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June, 1824.
IMPORTANT works
NEW EDITIONS,
* mechwrºv runzisman aw
I.ONGMAN, HURST, REES, ORME, BR9WN, AND GREEN.
LONDON. 3- -
- , , 1.
The ENGLISH FLORA, . By SIR. JAMEs E. SMITH, President
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So much has been done in Botany since the Publication of this Author’s FLORA BRITAN-
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J. N.
\\".
34
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lers and Mavors.”—Quarten ly Review, No. 52.
22.
ELEMENTS of ALGEBRA; compiled from GARNIER's French
Translation of LEoNARD EULER, and arranged so as to form a complete System of Elemen-
tary Instruction in the First Part of Algebra. To which are added, Solutions of several
Miscellaneous Problems, with Questions and Examples for the Practice of the Student. By
CHARLEs TAYLOR, Downing College, Cambridge. 1 Vol. 8vo.
23.
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comprising a Concise History of the Materia Medica, as well as of the preparations con-
tained therein, with a brief notice of their Doses, Virtues, and Uses. By R. M AUGHAM,
Author of the Pupil’s Pharmacopaeia, printed uniform with the small edition of the Phar-
macopaeia Londinensis. Nearly ready.
24.
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RoMAN EMPIRE, adapted for Families and Young Persons, by the Omission of objec-
tionable Passages.” By Thomas Bowdler, Esq. F.R.S. &c. Editor of the Family Shak-
speare, &c. &c.
25.
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THOMAs Moore, Esq. Author of Lalla Rookh, &c
16 Works to be published in the Course of June.
26.
DOMESTIC DUTIES; or, Instructions to Young Married
Ladies, on the Management of their Households, and the Regulation of their Conduct in
the various Relations and Duties of Married Life. By Mrs. FRANCEs PARKEs.
27.
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DRAL. To be illustrated by at least Twenty-two Engravings, from very elaborate Draw-
ings. In Four Numbers. By John BRITton, F. S.A., &c.
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CHURCH: with Eight Engravings. By J. and H. LE KEux, from Drawings by Mac,
KENziE, &c. Imperial 4to. By John BRITTON, F. S. A., &c.
By the same Author,
BEAUTIES of WILTSHIRE. Vol. III, with copious Indexes, &c &c, a Map of the
County, and Ten Engravings.
29.
The ART of FRENCH COOKERY. By A. B. Beauvilliers,
Restaurateur, Paris. In l Vol. 12mo, printed uniformly with the “DOMESTIC COOK.
ERY.”
30. w =
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the Author of the “Stories of Old Daniel,” &c. In 2 Vols. 12mo. -
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M.D. Physician to the General Infirmary and Lunatic Asylum, Gloucester. In 1 Vol. 8vo.
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34.
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THE
CONSTITUTION
OF
E N G L A N D.
C. Baldwin, Printer,
New Bridge-Street, London,

2%zzzzzzzº

THE
CONSTITUTION
OF
E N G L A N D;
OR,
AN ACCOUNT
OF
THE ENGLISH GOVERNMENT;
IN WHICH IT IS COMPARED
REPUBLICAN FORM OF GOVERNMENT,
AND THE
OTHER MONARCHIES IN EUROPE.
BY
J. L. DE LoLME.
A NEW EDITION,
WITH SUPPLEMENTAL NOTES, AND A PREFACE BIOGRAPHICAL
AND CRITICAL.
Ponderibus librata suis
OWID. Met. Lib. i. v. 13.
LONDON :
PRINTED FOR. J. CUTHELL; LONGMAN, HURST, REES, ORME,
AND BROWN; T. CADELL; LACKINGTON AND CO; R. PHENEY:
J. BookER; BALDWIN, CRADOCK AND JOY; G. AND
W. B. WHITTAKER ; R. SAUNDERS : T. WILKIE; E. EDWARDS; AND
E. WILLIAMS,
1822.
4- * , *a*če...u ſ3, a * - > *
&-/*-33 Z
TO
T H E K I N G.
SIRE,
THE approbation with which the public have
been pleased to favour this Work, together with
the nature of the subject, embolden me to lay the
present fourth and enlarged edition of the same at
your Majesty's feet, both as an homage and an
expression of the desire I entertain, that the book
may for a few minutes engage the attention of a
person of your deep and extensive knowledge.
Your Majesty's reign has, for many years past,
afforded proofs, in more respects than one, that,
though human wisdom may not always be able to
anticipate difficulties, yet, assisted by fortitude, it
can succeed in terminating them in a more favour-
able manner than it seemed at first possible to be
expected, or even in bringing them to a happy
issue. According to the common course of nature,
your Majesty has only yet seen the less consider-
able part of the years of which your reign is to be
wi • . DEDICATION.
composed: that the part which now opens before
your Majesty may be attended with a degree of
satisfaction proportionate to your Majesty's public
and private virtues, to your disinterested govern-
ment, and religious regard for your royal engage-
ments, is the fond hope of
Your MAJESTY's
Most humble and most devoted Servant,
And, these many Years,
Subject by Choice,
J. L. DE LOLME.
May, 1784. -
ADWERTISEMENT.
THE Book on the English Constitution, of which a
new edition is here offered to the public, was first writ-
ten in French, and published in Holland.* Several per-
sons have asked me the question, How I came to think
of treating of such a subject? One of the first things in
this country, that engages the attention of a stranger
who is in the habit of observing the objects before him,
is the peculiarity of its government: I had moreover
been lately a witness of the broils which had for some
time prevailed in the republic in which I was born, and
of the revolution by which they were terminated.
Scenes of that kind, in a state which, though small, is
independent, and contains within itself the principles
of its motions, had naturally given me some competent
insight into the first real principles of governments:
owing to this circumstance, and perhaps also to some
moderate share of natural abilities, I was enabled to
perform the task I had undertaken with tolerable
success. I was twenty-seven years old when I came to
this country: after having been in it only a year, I be-
* In one of the notes to this work, the author says that it was first published
in France. The fact seems to have been, that it made its first appearance in
Holland, whence it was sent to France.-EDIT.
viii A DV ERTIS EMENT,
gan to write my work, which I published about nine
months afterwards; and have since been surprised
to find that I had committed so few errors of a cer-
tain kind: I certainly was fortunate in avoiding to
enter deeply into those articles with which I was not
sufficiently acquainted. - -
The book met with rather a favourable reception on
the Continent; several successive editions having been
made of it. And it also met here with approbation,
even from men of opposite parties: which, in this coun-
try, was no small luckfor a book on systematical politics.
Allowing that the arguments had some connexion and
clearness, as well as novelty, I think the work was of pe-
culiar utility, if the epoch at which it was published is
considered; which was, though without any design from
me, at the time when the disputes with the colo-
nies were beginning to take a serious turn, both here
and in America. A work which contained a specious,
if not thoroughly true, confutation of those political
notions, by the help of which a disunion of the empire
was endeavoured to be promoted (which confutation
was moreover noticed by men in the highest places),
should have procured to the author some sort of real
encouragement; at least the publication of it should
not have drawn him into any inconvenient situation.
When my enlarged English edition was ready for the
press, had I acquainted ministers that I was preparing
to boil my tea-kettle with it, for want of being able con-
veniently to afford the expense of printing it, I do not
pretend to say what their answer would have been ; but
I am firmly of opinion, that, had the like arguments in
favour of the existing government of this, country,
against. republican principles, been shown to. Charles,
A DV ERTISEMENT, ix-
the First, or his ministers, at a certain period of his
reign, they would have very willingly defrayed the ex-
penses of the publication. In defect of encouragement
from great men (and even from booksellers) I had re-
course to a subscription; and my having expected any
success from such a plan, shows that my knowledge of
this country was at that time very incomplete.*
* In regard to two subscribers in particular, I was, I confess, sadly disap-
pointed. Though all the booksellers in London had at first refused to have
anything to do with my English edition (notwithstanding the French work was
extremely well known), yet soon after I had thought of the expedient of a subscrip-
tion, I found that two of them, who are both living, had begun a translation,
on the recommendation, as they told me, of a noble lord, whom they named,
who had, till a few years before, filled one of the highest offices under the
crown. I paid them ten pounds, in order to engage them to drop their un-
dertaking, about which I understood they already had been at some expense.
Had the noble lord in question favoured me with his subscription, I would
have celebrated the generosity and munificence of my patron; but as he did
not think proper so to do, I shall only observe that his recommending my..
work to a bookseller cost me ten pounds.
At the time the above subscription for my English edition was advertising,
a copy of the French work was asked of me for a noble earl,” then invested
with a high office in the state ; none being at that time to be found at any
bookseller's in London. I gave the enly copy I had (the consequence was,
that I was obliged to borrow one, to make my English edition from): and I added,
that I hoped his lordship would honour me with his subscription. However,
my hopes were here again confounded. As a gentleman who continues to fillan
important office under the crown, accidentally informed me about a year after-
wards, that the noble lord here alluded to had lent him my French work, I
had no doubt left that the copy I had delivered had reached his lordship's hand;
I therefore presumed to remind him, by a letter, that the book in question
had never been paid for; at the same time apologizing for such liberty from the
circumstances in which my late English edition had been published, which did not
allow me to lose one copy. I must do his lordship (who is mºreover a
knight of the gaiter) the justice to acknowledge, that, no later than 9 week af-
terwards, he sent two half-crowns for me to a bookseller's in Fleet-street. A
* M. de Lolme seems here to allude to the earl of Rochford.-EDIT.
X. A DVERTISEMENT,
*
After mentioning the advantages with which my
work has not been favoured, it is, however, just that I
should give an account of those by which it has been
attended. In the first place, as is above said, men of
high rank have condescended to give their approbation to
it; and I take this opportunity of returning them my most
humble acknowledgements. In the second place, after
the difficulties, by which the publication of the book
had been attended and followed, were overcome, I be-
gan to share with booksellers in the profit arising from
the sale of it. These profits I indeed thought to be but
scanty and slow : but then I considered this was no
more than the common complaint made by every trader
in regard to his gain, as well as by every great man in
regard to his emoluments and hispensions. After acourse
of some years, the met balance, formed by the profits in
question, amounted to a certain sum, proportioned to
the size of the performance. And, in fine, I must add
to the account of the many favours I have received, that
I was allowed to carry on the above business of selling
my book, without any objection being formed against
me from my not having served a regular apprentice-
ship, and without being molested by the inquisition.
Several authors have chosen to relate, in writings
published after death, the personal advantages by which
lady brought them in a coach, who took a receipt. As she was, by the book-
seller's account, a fine lady, though not a peeress, it gave me much concern
that I was not present to deliver the receipt to her myself.
At the same time I mention the noble earl's great punctuality, I think I
may be allowed to say a word of my own merits. I waited, before I presumed
to trouble his lordship, till I was informed that a pension of four thousand
pounds was settled upon him (I could have wished much my own creditors had,
about that time, shown the like tenderness to me); and I moreover gave bim
time to receive the first quarter.
A DVERTISEMENT. xi
their performances had been followed: as for me, I
have thought otherwise; and, fearing that during the
latter part of my life I may be otherwise engaged, I have
preferred to write now the account of my successes in
this country, and to see it printed while I am yet living.
I shall add to the above narrative (whatever the rea-
der may be pleased to think of it) a few observations of
rather a more serious kind, for the sake of those persons
who, judging themselves to be possessed of abilities,
find they are neglected by such as have it in their pow-
er to do them occasional services, and suffer themselves
to be mortified by it. To hope that men will in earnest
assist in setting forth the mental qualifications of others,
is an expectation which, generally speaking, must needs
be disappointed. To procure one’s notions and opinions
to be attended to, and approved by the circles of one's
acquaintance, is the universal wish of mankind. To
diffuse these notions farther, to numerous parts of the
public, by means of the press or by others, becomes an
object of real ambition; nor is this ambition always
proportioned to the real abilities of those who feel it:
very far from it. When the approbation of mankind is
in question, all persons, whatever their different ranks
may be, consider themselves as being engaged in the
same career; they look upon themselves as being can-
didates for the very same kind of advantage: high and
low, all are in that respect in a state of primeval equa-
‘lity; nor are those who are likely to obtain some prize,
to expect much favour from the others.
This desire of having their ideas communicated to,
and approved by, the public, was very prevalent among
the great men of the Roman commonwealth, and after-
wards with the Roman emperors; however imperfect the
xii A DVERTISEMENT.
means of obtaining those ends might be in those days
compared with those which are used in ours. The same
desire has been equally remarkable among modern
European kings, not to speak of other parts of the
world; and a long catalogue of royal authors may be
produced. Ministers, especially after having lost their
places, have shown no less inclination than their masters,
to convince mankind of the reality of their knowledge.
Noble persons, of all denominations, have increased
the catalogue. And, to speak of the country in which
we are, there is, it seems, no good reason to make any
exception in regard to it; and, great men in it, or in
general those who are at the head of the people, are, we
find, sufficiently anxious about the success of their
speeches, or of the printed performances which they
sometimes condescend to lay before the public: nor has
it been every great man, wishing that a compliment
may be paid to his personal knowledge, that has ven-
tured to give such lasting specimens.
Several additions were made to this work at the time
I gave the first English edition of it. Besides a more
accurate division of the chapters, several new notes and
paragraphs were inserted in it; for instance, in the
11th chapter of the 2d book: and three new chapters, the
15th, 16th, and 17th, amounting to about ninety pages,
were added to the same book. These three additional
chapters, never having been written by me in French,
were inserted in the third edition made at Amsterdam;
translated, by a person whom the Dutch bookseller
employed for that, purpose: as I never had an opportus
A DVERTISEMENT. xiii
nity to peruse a copy of that edition, I cannot say how
well the translator performed his task. Having now
parted with the copy-right of the book, I have farther
added four new chapters to it (10, 11, B.I. 19, 20, B. II.)
by way of taking a final leave of it; and in order the more
completely to effect this, I may perhaps give, in a few
months, a French edition of the same (which I camot tell
why I have not done sooner), in which all the above-men-
tioned additions, translated by myself, shall be inserted.
In one of the former additional chapters (the 17th, B.
II.) mention is made of a peculiar circumstance attend-
ing the English government, considered as a monarchy,
which is the solidity of the power of the crown. As
one proof of this peculiar solidity, it is remarked, in that
chapter, that all the monarchs who ever existed, in any
part of the world, were neverable to maintain their ground
against certain powerful subjects (or a combination of
them) without the assistance of regular forces at their
constant command; whereas it is evident that the
power of the crown, in England, is not at this day sup-
ported by such means; nor even had the English kings
a guard of more than a few scores of men, when their
power, and the exertions they at times made of it, were
equal to what has ever been related of the most absolute
Roman emperors.
The cause of this peculiarity in the English govern-
ment, is said, in the same chapter, to lie in the circum-
stance of the great or powerful men, in England, being
divided into two distinct assemblies, and, at the same
time, in the principles on which such a division is
formed. To attempt to give a demonstration of this
assertion otherwise than by facts (as is done in the chap-
ter here alluded to) would lead into difficulties which
xiv ADWERTISEMENT.
the reader is little aware of. In general, the science of
politics, considered as an exact science,—that is to say,
as a science capable of actual demonstration,--is in-
finitely deeper than the reader suspects. The know-
ledge of man, on which such a science, with its prelimi-
nary axioms and definitions, is to be grounded, has hither-
to remained surprisingly imperfect: as one instance how
little man is known to himself, it might be mentioned
that no tolerable explanation of that continual human
phenomenon, laughter, has been yet given; and the
powerful complicate sensation which each sex pro-
duces in the other, still remains an equally inexplicable
mystery. *
To conclude the above digression (which may do
very well for a preface), I shall only add, that those
speculators who will amuse themselves in seeking for
the demonstration of the political theorem above express-
ed, will thereby be led through a field of observations,
which they will at first little expect; and in their way
towards attaining such demonstration, will find the sci-
ence, commonly called metaphysics, to be at best but
a very superficial one, and that the mathematics, or at
least the mathematical reasonings hitherto used by
men, are not so completely free from error as has been.
thought.*
Out of the four chapters added to the present edition,
* Certain errors that are not discovered, are, in several cases, compensated
by others, which are equally unperceived.
Continuing to avail myself of the indulgence an author has a right to claim
in a preface, I shall mention, as a farther explanation of the peculiarity in
the English government above alluded to, and which is again touched upon
in the postscript to this advertisement, that a government may be considered
as a great ballet or dance, in which, as in other ballets, everything depends
on the disposition of the figures.
AD VERTISE MENT. XV
, two (the 10th, and 11th, B. I.) contain, among other
things, a few strictures on the Courts of Equity; in
which I wish it may be found I have not been mistaken;
of the two others, one (19th, B. II.) contains a few ob-
servations on the attempts that may, in different cir-
cumstances, be made, to set new limits to the authority
of the crown; and, in the 20th, a few general thoughts
are introduced on the right of taxation, and on the
claim of the American colonies in that respect. Any
farther observations I may make on the English govern-
ment, such as comparing it with the other governments
of Europe, and examining what difference in the man-
ners of the inhabitants of this country may have result-
ed from it, must come in a new work, if I ever under-
take to treat these subjects. In regard to the American
disputes, what I may hereafter write on that account
will be introduced in a work which I may at some fu-
ture time publish, under the title of Histoire de George
Trois, Roi d'Angleterre, or, perhaps, of Histoire d’An-
gleterre, depuis l’Année 1765 (that in which the American
stamp-duty was laid) jusques à l’Année 178—, meaning
that in which an end shall be put to the present contest.*
Nov. 1781.
POSTSCRIPT.
Notwithstanding the intention above expressed, of
making no additions to the present work, I have found
it necessary, in this new edition, to render somewhat
more complete the 17th chapter, Book II. On the pe-
culiar foundations of the English monarchy as a monar-
* A certain book, written in French, on the subject of the American dispute
was, I have been told, lately attributed to me, in which I had no share.
rvi . Aid VERTISEMENT.
chy; as I found its tendency not to be very well under-
stood; and, in fact, that chapter contained little more
than hints on the subject mentioned in it: the task,
in the course of writing, has increased beyond my
expectation, and has swelled the chapter to about sixty
pages above what it was in the former edition, so as
almost to make it a kind of separate book by itself.
The reader will now find, that, in several remarkable
new instances, it proves the fact of the peculiar stability
of the executive power of the British crown, and exhibits
a much more complete delineation of the advantages that
result from that stability in favour of public liberty.
These advantages may be enumerated in the follow-
ing order: I. The numerous restraints the governing
authority is able to bear, and the extensive freedom it
can afford to allow the subject, at its own expense:
II. The liberty of speaking and writing, carried to the
great extent it is in England: III. The unbounded
freedom of the debates in the legislature: IV. The
power to bear the constant union of all orders of sub-
jects against its prerogatives: W. The freedom allow-
ed to all individuals to take an active part in govern-
ment concerns: VI. The strict impartiality with
which justice is dealt to all subjects, without any re-
spect whatever of persons: VII. The lenity of the cri-
minal law, both in regard to the mildness of punish-
ments, and the frequent remission of them: VIII. The
strict compliance of the governing authority with the
letter of the law: IX. The needlessness of an armed
force to support itself by, and, as a consequence, the
singular subjection of the military to the civil power.
The above-mentioned advantages are peculiar to the
English government. To attempt to imitate them, or
A DV F. RTIS E M ENT. xvii
transfer them to other countries, with that degree of
extent to which they are carried in England, without
at the same time transferring the whole order and con-
junction of circumstances in the English government,
would prove unsuccessful attempts. Several articles of
English liberty already appear impracticable to be pre-
served in the new American commonwealths. The
Irish nation have of late succeeded in imitating several
very important regulations in the English government,
and are very desirous to render the assimilation com-
plete; yet, it is possible, they will find many inconveni-
ences arise from their endeavours, which do not take
place in England, notwithstanding the very great ge-
neral similarity of circumstances in the two kingdoms
in many respects; and even also, we might add, not-
withstanding the respectable power and weight the
crown derives from its British dominions, both for de-
fending its prerogative in Ireland, and preventing anar-
chy: I say, the similarity in many respects between the
two kingdoms; for this resemblance may perhaps fail
in regard to some important points: however, this is a
subject about which I shall not attempt to say any
thing, not having the necessary information.
The last chapter in the work, concerning the nature
of the divisions that take place in this country, I have
left in every English edition as I wrote it at first in
French. With respect to the exact manner of the de-
bates in parliament, mentioned in that chapter, I can-
not well say more at present than I did at that time, as
I never had an opportunity to hear the debates in either
house. In regard to the divisions in general to which
the spirit of party gives rise, I did perhaps the bulk of
the people somewhat more honour than they really
b
xviii A DV.ERTIS F. M. EºN T.
deserve, when I represented them as being free from
any violent dispositions in that respect: I have since
found, that, like the bulk of mankind in all countries,
they suffer themselves to be influenced by vehement
prepossessions for this or that side of public questions,
commonly in proportion as their knowledge of the sub-
ject is imperfect. It is, however, a fact, that political
prepossessions and party spirit are not productive, in this
country, of those dangerous consequences which might
be feared from the warmth with which they are some-
times manifested. But this subject, or in general the
subjects of the political quarrels and divisions in this
country, is not an article one may venture to meddle
with in a single chapter; I have therefore let this
subsist, without touching it.
I shall however observe, before I conclude, that an
accidental circumstance in the English government pre-
vents the party spirit, by which the public are usually
influenced, from produeing those lasting and rancorous
divisions in the community which have pestered so many
other free states, making of the same nation, as it were,
two distinct people, in a kind of constant warfare with
each other. The circumstance I mean is, the frequent
reconciliations (commonly to quarrel again afterward)
that take place between the leaders of parties, by which
that most violent and ignorant class of their partisans
are bewildered, and made to lose the scent. By the
frequent coalitions between whig and tory leaders, even
that party distinction, the most famous in the English
history, has now become useless: the meaning of the
words has thereby been rendered so perplexed that no-
body can any longer give a tolerable definition of them ;
and those persons who now and then aim at gaining
A DV ERT IS E MENT. xix
popularity by claiming the merit of belonging to either
party, are scarcely understood. The late coalition be-
tween two certain leaders has done away, and prevented
from settling, that violent party spirit to which the ad-
ministration of Lord Bute had given rise, and which the
American disputes had carried still farther. Though
this coalition has met with much obloquy, I take the
liberty to rank myself in the number of its advocates, so
far as the circumstance here mentioned. -
May, 1784.
b 2.
THE
EDITOR'S PREFACE.
Gº-
-msmºs-ºs-
IT was long a prevailing opinion, not only on the
continent, but even in Great-Britain, that the best his-
tory of England was written by a foreigner: but that
persuasion, certainly not very honorable to this country,
was at length exploded by the display of British genius;
and the popular work of M. Rapin de Thoyras was
superseded by the efforts of native historians. Another
opinion, equally general, was, that the most rational
and enlightened survey of our constitution was also the
work of a foreigner: and even the labors of professor
Millar, and other British writers who have treated of this
subject, do not appear to me to discredit or falsify the
assertion. The performance to which I allude is now
re-published, with illustrative notes, that the demand for
a work of extraordinary merit (which has been long, in
the booksellers’ phrase, out of print), may be effectually
and amply gratified.
When I undertook the editorial task on this occasion,
it was not generally known whether the author still lived,
or had paid the debt of nature. He had left England
many years before; and no intelligence of his move-
ments, or of his place of abode, had reached those who
had formerly been honored with his acquaintance. It
xxii THE EDITo R’s PREFACE.
is, now ascertained, however, that he lately died on the
continent. - r
Of his life I have been unable to procure any ac-
count, except a few meagre hints. In imitation of some
pretended biographers, I mighteke out my scanty stock
of materials (or rather supply the deficiency of materials),
by inventing anecdotes, discussing fictitious points, and
drawing conclusions from imaginary incidents and cir-
cumstances; but sober truth would disdain such fig-
ments, and execrate such idle impertinence.
Jo HN Louis DE Lo LME was born at Geneva, of
respectable parents, in the year 1745, or perhaps at an
earlier period. He received a liberal education, and
embraced the profession of the law; but he did not
long practise as an advocate before he formed the reso-
lution of quitting his country, that he might display his
lively talents and his literary attainments on a more con-
spicuous theatre of action, and might personally ob-
serve the constitutions and customs of more powerful
states and more dignified communities. The English
government, in particular, excited his curiosity; and he
resolved to study its nature, and examine its principles,
with particular care and attention. He even endea-
voured, in the first work which he published after his
arrival in England, to lead his readers into an opinion
that he was a native of this favored country. It was
written in our language, and appeared in 1772, with the
following title: “A Parallel between the English
“Constitution and the former Government of Sweden;
“ containing some Observations on the late Revolution
“in that Kingdom, and an Examination of the Causes
“ that secure us against both Aristocracy and Absolute
“Monarchy.” Many of our countrymen were appre-
THE EDITOR’s PREF ACE. xxiii.
hensive, that our constitution might be subverted like
that of Sweden; but the learned doctor (for M. de
Lolme had previously taken the degree of LL.D.), by
contrasting with the polity of England the government
which Gustavus III. had overturned, plausibly argued
that such fears were ill-founded.
He soon after commenced that work which now re-
appears in print, and which established his literary
and political fame. It was applauded, on its appear-
ance in the French language, as a very ingenious and
spirited performance, combining originality of thought
with justness of remark and perspicuity of expression.
A translation of it being earnestly desired, the author
enlarged and improved it, and published the first Eng-
lish edition of it in June, 1775.*
In the Monthly Review, which, although some of the
writers employed in it have been both illiterate and
illiberal, may be considered as the best of our periodical
vehicles of criticism, the following character was given
of M. de Lolme's production.
“ Upon a careful review of this work, we can venture
“to pronounce. that it is an admirable performance.
“The view given of the English constitution is exact
“ and perspicuous; and the peculiar advantages of it are
“ pointed out with uncommon sagacity and penetra-
“tion. The writer had derived benefit, in this respect,
“not merely from his own excellent understanding, but
* It is supposed by many readers, that M. de Lolme was the translator of
his own work from the French; and his great knowledge of our language has
been the subject of high encomium. But, if the general style of the work be
compared with that of the dedication, which, in every sentence, bears marks of
a foreign pen, it will readily be concluded, that the body of the publication was
chiefly translated by an Englishman, under the author's eye.
xxiv. THE EDITOR’s PREFACE.
