and the privileges of Peerage. Nor can it be reasonably doubted that this mutual deference would be far more surely and far more readily accorded by both Houses, if neither persisted in setting up claims so fanciful and so pre- posterous as those which we have been considering — claims in- consistent in themselves, and wholly repugnant to the fundamental principles of a mixed Government. The Crown is the fountain of honour, and can alone confer any rank or precedence. The unlimited power belongs to it of creating Peers ; and of these no less than twenty-six, the Pre- lates, enjoy their Peerage only for life. The power, indeed, exists of creating temporal Peers also for life ; but it has never been exercised further than by calling up the eldest sons of Peers, an operation which adds to the numbers of the House only during the lives of individuals. Twenty-eight Irish Peers sit by election for life, and sixteen Scotch during the parlia- ment. The only restriction upon the power of creation refers to the Irish Peerage. No addition can be made to it in a greater proportion than that of one to every three peerages that become extinct. This prerogative has upon several occasions been exercised to influence the proceedings in Parliament. Lord Oxford carried a question of importance in the Lords by a sudden creation of twelve peers, in the reign of Queen Anne. Mr. Pitt greatly extended the influence of the Crown in the House of Com- mons, and diminished the importance of that body, by trans- ferring many of his adherents among the landed gentlemen to the Upper House. In recent times the Government, of which I formed a part, backed by a large majority of the Commons and of the People out of doors, carried the Reform Bill through the Lords by the power which his late Majesty had conferred upon us of an unlimited creation of Peers at any stage of the measure. It was fortunate for the Constitution that the pa- triotism of the Peers prevented us from having recourse to a measure so full of peril. I have always regarded it as the greatest escape which I ever made in the whole course of my public life. But were I called upon to name any measure on which the whole of a powerful party were most unanimously bent, nay, which attracted the warmest support of nearly the whole people, I should point at once to the measure of a large 308 GOVERNMENT OF ENGLAND. [CH. XXIX. creation of Peers in 1831 and 1832. Nothing could possibly be more thoughtless than the view which they took of this im- portant question. They never reflected for a moment upon the chance of their soon after differing with Lord Grey and myself, a thing which, however, speedily happened — never considered what must be the inevitable consequence of a difference between ourselves and the Commons — never took the trouble to ask what must happen if the Peers, thus become our partisans, should be found at variance with both King, Commons, and People — never stopped to foresee that, in order to defeat our oligarchy, a new and still larger creation must he required — and never opened their eyes to the inevitable ruin of the Constitution by the neces- sity thus imposed of adding eighty or a hundred to the Lords each time that the Ministry was changed. I have seldom met with one person, of all the loud clamourers for a large creation of Peers, who did not admit that he was wrong when these things were calmly and plainly stated to him — these conse- quences set before his eyes. But I have often since asked my- self the question, Whether or not, if no secession had taken place, and the Peers had persisted in really opposing tne most important provisions of the Bill, we sliould have had recourse to the perilous creation ? Well nigh twelve years have now rolled over my head since the crisis of 1832 : I speak very calmly on this as on every political question whatever ; and I cannot, with any confidence, answer it in the affirmative. When I went to Windsor with Lord Grey I had a list of eighty creations, framed upon the principles of making the least pos- sible permanent addition to our House, and to the Aristocracy, by calling up Peers' eldest sons ; by choosing men without any families ; by taking Scotch and Irish Peers. I had a strong feeling of the necessity of the case in the very peculiar circumstances we were placed in. But such was my deep sense of the dreadful consequences of the act, that I much ques- tion whether I should not have preferred running the risk of confusion that attended the loss of the Bill as it then stood ; and I have a strong impression on my mind that my illustrious friend would have more than met me half-way in the determination to face that risk (and, of course, to face the clamours of the people, which would have cost us little) rather than expose the Consti- tution to so eminent a, hazard of subversion. Had we taken CH. XXIX.] THE EXISTING CONSTITUTION. 30^ this course I feel quite assured of the patriotism that would have helped us fi-ora the most distinguished of our political antao-o- nists ; and I have a firm belief that a large measure of reform would have been obtained by compromise — a measure which, however hateful at the moment to thoughtless, reckless men, become really more eager about the mode of obtaining it than about the object itself, would afterwards have proved satisfac- tory to all. My opinion of Lord Grey's extreme repugnance to the course upon which we felt we were forced, has been con- firmed since he read the above passage. We have now considered the House of Lords in its constitu- tions and functions, composed of Spiritual and of Temporal Peers. The Prelates sit, and have always had seats in that House as Barons, each holding his see by the tenure of a free- baronry. But the Clergy, as a separate body in the State, had an assembly of their own, called the Convocation^ summoned by the Archbishop's writ under the directions of the Crown. There was one for the province of York, which never was of any im- portance, and one for that of Canterbury. The Convocation consisted of the Bishops, who formed the Upper House ; and the Deans and Archdeacons, proxies for the Chapters, and two for each diocese, elected by the Parochial Clergy ; these formed the Lower House. The Convocation was hardly ever consulted except on granting a supply, and enacting Ecclesiastical Canons, In the reign of Henry VIII. and Elizabeth, it was consulted on questions touching the religion of the State. Thus, in 1533, it approved the King's supremacy then enacted by law ; and in 1562 it confirmed the Articles of Religion. However, by the Statutes made in Henry VIII. and Elizabeth's reign, and above all by the Act of Uniformity in Charles II.'s time, the power of making canons without the King's leave was first taken from the Convocation ; the Thirty-nine Articles, and the articles respect- ing residence, became fixed and incapable of alteration except by the Legislature ; and the doctrine gradually became esta- blished in the Courts of Law, that no canons whatever, unless confirmed by Parliament, could bind the Laity. Even the sub- sidies which the Convocation granted were confirmed by Parlia- ment, and thus were assumed to be ineffectual of themselves. At length, in 1664, the taxation of the Clergy ceased in Convocation altogether, since which time all classes of the people have been taxed in common by the Parliament. At the time of the Revo- 310 GOVERNMENT OF ENGLAND. [CH. XXIX. lution, 1688, the Jacobites, for ftictious purposes, with the rest- less Atterbury at their head, before his flight and attainder, endeavoured to claim for the Convocation a right to meddle with Church questions, and some countenance was even given to those agitators by the Commons referring the form of the Liturgy for their consideration. The answer to all their argu- ments was the King's absolute power of adjourning and pro- roo-uin"- them, which he was free to exercise at all times because he no lono-er had occasion for their votes to obtain "Supplies. In the early part of Queen Anne's reign the body was suffered to sit more than it had done for many years ; it became notorious for violence of faction ; it was soon, however, defeated by a proroga- tion ; and since 1717 it has never sat for the transaction of any business whatever. Summoned as a matter of form at the be- ginning of each new Parliament, it is immediately prorogued as soon as it carries up an address to the Throne. The existence, therefore, of the Convocation is now nominal merely.* The Crown has the absolute power of appointing all the Judges, with the three exceptions of the Judges in the Eccle- siastical Courts, who are named by the Archbishops and Bishops ; of the Vice-Chancellors of the Universities, who exercise a local jurisdiction over the students and tradesmen in the University towns ; and of the Borough Magistrates, who exercise local jurisdiction by their Charters of Incorporation. t It is greatly, to be desired that such anomalies, especially the appointment of the Dean of the Arches and Judge of the Consistorial Court of London by the Archbishop of Canterbury and Bishop of Lon- don, respectively, should cease ; and I must, in justice to these Right Reverend Prelates, observe that they were willing, in 1833, to give up this patronage if Parliament could have been induced to make a proper provision for those high legal offices. It must likewise be added that the patronage has never been * It is singular that Mr. Hallam, in his able and learned work, should have fallen into the vulgar and hurtful error of considering the Church as a corporation. " It is the first corporation in the realm," says he, Chap, xvi ; again, " the clergy have an influence which no other corporation enjoys," ih. The Church is not even synonymous with the clergy — it is all the faithful in communion with the Church according to the definition in the Thirty-nine Articles themselves ; it is also a collection of corporations clerical, for each chapter is a corporation aggregate, and eacli parson is a corporation sole. The consequences of Mr. Hallam "s notion are most liurtful in considering questions of Church Reform. t The lord of tlie manor of Ilavering-atte-Bower in Essex has the right of appointing Justices of the peace within that manor. CH. IKXIX.] THE EXISTING CONSTITUTION. 311 abused, the most emimeiit practitioners in the Courts Christian being invariably chosen, as they ought, to fill such important places. Though named by the Crown, care is taken to make the com- mon law Judges independent. Soon after the Revolution their places were made to continue during life or good behaviour ; they are irremovable except by a joint address of the two Houses of Parliament ; and as this only enables the Crown without com- pelling, each act of removal is like a statute, requiring the con- currence of the whole three branches of the Legislature. The power has never been exercised ;* and at the accession of George III. the judicial independence was rendered complete by providing that the office should not be vacated on a demise of the Crown. The highest of all the Judges, though only clothed with a civil jurisdiction, the Lord Chancellor, holds his place during pleasure. But the analogy of the Common Law Bench has been followed in the case of all the other Equity Judges — both the Master of the Rolls, the Vice -Chancellors, and the Masters in Chancery, holding their offices during life and good behaviour. The Judicial Committee of the Privy Council is also placed in a somewhat anomalous position, although quite consistent with the fundamental principle which views the Sove- reign as the authority appealed to in all Admiralty, all Con- sistorial, and all Colonial cases. The members of that High Court, therefore, though irremovable from their judicial stations out of the Council, may be removed from the Privy Council, and thus cease to form part of the Judicial Committee. It is, however, to be observed, that no emolument nor any rank is attached to the place ; and, further, that no Privy Councillor is ever removed without grave reason for his removal. Neverthe- less, it w^ould be more satisfactory if some means could be devised of making these important judicial functionaries wholly inde- pendent of the Crown in name, as they undoubtedly are in fact. An additional security is taken for the pure appointment of Judges by the very proper practice now become established, of the Chancellor, who is in fact the Minister of Justice, appointing * Nearly forty years ago the House of Lords inquired into the conduct of Mr. Justice Fox, an Irish judge, accused of partial and unbecoming conduct in his judicial office. The inquiry was of considerable duration, and what might have been the result we are left to conjecture ; the learned judge having resigned his office. Another Irish judge, Mr. Justice Johnstone, who had been convicted of a private libel, would also have been proceeded against, liad he not I'csigned. 312 GOVERNMENT OF ENGLAND. [CH. XXIX. the Puisne Judges without any communication with his col- leagues ; he first of all takes the King's pleasure upon the nomi- nation. This excludes, generally speaking, all political inter- ference ; and it is greatly to be desired that the same high officer, and not the Secretary of State, should fill up the successive vacancies in the Scottish Bench. The important oflace of Justice of the Peace is conferred by the Chancellor, generally on the recommendation of the Lord Lieutenant, or rather the Custos Rotulorinn in each county. But once put in the Commission of the Peace, it is the practice not to remove any Justice without a conviction in a Court of Criminal Judicature. The purity of the Bench is still further guarded by the statu- tory provisions disabling the Judges from sitting in the House of Commons. The Master of the Rolls and the Consistorial Judges are still exceptions to this rule. The Vice-Chancellors and the new Judges in Bankruptcy, the Judge of the Court of Admiralty and the Masters in Chancery, have all in later years been forbidden to sit in the Lower House. The chiefs are sometimes members of the House of Lords ; and this is in a cer- tain degree necessary for the perfect exercise of its judicial func- tions. But the feeling is so strong and so general against Judges mingling in the strife of political party, that we rarely have any example of these great legal dignitaries taking part in the struggles of faction. If the other parts of the political fabric which we have been surveying are well entitled to great admiration, surely there is no portion of it more worthy of an aflfectionate veneration than the Judicial system. It is by very far the most pure of any that ever existed among men ; its purity in modern times is not only beyond impeachment, but beyond all question. In the utmost violence of faction, in the wildest storms of popular discontent, when the Crown, the Church, the Peers, the Commons, were assailed with the most unmeasured violence, for the last cen- tury and upwards no whisper has been heard against the spotless purity of the ermine ; or, if heard for an instant, it has been forthwith drowned in the indignant voice of reprobation from all })arties, and has only served to destroy the credit of the reck- less slanderer who emitted it.* * The shallow, violent, and unprincipled Junius never certainly recovered his ignorant assault on Lord Mansfield ; that and his CH^ually vile calumnies against the Di kc of Bedford deserved equal reprobation. CH. XXIX. J THE EXISTING CONSTITUTION. 313 The possession of such a system is invaluable to any nation ; but in a free constitution which requires large power to be lodged in the irresponsible hands of the people, it is absolutely essential to the existence of order in union with liberty. The Judicial power, pure and unsullied, calmly exercised amidst the uproar of contending parties by men removed above all con- tamination of faction, all participation in either its fury or its delusions, held alike independent of the Crown, the Parliament? and the multitude, and only to be shaken by the misconduct of those who wield it — forms a mighty zone which girds our social pyramid round about, connecting the loftier and narrower with the humbler and broader regions of the structure, binding the whole together, and repressing alike the encroachments and the petulance of any of its parts. AVhen Montesquieu invented his epigram, so often cited since, that the fate of the British Con- stitution would be sealed whenever the Legislature became more corrupt than the Constituents, he overlooked a topic more fruitful of sound and valuable truth, if not easily lending itself to glitter- ing figure ; he might better have pronounced the Constitution eternal while the Judicial portion of it remained entire. We have now contemplated the structure of the British Con- stitution ; and we may cast our eyes for a moment upon the rights which it secures to the people, and the advantages it gives to the administration of their affairs. This we shall best do by considering those privileges which in less free countries are with- held from the people, and those facilities which in more popular Constitutions are found wanting to the Government. By the choice of their representatives — by the power vested in the great landowners and other high dignitaries of the coinitry — by the constant transaction of all public business in Parliament — by the unbroken publicity given to all Parliamentary discussions —the people, both of the higher and the middle ranks, have a real voice in the management of their own affairs ; a real control over the conduct of their rulers ; and, indeed, a great weight in the selection of the public servants. It is much to be lamented that the working classes have not, generally speaking, their share in the administration of affairs ; and this might most safely, and indeed beneficially, be entrusted to them. But as 314 GOVERNMENT OF ENGLAND. [CH. XXIX. far as regards their rights and liberties they have the most full protection of the Constitution. The meanest person in the country cannot be oppressed without his wrongs becoming known in Parliament and to the whole community, even if the unhappy expense and complication still involving all legal proceedings should prevent him from having the full benefit of the Judi- cial system. This is one of the prime distinctions of England ; that the Houses of Parliament, beside transacting the regular public business of the Nation, are ever open to hear the petitions of the people, and the grievances of individuals ; nor can the most insignificant member of either stand up in his place to prefer a complaint of such wrongs from the meanest subject of the Crown, without having a patient and even favourable audience. It is inconceivable what a confidence this inspires in all good men, and what a terror it strikes into those who would vex or oppress them. It is needless to enumerate the important checks on Royal authority and Ministerial abuse which this Constitution provides. The people cannot be taxed to the amount of a farthing without the consent of the whole Parliament ; there cannot be raised one man to serve in the Army, and but for the barbarous practice still adhered to of impressment, there could not be raised a man to equip the Navy, without the sanction of the same three powers ; nay, as no war can be carried on without that concur- rence, impressment, how harsh and clumsy a method soever of recruiting, may be strictly said to depend on the will of Parlia- ment. Above all, for every act done by the Crown there must be a responsible adviser and responsible agents ; so that all Ministers, from the highest officers of state down to the most humble instrument of government, are liable to be both sued at law by any one whom they oppress, and impeached by Parliament for their evil deeds. The right of Public Meetings to consider state affairs is pos- sessed in an almost unlimited extent by this people. It is only restricted by law when it exceeds all fair, useful, and legal bounds, and is made the means of intimidating the constituted authorities, terrifying Ihe peaceable and well disposed, and pre- paring the forces and the approach of rebellion. The right of Printing and Publishing is subject to no further restriction than that of attending public meetings. No previous CH. XXIX.J THE EXISTING CONSTITUTION. 315 licence is required either for putting forth a book or carrying on a journal ; men are only called upon to afford the means of dis- covering their persons, in case they should pervert the press to the purposes of private and personal malice, or should make it an engine for exciting to insurrection and other crimes. It is to he lamented that the law in this respect is still defective, by with- holding the right to prove the truth in prosecutions for public libel ; and by not making a distinction between the author and the publisher, so as to favour the declaration of all writers' names and discourage anonymous publication. The leave to prove the truth in all cases, whether of public or private prosecution, should be confined to the real author alone. The security of personal liberty is not only made complete by the Courts being open to any parties who have been unlawfully arrested, but by the severe penalty inflicted on all the Judges who refuse a writ of Habeas Corpus. It is the only instance known in the law of any country, of an action being allowed to be brought against any Judge for his judicial conduct. For oppression and corruption of other kinds, our Judges may be removed by the joint address of the two Houses, or they may be impeached by the one House and tried by the other. But for withholding, even for an hour, this remedial writ, the great security of personal liberty, they may be sued as common wrong- doers. Let us now for a moment consider how far these privileges are made consistent with a sufficient vigour and- unity in the executive administration of affairs. It must be admitted that the more popular constitution of the United States is exceedingly inferior in this important particular to that of England. The Government cannot be carried on with us for any length of time, unless the Ministers of the day have the support of a decided Majority in both Houses of Parliament. An attempt, attended with most mischievous consequences, was lately made to govern without such a majority. It led to so great public inconvenience, and was attended with so much discomfort and discredit to those who made it, that we may safely conclude the first experiment of this kind will also be the last. Hence the Government can always reckon on a general support of its mea- sures ; and can both carry on hostilities, if unhappily this re- course should be unavoidable, form alliances, and enter into 316 GOVERNMENT OF ENGLAND. [CH. XXIX. nogotiations with sufficient confidence. Extravagant grants of money will not be obtained ; unjust or impolitic measures will not be supported ; but the Government which flies not in the face of public opinion, may be well assured of receiving the sanction of Parliament to all its important measures. The large revenue placed at the Sovereign's disposal, makes him in a great measure independent in all ordinary transactions. He is not thereby enabled to govern without Parliament : but he is not reduced to the condition of a cipher, a pageant, or a dependant. He has influence enough to make his opinions and his inclinations felt in all the operations of the state. The participation of the people of the upper and middle classes in all the affairs of state, the complete publicity given to all the measures of Government and of Parliament, and the full discussion out of doors which they undergo, knit the go- vernors and the governed closely together, and enable the former to call forth all the resources of the country. See the vast armies at sea and on shore which our scanty population has at difi'erent times maintained ! Mark the endless variety of our settlements in all the most remote quarters of the globe ! Above all, reckon the hundreds of millions which have been levied within the last hundred and fifty years from the people, and levied with hardly a remonstrance ! — and then confess that for producing a strong government there is nothing like a popular constitution — that no despot, be he ever so absolute, has any engine of taxation that can match a Parliament ! If it be said that the American Government can as well call forth the re- sources of the people, I have very great doubt if the national representatives, and especially the President towards the end of his first three years, would inflict a heavy excise or a grinding income-tax upon the people, as our Parliament has so often done ; and I have no doubt at all that such an infliction would very speedily lead to a termination of hostilities, without any very great nicety about the terms of the peace. The English people are so ruled that if once war is entered into there is quite suf- ficient resistance from the Government and the Peers to an importunate desire of peace which might put the interests of the state in jeopardy, or fix a stain upon the national fame. The three princ'pal defects in the structure of the House of Commons, and wh ch might be removed, though it is hardly CH. XXIX ] THE EXISTING CONSTITUTION. 317 possible to remove altogether the greater evil of bribery, are the too great numbers of the House, the lopping off all close or nomination boroughs, and the substituting in their place some two or three score of small, towns, the inevitable scenes of cor- ruption. 1. The number of 658 is preposterously large. Though sel- dom above five-sixths attend, yet the meetings are far too nu- merous for calm discussion, and even for orderly demeanour- The number of speakers, too, protracts indefinitely the debates, and obstructs all business, so that, the whole session being spent on a few subjects, chiefly of a party kind, towards the end of it, when men are exhausted, and when no considerable numbers remain in attendance, the most important measures pass without any consideration, and oftentimes some of this description are thrown out by the obstinate opposition of a few men, who profit by the period of the expected prorogation, in order to threaten delay, and thus cause useful bills to be given up. The Local Courts Bill, the Irish nullum tern-pus Bill, and others, were put off for a year by this unworthy species of warfare in the session 1842 ; and some measures which did pass, as the Imprisonment for Debt Bill, and the Bankruptcy Court Bill, were greatly muti- lated. Party has seldom been productive of a worse evil than its throwing out one of the most valuable improvements in the Reform Bill of 1831, that original measure having reduced the numbers of the Commons from 658 to 500. 2. The want of close boroughs, or some substitute for them, is an undeniable evil, and greatly obstructs the course of public business. Howtver opposed these boroughs may be to consti- tutional principle, there being no means of placing great Go- vernment functionaries in the House of Commons is a serious evil. I more than once adverted to this in 1831 and 1832, when the Reform Bill was before the Lords. I agreed with the Duke of Wellington, who foresaw^ serious difficulty in carry- ing on the national affairs in such a Parliament as was proposed, unless indeed we adopted the French plan of allowing the Mi- nisters to speak in the two Houses, or at least in one of them, without seats and voices. Soon after I had a practical illustra- tion of my argument, which confirmed these apprehensions. The Attorney- General was thrown out of a popular place by a cry which the Dissenters raised on some temporary matter, and 318 GOVERNMENT OF ENGLAND. [cH. XXIX. he remained excluded the whole session, when the accident of a Scotch Judge making a vacancy on that Bench removed the Lord Advocate, and the Attorney-General succeeded to his seat. Many important measures for the amendment of the Law- were thus postponed for a whole year. But it may at any time happen that a Chancellor of the Exchequer, for conscientiously performing his duty by propounding an unpopular tax, or a Crown lawyer by repressing smuggling, or prosecuting sedition, shall find no popular constituency ready to choose them for their members, and thus the whole Government may be paralyzed. 3. The small boroughs of 200 to 400 voters are multiplied by the late Reform, and this is anything rather than an improve- ment on the elective system. Those places are unavoidably the haunts of bribery, hotbeds of every species of corruption. They fall into the hands of some jobbing attorneys, who traffic in them under the specious pretext of being paid their long bills. If we endeavour to prevent bribery altogether, we may fail. But if we would much lessen its amount, what can be more ob- vious than the remedy of dividing the country into electoral districts, as France is ? It is certain that bribery is confined to the towns, and to those, generally speaking, of a moderate size ; that in hardly any of the very large ones does it prevail at all ; that in none of the counties is it known. The right course, it should seem, is to choose the members not by towns and by counties, but by districts composed of town and country toge- ther. Nor can there be any valid objection to thus blending the town with the country. Nay, were there ev#n an objection, it must be a very formidable one to counterbalance the mighty benefit of putting down the pest of corruption which now threatens our national morals, as well as the purity of our Par- liamentary system and the existence of our free Constitution ; nay, which makes many good men, in balancing the advantages of a free and an absolute government, hesitate which to prefer while they find that a popular Constitution can only be pur- chased by the ruin of all morals. We have now been contemplating the English Constitution in its structure and in its operation during ordinary times. But its admirers commend, and in some sort justly commend, its powers of adaptation to existing circumstances. Thus the most im- CH. XXIX.] THE EXISTING CONSTITUTION. 