“from the circumstance of his being a foreigner. It is
“hence that he hath been enabled to behold some pe-
“culiarities of the British government in a stronger
“light than the natives of this country, who are not so
“powerfully stricken by objects which are continually.
“ before their eyes.” The reviewer adds, that he en-
tirely coincides in opinion with Junius, who had praised
the work as “deep, solid, and ingenious:” yet he pro-
perly observes, that it is “not totally without defect,”
as the author seems “to refine too much in his compari-
“sons between England and other states,” and to be
“far too sanguine in his expectations of the stability
“ and durableness of the English constitution.”
It might have been expected, that, instead of merely
introducing into this work occasional remarks on the
polity of Geneva, he would have composed a separate
history of that republic, or have given a distinct survey
of its constitution, particularly as he had some share in
the government, being a member of the council of two
hundred. For such a work he was well qualified; and
his abilities would have rendered it both pleasing and in-
structive. It can scarcely be alledged, that he thought
it too insignificant for his pen, as he amused himself
with writing upon some of the taxes imposed during the
administration of Mr. Pitt.
Being an enemy to superstition, he ridiculed its glar-
ing absurdities in a volume which appeared in 1783,
entitled, “The History of the Flagellants; or, Memo-
“rials of Human Superstition;” partly borrowed from
the abbé Boileau. A bigot might conclude, or pre-
tend, that the author of such a performance had no
sense of religion or piety: but it is as unreasonable to
impute a profane or impious spirit to the opposer of
THE EDITOR’s PREF Ace. XXV
those superstitions which corrupt true religion, as to ac-
cuse the adversary of a pernicious minister of being an
enemy to all government. He who merely censures
the abuse of an institution, cannot justly be said to argue
against the use of it.
Our author's attention being called to the subject of
the legislative union between England and Scotland, by
an intended re-publication of De Foe's history of that
memorable transaction, he wrote, in 1787, a judicious
essay, calculated for an introduction to that work. In
the following year, he published observations relative to
the tax upon window-lights, the shop-tax, and the im-
post upon hawkers and pedlars. He condemned the
first as absurd and unjustifiable, being a tax on the light
of day, and not on property, but on the absence of pro-
perty—on apertures, holes, vacuities, emptiness. He
reprobated the second as a tax upon the very reverse of
property ; upon a debt, that is, on the rent payable
for the house to which the shop belonged; and the
third he disapproved, as injurious and oppressive.
The momentous question of the regency could not be
expected to escape his notice, or elude his inquiries.
He therefore, in 1789, presented to the public some
“Observations upon the National Embarrassment, and
“ the Proceedings in Parliament relative to the same.”
He denied that the king's political situation was suffi-
ciently analogous to any of the cases stated by the lead-
ing members of the two houses ; and affirmed that it
bore a greater resemblance, in effect, to the case of Don
Sebastian, king of Portugal, who after he had been de-
feated by the Moors, was “a captive* in an unknown
“land, in unknown hands; an access to his person being
* It is more probable that this prince was slain in the conflict.
xxvi. THE EDIFoR’s PR HEAGE.
“deemed impossible, and even not to be thought of.”
He proceeded to argue, that the act of the sovereign,
when he originally convoked the existing parliament,
amounted to the delegation of a general trust to govern
the realm in his name; that the meeting of the lords
and commons implied an acceptance of such trust; and
therefore that the royal authority resided, upon the
king's incapacity, in a convention of the two houses.
This fair and legitimate conclusion met with the concur-
rence of the majority of the nation.
I have now mentioned all the works of M. de Lolme,
of which I could either procure a copy, or meet with
an account. Like many other literary men, he did not
so far profit by his labors as to secure himself against
the evils of poverty. He certainly deserved a greater
degree of patronage than he appears to have received ;
and, if a pension had been conferred upon him for his
able elucidation of the principles of the English govern-
ment, it would have been better bestowed than those
donatives usually are: the giver and the receiver would
have been equally honored.
How long M. de Lolme remained in England after
the commencement of the French revolution, I cannot
inform the reader. What opinion, however, he enter-
tained of that event, we may judge from his known re-
gard for social order and well-regulated liberty. He
must have perceived, that the original projectors, if their
intentions were just or patriotic, were precipitate and
violent in their reforms; and that their successors, aim-
ing at inordinate power, had no sense of humanity or of
justice,—no regard for the true honor of their country,
or the welfare and happiness of the people.
He died in the spring of the year 1807, leaving a
THE EDITOR’s PREF Ace. xxvii
name (if not of the first celebrity, yet) of considerable
eminence in the annals of literature. His perception
was acute, and his mind vigorous. Not content with a
hasty or superficial observation of the characters of men
and the affairs of states, he examined them with a philo-
sophic spirit and a discerning eye. He couldably specu-
late on the different modes of government, develope the
disguised views of princes and ministers, and detect the
arts and intrigues of demagogues and pseudo-patriots.
He could perceive the defects of the boasted consti-
tutions of the ancient republics, and the advantages of a
limited monarchy, like that of Great-Britain. He could
appreciate the blessings of regular government, free on
the one hand, from despotism, and on the other, from
licentiousness; and he was as sensible of the value of
true liberty, as of the necessity of legal restraint and
subordination.
He had the art of pleasing in conversation, though
the graces did not appearin his manners or deportment.
He had a turn for pleasantry and humor; and has been
compared with Burke for the variety of his allusions,
and the felicity of his illustrations. His general tem-
per has been praised; but his spirit was considered by
many as too high for his fortune: yet in one respect,
his mind assimilated to the occasional penury under
which he labored; for, in his mode of living he could
imitate the temperance and self-denial of a philoso-
pher.
C O N T E N T S.
Page
INTRoDUCTION a- - tºr - 1
BOOK I.
A survey of THE VARIOUS Pow ERS INCLUDED
IN THE ENGLISH CONSTITUTION, AND OF THE
LAWS BOTH IN CIVIL AND CRIMIſ A L CAS ES.
CHAP. I. Causes of the Liberty of the English Na-
tion.—Reasons of the Difference between the Go-
vernment of England, and that of France.—In
England, the great Power of the Crown, under
the first Norman Kings, created an Union between
the Nobility and the People º - 5
II. A second Advantage England had over France:
—it formed one undivided State - - 20
III. The Subject continued º º 34
IV. Of the Legislative Power º tºº 50
V. Of the Executive Power tºº - 59
VI. The Boundaries which the Constitution has set
to the Royal Prerogative - º 62
VII. The Same Subject continued º -> 66
VIII. New Restrictions --> g- ->
IX. Of private Liberty, or the Liberty of Indi-
viduals -> - {- tº- - 84
X. On the Law that is observed in England in
regard to Civil Matters tº tº º º-> 95
71
2×XX CONTENTS.
- Page
XI. The Subject continued.—The Courts of Equity 115
XII. Of Criminal Justice - - º 131
XIII. The Subject continued - - 144
XIV. The Subject concluded.—Laws relative to
Imprisonment * . - g- º 160
BOOK II.
A VIEW OF TH E A DVAN TAG ES OF T H E E N G LISH
GOVERNMENT, AND OF THE RIGHTS AND LI-
BERTIES OF THE PEOPLE : A N D A CONFIRMA-
"TION, BY REFERENCE TO FACTs, of THE PRIN-
CIPLES STATED IN THE WORK.
CHAP. I. Some Advantages peculiar to the Eng-
lish Constitution. 1. The Unity of the Execu-
tive Power cº- — 4 º' - 166
II. The Subject concluded.—The Executive Power
is more easily confined when it is owe - 183
III. A Second Peculiarity—The Division of the
Legislative Power - - 186
IV. A. Third Advantage peculiar to the English
Government. The Business of proposing Laws,
Hodged in the hands of the People - º 195
V. In which an Inquiry is made, whether it
would be an Advantage to public liberty, that the
Laws should be enacted by the Votes ofthe People
at large --> º --> - 205
VI. Advantages that accrue to the people from
appointing Representatives tº 218
VII. The Subject continued.—The Advantages that
accrue to the People from their appointing
Representatives are very inconsiderable, wriless
.CONTTEPS I S. Kxxi
Page
they also entirely trust their Legislative Authority £
to them • = º tº - 221
VIII. The Subject concluded.—Effects that have
resulted, in the English Government, from the
People's Power being completely delegated to their
JRepresentatives cº- º º - 227
IX. A farther Disadvantage of Republican Govern-
ments.-The People are necessarily betrayed by
those in whom they trust º º - 231
X. Fundamental Difference between the English Go-
vernment and the Governments just described.—In
England, all Executive Authority is placed out of
the Hands of those in whom the People trust.—
Usefulness of the power of the Crown - – 239
XI. The powers which the People themselves exercise.
—The Election of Members of Parliament - 245
XII. The Subject continued.—Liberty of the Press 247
XIII. The Subject continued - - - 260
XIV. Right of Resistance - * - 268
XV. Proofs, drawn from Facts, of the Truth of the
Principles laid down in the present Work,+1. The
peculiar Manner in which Revolutions have always
been concluded in England tº-2 - – 276
XVI. Second Difference.—The Manner after which
the Laws for the Liberty of the Subject are exe-
cuted in England - º tº- – 292
XVII. A more intimate View of the English Govern-
ment than has hitherto been offered to the Reader
in the Course of this Work.-Very essential Differ-
ences between the English Monarchy, as a Monar-
chy, and all those with which we are acquainted 327
Second Part of the same Chapter º - 354
xxxii CONTIENTS,
Page
XVIII. How far the Examples of Nations who have
lost their Liberty are applicable to England - 400
XIX. A few Additional Thoughts on the Attempts :
that may at particular Times be made to abridge
the Power of the Crown, and some of the Dangers
by which such Attempts may be attended - 423
XX. A few additional Observations on the Right of
Taration, which is lodged in the Hands of the Re-
presentatives of the People.—What kind of Danger
this Right may be exposed to - sº – 435
XXI. Conclusion—A few words on the Nature of the
Divisions that take place in England - – 447
THE
CONSTITUTION
OF
E N G L A N D.
INTRODUCTION.
THE spirit of philosophy which peculiarly dis-
tinguishes the present age, after having corrected
a number of errors fatal to society, seems now to
be directed towards the principles of society itself;
and we see prejudices vanish which are difficult
to overcome, in proportion as it is dangerous to
attack them.* This rising freedom of sentiment,
the necessary fore-runner of political freedom, led
me to imagine that it would not be unacceptable
to the public to be made acquainted with the prin-
ciples of a constitution on which the eye of curio-
sity seems now to be universally turned, and
which, though celebrated as a model of perfection,
is yet but little known to its admirers.
I am aware that it will be deemed presump-
tuous in a man, who has passed the greatest part
* As every popular notion which may contribute to the
support of an arbitrary government is at all times vigilantly
protected by the whole strength of it, political prejudices are
last of all, if ever, shaken off by a nation subjected to such a
government. A great change in this respect, however, has of
B
2 THE CONSTITUTION
of his life out of England, to attempt a delineation
of the English government; a system which is
supposed to be so complicated as not to be under-
stood or developed, but by those who have been
initiated in the mysteries of it from their infancy.
But, though a foreigner in England, yet, as a
native of a free country, I am no stranger to those
circumstances which constitute or characterise li-
berty. Even the great disproportion between the
republic of which I am a member (and in which
I formed my principles) and the British empire,
has perhaps only contributed to facilitate my poli-
tical inquiries.
As the mathematician, the better to discover
the proportions he investigates, begins with free-
ing his equation from coefficients, or such other
quantities as only perplex without properly con-
stituting it; so it may be advantageous, to the
inquirer after the causes that produce the equili-
brium of a government, to have previously studied
late taken place in France, where this book was first pub-
lished; and opinions are now discussed there, and tenets
avowed, which, in the time of Louis the Fourteenth, would
have appeared downright blasphemy; it is to this an allusion
is made above.
[Like other observing men, M. de Lolme readily noticed
that change of opinion injFrance, which preceded the revolu-
tion of the year 1789; but he did not foresee that the impa-
tient spirit of the French, exulting in the decline of prejudices
which had prevailed for ages, would lose the opportunity of
temperate reform, precipitate the nation into horrible con-
vulsions, and diffuse terror and calamity over Europe.—EDIT.]
OF ENGLAND. 3
them, disengaged from the apparatus of fleets,
armies, foreign trade, distant and extensive do-
minions; in a word, from all those brilliant cir-
cumstances which so greatly affect the external
appearance of a powerful society, but have no es-
sential connexion with the real principles of it.
It is upon the passions of mankind, that is,
upon causes which are unalterable, that the action
of the various parts of a state depends. The
machine may vary as to its dimensions; but its
movement and acting springs still remain intrinsi-
cally the same; and that time cannot be consider-
ed as lost which has been spent in seeing them act
and move in a narrower circle. .
One other consideration I will suggest, which
is, that the very circumstance of being a foreigner
may of itself be attended, in this case, with a de-
gree of advantage. The English themselves (the
observation cannot give them any offence) having
their eyes open, as I may say, upon their liberty,
from their first entrance into life, are perhaps too
much familiarised with its enjoyment, to inquire,
with real concern, into its causes. Having ac-
quired practical motions of their government long
before they have meditated on it, and these notions
being slowly and gradually imbibed, they at length
behold it without any high degree of sensibility;
and they seem to me, in this respect, to be like
the recluse inhabitant of a palace, who is perhaps
in the worst situation for attaining a complete idea
of the whole, and never experienced the striking
E 2
4. THE CONSTITUTION
effect of its external structure and elevation; or, if
you please, like a man who, having always had a
beautiful and extensive scene before his eyes, con-
tinues for ever to view it with indifference.
But a stranger-beholding at once the various
parts of a constitution displayed before him, which,
at the same time that it carries liberty to its height,
has guarded against inconveniences seemingly in-
evitable; beholding in short those things carried
into execution which he had ever regarded as more
desirable than possible, is struck with a kind of
admiration; and it is necessary to be thus strongly
affected by objects, to be enabled to reach the ge-
neral principle which governs them. -
Not that I mean to insinuate that I have pene-
trated with more acuteness into the constitution
of England than others; my only design, in the
above observations, was to obviate an unfavourable,
though natural prepossession; and if, either in
treating of the causes which originally produced
the English liberty, or of those by which it con-
tinues to be maintained, my observations should
be found new or singular, I hope the English reader
will not condemn them, but where they shall be
found inconsistent with history, or with daily ex-
perience. Of readers in general I also request,
that they will not judge of the principles I shall
lay down, but from their relation to those of hu-
man nature; a consideration which is almost the
only one essential, and has been hitherto too much
neglected by the writers on the subject of govern-
ment.
OF ENGLAND 5
BOOK I.
A survey of THE VARIOUs Powers INCLUDED
IN THE ENGLISH CONSTITUTION, AND OF THE
LAWS BOTH IN CIVIL AND CRIMINAL CASES.
CHAPTER I.
Causes of the Liberty of the English Nation.
Reasons of the Difference between the Go-
vernment of England and that of France. In
England, the great Power of the Crown, un-
der the Norman Kings, created an Union be-
tween the Nobility and the People.
WHEN the Romans, attacked on all sides by
the barbarians, were reduced to the necessity of
defending the centre of their empire, they abandon-
ed Great Britain, as well as several other of their
distant provinces. The island, thus left to itself,
became a prey to the nations inhabiting the shores
of the Baltic; who, having first destroyed the an-
cient inhabitants, and for a long time reciprocally
annoyed each other, established several sovereign-
ties in the southern part of the island, afterwards
6 'THE CONSTITUTION
called England, which at length were united, un-
der Egbert, into one kingdom. i
The successors of this prince, denominated the
Anglo-Saxon princes, among whom Alfred the
Great and Edward the Confessor are particularly
celebrated, reigned for about two hundred years:
but, though our knowledge of the principal events
of this early period of the English history is in
some degree exact, yet we have but vague and
uncertain accounts of the nature of the govern-
ment which those nations introduced.
It appears to have had little more affinity with
the present constitution, than the general relation,
common indeed to all the governments established
by the northern nations,—that of having a king
and a body of nobility; and the ancient Saxon
government is “ left us in story (to use the ex-
“pressions of Sir William Temple on the subject)
“but like so many antique, broken, or defaced
“ pictures, which may still represent something of
“ the customs and fashions of those ages, though
“little of the true lines, proportions, or resem-
“blance.”
It is at the aera of the conquest that we are to
look for the real foundation of the English con-
stitution. From that period, says Spelman, no-
vus seclorum nascitur ordo.f William of Nor-
* See his Introduction to the History of England.
t See Spelman, Qf Parliaments.—It has been a favourite
thesis with many writers, to pretend that the Saxon govern-
ment was, at the time of the conquest, by no means sub-
OE ENGLAND. 7
mandy, having defeated Harold, and made him-
self master of the crown, subverted the ancient
verted;—that William of Normandy legally acceded to the
throne, and, consequently, to the engagements of the Saxon
kings: and much argument has in particular been employed
with regard to the word conquest, which, it has been said, in
the feudal sense, ouly meant acquisition. These opinions
have been particularly insisted upon in times of popular op-
position: and, indeed, there was a far greater probability of suc-
cess, in raising among the people the notions (familiar to them)
of legal claims and long-established customs, than in arguing
with them from the no less rational, but less determinate, and
somewhat dangerous doctrines, concerning the original rights
of mankind, and the lawfulness of at all times opposing force
to an oppressive government.
But if we consider that the manner in which the public
power is formed in a state is so very essential a part of its
government, and that a thorough change in this respect was
introduced into England by the conquest, we shall not scruple
to allow that a new government was established. Nay, as al-
most the whole landed property in the kingdom was at that
time transferred to other hands, a new system of criminal
justice introduced, and the language of the law moreover
altered, the revolution may be said to have been such as is not
perhaps to be paralleled in the history of any other country.
Some Saxon laws, favourable to the liberty of the people,
were indeed again established under the successors of William :
but the introduction of some new modes of proceeding in the
courts of justice, and of a few particular laws, cannot, so long
as the ruling power in the state remains the same, be said to
be the introduction of a new government; and as, when the
laws in question were again established, the public power in
England continued in the same channel where the conquest had
placed it, they were more properly new modifications of the
Anglo-Norman constitution than they were the abolition of it;
8 THE CONSTITUTION
fabric of the Saxon legislation: he exterminated,
or expelled, the former occupiers of lands, in or-
der to distribute their possessions among his fol-
lowers; and established the feudal system of go-
vernment, as better adapted to his situation, and
or, since they were again adopted from the Saxon legislation,
they were rather imitations of that legislation, than the restora-
tion of the Saxon government.
Contented, however, with the two authorities I have above
quoted, I shall dwell no longer on a discussion of the precise
identity, or difference, of two governments; that is, of two
ideal systems, which only exist in the conceptions of men.
Nor do I wish to explode a doctrine, which, in the opinion of
some persons, giving an additional sanction and dignity to the
English government, contributes to increase their love and re-
spect for it. It will be sufficient for my purpose, if the reader
shall be pleased to grant that a material change was, at the
time of the conquest, effected in the government then exist-
ing, and is accordingly disposed to admit the proofs that will
presently be laid before him, of such change having prepared
the establishment of the present English constitution.
[In some parts of this note, the author's meaning is awk-
wardly and inconsistently expressed: yet it is evident that he
refers the constitution to a Norman rather than a Saxon
origin, and attributes to the success of William all the revolu-
tionary effects of a conquest. Important changes were un-
doubtedly introduced by that imperious monarch; but, instead
of subverting the Saxon constitution, while he introduced
many of the laws of Normandy, he seems to have retained a
considerable proportion of those which had been established
in England; though it ought perhaps to be added, that, even
after he had ostensibly and repeatedly confirmed the laws of
Edward the Confessor, he neglected the strict performance of
his solemn engagements.—EDIT.]
OF ENGLAND. 9
indeed the only one of which he possessed a com-
petent idea. -
This sort of government prevailed also in almost
all the other parts of Europe. But, instead of
being established by dint of arms, and all at once,
as in England, it had only been established on the
continent, and particularly in France, through a
long series of slow successive events:—a difference
of circumstances this, from which consequences
were in time to arise as important as they were at
first difficult to be foreseen.
The German nations who passed the Rhine to
conquer Gaul were in a great degree independent;
their princes had no other title to their power, but
their own valour and the free election of the
people; and, as the latter had acquired in their
forests but contracted notions of sovereign au-
thority, they followed a chief less in quality of
subjects, than as companions in conquest. $
Besides, this conquest was not the irruption of
a foreign army, which only takes possession of
fortified towns;—it was the general invasion of a
whole people in search of new habitations; and,
as the number of the conquerors bore a great pro-
portion to that of the conquered, who were at the
same time enervated by long peace, the expedition
was no sooner completed than all danger was at
an end, and of course their union also. After di-
viding among themselves what lands they thought
proper to occupy, they separated; and though their
tenure was at first only precarious, yet, in this
10 THE CONSTITUTION
particular, they depended not on the king, but on
the general assembly of the nation.*
Under the kings of the first race, the fiefs, by
the mutual commivance of the leaders, at first be-
came annual; afterwards, held for life. Under the
descendants of Charlemagne, they became he-
reditary. # And when at length Hugh Capet ef-
fected his own election, to the prejudice of Charles
of Lorrain, intending to render the crown, which
in fact was a fief, hereditary in his own family, f he
established the hereditariship of fiefs as a general
principle; and from this epoch authors date the
complete establishment of the feudal system in
France. * *
On the other hand, the lords who gave their
suffrages to Hugh Capet forgot not the interest of
their own ambition. They completed the breach
of those feeble ties which subjected them to the
royal authority, and became every where inde-
pendent. They left the king no jurisdiction, either
over themselves, or their vassals; they reserved
* The fiefs were originally called terrae jure beneficii conces-
saº ; and it was not till under Charles le Gros that the term
jief began to be in use. See BENEFICIUM, Gloss. Du Cange.
f Apud Francos vero, sensim pedetentimque, jure hareditario
ad haeredes subinde transierunt feuda ; quod labente seculo
nono incepit. See FEUDUM, Du Cange.
f Hotoman has proved beyond a doubt, in his Franco-Gal-
lia, that, under the two first races of kings, the crown of
France was elective. The princes of the reigning family had
nothing more in their favour than the custom of choosing one
of that house.
OF ENGLAND. 11
the right of waging war with each other; they
even assumed the same privilege, in certain cases,
with regard to the king himself; * so that if Hugh
Capet, by rendering the crown hereditary, laid
the foundation of the greatness of his family, and
of the crown itself, yet ye added little to his own
authority, and acquired scarcely any thing more
than a nominal superiority over the number of
sovereigns who then swarmed in France. If
But the establishment of the feudal system in
England was an immediate and sudden consequence
of that conquest which introduced it. Besides,
this conquest was made by a prince who kept the
greater part of his army in his own pay, and who
was placed at the head of a people over whom he
was an hereditary sovereign, circumstances which
* The principal of these cases was, when the king refused
to appoint judges to decide a difference between himself and
one of his first barons; the latter had then a right to take up
arms against the king; and the subordinate vassals were so
dependent on their immediate lords, that they were obliged to
follow them against the lord paramount. St. Louis, though
the power of the crown was in his time much increased, was
obliged to confirm both this privilege of the first barons, and
this obligation of their vassals.
f “The grandees of the kingdom,” says Mezeray, “thought
“ that Hugh Capet ought to put up with all their insults, be-
“cause they had placed the crown on his head : nay, so great
“was their licentiousness, that, on his writing to Audebert,
“viscount of Perigueux, ordering him to raise the siege he
“had laid to Tours, and asking him, by way of reproach, who
“had made him a viscount 2 that nobleman haughtily answer-
“ed, not you, but those who made you a king. [Ce n'est pas
“vous, mais ceux qui vous ont fait roil.” .*
I2 THE CONSTITUTION
gave a totally different turn to the government of
that kingdom. g
Surrounded by a warlike, though a conquered
nation, William kept on foot part of his army.
The English, and after them the Normans them-
selves, having revolted, he crushed both ; and the
new king of England, at the head of victorious
troops, having to do with two nations lying under
a reciprocal check from the enmity they bore to
each other, and, moreover, equally subdued by a
sense of their unfortunate attempts of resistance,
found himself in the most favourable circumstances
for becoming an absolute monarch; and his laws,
thus promulgated in the midst, as it were, of
thunder and lightning, imposed the yoke of des-
potism both on the victors and the vanquished.*
He divided England into sixty thousand two
hundred and fifteen military fiefs, all held of the
crown; the possessors of which were, on pain of
forfeiture, to take up arms, and repair to his
standard on the first signal: he subjected not only
the common people, but even the barons, to all
the rigours of the feudal government: he even
imposed on them his tyrannical forest laws.f
He assumed the prerogative of imposing taxes.
* Professor Millar is unwilling to allow, that the victors
were despotically ruled by William : but, though he was par-
tial to his countrymen, he certainly did not suffer them to
elude his powerful grasp, or escape the effects of his tyranny.
—EDIT. - - yº
f He reserved to himself an exclusive privilege of killing
game throughout England, and enacted the severest penalties
OF ENGLAND. I3
He invested himself with the whole executive
power of government. But what was of the
greatest consequence, he arrogated to himself the
most extensive judicial power by the establishment
of the court which was called Aula Regis, a for-
midable tribunal, which received appeals from all
the courts of the barons, and decided, in the last
resort, on the estates, honour, and lives of the
barons themselves; and which, being wholly com-
posed of the great officers of the crown, removable
at the king's pleasure, and having the king himself
for president, kept the first noblemen in the king-
dom under the same control as the meanest sub-
ject.
Thus, while the kingdom of France, in conse-
quence of the slow and gradual formation of the
feudal government, found itself, in the issue, com-
posed of a number of parts simply placed by each
other, and without any reciprocal adherence, the
kingdom of England on the contrary, from the
sudden and violent introduction of the same sys-
tem, became a compound of parts united by the
strongest ties; and the regal authority, by the
pressure of its immense weight, consolidated the
whole into one compact indissoluble body.
To this difference in the original constitution of
on all who should attempt it without his permission. The
suppression, or rather mitigation of these penalties, was one
of the articles of the Charta de Foresta, which the barons
afterwards obtained by force of arms. Nullus de caetero amit-
tat vitam, vel membra, pro venatione nostrá. Ch. de Forest.