319 portant rights have occasionally been suspended, or have been subjected to great restraints, almost amounting to total suspen- sion. The right of public meeting was at an end during the greater part of the war which ended at the peace of Amiens. It was afterwards suspended for a few months in 1820. On these occasions no one denied that circumstances might require and so justify this restriction upon the right of meeting ; the only question raised was upon the amount of the danger which was said to threaten the Government ; an amount which I and others con- tended did not then justify resorting to so extreme a course. The same remark applies to the suspension of the Habeas Corpus Act, as it is incorrectly termed ; but that act* only en- forced and improved the subject's common law remedy, by giving it in vacation time, by extending the power of issuing the writ to all judges, by subjecting to heavy penalties those who with- held it, by prohibiting imprisonment beyond the seas, and by providing that all gaols should be delivered of prisoners at each assizes or sessions. The measure adopted frequently in William III.'s reign, again in George I.'s and afterwards in George III.'s, was a power conferred on the Government of detaining and im- prisoning persons suspected of treasonable and seditious designs without bringing them to trial. This is a far worse measure at all times than the restriction of public meetings ; but the exercise of the power is at least under some check ; for a Bill of Indemnity is always required to secure the Government which has used such power of imprisonment, and as this bill must be carried through after the alarm has passed away, possibly when a new ministry is in office, they who have occasion for it are exposed to considerable risk if they have at all abused the power temporarily bestowed. I liave conversed with ministers who had been parties to such proceedings, and I have invariably found in them a very natural, may I add also, a very wholesome, aversion to the whole plan. The restraints upon Aliens during the last war may be ranged under the same head of extraordinary remedies. Nothing could be more unconstitutional, nothing more liable to abuse ; and, ac- cordingly, we have more than once had occasion in the course of this work to note the cases of grievous oppression to which the powers of the Alien Act were occasionally perverted. * 31 Car. U., c. 2. PART III. Y 320 GOVERNMENT OF ENGLAND. [CH. XXIX. In these discourses upon the frame of our Governmeat, and especially in the latter portion of them, I have frequently used the term constitutional; notwithstanding the disfavour in which it is held by political reasoners of the Bentham school. They regard it as a gross absurdity, and as the cant language of the " factions," whom they hate. They say that the word has either no meaning at all, or it means every thing and any thing. A thing is unconstitutional, say they, which any one for any reason chooses to dislike. With all deference to these reasoners, the word has a perfectly intelligible meaning, and signifies that which it is always most important to regard with due attention. Many things that are not prohibited by the law, nay that cannot be prohibited without also prohibiting things which ought to be permitted, are nevertheless reprehensible, and reprehensible because contrary to the spirit of the Constitution. Thus the Sovereign of England is allowed by law, like any other person, to amass as much money as he pleases by his savings, or by entering into speculations at home and abroad. He might accumulate a treasure of fifty millions as easily as his brother of Holland lately did one of five ; and he would thus, beside his Parliamentary income, and without coming to Parliament for a revenue, have an income of his own equal to two or three millions a year. This would be an operation perfectly lawful and perfectly unconstitu- tional, and the minister who should sanction it would be justly liable to severe censure accordingly. So we speak with perfect correctness of a law which is pro- posed being unconstitutional, if it sins against the genius and spirit of our free Government, as for example against the separa- tion of the executive from the legislative and judicial functions. A bill passed into a statute which should permanently prohibit public meetings without consent of the Government, would be as valid and binding a law as the Great Charter, or the Act of Settlement ; but a more unconstitutional law could not well be devised. So a law giving the soldiers or the militia the power of choosing their officers, or a law withdrawing the military wholly from the jurisdiction of the Courts of Law, would be as binding and valid as the yearly Mutiny Act. But it would violate most grievously the whole spirit of our Constitution. In like manner letting the people choose their Judges, w^hether of the Courts of Westminster, or Justices of the Peace, would be as unconstitu- CH. XXIX.] THE EXISTING CONSTITUTION. 321 tional a law as letting the Crown name the juries in all civil and criminal cases. For these reasons I can on no account agree with the objections, holding as I do that the phrase is perfectly logical and correct in the strictest sense possible. Note. — It is unnecessary to observe that the authorities mainly to be consulted by such as would well study the Constitution of England and its History, are the Statute Book and the Parliamentary Writs ; the decisions of our Courts of Justice ; and the text writers upon our Jurisprudence. Next to those are the Debates in Parliament, since they have been printed. But there are excellent helps to this study in the works of learned authors professedly treating of the subject. Those of Blackstone, with the political writings of Locke, and the controver- sial ones of Brady and his adversaries, may be named among the older ones. Of late years Mr. Hullam and Lord John Russell have both made very valuable contributions to the learning of this most impor- tant subject. It may even seem to some presumptuous, and to others superfluous, for me to have treated at so great length a matter on which they had written at large ; but their treatises, however valuable, have one great defect in common — they begin with the Tudors. Now it is quite undeniable that the foundations of our Constitution were laid many centuries before the fifteenth. Nor can any one hope tho- roughly to comprehend it who has uot gone back to the earliest times. I have never been able to understand why those able and learned authors have both begun with Henry VII. If, in discussing the Constitution of France under the old Monarchy, we are obliged to trace it from the earlier times, and instead of going back to Louis XIII. we go even to the kmgs of the first race as a matter of course, examine the succes- sive steps by which the States-General and Provincial were first con- vened, and afterwards disused, and by which tlie Parliaments rose to an importance they never lost, surely it is still more necessary to trace the History of the English Constitution from the foundation of that structure which has never been destroyed or impaired, but always been fortified and improved ; to examine, for instance, the origin and growth of our Parliament, which continues the Legislature of the Realm at this day, as we have examined the origin and growth of the French States, which had long before the Revolution ceased to exist at all. I was very desirous that my learned and esteemed friend. Lord John Russell, should have undertaken this portion of the present work, he having expressed a far too favourable opinion of the preceding por- • Y 2 322 GOVERNMENT OF ENGLAND. [ClI. XXIX. tions of it ; an opinion which I am too conscious it owes much rather to private friendship than its own merits. Nor was it until I found it impossible to prevail upon him, in consequence of his other important avocations, that I finally undertook it myself. Among the writers who have thrown any light upon this subject is not certainly to be mentioned M. La Croix. His superficial and inaccurate work is still worse upon the English than upon the other constitutions. A sample^of the learning which he brings to bear upon it may be given ; and it will suffice to show that, at any rate, some novelty is to be found in his pages. " No son," says he, " can succeed to his father's estate without the written permission of the Archbisliop of Canterbury, who derives immense revenues from this relic of the feudal law." — ii. 293. " The Lord Chancellor has the superintendence of all hospitals, and is protector of all paupers. To him application is also made to have an interpretation of the true spirit of the law." — ib. 295. " In the villages the lords of the place, formerly called barons, have police courts for regulating sales and transfers."^ — ib. 287. " The justices of peace are in some sort the delegates (sub-delegues) of the sheriff."-^ib. 296. CH. XXX.] CHAPTER XXX GOVERNMENT OF THE UNITED STATES. First Settlement of the Colonies — Virginia — New England — Different Charterri — Colonial Constitutions— Provincial; Proprietary; Chartered-^General Resem- blance to English Government — Causes of the Separation — Progress of Inde- pendence— Great importance of the Event — General Frame of the Republican Government — Fundamental Principle — Legislative Power — Congress — Repre- sentatives; their Election ; Qualification — Senate — Powers of Congress — Powers of the Two Houses — President ; his Election ; his Powers — Judicial System — General Law — Alterations of the Constitution — Supremacy of Judicial Power — Annulling Laws as unconstitutional — Nature and Grounds of this Doctrine — Its connexion with the Federal Principle — Amphictyonic Council in Greece — Further Illustrations — Examples of its application ; to Laws of particular States ; to Laws of Congress — "Works on the Constitution of the United States. We are now naturally led from the English to the American Constitution, because although republican, it is taken in most of its fundamental principles from that of the mother country of which its foimders had been a colony. The examination of this system will not detain us so long as that from which it sprang, because the whole of its origin and history belongs to times so recent as to be well known, and even in the recollection of per- sons still alive. The successes of the Spaniards in South America, notwith- standing the dreadful cruelties with which they were attended, turned the attention of other nations to the new world ; and as early as the end of the fifteenth century Henry VII., having fitted out a small expedition under John Cabot, a Venetian ma- riner, obtained by his discoveries a footing on the northern con- tinent from Newfoundland to the Gulf of Mexico. But for above a hundred years no actual settlement on those shores was attempted ; and it was not till 1606 that the first effectual steps were taken to plant a colony. In that year the coast of North America, from the 34th to the 4:5th degree of latitude, was divided into two districts nearly equal. The southern district was granted to Sir Thomas Gates and his associates, who were known as ** the London Company," and who commenced the 324 GOVERNMENT OF THE UNITED STATES. [cil. XXX. settlement of Virginia the following year. The northern district was granted to the " Plymouth Company," who, in 1620, com- menced a settlement at Plymouth, which may be considered as the cradle of all the settlements afterwards known as New England. The Colony of Virginia was at first governed by a Council ; but in 1619, the Governor (Yeardley) gave them in Virginia a representative assembly, — which in 1624 was taken away with the Charter by a quo icarranto proceeding in the mother country. The administration remained vested in a Governor and a Council of twelve, both named by the Crown, until Charles I. gave Sir William Berkeley, a person of great integrity and capacity, power to assemble a representative body and instructions to have justice administered upon the principles of the English law. No valid charter was, however, granted pi-ior to the Restoration ; but the government was conducted both in its executive and legislative branches as if the Colonists had a Charter, one not regularly conferred having been, as it were in draft, taken and acted upon. In 1684 the Charter granted by Charles II. was with many others repealed by James II.'s quo warrantos, and in 16yl it was finally restored by King William. The other Charters, at different times bestowed, were more or less ample in their grant of franchises. That of Massachusetts, in 1629, was framed in a very liberal spirit for the age ; that of Connecticut, 1662, was the most democratic of all. There were two assemblies annually elected by all freemen, with power to establish Judicatures, to levy troops, and in case of need to pro- claim martial law, beside exercising the more ordinary legislative authority. A quo loarranto in 1687 ordered this Charter to be delivered up ; but it was saved by being hidden in an oak tree, ever after the object of popular veneration. In 1 664 the conquest of New York was made from the Dutch. In 1669 a constitution for the Carolinas was framed by the celebrated John Locke ; and so widely different is practical statesmanship from profound philosophy, that it was found altogether unmanageable, grounded on principles extremely illiberal, and wholly inconsistent with its author's theoretical love of freedom. It was universally disliked and vehemently opposed : nor did the Colony, according to the common tradition, ever enjoy a day of peace or happiness under it, till in 1693 it was abandoned and the old government restored. CII. XXX.] COLONIAL GOVERNMENTS. 325 The constitutions of all the colonies were alike in their general principles, their broad outlines ; but they might be divided into three classes — the Provincial, the Proprietary, and the Chartered governments. To the first or Provincial class belonged New Hampshire, New York, New Jersey, Virginia, the Carolinas, and Georgia, forming by far the most important division of the whole. The government was vested in a Governor and Council named by the Crown, with an assembly chosen by the fr<5eholders and planters. The Council concurred like our House of Lords in all legislative acts, and likewise assisted the Governor with their advice in the administration. He had the power of sus- pending the councillors, and of supplying vacancies in their body until the pleasure of the Crown could be known, as well as of calling, proroguing, and dissolving the legislature. The legislature was composed of the Governor, the Council, and the Representative Assembly, but it could make no laws repugnant to the common law of England, and all its acts required the ratification of the Crown. The Governor, with the Council's advice, could levy troops, establish courts, appoint magistrates, pardon offences, remit fines and forfeitures, and proclaim martial law in case of rebellion or invasion. From all the decisions of all the Courts an appeal lay, in these as in all Colonies whatever, to the King in Council. Of the second or Proprietary kind were Maryland, Delaware, and Pennsylvania, in which the Proprietors appointed the Go- vernor and the people chose representative assemblies, the Crown's approval being required in the two latter to give the laws passed validity, but not in Maryland. The Government in other respects resembled closely that of the first or Provincial description. The third or Chartered Colonies were Massachusetts, Rhode Island, and Connecticut. The powers of the Governor and Legislature resembled those of the Provincial and Proprietary class, but the different branches were differently constituted. In Massachusetts the Crown appointed the Governor ; the General Assembly was chosen by the people, and the Council by the Assembly. In Rhode Island and Connecticut the Government was purely democratic, the Governor, Council, and Assembly being all chosen annually by the people, and the other officers being appointed by their authority. Nor was the Act of Parlia- 326 GOVERNMENT OF THE UNITED STATES. [cH. XXX. ment 7 and 8 Wm. III., c. 22, much, if at all observed, which required that the Governors in all Chartered and Proprietary Colonies should be appointed by the Crown. It thus appears that originally all the North American Colo- nies were governed, as regarded the main foundation of their constitutions, upon the model of the English government. Those who planted them carried out with them their English notions of civil ''liberty, and indeed the northern portion of them was mainly peopled by persons who took refuge there to escape from civil, but above all from religious persecution at home, and to enjoy undisturbed in this new world that full liberty of faith and worship, those rights of conscience, which were denied to them in the old. In some particulars, even in some very im- portant ones, these Colonial Constitutions differed one from an- other, but all had the leading features of the English Govern- ment ; the general outline of all was the same. There were three branches intrusted with legislative power, one directly representing the Sovereign and named by him, except in two of the Colonies, — another deriving its existence from him, with the same two exceptions, — and a third owing its existence to the choice of the people in them all. The consent of all three branches was required for every legislative Act, and except in one Colony the Royal ratification of every legislative measure was further required. The executive power was separated from the legislative, being confided to the Governor, and the judicial power was independent of all the three authorities. These are the main outlines of the Constitution in the mother country, upon the model of which that of the Colonies was altogether framed. It is unnecessary to enter into the history of the celebrated struggle between the mother country and the Colonies which ended in their final separation. The Colonists were English- men ; they had carried with them to the new world those senti- ments of freedom and independence with which they had been born and bred in the old ; they had even aspired to more perfect liberty than their countrymen whom they had left in Europe enjoyed ; and any acts of oppression from the Crown were sure to be resented and resisted by them. The structure of their governments, eminently democratic, and of their society, into which no patrician influence entered, fostered the same feelings and principles universally, and no attempt was ever made to in- CH. XXX.] SEPARATION OF THE COLONIES. 327 troduce among them an arbitrary power alien to the frame and spirit of their system. But it was apparent on all hands that the Colonial relation could not long continue after their great and rapid growth should give them a disproportionate magnitude to the people of the Parent state. The law strictly enforced a commercial monopoly, prohibiting after the manner of all the European States any intercourse of traffic with foreign countries, and requiring that both their supplies from Europe, their ex- ports thither, and their whole navigation should be subject to this rigorous restriction, manifestly for the benefit of the mother country and to the constant and severe detriment of the Colo- nies. This might be submitted to in the infancy of American society ; but when the people were numbered by millions, its continuance must needs come in question. Nevertheless, so long had the American? been accustomed to the commercial yoke, that even when their numbers were three millions, and were doubling every twenty-three years, it did not excite resistance or even remonstrance ; and had not another cause of quarrel oc- curred, the system of the Navigation Act would probably not have occasioned the severance of the connexion for some genera- tions, till at length all the ties of language, laws, institutions, and kindred, would have proved unable to maintain so unnatural a state of things as an empire of eighteen millions of freemen subject to a people not much more numerous or more civilized than themselves on the other side of the globe. But be this as it may, certain it is that the master grievance of the American colonists, their commercial subjection, had no share in exciting their resistance to the mother country. They were fond of the connexion ; they were proud of being Englishmen ; they loved to form an important part of a mighty empire ; they enjoyed personal liberty, civil and religious, in the most ample measure ; and if they ever felt galled by the yoke of the monopoly, it pressed on them too lightly, it was too little felt as a separate and distinct grievance, and its weight had become too familiar to excite any resistance. The assertion of new prerogatives by England was necessary to cause the rebellion, and even that encroachment found the people so averse to separation, that a very little concession on the part of the Parliament and the people (who made common cause against the Colonies) would have certainly prevented the catastrophe which ensued, and •328 GOVERNMENT OF THE UNITED STATES. [CH. XXX. postponed the disseverance until, in all probability, the mono- poly, with the growth of the Transatlantic Empire, finally brought the connexion, now become quite unnatural, to a close. The dependence of the Legislature in the different Colonies had not at any time been assented to as indisputable, or borne with- out murmuring. As early as 1640 Massachusetts had protested against the position that the Acts of the Colonial Legislature were subject to the English Parliament, so long as they violated no principle of colonial dependence upon the. mother country. In 1679, after strong representations to the same effect, the Le- gislatures in some of the Colonies declared by Acts of their as- semblies that the Statutes of England did not apply to the Colo- nies unless where they were expressly named, or where the enactments regarded the colonial relation, and an infringement of them would interfere with their dependence. The 7 and 8 Will. III., c. 22, to which I have already referred, declared all laws made and to be made in the Colonies void, which were repug- nant to the navigation law, or to any laws to be made in England naming the Colonies, and it also bound the Governors under se- vere penalties to prevent any laws from passing which should be in any way inconsistent with any English Act naming the Colo- nies. It is, however, certain that these provisions were not very rigorously enforced. The main security of the mother country consisted in the Governor being appointed by the Crown and his consent being necessary for the passing of all Colonial laws ; and, except as regarded trade and the foreign relations of the Empire, the British Parliament scarcely ever interfered with the inhabitants of the Colonies. Between the years 1764 and 1773, however, this abstinenc-e ceased, and attempts were made to legislate in England for the Colonies, in the point by far most likely to excite irritation and resistance. Taxes were imposed by the Parliament in which the Colonies were not at all represented, and this raised an im- mediate opposition. As early as 1773 Massachusetts went so far as to deny all legislative power whatever to the Parliament ; and although this doctrine did not immediately extend itself over the Colonies, in the course of a short time it became the creed of all Americans. Their remonstrances were disregarded ; they armed themselves; they formed a Convention or Congress, to govern the whole Colonics with the exception of Canada, >vhich, peopled CH. XXX.J IMPORTANCE OF THE AMERICAN INDEPENDENCE. 329 by Frenchmen and jealous of the Americans, took no part in the contest ; and after a series of extraordinary successes, consider- ing their inadequate resources for military operations, and an uninterrupted display of political wisdom as well as firmness and moderation, they finally threw off the yoke of the mother country, gloriously establishing their own entire independence and winning for themselves a new constitution upon the federal plan and of the republican form. This is, perhaps, the most important event in the history of our species. Its efi'ects were not confined to America. It ani- mated freemen all over the world to resist oppression. It gave an example of a great people not only emancipating themselves, but governing themselves without either a Monarch to control or an Aristocracy to restrain them ; and it demonstrated for the first time in the history of the world, contrary to all the predic- tions of statesmen and the theories of speculative inquirers, that a great nation, when duly prepared for the task, is capable of self government, in other words, that a purely republican form of government can be founded and maintained in a coimtry of vast extent, peopled by millions of inhabitants. The form of government thus framed and successfully esta- blished by the American people, under the guidance of some of the wisest and most virtuous statesmen ever called to administer national aflfairs, although republican and federal, was yet con- structed on the principles of the British Constitution as nearly as the diff*erent circumstances of the Colonies would permit. The principal variations were the substitution of an elective chief magistrate personally responsible for one hereditary, and only responsible through his ministers and agents ; the Upper House being elective like the Lower ; and the nation consisting of a con- federation of republican States, eafh independent in many essen- tial particulars, but all combined as regards foreign relations under one head, and all governed by a Central Legislature, of powers limited by law as to its jurisdiction over each individual member of the Union, though quite absolute as to the general concerns of the whole confederacy and the federal relations of its component parts. The affairs of the Colonies having during the revolutionary war been conducted by a congress of delegates from each, on the restoration of peace and the final establishment of their indepen- 330 GOVERNMENT OF THE UNITED STATES. [CH. XXX. dence, they framed thus a federal constitution, which was only gradually adopted by the different members of the Great League. Nine States having ratified it, the new form of government went into operation on the 4th of March, 1789. Before the end of 1790 it had received the assent of the remaining States. This assent was very variously given. In New Jersey, Delaware, and Georgia, the local legislatures adopted it unanimously ; in Pennsylvania, Con- necticut, Maryland, and South Carolina, large majorities, approved ; but in the other six States it was carried by small majorities, and in three of these, Massachusetts, New York, and Virginia, the voices were nearly balanced for and against it. Nevertheless this slow adoption and these great divisions of opinion are the best })roofs of the ample deliberation w^hich was bestowed upon so im- portant a proceeding ; and subsequent reflection did not fail to bring over the dissentient parties, so that it soon obtained a very general if not a universal assent. The fundamental principle of the Constitution is, the vesting of the supreme authority, executive and legislative, in the people, to be exercised in every case by their chosen representatives, in no case except in their elections by themselves. And this at once distinguishes the great modern republic from all the Democracies of ancient times. The representative principle is fully and univer- sally introduced into it, and the people depart completely with all their power to their chosen deputies. It is another and an essential principle, if indeed it be not involved in the former, that the choice of representatives and a chief magistrate is the only elective function exercised by the people, all civil and military officers, and especially all judicial functionaries being appointed by the executive Government. The supreme legislative power is pronounced by the first article of this Constitution to reside in Congress, that is in the two Houses, not as here in the two together with the chief magistrate. We are therefore first of all to consider the constitution of that govern- ing body, which consists of the House of Representatives and the Senate. riie House of Representatives is chosen every two years by each of the States in the Un'on electing Deputies, in the propor- tion of one for every 30,00C inhabitants.* Their numbers are * This was the proportion originally. It is viiricJ, as we shall presently see, pe- riodically. CH. XXX.] ELECTION OF CONGRESS, 331 thus in most of the States always increasing, though in some, as Rhode Island and Delaware, they have remained stationary. In others the increase has been great. Thus Massachusetts sent originally eight, and sends now seventeen* members ; Pennsyl- vania from eight has risen to twenty-four ; New York from six to thirty-four ; and Ohio having at its admission into the Union in 1802 sent one member, sends now twenty-one, indicating that its population has increased at least in that proportion. The enumeration by which these numbers are regulated takes place every ten years. The whole number of members in 1790 was sixty-five, the population being then a little under four mil- lions ; in 1830 it had increased to nearly thirteen, and in 1840 it exceeded seventeen millions. The numbers now are 223. The numbers are not only taken, but the proportions of members to population are determined every ten years ; at present it is one for every 70,680. The qualification required of representatives is threefold. They must be twenty-five years of age complete ; must have been citizens 'of the United States for one year ; and must reside within the State which elects them. The right of election varies in different States, being enjoyed in each State by those who have the right of voting for the members of the most numerous branch of the State Legislature. Thus in Massachusetts there is a low property qualification ; in some States all persons pay- ; ing taxes vote ; in others all paying a certain fixed amount. In I the greater number of States the sufi^rage is nearly universal ; that is, vested in all citizens of twenty-one years of age, and not pau- pers or convicts. Residence is in most States required, and in some the payment of a poll-tax. The Senate is elected for six years ; each State returns two senators ; and the choice is made by the State Legislature either voting together or separately, according to the Constitution of each State. One-third of the senators retire every two years, and their place is supphed by a similar election. The qualifi- cation for the Senate is threefold — being thirty years of ao-e, having been nine years citizens of the Union, and residino- in the State by which they are named. The members of the Senate are at present fifty-two. * That is, the States of Massachusetts and Maine, into which the original Stats of Massachusetts was in 1820 divided, now send seventeen. 332 GOVERNMENT OF THE UNITED STATES. [CH. XXX. The Congress is composed of the two Houses, and it must meet once a year at the least. Its power to tax is unhmited, ex- cept that no duty or tax can be laid on one State or one condi- tion of men exclusively, nor any financial advantage in any way given to any part of the Union ; a restriction which it is obvi- ously somewhat difficult to preserve strictly in practice, and which necessarily gives rise to many disputes. In the Congress also resides the important power of making war ; but it can only vote supplies for maintaining an army during two years by any one act. This seems at first a departure from the model — the British Constitution ; but it is rather in appearance than in substance a departure. The King in England can pro- claim war, but without the sanction of Parliament his proclama- tion must immediately be retracted. The vote for the army, too, is for one year with us, and it is yearly renewed. In the United States, if the war continued, the vote would be renewed for two years or for one, as circumstances might require. The real and main difiference is, that they have no standing army, or so small a one as only to serve for police, or to guard the weak points of their fi'ontier. It is less than 7000 men ; the militia amount- ing to 1,711,000. In the House of Representatives resides exclusively the power of propounding taxes of any description, but not so exclusively as in England, because the Senate may alter and amend the supply bills. They alone can impeach any one, and the Senate tries the charge, a majority of two-thirds being required to con- demn. A majority of each House forms its quorum, and is required for ordinary business- Each House has great powers over its members: it can expel by a majority of two -thirds; but a bare majority in all cases may pronounce censure, or decide on questions of qualification. The members of both Houses are paid for their attendance ; all enjoy freedom from personal arrest for debt, and no one is answerable for his con- duct in Congress. By an extremely injudicious provision no minister can sit in either House, nor any person holding any public employment. Hence the most effectual responsibility under which the servants of the State and its executive Govern- ment can be placed is destroyed ; and neither an explanation 3f public measures, nor a chance of preventing errors by discussion, nor any opportunity of defending the Government's proceedings, CH. XXX.J ELECTION OF PRESIDENTS. 333 is afforded. The suffering amendments upon money bills is no doubt an improvement upon the English constitution ; but there is still left a remnant of the same error on which our Commons claim the exclusive right of dealing with taxation. Money Bills can only originate in the House of Representatives, as with us they cannot in the Lords, on the ill-considered ground that the Lower House represents all who pay taxes, whereas the members of the Upper House, in both, pay an ample share, and our Peers moreover have no voice in choosing those of the Lower. The choice of the President and Vice-President is somewhat complicated, being obviously so contrived from the feelings of jealousy which prompted the Venetian statesmen to adopt a still more complex mode of election. Each state appoints, in what- ever manner its own legislature may direct, a number of electors equal to the whole number of those whom it sends to both the Senate and the House of Representatives, no person holding any office in or under the Government being eligible as an elector. The electors then meet and vote by ballot for two persons, one as President, and one as Vice-President ; one of whom at least must not be an inhabitant of the State. A list of all the persons voted for, with the number of votes for each, is then transmitted to the President of the Senate ; and by him, in the presence of both Houses, all the lists thus transmitted are opened. The votes are counted ; and the person having the greatest number of votes as President is declared President, provided he has a majority of the whole number of electors appointed by all the States. If no person has such a majority, then the House of Representatives, voting not per capita, but by States, each State having one vote, chooses one of the three highest candi- dates as President. The same course is pursued in ascertaining the choice of the Vice-President, but if no candidate for that office receives a majority of the electoral votes, the Senate desig- nates one of the two highest candidates as Vice-President. The qualification of President and Vice-President is being thirty-five years of age, and having been fourteen years resident in the United States ; and no person not a natural born citizen or a citizen at the time of the adoption of the Constitution in 1789 is eligible to either office. The President is commander-in-chief of all the public forces, naval and military ; but in the exercise of this trust he may 334 GOVERNMENT OF THE UNITED STATES. [CH. XXX. demand the assistance and advice of any officer or any constituted body in the State. He participates with Congress in a de- claration of war as in any other act of legislation, but all negotiation is exclusively intrusted to him, subject to the consent of the Senate, two-thirds of whose voices are required to make any treaty valid. The same consent, but only of the majority, is required for his nomination to all offices, the ap- pointment of which is not otherwise provided for, as ambassadors and judges. During the recess of Congress he fills up all vacancies, but such nominations only last till the end of the next session, unless confirmed by the Senate. He has also the power of removing from all offices held during pleasure. He has the right of refusing a Bill presented to him by the two Houses, but if he rejects it he must assign his reasons ; these are con- sidered by the Congress, and if two-thirds of both Houses again present the Bill, it has the force of law whether he consents or not. It has also the force of law when presented for the first time if he do not give his answer within ten days, to prevent his rejecting it by merely delaying to give his answer. The Judges hold their office during good behaviour, as well those of the inferior as of the superior courts, and they can only be removed by an impeachment, in which case the President has no power of pardoning. Their salary cannot be altered during their tenure of office, but they have no retiring pensions. The courts constituted in the United States are the Supreme Court and such inferior Courts as Congress may from time to time appoint. The jurisdiction of the- Supreme Court extends to all cases arising not only between individuals of the same state, but to all questions between parties in different states, to all questions between different states themselves, to all matters connected with treaties, to admiralty and other maritime cases, and to questions affecting ambassadors and other public func- tionaries. In cases respecting ambassadors and other ministers, and in cases between different States, its jurisdiction is original ; in all other questions it is appellate. The criminal law and the civil law is, generally speaking, that of England, subject to such alterations as have at various times been made by the Congress or by particular States. There is no treason but that of levying war against the State or adhering to its enemies ; and an attainder does not work corruption of CH. XXX. 1 POWERS OF CONGRESS. 335 blood, nor any forfeiture except during the party's life. The Habeas Corpus Act cannot be suspended, except, during an actual invasion or rebellion, the public safety should require such an act of Congress. There can be no trial except by a jury. All crimes must be tried in the State in which committed, but of crimes committed in no State, Congress may by law ap- point the place of trial. The Congress may admit any State into the Union, but it cannot erect a new State within any of those already existing, nor unite any two or more without consent of their several legislatures. Any alterations in the Constitution may be taken into consideration provided two-thirds of both Houses recom- mend them ; and then the proceeding is this : — If two-thirds of all the States agree by their several legislatures to call a Con- vention, it shall be assembled, and such amendments as it may propound in the Constitution shall be adopted if either the legislature of three fourths of the States, or Conventions in three-fourths, shall agree to them, the Congress having power to appoint either the one or the other coarse. To this power of alteration there were in the original Constitution two excep- tions, one of which has now expired ; it prevented all alterations in respect of what was delicately termed the " migration or importation of such persons as any State now existing may think proper to admit" — in other words, the African Slave Trade. This was to remain untouched till 1808 ; and it is only fair towards the Americans to consider, first, that they had originally desired to have no slave trade, and that the Mother Country had most wickedly as well as most foolishly (if indeed there ever be any difference between these two things) refused to free them from this guilt ; secondly, that they abolished the traffic the instant the Constitution allowed them. The other exception relates to the equality of the States. No change can in any way be adopted which shall deprive any State, without its con- sent, of an equal vote in the Senate. We have now seen that this Constitution professes to lay down certain fundamental laws, which are binding not merely on the subject but upon the Congress itself, and upon all the State Legislatures. Hence arises this anomaly, that the supreme power is fettered : there is not, properly speaking, a supreme power ; Congress is tied up : that is done by the American Con- PART III. z 336 CONSTITUTION OF THE UNITED STATES. [CH. XXX. stitution, which in ours is held impossible ; the hands of the Legislature are bound ; a law has been made which is binding on all future Parliaments. When we at first contemplate this state of things, it appears to be sufficiently anomalous ; and yet a little reflection will show us that it is, at least to a certain extent, the necessary conse- quence of the Proper or Perfect Federal Union. There is not, as with us, a government only and its subjects to be regarded ; but a number of Governments, of States having each a separate and substantive, and even independent existence, originally thirteen, now six-and-twenty, and each having a legislature of its own, with laws differing from those of the other States. It is plainly impossible to consider the Constitution which professes to govern this whole Union, this Federacy of States, as anything other than a Treaty, of which the conditions are to be executed for them all ; and hence there must be certain things laid down, certain rights conferred, certain provisions made, which cannot be altered without universal consent, or a consent so general as to be deemed equivalent for all practical purposes to the consent of the whole. It is not at all a refinement, as we have already remarked, that a Federal Union should be formed ; this is the natural result of men's joint operations in a very rude state of society. But the regulation of such a Union upon pre-esta- blished principles — the formation of a system of government and legislation in which the different subjects shall be not individuals but States — the application of legislative principles to such a body of States — and the devising means for keeping its integrity as a Federacy, while the rights and powers of the individual States are maintained entire — is the very greatest refinement in social policy to which any state of circumstances has ever given rise, or to which any age has ever given birth.* We are now to consider in what manner this is maintamed in the Great Western Union ; in other w^ords, what provision is made for preventing either the States' Legislatures or the central body, the Congress itself, from overstepping the limits fixed by the Constitution. In Greece there was an attempt (as we have seen, Part i. Chap. XIV.) to restrain by the Amphictyonic Council the several The power of Congress in America extends not only over the different States, but over the inhabitants of each. CH. XXX.] ANNULLING UNCONSTITUTIONAL LAWS. 337 members of the Greek Confederacy, each within the bounds of what was deemed the Common Law duty (so to speak) of all. Nothing could be less perfect than the frame of this arrange- ment, as far as we are acquainted with its outline ; nothing less successful than the operation of the contrivance ; not to mention that it only professed to decide international points, tliose of war and alliance, and to redress grievances arising from the usurpa- tion of one State upon another. In America a very different and far more extensive provision is made for maintaining the Constitution and repressing all infractions of it, whether by the Central or the Local Legislatures. The States' Courts, and the Supreme Courts especially, have the right, and it is their bounden duty, to declare any given Law which may have been made with all the appointed forms of legislature, unconstitutional, as against the fundamental provisions of the Federal Union, or as against the laws of any given State, and to refuse it all operation and effect. Thus a law, a solemn Act by the supreme legislative power in one State, or by Congress itself —a Statute clothed with all the legal solemnities — a law, for example, to which the two Houses of Congress and the President of the Union have given their dis- tinct assent — is declared illegal, is pronounced to be no law, is adjudged not to be binding, is treated as a mere nullity, because contrary to the Constitution ; and this is done by Judges ap- pointed to execute the Law, and to administer justice under it. Those Judges are required to regard the Acts of the Legislature as the Acts of agents appointed for a certain purpose, and clothed with certain powers ; which purpose, if they have defeated, which powers, if they have exceeded, their Acts are held not to bind their principal, the People or the Constitution. All their Acts are considered as only valid in so far as they are executed according to the powers given by the Constitution to the Legis- lature, which is as it were the mere instrument of that Constitu- tion. It is as if the powers of our several Treaties and Acts of Union with Scotland and Ireland were considered binding on all future Parliaments, after being sanctioned by the Legislatures of 1706 and 1800, and could not be altered except by a Conven- tion summoned for the purpose ; and as if our Courts of Law were required to hold illegal all Laws made by the Imperial Parliament contrary to these fundamental provisions or articles, z2 338 CONSTITUTION OF THE UNITED STATES. [; H. XXX and to hold them mere nullities. It is not that until Congress formally repeals any given law, any Act inconsistent with it shall be deemed illegal, and treated as null and void, while a for- mal abrogation shall be valid and bind the Courts. This would resemble the Athenian Constitution, as we have seen in treating of the r§a(p73 ria^zvo/xwv (Part ii. Chap, xvii.) But the American Constitution goes very much further ; it denies to the Legisla- ture the power to alter these fundamental laws, until a Conven- tion of the people shall permit the change ; and it treats as null and void any Act of innovation made by the Legislature before such Convention shall have given it warrant. This is the un- disputed principle of the American Constitution, and is constantly acted upon. Its great importance requires that we should give some examples of the judicial power thus exercising its supremacy over the Legislative and Executive combined. We begin with instances in which the States' laws, or laws of particular local legislatures, have been treated as unconstitutional and null. The Constitution has reserved to Congress the sole power of regulating commerce, manifestly in order to prevent collision between the States. The legislature of New York granted, by an Act formally passed, an exclusive right of steam navigation within the waters of the State, to Livingston and Fulton. In the case of Gibbons v. Ogden, this Act was held unconstitutional by the Supreme Court of the United States in 1824,* although in 1812 it had been decided in the New York Court of Errors that live such Acts in favour of the parties were constitutional and valid, upon the ground of the internal navigation of each State being exclusively within its legislative jurisdiction ; but as Chancellor Kent, in his Commentaries,! observes, no question whatever was raised, either in th^ State's Court or the Supreme, of the Court's right to set aside any unconstitutional law. In like manner a Bankrupt Law of New York, having a re- trospective action, was declared void by the Supreme Court as impairing the obligation of contracts ; and in OlmsteacCs case a Pennsylvanian law protecting certain individuals from the process of the Federal Courts was declared void, not only as against statutory enactment, but as inconsistent with the common law Qf the Federal Union. Laws of Maryland and Ohio, imposing * 9 W'hcatoii, i. j I. 437. CH. XXX.] EXAMPLES OF ANNULLING. 339 taxes on branches of the United States Bank established in those States, were declared void, as interfering with the exclu- sive powers of the General Government to regulate trade. In the case of Green v. Biddle* it was held that, as a compact between two States came under the head of contracts (any law "to im- pair the obligation of which" is, by Art. 1, s. 10 of the Con- stitution, expressly prohibited), a law of Kentucky, called the " Occupying Claimant's Law," was unconstitutional and void, and the titles to a vast extent of land thus became invalid. The right of the Supreme Court of the United States to declare a law passed by the General Congress and approved by the President null and void, on the ground of inconsistency with the Constitution, is not less certain. The case, however, is much less likely to arise, because the most learned and experienced men in the Union having seats in Congress, and the whole States being proportionably represented, it is much less likely that any Act of legislation should take place contrary to the fundamental law. This power of adjudging a law unconstitu- tional is also possessed by the Circuit Courts of the United States, subject, of course, to appeal to the Supreme Court at Washington. In 1791 the Circuit Court of New York declared void as unconstitutional an Act of Congress. These Courts are Federal, being held under judges, not of the particular State, but of the Union. A similar power is possessed by the State or Local Courts, in reference to the Acts of the state or local legislatures. In Whittingham v. Polk, in 1802,t it was exercised by the General Court of Maryland ; and in Bowman v. MiddIeton,l as far back as 1792, the Supreme Court of South Carolina declared unconstitutional an Act of the local Legislature, as bieng against common right and Magna Charta, because it took away a person's property without compensation. I mention this decision here, though referring to a State and not to a Congress Act, in order to shovv^ that a law may be declared unconstitutional which violates no express enactment or article of the written Constitution, but is only against the general or common law. Not only may the Courts consider whether or not any Act of the Legislature is in its provisions unconstitutional ; they * 8 Wheaton, i. t 1 Haw. and John., 236. t 1 Bay., 252. 340 CONSTITUTION OF THE UNITED STATES. [CH. XXX. may also examine the mode of passing it, and declare it null if the requisite forms of legislation have not been complied with. Thus in the case of The State v. Machride* it was held that where the law requires a certain majority to pass a law on any given subject, if the Court finds that less than this majority did not assent, it shall declare the Act so passed void. The State of New York till the year 1823 possessed a very im- portant and salutary institution, one especially advantageous in a Federal Constitution. There was a Council of Revision to which all Acts of the State Legislature were submitted before they were finally passed into laws. The records of this useful body are said by Chancellor Kent to contain both eminent proofs of its ability, and " monuments of the wisdom, firmness, and integrity of the Council."t Beside the Constitutional Act and subsequent Acts, the works to be consulted on the American Government are Chancellor Kent's Commentaries (4 vols., 1840); Mr. Justice Story's Com- mentaries (1833); and Dr. Duer's Lectures (1843). Valuable matter will be found also in Mr. Gore Ouseley's Remarks on the American Institutions, and in Professor Long's American Geo- graphy. The superficial work of Lacroix is even more meagre and imperfect than usual on this subject. It is inconceivable that any one, but more especially a professor of public law, writing in Paris at a time when all men's attention was directed to the American Constitution, and the attention of some men directed to it very profoundly, should (beside other great omissions) appear to be wholly ignorant of the most singular portion of the whole subject, the supreme power of the Courts of Justice in declaring Acts of Legislation unconstitutional. A very elaborate work was published in London by the elder President Adams, entitled a ' Defence of the American Constitu- tions,' in the year 1788. It is in three large octavo volumes ; and abounds in references to the Governments of other Common- wealths, ancient and modern. But its principal object is to defend against the extreme democrats the restrictions imposed on the powers of the Lower Chamber by the addition of another Legislative body. * 4 Missouri Rep., 302. f 1 Kent, 454 CH. XXXI. j ( 341 CHAPTER XXXI. GOVERNMENT OF FRANCE.— REPUBLIC, French Revolution — Its causes — Five Republican Constitutions — Abolition of Ancient Privileges common to them all — Constitution of 1791 — King of the French — National Assembly — Elections — Executive Power — Royal Prerogative — Legislative Power — Judicial System — Tenth of August, 1792 — Convention — Revolutionary Government — Constitution of 1793 — Committee of Public Safety — Directorial Constitution of 1795 — Two Councils — Elections — Choice of Functionaries — Powers and Proceedings of the Councils — Executive Directory — Judicial System — Court of Cassation — High Court of Justice — National Guard — Council of Revision — Revolutionary Proceeding of 18 Fructidor, 1797 — Merits and Defects of this Constitution — Opinions upon it. In the first part of this work I endeavoured to trace the ancient monarchy of France from the earliest times down to the great era of the Revolution, and I showed that the refusal to correct manifest abuses, to relieve the people fi'om intolerable burdens, to reduce the exorbitant privileges of the nobility, relics of Feudal times, to place some reasonable bounds to the oppressive powers of the Crown and its servants, in a word, the obstinately withholding from the country all the benefits bestowed by adapting the monarchical scheme of Government in some mea- sure to the improved notions and increased intelligence of the age, was the cause of a change sudden and pervading, which swept away, in the course of a few weeks, all the ancient abuses, with most of the ancient political institutions of France, and, after a further delay of a few months only, subverted the monarchy itself. That there were many grievances of which men had good right to complain, no one can doubt. Whatever of good the Constitution contained had become mixed with so much evil as impaired its practical efficacy ; most of its better portions had long existed only in name ; the people had no influence, and hardly any protection from the abuse of authority ; and powers were possessed, and were constantly exercised by the Govern- 342 GOVERNMENT OF FRANCE. [CH. XXXI. merit, wliolly inconsistent with either personal liberty, or poli- tical independence. It is quite sufficient to mark the right as- sumed by the Sovereign to make laws, subject to a claim of the Parliament to have them acknowledged by registration, but a claim so ineffectual that, after their remonstrance, and a short delay, the registration could be easily enforced. An oppression still more practical and intolerable was exercised by virtue of another prerogative in constant operation. The Sovereign could banish or imprison any person at pleasure, without assigning a reason, without bringing him to trial, and without using the aid of any person responsible for the abuse of this execrable prero- gative.* It is very true that but few prisoners were found in the dungeons of the Bastile when that fortress was stormed by the people, and razed to the ground ; but no one ever pretended that men were imprisoned by the score, or banished either. A few thus treated from time to time sufficed to strike terror into all discontented persons, and silence every murmur against the proceedings of despotism, or the grossest malversations of its minions ; and, besides, imprisonment in the Bastile was by no means the only penalty to which malcontents were subjected by the Court, or the enemies of individuals by their procurement. No one can marvel at the indignation of mankind breaking forth against so detestable a system — no one can avoid regarding the summary destruction of it as a warning to other tyrannical Governments, and a warning which may prove salutary to hirar- self, or useful to his subjects, according as each absolute Prince shall have the wisdom to profit by the lesson, or the obstinacy to leave his people no alternative but following the example. There were five forms of Government successively established in France upon the ruins of the old system : that framed in 1791 by the first, or Constituent Assembly, as it was from thence called ; that proclaimed, but never acted upon, when the repub- lic was established in autumn, 1792 ; the Conventional or Revo- lutionary Government, which was substituted for it ; the Direc- torial Constitution of 1795 ; and the Consular Government of * The qualification that the person obtaining a Leltre de Cachet was liable to an action of damages if it was improperly obtained, is sometimes mentioned as annexed to the use of this royal power. Nothing can be more futile ; for the Crown was not bound to disclose the reason of an order thus issued, and a Minister using it was Hot responsible at all. CII. XXXI.] REPUBLIC. 343 Christmas, 1799. It will presently be seen why we are to re- gard all of these as Republican, even the first, which was nomi- nally monarchical. Although these Constitutions were of transient existence, yet they did not pass away witho-ut leaving deep traces of their mighty power in the history of France and of the world. The consideration of their provisions is also fruitful of instruction respecting the spirit of the times and the temper of the people, and throws much light upon the genius of the democratic system. We must therefore examine them in detail before proceeding to view the wiser and more desirable form of polity which has arisen out of their ruins. Some things they all had in common — things of a negative kind — and embracing the destruction of the old abuses. Of these the greater part remain to this day. This destruction of abuses involved also the destruction of ancient institutions es- sential to monarchy — institutions which we shall afterw^ards find have not been restored in sufficient force to be of their full use as props to even the constitutional throne of a limited mo- narch. All distinction of ranks, all peerage, nobility, titles of honour and of knighthood were abolished. No distinction of rank was suff*ered to remain, save that derived from place in the actual service of the state ; and no office whatever was allowed to pass either by inheritance or by purchase. All feudal rights were abolished, including both offices and administration of justice, and privileges and services, and other proprietary rights. With these oppressions upon the industry of the country, were also swept away all those upon that of the towns ; no exclusive cor- porate rights were suffered to afffect either arts, or trades, or professions. Monastic vows were forbidden, at least they were declared to have no force or effect, and the most entire liberty of religious opinions and worship was proclaimed. The free- dom of speech and of writing on all political subjects was, in like manner, announced, as far as any previous censorship was forbidden, and peaceable assemblies of the people were freely permitted, as well as carrying arms for self-defence. Institu- tions for relieving the poor, and for popular education, were promised, and a general code of laws to govern the whole kingdom. 344 GOVERNMENT OF FRANCE. [CH. XXXI. The Constitution of 3 Sept., 1791, vested the supreme power in a chief magistrate, termed the King of the French, and a Na- tional Assembly, of a single House or Chamber. The Assembly consisted of 745 members, independent of those who might be added to represent the colonies. Each of the eighty-three De- partments into which the kingdom was divided sent three, and Paris one, making 247 for the country ; 249 were allotted to the population, that is, given in respect of numbers merely; and 249 were given in respect of taxes paid by the districts. The choice of these representatives was vested in Electoral As- semblies appointed by the people voting in Primary Assemblies, the voters being those who were termed active citizens {citoyens actifs), that is, who were twenty-five years old, resided in their district, and paid direct taxes equal to the value of three days' labour, this value to be fixed every six years by the legislature. No person could have a vote in more than one district, and the only exceptions among those thus qualified were, conviction of a crime, and bankruptcy and insolvency not followed by the ac- quittance of creditors. The Electoral assemblies thus chosen by the Primary consisted of one elector for every 100 active citizens ; two from 150 to 250, and so on in proportion. *The qualification of electors was being assessed, if in towns of 6000 inhabitants and upwards, in a sum equal to 200 days' labour as owner, or 150 as tenant ; if in a smaller town 150 as owner, and 100 as tenant ; and if in a rural district 150 as owner, and 400 as tenant ; so that the qualification for the Primary Assemblies may be put al three shillings taxes, for the Electoral at from seven to ten pounds. Hence, though the franchise for the choice of electors was very extensive, that for the choice of representatives must have been extremely limited. Indeed it should seem as if in some districts there would be a difficulty in finding the number of electors required by law, for there must surely have been many villages of 700 or 800 houses, that is, 150 or 160 heads of families, in which two persons could not be found paying so much as ten pounds direct taxes, that sum corresponding to a very con- siderable property. All citizens were eligible as representatives, excepting those holriing any office during pleasure under the Crown, whether civil or military, all the Royal household, all persons engaged in the administration of the finances, or Crown lands, all muni- CH. XXXI.] REPUBLIC. 