Art. 10. + *
14 THE CONSTITUTION
France and England, that is, in the original power
of their kings, we are to attribute the difference,
so little analogous to its original cause, of their
present constitutions. This furnishes the solution
of a problem which, I must confess, for a long
time perplexed me, and explains the reason why,
of two neighbouring nations, situated almost under
the same climate, and having one common origin,
the one has attained the summit of liberty, the
other has gradually sunk under an absolute mo-
narchy. -
In France, the royal authority was indeed in-
considerable; but this circumstance was by no
means favourable to the general liberty. Thé
lords were every thing; and the bulk of the nation
were accounted nothing. All those wars which
were made on the king had not liberty for their
object; for of this the chiefs already enjoyed too
great a share: they were the mere effect of private
ambition or caprice. The people did not engage
in them as associates in the support of a cause
common to all; they were dragged, blindfold, and
like slaves, to the standard of their leaders. In
the mean time, as the laws, by virtue of which
their masters were considered as vassals, had no
relation to those by which they were themselves
bound as subjects, the resistance, of which they
were made the instruments, never produced any
advantageous consequence in their favour, nor did
it establish any principle of freedom that was ap-
plicable to them.
The inferior nobles, who shared in the inde-
OF ENGLAND. I5
pendence of the superior nobility, added the effects
of their own insolence to the despotism of so many
sovereigns; and the people, wearied out by suffer-
ings, and rendered desperate by oppression, at
times attempted to revolt. But, being parcelled
out into so many different states, they could never
perfectly agree either in the nature or the times
of their complaints. The insurrections, which
ought to have been general, were only successive
and particular. In the mean time, the lords, ever
uniting to avenge their common cause as masters,
fell with irresistible advantage on men who were
divided: the people were thus separately, and by
force, brought back to their former yoke; and
liberty, that precious offspring, which requires so
many favourable circumstances to foster it, was
every where stifled in its birth.*
At length, when by conquests, by escheats, or
by treaties, the several provinces came to be re-
wnited f to the extensive and continually increasing
* It may be seen in Mezeray, how the Flemings, at the
time of the great revolt which was caused, as he says, “by
“ the inveterate hatred of the nobles (les gentils-hommes)
“against the people of Ghent,” were crushed by the union of
almost all the nobility of France. See Mezeray, Reign of
Charles VI.
f The word re-union expresses in the French law, or his-
tory, the reduction of a province to an immediate dependence
on the crown.
[The points and circumstances, introduced by M. de Lolme
in continuation of this note from the history of France, may
16 - THE constitution
dominions of the monarch, they became subject
to their new master, already trained to obedience.
The few privileges which the cities had been able
to preserve were little respected by a sovereign
who had himself entered into no engagement for
that purpose; and, as the re-unions were made at
different times, the king was always in a condition
to overwhelm every new province that accrued to
him, with the weight of all those he already pos-
sessed. -
As a farther consequence of these differences
between the times of the re-unions, the several
parts of the kingdom entertained no views of as-
sisting each other. When some reclaimed their
privileges, the others, long since reduced to sub-
jection, had already forgotten theirs. Besides,
these privileges, by reason of the differences of
the governments under which the provinces had for-
merly been held, were also almost every where dif-
ferent: the circumstances which happened in one
place thus bore little affinity to those which fell
out in another; the spirit of union was lost, Oſ
rather had never existed; each province, restrained
within its particular bounds, only served to ensure
the general submission; and the same causes which
had reduced that spirited nation to a yoke of sub-
jection, concurred also to keep them under it. .
be omitted without the least injury to the work, being nei-
ther usefully illustrative nor supplementally necessary. —
EDIT.] &
OF ENGLAND. 17
Thus liberty perished in France, because it
wanted a favourable culture and proper situation.
Planted, if I may so express myself, but just be-
neath the surface, it presently expanded, and sent
forth some large shoots; but, having taken no
root, it was soon plucked up. In England, on
the contrary, the seed, lying at a great depth, and
being covered with an enormous weight, seemed
at first to be smothered; but it vegetated with
the greater force; it imbibed a more rich and
abundant nourishment; its sap and juice became
better assimilated, and it penetrated and filled up
with its roots the whole body of the soil. It was the
excessive power of the king which made England
free, because it was this very excess that gave rise
to the spirit of union, and of concerted resistance.
Possessed of extensive demesnes, the king found
himself independent: invested with the most for-
midable prerogatives, he crushed at pleasure the
most powerful barons in the realm. It was only
by close and numerous confederacies, therefore,
that these could resist his tyranny; they even were
compelled to associate the people in them, and
make them partners of public liberty.
Assembled with their vassals in their great halls,
where they dispensed their hospitality, deprived
of the amusements of more polished nations; na-
turally inclined, besides, freely to expatiate on
objects of which their hearts were full; their
conversation naturally turned on the injustice of
the public impositions, on the tyranny of the ju-
I8 THE CONSTITUTION
dicial proceedings, and, above all, on the detested
forest laws. -
Destitute of an opportunity of cavilling about
the meaning of laws, the terms of which were
precise, or rather disdaining the resource of so-
phistry, they were naturally led to examine the
first principles of society; they inquired into the
foundations of human authority, and became con-
vinced, that power, when its object is not the
ood of those who are subject to it, is nothing
i. than the right of the strongest, and may
e repressed by the exertion of a similar right.
The different orders of the feudal government,
as established in England, being connected by
tenures exactly similar, the same maxims which
were laid down as true against the lord para-
mount, in behalf of the lord of an upper fief,
were likewise to be admitted against the latter, in
behalf of the owner of an inferior fief. The same
maxims were also to be applied to the possessor
of a still lower fief: they farther descended to the
freeman, and to the peasant: and the spirit of
liberty, after having circulated through the dif.
ferent branches of the feudal subordination, thus
continued to flow through successive homogeneous
channels; it forced a passage into the remotest
ramifications; and the principle of primeval
equality became every where diffused and esta-
blished: a sacred principle, which neither injus-
tice nor ambition can erase; which exists in every
breast, and, to exert itself, requires only to be
OF ENGLAND. 19
awakened among the numerous and oppressed
classes of mankind!
But when the barons, whom their personal con-
sequence had at first caused to be treated with
caution and regard by the sovereign, began to be
no longer so, when the tyrannical laws of the
Conqueror became still more tyrannically exe-
cuted,—the confederacy, for which the general
oppression had paved the way, instantly took place.
The lord, the vassal, the inferior vassal, all united.
They even implored the assistance of the peasants
and cottagers; and the haughty aversion with
which on the continent the nobility repaid the in-
dustrious hands that fed them, was, in England,
compelled to yield to the pressing necessity of
Setting bounds to the royal authority.
The people, on the other hand, knew that the
cause they were called upon to defend was a
cause common to all; and they were sensible, be-
sides, that they were the necessary supporters of
it. Instructed by the example of their leaders,
they spoke and stipulated conditions for them-
selves: they insisted that, for the future, every
individual should be entitled to the protection of
the law; and thus did those rights with which
the lords had strengthened themselves, in order
to oppose the tyranny of the crown, become a bul
wark which was in time to restrain their own.
C 2
20 THE consºrpturion
CHAPTER H.
A second Advantage England had over France :-
it formed one undivided State.
IT was in the reign of Henry the First, about
forty years after the conquest, that we see the
above causes begin to operate. This prince,
having ascended the throne to the exclusion of his
elder brother, was sensible that he had no other
means to maintain his pewer than by gaining the
affection of his subjects; but at the same time he
perceived that it must be theaffection of the whole
nation: he, themeſore, set only mitigated the ri-
gour of the feudal laws in favour of the lords, but
also annexed as a condition to the charter he
granted, that the lords should allow the same free-
dom to their respective vassals. Care was even
taken to abolish those laws of the Conqueror
which lay heaviest on the lower classes of the
people."
* Amongst others, the law of the Curfeu.-It might be
matter of curious discussion to inquire what the Anglo-Saxon
government would in process of time have become, and of
course the government of England be at the present time, if
the event of the conquest had never taken place; which, by
conferring an immense as well as unusual power on the head of
the feudal system, compelled the nobility to contract a lasting
and sincere union with the people. It is very probable that
the English government would at this day be the same as that
OF ENGLAND. 2}
Under Henry the Second, liberty took a farther
stride; and the ancient trial by jury, a mode of
procedure which is at present one of the most va-
luable parts of the English law, made again,
though imperfectly, its appearance.*
But these causes, which had worked but silently
and slowly under the two Henries, who were
princes in some degree just, and of great capacity,
manifested themselves at once under the despotic
reign of king John. The royal prerogative, and
the forest laws, having been exerted by this prince
to a degree of excessive severity, he soon beheld
a general confederacy formed against him —and
here we must observe another circumstance,
highly advantageous, as well as peculiar, to Eng-
land. r
which long prevailed in Scotland (where the king and nobles
engrossed, jointly or by turns, the whole power of the state);
the same as in Sweden, the same as in Denmark,-countries
whence the Anglo-Saxons came.
[It seems more probable, from the enterprising commercial
spirit of the English, and their courage and firmness, that,
even if William had not been successful in his invasion, the
commons would have gradually risen into consequence, and
have counterpoised, with considerable effect, the power of the
higher orders.—EDIT.] - -
* The trial by Jury appears to have prevailed (though not
precisely with the same regulations) amongst most of the na-
tions of Gothic descent. In England, it was probably in use
long before the time of Alfred; but he rendered it more gene-
ral, though it declined in the subsequent convulsions of the
kingdom.—EDIT.
22 THE CONSTITUTION
England was not, like France, an aggregation
of a number of different sovereignties: it formed
but one state, and acknowledged but one master,
one general title. The same laws, the same kind
of dependence, consequently the same notions,
the same interests, prevailed throughout the whole.
The extremities of the kingdom could, at all times,
unite to give a check to the exertions of an unjust
power. From the river Tweed to Portsmouth,
from Yarmouth to the Land's End, all was in
motion: the agitation increased from the distance,
like the rolling waves of an extensive sea; and
the monarch, left to himself, and destitute of re-
sources, saw himself attacked on all sides by an
universal combination of his subjects.
No sooner was the standard set up against
John, than his very courtiers forsook him. In
this situation, finding no part of his kingdom less
irritated against him than another, having no de-
tached province which he could engage in his
defence by promises of pardon or of peculiar con-
cessions, the trivial though never-failing resources
of government, he was compelled, with seven of
his attendants, all that remained with him, to
submit himself to the disposal of his subjects,<
and he signed at Ruming-Mead” the charter of the
Forest, together with that famous charter, which,
from its superior and extensive importance, is de-
nominated Magna Charta. -
By the former the most tyrannical parts of the
forest laws were abolished; and by the latter, the
* Anno 1215.
OF ENGLAND. 23
rigour of the feudal laws was greatly mitigated in
favour of the lords. But this charter did not stop
there; conditions were also stipulated in favour
of the numerous body of the people who had
concurred to obtain it, and who claimed, with
sword in hand, a share in that security it was
meant to establish. It was hence instituted by
the Great Charter, that the same services which
were remitted in favour of the barons should be in
like manner remitted in favour of their vassals.
This charter moreover established an equality of
weights and measures throughout England; it
exempted the merchants from arbitrary imposts,
and gave them liberty to enter and depart the
kingdom at pleasure : it even extended to the
lowest orders of the state, since it enacted, that
the villain, or bondman, should not be subject to
the forfeiture of his implements of tillage. Lastly,
by the thirty-ninth article of the same charter, it
was enacted, that no subject should be exiled, or
in any shape whatever molested, either in his
person or effects, otherwise than by judgment of
his peers, and according to the law of the land”;
—an article so important, that it may be said to
comprehend the whole end and design of political
* “Nullus liber homo capiatur, vel imprisonetur, vel dis-
sesiatur de libero tenemento suo, vel libertatibus, vel liberis
consuetudinibus suis; aut utlagetur, aut exuletur, aut aliquo
“ modo destruatur; nec super eum ibimus, nec super eum
“mittemus, nisi per legale judicium parium suorum, vel per
“legem terrae. Nulli vendemus, nulli negabimus, aut dif-
“feremus, justitiam vel rectum.” Magna Chart. cap. xxxix. xl.
6
&
&
34 THE CONSTITUTION
societies:–and from that moment the English
would have been a free people, if there were not
an immense distance between the making of laws,
and the observing of them.
But though this charter wanted most of those
supports which were necessary to ensure respect to
it, though it did not secure to the poor and
friendless any certain and legal methods of obtain-
ing the execution of it (provisions which number-
less transgressions alone could, in process of time,
point out);—yet it was a prodigious advance to-
wards the establishment of public liberty. Instead
of the general maxims respecting the rights of the
people and the duties of the prince (maxims
against which ambition perpetually contends, and
which it sometimes even openly and absolutely de-
nies), here was substituted a written law, that is,
a truth admitted by all parties, which no longer
required the support of argument. The rights and
privileges of the individual, as well in his person
as in his property, became settled axioms. The
Great Charter, at first enacted with so much so-
lemnity, and afterwards confirmed at the begin-
ning of every succeeding reign, became like a
general banner perpetually set up for the union
of all classes of the people; and the foundation was
laid on which those equitable laws were to rise,
which offer the same assistance to the poor and
weak, as to the rich and powerful.”
* The reader, to be more fully convinced of the reality of
the causes to which the liberty of England has been here as-
OF ENGLAND. 35
Dnder the long reign of Henry the Third, the
differences which arose between the king and the
nobles rendered England a scene of confusion.
Amidst the vicissitudes which the fortune of war
produced in their mutual conflicts, the people be-
came still more and more sensible of their impor-
tance, and so did, in consequence, both the king
and the barons also. Alternately courted by both
parties, they obtained a confirmation of the Great
Charter, and even the addition of new privileges,
by the statutes of Merton and of Marlebridge.
But I hasten to reach the grand epoch of the
reign of Edward the First,--a prince who, from
his numerous and prudent laws, has been denomi-
nated the English Justinian.
Possessed of great matural talents, and succeed-
ing a prince whose weakness and injustice had
rendered his reign unhappy, Edward was sensible
that nothing but a strict administration of justice
could, on the one side, curb a nobility whom the
cribed, as well as of the truth of the observations made at the
same time on the situation of the people of France, needs only
to compare the Great Charter, so extensive in its provisions,
and in which the barons stipulated in favour even of the bond-
man, with the treaty concluded at St. Maur, October 29, 1465,
between Louis XI, and several of the princes and peers of
France. In this treaty, which was made in order to terminate
a war that was called the war for the public good (pro bono
publico), no provision was made but concerning the particular
power of a few lords: not a word was inserted in favour of the
people. It may be seen at large in the pièces justificatives
annexed to the Mémoires de Philippe de Comines.
26 THE CONSTITUTION
troubles of the preceding reign had rendered tur-
bulent, and, on the other, appease and conciliate
the people, by securing the property of individuals.
To this end, he made jurisprudence the principal
object of his attention; and so much did it im-
prove under his care, that the mode of process
became fixed and settled; Judge Hale going even
so far as to affirm, that the English laws arrived
at once, et quasi per saltum, at perfection, and
that there was more improvement made in them
during the first thirteen years of the reign of Ed-
ward, than in all the ages since his time.
But what renders this aera particularly interest-
ing, is, that it affords the first instance of the ad-
mission of the deputies of towns and boroughs into
parliament.*
Edward, continually engaged in wars, either
against Scotland or on the continent, seeing more-
over his demesnes considerably diminished, was
frequently reduced to the most pressing necessities.
But, though, in consequence of the spirit of the
times, he frequently indulged himself in particular
acts of injustice, yet he perceived that it was im-
possible to extend a general oppression over a body
of nobles, and a people, who so well knew how
to unite in a common cause. In order to raise
subsidies, therefore, he was obliged to employ a
new method, and to endeavour to obtain, through
* I mean their legal origin; for the earl of Leicester, who
had usurped the power during part of the preceding reign, had
called such deputies up to parliament before.
OF ENGLAND. 27
the consent of the people, what his predecessors
had hitherto expected from their own power. The
sheriffs were ordered” to invite the towns and
boroughs of the different counties to send deputies
to parliament;-and it is from this aera that we
are to date the origin of the house of commons.#
It must be confessed, however, that these de-
puties of the people were not, at first, possessed
of any considerable authority. They were far
from enjoying those extensive privileges which, in
these days, constitute the house of commons a
collateral part of the government: they were in
those times called up only to provide for the wants
of the king, and approve the resolutions taken by
him and the assembly of the lords.f But it was
* Anno 1295. -
f It is certain that no writs, for summoning representatives
of cities and boroughs to parliament, before the 49th year of
Henry III. (when the earl of Leicester had the chief sway)
can at this time be found: but there are writs extant, by which
knights of shires were summoned under king John; and the
annotator upon the work of M. de la Croix (entitled “A Re-
view of the Constitutions of the principal States of Europe
and of the United States of America”), from this and other
circumstances, particularly from the claim of a prescriptive
right of representation, asserted in the reign of Edward II. by
the corporation of St. Alban, plausibly contends for the ap-
pearance of burgesses in parliament, at least as early as the
reign of Henry II.-EDIT.
f The end mentioned in the summons sent to the lords,
was de arduis negotiis regni tractatur et consilium impensuri :
the requisition sent to the commons was, ad faciendum et
consentiendum. The power enjoyed by the latter was even in-
ferior to what they might have expected from the summons sent
28 THE CONSTITUTION
nevertheless a great point gained, to have obtain-
ed the right of uttering their complaints, assem-
bled in a body and in a legat way—to have
acquired, instead of a dangerous resource of insur-
rections, a lawful and regular mean of influencing
the motions of the government, and thenceforth
to have become a part of it. Whatever disadvan-
tage might attend the station at first allotted to
the representatives of the people, it was soon to
be compensated by the preponderance the people
necessarily acquire, when they are enabled to act
and move with method, and especially with con-
cert.* .
And indeed this privilege of naming represen-
tatives, insignificant as it might then appear,
to them. “In most of the ancient statutes they are not so
“much as named ; and in several, even when they are men-
“tioned, they are distinguished as petitioners merely, the
“assent of the lords being expressed in contradistinction to the
“request of the commons.”—See on this subject the preface
to the Collection of the Statutes at large, by Ruffhead, and
the authorities quoted therein.
* France had indeed also her assemblies of the general
estates of the kingdom, in the same manner as England had
her parliament; but then it was only the deputies of the
towns within the particular domain of the crown, that is, for
a very small part of the nation, who, under the name of the
third estate, were admitted in those estates; and it is easy to
conceive that they acquire no great influence in an assembly
of sovereigns who gave the law to their lord paramount.
Hence, when these disappeared, the maxim became immedi-
ately established, The will of the king is the will of the law:—
in old French, Que veut le roy, ce veut la loy.
OF ENGLANI). * 29
presently manifested itself by the most considera-
ble effects. In spite of his reluctance, and after
many evasions unworthy of so great a king, Ed-
ward was obliged to confirm the Great Charter;
he even confirmed it eleven times in the course of
his reign. It was moreover enacted, that what-
ever should be done contrary to it, should be null
and void; that it should be read twice a year in
all cathedrals; and that the penalty of excommu-
nication should be denounced against any one who
should presume to violate it.*
At length he converted into an established law
a privilege of which the English had hitherto had
only a precarious enjoyment; and, in the statute
de tallagio non concedendo, he decreed, that no
tax should be laid, nor impost levied, without the
joint consent of the lords and commons. A most
important statute this, which, in conjunction with
Magna Charta, forms the basis of the English
constitution. If from the latter the English are
to date the origin of their liberty, from the former
they are to date the establishment of it: and as
the Great Charter was the bulwark that protected
the freedom of individuals, so was the statute in
question the engine which protected the charter.
* Confirmationes Chartarum, cap. 2, 3, 4.
ºf “Nullum tallagium vel auxilium, per nos, vel haeredes
“nostros, in regno nostro ponatur seu levetur, sine voluntate
“ et assensu archiepiscoporum, episcoporum, comitum, baro-
* num, militum, burgensium, et aliorum liberorum hominum
“ de regno nostro.” Stat. an. 24. Ed. I. -
30 THE CONSTITUTION
itself, and by the help of which the people were
thenceforth to make legal conquests over the au-
thority of the crown. - -- -
This is the period at which we must stop, in
order to take a distant view, and contemplate the
different prospect which the rest of Europe then
presented. * .
The efficient causes of slavery were daily ope-
rating, and gaining strength. The independence
of the nobles on the one hand, the ignorance and
weakness of the people on the other, continued to
be extreme: the feudal government still continued
to diffuse oppression and misery; and such was
the confusion of it, that it even took away all hopes
of amendment. -
France, still bleeding from the extravagance of
a nobility incessantly engaged in groundless wars,
either with each other, or with the king, was
again desolated by the tyranny of that same nobi-
lity, haughtily jealous of their liberty, or rather
of their anarchy.* The people, oppressed by
those who ought to have guided and protected
* Not contented with oppression, they added insult. “When
“ the gentry,” says Mezeray, “pillaged and committed ex-
“ actions on the peasantry, they called the poor sufferer, in
“ derision, Jaques bonhomme (goodman James). This gave
“rise to a furious sedition, which was called the Jaquerie.
“It began at Beauvais in the year 1357, extending itself into
“ most of the provinces of France, and was not appeased but
“ by the destruction of part of those unhappy victims, thou-
“ sands of whom were slaughtered.”
OF ENGLAND. 31
them, loaded with insults by those who existed by
their labour, revolted on all sides. But their tu-
multuous insurrections had scarcely any other ob-
ject than that of giving vent to the anguish with
which their hearts were filled. They had no
thoughts of entering into a general combination;
still less of changing the form of the government,
and laying a regular plan of public liberty.
Having never extended their views beyond the
fields they cultivated, they had no conception of
those different ranks and orders of men, of those
distinct and opposite privileges and prerogatives,
which are all necessary ingredients of a free consti-
tution. Hitherto confined to the same round of
rustic employments they little thought of that com-
plicated fabric, which the more informed themselves
cannot but with difficulty comprehend, when, by a
concurrence of favourable circumstances, the struc-
ture has at length been reared, and stands dis-
played to their view.
In their simplicity they saw no other remedy
for the national evils than the general establish-
ment of the regal power, that is, of the authority
of one common uncontrolled master, and only
longed for that time, which, while it gratified their
revenge, would mitigate their sufferings, and re-
duce to the same level both the oppressors and the
oppressed.
The nobility, on the other hand, bent solely on
the enjoyment of a momentary independence, irre-
coverably lost the affection of the only men who
39 THE CONSTITUTION
might in time support them; and, equally regard-
less of the dictates of humanity and of prudence,
they did not perceive the gradua. continual
advances of the royal authority, which was soon to
overwhelm them all. Already were Normandy,
Anjou, Languedoc, and Touraine, re-united to the
crown; Dauphiné, Champagne, and part of Gui-
enne, were soon to follow : France was doomed at
length to see the reign of Louis the Eleventh; to
See her general estates first become useless, and be
afterwards abolished. -
It was the destiny of Spain also to behold her
several kingdoms united under one head;—she was
fated to be in time ruled by Ferdinand and Charles
the Fifth.* And Germany, where an elective
crown prevented the re-unions,t was indeed to
* Spain was originally divided into twelve kingdoms, besides
principalities, which, by treaties, and especially by conquests,
were collected into three kingdoms; those of Castile, Aragon,
and Granada. Ferdinand the Fifth, king of Aragon, married
Isabella, queen of Castile; they made a joint conquest of the
kingdom of Granada; and these three kingdoms, thus united,
descended, in 1516, to their grandson Charles W. and formed
the Spanish monarchy. At this aera, the kings of Spain began
to be absolute; and the states of the kingdoms of Castile and
Leon, “assembled at Toledo, in the month of November,
“1539, were the last in which the three orders met ; that is,
“the grandees, the ecclesiastics, and the deputies of the
“towns.” See the History of Spain, by Ferreras.
t The kingdom of France, as it stood under Hugh Capet and
his next successors, may, with a great degree of exactness, be
compared with the German empire: but the imperial crown of
Germany having, through a conjunction of circumstances,

iOF ENGILANT). 33
acquire a few free cities; but her people, parcelled
into so many different dominions, were destined to
remain subject to the arbitrary yoke of such of her
different sovereigns as should be able to maintain
their power and independence. In a word, the
feudal tyranny which overspread the continent did
not compensate, by any preparation of distant ad-
vantages, the present calamities it caused; nor was
it to leave behind it, as it disappeared, any thing
but a more regular kind of despotism.
But in England, the same feudal system, after
having suddenly broken in like a flood, had de-
posited, and still continued to deposit, the noble
seeds of the spirit of liberty, union, and sober re-
sistance. So early as the time of Edward the tide
was seen gradually to subside: the laws which
protect the person and property of the individual
began to make their appearance; that admirable
constitution, the result of a threefold power, insen-
sibly arose;* and the eye might even then discover
continued elective, the emperors, though vested with more
high-sounding prerogatives than even the kings of France, la-
boured under very essential disadvantages: they could not pur-
sue a plan of aggrandisement with the same steadiness as a
line of hereditary sovereigns usually do; and the right to elect
them, enjoyed by the greater princes of Germany, procured a
sufficient power to these, to protect themselves, as well as the
inferior lords, against the power of the crown. .'
* “Now, in my opinion,” says Philippe de Comines, in
times not much posterior to those of Edward the First, and
with the simplicity of the language of his times, “among all
“ the sovereignties I know in the world, that in which the
“public good is best attended to, and the least violence exer-
ID
34 THE CONSTITUTION
the verdant summits of that fortunate region that
was destined to be the seat of philosophy and li-
berty, which are inseparable companions.
CHAPTER III.
The Subject continued.
THE representatives of the nation, and of the
whole nation, were now admitted into parlia-
ment: the great point therefore was gained, that
was one day to procure them the great influence
which they at present possess; and the subsequent
reigns afford continual instances of its successive
growth.
Under Edward the Second, the commons be-
gan to annex petitions to the bills by which they
granted subsidies: this was the dawn of their le-
gislative authority.
Under Edward the Third, they declared they
would not in future acknowledge any law to which
they had not expressly assented. Soon after this,
they exerted a privilege, in which consists, at this
time, one of the great balances of the constitution:
they impeached, and procured to be condemned,
some of the first ministers of state.” Under Henry
“cised on the people, is that of England." Mémoires de Co-
mines, livre v. chap. xviii.