345 cipal officers, all officers in the National Guards, and all judi- cial functionaries. Thus care was taken to keep the legislative body wholly separate from all the other parts of the Constitu- tion, and to secure numerous occasions of conflict and collision with the executive power. If any Judge was elected he might sit, provided his place was supplied in Ids Court by another ; and with every three Deputies chosen in any district there was also chosen one suppleant, or substitute, who might sit in case either of the others should be found, or should become, disqua- lified. The election of the Assembly was for two years ; and any person might sit in two successive assemblies, but not in a third without retiring during one turn. The King had no power to adjourn, prorogue, or dissolve this body ; and its mem- bers enjoyed absolute protection from all civil process, from all proceedings against them for their conduct in the Assembly, and from all criminal proceedings also, unless the Assembly, upon a charge being communicated to it, should be of 'opinion that there were grounds for the accusation. Each member took a solemn oath to be faithful to the nation, the law, and the King, and never to propose anything or consent to anything which could invade the Constitution established in 1789, 90, and 91 {porter attente), so that those three years were deemed and taken to be years of absolute infallibility, whose produce must for ever after be saved from further improvement or change. We are now further to examine the quality of that produce ; and in passing we may remark on the hideous spec- tacle presented by 745 well-educated Frenchmen, in respectable spheres of life, solemnly swearing that oath, and in less than twelve months after utterly violating it in every essential parti- cular. The executive power was vested in the King ; females being excluded both from succession to the Crown and from the Re- gency. During his minority under eighteen years old, or his incapacity, the Regency was given to the next heir, not being sovereign of a foreign state ; and in the event of the next heir being disqualified, the Electoral Colleges were to choose electors of the Hegent, with instructions regulating their choice, and con- fining their functions to the election of a Regent. The King's oath to observe the Constitution was to be taken within one month after his accession, otherwise his abdication was inferred ; 346 iiOVERNMENT OF FRANCE [CH. XXXI. SO it was if he either joined any foreign invasion or did not dis- claim any enemy professing to use his name, or left the country and did not return when invited by the Assembly ; and after ab- dication thus presumed he was responsible for his whole conduct. All his private estates became crown or national lands imme- diately upon his accession. The person of the King was declared to be inviolable, and his ministers alone to be responsible for his acts, all of which must be countersigned in order to secure a person subject to the law. He had the sole power of appointing and removing his minis- ters ; but no member of the Legislature, nor any Judge of the Court of Cassation, could be a minister, nor could any member of the Assembly ever hold any office of profit created while he sat, nor any office of profit whatever under the Crown for two years after he had ceased to be a member. The command of the forces, both by sea and land, was vested in the King ; he had the nomination of the Commander-in-Chief, but he had only the nomination of two-thirds of the Vice-Admirals, and one half of the Lieutenant-Generals, and Captains, and Commanders of the National Guard, the Assembly naming the rest. He could only propose the declaration of war to the Assembly, which must decree it, and he could make no binding treaty without its approbation. He was also obliged to treat, if de- sired by the Assembly. He named all Ambassadors and con- ducted all negotiations, and disposed and moved all the forces. Upon the measures of the Assembly he had a veto ; but if two successive Legislatures passed the same bill, it became a law without the Royal assent. The Assembly had, beside the nomination of part of the officers, the exclusive right of regulating and providing for its own police, of regulating the administration of municipal offices, of making acts touching ministerial responsibility, and of everything regarding the collection of taxes. In none of these particulars could the King interfere. As no distinction of ranks was allowed, the King had no prerogative respecting honours ; and the Assembly alone could confer honours on deceased citi- zens. He had no power to adjourn, prorogue, or dissolve the Assembly. All the powers of Government, not now enume- rated as vested in the Crown, were entrusted absolutely to the Assembly itself, which was in fact both the legislative and the CH. XXXI.] REPUBLIC. 347 executive body in the State, nor could the slender authority vested in the King be supposed any counterpoise ; so that the Government was really a Democracy. Likewise the number of the forces was too small to give the Crown any real power beyond what the Constitution entrusted him with. Beside the National Guard of Honour, only 1200 foot and 600 horse were allowed to be kept up. The Judicial system was by far the most imperfect portion of this Constitution. The Judges were all unpaid, and all chosen by the people in the Electoral Assemblies. Once chosen, they could only be removed on conviction of crimes. The King named Commissaries to each Court, whose duty it was to keep the Judges in mind of the law, but who had no voice in their de- cisions. They were entrusted with the execution of all judg- ments. The High National Court, before which all impeach- ments at the suit of the Assembly were tried, was composed of eight Jurors, together with members of the Court of Cassation, the Supreme Court of Error over the whole Courts of the coun- try, but chosen like them by the people. The Public Prose- cutor was elective like the Judges ; and this perfectly vicious judicial system was continued down to the Consulate, being adopted into the much less imperfect Constitution of 1795, that of the Executive Directory, and two Councils. Such was the vaunted Constitution of 1791, the great work of the first or Constituent Assembly, extolled as a monument of political wisdom, and regretted after a still worse system of crude legislation had established the anarchy which was only controlled by the reign of terror and of blood. The existence of this most imperfect machinei -^ was less than twelve months' duration. After the revolt of the 10th of Au- gust, 1792, and the consequent deposition and imprisonment of the Royal Family, a Convention was summoned, its members being chosen by all persons of twenty-one years of age, and having themselves only the qualification of being twenty-five years old. On tfie 21st of September they abolished Royalty; on the 25th they proclaimed the Republic One and Indivisible ; on the 23rd of January, 1793, they devoted the King to die ; on the 6th of April they entrusted almost absolute power to the Committee of Public Safety ; and while this celebrated body displayed its ge- nius for affairs by restoring tranquillity at home and establishing 348 GOVERNMENT OF FRANCE. [CH. XXXI victory abroad, on the 24th of June the Committee proclaimed a new Constitution, which was from the first plainly seen to be wholly impracticable, was immediately suspended, and was in all probability never intended to be carried into effect. This master-piece of wild democratic entrusted the supreme power to an Assembly of Deputies chosen yearly, in the proportion of one for every 40,000 of the people, which would have given a total of 600 members. Every 200 citizens were to choose in a Primary Assembly one elector ; and no qualification was required either of electors or members. The Assembly thus chosen was to name an Executive Council of twenty-four out of candidates proposed by the Electoral Assemblies, who were thus yearly to appoint the Executive Government. The Executive Council was to dispose of the forces, name the foreign ministers, and con- duct all military and diplomatic operations. This matchless plan was no sooner proclaimed than it was sus- pended, and the Government was declared to be Revolutionary until the restoration of peace. All authority was vested in the Committee of Public Safety ; and by the terror which its proceed- ings— vigorous, stern, sanguinary — inspired in all men, the Con- vention became the passive instrument of its will, securing the co-operation of the people by the exciting publicity of its pro- ceedings, without in the least controlling the executive power or impairing its dreadful and concentrated energy. In this state the Government remained until the year 1795, when the expe- rience of the past having shown the necessity of a less revolu- tionary system, a new Constitution was adopted on the 22nd of August, far better suited to the circumstances of the country, and far less repugnant to the principles of sound policy, than those which had gone before it. The supreme legislative power by this Constitution was vested in Chambers, called Councils; the Executive in five functiona- ries, called the Executive Directory. The Councils were two in number, one called that of Five Hundred ; the other the Ancients^ consisting of 100 members, and both elected by the people through a double election. For this purpose, and for the pur- pose of other appointments by the people. Primary Assemblies were holden yearly of not less than 450 nor more than 900 citi- zens. Each assembly chose its President, Secretary, and three Scrutineers. The duties of the Primary Assemblies were to CH. XXXT.J REPUBLIC. 349 consider changes in the Constitution when those should be pro- posed by the Council of Revision ; to choose electors, that is, persons to elect the members of the Councils and other func- tionaries ; and to choose Juges de Paix, municipal administrators of country districts, municipal officers in all towns of above 5000 inhabitants. They chose electors in the proportion of one to every 200 voters up to that of seven for 900 voters, the greatest num- ber in any primary district ; and their proportions were to be settled once in ten years. The electors thus yearly chosen must be changed every year, and could only be re-elected after an interval of four years ; their age was twenty-five at least, and they must have an income of the value of 200 days' labour if proprietors, and 150 if tenants where the town contained above 6000 inhabitants, where less, an income of 150 and 100 respect- ively ; and in the rural districts the incomes were 150 for pro- prietors and 200 for tenants. The Electoral Assemblies could only sit for ten days, could receive no petition or address, or de- position, could hold no correspondence with any other assembly, could discuss no subject save the elections confided to them, and none of their number could take the title of electors, nor meet together as such, after the ten days expired. Those Electoral As- semblies chose the members of both Councils, the Judges of the civil tribunals, and the Court of Cassation, the Jurors of the High National Court {Haut Jury\ the Presidents, Public Pro- secutors, and Clerks of the criminal tribunals, and the Financial Administrators of the department. From the Chambers all persons in office were excluded, ex- cept the Keeper of the Public Archives. Thirty was the age required for the Five Hundred ; forty for the Ancients. One- third of each went out yearly, and a member could only be re- elected for four years, after which he must be out for two before he was re-eligible. The President and Secretary of each Coun- cil were chosen monthly ; each had the control of its own inter- nal police, but could only punish its members by censure, or by arrest for eight or imprisonment for three days ; and strangers could only be admitted to the sittings in the proportion of one-half the number of members. Two hundred was the quorum of the Five Hundred ; 126 of the Ancients. The members of the lat- ter must be either married men or widowers ; bachelors could sit in the former. The members of both Councils received a 350 GOVERNMENT OF FRANCE. [CH. XXXI yearly salary equal to 600 cwt. of wheat, or about 400Z. Both Councils were obliged to meet in the same place, but in diffe- rent chambers, and the Councils had the sole right to fix the place and even the town where they should assemble. If a clear majority of each should not, within twenty days, assemble at the place thus appointed, the Electoral Chambers were required to meet and choose a new Legislative Body. The Five Hundred alone had the power of suggesting any law, which the Ancients could only adopt or reject, and that in the whole, without power of altering or amending. If both Councils agreed, the measure became a law immediately ; but in the Five Hundred it must be read and agreed to three times at the distance of ten days between each reading, unless both Councils declared that there was urgency or an occasion for special dis- patch. The five members of the Executive Directory were chosen by the Ancients from a list of fifty presented by the Five Hundred, the ballot being the mode of voting in both Councils. No person could be a Director who was not forty years of age, and had not been either a member of the Legislative Body or a Minister. Every year one Director went out by lot. They presided in their turn each for three months. No resolution could be taken if three were not present. No Minister could be a Director. The Directory had the entire command of the national forces, but no Director could himself be a commander, nor for two years after quitting office. They appointed all military and naval officers, and all ministers and other public functionaries not chosen by the Primary or Electoral Assemblies. They had a guard of 120 foot and as many horse, and salaries equal to 1000 cwt. of wheat, and were lodged in the Luxembourg Palace. The Directors had the power of proposing any measure of legis- lation to the Five Hundred, but only in substance and not in the form of a law. They superintended all police, and appointed to all courts commissaries to see that the law was observed, and to superintend the execution of judgments and sentences. They could arrest any person, but were bound to send him to trial within two days. They could not arrest any member* of the Legislature unless the Council to which he belonged decided that there was ground for the charge preferred. They CH. XXXI. 1 • REPUBLIC. 351 could not bring any body of troops within twelve leagues from the place where the Councils met. The judicial system had the same grievous defect which we have seen embarrassed that of the former Republican Constitu- tions. It was elective and gratuitous. The Primary Assemblies chose the Juges de Paix, the Courts of the first instance ; all Judges and Jurors must be thirty years of age. A Juge de Paix was chosen only for two years, but was re-eligible. There were two for each district (arrondissemerd). In each depart- ment there was a civil tribunal of twenty members, with a Commissary and his substitutes, named by the Directory. These Judges were chosen for five years, but re-eligible. They decided on appeals from the Juges de Paix and the .Tribunals of Commerce and Arbitration. Arbitrators, however, had the power of final decision, unless an appeal was reserved by the terms of the submission. The Correctional Tribunal for each department consisted of two Juges de Paix, a Commissary of the Directory, and a President taken from the civil tribunal in rotation and holding office for six months. All offences were first found by a Grand Jury, then tried by a Petty Jury ; and all votes were by ballot. In each department was also a Criminal Tribunal composed of a President, four Judges of the Civil Tribunal, a Public Prosecutor, and the Directory's Commissary. To it lay an appeal from the Correctional Tri bujial. The Court or Tribunal of Cassation was appointed for the whole Republic, and it had only cognizance of points of law and errors in procedure ; it was the Great Court of Error for the whole State, as our House of Lords is, except in appeals from the Courts of Equity. This important Court was com- posed of as many members as amounted to three-fourths of the number of the Departments, and one-fifth went out yearly. They were chosen by the Electoral Assemblies, who at the same time named substitutes to replace them in case of death or disqualification. To this Court the Directory named a Com- missary v\ith substitutes. The High Court of Justice was composed of five Judges from the Court of Cassation, two Public Prosecutors, and eight members from a Jury named by the Electoral Assemblies and called the Haul Jury, each Department sending one. The five PART III. 2 A 352 GOVERNMENT OF FRAN^lT. [CH. XXXf. Judges were chosen by ballot out of a list of fifteen named by- lot from the Court of Cassation. The Court of Cassation like- wise named the two Public Prosecutors. The Legislative Body decreed the meeting of this High Court of Justice, and its office was to try public functionaries on the accusation of the Legis- lature. The National Guard was composed of all citizens of the military age. It chose its own officers. It consisted of two bodies, sedentary and active ; the former doing the police duty of the capital, the latter being moveable, under Commanders-in- Chief named by the Directory, and in fact being the regular army. The power of taxing rested wholly with the Legislative Body ; the collection and superintendence of the revenue with the Directory. War was decreed by the Legislature on the pro- position of the Directory, who could act, however, on any sudden emergency^ but must immediately communicate its proceedings to the Legislative Body for approval. The Directory also named Ambassadors, and conducted all negotiations, but no treaty was valid until ratified by the Councils. The Constitution might be revised in any particular every nine years, if a proposition to that effigct were made three times by the Councils and approved by the Council of Revision^ con- sisting of two members for each Department, elected as were the Members of the Legislative Body. After this Council had agreed to any change it must be submitted to the Primary As- semblies, a majority of whom could adopt or reject it. Such was the celebrated Directorial Constitution of 1795 ; it was approved by 1,057,390 votes in the Primary Assemblies, and only rejected by 49,977 ; it lasted much longer than any of its revolutionary predecessors ; having continued for upwards of four years, when Napoleon overturned it by the Bevolution of 18 Brumaire, November, 1799. But it had not been suffered to remain in full force all that time. The elections in 1797 had returned to both Chambers, but especially to the Five Hundred, so many Royalists, and the discontent with the Di- rectorial Government had become so great, that a counter- revolution was inevitable ; when three of the Directors, Barras, Rewbel, and Lareveillere Lepaux, combining against their colleagues, Carnot and Barthelemy, by aid of a military force CH. XXXI. J REPUBLIC. 353 expelled and transported so many members of the Council that they obtained a complete and secure ascendant among those who remained, and continued to govern the country for two years longer without any new inroad upon the frame of the Constitution. On the merits of this scheme of Government there have been, as might be expected, various opinions ; but all men allowed its great superiority to the Constitutions of 1791 and 1793,* both in the greater regularity of its structure, in the exclusion of turbulent and popular proceedings, in the limitation of the electoral rights, in the construction of the Executive Power, and in the addition of a Second Chamber somewhat differently con- stituted from that of the more numerous Republican body. Its defects are, however, glaring ; the Directory was ill adapted to sustain the burthen of Executive duties with unity and vigour ; the Primary Assemblies had still too exclusive a power ; the Electoral Body was vested with patronage naturally belonging- to the Executive ; there was no security for the influence of the latter in Legislative proceedings ; there was no provision for the real responsibility of public functionaries, by their sitting in the Chambers ; and the judicial system was as defective as ever. I cannot, therefore, entirely subscribe to my distinguished friend M. Mignet's panegyric ; which must, however, be allowed to speak the sense of by far the greater number of political reasoners in France, t " La prevoyance de cette Con- stitution etait infinie ; elle prevenait les violences populaires, les attentats de pouvoir, et pourvoyait a tous les perils qu* avaient signales les diverses crises de la revolution. Certaine- ment si une Constitution avait pu se consolider a cette epoque, c'etait la Constitution Directoriale. Elle refaisait le pouvoir, permettait la liberte, et oflrait aux diverses partis I'occasion de la paix, si chacun d'eux, sans arriere pensee, ne songeant plus a la domination exclusive, et se contentant du droit commun, eut pris sa veritable place dans I'etat." * There is not, however, the least of that superiority which some writers have ascribed to it ; for example, Mr. Alison, who supposes the plan of Primary and Electoral Assemblies to have now for the first time been devised, whereas it was most notoriously part of the Constitution of 1791. — History of Europe, ii. 683. t Hist, de la Rev. Fran9., ii. 165. 2 a2 ( 354 ) [cu. XXXII. CHAPTER XXXII. GOVERNMENT OF FRANCE. — CONSULATE — EMPIRE. Return of Napoleon — Sieyes ; his Genius — Constitution proposed by him — -Grand Elector ; Tribunate ; Council ; Legislative Body ; Conservative Senate ; Droit d' Absorption — Consular Government — Choice of Functionaries — Their Removal — Conservative Senate — Tribunate — Legislative Body — Process of Legislature — Judicial System — Consuls — First Consul's Power — Its extensive Nature — Checks found inconvenient — Change in 1802 — Consul's Power extended in the Provinces — Senate subjected to him — Other Powers added to him — Tribunate changed — Minister of Justice — Consul for Life, and Successor named by him — Imperial Dignity — Emperor's Power — Dignitaries and Nobility — Tribunate further re- strained— Finally abolished, and Emperor absolute — Limited Monarchy of 1815 — Resemblance to the English Constitution. The return of Napoleon from Egypt, the gross mismanagement of public affairs during his absence, and, above all, the reverses of fortune which had befallen the arms of the Republic ever since the light of Carnot's genius was withdrawn, by his banish- ment in 1797, prepared the way for the 18th Brumaire, and a new Constitution was promulgated, after a short interval of pro- visional Government. But it may not be uninteresting first to give an outline of the form of polity devised by Sieyes, one of the authors of this new change, and which he pressed with his wonted sternness on his coadjutors, which, with his accustomed dogmatism, he refused to support with any reasoning, which was rejected, as a whole, with the contempt due to so impracti- cable and absurd a scheme, but which many political inquirers still admire as a work of profound sagacity and extraordinary fertility of combination, themaster piece of its author's construc- tive genius, and which certainly furnished the suggestion of several very important branches of the Constitution actually adopted. At the head was placed a great functionary, callel the Grand CH. XXXII.] CONSULATE — EMPIRE. 355 Elector, or Prodamateur-Electeur , endowed with a revenue of a quarter of a million sterling for his personal expenses and the support of his dignity, having the Palace of Versailles as liis residence, holding his place for life, attended by a body-guard of 3000 men, and wholly irresponsible. He was to represent the nation in its intercourse with Foreign Powers, and to have a deliberating Council of responsible Ministers. In him was vested the whole patronage of all judicial places, from the hum- blest judgeship to the highest, and of all administrative offices, from the mayoralty of small towns to the place of Minister of State. This Grand Functionary, however, was to be wholly incapable of governing, or of doing any one act, or command- ing any one act to be done, beyond the choice of the public servants at home, and the Ambassadors abroad. This peculi- arity it was that made Napoleon, for whom the place was des- tined, ask if they supposed he would submit to hold the position of a fatting pig with a large salary. The Executive Government, thus taken from the Grand Elector, was entrusted to a Council of State and to Ministers. The Legislative power was vested in a Legislative Body, before whom another Body, called the Tribunate, and consisting of Tribunes acting for the people, but holding their office for life, was to argue for or against measures, and before whom the Council of State was also to argue for their own propositions. The sentence of the Legislative Body was to be law, owing its origin to a kind of judicial proceeding, and having the attribute and form of a final decree. Primary Assemblies, in the proportion of one tenth the num- ber of inhabitants, were every two years to prepare parish {com- munaX) lists of candidates, out of which Electoral Colleges were to choose every five years provincial candidates, and from these every ten years national candidates were to be selected, from whom the Grand Elector was to name all functionaries. But these, though not removable by him, were removable by the people omitting them in their periodical lists of candidates. With the Tribunate and the Legislative Body he had nothing whatever to do. The former consisted of the first hundred of the national candidates ; the latter were chosen directly by the Electoral Colleges ; and the initiative of all laws was given to the Tribunate. There was to be a Conservative Senate, act- 356 GOVERNMENT OF FRANCE. [cH. XXXII. ing as a Court of Appeal, or Cassation, from the Legislative Body on any matter brought before it by the Tribunate. The Senators were incapable of holding any office. The Senate had a right to absorb, droit d'' absorption ; it could at any time take into its own body, and thus disqualify from all office, any ambi- tious chief, or popular Tribune, who might appear to endanger the stability of the Constitution. It will presently be seen that, although the distinguishing peculiarity of this plan, the making the chief magistrate a faineant, with extensive patronage and ample revenues, was not at all adopted, the Tribunate and Con- servative Senate, and the renewal of functions by the people, were adopted by the provisions of the Constitution established on the 13th December, 1799. Hitherto we have been examining Revolutionary Constitu- tions, which were either purely and in name Republican, or substantially Republican, under the outward form of monarchy, and the project of Sieyes would have belonged to the former class. But the Constitution of 1799, which we are now about to consider, departed far indeed from the Republican model ; and as soon as the chief magistrate, by a slight change in its arrangements, became invested with his power for life, and was allowed to name a successor, the Government was, to all intents and purposes, a monarchy, and a monarchy approaching to ab- solute. The power of choosing persons eligible to be public function- aries in Arrondissements was given to all citizens of twenty-one years old, and who had resided a year in that district ; they were to choose one tenth of their numbers as persons eligible. The persons thus selected were to choose a tenth of their num- ber, and the union of all the tenths in a Department gave the list from whom were to be taken the functionaries of that De- partment. From this Departmental list a tenth being chosen were to furnish the National functionaries. These elections subsisted for three years, when any names might be omitted, and others substituted. So far we perceive the plan of the Abbe was followed, perhaps in its best and most practical part ; except that the omission gave a power of removal neither con- sistent with good government, nor likely to be exercised with- out intrigue ; and that limiting the choice to a tenth of the inhabitants appears reconcileable to no principle whatever. Cli. XXXII.J CONSULATE — EMPIRE. 