* In the rolls of parliament, there is no formal record of .
anv impeachment by the commons, prior to the 50th year o
OF ENGLAND. 35.
the Fourth, they refused to grant subsidies before
an answer had been given to their petitions. . In
a word, every event of any consequence was at-
tended with an increase of the power of the com-
mons;—increases indeed but slow and gradual,
but which were peaceably and legally ' effected,
and were the more fit to engage the attention of
the people, and coalesce with the ancient princi-
ples of the constitution.
Under Henry the Fifth, the nation was entirely
taken up with its wars against France; and in
the reign of Henry the Sixth began the fatal con-
tests between the houses of York and Lancaster.
The noise of arms alone was now to be heard;
during the silence of the laws already in being, no
thought was had of enacting new ones: and for
thirty years together England presents a wide
scene of slaughter and desolation.
the reign of this monarch. Lord Latimer was then impeached;
and being, after a regular process in the house of Lords,
convicted of mal-administration, he was dismissed by the
king from all ministerial employment. Lord Neville was
also accused by the commons, and banished from court; and
Allice Perrers, the king's mistress, was involved in similar dis-
grace. The inquisitorial power, thus exercised by the demo-
cratic branch of our constitution, eminently contributes to the
preservation of public liberty.
The increasing influence of the lower house (for it was
about this time that the peers and the commons began to de-
liberate in different halls or apartments), was farther evinced
in the following reign, by the irregular and arbitrary attempts
of Richard II. and his ministers to influence the elections.-
EDIT,
D 2
36 TIHE CONSTITUTION
At length, under Henry-the Seventh, who, by
this intermarriage with the house of York, united
the pretensions of the two families, a general
peace was re-established, and the prospect of hap-
pier days seemed to openion the nation. But the
long and violent agitation under which it had la-
‘boured was to be followed by a long and painful
recovery. Henry, mounting the throne with
sword in hand, and in great measure as a con-
queror, had promises to fulfil, as well as injuries
to avenge. In the mean time, the people,
wearied out by the calamities they had under-
gone, and longing only for repose, abhorred even
the ideasdf resistance; so that the remains of an
almost exterminated mobility beheld themselves
left defenceless, and abandoned to the mercy of
the sovereign.
The commons, on the tother hand, accustomed
to act only a second part in public affairs, and
finding themselves bereft of those who had hither-
to been their leaders, were more than ever afraid
to form, df themselves, an opposition. Placed
immediately, as well as the lords, under the eye
of the king, they beheld themselves exposed to
the same dangers. Like them, therefore, they
purchased their personal security at the expense
of public liberty; and in reading the history of
the first two kings of the house of Tudor, we
imagine ourselves reading the relation given by
Tacitus of Tiberius and the Roman senate.*
* Quanto quis illustrior, tanto magis Jalsi ac festinantes.
OF ENGLAND. 37
The time, therefore, seemed to be arrived, at
which England must submit, in its turn, to the
fate of the other nations of Europe. All those
barriers which it had raised for the defence of its
liberty seemed to have only been able to postpone
the inevitable effects of power.
But the remembrance of their ancient laws, of
that great charter so often and so solemnly con-
firmed, was too deeply impressed on the minds of
the English to be effaced by transitory, evils. Like
a deep and extensive ocean, which preserves an
equability of temperature amidst all the vicissi-
tudes of seasons, England still retained those prin-
ciples of liberty which were so universally diffused
through all orders of the people; and they re-
quired only a proper opportunity to manifest them-
selves.
England, besides, still continued to possess the
immense advantage of being one undivided state.
Had it been, like France, divided into several
distinct dominions, it would also have had several
national assemblies. These assemblies, being con-
vened at different times and places, for this and
other reasons, never could have acted in concert ;
and the power of withholding subsidies, a power
so important when it is that of disabling the sove-
reign, and binding him down to inaction, would
then have only been the destructive privilege of
irritating a master who would have easily found
means to obtain supplies from other'duarters.
The different parliaments, or assemblies of these
38 THE constituTION
several states, having thenceforth no means of re-
commending themselves to their sovereign, but
their forwardness in complying with his demands,
would have vied with each other in granting what
it would not only have been fruitless, but even
highly dangerous, to refuse. The king would
not have failed soon to demand, as a tribute, a
gift he must have been confident to obtain; and
the outward forms of consent would have been left
to the people only as additional means of oppress-
ing them without danger.
But the king of England continued, even in the
time of the Tudors, to have but one assembly
before which he could lay his wants and apply for
relief. How great soever the increase of his power
was, a single parliament alone could furnish him
with the means of exercising it; and whether it
was that the members of this parliament enter-
tained a deep sense of their advantages, or whether
private interest exerted itself in aid of patriotism,
they at all times vindicated the right of granting,
or rather refusing subsidies; and amidst the gene-
ral wreck of every thing they ought to have held
dear, they at least clung obstinately to the plank
which was destined to prove the instrument of
their preservation.
Under Edward the Sixth, the absurd tyrannical
laws against high-treason (instituted under Henry
the Eighth) were abolished. But this young and
virtuous prince having soon passed away, the
blood-thirsty Mary astonished the world with cruel-
OF ENGLAND. 39
ties, which nothing but the fanaticism of a part
of her subjects could have enabled her to execute.
Under the long and brilliant reign of Elizabeth,
England began to breathe anew : and the protes-
tant religion, being seated once more on the
throne, brought with it some more freedom and
toleration. #
The Star-chamber, that effectual instrument of
the tyranny of the two Henries, yet continued to
subsist : the inquisitorial tribunal of the high
commission was even instituted; and the yoke of
arbitrary power lay still heavy on the subject. But
the general affection of the people for a queen,
whose former misfortunes had created such a ge-
neral concern, the imminent dangers which Eng-
land escaped, and the extreme glory attending
that reign, lessened the sense of such exertions of
authority as would, in these days, appear the
height of tyranny, and served at that time to
justify, as they still do to excuse, a princess whose
great talents, though not her principles of go-
vernment, render her worthy of being ranked
among the greatest sovereigns.
Under the sway of the Stuarts, the nation be-
gan to recover from its long lethargy. James the
First, a prince rather imprudent than tyrannical,
drew back the veil which had hitherto disguised
So many usurpations, and made an ostentatious
display of what his predecessors had been con-
tented to enjoy. -
He was incessantly asserting, that the autho-
40. THE CONSTITUTION
rity of kings was not to be controlled any more
than that of God himself. Like Him, they were
omnipotent; and those privileges to which the peo-
ple so clamorously laid claim as their inheritance
and birth-right, were no more than an effect of
the grace and toleration of his royal ancestors.”
Those principles, hitherto only silently adopted
in the cabinet, and in the courts of justice, had
maintained their ground in consequence of this
very obseurity. Being now announced from the
throne, and resounded from the pulpit, they
spread an universal alarm. Commerce, besides,
with its attendant arts, and, above all, that of
printing, diffused more salutary notions through-
out all orders of the people; a new light began to
rise upon the nation; and the spirit of opposition
frequently displayed itself in this reign, to which
the English monarchs had not, for a long time
past, been accustomed.
But the storm, which was only gathering in
clouds during the reign of James, began to mutter
under Charles the First ; and the scene which
opened to view, on the accession of that prince,
presented the most formidable aspect.
The notions of religion, by a singular concur-
rence, united with the love of liberty: the same
spirit which had made an attack on the established
faith, now directed itself to politics: the royal
prerogatives were brought under the same exami-
* See his declarations made in parliament, in the years
1610 and 1621.
OF ENGLAND. 4].
nation as the doctrines of the church of Rome had
been submitted to ; and as a superstitious religion
had proved unable to support the test, so neither
could an authority, pretended to be unlimited,
be expected to bear it. * * ,
The commons, on the other hand, were reco-
vering from the astonishment into which the ex-
tinction of the power of the nobles had, at first,
thrown them. Taking a view of the state of the
nation, and of their own, they became sensible of
their whole strength: they determined to make
use of it, and to repress a power which seemed,
for so long a time, to have leveled every barrier.
Finding among themselves men of the greatest
capacity, they undertook that important task with
method and by constitutional means; and thus
had Charles to cope with a whole nation put in
motion and directed by an assembly of statesmen.
And here we must observe how different were:
the effects produced in England, by the annihi-
lation of the power of the nobility, from those
which the same event had produced in France.
In France, where, in consequence of the di-
vision of the people, and of the exorbitant power
of the nobles, the people were accounted nothing
—when the nobles themselves were suppressed,
the work was completed. .
In England, on the contrary, where the nobles
had ever vindicated the rights of the people equally
with their own,-in England, where the people
had successively acquired most effectual means of
influencing the motions of the government, and
42 THE CONSTITUTION
above all were undivided,—when the nobles them-
selves were cast to the ground, the body of the
people stood firm, and maintained the public
liberty. -
The unfortunate Charles, however, was totally
ignorant of the dangers which surrounded him.
Seduced by the example of the other sovereigns
of Europe, he was not aware how different, in
reality, his situation was from theirs: he had the
imprudence to exert with rigour an authority
which he had no ultimate resources to support:
an union was at last effected in the nation; and
he saw his enervated prerogatives dissipated with
a breath.* By the famous act, called the Petition
* It might here be objected, that when, under Charles the
First, the regal power was obliged to submit to the power of
the people, the king possessed other dominions besides Eng-
land, viz. Scotland and Ireland, and therefore, seemed to en-
joy the same advantage as the kings of France, that of reign-
ing over a divided empire or nation. But, to this it is to be
answered, that, at the time we mention, Ireland, scarcely
civilized, only increased the necessities, and consequently
the dependence, of the king; while Scotland, through the
conjunction of peculiar circumstances, had thrown off her
obedience. And though those two states, even at present,
bear no portion to the compact body of the kingdom of Eng-
land, and seem never to have been able, by their union with
it, to procure to the king any dangerous resources, yet the
circumstances which took place in both at the time of the Revo-
lution, or since, sufficiently prove that it was no unfavourable
circumstance to English liberty, that the great crisis of the
reign of Charles the First, and the advance which the consti-
tution was to make at that time, should precede the period at
which the king of England might have been able to call in the
assistance of two other kingdoms.
OF ENGLAND. 43
of Right, and a posterior act, to both which he
assented, the compulsory loans and taxes, dis-
guised under the name of benevolences, were de-
clared to be contrary to law; arbitrary imprison-
ments, and the exercise of martial law, were
abolished; the court of high commission, and the
star-chamber, were suppressed;" and the consti-
tution, freed from the apparatus of despotic powers
with which the Tudors had obscured it, was re-
stored to its ancient lustre. Happy had been the
people, if their leaders, after having executed so
noble a work, had contented themselves with the
glory of being the benefactors of their country.
Happy had been the king, if, obliged at last to
submit, his submission had been sincere, and if
he had become sufficiently sensible that the only
resource he had left was the affection of his sub-
jects.
But Charles knew not how to survive the loss
of a power he had conceived to be indisputable:
he could not reconcile himself to limitations and
restraints so injurious, according to his notions, to
sovereign authority. His discourse and conduct
betrayed his secret designs; distrust took posses-
* The star-chamber differed from all the other courts of
law in this: the latter were governed only by the common
law, or immemorial customs, and acts of parliament; whereas
the former often admitted for law the proclamations of the king
and council, and grounded its judgments upon them. The
abolition of this tribunal, therefore, was justly looked upon as
a great victory over regal authority.
44 THE CONSTITUTION
sion of the nation ; certain ambitious persons
availed themselves of it to promote their own
views; and the storm, which seemed to have
blown over, burst forth anew. The contending
fanaticism of persecuting sects joined in the con-
flict between regal haughtiness and the ambition.
of individuals; the tempest blew from every point
of the compass; the constitution was rent asunder;
and Charles exhibited in his fall an awful example
to the universe. -
The royal power being thus annihilated, the
English made fruitless attempts to substitute a
republican government in its stead. “It was a
“curious spectacle,” says Montesquieu, “to be-
“hold the vain efforts of the English to establish
“among themselves a democracy.” Subjected, at
first, to the power of the principal leaders in the
long parliament, they saw that power expire, only
to pass without bounds into the hands of a pro-
tector. They saw it afterwards parcelled out
among the chiefs of different bodies of soldiers;
and thus shifting without end from one kind of
subjection to another, they were at length con-
vinced, that an attempt to establish liberty in a
great nation, by making the people interfere in
the common business of government, is, of all at-
tempts, the most chimerical; that the authority
of all, with which men are amused, is in reality
no more than the authority of a few powerful in-
dividuals, who divide the republic among them-
selves; and they at last rested in the bosom of the
of ENGLAND. 45
only constitution which is fit for a great state and
a free people; I mean that in which a chosen
number deliberate, and a single hand executes;
but in which, at the same time, the public satis-
faction is rendered, by the general relation and
arrangement of things, a necessary condition of
the duration of government. -
Charles the Second, therefore, was called over;
and he experienced on the part of the people that
enthusiasm of affection which usually attends the
return from a long alienation. He could not,
however, bring himself to forgive them the inex-
piable crime of which he looked upon them to have
been guilty. He saw with the deepest concern
that they still entertained their former notions
with regard to the nature of the royal prerogative;
and, bent upon the recovery of the ancient powers
of the crown, he only waited for an opportunity to
break those promises which had procured his re-
storation. - -
Put the very eagerness of his measures frustrated
their success. His dangerous alliances on the
continent, and the extravagant wars in which he
involved England, joined to the frequent abuse he
made of his authority, betrayed his designs. The
eyes of the nation were soon opened, and saw into
his projects; when, convinced, at length, that no-
thing but fixed and irresistible bounds can be an
effectual check on the views and efforts of power,
they resolved finally to take away those remnants
of despotism which still made a part of the regal
prerogative. -- • -
46 THE CONSTITUTION
The military services due to the crown, the re-
mains of the ancient feudal tenures, had been al-
ready abolished: the laws against heretics were
now repealed; the statute for holding parlia-
ments once at least in three years was enacted;
the Habeas Corpus act, that barrier of the sub-
ject's personal safety, was established; and such
was the patriotism of the parliaments, that it was
under a king the most destitute of principle that
liberty received its most efficacious supports.
At length, on the death of Charles, began a
reign which affords a most exemplary lesson both
to kings and people. James the Second, a prince
of a more rigid disposition, though of a less com-
prehensive understanding, than his late brother,
pursued still more openly the project which had
already proved so fatal to his family. He would
not see that the great alterations which had suc-
cessively been effected in the constitution rendered
the execution of it daily more and more impracti-
cable: he imprudently suffered himself to be ex-
asperated at a resistance he was in no condition to
overcome; and, hurried away by a spirit of despot-
ism and a monkish zeal, he ran headlong against
the rock which was to wreck his authority.
He not only used in his declarations the alarm-
ing expressions of absolute power and unlimited
obedience—he not only usurped to himself a right
to dispense with the laws; but moreover sought
to convert that destructive pretension to the de-
struction of those very laws which were held most
dear by the nation, by endeavouring to abolish a
OF ENGLAND. 47
religion for which they had suffered the greatest
calamities, in order to establish on its ruins a mode
of faith which repeated acts of the legislature had
proscribed,—and proscribed, not because it tended
to establish in England the doctrines of transub-
stantiation and purgatory, doctrines in themselves
of no political moment, but because the unlimited
power of the sovereign had always been made one
of its principal tenets. . -
To endeavour therefore to revive such a religion,
was not only a violation of the laws, but was, by
one enormous violation, to pave the way for others
of a still more alarming nature. Hence the Eng-
lish, seeing that their liberty was attacked even in
its first principles, had recourse to that remedy
which reason and nature point out to the people,
when he who ought to be the guardian of the laws
becomes their destroyer; they withdrew the alle-
giance which they had sworn to James, and thought
themselves absolved from their oath to a king who
himself disregarded the oath he had made to his
people.
But, instead of a revolution like that which de-,
throned Charles the First, which was effected by
a great effusion of blood, and threw the state into
a general and terrible convulsion, the dethrone-
ment of James proved a matter of short and easy
Qperation. In consequence of the progressive in-
formation of the people, and the certainty of the
principles which now directed the nation, the whole
were unanimous. All the ties by which the people
48 THE CONSTITUTION
were bound to the throne were broken, as it were,
By one single shock; and James, who, the moment
before, was a monarch surrounded by subjects, be-
came at once a simple individual in the midst of
the nation. . . . 2 *
That which contributes, above all, to distinguish
this event as singular in the annals of mankind, is
the moderation, I may even say, the legality,
which accompanied it. As if to dethrone a king,
who sought to set himself above the laws, had been
a natural consequence of, and provided for by, the
principles of government, every thing remained in
its place; the throne was declared vacant, and a
new line of succession was established.*
Nor was this all; care was had to repair the
breaches that had been made in the constitution,
as well as to prevent new ones; and advantage
was taken of the rare opportunity of entering into
an original and express compact between king and
people. -
An oath was required of the new king, more
precise than had been taken by his predecessors:
• * It was not (as the modern propagators of revolutionary
doctrines assert) an absolute act of election that took place
on this occasion, but merely such a departure from the strict
principles of hereditary succession, as was justified by the
emergency of the crisis, and rendered necessary by the arbi-
trary conduct of a prince, who aimed at the establishment
both of civil and religious tyranny. It was the exclusion of
the Catholic princes of the reigning family, as unfit to govern a
Protestant nation. It was a deviation from one of the artidhes
of the constitution, requisite to prevent the subversion of the
whole.—EDIT.
2 OF ENGLAND. 49.
and it was consecrated as a perpetual formula of
such oaths. It was determined, that to impose
taxes without the consent of parliament, as well
as to keep up a standing army in time of peace, are
contrary to law. The power, which the crown
had constantly claimed, of dispensing with the
laws, was abolished. It was enacted, that the
subject, of whatever rank or degree, had a right
to present petitions to the king.” Lastly, the key-
stone was put to the arch, by the final establish-
ment of the liberty of the press.f --
• The revolution of 1689 is therefore the third
grand aera in the history of the constitution of
England. The Great Charter had marked out
the limits within which the royal authority ought
to be confined; some outworks were raised in the
reign of Edward the First; but it was at the
revolution that the circumvallation was com-
pleted.
* The lords and commons, previous to the coronation of
king William and queen Mary, had framed a bill which con-
tained a declaration of the rights which they claimed in behalf of
the people, and was in consequence called the Bill of Rights.
This bill contained the articles above, as well as some others;
and, having received afterwards the royal assent, became an
act of parliament, under the title of An Act declaring the
Rights and Liberties of the Subject, and settling the Succession.
of the Crown.—A. 1 William and Mary, sess. 2. cap. 2.
t The liberty of the press was, properly speaking, establish-
ed only four years afterwards, in consequence of the refusal
which the parliament made at that time to continue any longer
the restrictions which had before been set upon it.
E
50 THE CONSTITUTION
It was at this aera that the true principles of
civil society were fully established. By the ex-
pulsion of a king who had violated his oath, the
doctrine of resistance, that ultimate resource of an
oppressed people, was confirmed beyond a doubt.
By the exclusion given to a family hereditarily
despotic, it was finally determined that nations
are not the property of kings. The principles of
passive obedience, the divine and indefeasible right.
of kings, in a word, the whole scaffolding of false
and superstitious notions, by which the royal au-
thority had till then been supported, fell, to the
ground; and in the room of it were substituted.
the more solid. and durable foundations of the love
of order, and a sense of the necessity of civil go-
vernment among mankind. . . . . . . .
CHAPTER IV.
Of the Legislative Power.
IN almost all the states of Europe, the will of the
prince holds the place of law; and custom has so
confounded the matter of right with the matter of
fact, that their lawyers generally represent the
legislative authority as essentially attached to the
character of king; and the plenitude of his power
of ENGLAND. 5i
seems to them necessarily to flow from the very
definition of his title.
The English, placed in more favourable circum-
stances, have judged differently: they could not
believe that the destiny of mankind ought to de-
pend on a play of words, and on scholastic sub-
tilties; they have therefore annexed no other idea
to the word king, or roy, a word known also to
their laws, than that which the Latins annexed to
the word rew, and the northern nations to cyning.
In limiting therefore the power of their king,
they have acted more consistently with the etyme-
logy of the word; they have acted also more con-
sistently with reason, in not leaving the laws to
the disposal of the person who is already invested
with the public power of the state, that is, of the
person who lies under the greatest and most im-
portant temptations to set himself above them.
The basis of the English constitution, the capital
principle on which all others depend, is, that the
legislative power belongs to parliament alone: that
is to say, the power of establishing laws, and of
abrogating, changing, or explaining them.
The constituent parts of parliament are, the king,
the house of lords, and the house of commons.
The house of commons, otherwise the assembly
of the representatives of the nation, is composed of
the deputies of the different counties, each of which
sends two; of the deputies of certain towns, of
which London (including Westminster and South-
wark) sends eight—other towns, two or one; and
E 2
52 THE CONSTITUTION
of the deputies of the universities of Oxford and
Cambridge, each of which sends two.
Lastly, since the act of union, Scotland sends
forty-five deputies; who, added to those just men-
tioned, make up the whole number five hundred
and fifty-eight.” Those deputies, though sepa- .
rately elected, do not solely represent the town or
county that sends them, as is the case with the
deputies of the United Provinces of the Nether-
lands, or of the Swiss Cantons; but, when they
are once admitted, they represent the whole body
of the nation. -
The qualifications required for being a member
of the house of commons are, for representing a
county, to be born a subject of Great-Britain, and
to be possessed of a landed estate of six hundred
pounds a year; and of three hundred, for repre-
senting a town or borough.
The qualifications required for being an elector
in a county are to be possessed, in that county,
of a freehold of forty shillings a year.f With
regard to electors in towns and boroughs, they
* By the incorporative union with Ireland, which took place
at the beginning of the year 1801, one hundred numbers were
added to the lower house; so that this assembly now consists
of six hundred and fifty-eight individuals, who represent the
very numerous body of the commons of the united kingdom of
Great-Britain and Ireland. EDIT. * ,
t This freehold must have been possessed by the elector one
whole year at least before the time of election, except it has
devolved to him by inheritance, by marriage, by a last will, or
by promotion to an office.
OF ENGLAND. 53
must be freemen of them ;—a word which now
signifies certain qualifications expressed in the par-
ticular charters.
When the king has determined to assemble a
parliament, he sends an order for that purpose
to the lord-chancellor; who, after receiving the
same, sends a writ, under the great seal of Eng-
land, to the sheriff of every county, directing
him to take the necessary steps for the election
of members for the county, and the towns and
boroughs contained in it. Three days after the
reception of the writ, the sheriff must, in his turn,
send his precept to the magistrates of the towns
and boroughs, to order them to make their elec-
tion within eight days after the receipt of the pre-
cept, giving four days' notice of the same. And
the sheriff himself must proceed to the election for
the county, not sooner than ten days after the re-
ceipt of the writ, nor later than sixteen.
The principal precautions, taken by the law,
to ensure the freedom of elections, are, that any
candidate, who, after the date of the writ, or
even after the vacancy, shall have given enter-
tainments to the electors of a place, or to any of
them, in order to his being elected, shall be in-
capable of serving for that place in parliament;*
* This incapacitation is ordered by an act of the seventh year
of king William III.; but, as the terms of that statute did not
sufficiently preclude the allowance of large sums for the con-
veyance of voters to the place of election, and for their suste-
mance during the poll, a bill was brought forward in the year
"54 THE CONSTITUTION
and that if any person gives or promises to give,
any money, employment, or reward, to a voter,
in order to influence his vote, he, as well, as the
voter himself, shall be condemned to pay a fine
of five hundred pounds, and for ever disqualified
to vote, and hold any office in a corporation,--
the faculty, however, being reserved to both, of
procuring indemnity for their own offence, by
discovering some other offender of the same
kind.
It has been moreover established, that no lord
of parliament, or lord-lieutenant of a county, has
any right to interfere in the elections of members;
that any officer of the excise, customs, &c. who
shall presume to intermeddle in elections, by influ-
encing any voter to give or with-hold his vote,
shall forfeit one hundred pounds, and be disabled
to hold any office. Lastly, all soldiers quartered
in a place where an election is to be made must
move from it, at least one day before the election,
to the distance of two miles or more, and return
not till one day after the election is finished.
The house of peers, or lords, is composed of the
lords spiritual, who are the archbishops of Canter-
bury and of York, and the twenty-four bishops;
and of the lords temporal, whatever may be their
1806, reducing those charges within reasonable limits, accord-
ing to the true intent and spirit of the former act. This bill,
however, was not honoured with the approbation of the house
of peers, who were either unconvinced of it's general necessity,
or of the expedieney of it's particular provisions. Edit.
OF ENGLAND. 355
respective titles, such as dukes, marquises, earls,
&c.” j
Lastly, the king is the third constitutive part
of parliament: it is even he alone who can con-
voke it; and he alone can dissolve or prorogue it.
The effect of a dissolution is, that from that mo-
ment the parliament completely ceases to exist; the
commission, given to the members by their con-
stituents, is at an end; and, whenever a new
meeting of parliament shall happen, they must be
elected anew. A prorogation is an adjournment
to a term appointed by the king; till which the
existence of parliament is simply interrupted, and
the function of the deputies suspended.
When the parliament meets, whether it be by
virtue of new summons, or whether, being com-
posed of members formerly elected, it meets again
at the expiration of the term for which it had
been prorogued, the king either goes to it in per-
son, invested with the insignia of his dignity, or
appoints proper persons to represent him on that
occasion, and opens the session by laying before
the parliament the state of the public affairs, and
inviting it to take them into consideration. The
presence of the king, either real or represented,
is absolutely requisite at the first meeting; it is
that which gives life to the legislative bodies, and
puts them in action.
* The peers of England sit individually, each in his own
right; but those of Scotland are represented in parliament by
sixteen, whom they elect from their aggregate number; and
those of Ireland, by thirty-two. EDIT.