357 The chief body in the state was the Conservative Senate of eighty members, holding their places for life, and being each fifty years of age at least. Their numbers were at first sixty, all named by the three Consuls ; and two were to be added yearly for ten years, that there might be eighty in all. They filled up the vacancies in their own body, and made these periodical additions to their numbers from three candidates presented to them by the First Consul, the Tribunate, and the Legislative Body. They were incapable of holding any other office whatever, but each Senator had appointments equal to one-twentieth of those given to the Firsi Consul, or about 1000/. a year. This Senate chose all the national functionaries : the Tribunate, the Legislative Body, the Consuls, the Judges of the Court of Cassation, and an- nulled all acts of the other bodies which were made in violation of the Constitution. The Tribunate consisted of 100 members, the age being twenty- five ; and a fifth went out yearly, but were re-eligible as long as they remained on the national list. Their salary was about 15,000 francs, or about 600Z. The Legislative Body consisted of 300, their age being thirty ; one-fifth went out yearly, and could only be re-elected after a year's retirement. The sittings of this body were four months every year, and oftener if the Executive Government assembled them. Their salary was 10,000 francs, or about 400/. The Tribunate and Legislative Body sat in public, and ad- mitted each 200 strangers. The most extraordinary part of this Constitution was the process of legislation. All laws must be propounded by the Executive Government to the Tribunate, and by them to the Legislative Body — which was confined in its functions to hearing the Tribunate, represented by three of its members, and the Council of State, and could only decide, without the power of debating. It voted by ballot. It may be questioned if the Abbe himself could have surpassed this ar- rangement. The Juges de Paix were chosen by the Electors in each district, and held tlieir places for three years ; their prin- cipal office was to act as Courts of Reconcilement between parties, and to prevent recourse being had to the Courts of Law. There were for each Department a Civil Tribunal and Court of Ap- peal. The Government named all the Judges of these, as well as of the General or Central Court of Error, the Court of Cas- 358 GOVERNMENT OF FRANCE. [CH. XXXII sation ; and the Public Prosecutor attending each Court was the Government's Commissary. Offences were presented by a Grand, and tried by a Petty, Jury sitting with the Judges. At the head of the whole system were placed three great ma- gistrates called Consuls, the First of whom had a salary of 20,^00/. ; the others of 60007. ; and they were appointed for ten years, at the end of which time the First became ex officio a Senator. They were, however, all re-eligible. The First, or Chief Consul, was in reality the Chief magistrate of the Republic, and his powers were ample, extending in every direction through the whole sys- tem of the State. If the Abbe's plan had been adopted in fram- ing the list of candidates for office, and in appointing the aggre- gate bodies who were to administer the legislative power, in all that related to the chief magistrate there was certainly the great- est imaginable departure from it. The First Consul formed a perfect contrast to the Abbe's Proclamateur- Electeur in all but his extensive patronage. He had the sole command and dis- posal of all the forces of the State, being only bound to consult his colleagues, not to follow their advice ; and even without con- sulting them he appointed all the officers of the army and navy. He named all the Judges, except the Juges de Paix ; appointing the Civil and Criminal Judges, except those of the Court of Cas- sation. The Judges, however, were for life or good behaviour. He likewise named the members of the Council of State, and re- moved them at his pleasure. He was bound to name all func- tionaries from the electoral lists. He conducted all negotiations and appointed all Ambassadors, as well as all Ministers of State and other public functionaries, and even the members cf local and of municipal administrations. The two other Consuls were to join him in all acts of Government, except the nomination to office and the disposal of the public force ; but though he was to consult them, they had no power beyond that of recording their dissent, if they differed with him, and their reasons ; like our Indian governors, by an admirable arrangement to secure deli- beration and responsibility without impairing the unity and vigour of the Government, his voice was supreme though he stood alone. \Var, peace, ratification of treaties, the Consuls proposed to the Legislative Body, which decreed them or refused them at its pleasure ; but the Government had the right to re- quire that such questions should be discussed at secret sittings of CII. XXXII.] CONSULATE — EMPIRE. 359 both Tribunate and Legislative Body. The Consuls propounded all laws, and could withdraw their proposition in the course of its discussion before the Tribunate or Legislative Body. They were also entrusted with the general execution of the laws. They had the power of arrest, but must bring to trial within ten days whomsoever they so seized. They had the disposal of the national guard en activite ; but not of the sedentary or police guard. When we consider the power of appointment and removal of all officers, civil and military, thus vested in the First Consul, except the Judges of Cassation, Juges de Paix, and Commission- ers of Accounts, the absolute power over all administrative acts possessed by him, and subject only to the unavailing protest of his subordinate colleagues, the exclusive right which he thus had amongst others of proposing laws, the nomination by him of the Conservative Senators, all but the twenty to be periodically added by themselves, the nomination by his nominees of the whole Tribunate and Legislative Body, over whom the people had no direct control except that of dismissing them at the end of three years, we can have no doubt that the Consul had the entire control of the Government in his own hands, subject only to the slight checks which he might receive from occasional opposition arising in the Senate which he had named directly, or the Tri- bunate and Legislative Body which he had named through the Senate, and subject to the removal of his members and of the members of those bodies by the people at the expiration of three years. But in a short time it was found that these checks, insignificant as they were, gave Napoleon some uneasiness. The sittings of the Tribunate were open, and some of the Tribunes were men of talents and energy. An opposition sprung up in this body, and the people on reading its debates took part with it. All the brilliant victories by which the Consul signaUzed his acces- sion to supreme power, and the continental peace which he was enabled to dictate, and which the infatuation of Mr. Pitt's Go- vernment suffered by refusing to negotiate with him, were not sufficient to silence the discontent of the nation, or to make the people forget the republican times in which they had played a part so diffiirent from that now assigned to them. He thought himself under the necessity of remodelling some material parts 3'^ 560 GOVERNMENT OF FRANCE. [CH. XXXII. of the new Constitution in less than three years after it was esta- blished by the assent of 3,011,007 votes against 1562 dissentients. On the 4th of August, 1802, these changes were promulgated in an organic Senatus- Coiisulte, or decree of the Conservative Senate. The first observation that occurs upon this change is, that there was nothing in the Constitution of 1799 to authorise the Conservative Senate thus changing the Constitution ; its power, on the contrary, was confined to that from which its nam'e was derived, to annulling all acts made against the Constitution placed under its especial protection. We may next observe, that the checks interposed by the elections, the independence of the Senate, and the members of the Tribunate, chiefly attracted the regard and excited the jealousy of Napoleon. To enfeeble these and reinforce his own authority was accordingly the main object of this new law. The system of district elections was made more regular and perfect by appointing Presidents of Assemblies whom the Consul should name, and by dividing each Assembly into sections under Presidents appointed by the Consul's nominees. This, however, did not seem a sufficient security against popular encroachment. All Municipal Councils were henceforth to be composed of 4he persons paying the greatest amount of taxes, a list of 100 of these being prepared by the Minister of Finance, out of which list the municipality must be chosen. One half went out at the end of ten years. The Consul was to name the Juge de Paix from two candidates presented by the Assembly ; and he was absolutely to name all mayors and their adjoints (or substitutes), whose office was to last five years. The Electoral Colleges were appointed for life ; the Consul named their President ; and their members were to be taken from a list of the 600 persons paying the most taxes. The Consul had, moreover, the power of adding ten to the Cantonal and twenty to the Departmental Assembly, making these additions, not periodically, but as he pleased. The Elec- toral Assemblies were strictly prohibited from doing any other than election business, and from holding any correspondence with each other, as in the Directorial Constitution of 1795. The Senate was also new modelled in important particular?. The number of eighty was immediately to be filled up by the Consul proposing three times for each vacancy, and his third proposal was to be binding if the two first should be rejected- CH. XXXIl.] CONSULATE — EMPIRE. 361 He thus at once took the power of naming sixteen Senators. He was also authorized to add from time to time distinguished per- sons of any age, if belonging to the Council of the Legion of Honour ; and he might by his nomination of persons within the age increase the body to 120. Finally, all Senators were now allowed to hold any high offices in the State. It is needless to add, that the Senate intended to protect the Constitution was thus converted into a mere instrument in the First Consul's hands, and accordingly he increased its powers largely by this new Se- natus-Consulte. It could now prorogue or dissolve both the Tri- bunate and the Legislative Body ; prolong the period of arrest by the Government beyond ten days ; annul all judgments in- consistent with the public safety; suspend the functions of juries in any Department ; declare any Department hors la loi, in other words, under military law ; and make any Senatus-Consulte for giving Constitutions to the Colonies, regulating matters not pro- vided for by the Constitution at home, and resolving doubts as to the construction of the Constitution. A majority of two-thirds was required to make any such organic law. The Tribunate was reduced to fifty from eighty members, one half to go out every three years. On the Senate dissolving it, it must be recomposed of entirely new members. The same pro- vision was made as to the Legislative Body. A Minister of Justice was appointed ; he was to preside over the Court of Cassation ; and the Consul, through the Senate, was to name the other members of the Court. The Consul himself was now appointed for life, with the most unlimited power of naming his successor ; and all treaties and alliances were to be made and also ratified by him alone. The name of Emperor was alone now wanting to complete Napoleon's Monarchy ; and in less than two years after the Senatus-Consulte, he assumed that title and changed the form, in part too the substance, of the Constitution by another Senatus- Consulte, made in plain breach of the former, which confined the power of making organic laws to cases that had not been provided for by the original frame of the Government. He was declared Emperor of the French, and the Imperial Crown was made hereditary in his family, to the exclusion of females. His family were raised to the rank of Princes and Princesses, and his authority was extended over their marriages, 362 GOVERNMENT OF FRANCE. [CH. XXXII. and to making statutes for governing the Imperial family. The Princes were made Senators. The Civil List of the King, settled in 1790, was transferred to the Emperor and his family. He was also authorized to name a Regent in case of his sue- cessor's infancy or incapability. A Body of Nobles was formed, consisting of Grand Dignitaries officially, as Grand Admiral, Constable, Archchancellor, &c., all having seats in the Senate, where also the Princes sat, beside the eighty presented by the Emperor out of the Electoral Lists, and such persons as he chose to raise to that rank. The Senate could reject a law proposed by the Legislative Body, but the Emperor had not only a veto, he could adopt and pass a law rejected by the Senate. The Tribunate was divided into three sections, for Legislation, Police, and Finance, and could no longer discuss any laws in a General Assembly of its whole body. The nomi- nation of President was vested in the Emperor on a list of three presented by the Tribunate voting secretly. The Tribunes were to continue only ten years in office, and one half were to retire every five years. Notwithstanding all these fetters im- posed on the Tribunate it was still found unruly, and in 1807 a Senatus-Consulte, as illegal as the two former of 1802 and 1804, finally abolished it, leaving the Emperor altogether absolute. In April 1815, after his extraordinary return from Elba, he proclaimed a new Constitution of a limited Monarchy and much more popular form. The Legislative power was vested in two Chambers, one of Peers, being the Imperial Princes and others who were to be named by the Crown without limit of numbers and hereditary, the other a House of 629 Representatives chosen by the people, sitting for five years, but re-eligible, the elections being had according to the organization of 1802. All direct taxes were to be yearly voted ; though the indirect might be granted for a longer time ; and all levy of money or contracting of loans without the sanction of a law was prohibited. These propositions must likewise proceed from the Chamber of Deputies. The power of proposing laws was left to the Em- peror ; but either Chamber might discuss a subject not pro- pounded by him, and address him to propose whatever it desired. The Chambers too might alter and amend as well as reject his propositions. The Ministers must sign every act of CH. XXXII.] CONSULATE — EMPIRE. 363 the Government, and were made responsible. The power of impeachment was vested in the Deputies ; the trial of the charge in the 'Peers. All ministers and other office-bearers might sit in either Chamber, if elected to the one or created Peers in the other. Both Chambers must sit in public, and all judicial pro- ceedings must likewise be in open court. The right of printing and publishing with the author's name was declared to be absolute, all censorship abolished in such cases, and the only- responsibility confined to trial by Jury after publication. It is easy to see that this close copy of the English Constitu- tion was the fruit of Napoleon's peculiar position, surrounded with perils so vast as to baffle even his transcendent genius. Had he given his people such a form of Government ten years before, he, or his family, might still have filled the throne of France, and a deluge of blood have been spared. ( 364 ) [cu. XXXIII CHAPTER XXXIII. GOVERNMENT OF FRANCE. RESTORATION — EXISTING CONSTITUTION. Kestoration — Charte — King's Prerogative — Chamber of Peers — Chamber of Depu- ties— Powers and Proceedings of the Chambers — Ministers — Judicial System — Fraudulent manner of giving the Charte — Revolution of 1830 — Changes in the Constitution — Compared with that of England — Evils of Peerage for life — Want of a real Aristocracy — Distribution of Property — National Guard — Resistance the foundation of the Constitution. When the arms of the Allied Powers, with the powerful aid of their best ally, the boundless and unprincipled ambition of their great enemy, had trampled over the genius and the fortune of Napoleon, the Bourbon family was restored, and a Constitution was given to France modelled upon that of England. Its pro- visions were contained in an instrument called the Constitutional Charter {Charte Constitutionnelle), which was published 4th June, 1814. It contains the description of the Government still existing. This charter set out with declaring the rights of Frenchmen, as all equal in the sight of the law, their capacity to hold all offices civil and military, their liability to contribute to the public service in like proportion to their means, freedom from arrest and punishment except by legal process, right ^ to print and publish their opinions only subject to the punishments denounced by the law for slander or sedition and the abuse of the press, the right to possess their property, including the National Domains, only liable to such seizure as the public necessities may require, and upon suitable compensation. The Catholic rehgion is declared that of the state, but all religions ^are equally tolerated, and the National and other Christian Priests of all sects are entitled to public support. All inquiry CH. XXXIII.] TWO CHAMBERS. 365 as to former opinions or conduct during the revolution is ex- pressly forbidden, and the Conscription is abolished. In the King is vested the command and disposal of the public force, the power to make war and peace and negotiate treaties, the nomination to all places of public trust, and the making regulations for the execution of the law^s. He alone propounds laws, but the Legislative Chambers may address him to propose any measure after discussing it in Secret Committee. Taxes can only be originated in the Lower House or Chamber of Deputies. If both agree the address is laid before the King, and if he rejects it the same thing cannot be asked for the remainder of the Session. The King alone can call, prorogue, and dissolve the two Chambers. The Chamber of Peers is formed by the King's nomination, and the Peerage is hereditary.* The Princes are Peers by right of birth, but they can only sit by virtue of the King's writ each Session. The sittings of the Peers are secret, unless for the trial of crimes against the public safety. The Peers can only be arrested or tried by order of their own Chamber. The Deputies are chosen for five years, one fifth retiring yearly ; and the payment of 1000 francs in taxes, and the age of forty, is required for them, unless fifty persons paying 1000 francs (40/.) cannot be found in any Department. Electors must be thirty years old and pay 300 francs (12/.). They vote by ballot, and they choose the Deputies by direct and immediate election. Half the Deputies chosen must reside within the District which elects them. The President is named by the King from a list of five presented by the Chamber.! The sittings of the Deputies are public ; but five members may demand a private sitting. All taxes must be ordered by a law to which the King and both Chambers have assented. All land-taxes must be yearly ; others may be imposed for several years. The Chambers must be convoked by the King once a year, and if that of the Deputies be dissolved it must be re-assembled within * This was afterwards changed, in 1830— as was the secrecy of the Chambers' sittings. t The Chamber now chooses its President directly ; the King having, as with Us, a nominal right of approval or rejection. 366 GOVERNMENT OF FRANCE. [CH. XXXIII. three months. No deputy can be arrested unless taken in the actual commission of some crime, or be seized by consent of the Chamber. No address to either Chamber can be made at the bar, or otherwise than by petition. The number of the Depu- ties was in 1816 fixed at 250, in 1820 it was reduced to 172. The Ministers are responsible for all acts to which they agree, or which they countersign or execute. They may have seats in either Chamber, and, though not members, they may attend to explain and defend their conduct. The Judges are all named by the King, and are irremovable except the Juges de Paix. No special courts can be created for the trial of any offence. All trials must be public unless the Court shall, by a judgment, declare the publicity to be danger- ous to the State or hurtful to morals. The right of pardon be- longs to the King. The Codes of Napoleon are preserved as the laws of the realm. The Court of Cassation is also continued. The Charter further guaranteed the public debt, and declared all engagements of the State to be inviolable. The titles of all the ancient as well as new nobility were preserved, and the Legion of Honour was also maintained. Upon this Constitution various reflections suggest themselves ; and first, upon its origin in 1814. The immediate or proxi- mate cause of its adoption is studiously concealed in the very false preamble with which the King, Louis XVIIL, restored to the throne by the allied arms, prefaced the Charter of June 1814. He makes no mention of the important transactions which had taken place on the 1st of April, and during the following days, when the Senate, assembling under a frank confession of the Russian Emperor, that " France could no longer be governed without a Constitution," voluntarily recalled the Bourbons, pro- vided they would accept the Constitutional Charter which had been prepared and adopted, framed upon the principles of the Constitution of 1791, and indeed of the English Government. The Count d'Artois, on whom the Senate had conferred the title of Lieutenant -General of the realm, had engaged for his august brother that he should recognise the fundamental principles of that Constitution. On the 2nd of May the King himself pub- lished his Proclamation, in which he declares that he is restored by the love of his subjects to the throne of his ancestors ; that he CH. XXXIII.] FRAUDULENT GRANT OF THE CHARTER. 367 approves all the principles of the Constitution submitted to him bv the Senate, and prepared in some haste. He enumerates those prniciples, and promises to have a Charter more delibe- rately framed upon them as its foundation. But on the 4th of June he proceeds to promulgate the promised Charter ; and he now omits all mention of the share in his restoration which he had a month before ascribed with gratitude to the French people ; he only acknowledges Divine Providence as the cause of his recall ; he affirms that all power and authority in France has ever resided in the Sovereign, but yet that his predecessors had from time to time moderated or modified (modifie) its exer- cise according to circumstances. He cites as precedents for his exercising the same bounty, the examples of Louis le Gros 'giving Charters to the towns, St. Louis and Philip le Bel having con- ferred and extended municipal rights, Louis XL and others having improved the judicial system, and Louis XIV. having regulated all branches of the administration by ordinances, " the wisdom of which had never been surpassed." He then proceeds to state that the spirit of the age and the great changes which half a century had produced (thus carefully going back to the reign of Louis XV. instead of Louis XVI.) rendered it natural for his people to desire a Constitution, which he had resolved to grant them, after " the example of the Kings, his predecessors ;" and after mentioning that the most enlightened men had, with his Commissioners, worked at the preparation of a Charter, he declares the grounds on which he grants it. " It is in the French character," he says, " and in the venerable monuments of past ages, that he has sought the principles of his Charter." The re- establishment of the Peerage, " a truly national institution," he has found of course in these monuments of the past ; but he has also, he adds, substituted the Chamber of Deputies " for the an- cient assemblies of the Champs de Mars and de Mai," and for those Chambers of the Tiers Etat which " have so often proved their fidelity and their respect for the Royal authority." But his Majesty is pleased to preserve a profound silence as to the States- General, and also as to the Constitutions of 1791 and 1795, from which the Chamber^ of Deputies is plainly taken. As little does he make any allusion to the Charter drawn by the Senate a few weeks before, and of which he had distinctly admitted all the PART III. 2 B 368 GOVERNMENT OF FRANCE. [CH. XXXIII. principles, though it certainly came as near the new plan as the monuments of antiquity were remote from it. After this false and hypocritical preamble, he proceeds to give the Charter in these words of grant : — " We have voluntarily, by the free exer- cise of our Royal authority, granted, and do hereby grant and make concession and free gift {concession et octroi) to our subjects, as well for ourselves as for our successors for ever, of the follow- ing Constitutional Charter." This treacherous and foolish proceeding, as well as the con- duct of the restored Government towards the illustrious men of the Revolution and the Empire, prevented the restored family from obtaining any place in the affections of the people, or com- manding their confidence ; and enabled Napoleon, as soon as the calamities which he had brought upon the country were some- what forgotten, to march through France with a handful of men and replace himself on the throne. New confederacies of the Continental Powers, and a prodigious victory won under the pressure of the most disadvantageous circumstances* by the most illustrious Captain, and one of the most distinguished Statesmen, of the age, at once overthrew Napoleon, and again restored the Bourbon Family. Their fresh experience had not added to their stock of either honesty or wisdom ; and after a series of outrages upon the feelings of the country, the last of their legitimate Princes put himself in the hands of bigoted priests and weak lay fanatics, possessing neither courage nor capacity, but supplying the place of the one by blind rashness, of the other by monkish zeal, and was met by the resistance of the gallant people whom he and his infatuated advisers thought they might safely oppress. A new Revolution took place, and the people having expelled the reigning branch of the Royal Family, called to the Throne the great Prince to whose firmness and genius for affairs the tranquillity of France and the peace of Europe owe a debt of gratitude that can never be repaid. The Charter, violated by Charles, was restored to its full vigour ; some changes were made in the Constitution, of which the chief are, that the Peerage is no longer hereditary, that the sittings of both Chambers are alike public, and that some * His famous array of the Peninsula, that army of which he so feelingly said in his evidence heforo the Commission upon Blilitary Punishments that he used to think he cou\d with it have done anything, was no longer under their great leader, but serving in North America. CH. XXXIII.] CONSTITUTIONS OF FRANCE AND ENGLAND. 369 further restraints and regulations have been imposed in conse- quence of the plots and attempts at assassinating the Sovereign.* But France now possesses a free Constitution, upon which a few further remarks occur. 1. In outward form, the principal difference between the French and English Constitutions is the Peerage in the former being for life only. Whatever reasons may be urged for adopt- ing this plan after the Revolution of 1830, it must be regarded with disapprobation and regret. The dependence of the Upper Chamber upon the Crown is thus rendered complete. All who would transmit their honours to their family (and who is without this desire ?) must adapt their public conduct to the wishes of the (^ourt, seeking the favour not so much of this or that admi- nistration, as of the Sovereign and his family. The Chamber which, should, above all, act as a balance and regulator of the machine's movement, becomes incapable of performing this office ; it becomes the ally of one of the other branches of the system, and can no longer act as the impartial arbiter between the two. Besides, the necessary deficiency in personal weight of the Aris- tocracy in France, from the poverty of its members, makes it the more necessary to uphold the importance of their body by all fair means. Even the far more powerful body of the English Lords would suffer materially were their honours and privileges personal and not hereditary. 2. But the great and leading distinction between the two sys- tems of England and France is to be found more in the state of society, and especially the distribution of property, than in the letter of the constitutional laws. The English Peers are the great territorial potentates, the landed grandees of the country, joined with the heads of the law and the ornaments of the military and naval professions. The Natural unites with the Political Aris- tocracy to endow and illustrate our Upper House. All its mem- bers are either distinguished for ample wealth, or for wealth united with celebrity and personal acquirements ; and many of * Resembling our Revolution in so many other respects, in this unJiappily it ex- ceeds the same famous precedent, that more assassination-plots were for some years hatched in France against Louis Philippe than there had been against William III. r and rigorous measures of a temporary nature became necessary in France, in like manner as with us the Parliament had been for a similar reason, though of less urgency, compelled to suspend the Habeas Corpus Act more than once soon after the Revolution. 2 b2 370 GOVERNMENT OF FRANCE. [CH. XXXIII. them count a long line of illustrious ancestors, from whom they draw their honours with their estates, whose places they fill, whose names they bear. In France it is far otherwise ; and the great influence of the Aristocracy, with us so powerful, is there almost altogether wanting. The Chamber of Peers is thus a place of able and enlightened debate, but it is little more. It has little weight with the country beyond what the value of its dis- cussions may give it ; and the importance of its assent or dissent on any occasion is grievously impaired by the arrangement last mentioned, which so intimately connects it with the Crown. 3. The want of adequate fortune to support the dignity and maintain the influence of the Peerage is partly the result of the Revolution, and of the destruction which it wrought of noble families, partly the fruit of that law to which the great majority of the French people are so much attached — the law securing the equal distribution of landed property. As no person, having children, can without the Royal assent create an entail {majorat)^ and as this is very rarely granted, an equal division of his estates takes place on the decease of every landowner, and the distribu- tion of the whole lands in the country among a prodigious and daily increasing number of proprietors is the unavoidable conse- quence. Not only does this prevent the greatest produce being obtained from the land by the most improved system of hus- bandry, but it creates a vast mass of small landholders, and it pre- vents the formation of a territorial Aristocracy. The result <^f this system is, that there can hardly be said to exist any Aristo- cracy in France. There are two Chambers, one dependent upon the people, the other allied to tlie Sovereign ; but there are, pro- perly speaking, only two substantive powers in the State, the Crown and the Commonalty. A great shield is thus removed from the Prince, useful for his protection, and a check is removed from the people requisite for their control. The chances of a collision be- tween the two are greatly multiplied, and the risk of that colli- sion oversetting the political machine is manifestly increased. 4. The National Guard is a great security both to the Throne and to popular rights. All citizens within the age must serve in it, without any distinction of rank or any power of appearing by substitute. The great force thus placed at the Sovereign's dis- posal, for the purposes of police and the weakening of the ranks of the disaflfected, contributes prodigiously to the public security ; CH. XXXIII.] THE CONSTITUTION FOUNDED ON RESISTANCE. 371 while the vast numbers of armed citizens form an impregnable bulwark to the liberties of the subject. The letting this great body, however, choose its own officers appears to be an ano- maly in the system, and is certainly inconsistent with the prin- ciple which recognizes the King as absolute disposer and com- mander of the public force. It is a practice, nevertheless, to which the attachment of the French people appears universal. 5. But it must be kept in mind that one of the most valuable peculiarities of our mixed Government is fully possessed by that of France. The Constitution, like our own, is the undoubted result of Resistance. The Charter of 1814 was, like the Restoration, in part the work of foreign armies, and it only partially partook of the po- pular principle ; it was but in part the creature of the popular will. Men might doubt whether it was not in reality given by the grace and favour of the Prince, as it was in name proclaimed to be his free grant, without any claim of right being acknowledged in the people. About the origin of the settlement of 1830 there can be no doubt at all ; it was altogether the work of the people's own hands ; they had risen on the Royal Family, and expelled its reigning branch ; they had, like ourselves, freely chosen an- other branch to succeed. They therefore from thenceforth held their Constitution by the title by which we hold ours — the resist- ance, in fact, made by those who enjoy it of right, and the exer- cise of the people's prerogative to choose their rulers when those who are clothed with supreme power have abused their sacred trust. ( 372 ) [cH. XXXIV. CHAPTER XXXIV. CONSTITUTION OF HOLLAND AND BELGIUM. Early History — Government always limited — Cause of this — Burgundian Princes— Progress of the Principality — Charles V. — Constitution before and after his reign — Recognised principles — Annexation to the Empire — Philip II. — Revolt and establishment of the United Provinces — Glory of the Netherlanders — Orange family — Stadtholder — Democratic spirit — Attempted revolution — Prussian inter- ference— Dutch shamefully subdued — Executive power; Stadtholder— Deputies — States-General ; their constitution and proceedings — Council of State — Grand Pensionary — Provincial Constitutions — Details — Principle of Delegation per- vaded the system — Its evils — French Conquest — Federal Government — Consti- tution of 1798 — Constitution of 1801 — Regency of Twelve — Legislative Body — Councils of Administration — Judicial System— Change in 1805; Grand Pen- sionary— Kingdom instead — Changes — Union with France — Existing Constitution of 1814 — Revolution of 1830 — Differences from English Constitution — Succession to the Crown — Restrictions in Royal Family — Regency — Additional Prerogative as to Colonies ; Judges ; Dispensing Power — Restrictions as to Pardons ; Terri- torial Cession; Council — Chambers — Election of Deputies — Powers and Pro_ ceedings — Provincial States — Judicial System- Alterations in the Constitution — • Vicious Constitution of the Upper Chamber. The whole of the territory denominated the Low Countries, that vast triangular tract which lies between Germany and France, was conquered by Charlemagne, and distributed under a Duke of Friesland among a number of Counts, whose office was first that of Military Governor, and held during pleasure, and who afterwards, as in all the other Feudal Kingdoms, obtained a pro- prietary possession of their Principalities. By degrees the Dukes of Friesland disappeared, and there were only left the Counts, whose numbers were gradually reduced by alliances and inter- marriages ; so that at the end of the eighth century there ap- pears to have remained only one ; but the title of Earl of Hol- land is first met with in the eleventh century, about the year 1064, in the time of the Emperor Henry IV. The Count's power was not extensive ; the people were more independent than in any other portion of the Empire ; and in very early times the towns sent Deputies to meet the Nobles and Clergy in Par- liament, or States-General. There is an example in 1203 of a Countess of Friesland being deposed for marrying without the consent of the States ; she was the twelfth sovereign m success sion who had governed the country. It was customary for those t,H. XXXIV.] HISTORY OF THE NETHERLANDS. 373 Princes on their accession to grant Charters, conferring new pri- vileges or other favours on their towns, as if there had been an election, or at least a popular confirmation of their title. The Barons, however, had no superiority over their other vassals, and the land appears in a great part of the country to have been allodial, like that of Norway and our own Orkney Islands. The important peculiarities in the situation of the Netherlands may be traced to the circumstance of the Barbarians, when they over- ran the Roman Empire, having gone almost all onward to the more fertile plains and milder climate of the south, so that com- paratively few remained in the northern districts. The whole of this territory came gradually under the dominion of the Dukes of Burgundy, a principality originally extending over Switzerland, Savoy, part of Provence and of Dauphiny, but after- wards reduced within narrower limits. Early in the fifteenth cen- tury, however, the Dukes obtained Brabant. On the death of the Countess Jaqueline in 1436, Philip the Fair obtained Namur, Holland, Friesland, and Zealand ; and in 1451, Luxembourg. He was a Prince of rare merit and virtue ; and the value set in all after times on the Order of the Golden Fleece founded by him, seems a testimony to the respect in which his memory was held. His son, Charles the Rash, added the Brisgau and Alsace, but lost Switzerland by the resistance of the people and the famous battle of Morat. His daughter married Maximilian of Austria, who, having by marriage acquired Arragon, Castile, and Leon, the kingdoms of Joanna, mother of Charles V., left them, with the seventeen provinces of the Low Countries, to that celebrated Monarch. He succeeded in uniting them into one principality, and declaring it hereditary after a long struggle with the States of the diflferent provinces ; nor w^as it till 1549, at the latter part of his reign, that he finally prevailed over the whole seventeen. His large possessions in Spain, Italy, and the Indies, enabled him to render himself thus the master of three dominions for- merly independent, according to the principles so often explained in treating of the Imperfect or Improper Federal Union (Part i. Chap. xv). His sway over this part of his dominions was, how- ever, far from harsh. A native of the Low Countries, where he received his early education, and attached to this his hereditary principality, he ruled them with a far more kindly and paternal hand than the rest of his dominions. The Sovereign united in his own person the character and the 374 CONSTITUTION OF HOLLAND AND BELGIUM. [CH. XXXIV. titles of the various sov^ereignties which were thus blended into one. He was Count of Holland, Marquess of Antwerp, Duke of Brabant, Lord of Utrecht. Each of the Seventeen Principalities had States of its own, composed variously ; for in one the No- bles preponderated, in another the Town Deputies ; in one the Clergy had no Deputies, in some they had so few as to possess little or no weight. But the general frame of Government was the same — a Sovereign with a Representative Assembly, which he convoked when he pleased, and which was rather his Council to aid him with information and advice, than a rival body to control his operations of peace or war. But this was rather the altered and mutilated Constitution which Charles succeeded in imposing upon the Netherlands, than their ancient and limited form of government ; noi could it ever be regarded by them as other than a new and tyrannical system of policy. The States had always before his time claimed and enjoyed extensive and important privileges; and we need only look at their conduct in the preceding century to be con- vinced that a free government was established among them before the reign of the Emperor Charles. There had been frequent instances of resistance to the Prince. Thus Maximilian, guar- dian of the infant Philip, having invaded the privileges of the towns, the States rose against him and made him prisoner, " for the security, as they declared, of themselves, and in the name of all the States of Flanders." They acted in this with all possible courtesy, using the most respectful and even humble language, and proceeding with their heads uncovered ; but they put some of his ministers to death, others they banished ; and they assem- bled a general meeting of their body at Ghent, where forty-seven articles of impeachment were brought forward against him. One of the charges was his making war against France without the con- sent of the States, who had equally with him sworn to maintain the peace ; another was his having levied taxes of his own autho- rity, which the Prince himself could not impose, much less the guardian ; a third was for not suffering the States to assemble when they thought fit. Maximilian was only set at liberty on his giving an engagement to redress all their grievances. In fact the recognized principles of the Netherland Constitu- tion before Charles V., perhaps we niight say before Philip IL, vvore these : that the States had the power of assembling as they pleased ; that none but natives could hold any public office ; that CH. XXXIV.] UNITED PROVINCES ESTABLISHED. 375 no war either offensive or defensive could be proclaimed without the consent of the States ; that the King could not marry with- out this consent ; finally, that no money could be levied which they had not granted. The grant of supplies was on the Count's application by petition to the State called Bedens (begging). These were the principles of this free government ; but they were often violated by the Burgundian Sovereigns. In the reign of feeble Princes the states and the towns extended their privileges and immunities ; in more vigorous reigns these were abridged, or more frequently, without formal abrogation, they were dis- regarded and violated. In 1548 Charles, with consent of the States, and by a treaty with the Empire, formed the whole provinces into a circle called that of Burgundy ; having Deputies to represent it in the Diet, enjoying the same privileges with the Austrian circle ; and with an exemption from all taxes except to furnish as many men and as much money as two electorates, and as many as three in wars against the Turks. In the reign of Philip IL, Charles's successor, the tyranny, civil and religious, of that bigoted Prince and his cruel Vice-Roy the Duke of Alva, above all their inexorable determination to promote the glory of God by means of the Holy Inquisition, occasioned a revolt, which ended in the severance of the seven Northern Pro- vinces, and their establishing a Federal Republic. This great event, one of the most important in the history of mankind, took place in the year 1579, after a long, painful, and glorious struggle, attended for many years with various fortune, and illustrated by the display of extraordinary capacity and courage in the Dutch captains, as well as indomitable constancy and perseverance in the people. The great struggle was made under the guidance of William I. Prince of Orange, a small principality in Provence, obtained by the Nassau family through marriage and treaty with France about the beginning of the sixteenth century. He had been chosen Stadtholder, or Governor, by the States of some Provinces, on their resistance to Alva, Philip's Lieutenant ; and, as they in- tended only to resist the Vice-Roy and not the Sovereign, the title given to him was " Stadtholder of the King." For many generations the office, though elective, descended in the Nassau or Orange family ; and it only became hereditary in the year 1747. 376 CONSTITUTION OF HOLLAND AND BELGIUM. [CH. XXXIV. With the office was joined the command of all the forces ; the Stadtholder was General and High Admiral. In 1785, how- ever, a strong republican spirit, first drawn forth under Maurice's reign in the sixteenth century, and which had never been extin- guished, burst out again and pervaded the Seven Provinces, and this was greatly aided by the step of arming the burghers ; which had been adopted towards the end of the American war, when the United Provinces joined France against England. The people, who had never dreamt of taking any share in the Go- vernment, resigning almost everywhere the whole administration into the hands of aristocratic and self-elected municipalities, now awoke to a sense of their own importance, and in many of the towns democratic constitutions were formed. Of these Utrecht was the leader, and its example was followed by many others ; while in many the aristocratic authority and scheme kept the ascendant. The Province of Holland was, by a majority of its functionaries and inhabitants, ranged on the same side. In 1786 matters were pushed to extremities ; the military command was taken from the Stadtholder, and his body-guard disban led. The States of Holland even proceeded to depose him in Septem- ber of that year, and arrested the Princess for some days. This brought on a crisis ; and though the French Court sided with the republican party, the Princess, a daughter of Frederic IL, and a woman of talent and courage, appealed to her brother now on the throne of Prussia for assistance, with the help and coun- tenance of England. Of the Seven Provinces the Prince had the support of four, a bare majority ; and the other three in- cluded Holland, which pays above half the whole taxes of the Federacy ; the four which joined the Stadtholder paying only one-third among them. A Prussian force of 25,000 men, under the Duke of Brunswick, soon terminated this struggle. The terms proposed by Amsterdam were rejected ; the army entered the capital ; the rest of the province submitted shamefully after threatening resistance, and vapouring about the removal of the Commonwealth to India, and the renewal of the scenes in which, first against Philip, afterwards, in tlie last century, against Louis XIV., the Dutch (but the Duich of other days) had gained such imperishable renown, exhibiting to the admiration of mankind a glorious proof that commercial greatness does not always under- mine the patriotism of a nation. CH. XXXIV.] STADTHOLDER STATES-GENERAL. 377 By the Dutch Constitution the Stadtholder had both the whole military power in his hands and possessed an overwhelming in- fluence over the deliberations of the States ; but in outward ap- pearance they and not he ruled. Though he had the right to propose anything to them, he had not even a chair allotted dif- ferent from those in which the Deputies sate. As soon as he had stated his proposition he was obliged to retire while the States deliberated upon it. He presided over most of the civil as well as all the military departments, named many of the mu- nicipal officers in the towns, and derived great influence from being the Governor of both the East India and West India Com- panies. The Deputies were chosen for life, except those for Zealand, who were appointed some for three, some for six years, and all were removable at any time when difi'ering with their consti- tuents. The whole assembly consisted of about fifty, of whom Holland sent six or seven, Guelderland nineteen, Zealand four, Friesland five, Oberyssel five, Groningen six. But whatever number of Deputies any province sent, it had only one vote : there were but seven votes in the whole body. Upon all ordi- nary questions a bare majority of the seven votes decided : but on all matters touching the " Essence of the Federacy," as it was termed, — war, alliances, taxation, the rights of each state,- — the whole must be unanimous. In short the Union was a con- ference of independent states acting together under a Treaty, and any innovation upon the terms of that treaty, or any im- portant matter affecting their general interests, must be assented to by each and by all. The Provinces presided week and week about, the first deputy of each taking the chair in his turn. The Council of State was composed of twelve Deputies ; Holland sending three, the others, some one and some two each. Its office was to execute the orders of the States-General, and the Stadtholder presided over it. The Grand Pensionary was chosen by the States of Holland and Friesland for five years ; but he was re-eligible, and he generally kept his office for life. He was the Counsellor of the States, in matters of law especially, and carried on the negotiations with foreign powers. He also kept the records of the Confederacy. The different states con- tributed to the Federal charges in fixed proportions : Holland 58 per cent., Zealand 9, Utrecht 5, Friesland 11, Oberyssel 3, 378 CONSTITUTION OF HOLLAND AND BELGIUM. [CH. XXXIV. Groningen 5, and Guelderland 5. The population of Holland is about two-fifths of the whole, or one million in two and a half millions. There were material differences in the Provincial Constitu- tions, but a general resemblance pervaded them all in the more important points. As the States-General represented by depu- tation the different Provinces, so the Provincial States repre- sented the towns of each Province. In all these there w^as a representative body ; and in each the government of the towns whereof the State consisted belonged to the Nobles and the Magistrates of those towns. The inhabitants of each town were divided into guilds of arts and trades, with deacons {Dekken) at the head of each ; in general each guild inhabited its own quarter of the town, with two Wykins to keep the arms in order ; and over all the guilds of every town was a Hoofdman^ or Captain of the Burgher guard. There were frequent mus- ters and drills. The domain of each town extended some dis- tance into the adjoining country, the rest of which was subject to the Nobles who possessed the low jurisdiction, and some- times the high also (Part i. Chap, xiii.), and were exempt from paying direct taxes, but bound to serve in person, or by sub- stitute. As originally the provinces were under the Counts, the chief Nobles formed a Council to assist the Count, and to exa- mine judicial sentences, except in the towns where the Charter excluded this appeal. In Holland there were two bodies, the Nobles, or Equestrian order, and the order of the Towns, or Burghers. Only the eighteen great towns sent deputies to this assembly, as Amsterdam, Dordrecht, Haarlem, Delft, Leyden, and Gouda ; before 1545 the smaller towns were also sum- moned. Whatever number of Deputies any town sent, the whole had but one vote. Tlie Chamber of Nobles formed one body ; the number of Deputies chosen to it varied, but gene- rally it was ten, and the whole qrder had but one vote. The States were always convened on a specific occasion for a spe- cified purpose. If anything new was tabled there must be an adjournment, in order to obtain fresh instructions ; so must there if any town was not represented, or the Nobles did not appear by deputy. The principal oticers of state were the Registers and the Pensionary, who prepared the measures to be discussed, and CH. XXXIV.] PROVINCIAL GOVERNMENTS DELEGATES. 379 kept the records. He was allowed to debate, and had great in- fluence, but no vote. The nobles always chose the same Pen- sionary with the towns. In some Provinces there were more bodies of States than one. Thus Friesland had three divisions, each having States. These divisions were distributed into Bailliages, twenty-eight in number, and each sent two deputies to the States, and each town two also. The Deputies of the Bailliages were chiefly Nobles. The Count had a Council in each Province, called the broed- schappe, or council of wise men, which used in former times to deliberate on great aflTairs, but latterly only chose the inferior officers of the County. In some districts the choice of Coun- cillors w^as vested in the inhabitants having a certain property, called the Rykdom, or wealth ; thus in Hoorn, the most popu- larly constituted, every person having a fortune of 250 nobles voted. The election was in general of a complicated form, into which the Ballot entered. In some places the Council was a close body. Dordrecht was the most aristocratic, as Hoorn was the most popular government. There the Council was com- posed of forty persons, who held their places for life, and filled up the vacancies as they occun^ed in their own body. The Se- nate consisted of a Burgo-Master, nine Echevins (Sherifls), and five Rads (Councillors). The leading feature of the old Dutch Constitution was Dele- gation. Each Deputy to the States-General, or rather each Commission, each detachment of deputies from any of the Seven Provinces, was not the representative sent to consult for the good of the whole Union, but the Delegate instructed to treat for the Province which sent the mission, the agent to give, according to the instructions of the principal, that principal's assent or dissent upon each question propounded in the Assembly of the States. In the Provincial States it was exactly the same rule ; each town was a commonwealth within itself, so far independent that it sent a person or persons to give its vote, not to confer with the Deputies of the other towns upon the general interests of the Province. Hence no councils upon any affair of general importance could be adopted in the States-General while one of the Provinces withheld its assent ; and no measure affecting the Province could be adopted in the Provincial Estates if each 380 CONSTITUTION OF HOLLAND AND BELGIUM. [ciI. XXXIV- town did not concur. The liberum veto prevailed in the United Provinces as much as in the Polish Diet ; only that it was worse in the Diet, because those who exercised it were not deputies, but persons sitting in their own right, and each individual's assent became, therefore, necessary. But the principle was equally bad ; it was mere delegation, not representation. In 1795 the intrigues and the arms of France overthrew the Stadtholder, and established the Batavian Republic. Early in 1798, after many attempts to place the government upon the model of the French, the executive power was vested in a Directory of five, who, with a legislative body of two Chambers, governed the republic — all Federal Government being entirely destroyed. It was the obstinacy with which the people clung to the Federal scheme that rendered the establishment of this new constitution so difficult. That scheme is well adapted to gain the affections of the unreflecting multitude, and also oi their selfish leaders; for it secures to each place a substantive weight and influence, and to each party chief a personal autho- rity in the general administration of affairs. It may, however, safely be pronounced to be a system of policy eminently incon- sistent with the best interests of the community, and indeed wholly repugnant to the very first principles of the social union. It is not worth while to detail the arrangements of the Con- stitution of 1798, because it only lasted until Napoleon's power was sufficiently established by the victories at Marengo and Hohenlinden, and the peace with Germany that followed those marvellous events. In 1801 he succeeded in establishing a new form of Government, that is, a form new in its details, but founded on the same principles as that of 1798. It was not, however, easily or immediately that this new Constitution was imposed. The Legislative Body, by a narrow majority, rejected it when proposed by the Executive Directory ; but an appeal to the people at large having been at the same time made, it was found that 416,419 votes were registered in favour of the pro- position, and only 52,219 against it. Hereupon the Directory shut up the two Chambers, and forthwith proclaimed the Con- stitution. The executive power was vested in a Regency of twelve ; the first choice of whom was made by the old Directory naming CH. XXXIV.] CONSTITUTION OF 1801. 381 seven, and these seven naming five. Each year one of the twelve retired, and his place was supplied by the Departments or Provinces in rotation naming four persons, from whom the Regents chose two, and of these the Legislative Body chose one. The Regents had the disposal of the forces, naval and military, and the choice of their commanders, but none of them- selves could be commander-in-chief. They had the conduct of all negotiations, and the appointment of ambassadors ; but war could only be declared with consent of the Legislative Body. They had the appointment of the Ministers, but the other function- aries were named by them from lists of candidates provided by the Departments, the Regents having, however, the power of requiring new lists if they rejected the whole names presented. The Departments of Administration appointed the subordinate ofiicers. The Regents alone could propose laws to the Legisla- tive Body. To be a Regent a person must be thirty-five years of age, and the salary of each was 1000/. a-year. They presided each three months in rotation. The Legislative Body was composed of thirty-five members, the first thirty-five being named by the Government, and a third went out every year. The qualification was being thirty years old, being a natural born subject, and having lived six years in Holland. The elections were made by Primary Assemblies, the active citizens having votes, that is, such as had attained the age of twenty-one, resided one year if a native, six if a foreigner, was able to read and write, and had a certain moderate amount of property. The Legislature met of itself thrice a-year, and had extraordinary meetings when convoked by the Regents. All taxes must have the direct sanction of the Legislature. But it was a singular regulation of this Constitution, borrowed from that of France, that the discussion of all the legislative measures presented to it was carried on, not by the Legislative Body at large, but by a Committee of twelve chosen by them each Ses- sion. The whole body then voted upon the Committee's Report without debate. The administration was distributed among a number of Coun- cils, under the Regents. Thus there was a Council of Com- merce ; one of nine members for the East Lidian, and one of five for the West Indian possessions of the Republic ; a Council of Marine, of seven members. These four Councils were ap- 382 CONSTITUTION OF HOLLAND AND BELGIUM. [CH. XXXIV. pointed by the Regents. The Chamber of Accounts consisted of nine members, and these were appointed by the Legislative Body. The Supreme Tribunal for the whole Republic was composed of nine members (the favourite Dutch number), chosen by five of the Leoislative Body and five of the Regents. The members of this Higher Court held their places for life. The original jurisdiction of the Court was in all proceedings against members of the Legislature or the Government, and in all causes in which the State was a party. Its appellate jurisdiction extended over all the inferior Tribunals, whose decisions it could set aside for error in law, as a Court of Cassation ; but it had also a general appellate jurisdiction over the Courts of Justice everywhere. It could order proceedings by the Public Prosecutor, whenever it deemed the State to have been injured. Though this Court was considered supreme, yet a kind of appeal, or something between an appeal and a re-hearing, could be had after any judgment pronounced by it. In this case Adjuncts were chosen from the Departmental Courts, and sat with it. The General Public Prosecutor, and the Public Prosecutors before the Departmental Courts, were named by the Regents from triple lists sent by the Supreme Court and the Depart- mental Courts respectively. Beside these functionaries there were joined to the Supreme Court three Syndics, Doctors of Law named by the Legislative Body from a triple list presented by the Supreme Court itself. The office of the Syndicate was to watch over the Constitution established by law, to receive complaints concerning any breach of it, and to put the charge in a course of investigation. In 1805 Napoleon caused a great modification to be made of this Constitution, though its fundamental provisions were re- tained. The Regency was abolished, and the executive power placed in the hands of a Grand Pensionary, elected for five years by the Legislative Body, and endowed wdth the power of naming the Council of State, and with the patronage of all the public" functionaries, except those holding judicial offices, but having no legislative or judicial power whatever himself. The Legislature was reduced to nineteen members, chosen by the eight Provinces or Departments, Holland naming seven, I^trecht and Zealand one each, and the others two each ; the Adminis- CH. XXXI V.J KINGDOM OF BELaiUM. 383 « stration of each Province returned four names for each vacancy, which the Pensionary reduced to two, and of these the Admini- stration chose one finally as the Deputy. This Constitution was plainly intended only as a step towards creating Holland into a kingdom, which was accordingly done the following year ; and the only change beside substituting an Hereditary King for an elective Great Pensionary, was the in- creasing the number of the Legislative Body to thirty-eight, of whom Holland chose seventeen, and the other provinces some two, some four, and some five. They were chosen for five years, and had a salary of 300/. a-year each. In 1810 Louis Napoleon abdicated the Crown, and the Batavian Kingdom was united with the French Empire. In 1814 it was again severed, and the Constitution now in force was established. The whole Low Countries, as well the Seven United Provinces as the Austrian Netherlands, w^ere formed into one Monarchy, called the Kingdom of the Netherlands, and at the head of this new state was placed the family of Orange. The Revolution of 1830 at Brussels, which apparently was caused by the contagion of the French Revolution in that year, separated the Dutch Provinces or Departments from the rest, and thus formed two Kingdoms, one of which remains in the Orange family, the other was conferred in 1831 upon Prince Leopold. The Constitution of each is the same sepa- rately as was that of the whole before this change, except that of course, the Legislative Body being divided into two, the numbers in each kingdom are diminished. We have only then to examine what was the Constitutiorf established over the whole in 183 5, and this task is easy; for it is substantially the same with our own. We shall, therefore, only have occasion to note those particulars in which it differs. There is some difference in the course of the descent of the Crown and the provisions for the case of royal incapacity. 1. It is not, as in France, to the exclusion of females, nor, as in England, giving them the same succession after males as in real estate, only excluding coparcenary ; but on failure of male issue of the person last seized, his brothers succeed to the ex- clusion of his issue female, and each brother becomes a stirps ; but in case of the brothers leaving only issue female, it does not PART III 2 C 384 CONSTITUTION OF HOLLAND AND BELGIUM. [cH, XXXIV. seem to be provided in what manner the succession shall go, whether to the daughter of the last seized or to the daughters passed over of the person whose male issue first failed. 2. The succession is limited to other families, named in the event of total failure, families collaterally comiected with the House of Orange. But on the failure of descendants in those families, the Legislature is to assemble as States-General, the two Chambers meeting and acting as one, and in this case the Lower House (or Second Chamber, as it is termed) must have double its usual number of members. The King is authorized to present a new law of succession to this assembly. If he dies without making such a proposition, the same body is to provide for the succession. 