56 THE constituTION
The king, having concluded his declaration,
withdraws. The parliament, which is then legally
intrusted with the care of the national concerns,
enters upon, its functions, and continues to exist
till it is prorogued, or dissolved. The house of
commons, and that of peers, assemble separately ;
the latter, under the presidence of the lord-chan-
cellor; the former, under that of their speaker; and
both separately adjourn to such days as they re-
spectively think proper to appoint. J
As each of the two houses has a negative on the
propositions made by the other, and there is, conse-
quently, no danger of their encroaching on each
other's rights, or on those of the king, who has
likewise his negative upon them both, any ques-
tion, judged by them conducive to the public good,
without exception, may be made the subject of
their respective deliberations. Such are, for in-
stance, new limitations, or extensions, to be given
to the authority of the king; the establishing of
new laws, or making changes in those already
in being. Lastly, the different kinds of public
provisions, or establishments, the various abuses
of administration, and their remedies, become,
in every session, the objects of the attention of
parliament.
Here, however, an important observation must
be made. All bills for granting money must have
their beginning in the house of commons: the
lords cannot take this object into their considera-
tion but in consequence of a bill presented to them.
by the latter; and the commons have at all times
OF ENGLAND. 57
been so anxiously tenacious of this privilege, that
they have never suffered the lords even to make
any change in the money-bills which they have
sent to them; and the lords are expected simply
and solely either to accept or reject them.
This excepted, every member, in each house,
may propose whatever question he thinks proper.
If, after being considered, the matter is found to
deserve attention, the person who made the pro-
position, usually with some others adjoined to him,
is desired to set it down in writing. If, after more
complete discussions of the subject, the proposition
is carried in the affirmative, it is sent to the other
house, that they may, in their turn, take it into
consideration. If the other house reject the bill,
it remains without any effect: if they agree to it,
nothing remains wanting to its complete establish-
ment but the royal assent. - -
When there is no business that requires imme-
diate dispatch, the king usually waits till the end
of the session, or at least till a certain number of
bills are ready for him, before he declares his royal
pleasure. When the time is come, the king goes
to parliament in the same state with which he
opened it; and while he is seated on the throne,
a clerk, who has a list of the bills, gives, or re-
fuses, as he reads, the royal assent. -
When the royal assent is given to a public bill,
the clerk says, Le roy le veut. If the bill be a
private bill, he says, Soit fait comme il est desiré.
If the bill has subsidies for its object, he says,
*58 TPIE CONSTITUTION
Le roy remercie ses loyaua sujets, accepte-leur
ºbénévolence, et aussi le vewt. Lastly, if the king
does not think proper to assent to the bill, the
clerk says, Le roy savisera ; which is a mild way
of giving a refusal.
It is, however, pretty singular, that the king
of England should make use of the French lan-
guage to declare his intentions to his parliament.
This custom was introduced at the Conquest,”
and has been continued, like other matters of
form, which sometimes subsist for ages after the
real substance of things has been altered: and
Judge Blackstone expresses himself on this sub-
ject in the following words: “A badge, it must
* be owned (now the only one remaining), of
“ conquest; and which one would wish to see
“fall into total oblivion, unless it be reserved as
“ a solemn memento to remind us that our liber-
“ ties are mortal, having once been destroyed by
“ a foreign force.
"When the king has declared his different in-
tentions, he prorogues the parliament. Those
bills which he has rejected remain without force:
those to which he has assented become the ex-
* William the Conqueror added, to the other changes he
introduced, the abolition of the English language in all public
as well as judicial transactions, and substituted for it the
French that was spoken in his time: hence the number of old
French words that are met with in the style of the English
laws. It was only under Edward III. that the English lan-
guage began to be re-established in the courts of justice.
. OF ENGLAND. 59
pression of the will of the highest power acknow-
ledged in England: they have the same binding
force as the édits enrégistrés have in France,
and as the populiscita had in ancient Rome: in
a word, they are laws. And though each of the
constituent parts of the parliament might, at first,
have prevented the existence of those laws, the
united will of all the three is now necessary to
repeal them. * -
CHAPTER V.
Of the Earecutive Power.
WHEN the parliament is prorogued or dis-
solved, it ceases to exist; but its laws still con-
tinue to be in force: the king remains charged
with the execution of them, and is supplied with
the necessary power for that purpose.
It is, however, to be observed, that though, in
his political capacity of one of the , constituent
parts of the parliament (that is, with regard to
the share allotted to him in the legislative autho-
rity), the king is undoubtedly sovereign, and only
needs allege his will when he gives or refuses his
assent to the bills presented to him ; yet, in the
exercise of his powers of government, he is no
more than a magistrate; and the laws, whether
those that existed before him, or those to which,
by his assent, he has given being, must direct his
conduct, and bind him equally with his subjects.
60 THE constituTION
I. The first prerogative of the king, in his ca-
pacity of supreme magistrate, has for its object
the administration of justice.
1°. He is the source of all judicial power in the
state; he is the chief of all the courts of law, and
the judges are only his substitutes: every thing
is transacted in his name; the judgments must
be with his seal, and are executed by his officers.
2°. By a fiction of the law, he is looked upon
as the universal proprietor of the kingdom: he is
in consequence deemed directly concerned in all
offences; and, for that reason, prosecutions are to
be carried on in his name in the courts of law.
3°. He can pardon offences, that is, remit the
punishment that has been awarded in consequence
of his prosecution. -
II. The second prerogative of the king is, to be
the fountain of honour, that is, the distributor
of titles and dignities: he creates the peers of the
realm, as well as bestows the different degrees of
inferior mobility. He moreover disposes of the
different offices, either in the courts of law, or
elsewhere. -
III. The king is the superintendant of com-
merce; he has the prerogative of regulating
weights and measures; he alone can coin money,
and can give a currency to foreign coin.
IV. He is the supreme head of the church. In
this capacity he appoints the bishops, and the two
archbishops; and he alone can convene the assem-
bly of the clergy. This assembly is formed in
England, on the model of the parliament; the
OF ENGLAND. 61
bishops form the upper house: deputies from the
dioceses, and from the several chapters, form the
lower house: the assent of the king is likewise
necessary to the validity of their acts, or canons;
and the king can prorogue, or dissolve, the convo-
cation. . . . . . . -
V. He is, in right of his crown, the general-
issimo of all sea or land forces whatever; he
alone can levy troops, equip fleets, build fortresses,
and fill all the posts in them. . . . . .
VI. He is, with regard to foreign nations, the
representative and the depository of all the power
and collective majesty of the nation; he sends and
receives ambassadors; he contracts alliances; and
has the prerogative of declaring war, and of
making peace, on whatever conditions he thinks
proper. - - . . . -
VII. In fine, what seems to carry so many
powers to the height, is, its being a fundamental
maxim, that THE KING CAN DO NO WRONG:
which does not signify, however, that the king
has not the power of doing ill, or, as it was pre-
tended by certain persons in former times, that
every thing he did was lawful; but only that he
is above the reach of all courts of law whatever,
and that his person is sacred and inviolable.* ,
* This maxim was introduced with a view of securing such
a profound respect to the king's person and dignity, as might
most effectually tend to promote a general obedience to the
laws of which he is the administrator; and the danger of pro-
pagating an idea which cannot be strictly applicable to any
63' THE constitution
CHAPTER VI.
The Boundaries which the Constitution has set to
the Royal Prerogative. !
IN reading the foregoing enumeration of the
powers with which the laws of England have in-
trusted the king, we are at a loss to reconcile them.
with the idea of a monarchy, which, we are, told,
is limited. The king not only unites in himself
all the branches of the executive power; he not
only disposes without control, of the whole mili-
tary-power in the state;—but he is, moreover, it
seems, master of the law itself, since he calls up
and dismisses, at his will, the legislative bodies.
We find him, therefore, at first sight, invested
with all the prerogatives that ever were claimed
by the most absolute monarchs; and we are at a
loss to find that liberty which the English seem so
confident they possess. * : -
But the representatives of the people still have,
—and that is saying enough, they still have in
their hands, now that the constitution is fully
established, the same powerful weapon which en-
abled their ancestors to establish it. It is still from
their liberality alone that the king can obtain sub-
human being, whether prince or peasant, is apparently obviated
by the consideration of the full responsibility of the advisers
of the severeign, and the members of his cabinet, EDIT.
OF ENGLAND. . . 63.
sidies; and in these days, when every thing is:
rated by pecuniary estimation,-when gold is be-,
come the great moving spring of affairs, it may
be safely affirmed, that he who depends on the will:
of other men, with regard to so important an:
article, is (whatever his power may be in other
respects) in a state of real dependence. -
This is the case of the king of England. He
has, in that capacity, and without the grant of
his people, scarcely any revenue. A few here-
ditary duties on the exportation of wool, which
(since the establishment of manufactures) are be-,
come tacitly extinguished; a branch of the excise,
which, under Charles the Second, was annexed to
the crown as an indemnification for the military
services it gave up, and which, under George the
First,” was fixed at seven thousand pounds; a
duty of two shillings on every ton of wine im-
ported; the wrecks of ships of which the owners:
remain unknown; whales and sturgeons thrown
on the coast; swans swimming on public rivers;
and a few other feudal relics, now compose the
whole appropriated revenue of the king, and are
all that remain of the ancient inheritance of the
CrOWri, , . . -
The king of England, therefore, has the pre-
rogative of commanding, armies, and equipping
fleets; but without the concurrence of his par-
* The author ought to have said, George the Second-
EDrºr, - - -
64 THE CONSTITUTION
liament he cannot maintain them. He can be-
stow places and employments; but without his
parliament he cannot pay the salaries attending on
them. He can declare war; but without his par-
liament it is impossible for him to carry it on. In
a word, the royal prerogative, destitute as it is
of the power of imposing taxes, is like a vast
body, which cannot of itself accomplish its mo-
tions; or, if you please, it is like a ship completely
equipped, but from which the parliament can at
pleasure draw off the water, and leave it aground,-
and also set it float again, by granting subsidies.
And indeed we see, that, since the establish-
ment of this right of the representatives of the
people, to grant or refuse subsidies to the crown,
their other privileges have been continually in-
creasing. Though these representatives were nbt,
in the beginning, admitted into parliament but
upon the most disadvantageous terms, yet they
soon found means, by joining petitions to their
money-bills, to have a share in framing those laws
by which they were in future to be governed; and
this method of proceeding, which at first was only
tolerated by the king, they afterwards converted
into an express right, by declaring, under Henry
the Fourth, that they would not, thenceforward,
come to any resolutions with regard to subsidies,
before the king had given a precise answer to their
petitions.
In subsequent times we see the commons con-
stantly successful, by their exertions of the same
OF ENGLAND. 65
privilege, in their endeavours to lop off the de-
spotic powers which still made a part of the regal
prerogative. Whenever abuses of power had taken
place, which they were seriously determined to
correct, they made grievances and supplies (to use
the expression of Sir Thomas Wentworth) go
hand in hand together; which always produced
the redress of them. And in general, when a bill,
in consequence of its being judged by the com-
mons essential to the public welfare, has been
joined by them to a money-bill, it has seldom failed
to pass in that agreeable company.” * *
* In mentioning the forcible use which the commons have
at times made of their power of granting subsidies, by joining
provisions of a different nature to bills that had grants for
their object, I only mean to show the great efficiency of that
power, which was the subject of this chapter, without pre-
tending to say anything as to the propriety of the measure.
The house of lords have even found it necessary (which con-
firms what is said here) to form, as it were, a confederacy
among themselves, for the security of their legislative autho-
rity against the unbounded use which the commons might
make of their power of taxation; and it has been made a
standing order of their house, to reject any bill whatsoever to
which a money-bill has been tacked.
66 THE CONSTITUTION
CHAPTER VII.
\ The same Subject continued
BUT this force of the prerogative of the com-
mons, and the facility with which it may be ex-
erted, however necessary for the first establish-
ment of the constitution, might prove too con-
siderable at present, when it is requisite only to
support it. There might be the danger, that, if
the parliament should ever exert their privilege to
its full extent, the prince, reduced to despair,
might resort to fatal extremities; or that the con-
stitution, which subsists only by virtue of its equi-
librium, might in the end be subverted.
Indeed, this is a case which the prudence of
parliament has foreseen. They have, in this re-
spect, imposed laws upon themselves; and, with-
out touching the prerogative itself, they have mo-
derated the exercise of it. A custom has for a
long time prevailed, at the beginning of every
reign, and in the kind of overflowing of affection
which takes place between a king and his first
parliament, to grant the king a revenue for his
life; a provision which, with respect to the great
exertions of his power, does not abridge the in-
fluence of the commons, but yet puts him in a
condition to support the dignity of the crown, and
affords him, who is the first magistrate in the na-
OF ENGLAND. 67
tion, that independence which the laws ensure
also to those magistrates who are particularly in-
trusted with the administration of justice.*
This conduct of the parliament provides an ad-
mirable remedy for the accidental disorders of the
state. For though, by the wise distribution of
the powers of government, great usurpations are
become in a manner impracticable, nevertheless it
is impossible but that, in consequence of the con-
tinual (though silent) efforts of the executive power
to extend itself, abuses will at length slide in.
But here the powers, wisely kept in reserve by the
parliament, afford the means of remedying them.
At the end of each reign, the civil list, and con-
sequently that kind of independence which it pro-
cured, are at an end. The successor finds a throne,
a sceptre, and a crown; but he finds neither power,
nor even dignity; and before a real possession of
all these things be given him, the parliament have
it in their power to take a thorough review of the
state, as well as correct the several abuses that
may have crept in during the preceding reign :
* The twelve judges.—Their commissions, which in former
times were often given them durante bene placito, now must
always “be made quamdiu se bene gesserint, and their salaries
“ascertained; but, upon an address of both houses, it may
“be lawful to remove them.”—Stat. 13 Will. III, c. 2. In
the first year of the reign of his present majesty, it was more-
over enacted, that the commissions of the judges should con-
tinue in force notwithstanding the demise of the king; which
has prevented their being dependent, with regard to their con-
tinuation in office, on the heir-apparent.
Tº 2
68 THE CONSTITUTION }
and thus the constitution may be brought back to
its first principles. . . . . .
England, therefore, by this mean, enjoys one
very great advantage-one that all free states
have sought to procure for themselves; I mean
that of a periodical reformation. But the ex-
pedients which legislators have contrived for this
purpose in other countries, have always, when
attempted to be carried into practice, been found
to be productive of very disadvantageous con-
sequences. Those laws which were made in
Rome, to restore that equality which is the essence
of a democratical government, were always found
impracticable: the attempt alone endangered the
overthrow of the republic; and the expedient
which the Florentines called ripigliar il stato
proved nowise happier in its consequences. This
was because all those different remedies were de-
stroyed beforehand, by the very evils they were
meant to cure; and the greater the abuses were,
the more impossible it was to correct them.
But the mean of reformation which the par-
liament of England has taken care to reserve to
itself, is the more effectual, as it goes less directly
to its end. It does not oppose the usurpations of
prerogative, as it were, in front: it does not en-
counter it in the middle of its career, and in the
fullest flight of its exertion: but it goes in search
of it to its source, and to the principle of its ac-
tion. It does not endeavour forcibly to overthrow
it; it only enervates its springs.
OF ENGLAND. 69
What increases still more the mildness of the ope-
ration, is, that it is only to be applied to the usurpa-
tions themselves, and passes by what would be far
more formidable to encounter, the obstimacy and
pride of the usurpers. . . . . -
Every thing is transacted with a new sovereign,
who, till then, has had no share in public affairs,
and has taken no step which he may conceive him-
self bound in honour to support. In fine, they do
not wrest from him what the good of the state re-
quires he should give up : he himself makes the
sacrifice. - -
The truth of all these observations is remark-
ably confirmed by the events that followed the
reign of the two last Henries. Every barrier that
protected the people against the incursions of power
had been broken through. The parliament, in
their terror, had even enacted that proclamations,
that is, the will of the king, should have the force
of laws:* the constitution seemed really undone.
Yet, on the first opportunity afforded by a new
reign, liberty began again to make its appearance. f
And when the nation, at length recovered from
its long supineness, had, at the accession of Charles
the First, another opportunity of a change of so-
* Stat. 31 Hen. VIII. chap. 8.
f The laws concerning treason, passed under Henry the
Eighth, which judge Blackstone calls “an amazing heap of
“wild and new-fangled treasons,” were, together with the
statute just mentioned, repealed in the beginning of the
reign of Edward VI. -
70 THE CONSTITUTION
**
vereign, that enormous mass of abuses, which had
been accumulating, or gaining strength, during
five successive reigns, was removed, and the an-
cient laws were restored. t x
To which add, that this second reformation,
which was so extensive in its effects, and might be
called a new creation of the constitution, was ac-
complished without producing the least convulsion.
Charles the First, in the same manner as Edward
the Sixth, (or his uncle, the regent duke of So-
merset) had done in former times, assented to every
regulation that was passed; and whatever reluc-
tance he might at first manifest, yet the act called
the Petition of Right (as well as the bill which
afterwards completed the work) received the
royal sanction without bloodshed.
It is true, great misfortunes followed; but they
were the effects of particular circumstances. The
nature and extent of regal authority not having
been accurately defined during the time which pre-
ceded the reigns of the Tudors, the exorbitant
power of the princes of that house had gradually
introduced political prejudices, of even an extrava-
gant kind: those prejudices, having had a hundred
and fifty years to take root, could not be shaken
off but by a kind of general convulsion; the agi-
tation continued after the action, and was carried
to excess by the religious quarrels that arose at that
time.
OF ENGLAND, 71
CHAPTER VIII.
New Restrictions.
THE Commons, however, have not entirely re-
lied on the advantages of the great prerogative
with which the constitution has intrusted them.
Though this prerogative is, in a manner, out of
danger of an immediate attack, they have never-
theless shown at all times the greatest jealousy on
its account. They never suffer, as we have ob-
served before, a money-bill to begin any-where
but with themselves; and any alteration that may
be made in it, in the other house, is sure to be re-
jected. If the commons had not most strictly re-
served to themselves the exercise of a prerogative
on which their very existence depends, the whole
might at length have slidden into that other body,
which they might have suffered to share in it
equally with them. If any other persons, besides
the representatives of the people, had a right to
make an offer of the produce of the labour of the
people, the executive power would soon have for-
gotten that it only exists for the advantage of the
public.”
* As the crown has the undisputed prerogative of assenting
to, and dissenting from, what bills it thinks proper, as well
as of convening, proroguing, and dissolving the parliament
whenever it pleases, the latter have no assurance of having a
72 THE CONSTITUTION
Besides, though this prerogative has of itself,
we may say, an irresistible efficiency, the parlia-
ment has neglected nothing that may increase it,
or at least the facility of its exercise; and though
they have allowed the general prerogatives of the
sovereign to remain undisputed, they have in
regard paid to their bills, or even of being allowed to assemble,
but what may result from the need the crown stands in of their
assistance: the danger, in that respect, is even greater for the
commons than for the lords, who enjoy a dignity which is
hereditary, as well as inherent to their persons, and form a
permanent body in the state; whereas the commons complete-
ly vanish, whenever a dissolution takes place: there is, there-
fore, no exaggeration in what has been said above, that their
very being depends on their power of granting subsidies to the
crown. . . w -
Moved by these considerations, and, no doubt, by a sense
of their duty towards their constituents, to whom this right
of taxation originally belongs, the house of commons have at
all times been very careful lest precedents should be esta-
blished, which might, in the most distant manner, tend to
weaken that right. Hence the warmth, I might say the re-
sentment, with which they have always rejected even the
amendments proposed by the lords in their money-bills. The
lords, however, have not given up their pretension to make
such amendments; and it is only by the vigilance and con-
stant predetermination of the commons to reject all alteration
whatever made in their money-bills, without even examining
them, that this pretension of the lords is reduced to be an
useless, and only dormant, claim. .
[It is not altogether an useless claim : for, although the
commons constantly reject a money-bill that has been altered
by the lords, yet, if the alterations be worthy of adoption,
a new bill is introduced, containing, in substance, the amend-
ments made by the peers, who thus obtain, in effect, the par-
ticipation of a privilege denied to them in form.—EDIT.]
OF ENGLAND. 73
several cases endeavoured to restrain the use he
might make of them, by entering with him into
divers express and solemn conventions for that
purpose. *
Thus, the king is indisputably invested with the
exclusive right of assembling parliaments; yet he
must assemble one, at least once in three years;
and this obligation on the king, which was in-
sisted upon by the people in very early times,t has
been since confirmed by an act passed in the six-
teenth year of the reign of Charles the Second.
Moreover, as the most fatal consequences might
ensue, if laws which might most materially affect
public liberty, could be enacted in parliaments ab-
ruptly and imperfectly summoned, it has been es-
tablished that the writs for assembling a parlia-
ment must be issued forty days at least before the
first meeting of it. Upon the same principle it has
also been enacted, that the king cannot abridge the
term he has once fixed for a prorogation, except
in the two following cases, viz. of a rebellion, or
of imminent danger of a foreign invasion; in both
* Laws made to bind such powers in a state as have no su-
perior power by which they may be legally compelled to the
execution of them (for instance, the crown, as circumstanced
in England), are nothing more than general conventions, or
treaties, made with the body of the people.
f It was not merely once in three years that the people
wished the parliament to meet; for, even as early as the reign
of Alfred, it was ordained, in compliance with the national wish,
that the wittena-gemot should meet every year.—EDIT.
74 THE CONSTITUTION
which cases a fourteen days' notice must be
given.”
Again, the king is the head of the church; but
he can neither alter the established religion, or
call individuals to an account for their religious
opinions. f. He cannot even profess the religion
which the legislature has particularly forbidden;
and the prince who should profess it is declared
incapable of inheriting, possessing, or enjoying,
the crown of these kingdoms. #
The king is the first magistrate; but he can
make no change in the maxims and forms conse-
crated by law or custom : he cannot even influ-
ence, in any case whatever, the decision of causes
between subject and subject; and James the First,
assisting at the trial of a cause, was reminded by
the judge, that he could deliver no opinion. S
* Stat. 30 Geo. II. ch. 25.
t The convocation, or assembly of the clergy, of which the
king is the head, can only regulate such affairs as are merely
ecclesiastical; they cannot touch the laws, customs, and
statutes, of the kingdom.—Stat. 25 Hen. VIII. c. 19.
[A convocation is still summoned with every new parlia-
ment; but it only assembles pro formá, and is considered as a
mere nullity. EDIT.]
# 1 Will. & M. stat. 2. c. 2.
§ These principles have since been made an express article
of an act of parliament; the same which abolished the star-
chamber. “Be it likewise declared and enacted, by the au-
“ thority of this present parliament, that neither his majesty,
“ nor his privy-council, have, or ought to have, any juris-
“ diction, power, or authority, to examine or draw into ques-
OF ENGLAND. 75
Lastly, though crimes are prosecuted in his name,
he cannot refuse to lend it to any particular per-
sons, who have complaints to prefer. -
The king has the privilege of coining money;
but he cannot alter the standard. +
The king has the power of pardoning offend-
ers; but he cannot exempt them from making a
compensation to the parties injured. It is even
established by law, that, in a case of murder, the
widow, or next heir, shall have a right to prose-
cute the murderer; and the king’s pardon, whe-
ther it preceded the sentence passed in consequence
of such prosecution, or whether it be granted after
it, cannot have any effect. *
The king has the military power; but, still,
with respect to this, he is not absolute. It is true,
in regard to the sea-forces, as there is in them this
very great advantage, that they cannot be turned
against the liberty of the nation, at the same time
that they are the surest bulwark of the island, the
king may keep them as he thinks proper; and in
this respect he lies only under the general restraint
of applying to parliament for obtaining the means
of doing it. But in regard to land-forces, as they
may become an immediate weapon in the hands of
“tion, determine, or dispose of, the lands, tenements, goods,
“ or chattels, of any of the subjects of this kingdom.” Stat.
16, Ch. I. cap. 10. § 10.
* The method of prosecution mentioned here, is called an
appeal; it must be sued within a year and a day after the
commission of the crime.
76 THE CONSTITUTION
power, for throwing down all the barriers of pub—
lic liberty, the king cannot raise them without the
consent of parliament. The guards of Charles the
Second were declared anti-constitutional ; and
James’s army was one of the causes of his being
dethroned.*
In these times, however, when it is become a
custom with princes to keep those numerous ar-
mies, which serve as a pretext and means of op-
pressing the people, a state that would maintain
its independence is obliged, in a great measure,
to do the same. The parliament has therefore
thought proper to establish a standing body of
troops (amounting to about thirty thousand men),
of which the king has the command.
But this army is only established for one year;
at the end of that term, it is (unless re-established)
to be ipso facto disbanded; and as the question,
which then lies before parliament, is not, whether
the army shall be dissolved, but whether it shall
be established anew, as if it had never existed,
any one of the three branches of the legislature
may, by its dissent, hinder its continuance.
Besides, the funds for the payment of these
troops are to be paid by taxes that are not esta-
blished for more than one year:f and it becomes
* A new sanction was given to the above restr ction in the
sixth article of the Bill of Rights: “A standing army, with-
“ out the consent of parliament, is against law.”
T The land-tax and malt-tax.
[It was ordained in 1798, that the land-tax should be made
OF ENGLAND. 77
likewise necessary, at the end of this term, again
to establish them.* In a word, this instrument
of defence, which the circumstances of modern
times have caused to be judged necessary, being
capable, on the other hand, of being applied to
the most dangerous purposes, has been joined to
the state by only a slender thread, the knot of
which may be slipped, on the first appearance of
danger:f -
perpetual; subject to complete redomption and purchase, by
the transfer of stock.—EDIT.] -
* It is also necessary that the parliament, when it renews
the act against mutiny, should authorise the different courts-
martial to punish military offences and desertion. It can
therefore refuse the king even the necessary power of military
discipline. - * . " -
t To these laws, or rather conventions, between king and
people, I will add the oath which the king takes at his corona-
tion; a compact which, if it cannot have the same precision
as the laws above-mentioned, yet, in a manner, comprehends
them all, and has the farther advantage of being declared
with more solemnity. -
The archbishop or bishop shall say, “Will you solemnly
“promise and swear to govern the people of this kingdom of
“England, and the dominions thereto belonging, according
“ to the statutes of parliament agreed on, and the laws and
“ customs of the same?”—The king or queen shall say, “I
“solemnly promise so to do.” * - -
Archbishop or bishop.–“Will you, to your power, cause
“law and justice, in mercy, to be executed in all your judg-
“ments?”—King or queen. “I will.” -
Archbishop or bishop.–" Will you, to the utmost of your
“power, maintain the laws of God, the true profession of the
“gospel, and the protestant reformed religion established by
“the law P And will you preserve unto the bishops and clergy
78 THE CONSTITUTION
But these laws, which limit the king's autho-
rity, would not, of themselves, have been suffi-
cient. As they are, after all, only intellectual
barriers, which the king might not at all times
respect; as the check which the commons have on
his proceedings, by a refusal of subsidies, affects
too much the whole state to be exerted on every
particular abuse of his power; and lastly, as even
this check might in some degree be eluded, either
by breaking the promises which have procured
subsidies, or by applying them to uses different
from those for which they were appointed; the
constitution has besides supplied the commons
with the means of immediate opposition to the mis-
conduct of government, by giving them a right to
impeach the ministers.
It is true, the king himself cannot be arraigned
before judges; because if there were any that
could pass sentence upon him, it would be they,
and not he, who must finally possess the executive
power; but, on the other hand, the king cannot
act without ministers; it is therefore those minis-
ters, that is, those indispensable instruments,
whom they attack. -
“of this realm, and to the churches committed to their
“charge, all such rights and privileges as by law do or shall
“appertain unto them, or any of them?”—King or queen,
“All this I promise to do.” -
After this, the king or queen, laying his or her hand upon the
holygospels, shall say, “The things which I have here before
“promised'I will perform and keep: So help me God !"—
and then shalf kiss the book. . . . . . -

OF ENGLAND, 79
If, for example, the public money has been em-
ployed in a manner contrary to the declared in-
tention of those who granted it, an impeachment
may be brought against those who had the ma-
nagement of it. If any abuse of power is com-
mitted, or in general any thing done contrary to
the public weal, they prosecute those who have
been either the instruments or the advisers of the
measure.”
But who shall be the judges to decide in such a
cause ? What tribunal will flatter itself that it can
give an impartial decision, when it shall see, ap-
pearing at its bar, the government itself as the
accused, and the representatives of the people as
the accusers? *
It is before the house of peers that the law has
directed the commons to carry their accusation;
that is, before judges, whose dignity, on the one
hand, renders them independent, and who, on
the other, have a great honour to support in that
awful function, where they have all the nation for
spectators of their conduct.
When the impeachment is brought to the lords,
they commonly order the person accused to be
imprisoned. On the day appointed, the deputies
of the house of commons, with the person im-
peached, make their appearance: the impeach-
* It was upon these principles that the commons, in the
beginning of the eighteenth century, impeached the earl of
Orford, who had advised the treaty of partition, and the lord
chancellor Somers, who had affixed the great seal to it.
30 THE constituTION
ment is read in his presence; counsel are allowed
him, as well as time to prepare for his defence;
and, at the expiration of this term, the trial goes
on from day to day, with open doors, and every
thing is communicated in print to the public.
But whatever advantage the law grants to the
person impeached for his justification, it is from
the intrinsic merits of his conduct that he must
draw his arguments and proofs. It would be of
no service to him, in order to justify a criminal
conduct, to allege the commands of the sovereign;
or, pleading guilty with respect to the measures
imputed to him, to produce the royal pardon.” It
* This point, in ancient times, was far from being clearly
settled. In the year 1678, the commons having impeached
the earl of Danby, he pleaded the king's pardon in bar to that
impeachment: great altercations ensued, which were ter-
minated by the dissolution of that parliament. It was after-
wards enacted (Stat. 12 & 13 W. III. c. 2.), “that no pardon
“under the great seal should be pleaded in bar to an impeach-
“ment by the house of commons.” -
I once asked a gentleman, very learned in the laws of this
country, if the king could remit the punishment of a man con-
demned in consequence of an impeachment of the house of
commons: he answered me, The tories will tell you the king
can, and the whigs, he cannot. [There is no reason to doubt the
king’s power in this respect, though the policy of such a measure
may well be disputed. EDIT.] But it is not perhaps very
material that the question should be decided: the great public
ends are attained when a corrupt minister is removed with dis-
grace, and the whole system of his proceedings unveiled to the
public eye. . . . . . t
[Another disputed point was, whether an impeachment WąS
so far affected by a dissolution, as to render it necessary for
OF ENGLAND. 81
is against the administration itself that the im-
peachment is carried on ; it should therefore by no
means interfere: the king can neither stop nor
suspend its course, but is forced to behold, as an
inactive spectator, the discovery of the share
which he may himself have had in the illegal pro-
ceedings of his servants, and to hear his own sen-
tence in the condemnation of his ministers.
An admirable expedient! which, by removing
and punishing corrupt ministers, affords an imme-
diate remedy for the evils of the state, and strongly
marks out the bounds within which power ought
to be confined: which takes away the scandal of
guilt and authority united, and calms the people
by a great and awful act of justice: an expedient,
in this respect especially, so highly useful, that it
is to the want of the like that Machiavel attributes
the ruin of his republic.
But all these general precautions to secure the
rights of the parliament, that is, those of the ma-
tion itself, against the efforts of the executive
power, would be vain, if the members themselves
the commons to institute de novo a similar inquiry, if they
earnestly wished to bring a delinquent to justice.—This point
was fully debated in 1790, in the case of Mr. Hastings; and
the majority of the commons, influenced by the arguments of
the ablest speakers of both parties, decided for the con-
tinuance of an impeachment from one parliament to another,
not as an innovation but as an ancient point of constitutional
practice, calculated to prevent the undue interference of the
crown in favour of an accused individual, or a guilty minister.
EDIT.
G.
82 THE CONSTITUTION
remained personally exposed to them. Being un-
able openly to attack, with any safety to itself,
the two legislative bodies, and by a forcible exer-
tion of its prerogatives, to make, as it were, a
general assault, the executive power might, by
subdividing the same prerogatives, gain an en-
trance, and, sometimes, by interest, and at others
by fear, guide the general will, by influencing that
of individuals.
But the laws which so effectually provide for
the safety of the people, provide no less for that
of the members, whether of the house of peers,
or that of the commons. There are not known
in England either commissaries who are always
ready to find those guilty whom the wantonness
of ambition points out, or those secret imprison-
ments which are, in other countries, the usual
expedients of government. As the forms and
maxims of the courts of justice are strictly pre-
scribed, and every individual has an invariable
right to be judged according to law, he may obey
without fear the dictates of public virtue. Lastly,
what crowns all these precautions, is, its being a
fundamental maxim, “That the freedom of speech,
“ and debates and proceedings in parliament, ought
“ not to be impeached or questioned in any court
“ or place out of parliament.””
The legislators, on the other hand, have not
forgotten that interest, as well as fear, may im-
* Bill of Rights, Art. 9.
. OF ENGLAND. $3
pose silence on duty. To prevent its effects, it
has been enacted, that all persons concerned in
the management of any taxes created since 1692.
commissioners of prize, navy, victualling-office, &c.
comptrollers of the army accounts, agents for re-
giments, the clerks in the different offices of the
revenue, persons holding any new office under the
crown (created since 1705), or having a pension
under the crown during pleasure, or for any term
of years, are incapable of being elected members.
Besides, if any member accepts an office under
the crown, except it be an officer in the army or
navy accepting a new commission, his seat be-
comes void, though such member is capable of
being re-elected. - - -
Such are the precautions hitherto taken by the
legislators, for preventing the undue influence of
the great prerogative of disposing of rewards and
places; precautions which have been successively
taken, according as circumstances have shown
them to be necessary; and which, we may thence
suppose, are owing to causes powerful enough to
produce the establishment of new ones, whenever
circumstances shall point out the necessity of
them.* -
* Nothing can be a better proof of the efficacy of the causes
that produce the liberty of the English, than those victories
which the parliament from time to time gains over itself, and
in which the members, forgetting all views of private ambition.
only think of their interest as subjects.
Since this was first written, an excellent regulation has been
G 2
84 THE CONSTITUTION
CHAPTER IX.
of private Liberty, or the Liberty of Individuals.
WE have hitherto treated only of general li-
berty, that is, of the rights of the nation as a
nation, and of its share in the government. It
now remains that we should treat particularly of
a thing without which this general liberty, being
absolutely frustrated in its object, would be only
a matter of ostentation, and even could not long
subsist,--I mean the liberty of individuals.
Private liberty, according to the division of the
English lawyers, consists, first, of the right of
property, that is, of the right of enjoying ex-
clusively the gifts of fortune, and all the various
made for the decision of controverted elections. Formerly the
house decided them in a very summary manner, and the wit-
nesses were not examined upon oath. But, by an act passed
a few years ago [in 1770, under the auspices of Mr. Grenville,
whose son, lord Grenville, has since improved it—EDIT.], the
decision is left to a jury, or committee, of fifteen members,
formed in the following manner:—Out of the members pre-
sent, who must not be less than one hundred, forty-nine are
drawn by lots: out of these, each candidate strikes off one
alternately, till there remain only thirteen, who, with two
others, named out of the whole house (one by each candidate),
are to form the committee. In order to secure the necessary
number of a hundred members, all other business in the
house is to be suspended, till the above operations are com-
pleted. -
OF ENGLAN D. 85;
fruits of one's industry; secondly, of the right of
personal security; thirdly, of the loco-motive fa–
culty, taking the word liberty in its more confined
Sense.
Each of these rights, say again the English law-
yers, is inherent in the person of every English-
man ; they are to him as an inheritance, and he
cannot be deprived of them, but by virtue of a
sentence passed according to the laws of the land.
And, indeed, as this right of inheritance is ex-
pressed in English by one word (birth-right), the
same as that which expresses the king's title to the
crown, it has, in times of oppression, been often
opposed to him as a right, doubtless of less ex-
tent, but of a sanction equal to that of his own.
One of the principal effects of the right of pro-
perty is, that the king can take from his subjects
no part of what they possess; he must wait till
they themselves grant it to him : and this right,
which, as we have seen before, is, by its con-
sequences, the bulwark that protects all the others,
has moreover the immediate effect of preventing
one of the chief causes of oppression.
In regard to the attempts to which the right of
property might be exposed from one individual to
another, I believe I shall have said every thing,
when I have observed, that there is no man in
England who can oppose the irresistible power of
the laws;–that, as the judges cannot be deprived
of their employments but on an accusation by par-
liament, the effect of interest with the sovereign,
30 THE CONSTITUTION
or with those who approach his person, can scarcely
influence their decisions;—that, as the judges
themselves have no power to pass sentence till the
matter of fact has been settled by men nominated,
we may almost say, at the common choice of the
parties,” all private views, and consequently all
respect of persons, are banished from the courts
of justice. However, that nothing may be want-
ing which may help to throw light on the subject
I have undertaken to treat, I shall relate, in gene-
ral, what is the law in civil matters, that has
taken place in England. - * - -
When the Pandects were found at Amalphi,
the clergy, who were then the only men that were
able to understand them, did not neglect that op-
portunity of increasing the influence they had
already obtained, and caused them to be received
in the greater part of Europe. England, which
was destined to have a constitution so different
from that of other states, was to be farther distin-
guished by its rejecting the Roman laws.
Under William the Conqueror, and his imme-
diate successors, a multitude of foreign ecclesias-
tics flocked to the court of England. Their in-
fluence over the mind of the sovereign, which, in
the other states of Europe, as they were then con-
stituted, might be considered as matter of little
importance, was not so in a country where, the
• From the extensive right of challenging jurymen, which
is allowed to every person brought to his trial, though not very
frequently used. w
OF ENGLAND. 87
sovereign being all-powerful, to obtain influence
over him was to obtain power itself. The English
nobility saw, with the greatest jealousy, men of a
condition so different from their own, vested with
a power, to the attacks of which they were imme-
diately exposed; and thought that they would
carry that power to the height, if they should ever
adopt a system of laws which those same men sought
to introduce, and of which they would necessarily
become both the depositories and the interpreters.
It happened therefore, by a somewhat singular
conjunction of circumstances, that, to the Roman
laws, brought over to England by monks, the
idea of ecclesiastical power became associated, in
the same manner as the idea of regal despotism
was afterwards annexed to the religion of the
same monks, when favoured by kings who endea-
voured to establish an arbitrary government. The
nobility at all times rejected these laws, even with
a degree of ill-humour ;* and the usurper Ste-
phen, whose interest it was to conciliate their
affections, went so far as to prohibit the study of
them.
* The nobility, under the reign of Richard II., declared in
the French language of those times, “Purce que le roialme
“ d'Engleterre n'étoit devant ces heures, ne à l'entent du roy
“notre seignior, et seigniors du parlement, unques ne sera,
“rulé ne governé par la loy civil ;” viz. Inasmuch as the
kingdom of England was not before this time, nor, according
to the intent of the king our lord, and lords of parliament,
ever shall be, ruled or governed by the civil law.—Parl. West-
monast. Feb. 3, 1379.
88 THE CONSTITUTION
As the general disposition of things brought
about a sufficient degree of intercourse between
the mobility or gentry, and the people, the aver-
sion to the Roman laws gradually spread itself far
and wide; and those laws, to which their wisdom
in many cases, and particularly their extensive-
mess, ought naturally to have procured admittance
when the English laws themselves were yet but in
their infancy, experienced the most steady oppo-
sition from the lawyers; and as those persons,
who sought to introduce them, frequently renewed
their attempts, there at length arose a kind of
general combination among the laity, to confine
them to universities and monasteries.*
This opposition was carried so far, that For-
* It might perhaps be shown, if it belonged to the subject,
that the liberty of thinking in religious matters, which has at
all times remarkably prevailed in England, is derived from
nearly the same causes as its political liberty: both perhaps
are owing to this, that the same men, whose interest it is in
other countries that the people should be influenced by pre-
judices of a political or religious kind, have been in England
forced to inform and unite with them. I shall here take occa-
sion to observe, in answer to the reproach made to the Eng-
lish, by president Henault, in his much esteemed Chronolo-
gical History of France, that the frequent changes of religion
which have taken place in England do not argue any servile
disposition in the people; they only prove the equilibrium
between the then existing sects: there was none but what
might become the prevailing one, whenever the sovereign
thought proper to declare for it: and it was not England, as
people may think at first sight—it was only its government
which changed its religion.
OF. ENGLAND. 89
tescue, chief justice of the King's Bench, and
afterward chancellor, under Henry VI., wrote a
book entitled De Laudibus Legum Angliae, in
which he proposes to demonstrate the superiority
of the English laws over the civil; and, that no-
thing might be wanting in his arguments on that
subject, he gives them the advantage of superior
antiquity, and traces their origin to a period much
anterior to the foundation of Rome.
This spirit has been preserved even to much
more modern times; and when we peruse the
many paragraphs which judge Hale has written in
his History of the Common Law, to prove, that,
in the few cases in which the civil law is admitted
in England, it can have no power by virtue of any
deference due to the orders of Justinian (a truth
which certainly had no need of proof), we plainly
see that this chief justice, who was also a very
great lawyer, had, in this respect, retained some-
what of the heat of party.
Even at present the English lawyers attribute
the liberty they enjoy, and of which other nations
are deprived, to their having rejected, while those
nations have admitted, the Roman law ; which is
mistaking the effect for the cause. It is not be-
cause the English have rejected the Roman laws
that they are free; but it is because they were free
(or at least because there existed, among them,
causes which were, in process of time, to make
them so,) that they have been able to reject the
Roman laws. But even though they had admitted
90 THE CONSTITUTION
those laws, these same circumstances, that have
enabled them to reject the whole, would have
likewise enabled them to reject those parts which
might not have suited them; and they would have
seen, that it is very possible to receive the deci-
sions of the civil law on the subject of the servi-
tutes urbande et rustica, without adopting its prin-
ciples with respect to the power of the emperors.”
Of this the republic of Holland, where the civil
law is adopted, would afford a proof, if there were
not the still more striking one of the emperor of
Germany, who, though, in the opinion of his
people, he is the successor to the very throne of
the Caesars, has not, by a great deal, so much
power as a king of England; and the reading
of the several treaties which deprive him of the
power of nominating the principal officers of the
empire, sufficiently shows that a spirit of unli-
mited submission to monarchical power is no me-
cessary consequence of the admission of the Roman
civil law.
The laws therefore that have taken place in
England are what they call the unwritten law
(also termed the common law), and the statute
law. .
The unwritten law is thus called, not because
it is only transmitted by tradition from genera-
tion to generation, but because it is not founded
* What particularly frightens the English ſawyers, is L. i.
Lib. I. Tit. 4. Dig.—Quod principi placuerit legis habet vi-
gorem.
OF ENGLAND, 's 91
on any known act of the legislature. It receives
its force from immemorial custom, and, for the
most part derives its origin from acts of parliament.
enacted in the times which immediately followed
the Conquest (particularly those anterior to the
time of Richard the First), the originals of which
are lost. - *
The principal objects settled by the common
law, are the rules of descent, the different me-
thods of acquiring property, the various forms re-
quired for rendering contracts valid; in all which
points it differs, more or less, from the civil law."
Thus, by the common law, lands descend to the
eldest son, to the exclusion of all his brothers and
sisters; whereas, by the civil law, they are equally
divided among the children: by the common law
property is transferred by writing; but by the civil
law, tradition (or actual delivery) is moreover re-
quisite, &c." - t
The source, from which the decisions of the
common law are drawn, is what is called praete-
ritorum memoria eventorum, and is found in the
collection of judgments that have been passed
from time immemorial, and which, as well as the
proceedings relative to them, are carefully pre-
served under the title of records. In order that
the principles established by such a series of judg-
ments may be known, extracts from them are,
from time to time, published under the name of
reports ; and these reports reach, by a regular se-
ries, so far back as the reign of Edward the Se-
cond inclusively.
92 THE: CONSTITUTION
Besides this collection, which is pretty volu-
minous, there are also some ancient writers of great
authority among lawyers; such as Glanvil, who
flourished in the reign of Henry the Second—
Bracton, who wrote under Henry the Third—
Fleta,” and Lyttelton. Among more modern
authors, is Sir Edward Coke, lord chief justice of
the King's Bench, under James the First, who
has written four books of Institutes, and is at pre-
sent the oracle of the common law.
The common law moreover comprehends some
particular customs, which are fragments of the
ancient Saxon laws, escaped from the disaster of
the Conquest; such as that called Gavel-kind, in
the county of Kent, by which lands are divided
equally between or among the sons; and that
called Borough English, by which, in some dis-
tricts, lands descend to the youngest son.
The civil law, in the few instances where it is
admitted, is likewise comprehended under the un-
written law, because it is of force only so far as it
has been authorised by immemorial custom. Some
of its principles are followed in the ecclesiastical
courts, in the courts of admiralty, and in the courts
of the two universities; but it is there nothing
more than lev sub lege graviori; and these dif-
ferent courts must conform to acts of parliament,
and to the sense given to them by the courts of
common law; being moreover subjected to the
control of the latter.
* Fleta is not the name of the lawyer; but the title given to
his book, because it was written in the Fleet Prison. EDIT.
6F ENGLANI). 93
Lastly, the written law is the collection of the
various acts of parliament, the originals of which
are carefully preserved, especially since the reign
of Edward the Third. Without entering into the
distinctions made by lawyers with respect to them
—such as public and private acts, declaratory
acts, or such as are made to extendor restrain the
common law, &c.—it will be sufficient to observe,
that being the result of the united wills of the
three constituent parts of the legislature, they, in
all cases, supersede both the common law and all
former statutes; and the judges must take cogni-
sance of them, and decide in conformity to them,
even though they had not been alleged by the par-
ties.*
The different courts for the administration of
justice, in England, are,
I. The Court of Common Pleas. It formerly
made a part of the aula regis (the king's hall or
court); but as the latter was bound by its institu-
tion always to follow the person of the king, and
private individuals experienced great difficulties in
obtaining relief from a court that was ambulatory,
and always in motion, it was made one of the ar-
ticles of the Great Charter, that the Court of
Common Pleas should thenceforward be holden in
a fixed place;f and since that time it has been
seated at Westminster. It is composed of a lord
* Unless they be private acts.
t Communia placita non sequantur curiam nostram, sed te-
meantur in aliquo loco certo, Magna Charta, cap. 17.
94 THE CONSTITUTION
chief justice, and three other judges; and appeals
from its judgments, usually called writs of error,
are brought before the Court of King's Bench.
II. The Court of Exchequer. It was originally
established to determine those causes in which the
king, or his servants, or accomptants, were con-
cerned, and has gradually become open to all per-
sons. The confining the power of this court to
the above class of persons is therefore now a mere
fiction; only a man must, for form's sake, set forth
in his declaration that he is debtor to the king,
whether he be so or no. This court is composed
of the chief baron of the Exchequer, and three
other judges. -
III. The Court of King's Bench forms that
part of the Aula Regis which continued to sub-
sist after the dismembering of the Common Pleas.
This court enjoys the most extensive authority of
all other courts: it has the superintendence over
all corporations, and keeps the various jurisdic-
tions in the kingdom within their respective bounds.
It takes cognizance, according to the end of its
original institution, of all criminal causes, and
even of many causes merely civil. It is composed
of the lord chief justice and three other judges.
Writs of error against the judgments passed in
this court in civil matters are brought before the
Court of the Exchequer Chamber; or, in most
cases, before the House of Peers.
IV. The Court of the Exchequer Chamber.
When this court is formed by the four barons, or
oF ENGLAND. 95
judges of the Exchequer, together with the chan-
cellor and treasurer of the same, it sits as a court
of equity. When it is formed by the twelve
judges, to whom sometimes the lord chancellor is
joined, its office is to deliberate, when properly re-
ferred and applied to, and give an opinion on im-
portant and difficult causes, before judgments are
passed upon them in those courts where the causes
are depending.
CHAPTER X.
On the Law that is observed in England, in re-
gard to Civil Matters.
CONCERNING the manner in which justice
is administered in England, in civil matters, and
the kind of law that obtains in that respect, the
following observations may be made.
The beginning of a civil process in England,
or the first step usually taken in bringing an ac
tion, is the seizing, by public authority, the per-
son against whom that action is brought. This
is done with a view to secure such person's ap-
pearance before a judge, or at least make him give
sureties for that purpose. In most of the countries
of Europe, where the forms, introduced into the
Roman civil law in the reigns of the later em-
perors, have been imitated, a different method
96 THE CONSTITUTION
has been adopted to procure a man's appearance
before a court of justice. The usual practice is to
have the person sued, summoned to appear before
the court, by a public officer belonging to it, a
week before-hand: if no regard is paid to such
summons twice repeated, the plaintiff (or his at-
torney) is admitted to make before the court a
formal reading of his demand, which is then
granted to him, and he may proceed to execution.*
In this mode of proceeding, it is taken for
granted, that a person who declines to appear be-
fore a judge, to answer the demand of another,
after being properly summoned, acknowledges the
justice, of such demand; and this supposition is
very just and rational. However, the above-
mentioned practice of securing before-hand the
body of a person sued, though not so mild in its
execution as that just now described, nor even
more effectual, appears more obvious, and is more
readily adopted, in those times when courts of law
begin to be formed in a nation, and rules of dis-
tributive justice to be established; and it is, very
likely, follèwed in England as a continuation of
the methods that were adopted when the English
laws were yet in their infancy. -
In the times we mention, when laws begin to
* A person against whom a judgment of this kind has been
passed (which they call in France an jugement par déſaut)
may easily obtain relief; but as he now in his turn becomes
in a manner the plaintiff, his deserting the cause, in this se-
cond stage of it, would leave him without remedy. -
OF ENGLAND... . 97
be formed in a country, the administration of jus-
tice between individuals is commonly lodged in
the same hands which are intrusted with the pub-
lic and military authority of the state. Judges,
invested with a power of this kind, like to carry
on their operations with a high hand: they con-
sider the refusal of a man to appear before them,
not as being barely an expedient to avoid doing
that which is just, but as a contempt of their au-
thority: they of course look upon themselves as
being bound to vindicate it; and a writ of capias
is speedily issued to apprehend the refractory de-
fendant. A preliminary writ or order of this kind
becomes in time the first regular step of a law-suit;
and hence it seems to have happened, that, in the
English courts of law, if I am rightly informed,
a writ of capias is either issued before the original
writ itself (which contains the summons of the
plaintiff, and a formal delineation of his case), or
is joined to such writ, by means of an ac etiam
capias, and is served along with it.
In Rome, where the distribution of civil justice
was at first lodged in the hands of the kings, and
afterwards of the consuls, the method of seising
the person of a man against whom a demand of
any kind was preferred, previously to any judg-
ment being passed against him, was likewise
adopted, and continued to be followed after the
institution of the praetor's court, to whom the civil
branch of the power of the consuls was afterwards
delegated; and it lasted to very late times; that
H.
$8 THE CONSTITUTION
is, to the times when those capital alterations were
made in the Roman civil law, during the reigns of
the later emperors, which gave it the form it now
has in those codes or collections of which we are in
possession. -
A very singular degree of violence even took
place in Rome, in the method used to secure the
persons of those against whom a legal demand was
preferred. In England, the way to seise a man
under such circumstances, is by means of a public
officer, supplied with a writ or order for that pur-
pose, supposed to be directed to him (or to the
sheriff his employer) from the king himself. But,
in Rome, every one became a kind of public offi-
cer in his own cause, to assert the praetor's pre-
rogative; and, without any ostensible legal license
or badge of public authority, had a right to seise
by force the person of his opponent, wherever he
met him. The practice was, that the plaintiff first
summoned the person sued with a loud voice, to
follow him before the court of the praetor.” When
the defendant refused to obey such summons, the
plaintiff, by means of the words licet antestari 2
requested the by-standers to be witnesses of
the fact; as a remembrance of which, he
touched the ears of each of them : and then
proceeded to seize his opponent, by throwing
his arms round his neck (obtorto collo), thus en-
deavouring to drag him before the praetor. When
* Ad tribunal sequere, in jus ambula.
OF ENGLAND. * 99
the person sued was, through age or sickness,
disabled from following the plaintiff, the latter was
directed by the law of the Twelve Tables to supply
him with a horse (jumentum dato).
The above method of proceeding was however
in after-times mitigated, though very late and
slowly. In the first place, it became unlawful to
seise a man in his own house, as it was the abode
of his domestic gods. Women of good family were
in time protected from the severity of the above
custom, and they could no longer be dragged by
force before the tribunal of the praetor. The me-
thod of placing a sick or aged person by force
upon a horse seems to have been abolished during
the later times of the republic. Emancipated
sons, and freed slaves, were afterwards restrained
from summoning their parents, or late masters,
without having expressly obtained the praetor’s
leave, under the penalty of fifty pieces of gold.