3. The Sovereign is prohibited from holding any foreign Crown whatever. 4. A Queen Regnant cannot marry without consent of the Legislature ; she is held to abdicate the Crown by so doing ; and if she has married before her accession without this consent, she loses her right of inheritance. 5. The income of the Royal Family is regulated by law ; the King has 240,000/. ; the Queen Dowager 15,000/. ; the Here- ditary Prince 10,000/., and 20,000/. if married. 6. The legal age is eighteen for the Sovereign, and the guardianship or regency is given previously to the emergency happening, by the King with consent of the States, meeting in one chamber, as provided in case of the succession failing ; or if it has not so been settled, then by the States themselves. But, if the next heir to \he Crown is eighteen years old, he alone has the right to the Regency. During the existence of the vacancy the Council of State possesses the executive power, and it assembles the States to provide for the emergency. It must be admitted that this Constitution provides far more wisely and safely for the defects in the Royal authority than ours does. A general prospective law is always better than a measure adopted under the pressure of the emergency, and this is especially true of a measure such as that of naming a Regent. The Constitution of England, in fact, admits all the mischiefs of an elective Monarchy when there arises any incapacity in the Sovereign. CII. XXXIV.] PREROGATIVE. 385 The prerogative is in some particulars more extensive than with us. 1. All colonies and foreign possessions are under the exclu- sive government of the Sovereign. There is no distinction made between those which are conquered and those already established under the national authority. The legislative power m all as well as the executive is in the Crown. 2. The King appoints the salary and emoluments of all public functionaries, even of the judges ; but he cannot alter the salary of the judges during their lives. 3. In the vacation of the Legislature the King can, on the advice of the Council and after consulting the Supreme Court, give such dispensations from the law to individuals as the emergency of the case may require ; but he must immediately on their meeting lay an account of such proceedings before the Chambers. On the other hand, the prerogative has three limits unknown in our svstem. 1. Pardons can only be granted after consulting the Supreme Court of Justice. 2. All treaties for any cession or exchange of territory must be ratified by the Legislature before they can be valid. It may be observed, that such cession or exchange in England, if made of European territory, would probably not be held valid until confirmed by Parliament : but the case has never arisen in modern times, and since the constitution assumed a regular form. 3. The number of the Council of State is fixed ; it cannot exceed twenty-four, exclusive of the Princes of the Blood ; oi whom the Hereditary Prince is the Counsellor by right when- ever he comes of age. This restriction, however, of numbers applies to the paid Counsellors only. The King can name as many extraordinary Counsellors as he pleases ; so that the dif- ference between the two systems in this particular is rather nominal than real. The Legislative Body consists of two Chambers, one of 110 deputies, the other of 40 at least, but which may be aug- mented by the Crown. The Deputies are elected by the States of the Provinces, which before the separation in 1830 were 2c 2 386 CONSTITUTION OF HOLLAND AND BELGIUM. [CH. XXXIV. eighteen in number. Of these, Holland returned twenty-two, the two Brabants seven and eight respectively, and the two Flanders ten and eight, Hainault eight, and the other States some four, some five, except that Zealand returned three, and Dreuthe only one. This is called the Second Chamber, the other is called the First. The second is renewed by a third yearly going out ; but they are eligible again. All military officers below the rank of major are ineligible absolutely. The President is named each session by the King from three pre- sented by the Chamber itself The members receive at the rate of 250/. a-year, in monthly instalments, but only during the session ; their travelling expenses are also paid. The age required is thirty years. The members of the First Chamber are named by the King, and for life only ; their age must be forty years at least ; they have a yearly salary of oOOZ. ; and the King names their Presi- dent every session. In both Chambers the Ministers have seats, but no votes, unless they are otherwise members. The Chambers must both meet once a-year and sit thirty days before the King can pro- rogue or dissolve them. Extraordinary sessions may be called by him at his pleasure. The ordinary sessions before the se- paration were held alternately at the Hague and at Brussels. The vote is in both by ballot only when they have to make any election. The quorum of each is the majority of the members. Propositions of legislation come from the King to the Second Chamber ; but that Chamber can address the King if the First concurs, requesting him to make any proposition, the First Chamber having no power of originating this proceeding. On any proposition coming from the King, both Chambers must consent in order to make it a law, and the King's final consent is also required, although he has originated the proposition. The Provincial States are composed of three orders, Nobles, or Equestrian order, towns, and country districts. The number of the Members and of the Electors are fixed by the Crown on the report of a Commission. The Chamber of Nobles is composed of members named by the King. The right of voting in towns depends upon the Constitution of each. The States in each Province meet once a-year at least, and extra- CH. XXXIV.] LEGISLATURE. 387 ordinary meetings are called by the King. They choose the Members of the Second Chamber of the States- General. These Provincial States are elected by the municipal bodies which are established both in towns and country districts, and which are chosen by popular suffrage in assemblies that meet periodically. Also the local administration is under the Provincial States, but no local tax can be imposed without the Royal Assent. The Supreme or High Court of Justice is composed of mem- bers named by the King from a triple list presented for each vacancy by the Second Chamber ; the King names a Member to be President ; he also names the Public Prosecutor. All im- peachments, all national causes, all causes in which the King or the Royal family are parties, must come in the first instance before the Supreme Court. It has also an appellate jurisdiction over all the inferior tribunals. These are filled by the King's nomination on a triple list presented by the Provincial States. He likewise names the President and the Public Prosecutor in each. All places of Judges and Prosecutors are for life. All changes in the Constitution are first propounded to the Provincial States, who add to the Second Chamber of the States- General a number equal to the ordinary number of Members. Two-thirds of the whole form a quorum, and three-fourths of those present must concur to adopt the proposed alteration. No alteration can be made, nor can the order of succession be changed, during a Regency. The only material changes that have been made in this Con- stitution since the separation of 1830 have been the necessary one of the numbers which the two Chambers consist of, and which are in the Netherlands 51 for the First, all but nine being nobles ; 102 for the Second Chamber ;* in Holland, from 40 to 60 for the First and 58 for the Second ; and the taking from the Crown all power of dispensing with or suspending the laws. The Crown has not the power of dissolving the Chambers, but can call an extraordinary Session. It can always adjourn or prorogue at pleasure after the first twenty days. All peerages are for life. The Courts of Justice are bound to disregard any Royal Ordinance made for the execution of the law, and which is contrary to the general law. The responsibility of the Mniisters has also been fully established in both countries ; and * The number is one for every 40,000 of the population. 388 CONSTITUTION OF HOLLAND AND BELGIUM. [CH. XXXIV. every act of the King must be countersigned by some respon- sible person. The particulars in which these Constitutions differ from our own are not many, and, except that of the Peerage being for life, they are not very material. Some of them, as those respect- ing the Regency, are undeniable, and considerable improvements. The Constitution of the First or Upper Chamber is in every respect vicious ; and in both countries, there being the materials of an Aristocracy more ample than in France, this is a serious defect needlessly introduced. But the form of Government is plainly mixed ; it is strictly that of a limited Monarchy. Neither the Monarchical nor the Democratic principle predominates ; and it is only less perfect than our own in consequence of less than its just share being allotted to the Aristocratic interest. en. xxxv.j ^ ^^9 ) CHAPTER XXXV. GOVERNMENT OF SWITZERLAND, Connexion— Early Swiss History— Independence established— Morgarten -Confe- deracy formed by the three Forest Cantons or Wald-Stetten— Junction of others : Lucerne ; Zurich ; Zug ; Glaris ; Bern— Their several and federal Constitutions — Ammans ; Councils ; Avoyers— Soleure and Friburg joined ; Basil ; Schaff- hausen ; Appenzell— The Constitutions of these five new Cantons— Three bases of the Federal Union— Greater Privileges of the eight old Cantons— General Diet ; its Proceedings— Allied Cantons— Confederates ; Associates ; subject Bailliages— Grison Federacy ; its constitution ; its corruption— Revolution of 1798 effected by France -New Republican Government— Conferences of Napo- leon—Constitution of 1803; Manner of its Formation- Genius of Napoleon- Provisions of his Constitution— Contingents of Men and Money of the Cantons— Their greatinequality— Population— Perfect Federal Union ; its Advantages and Defects— Double Votes invented as a Remedy— Insufficient— Restrictions on the individual Governments— Directing-Canton; its functions— Diet ; its meeting; its proceedings ; its powers— Absurdity of the manner of Voting— Foreign En- listment—Internal Constitution of the Cantons— Two Classes; six democratic - Their Constitution— General Assembly or Land-Gemeinde— Councils— Thirteen Aristocratic or Mixed— Great and Little Councils -Mode of Election Grabeau —Courts of Appeal— Table of Details— Napoleon's Conduct— Existing Constitu- tion of 1815— Twenty-two Cantons— Contingents of Troops and Money— Arbi- tration—Diet ; its constitution ; powers— Vacation— Commission— Directing- Cantons— Restoration of selling Troops, and Monastic Institutions— Six Democratic Cantons— Their Constitutions ; General Assemblies ; Councils-Table of Details — Seventeen Aristocratic Cantons— Their Constitutions; Great and Little Coun- cils ; composition and powers— Catholics and Protestants— Bad Principle- Elections ; duration of oflBce ; qualifications— Table of Details.— Conclusion of this Work- Its Objects— The want of it— Duty of the People. Although the Constitution of the Aristocratic Cantons has been fully considered in the Second Part (Chap, xxvin.), and a ge- neral view has been given of the Democratic Constitution in Chap. IV. of this Third Part, yet it will be convenient, though at the risk of some repetition, to give a view of the whole Helvetic Confederacy here, which will close this work. When Switzerland was severed from Ancient Gaul, it cams into the possession, successively, of the Franks and the Burgun- dians. United to the great Empire of Charlemagne, upon its dissolution under his successors, this poor and mountainous terri- 390 GOVERNMENT OF SWITZERLAND. [CH. XXXV. tory frequently changed hands, having no substantive force to defend its independence, and being thus left as a prey to which- ever party had the upper hand in the various struggles for domi- nion which divided Western Europe for so many ages. The feudal tyranny of the Barons early threw the Helvetic people upon the resource of foreign protection, and they found it in the House of Ilapsburgh, afterwards raised to the Throne of the Aus- trian Duchy, and frequently invested with the Imperial dignity in Germany. At first one or tw^o cantons, and afterwards the whole, came under this Austrian protection ; and towards the end of the thirteenth century they were incorporated with the Empire. In 1300, Albert of Hapsburgh having attempted to establish absolute power over them, they resisted, and, after a glorious struggle, asserted their entire independence at the famous battle of Morgarten, fought in 1315. The foundation of the Confederacy was then laid by the three cantons of Schwitz, Uri, and Unterwald, called the Wald-Stetten^ or Forest Cantons, who now would acknowledge no protector save the Germanic League. This Confederation bound them to make common cause against all attacks from without, to form no alliances but in common concert, to admit no foreign judicature, nor have any domestic judge who bought his place, to settle all disputes among themselves by arbitration, compelling each other's submission to the award, and finally to afford no asylum to fugitives from one another's territories. The Constitution of each Canton was purely democratic. The supreme power was vested in the people at large, all males of fourteen years old in Uri, of fifteen in Schwitz and Unterwald, having a voice ; and though Deputies were chosen to represent the people in the Council of Regency, and a Land-Amman, or chief magistrate, was also appointed, yet the su- preme power was exercised by the yearly Diet, or general assem- bly held in the open air, and by extraordinary Diets called as occasion might require. To these Diets the Land- Amman was accountable. The Constitution of Lucerne was originally also a pure De- mocracy, under a feudal lord, the Abbot of St. Gall ; but when it placed itself under the Austrian protection it became aristo- cratic. In 1331 it joined the Federacy ; as did Zurich in 1351 ; when the General Diet was established, but only as an occasional meeting of Delegates, or envoys from the five Cantons, to discuss CH. XXXV.] GOVERNMENT Ob TUE CANTONS. 391 weighty concerns of general interest. Soon afterwards Zug and Glaris joined the League, and then Bern ; so that there was now formed the Federacy of the old Eight Cantons. The government of Zug and Glaris was democratic like that of the Wald-Stetten, or three Forest Cantons. Bern was more on the aristocratic model, having two Councils, one of two hundred, the other of twenty-six, and two chief magistrates, called Consuls or Burgomasters, as they were in all the aristocratic governments ; while in the democratic they were called Ammans, or Land-Am- mans ; and in the mixed, Avoyers. Lucerne was aristocratic like Bern, its Councils consisting of one hundred and eighteen respec- tively. The Great Councih both in Bern and Lucerne, dealt with the general concerns of the Canton, the Little with the govern- ment of the town or capital. In Bern, the Avoyer, with sixteen notables, chosen in equal numbers from the four wards or quarters of the city, filled up the vacancies in the Councils ; the Avoyer was himself elected for two years. In Lucerne he held his office for only one year. There was this material difference between the Government of these two Cantons, that in Lucerne the Council administered justice over the country bailliages as well as the city, whereas in Bern each bailliage had its own Courts, with an appeal to the City Council. In Zurich the Government was also of an aristocratic form ; there being two classes of the people, the noble and the roturier or commonalty. The nobles formed one tribe, the roturiers twelve tribes, or companies, into which the different trades were divided. Each tribe chose twelve members of the Great and three of the Little Council ; the nobles choosing eighteen of the former and six of the latter. The magistrates were two Consuls, or Burgo- masters, chosen by the Great Council. In 1481 Friburg and Soleure were admitted into the League, and by the Convention of Stanz, a federal pact, or law, was esta- blished for the whole body. In 1501 Basil and Schaffhausen joined, and in 1513 Appenzell. In 1499, after a long war with the Emperor MaximiUan L, the whole of Switzerland shook off its dependence on the Empire, and this was the last struggle for in- dependence. The Government of Friburg and Soleure was of a mixed cast, between the aristocratic and democratic forms. In Fribourg there were four wards, or quarters, which chose a Council of two hundred and another of twenty-four. The people chose the 392 GOVERNMENT OF SWITZERLAND. j^CH. XXX\r Avoyer, or chief magistrate, who held his office for two years. In Basil and SchafFhausen the Government was aristocratic, there being an order of nobility distinguished from the commonalty, or roturiers. In Basil there were fifteen tribes, in Schaffhausen eleven. In Appenzell all the inhabitants enjoyed the same poli- tical rights, with no distinction between those of the town and those of the country, and the Government was a pure democracy like that of the Wald-Stetten. The three bases on which the Federal Union and Constitution rested were the Treaty of Sempach in 1393, regulating the military contingents and discipline of the Cantons ; the Conven- tion or Covenant of Stanz in 1481, generally regulating the League ; and the Peace of Aran in 1712, settling the differences between the Catholics and Protestants. The eight old Cantons had considerably higher privileges than the five who were more recently admitted into the League. The latter could not make war without the consent of the former, who could demand aid of the five in any war, without even assigning the reasons for engaging in it. Beside the General Diets held, there were particular on'es as of the eight old Cantons ; and also Diets of the Protestant and Catholic Cantons severally. The Protestant Diets were termed Evangelical Conferences, the Catholic Golden Alliance. The Swiss Federal Commonwealth consisted of thirteen Cantons as its mem hers, but there were several large districts possessed by the Federacy as appendages, which sent no Deputies to the Diet, and were not States of the League. These allied cantons were either Confederates, as Grisons, Va- lais, Geneva, Neuchatel, and Basil ; or Associates, as St. Gall, Bienne, Mulhausen ; or Subject Bailliages, as Turgau, Ticino. The population of the first class was about a ninth ; of the second a half ; of the third class more than a third of the thirteen Can- tons who formed the League ; consequently the whole together were about equal to the Thirteen. The Grisons had a Federacy of their own, with a Diet, ever since the middle of the fifteenth century. The Diet consisted of sixty-three deputies and three chiefs : the deputies being sent by the three subordinate bodies composing the League ; that is, by the Grey League, an ancient confederacy, which sent twenty-seven deputies ; the League of God's House, which sent twenty-two ; and the Ten Jurisdictions, whicli sent fourieeii. At this Diet all the Deputies were obliged CH. XXXV.] CONSTITUTION OF 1803. 393 to obey the instructions of their constituents ; but whenever these were f doubtful import (and this obscurity was often cautiously left on purpose to give them a discretion), then the majority de- termined their sense. The Executive power was vested in the Congress, composed of tw^elve ; that is, three Deputies from each of the Lea2;ues and three chiefs. The Landrechter or chief Magistrate was chosen by the Deputies from three candidates, of whom the Emperor of Germany named one, the Abbot of Desunts another, and the Cau (sometimes called the Count) de Sax a third — he being the person, often a peasant, yearly named to fill this almost nominal office. The right of voting was univer- sal, being vested in all males ; and the legal age in some Cantons was fourteen. The corruption which prevailed in this Grison confederacy is known to have been great and universal. Ever since the Treaty of Milan in 1639 the influence of Austria was predominant in all its concerns. The General Diet of the Helvetic League was commonly con- voked by the Canton of Zurich, which fixed both the time and place of meeting ; but if any other Canton thought fit, it could call upon Zurich to assemble the body, and even could summon the Deputies in case of emergency. At the Special Diets for particular objects only those Cantons sent Deputies whose in- terests were concerned, and at all Diets the votes were taken by Cantons, and the question determined by their majority, and not by the relative numbers of Deputies who might attend ; for each Canton could send whatever number of representatives it chose. In 1798 the French armies, under the Directorial Government, entered Switzerland, and forced on the people a new Consti- tution, framed upon the model of that which then was established In France. It had an Executive Directory, with a Legislative Body, and was termed the " Helvetic Republic, one and indi- visible." .This system continued to govern the country until 1803, when Napoleon, after great discussions with the Swiss Deputies, which lasted many months, and gave occasion to a minute examination of the interests and of the feelings in the different Cantons, established a new Federal Government. This work is by no means the least remarkable production of that extraordinary man, whose genius, alike master of general prin- ciples and minute details, had presided over the great work of the French Codes. It is impossible to deny that very great 394 GOVERNMENT OF SWITZERLAND. [CH. XXXV^ attention was bestowed upon the local circr. instances of each Canton, and that the ancient Constitution was, in the main, pre- served wherever it had taken a deep root in the people's affec- tions. Thus, while in the Aristocratic Cantons we find great traces of the patrician regimen, without, however, retaining any- where the oppressive rule of the towns, and the odious distinc- tions which subjected the country inhabitants to the Burghers ; in the Democratic Cantons, as the Wald-Stetten, we find a large proportion of the purely republican government retained, and indeed the supreme power vested in the hands of the whole people, though without the absurd provision which had formerly allowed boys of fifteen, or even fourteen, years old to vote in all Legislative Assemblies. It is true that this Constitution ceased to govern the Helvetic body after Napoleon's fall ; yet it pre- sents sufficient matter of meditation to the political inquirer, and its principles were engrafted upon the present system in abun- dance enough to render a statement of its broader outlines proper in this place. The whole members of the Ancient Federacy, as well the appendages, or subject districts, of Orisons, Vaud, St. Gall, Argau, Ticino, and Turgau, as the Thirteen Cantons, were the members of the new Federal body, now composed of nineteen Cantons, all independent as regarded their internal government and administration, but all united by the relations of the Proper, or Perfect Federal Union. The quota of taxes or men to be furnished by each was regulated : thus of every 15,206 men Bern was to furnish 2292, Zurich 1929, Vaud 1482, St. Gall 1315, and so on down to Uri, whose contingent was only 118; and so of every 490,507 taxes Bern was to contribute 91,695, Zurich 77,163, Vaud 59,273, St. Gall 39,451, down to Uri, whose assessment amounted to only 1184. The great inequal- ity of the Cantons is thus shown ; four of the nineteen furnish- ing as many troops, and more money, than all the other fifteen. Indeed, Bern alone furnished more men than eight small Can- tons, and more money than ten. The disproportion of the population is fully as great. Of the 2,188,000 comprising the whole inhabitants, Bern has 408,000, and ten of the others have only 423,000. But it is the triumph of the Federal System to unite in one body with equal rights states of such different magnitudes, and to protect the rights of a Canton like Uri, witl) CH. XXXV.] DIET UNDER NAPOLEOn's CONSTITUTION. 395 its 13,000 inhabitants, its quota of 120 men, and its contribution of 45/., as well as one whose population is thirty fold, and con- tribution to the common fund eighty times as great. To be sure, the injustice and impolicy of giving the same voice in the councils of the Federacy to the one and to the other of these states, of making a village as important as a great city, is equally manifest ; and, accordingly, the Constitution which we are exa- mining provided, in some sort, for this imperfection. The whole votes were not nineteen, but twenty-five, and the six greater Cantons had each two votes, the other thirteen having only one each. Still there was a great disproportion ; and a Canton like Friburg had only the same voice with one which, like Uri, paid seventeen times less contribution, and had seven times fewer inhabitants. Though each Canton had the government of its own concerns, none could maintain a greater force than 200 men ; none could make any alliance with another, or with any foreign power ; none could confer exclusive privileges on any class or family of citizens ; and all were subject to the authority of the Diet : so that the executive government, or the Legislature of any one Canton, could be accused and punished for violating any decree of the Diet, by a High Court of Justice constituted of the Pre- sidents of the Criminal Courts of the others. The six greater Cantons of Bern, Zurich, Lucerne, Soleure, Friburg, and Basil were Directing- Cantons year about, and the Chief Magistrate, or Avoyer, of the Directing-Canton was the Land- Amman of Switzerland during his year. He had the con- duct of all negotiations, and represented the Republic with Foreign Powers, informing the Diet at its assembly of the state of Foreign relations. He had also the office of repressing re- volt in any Canton, but upon the requisition of either Council of the Cantons. In case of any dispute arising between two Cantons during the recess of the Diet, he appointed arbitrators to settle it, or put off the affair till the Diet met, at his option. The Diet was composed of Deputies from each Canton ; each iQ ding one, with one or two Counsellors to supply his place in case of absence or illness. All the Deputies were bound to follow the instructions of their constituents. The Land-Amman was the Deputy of the Directing-Canton, and president o:' the Diet The Diet met in June, and sat not longer than one 396 GOVERNMENT OF SWITZERLAND. [CH. XXXV. month. But extraordinary Diets might be called, either on the requisition of a neighbouring power, or of a Canton, acceded to by the Great Council of the Directing-Canton ; or on the requi- sition of the Grand Council, or General Assembly of four of the other Cantons ; or by the summons of the Land-Amman of Switzerland. The Diet declared war, and made peace and alliances, three- fourths being required to concur. The manner of voting has been already stated ; and it follows from thence that, five Can- tons having one -thirteenth of the population, and contributing one-twentieth to the taxes, and one-seventeenth to the armies of the Federacy, might prevent a peace from being concluded, or a treaty made, against the unanimous voice of the whole Swiss Union. It would be somewhat, but not much less, absurd if the three-fourths were counted not by Cantons but by the votes, double and single, in the Diet. Suppose the West Riding of Yorkshire, or the counties of Surrey and Sussex, had the power of stopping any of the most important national measures in our Legislature — our Constitution would present the same anomaly which arose from the Federal policy in Switzerland, and from the additional evil of requiring more than the absolute majority of voices to determine any question. (Part iii. Chap, ix.) The Diet had the sole power of naming commanding officers of the forces, and ambassadors on extraordinary missions. In all disputes between different Cantons, if arbitration did not settle them, the Diet formed itself into a Syndicate^ in which each Deputy had an equal voice, and no one was to follow any instructions from his constituents. The Diet alone could give authority to recruit in any Canton for a foreign power. Indeed foreign enlistment had long ceased in Switzerland in almost all the Cantons. Before the Revolution 15,000 Swiss were in the French service ; half that number in the Dutch ; and several regiments were in the pay of Piedmont, Naples, and Spain. Such was the Federal Government. The internal Constitutions of the Cantons were various, but they might be divided into two classes. The first class consisted of the first five, which were united, that is, the three Forest or Wald-Stetten, with Zug and Claris, and Appenzell, the last which joined the Federal Union. The thirteen other Cantons formed the second class. CH. XXXV.] CANTONAL GOVERNMENTS UNDER NAPOLEON. 397 The Constitution of the first class was Democratic ; the an- cient government being very nearly preserved. The power of legislation, and generally the supreme power, was vested in the General Assembly, called Land-gemeinde^ composed of all males of twenty years of age ; but they could discuss no matter which was not laid before them by the General Council in some {Land- rath), the Little Council in others, and in Appenzell by the Great Council. The councils were chosen in the same manner as in former times, and the Land-i\mmans and other oflBcers were generally appointed in the old way alsQ. The second class of Cantons had generally the same frame of government, but in the details, as in the amount of qualifica- tion for exercising the elective franchise, and in the mode of removing persons elected, they differed one from another. In all the thirteen Cantons of the second class, each citizen of six- teen years old was a soldier ; and the right of voting was given to all of thirty years old if never married, or if married or widower twenty — possessing a certain varying amount of property. In all there were two Councils, one elective, called the Great Council, which had the legislative power ; another chosen out of that Body by its own voices (except in the Grisons, where it was chosen by the electors), and called the Little Council — which had the exclusive power of proposing laws, and of calling extraor- dinary meetings of the Great Council ; it was always in session, was an executive body, and was renewed by a third yearly. There was in all the same mode of electing the Great Council. The elec- tors chose in their districts one representative for each, and so many additional candidates from their own limits, and so many from ether circles, of whom a reduced number were chosen by lot, and these with those directly chosen formed the Great Council. At tbe end of two years in six of the Cantons there was the ope- ration called the Graheau — literally sifting out of the dregs. It consisted in a body of fifteen, being chosen, five by lot out of the ten older in each electoral district, five of the ten richer, and five of the inhabitants indifferently ; these fifteen determined by ballot if one or two of the Deputies should retire ; and if they so decided, the whole voters, by an absolute majority, and by ballot, decided finally on their removal. In all the Cantons there was a Court of Appeal of thirteen of the Great Council; in all the '"^98 GOVERNMENT OF SWITZERLAND. [CH. XXXV. Great Council met for a few days in the half-year, but the Little Council was permanent. The difference in other details may be more conveniently un- derstood by the following table : — Cantons. Property Qualitication. No. of Great Council. No. of Little Council. Grabeau. No Grabeau. Argau 200 p. 300 m.