However, so late as the time of Pliny, the old
mode of summoning, or carrying by force, before
a judge, continued in general to subsist; though,
in the time of Ulpian, the necessity of expressly
obtaining the praetor's leave was extended to all
cases and persons; and, in Constantine's reign,
the method began to be established of having the
legal summons served only by means of a public
officer appointed for that purpose. After that
time, other changes in the former law were intro-
duced, from which the mode of proceeding now
used on the continent of Europe has been borrowed.
H 2
I00 THE CONSTITUTION
In England likewise, some changes, we may ob-
serve, have been wrought in the law and practice
concerning the arrests of sued persons, though as
slowly and late as those effected in the Roman re-
public or empire, if not more so; which evinces
the great impediments of various kinds that ob-
struct the improvement of laws in every nation.
So late as the reign of king George the First, an
act was passed to prohibit the practice of previous
personal arrest, in cases of demands under two
pounds sterling; and, since that time, those courts,
justly called of Conscience, have been established,
in which such demands are to be summarily de-
cided, and simple summons, without arrest, can
only be used. A bill was afterwards enacted”
(on the motion of Lord Beauchamp, whose name
deserves to be recorded), by which the prohibition
of arrest was extended to all cases of debt under
ten pounds sterling ; a bill, the passing of which
was of twenty, or even a hundred times more real
importance than the rise or fall of a favourite, or
a minister, though it has, perhaps, been honoured
with a less degree of attention by the public.
Other peculiarities of the English civil law, are
the great refinements, formalities, and strictness,
that prevail in it. Concerning such refinements,
which are rather imperfections, the same observa-
tion may be made that has been introduced above,
in regard to the mode and frequency of civil arrest
* In 1779,
OF ENGLAND. IOI:
in England; which is, that they are continuations:
of methods adopted when the English law began
to be formed, and are the consequences of the situ-
ation in which the English placed themselves when
they rejected the ready-made code of the Roman
civil law, and rather chose to become their own
law-makers, and raise from the ground the struc-
ture of their own national civil code; which code,
it may be observed, is as yet in the first stage of
its formation, as the Roman law itself was during
the times of the republic, and in the reigns of the
first emperors. -
The time at which the power of administering
justice to individuals becomes separated from the
military power (an event which happens sooner or
later in different countries), is the real aera of the
origin of a regular system of laws in a nation.
Judges being now deprived of the power of the
sword, or (which amounts to the same) being
obliged to borrow that power from other persons,
endeavour to find their resources within their own
courts, and, if possible, to obtain submission to
their decrees from the great regularity of their
proceedings, and the reputation of the impartiality
of their decisions. . At the same time also lawyers
begin to crowd in numbers to courts, which it is
no longer dangerous to approach, and add their
refinements to the rules already set down either by
the legislature or the judges. As the employing
of them, especially in the beginning, is matter of
choice, and they fear, that, if bare common-sense
were thought sufficient to conduct a law-suit, every
102 THE CONSTITUTION
body might imagine he knows as much as they do,
they contrive difficulties to make their assistance
needful. As the true science of the law, which
is no other than the knowledge of a long series of
former rules and precedents, cannot as yet exist,
they endeavour to create an artificial one to re-
commend themselves by. Formal distinctions and
definitions are invented to express the different
kinds of claims that men may set up against one
another; in which almost the same nicety is dis-
played as that used by philosophers in classing the
different subjects, or kingdoms, of natural history.
Settled forms of words, under the name of writs,
or the like, are devised to set forth those claims;
and, like introductory passes, serve to usher claim-
ants into the temple of justice. For fear their
cliants should desert them after their first intro-
duction, like a sick man who rests contented with
a single visit of the physician, lawyers contrive
other ceremonies and technical forms for the far-
ther conduct of the process and the pleadings;
and, in order still more safely to bind their clients
to their dominion, they at length make every error
relating to their professional regulations, whether
it be a misnomer, a mispleading, or the like trans-
gression, to be of as fatal a consequence as a
failure against the laws of strict justice. Upon the
foundation of the above-mentioned definitions and
metaphysical distinctions of cases and actions, a num-
ber of strict rules of law are moreover raised, with
which none can be acquainted but such as are com-
plete masters of those distinctions and definitions.
OF ENGIAND. I03
To a person who in a posterior age observes for
the first time such refinements in the distribution
of justice, they appear very strange, and even
ridiculous. Yet, it must be confessed, that during
the times of the first institution of magistracies
and courts of a civil nature, ceremonies and for-
malities of different kinds are very useful to pro-
Cure to such courts both the confidence of those
persons who are brought before them, and the re-
spect of the public at large; and they thereby be-
come actual substitutes for military force, which,
till then, had been the chief support of judges.
Those same forms and professional regulations are
moreover useful to give uniformity to the proceed-
ings of the lawyers and of the courts of law, and
to ensure constancy and steadiness to the rules
which they set down among themselves. And if
the whole system of the refinements we mention
continue to subsist in very remote ages, it is in a
great measure owing (not to mention other causes)
to their having so coalesced with the essential
parts of the law as to make danger, or at least
great difficulties, be apprehended from a separa-
tion ; and they may, in that respect, be compared
with a scaffolding used in the raising of a house.
which, though only intended to set the materials
and support the builders, happens to be suffered for a
long time afterwards to stand, because it is thought
the removal of it might endanger the building.
Very singular law formalities and refined prac-
tices, of the kind here alluded to, had been con-
trived by the first jurisconsults in Rome, with a
IO4. THE constitution
|
view to amplify the rules set down in the laws of
the Twelve Tables; which being few, and engraven
on brass, every body could know as well as they ;
it even was a general custom to give those laws to
children to learn, as we are informed by Cicero.
Very accurate definitions, as well as distinct
branches of cases and actions, were contrived by
the first Roman jurisconsults; and when a man
had once made his election of that peculiar kind
of action by which he chose to pursue his claim,
it became out of his power to alter it. Settled
forms of words, called actiones legis, were more-
over contrived, which men must absolutely use to
set forth their demands. The party himself was
to recite the appointed words before the praetor;
and should he unfortunately happen to miss or add
a single word, so as to seem to alter his real case or
demand, he lost his suit thereby. To this an al-
lusion is made by Cicero, when he says, “We
* have a civil law so constituted, that a man be-
“ comes non-suited, who has not proceeded in the
“ manner he should have done.” ” An observa-
tion of the like nature is also to be found in Quin-
tilian, whose expressions on the subject are as fol-
low:—“ There is besides another danger; for if
“ but one word has been mistaken, we are to be
“ considered as having failed in every point of our
“ suit.”f Similar solemnities and appropriated
* Itajus civile habemus constitutum, utcausd cadat is quinon
quemadmodum oportet agerit. De Invent. II. 19.
t Est etiam periculosum, quum, si uno verbo sit erratum,
totá causd cecidisse vided mur. Inst. Orat. VII.3.
OF ENGLAND. 105
forms of words were moreover necessary to intro-
duce the reciprocal answers and replies of the
parties, to require and accept sureties, to produce
witnesses, &c.
Of the above actiones legis, the Roman juris-
consults and pontiffs had carefully kept the ex-
clusive knowledge to themselves, as well as of
those days on which religion did not allow courts
of law to sit.* Cn. Flavius, secretary to Appius
Claudius, having happened to divulge the secret
of those momentous forms (an act for which he
was afterwards preferred by the people) juris-con-
sults contrived fresh ones, which they began to
keep written with secret ciphers: but a member
of their own body again betrayed them, and the
new collection which he published was called Jus
AElianum, from his name (Sex. Aºlius), in the
same manner as the former collection had been
called Jus Flavianum. However, it does not
seem that the influence of lawyers became much
abridged by those two collections: besides written
information of that sort, practice is also necessary:
and the public collections we mention, like the many
books that have been published on the English law,
could hardly enable a man to become a lawyer,
at least sufficiently so as to conduct a law-suit.f
* Dies fasti et nefasti.
t The Roman jurisconsults had extended their skill to ob-
jects of voluntary jurisdiction as well as to those of contentious
jurisdiction, and had devised peculiar formalities, forms of
words, distinctions, and definitions, in regard to obligations
between man and man, stipulations, donations, spousals, and
106 THE CONSTITUTION
Modern civilians have been at uncommon pains
to find out and produce the ancient formula we
mention, in which they really have had great suc-
cess. Old comic writers, such as Plautus and
Terence, have supplied them with several; the
settled words, for instance, used to claim the pro-
perty of a slave, frequently occur in their works.”
especially last wills, in all which they had displayed surprising
nicety, refinement, accuracy, and strictness. The English
lawyers have not bestowed so much pains on the objects of
voluntary jurisdiction, nor any thing like it.
* The words addressed to the plaintiff, by the person sued,
when the latter made his appearance on the day for which he
had been compelled to give sureties, were as follow, and are
alluded to by Plaut. Curcul. I. 3. v. 5. “Where art thou
“who hast obliged me to give sureties 2 Where art thou
“who summonedst me? Here Istand before thee: do thyself
“stand before me.” To which the plaintiff made answer,
“Here I am.” The defendant replied, “What dost thou
“say?” The plaintiff answered, “I say (Aio)”—and then
followed the form of words by which he chose to express his
action: Ubi tu es, qui me vadatus es? Ubi tu es, qui me ci-
tástiž Ecce ego me tibi sisto; tu contra et te mihi siste, &c.
If the action, for instance, was brought on account of goods
stolen, the settled penalty (or damages) for which was the
restitution of twice the value, the words to be used were, AIO
decem aureos mihi furto tuo abesse, teque eo nomine vigint:
aureos mihi dare oportere. For work done, such as cleaning
of clothes, &c. AIo te mihi tritici modium, de quo inter, nos
convenit ob polita vestimentatua, dare oportere. For recover-
ing the value of the slave killed by another citizen: AIo te
hominem meum occidisse, teque mihi quantum ille hoc anno plu-
rimi fuit dare oportere. For damages done by a vicious animal,
AIo bovem Mavii servum meum, Stichum, cornu petiisse et
occidisse, eogue nomine Maevium, aut servi abstimationem prae-
stare, aut bovem mihi nowa dare, oportere; or, AIo ursum.
. OF ENGLAND. 107
Extremely like the above actiones legis are the
writs used in the English courts of law. Those
writs are framed for, and adapted to, every branch
or denomination of actions, such as detinue, tres-
pass, action upon the case, accompt, and cove-
nant, &c.; the same strictness obtains in regard
to them as did in regard to the Roman formulae
above-mentioned: there is the same danger in
misapplying them, or in failing in any part of
them : and, to use the words of an English law-
writer on the subject, “Writs must be rightly
“ directed, or they will be nought:—In all writs,
“care must be had that they be laid and formed
“ according to their case, and so pursued in the
“ process thereof.”” º , -
The same formality likewise prevails in the
Maevil mihi vulnus intulisse, et Maevium quantum aequius me-
dius mihi dare oportere, &c.
It may be observed, that the particular kind of remedy
which was provided by the law for the case before the court
was expressly pointed out in the formula used by a plaintiff;
and in regard to this no mistake was to be made.—Thus, in
the last-quoted formula, the words quantum aequius melius,
show that the praetor was to appoint inferior judges both to
ascertain the damage done, and determine finally upon the
case, according to the direction he previously gave them;
these words being exclusively appropriated to the kind of ac-
tions called arbitrariae, from the above-mentioned judges or
arbitrators. In actions brought to require the execution of
conventions that had no name, the convention itself was ex-
pressed in the formula; such is that which is recited above,
relating to work done by the plaintiff, &c.
* Jacob's Law Dictionary. See Writ.
I08 THE CONSTITUTION
English pleadings and conduct of the process as
obtained in the old Roman law proceedings; and
in the same manner as the Roman jurisconsults
had their actionis postulationes et editiones, their
inficiationes, earceptiones, sponsiones, replicationes,
duplicationes, &c. so the English lawyers have
their counts, bars, replications, rejoinders, sur-
rejoinders, rebutters, sur-rebutters, &c. A scru-
pulous accuracy, in observing certain rules, is
moreover necessary in the management of those
pleadings: the following are the words of an Eng-
lish law-writer on the subject: “Though the art
“of pleading was in its nature and design only to
“render the fact plain and intelligible, and to
“bring the matter to judgment with convenient
“ certainty, it began to degenerate from its pri-
“mitive simplicity. Pleaders, yea and judges,
“having become too curious in that respect, plead-
“ings at length ended in a piece of nicety and
“curiosity, by which the miscarriage of many a
“cause, , upon small trivial objections, has been
“ occasioned.” ”
There is, however, a difference between the
Roman actiones legis, and the English writs,
which is, that the former might be framed when
new ones were necessary, by the praetór or judge
of the court, or, in some cases, by the body of
the jurisconsults themselves, whereas writs, when
wanted for such new cases as may offer, can only
* Cunningham's Law Dictionary. See Pleadings.
• OF ENGLAND. 109
be devised by a distinct judge or court, exclusively
invested with such powers, viz. the High Court
of Chancery. The issuing of writs already exist-
ing, for the different cases to which they belong,
is also expressly reserved to this court; and so im-
portant has its office on those two points been
deemed by lawyers, that it has been called, by
way of eminence, the manufactory of justice (off-
cina justitia). Original writs, besides, when once
framed, are not at any time to be altered, except
by parliamentary authority.”
Of so much weight in the English law are these
original delineations of cases, that no cause is
suffered to be proceeded upon, unless they first
appear as legal introductors to it. However im-
portant or interesting the case, the judge, till he
sees the writ he is used to, or at least a writ issued
* Writs, legally issued, are also necessary for executing
the different incidental proceedings that may take place in the
course of a law-suit, such as producing witnesses, &c. The
names given to the different kinds of writs are usually derived
from the first Latin words by which they began when they were
written in Latin, or at least from some remarkable word in
them, which gives rise to expressions sufficiently uncouth and
unintelligible. Thus a pone is a writ issued to oblige a person
in certain cases to give sureties (pone per vadium, and salvos
plegios). A writ of subpoena is to oblige witnesses, and some-
times other classes of persons, to appear before a court. An
action of qui tam is that which is brought to sue for a propor-
tional share of a fine established by some penal statute, by
the person who laid an information; the words in the writ
being, Qui tam pro domino rege, quam pro seipso in hac parte
sequitur, &c.
IIO THE CONSTITUTION
from the right manufactory, is both deaf and
dumb. He is without eyes to see, or ears to hear.
And, when a case of a new kind offers, for which
there is yet no writ in being, should the lord chan-
cellor and masters in chancery disagree in creating
one, or prove unequal to the arduous task, the
great national council, that is, parliament itself,
is, in such emergency, expressly applied to: by
means of its collected wisdom, the right mystical
words are brought together; the judge is restored
to the free use of his organs of hearing and of
speech ; and, by the creation of a new writ, a
new province is added to the empire of the courts
of law.
In fine, those precious writs, those valuable
briefs (brevia) as they are also called by way of
eminence, which are the elixir and quintessence
of the law, have been committed to the special
care of officers appointed for that purpose, whose
offices derive their names from the peculiar instru-
ments they respectively use for the preservation of
the deposit with which they are intrusted; the one
being called the office of the Hanaper, and the
other of the Small Bag.”
To say the truth, however, the creating of a
* Hanaperium et Parva Baga, the Hanaper Office, and
the Petty-Bag Office. The first and last of these Latin words,
it may be observed, do not occur in Tully's works. To the
care of the Petty-Bag Office those writs are trusted in which
the king's business is concerned; and to the Hanaper Office
those which relate to the subject.
OF ENGLAND. III.
new writ, upon any new given case, is matter of
greater difficulty than the generality of readers
are aware of The very importance which is
thought to be in those professional forms of words,
renders them really important. As every thing,
without them, is illegal in a court of common law,
so with them every thing becomes legal; that is
to say, they empower the court legally to deter-
mine upon every kind of suit to which they are
made to serve as introductors. The creating of a
new writ, therefore, amounts, in its consequences,
to the framing of a new law, and a law of a gene-
ral mature too: now the creating of such a law,
on the first appearance of a new case, which law
is afterwards to be applied to all such cases as may
be similar to the first, is really matter of difficulty:
especially, when men are yet in the dark as to the
best kind of provision to be made for the case in
question, or even when it is not, perhaps, yet
known whether it be proper to make any provision
at all. The framing of a new writ, under such
circumstances, is a measure on which lawyers or
judges will not very willingly either venture of them-
selves, or apply to the legislature for that purpose.
From the above-mentioned real difficulty in
creating new writs on one hand, and the absolute
necessity of such writs in the courts of common
law on the other, many new species of claims and
cases (the arising of which is, from time to time,
the unavoidable consequence of the progress of
112 THE constitution
trade and civilization) are left unprovided for, and
remain like so many vacant spaces in the law, or
rather like so many inaccessible spots, which the
laws in being cannot reach: now this is a great
imperfection in the distribution of justice, which
should be open to every individual, and provide re-
medies for every kind of claim which men may
set up against each other. , -
To remedy the above inconvenience, or rather
in some degree to palliate it, law fictions have
been resorted to, in the English law, by which
writs, being warped from their actual meaning,
are made to extend to cases to which they in no
shape belong.
Law fictions of the kind we mention were not
unknown to the old Roman jurisconsults; and, as
an instance of their ingenuity in that respect, may
be mentioned that kind of action, in which a
daughter was called a son.* Several instances
might also be quoted of the fictitious use of writs
in the English courts of common law. A very
remarkable expedient of that sort occurs in the
* From the above instance it might be concluded that the
Roman jurisconsults possessed still greater power than the
English parliament; for it is a fundamental principle with the
English lawyers, that parliament can do every thing, except
making a woman a man, or a man a woman. .
[This is a ludicrous reference to that political maxim which
asserts the omnipotence of parliament; a figure of speech
which sir William Blackstone has justly termed rather too
bold.-EDIT.]
OF ENGLAND. II.3.
method generally used to sue for the payment of
certain kinds of debt, before the Court of Com-
mon Pleas; such (if I mistake not) as a salary
for work done, indemnity for fulfilling orders re-
ceived, &c. The writ issued in these cases is
grounded on the supposition, that the person sued
has trespassed on the ground of the plaintiff, and
broken, by force of arms, through his fences and
inclosures; and, under this predicament, the de-
fendant is brought before the court : this species
of writ, which lawyers have found of most con-
venient use, to introduce before a court of common
law the kinds of claim we mention, is called in
technical language a clausum fregit. In order to
bring a person before the Court of King's Bench,
to answer demands of much the same nature with
those above, a writ, called a latitat, is issued, in
which it is taken for granted that the defendant
insidiously conceals himself, and is lurking in some
county, different from that in which the court is
sitting; the expressions used in the writ being,
that “he runs up and down and secretes himself:”
though no such fact is seriously meant to be ad-
vanced either by the attorney or the party.
The same principle of strict adherence to cer-
tain forms long since established, has also caused
lawyers to introduce into their proceedings ficti-
tious names of persons, who are supposed to dis-
charge the office of sureties; and in certain cases,
it seems, the name of a fictitious person is intro-
I
114. THE constituTION
duced in a writ with that of the principal defend-
ant, as being joined in a common cause with him.
Another instance of the same high regard of law-
yers, and judges too, for certain old forms, which
makes them more unwilling to depart from such
forms than from the truth itself of facts, occurs
in the above-mentioned expedient used to bring
ordinary causes before the Court of Exchequer, in
order to be tried there at common law; which is,
by making a declaration that the plaintiff is a
king's debtor, though neither the court, nor the
plaintiff's attorney, lay any serious stress on the
assertion.*
* Another instance of the strict adherence of the English
lawyers to their old established forms, in preference even to
the truth of facts, occurs in the manner of executing the very
act mentioned in this chapter, passed in the reign of George I.
for preventing personal arrest for debts under forty shil-
lings. If the defendant, after being personally served with a
copy of the process, does not appear on the appointed days,
the method is to suppose that he has actually made his appear-
ance, and the cause is proceeded upon according to this sup-
position: fictitious names of bails are also resorted to.
OF ENGLAND. II.5.
CHAPTER XI.
The Subject continued. The Courts of Equity.
However, there are limits to these fictions
and subtilties; and the remedies of the law cannot
by their means be extended to all cases that may
arise, unless too many absurdities are suffered to
be accumulated; nay, there have been instances in
which the improper application of writs, in the
courts of law, has been checked by authority. In
order therefore to remedy the inconveniences we
mention—that is, in order to extend the adminis-
tration of distributive justice to all possible cases,
by freeing it from the professional difficulties that
have gradually grown up in its way—a new kind
of courts has been instituted in England, called
Courts of Equity.
The generality of people, misled by the word
equity, have conceived false notions of the office of
these courts; and it seems to be generally thought,
that the judges who sit in them are only to follow
the rules of natural equity; by which people seem
to understand, that, in a court of equity, the
judge may follow the dictates of his own private
feelings, and ground his decisions, as he thinks
proper, on the peculiar circumstances and situation
of those persons who make their appearance before
him. Nay, doctor Johnson (in his abridged dic-
tionary) gives the following definition of the power
of the Court of Chancery, considered as a court of
I 2
116 THE CONSTITUTION
equity; “The chancellor hath power to moderate
“ and temper the written law, and subjecteth him-
“self only to the law of nature and conscience:”
for which definition, dean Swift, and Cowell, who
was a lawyer, are quoted as authorities. Other
instances might be produced of lawyers who have
been inaccurate in their definitions of the true of
fices of the judges of equity. And the above-
named doctor himself is on no subject a despicable
authority.
Certainly the power of the judges of equity can-
not be to alter, by their own private power, the
written law, that is, acts of parliament, and thus
to control the legislature. Their office only con-
sists, as will be proved in the sequel, in providing
remedies for those cases for which the public good
requires that remedies should be provided, and
in regard to which the courts of common law,
shackled by their original forms and institutions,
cannot procure any :—or, in other words, the
courts of equity have a power to administer justice
to individuals, unrestrained (not by the law, but)
by the professional law difficulties which lawyers
have from time to time contrived in the courts of
common law, and to which the judges of those
courts have given their sanction.*
* This is a proper distinction; but it hath not always been
strictly observed; for, even so late as the seventeenth cen-
tury, the chancellors frequently superseded positive law by
the dictates of their conscience and private opinion. Hence
Seldon was induced to remark, that “equity was according to
“ the conscience of him that was chancellor.”—EDIT.
OF ENGLAND. 117
An office of the kind here mentioned was soon
found necessary in Rome, for reasons of the same
‘maturé with those above delineated. For it is re-
markable enough, that the body of English law-
yers, by refusing admittance to the code of Roman
laws, as it existed in the later times of the empire,
have only subjected themselves to the same difficul-
ties under which the old Roman jurisconsults la-
boured, during the time they were raising the
structure of those same laws. And it may also be
observed, that the English lawyers, or judges,
have fallen upon much the same expedients as
those which the Roman jurisconsults and praetors
had adopted.
This office of a judge of equity, was, in time,
assumed by the praetor in Rome, in addition to
the judicial power he before possessed.* At the
beginning of the year for which he had been elect-
ed, the praetor made a declaration of those reme-
dies for new difficult cases, which he had deter-
mined to afford during the time of his magistracy;
in the choice of which he was no doubt directed,
either by his own observations (while out of office)
on the propriety of such remedies, or by the sug-
gestions of experienced lawyers on the subject.
This declaration (edictum) the praetor produced in
* The praetor thus possessed two distinct branches of judi-
cial authority, in the same manner as the Court of Exchequer
does in England, which occasionally sits as a court of common
law, and a court of equity.
118 THE CONSTITUTION
albo, as the expression was. Modern civilians
have made many conjectures on the real meaning
of the above words; one of their suppositions,
which is as likely to be true as any other, is, that
the heads of new law remedies devised by the
praetor, were written on a whitened wall by the
side of his tribunal.”
Among the provisions made by the Roman prae-
tors in their capacity of judges of equity, may be
mentioned those which they introduced in favour
of emancipated sons, and of relatives by the wo—
men's side (cognati), in regard to the right of in-
heriting. Emancipated sons were supposed, by
the laws of the Twelve Tables, to have ceased te
be the children of their father, and, as a conse-
quence, a legal claim was denied them on the
paternal inheritance: of the relatives by the wo-
men's side no notice was taken, in that article of
the same laws which treated of the right of suc-
cession, mention being only made of relatives by
the men's side (agnati). The former the praetor
admitted, by the edict unde liberi, to share their
father's (or grandfather's) inheritance with their
brothers; and the latter he put in possession of the
patrimony of a kinsman deceased, by means of the
edict unde cognati, when there were no relatives
by the men’s side. These two kinds of inheritance
were not, however, called hereditas, but only
bonorum possessio; these words being very accu-
* They were written on a white tablet.—Edit.
OF ENGLAND. II9
rately distinguished, though the effect was in the
issue exactly the same.* y
In the same manner, the laws of the Twelve
Tables had provided relief only for cases of theft;
and no mention was made, in them, of cases of
goods taken away by force (a deed which was not
looked upon in so odious a light at Rome as theft,
which was considered as the peculiar guilt of
slaves). In process of time the praetor promised
relief to such persons as might have their goods
taken from them by open force, and gave them an
action for the recovery of four times the value,
against those who had committed the fact with an
* As the power of fathers, at Rome, was unbounded, and
lasted as long as their life, the emancipating of sons was a
case that occurred frequently enough, either for the security
or satisfaction of those who engaged in any undertaking with
them. The power of fathers had been carried so far by the
laws of Romulus, confirmed afterwards by those of the Twelve
Tables, that they might sell their sons for slaves as often as
three times, if, after the first or second sale, they happened to
acquire their liberty: it was only after being sold for the third
time, and then becoming again free, that sons could be en-
tirely released from the paternal authority. On this law-
doctrine was founded the peculiar formality of emancipating
sons. A pair of scales, and some copper coin, were first
brought; without the presence of these ingredients, the whole
business would have been void; and the father then made a
formal sale of his son to a person appointed to buy him, who
was immediately to manumit or free him; these sales and ma-
numissions were repeated three times. Five witnesses were to
be present, besides a man to hold the scales (libripens), and
another (antestatus) occasionally to remind the witnesses to be
attentive to the business before them. . * * * ~ **
120 THE constitution
evil intention. Si cui dolo malo bona rapta esse
dicentur, et in quadruplum JUDICIUM DABO.