* 150 9 Had not . . Basil 500 p. and m. 135 25 Had • • Bern | 1000 in Bern 500 in Country. 195 27 Had • • Friburg .... 500 p. and m. 60 15 Had •• Grisons 63 3 .• Had not. Lucerne 500 p. and m. 60 15 • • Had not. St. Gall 200 p. 300 m. 150 9 .. Had not. Schaffhausen . 500 p. and m. 54 15 Had • • Soleure 500 p. and ni. 60 21 Had • • Ticino 200 p. 300 m. 110 9 .. . Had not. Turgau ..... 200 p. 300 m. 100 9 .. Had not. Vaud 200 p. 300 m. 150 9 .. Had not. Z urich 500 p. and m. 195 25 Had • • * p. means Property ; m. Mortgage. Such was the Constitution of Switzerland which Napoleon imposed, after great deliberation, and after much conference with the Helvetic Deputies, when he assumed the office of Protector of the Helvetic Body. It was not, perhaps, framed with all the minute attention to former laws and usages which marked the composition of his famous Codes ; but it was not hastily, nor with- out deep reflection, prepared, and it was not without every attempt at conciliation finally promulgated. I remember meeting soon after with some well-informed and patriotic Swiss, who, with one voice, confessed that, if they had not got all they might have desired, they had got more than they could have expected, and that their Deputation left Paris, after transacting the business of this lengthened negotiation, with the impression that, at all events, they had a lawgiver in the First Consul who thoroughly under- stood their character, their habits, and everything appertaining to the subject wherewith he had to deal. When the Imperial power w^as subverted in 1814, Geneva, CH. XXXV.] EXISTING CONSTITUTION. 399 Neuchatel (a Prussian possession), and the Valais were added to the Federacy, which thus consisted now of twenty-two mem- bers ; and a Constitution was given by the Congress of Vienna in 1815, which still is the Government of Switzerland. The contingents are fixed upon the total number of troops that the League is to keep on foot— namely, 32,886 ; of which Bern fur- nishes 4584, Zurich 3858, Lucerne 1734, Grisons 2000, Friburg 1240, Argau 2410, Neuchatel 1000, Ticino 1804, Vaud 2964, Valais 1280, Schwitz 602, Unterwald 382, Glaris 482, Zug 250, Uri 236, Appenzell 972, St. Gall 2630, Turgau 1670, SchafF- hausen 446, Soleure 904, Basil 818, and Geneva 600. The ex- penses in money of the League are to be contributed in some- what of the like proportions, — Bern paying 91,695, and Uri 1184, in 540,100 francs. In case of any dispute arising among any of the Cantons, on any matter not provided for by the Federal Constitution, each shall choose as arbitrator one or two of its Magistrates, who shall choose an umpire (if they differ) from among the Magistrates of an indiiferent Canton, and if they agree not in the choice the Diet shall name him. The Diet is composed of Deputies from the Cantons, each Canton having one vote. The Diet meets yearly, or when con- vened by the Directing-Canton, and the Avoyer of that Canton is President. The Diet makes war, peace, treaties ; three-fourths must concur on all such graver matters. The Diet also makes commercial treaties. Each Canton can form engagements with Foreign powers respecting the hiring of troops to serve abroad, and touching Police or economic arrangements ; but those bar- gains must be consistent, in all respects, with the principles and powers of the Confederation, and must all be laid before the Diet. The envoys of the Confederation are named by the Diet, which also appoints the commander of the forces, and provides for their levy and distribution. The Diet may, during its re- cess, give extraordinary powers to the Directing-Canton to meet any extraordinary emergency, and join to it six representatives of the Confederation, with special authority and instructions. In this case two-thirds of the votes are required to authorise such delegation. The Federal Representatives are named by the Directing-Canton appointing one, and the other five being named by bodies of three or four other Cantons choosing one each. The Directing-Canton keeps its station for two years, FART III. 2 D 400 GOVERNMENT OF SWITZERLAND. [cH. XXXV. and Zurich, Bern, and Lucerne hold this office in rotation. The Constitution guarantees the rights of Monastic bodies, but their property is subject to taxation, like that of other land-owners. It is impossible not to regard with indignation, tempered per- haps by pity, a solemn treaty framed and executed by all the most enlightened states of Europe in the nineteenth century, restoring the great scandal of the Swiss Government and name, their mercenary hiring out of soldiers to light the battles of foreign powers, and to guard foreign Despots, and retaining the grossest abuse of rehgion and morals in modern times — the estab- lishment of Monastic Orders. There are under the new Constitutions of the individual Cantons, as there were under that of 1803, two distinct classes, one democratic, the other having a large admixture of aristo- cracy, or rather oligarchy. Of the former description there are six, as before, — Appenzell, Lucerne, Glaris, Unterwald (divided, however, into two, with somewhat different Governments), Zug, and Uri. Of the latter kind are all the other sixteen, except Neuchatel, which is a pure monarchy. The six democratic Cantons are governed each by a General Assembly and a Council, the former naming the executive Ma- gistrates, or Land-Ammans, making the laws and carrying on negotiations, as well as declaring peace and war ; the latter hav- ing chiefly judicial functions. The Council is chosen by the General Assembly, and has the initiative of legislative measures, as well as the superintendence, with the Land- Amman, of the Executive Government. The right of attending General Assem- blies is possessed by all citizens, in some only by burgesses, in others by persons who have attained majority, which in some Cantons is twenty, in one nineteen, in one as low as sixteen. The General Assembly, beside choosing the Land-Ammans, ap- points the Deputies to the Diet, and in most of the Cantons gives them their instructions. In some Cantons there are several Councils, with various functions, and the legislative power is delegated to them by the General Assembly, which nevertheless appoints the great officers. Thus in Zug there is a Cantonal Council of the Land-Amman and fifty-four members, elected by the Circles, and it exercises judicial functions. The Triple Council is composed of these fifty-four members and of 108 Adjoints, and exercises legislative functions, being assembled CH. XXXV.J EXISTING CANTONAL CONSTITUTION. 401 three times a-year, and as often besides as the Cantonal Council chooses to convoke it. The Triple Council instructs the Depu- ties to the Diet, but the General Assembly appoints them. The following table exhibits the material details of the Con- stitution of these six Cantons : — Appenzell extra. Ap- pen/.ell infra. Glaris. Schwitz. Unter- wald , High. Unterwald, Low. Uri. Zug. Age of ) Voting, j 16 18 20 16 20 20 20 19 Council. . Magis- trates & other Officers. 124 600 With Func- tionaries. 60 65 580 With Magis- trates. 44 With Func- tionaries. 55* The general frame of the Constitution in the other Cantons is that the legislative power and the appointment to the executive offices is vested in a Great Council, and exercised through the medium also of a Little Council ; and that the Great Council is in part elective, being chosen by the persons in each town or country district who possess the right of burghers, either by ob- taining it themselves or by right of inheritance. The bad prin- ciple of self-election, however, is largely introduced, there being in all the Cantons (except Geneva, Friburg, Grisons, Valais, and Schaffhausen) a large proportion, in some a decided majority, of the Great Council elected by itself, or, which amounts to the same thing, by other bodies which that Great Council appoints. The Little Council is in every instance, as it was under the Con- stitution of 1803, chosen by the Great Council, and from its own members. It is, in fact, a Committee of the Great Council, and exercises, not only most of the executive or administrative functions, in conjunction with the Avoyer, Burgomaster, or Bailly, the chief magistrate, but has also the exclusive power of propounding measures to the Great Council. The Little Coun- cil sits constantly, the Great Council only twice a-year, in some Cantons three or four times, and when specially convoked by the Little Council. The Great Council chooses the Deputies to the Diet, and gives them their instructions. * This is the Cantonal Council, which resembles in its functions the Little Council of the Ai'istocratic, or mixed Cantons. The Triple Council exercises Legis- lative power, and is composed of 54 of the Cantonal, with 108 Adjoints ; in all, 162. 2 D 2 402 GOVERNMENT OF SWITZERLAND. [CH. XXXV. In the Cantons where there are divisions of the inhabitants into Catholic and Protestant, the Constitution provides for a cer- tain proportion of the Councils belonging to each religion, and that both in the democratic and aristocratic Cantons. Thus in the democratic Canton of Claris, the Council of sixty must have forty-five Catholic and fifteen Protestant members. In the aris- tocratic or mixed Canton of Argau, the Great Council of 150 must have seventy -five of each sect. This very pernicious regu- lation, perpetuating religious discord, was first introduced by the Congress of 1815. But there is another provision still more to be condemned. In many of these Cantons the Catholics and Protestants have their several Councils for the discussion and regulation of their several sectarian concerns ; a contrivance ma- nifestly tending to exasperate the sects against one another, and prevent, what all wise and just rulers would above everything desire, the melting of the whole community into one body of citi- zens in all that concerns their temporal affairs. The mode of exercising both the elective power by the community, and the self-electing power by the Great Council, varies in the different Cantons, and in some it is complicated. Thus in Sol cure the sixty-six, whom the burgesses choose, are named by Electoral Colleges composed, like the Committee of the Grabeau, under the Constitution of 1803, that is, of fifteen taken by lot, five from among the ten oldest, five from the ten wealthiest, and five in the Canton indifferently. The term of their holding office also varies from three years, with triennial elections, as in St. Gall, to six years as in some, a third going out yearly, as in Zurich is the case with the eighty-two chosen by the community ; to twelve years in others, a third going out every four years, as in Argau ; in others to eight years, half retiring every four years, as in Zug and St. Gall ; to tenure for life, as is the case with the sixty- four of the Great Council in Lucerne. The following table will conveniently explain the differences in the Cantons : — CH. XXXV.l EXISTING CANTONAL CONSTITUTION. 403 Cantons in respect of their Councils and the quamfication of Voters. Majority. Great Council. Named by Themselves. By People. Little Council, Argau 25 100 36 32 9 Basil 20 150 90 60 25 Bern 20 299 200 99 27 Friburg 20 60 .. 60 15 . Grisons 17 65 65 3 Geneva 25 278 278 28 Lucerne. .... 20 100 69 31 36 Keuchatel .... Under King of Pr ussia — no popular Co nstitution. St. GaU 20 150* 50 100 9 Schaffhausen . . 20 74 .. 74 24 Soleure 20 101 66§ 35 21 Ticino 25 76 38 28 11 Zug 20 loot 68 3211 9 Valais 18 52t 52t 5 Vaud 25 180 11711 63 13 Zurich 20 212 120 82 25 The Government of Neuchatel is purely Monarchical, the King of Prussia being the Sovereign. There are the three Estates, but it is a body purely judicial, being composed of twelve judges, of whom eight are for life, and four named yearly. They have no legislative power whatever. The Council is named by the King, and it, together with the King himself, and a kind of municipal body of the town of Valengin, makes the laws. AVith respect to religion, the Cantons wholly Catholic are the Wald-Stetten (Uri, Schwitz, Unterwald), Soleure, Lucerne, Fri- burg, and Zug ; the Protestant, Zurich, Bern, Basil, and Schaff- hausen ; the other two, Argau and Appenzell, are mixed. Of the allied Cantons, St. Gall (city), Grisons, and Valais are Ca- * 84 are Catholics, and 66 Protestants. t 25 at least must be Catholics. X The Great Council is called " the Diet," and the Little Council " the Council of State." § These 66 are chosen by the Great Council from lists of candidates presented by the Little Council. II 54 are chosen by the Great Council absolutely, 63 are selected by them from candidates presented by the Electoral Assemblies. 404 GOVERNMENT OF SWITZERLAND. [CH. XXXV. tholic ; Neuchatel, Geneva, Mulhausen, St. Gall (country parts) are Protestant. The total population of the Protestant Cantons is double that of the Catholic ; but the population of the Catholic Allied Cantons is nearly threefold that of the Protestant ; so that there are in the whole Helvetic nation about equal numbers of Catholic and Protestant inhabitants. This brings to a close the examination of Democratic and of Mixed Constitutions, and with that inquiry closes also the work upon which we have been so long engaged, namely, the first great branch of Political Philosophy, and by far the most import- ant branch — the Theory of Government, and its application to the Constitutions which have been at any time framed by human skill, for the direction of human affairs. AVe have now had an opportunity to consider minutely all the great principles which have guided men's conduct in the systems of polity founded by them at any period in the history of the world. We have discussed the foundations of Government ge- nerally, of its different species severally, under the six several heads of Monarchy, Absolute or Oriental — Constitutional or European — Aristocracy — Democracy — and Mixed Government, whether Monarchical — or Aristocratic. We have weighed the merits and the faults of all these schemes of polity in much de- tail, and have examined minutely the practical working of each. We have, then, investigated the application of the general princi- ples to the various forms of Government, which have at different times, and in various countries, been known among nations. AVe have traced the history of them all — examined the advantages secured and the disadvantages experienced under them all seve- rally— contemplated their practical working — compared them one with another to show both their resemblances and their diversities — and have constantly referred their detailed arrange- ments to the general principles of Government previously ex- pounded. Our examination has in this way comprehended be- tween forty and fifty forms of Government in ancient and modern times. Upon the important subject of the British Constitution we have naturally dwelt much more minutely than upon any other ; next to our own, upon the Constitution and the Constitu- tional History of our friends and neighbours the French. en, XXXV. 1 CONCLUSION 405 It is impossible for me to look back upon the vast field over which I have presumed to travel, both of general principles, of comparative views, and of Historical and Statistical facts, without feeling appalled by the boldness of an undertaking so far beyond the reach of any powers, whether of reasoning or of learning, which I could bring to bear upon it. That I may have escaped error in the theory is more than I can venture to hope. Far less can I flatter myself that material errors have not been committed in dealing with the great mass of details which it became neces- sary to examine. They who have most profoundly studied the principles of Government, they who have most learnedly exa- mined its records in the history of human policy, and they whose knowledge of existing institutions in foreign countries is most extensive, will be the most candid judges of my labours, because they are the best able to understand the great difficulties of such an enterprise. One fault, however, I feel assured that no one will find in this work — it is wholly free from party bias. That its author entertains, and has always entertained, very sincerely, certain opinions upon political affairs, every reader will discover, because no pains have been taken to conceal them ; but no sacri- fice has been made to party or to personal considerations : on the contrary, every opportunity has been taken to show how pernicious party spirit has generally proved, and how sacred a duty the people have to think for themselves, and not sufier any factious leader to form their opinions for them, upon the great questions which regard the frame of Government and the admi- nistration of public affairs. It is wath an humble but an honest view to provide help for the People in the discharge of this high duty, that I undertook the work now brought to a close. There never had before been any such book ; any treatise to which ignorant persons might be re- ferred for full and impartial information upon the general prin- ciples of Government ; much less any work upon the various Constitutions of States in ancient and modern times. The So- ciety justly deemed that, no work being more wanted, none came more properly within the scope of an Institution for Diffusing Useful Knowledge ; and I can only hope that, if the execution of so great and so beneficial a plan shall be found unsatisfactory, my labour of five years may, at least, encourage, possibly help, others in devoting greater powers to supply the want heretofore 406 CONCLUSION. [CH. XXXV. justly complained of, so that at length a work may be obtained for the people, better deserving the title of ' Political Philosophy.^ Note. — I may perhaps be permitted to mention that the work was originally intended to have been published by the Society without any name, as I was exceedingly averse to appear as the author. Accord- ingly the First Part was given anonymously ; but being requested by my colleagues to give my name to the other two parts, I yielded reluc- tantly to their wishes. This disinclination arose only from the dislike of obtruding myself needlessly, as it seemed, upon the public attention. In like manner, the ' Illustrations of Paley ' had been originally designed as an anonymous publication, for a like reason, by my learned friend Sir Charles Bell, and myself; but the rules of the Society were supposed to prevent its undertaking that work, and we were obliged, however unwillingly, to publish it with our names. Chateau Eleanor- Louise {Provence)^ 31st December, 1843. INDEX. Absolute monarchy, tendency of, ] ; narrow escape of England from, under James 11. , 291. Abuses of the press, how to be re strained, 180. Acton Burnel, statute of, 43. Adams, work on the American con- stitution, 340. African despotism, must be affected by the progress of general im- provement, 164. Alexander II.'s (of Scotland) Laws, A7. Ahen Act, 319. America, government of the United States of, 323 ; first sotflen;ent of the colonies, ib. ; Virginia, 324 ; New England, ib. : different char- ters, ib. ; colonial constitutions, 325 ; provincial, ib. ; proprietary, ib. ; chartered, 2Z>. ; general resem- blance to Government of Eng- land, 326 ; causes of the separa- tion, ib. ; progress of indepen- dence, 328 ; great importance of the event, 329 ; general frame of the republican government, ib.\ fundamental principle, 330; legislative power, ib. ; congress, ib. ; representatives, ib. ; their election, ib.\ qualification, 331; senate, ib. ; powers of con- gress, 332 ; powers of the two houses, ib. ; president, 333 ; his election, ib. : his powers, ib. ; al- teration of the constitution, 335 ; congress has no supreme power, 335 ; supremacy of judicial power, 337 ; annulling laws as unconsti- tutional, ib. ; nature and grounds of this provision, 336 ; its con- nexion with the Federal prin- ciple, ib. ; Amphictyonic council in Greece, ib. ; examples of the provision's application, 338 ; to laws of particular states, ib. ; to laws of congress, 339 ; works on the constitution of the United States, 340. America, jealousy against it in PART HI. England, 136; power and abuse of the periodical press in, 123 r Democracy tried on an extensive scale, and in its purest form in, 9. American checks, 104; govern- ment compared to the English, 316. Auimans, vide Switzerland. Amphictyons, council of the, an ap- proach to the representative sys- tem, 38 ; compared to the supreme court of the United States in Ame- rica, 336. Ancients, council of the, in the French republic, 348. Ancient historians neglected the description of the political con- stitutions of nations, 1.; uovernment, its origin, 152. Rome, uncertainty of the origin of its government, 7 ; judicial func- tions at, 97; mixed government of, 147; share of the people in the judicature in, 187. Romish historians, their error on the part which the English clergy took in the establishment of the constitution, 231 ; errors of, on the history of Charles I., 278. Rotation, places given by, in Athens, 5. Rousseau's error on the representa- tive system, 60. Royal authority may be traced in England since the time of the Romans, 195; its state in the Anglo-Saxon times, 197; towns of the demesne in England first represented, 46 ; power over the 2 F 424 INDEX. church under the Anglo-Norman Kings, 213; prerogative in the French constitution of 1791, 34G.; revenue in the Anglo-Saxon times, 199. Rulers have no sinister interest in a democratic polity, 109. Russell's (Lord John) work on the English constitution commended, 321. Russell's (Lord William) motion against the Speaker, 245. Sabines admitted to the citizenship of Rome, 25. St. John punished by the Star Cham- ber for writing against the pur- chase of the title of baronet, 269. Sardinia, judicial usurpation in, 96. Saxons, feudal councils of the^ 39. Scandinavian government, its ori- gin, 154. Schaffhausen, vide Switzerland. Scotland, origin of representative government in, 36. Scotch representation, origin and history of the, 46 ; John Baliol's parliament, 47 ; states summoned by Edward L at Perth, ib. ; laws of Robert Bruce, ib. ; of Robert IL, ib.\ of Malcolm IL ib.; of William the Lion, iZ>.; of Alex- ander IL, ib.\ of James L,^ ib. ; of James VL, 48 ; parliament dif- ferent from the English, ib. ; power of, restricted at the acces- sion of James Vic to the throne of England, ib. Scott's (Sir Walter) failure in ren- dering Richard I. interesting, 212. ^ Sec^recy, alleged want af, in demo- cratic polity, 124. Secret voting, inexpedient, except for tradesmen, 84. Sectarian zeal and political violence prevented by religious establish- ments, 132. Security, greater, afforded to liberty by the representative system, b7. Selection of deputies insured by the representative system, b5. Sempach, treaty of,. 392. Several bodies, discussion by, a check on rash decisions, 100. Sicily, origin of representative go- vernment In, 36. Sidney (Algernon), indifferent to the manner of electing the repre- sentatives of the people, 88. Sieyes, and the constitution pro- posed by him, 354. Simon de Montfort, his parliament with borough members, 225. Slave trade, abolition of, demanded by the American colonies, and refused by England, 335. Slavish conduct of the judges under James L, 268, 270. Small numbers, benefit of intrust- ing power to, 54 ; small states, advantages and disadvantages of, 52. Social war in Rome, 27. Soleure, vide Switzerland. Sovereign, resources of the, for re- sisting popular usurpation in a mixed government, 41 ; substan- tive power of the, in England, 302. Spain, conduct of, towards its colo- nies, 141 ; the kings of, receive from the Pope the power of ap- pointing prelates, 213. Spanish influence in England under Queen Mary, 257. Sparta, mixed government of, 147; its origin, 152. Stadtholder's office in Holland, 375, 377. Stages, different, of discussion, a check on rash decisions, 100. Star Chamber's jurisdiction, 257; its operation on parliament and juries, ib^ State engines, religious establish- ments made, 128. States General of Holland, 377. Statutes, preparing of, under the Plantagenets, 242 ; their execu- tion, 243. Strafford's attainder, 276.. Stuarts, reign of the, 266 ; oppres- sion of the crown under the, 271, 274 ; revolting doctrine of the Stuart princes, 272. Subserviency of parliament under the Tudors, its causes, 264. Suffetes, magistrates of Carthage, 8 ; office of, in Carthage, 147- Suffrage, extension of, a check to corruption, 82. Surrey, Earl of, condemned to death by act of Parliament to please Henry VIIL, 254. Suspicious, popular tyranny,. 1 19. INDEX. 425 Swiss confederacy, its government, 21 ; republics, 9. Switzerland, government of, 389 ; early Swiss history, ib. ; inde- pendence established, 390; Mor- garten, ib. ; confederacy formed by the three Forest Cantons or Waldstetten, ib. ; junction of others. Lucerne, Zurich, Zug, Glaris, Berne, ib. ; their several and federal constitutions, 391 ; Ammans, Councils, Avoyers, ib. ; Soleure and Fribourg joined, Basil, Schafthausen, Appenzell, ib. ; the constitution of the five new cantons, ^6.; three bases of the Federal Union, 392 ; great privileges of the eight old can- tons, ib. ; general diet, its pro- ceedings, ib. ; confederates, asso- ciates, subject Bailliages, ib. ; Grison Federacy, its constitution, ib. ; its corruption, 393 ; revolu- tion of 1798 effected by France, ib. ; new republican government, ib.\ conferences of Napoleon, z6.; constitution of 1803, manner of its formation, ib. ; genius of Na- poleon, 394 ; provisions of his constitution, ib. ; contingents of men and money of the cantons, ib. \ their great inequality, ib. ; population, ib. ; perfect federal union, its advantages, 395 ; double votes invented as a remedy for inequality, ib. ; insufficient, ib. ; restrictions on the individual governments, ib. ; directing can- tons, their functions, ib. \ diet, ib, ; its meetings, ib. ; its powers, 396 ; absurdity of the manner of voting, ib. ; foreign enlist- ment, ib. ; internal constitution of the cantons, ib. ; two classes, ib.'., six democratic, 397; their constitution, ib. ; general assem- bly or land-Gemeinde, ib. ; coun- cils, ib' I thirteen aristocratic or mixed cantons, ib. ; great and little councils, ib. ; mode of elec- tion, ib. ; Grabeau, ib. ; courts of appeal, ib. ; table of details, 398 ; Napofeon's conduct, ib. ; existing constitution of 1815, 399 ; twenty- two cantons, ib. ; contingents of troops and money, ib. ; arbitra« tion, ib. ; diet, its constitution and powers, ib. ; vacation, ib. ; com- mission, ib. ; directing cantons, ib. ; restoration of selling troops, and of monastic institutions, 400; six democratic cantons, ib. ; their constitutions, general assemblies, councils, ib.; table of details, 401 ; seventeen aristocratic can- tons, ib. ; their constitutions, great and little councils, composition and powers, ib. ; catholics and protestants, 402 ; bad principle, ib. ; elections, duration of office, q-ualification, ib. ; table of de- tails, 403. Tacitus' opinion of a mixed go- viernment,,147. Tallagio, statute de non concedendo, 44, 235. Taxation under the Anglo-Norman monarchy, 211; exclusive right of, unjustly claimed by the House of Commons, 304. Tenants, ballot useless to, 69. Terror of popular tyranny, 119. Thebes, vide Boeotia. Thing-man or Danish body-guard in England, 198. Throckmorton, juries punished by Qaeen Mary for acquitting, 258. Torture, Charles I. orders Felton to be put to the, 274 ; it is de- clared illegal by the judges, ib. Towns, democracy natural to, 10; admission of, in England to re- presentation, 43 ; done for the purpose of taxing them, 45 ; re- presentation derived from the county, 46 ; towns of the royal demesne represented the first, ib. ] prevented from domineering over the country by the repre- sentative system, 58. Tradesmen protected by the ballot, 69. Treason, improvement in the law of, made under Edward VI., 256. Trial by jury, vide Jury. Tribunate in France, 357. Triers, 241. Tudors, reign of, 66, 250. Tyler (Watt), insurrection of, 244. Tyranny and profligacy of the An- glo-Norman kings, 215. Ultimate destiny of all govern- ments the same, 163. Upper, vicious constitution of the, chamber in the Netherlands, 388; 426 INDEX. classes safe in an improved age, 170. Urban II., Pope, grants to the kings of Spain the power of appointing prelates, 213. Vacation committee, 243. Venetian government, its origin, \o2. Vigour, alleged want of, in demo- cratic polity, 12-1. Virginia, history of, 329. Voltaire and Robertson the founders of the new school of philosophical history, 193. Voter, rule, " once a, always a," 76. Voting, manner of, modifies the representation, 66. Waldstetten, confederacy of the, 390. Warwick, bill for the disfranchise- ment of, rejected 1834 by the House of Lords, 145. Washington could not entertain schemes of ambition on account of the democratic government of his country, 110. WeHington (Duke of), prepares 1834 a plan for the disfran- chisement of corrupted boroughs, 144. Wentworth's opposition in parlia- ment under Elizabeth, 260. Weregelds restored by Henry I. of England, 211. Westminster, statutes of, 1st and 2nd, 43; 3rd, 44. Wicked, no such ruler in democratic polity, 111. William the Conqueror, vide Anglo- Saxon monarchy ; parliament un- der, 40. William II., vide Anglo-Saxon mo- narchy. William the Lion's (of Scotland) laws, 47. Winchelsey (Archbishop), conduct of, compared to that of Cardinal Langton, 231. Winton and Circumspecte agatis, statutes of, 44. Witan and Witenagemote, 40 ; of- fice of, 199. Works on the constitution of the United States of America, 340. Writers on the English constitu- tion, 321. Wykins, office of, in Holland, 378. Zug, vide Switzerland. Zurich, vide Switzerland. London : Printe<\ by W. Cxmweb and Sons, Stamford Street. ff. i n DATE DUI *> ^ZJS. ' ■ v*^l!&>;i ^ ^*^- ^-^ ■S"^ ' -W^ ' ,i . pi; y.ii • ■ ■ •. :i -■ ... . . 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