Again, neither the laws of the Twelve Tables,
nor the laws made afterwards in the assemblies of
the people, had provided remedies except for very
few cases of fraud. Here the praetor likewise in-
terfered in his capacity of judge of equity, though
-so very late as the time of Cicero; and promised
relief to defrauded persons, in those cases in which
the laws in being afforded no action. Qua dolo
malo facta esse dicentur, si de his rebus alia
actio non erit, et justa causa esse widebitur,
JUDICIUM DABO.* By edicts of the same nature,
praetors in process of time gave relief in certain
cases to married women, and likewise to minors
minoribus xxv annis succurrit prator, &c.)f
* At the same time that the praetor proffered a new edict,
he also made public those peculiar formulae by which the
-execution of the same was afterwards to be required from him.
The name of that praetor who first produced the edict above
mentioned was Aquilius, as we are informed by Cicero, in
that elegant story well known to scholars, in which he relates
the kind of fraud that was put upon Canius, a Roman knight,
when he purchased a pleasure-house and gardens, near Syra-
-cuse in Sicily. This account Cicero concludes, with observing,
that Canius was left without remedy, “as Aquilius, his col-
league aud friend, had not yet published his formulae concern-
ing fraud.”—Quid enim faceret 2 nondum enim Aquilius, col-
Lega et familiaris meus, protulerat de dolo malo formulas.
ſoff. III. 14.
t The law collection, or system that was formed by the
series of edicts published, at different times by praetors, was
-called jus praetorium, and also jus honorarium (not strictly
Binding). The laws of the Twelve Tables, together with all
OF ENGLAND, 121
The courts of equity established in England
have in like manner provided remedies for a very
great number of cases, or species of demand, for
which the courts of common law, cramped by their
forms and peculiar law tenets, can afford none.
Thus, the courts of equity may, in certain cases,
give actions for and against infants notwithstand-
ing their minority,+and for and against married
women, notwithstanding their coverture. Mar-
ried women may even, in certain cases, sue their
husbands before a court of equity. Executors
may be made to pay interest for money that lies
long in their hands. Courts of equity may ap-
point commissioners to hear the evidence of ab-
sent witnesses. When other proofs fail, they may
impose an oath on either of the parties; or, in the
like case of a failure of proofs, they may compel
a trader to produce his books of trade. They
may also confirm a title to land, though one has
lost his writings, &c.
such other laws as had at any time been passed in the assem-
bly of the people, were called, by way of eminence, jus civile.
The distinction was exactly of the same nature as that which
takes place in England between the common and statute laws,
and the law or practice of the courts of equity. The two
branches of the praetor's judicial office were very accurately
distinguished; and there was, besides, this capital difference
between the remedies or actions which he gave in his capacity
of judge of civil law, and those in his capacity of judge of
equity, that the former, being grounded on the jus civile, were
perpetual, and were called actiones civiles, or actiones per-
petua , the latter were obliged to be preferred within the year,
and were accordingly called actiones annua or actiones praetoriae.
122 THE CONSTITUTION
The power of the courts of equity in England,
of which the Court of Chancery is the principal
one, no doubt owes it origin to the power possessed
by the latter, both of creating and issuing writs.
When new complicated cases offered, for which a
new kind of writ was wanted, the judges of
Chancery, finding that it was necessary that jus-
tice should be done, and at the same time being
unwilling to make general and perpetual provisions
on the cases before them by creating new writs,
commanded the appearance of both parties, in or-
der to procure as complete information as possible
in regard to the circumstances attending the case;
and then they gave a decree upon the same by way
of experiment.
To beginnings and circumstances like these,
the English courts of equity, it is not to be
doubted, owe their present existence. In our
days, when such strict notions are entertained
concerning the power of magistrates and judges,
it can scarcely be supposed that those courts, how-
ever useful, could gain admittance. Nor indeed,
even in the times when they were instituted, were
their proceedings free from opposition; and after-
wards so late as the reign of queen Elizabeth, it
was adjudged, in the case of Colleston and
Gardner, that the killing a sequestrator from the
Court of Chancery, in the discharge of his busi-
ness, was no murder; which judgment could only
be awarded on the ground that the sequestrator's
commission, and consequently the power of his
. OF ENGLAND, †:23
employers, were illegal.” However, the authority
of the courts of equity has in process of time be-
come settled; one of the constituent branches of
the legislature even receives at present appeals
from the decrees passed in those courts; and I
have no doubt that several acts of the whole le-
gislature might be produced, in which the office
of the courts of equity is openly acknowledged.
The kind of process that has in time been
established in the Court of Chancery is as follows.
After a petition is received by the court, the per-
son sued is served with a writ of subpana, to
command his appearance. If he does not appear,
an attachment is issued against him; if a non-
inventus is returned, that is, if he is not to be
found, a proclamation goes forth against him;
then a commission of rebellion is issued for appre-
hending him, and bringing him to the Fleet pri-
son. If the person sued stands farther in con-
tempt, a serjeant at arms is to be sent out to take
him; and, if he cannot be taken, a sequestration
of his land may be obtained till he appears. Such
is the power which the Court of Chancery, as a
court of equity, hath gradually acquired to compel
* When sir Edward Coke was lord chief justice of the
King's Bench, and lord Ellesmere lord Chancellor, during
the reign of James I, a very serious quarrel also took place
between the courts of law, and those of equity, which is men-
tioned in the fourth chapter of the third book of judge Black-
stone's Commentaries: a work in which more might reason-
ably have been said on the subject of the courts of equity.
124 THE CONSTITUTION
appearance before it. In regard to the execution
of the decrees it gives, it seems that court has not
been quite so successful; at least, those law-writers
whose works I have had an opportunity of seeing,
hold it as a maxim, that the Court of Chancery
cannot bind the estate, but only the person; and
as a consequence, a person who refuses to submit
to its decree is only to be confined in the Fleet
prison.* >
On this occasion I shall observe, that the au-
thority of the lord chancellor in England, in his
capacity of a judge of equity, is much more nar-
rowly limited than that which the praetors in Rome
had been able to assume. The Roman praetors,
we are to remark, united in themselves the double
office of deciding cases according to the civil law
(jus civile), and to the praetorian law, or law of
equity; nor did there exist any other courts be-
sides their own, that might serve as a check upon
them: hence it happened that their proceedings
in the career of equity were very arbitrary. In
* The Court of Chancery was, very likely, the first insti-
tuted of the two courts of equity: as it was the highest court
in the kingdom, it was best able to begin the establishment
of an office or power, which naturally gave rise at first to so
many objections. The Court of Exchequer, we may suppose,
only followed the example of the Court of Chancery: in order
the better to secure the new power it assumed, it even found it
necessary to bring out the whole strength it could muster; and
both the treasurer and the chancellor of the Exchequer sit
(or are supposed to sit) in the Court of Exchequer, when it is
formed as a court of equity. -
of ENGLAND. 125.
the first place, they did not use to make it any
very strict rule to adhere to the tenor of their own
edicts, during the whole year which their office
lasted; and they assumed a power of altering them
as they thought proper. To remedy so capital a
defect in the distribution of justice, a law was
passed so late as the year of Rome 687 (not long
before Tully's time) which was called Lew Cor-
nelia, from the name of C. Cornelius, a tribune
of the people, who propounded it under the con-
sulship of C. Piso and Man. Glabrio. By this
law it was enacted, that praetors should in future
constantly decree according to their own edicts,
without altering any thing in them during the
whole year of their praetorship. Some modern
civilians produce a certain senatus-consult to the
same effect, which, they say, had been passed a hun-
dred years before; while others are of opinion that
the same is not genuine: however, supposing it to
be really so, the passing of the law we mention
shows that it had not been so well attended to as
it ought to have been.
Though the above-mentioned arbitrary proceed-
ings of praetors were thus repressed, they retained
another privilege, equally hurtful; which was,
that every new praetor, on his coming into office,
had it in his power to retain only what part he
pleased of the edicts of his predecessors, and to re-
ject the remainder: from which it followed that the
praetorian laws or edicts, though they provided for
so great a number of important cases, were really
in force for only one year, the time of the duration
E36. THE CONSTITUTION
of a praetor's office. Nor was a regulation made
to remedy this capital defect in the Roman juris-
prudence before the time of the emperor Hadrian,
which is another remarkable proof of the very
great slowness with which useful public regula-
tions take place in any nation. Under the reign
of the emperor we mention, the most useful edicts
of former praetors were by his order collected, or
rather compiled, into one general edict, which was
thenceforward to be observed by all civil judges in
their decisions, and was accordingly called the per-
petual edict (perpetuum edictum). This edict,
though now lost, soon grew into great repute; all
the jurisconsults of those days vied with each other
in writing commentaries upon it; and the em-
peror himself thought it so glorious an act of his
reign, to have caused the same to be framed, that
he considered himself on that account as being
another Numa.” -
* Several other more extensive law compilations were
framed after the perpetual edict we mention; there having been
a kind of emulation among the Roman emperors, in regard to
the improvement of the law. At last, under the reign of Jus-
tinian, that celebrated compilation was published, called the
code of Justinian, which, under different titles, comprises the
Roman laws and the edicts of the praetors, together with the
rescripts of the emperors; and an equal sanction was given to
the whole. This was an event of much the same nature as
that which will take place in England, whenever a coalition
shall be effected between the courts of common law and those
of equity, and both shall thenceforward be bound alike to
frame their judgments from the whole mass of decided cases
and precedents then existing, at least such of it as may be
consistently brought together into one compilation.
OF ENGLAND, I27
But the courts of equity in England, notwith-
standing the extensive jurisdiction they have been
able, in process of time, to assume, never super-
seded the other courts of law. These courts still
continue to exist in the same manner as formerly,
and have proved a lasting check on the innova-
tions, and in general the proceedings of the courts
of equity. And here we may remark the singu-
lar, and at the same time effectual, means of ba-
lancing each other's influence, reciprocally pos-
sessed by the courts of the two different species.
By means of its exclusive privilege both of creat-
ing and issuing writs, the Court of Chancery has
been able to hinder the courts of common law from
arrogating to themselves the cognisance of those
new cases which were not provided for by any law
in being, and thus dangerously uniting in them-
selves the power of judges of equity with that of
judges of common law. On the other hand, the
courts of common law are alone invested with the
power of punishing (or allowing damages for) those
cases of violence by which the proceedings of the
courts of equity might be opposed; and thus they
have been enabled to obstruct the enterprises of the
latter, and prevent their affecting in themselves
the like dangerous union of the two offices of
judges of common law and of equity. -
From the situation of the English courts of
equity, with respect to the courts of common law,
those courts have really been kept within limits
that may be said to be exactly defined, if the na-
ture of their functions be considered. In the first
128 THE CONSTITUTION
place, they can neither touch acts of parliament,
nor the established practice of the other courts,
much less reverse the judgments already passed in
these latter, as the Roman praetors sometimes used
to do in regard to the decisions of their prede-
cessors in office, and sometimes also in regard to
their own. The courts of equity are even re-
strained from taking cognisance of any case for
which the other courts can possibly afford reme-
dies. Nay, so strenuously have the courts of com-
mon law defended the verge of their frontier, that
they have prevented the courts of equity from
using in their proceedings the mode of trial by a
jury; so that, when, in a case of which the Court
of Chancery has already begun to take cogni-
sance, the parties happen to join issue on any par-
ticular fact (the truth or falsehood of which a jury
is to determine), the Court of Chancery is obliged
to deliver up the cause to the Court of King's
Bench, there to be finally decided. In fine, the
example of the regularity of the proceedings, prac-
tised in the courts of common law, has been com-
municated to the courts of equity; and rolls or
records are carefully kept of the pleadings, deter-
minations, and acts of these courts, to serve as
rules for future decisions.” -
So far, therefore, from having it in his power
“ to temper and moderate” (that is, to alter) the
* The master of the rolls is the keeper of these records, as
the title of the office expresses. His employment in the Court
of Chancery is of great importance, as he can hear and deter-
mine causes in the absence of the lord chancellor.
OF ENGLAND. 129
written law or statutes, a judge of equity, we find,
cannot alter the unwritten law, that is to say, the
established practice of the other courts, and the
judgments grounded thereupon; nor can he even
meddle with those cases for which either the writ-
ten or unwritten law has already made general
provisions, and of which there is a possibility far
the ordinary courts of law to take cognisance.
From all the above observations it follows, that,
of the courts of equity, as established in England,
the following definition may be given, which is,
that they are a kind of inferior experimental le-
gislature, continually employed in finding out and
providing law remedies for those new species of
cases for which neither the courts of common law,
nor the legislature, have yet found it convenient or
practicable to establish any ; in doing which, they
are to forbear to interfere with such cases as they
find already in general provided for. A judge of
equity is also to adhere, in his decisions, to the
system of decrees formerly passed in his own court,
regular records of which are kept for that purpose.
From this latter circumstance it again follows,
that a judge of equity, by the very exercise he
makes of his power, is continually abridging the
arbitrary part of it; as every new case he deter-
mines, every precedent he establishes, becomes a
‘land-mark or boundary which both he and his suc-
cessors in office are afterwards expected to regard.*
* “Hence,” says Mr. Millar, “law is constantly gaining
“ground upon equity. Every new and extraordinary interpo-
- K
T30 THE CONSTITUTION
Here it may be added as a conclusion, that ap-
peals from the decrees passed in the courts of equity
are carried to the house of peers; which circum-
stance alone might suggest that a judge of equity
is subjected to certain positive rules, besides those
“ of nature and conscience only ;” an appeal
being naturally grounded on a supposition that
some rules of that kind were neglected.
The above discussion on the English law has
proved much longer than I intended at first; so
much as to have swelled, I find, into two addi-
tional chapters. However, I confess I have been
under the greater temptation to treat at some
length the subject of the courts of equity, as I
have found the error (which may be called a con-
stitutional one) concerning the arbitrary office of
those courts, to be countenanced by the apparent
authority of lawyers, and of men of abilities, at
the same time that I have not seen in any book
an attempt made professedly to confute the same,
or indeed to point out the nature and true office of
the courts of equity.
“sition is, by length of time, converted into an old rule. A
“ great part of what is now strict law, , was formerly consi-
“ dered as equity; and the equitable decisions of this age will
“unavoidably be ranked under the strict law of the next.”
Numerous cases, however, will probably for ages occur, which
will prevent the complete approximation of the courts of law
and equity.—EDIT.
OF ENGLAND. I31
CHAPTER XII.
Of Criminal Justice.
WE are now to treat of an article, which, though
it does not in England, and indeed should not in
any state, make part of the powers which are pro-
perly constitutional, that is, of the reciprocal
rights by means of which the powers that concur
to form the government constantly balance each
other, yet essentially interests the security of indi-
viduals, and, in the issue, the constitution itself;
I mean to speak of criminal justice. But, pre-
vious to an exposition of the laws of England on
this head, it is necessary to desire the reader's at-
tention to certain considerations.
When a nation intrusts the power of the state
to a certain number of persons, or to one, it is
with a view to two points: one, to repel more
effectually foreign attacks; the other, to maintain
domestic tranquillity.
To accomplish the former point, each individual
surrenders a share of his property, and sometimes,
to a certain degree, even of his liberty. But
though the power of those who are the heads of
the state may thereby be rendered very consider-
able, yet it cannot be said, that liberty is, after
all, in any high degree endangered; because,
should ever the executive power turn against the
R 2
132 THE CONSTITUTION
nation a strength which ought to be employed
solely for its defence, this nation, if it were really
free (by which I mean, unrestrained by political
prejudices), would be at no loss for providing the
means of its security.
In regard to the latter object, that is, the
maintenance of domestic tranquillity, every indi-
vidual must, exclusive of new renunciations of his
natural liberty, moreover surrender (which is a
matter of far more dangerous consequence) a part
of his personal security.
The legislative power being, from the nature of
human affairs, placed in the alternative, either of
exposing individuals to dangers which it is at the
same time able extremely to diminish, or of deli-
vering up the state to the boundless calamities of
violence and anarchy, finds itself compelled to re-
duce all its members within reach of the arm of
the public power, and, by withdrawing in such
cases the benefit of the social strength, to leave
them exposed, bare, and defenceless, to the exer-
tion of the comparatively immense power of the
executors of the laws.
Nor is this all; for, instead of that powerful
re-action which the public authority ought in the
former case to experience, here it must find none;
and the law is obliged to proscribe even the at-
tempt of resistance. It is therefore in regulating
so dangerous a power, and in guarding lest it
should deviate from the real end of its institution,
that legislation ought to exert all its efforts.
... But here, it is of great importance to observe,
that the more powers a nation has reserved to it-
self, and the more it limits the authority of the
executors of the laws, the more industriously
ought its precautions to be multiplied.
In a state where, from a series of events, the
will of the prince has at length attained to hold
the place of law, he spreads an universal oppres-
sion, arbitrary and unresisted; even complaint is
dumb: and the individual, undistinguishable by
him, finds a kind of safety in his own insignifi-
cance. With respect to the few who surround
him, as they are at the same time the instruments
of his greatness, they have nothing to dread but
momentary caprices; a danger, against which, if
there prevails a certain general mildness of man-
ners, they are in a great measure secured. -
But in a state where the ministers of the laws.
meet with obstacles at every step, even their
strongest passions are continually put in motion;
and that portion of public authority, deposited
with them as the instrument of national tranquil-
lity, easily becomes a most formidable weapon.
Let us begin with the most favourable suppo-
sition, and imagine a prince whose intentions are
in every case thoroughly upright; let us even sup-
pose that he never lends an ear to the suggestions
of those whose interest it is to deceive him: ne-
vertheless, he will be subject to error; and this
error, which, I will farther allow, solely proceeds
from his attachment to the public welfare, yet.
134 THE constitution
may happen to prompt him to act as if his views
were directly opposite.
When opportunities shall offer (and many such
will occur) of procuring a public advantage by
overleaping restraints, confident in the uprightness
of his intentions, and being naturally not very
earnest to discover the distant evil consequences
of actions in which, from his very virtue, he feels
a kind of complacency, he will not perceive, that,
in aiming at a momentary advantage, he strikes
on the laws themselves on which the safety of the
nation rests, and that those acts, so laudable when
we only consider the motive of them, make a
breach at which tyranny will one day enter.
Yet farther, he will not even understand the
complaints that will be made against him. To
insist upon them will appear to him to the last
degree injurious: pride, when perhaps he is least
aware of it, will enter the lists; what he began
with calmness, he will prosecute with warmth;
and if the laws shall not have taken every possi-
ble precaution, he may think he is acting a very
honest part, while he treats, as enemies of the
state, men whose only crime will be that of being
more sagacious than himself, or of being in a
better situation for judging of the results of mea-
SUTES. º
But it were to exalt human nature extra-
vagantly, to think that this case of a prince, who
never aims at augmenting his power, may, in any
shape, be expected frequently to occur. Expe-
OF ENGLAND. 135.
rience evinces that the happiest dispositions are
not proof against the allurements of power, which:
has no charms but as it leads on to new advances;
authority endures not the very idea of restraint;
nor does it cease to struggle till it has beaten down.
every boundary.
Openly to level every barrier, and at once to
assume the absolute master, as we said before,
would be a fruitless attempt. But it is here to be
remembered, that those powers of the people which
are reserved as a check upon the sovereign, can
only be effectual so far as they are brought into
action by private individuals. Sometimes a citi-
zen, by the force and perseverance of his com—
plaints, opens the eyes of the nation; * at other
times, some member of the legislature proposes a
law for the removal of some public abuse: these;
therefore, will be the persons against whom the
prince will direct all his efforts.f
And he will the more assuredly do so, as, from
the error so usual among men in power, he will
think that the opposition he meets with, however
general, wholly depends on the activity of one or
two leaders; and amidst the calculations he will
* The author seems here to allude to the case of Mr.
Wilkes, whose exertions, though not animated by the purest
spirit of patriotism, contributed to the repression of minis-
terial tyranny, the removal of various grievances, and the
reform of the general administration.—EDIT.
f By the word prince, I mean those who, under whatever
appellation, and in whatever government it may be, are at
the head of public affairs.
I:36, THE CONSTITUTION
make, both of the supposed smallness of the ob-
stacle, which offers to his view, and of the decisive
consequence of the single blow he thinks necessary
to strike, he will be urged on by the despair of
ambition on the point of being baffled, and by the
most violent of all hatreds, that which is preceded
by contempt.
In that case which I am still considering, of a
really free nation, the sovereign must be very care-
ful that military violence do not make the smallest
part of his plan : a breach of the social compact
like this, added to the horror of the expedient.
would infallibly endanger his whole authority.
But, on the other hand, if he be resolved to suc-
eeed, he will, in defect of other resources, try the
utmost extent of the legal powers which the con-
stitution has intrusted with him ; and if the laws
have not in a manner provided for every possible
case, he will avail himself of the imperfect pre-
cautions themselves that have been taken, as a
cover to his tyrannical proceedings; he will pursue
steadily his particular object, while his professions
breathe nothing but the general welfare, and de-
stroy the assertors of the laws, under the very
shelter of the forms contrived for their security.”
• * If any person should charge me with calumniating human
nature (for it is her alone I am accusing here), I would desire
him to cast his eyes on the history of Louis XI.--of a Riche-
Iieu, and, above all, on that of England before the Revo-
dution: he would see the arts and activity of government in-
crease, in proportion as it gradually lost, its means of ope
pression.
QF ENGLAND. . I37.
. This is not all; independently of the immediate
mischief he may do, if the legislature interpose
not in time, the blows will reach the constitution
itself; and, the consternation becoming general
among the people, each individual will find himself
enslaved, in a state which yet may exhibit all the
common appearances of liberty.
Not only, therefore, the safety of the indivi-
dual, but that of the nation itself, requires the
utmost precautions in the establishment of that
necessary but formidable prerogative of dispensing
punishments. The first to be taken, even without
which it is impossible to avoid the dangers above
suggested, is, that it never be left at the disposal,
mor, if it be possible, exposed to the influence,
of the man who is the depository of the public
power. *
The next indispensable precaution is, that this
power shall not be vested in the legislative body;
and this precaution, so necessary alike under every
mode of government, becomes doubly so, when
only a small part of the nation has a share in the
legislative power.
If the judicial authority were lodged in the
legislative part of the people, not only the great
inconvenience must ensue of its thus becoming
independent, but also that worst of evils, the sup-
position of the sole circumstance that can well
identify this part of the nation with the whole,
which is, a common subjection to the rules which
they themselves prescribe. The legislative body,
138. THE CONSTITUTION
which could not, without ruin to itself, establish,
openly and by direct laws, distinctions in favour
of its members, would introduce them by its judg-
ments: and the people, in electing representatives,
would give themselves masters.
The judicial power ought therefore absolutely to
reside in a subordinate and dependent body, de-
pendent, not in its particular acts, with regard to
which it ought to be a sanctuary, but in its rules
and in its forms, which the legislative authority
must prescribe. How is this body to be com-
posed? In this respect farther precautions must be
taken. -
In a state where the prince is absolute master,
numerous bodies of judges are most convenient,
inasmuch as they restrain, in a considerable de-
gree, that respect of persons which is one inevit-
able attendant on that mode of government. Be-
sides, those bodies, whatever their outward pri-
vileges may be, being at bottom in a state of great
weakness, have no other means of acquiring the
respect of the people than their integrity, and
their constancy in observing certain rules and
forms: may, these circumstances, united, in some
degree overawe the sovereign himself, and dis-
courage the thoughts he might entertain of making
them the tools of his caprice.*
* The above observations are in a great measure meant to
allude to the French parlemens, and particularly that of Paris,
which formed such a considerable body as to be once sum-
moned as a fourth order to the general estates of the kingdom-
of ENGLAND. 139
But in a strictly limited monarchy, that is,
where the prince is understood to be, and in fact
is, subject to the laws, numerous bodies of judica-
ture would be repugnant to the spirit of the con-
stitution, which requires that all powers in the
state should be as much confined as the end of
their institution can allow; not to add, that, in
the vicissitudes incident to such a state, they
might exert a very dangerous influence.
Besides, that awe which is naturally inspired by
such bodies, and is so useful when it is necessary
to strengthen the feebleness of the laws, would
not only be superfluous in a state where the whole
power of the nation is on their side, but would
moreover have the mischievous tendency to intro-
duce another sort of fear than that which men
The weight of that body, increased by the circumstance of
the members holding their places for life, was in general
attended with the advantage of placing them above being
overawed by private individuals in the administration either of
civil or criminal justice; it even rendered them so difficult to
be managed by the court, that the ministers were at times
obliged to appoint particular judges, or commissaries, to try
such men as they resolved to ruin.
These, however, were only local advantages, connected
with the nature of the French government, which was an
uncontrolled monarchy, with considerable remains of aristo-
cracy. But, in a free state, such a powerful body of men, in-
vested with the power of deciding on the life, honour, and
property of the citizens, would be productive of very danger-
ous political consequences; and the more so, if such judges
had, as is the case all over the world except here, the power of
deciding upon the matter of law and the matter of fact.
I:4(f THE CONSTITUTION
must.be taught to entertain. Those mighty tri-
bunals, I am willing to suppose, would preserve,
in all situations of affairs, that integrity which
distinguishes them in states of a different constitu-
tion; they would never inquire after the influence,
still less the political sentiments, of those whose
fate they were called to decide; but these advan-
tages not being founded in the necessity of things,
and the power of such judges seeming to exempt
them from being so very virtuous, men would be
in danger of taking up the fatal opinion, that the
simple exact observance of the laws is not the
only task of prudence: the citizen called upon to
defend, in the sphere where fortune has placed him,
his own rights, and those of the nation itself,
would dread the consequence of even a lawful
conduct, and, though encouraged by the law,
might desert himself when he came to behold its
ministers.
In the assembly of those who sit as his judges,
the citizen might possibly descry no enemies: but
neither would he see any man whom a similarity
of circumstances might engage to take a concern
in his fate: and their rank, especially when joined
with their numbers, would appear to him to lift
them above that which over-awes injustice, where
the law has been unable to secure any other
check,--I mean the reproaches of the public.
And these his fears would be considerably
heightened, if, by the admission of the juris-
prudence received among certain nations, he be-
OF ENGLAND.” l:41
held those tribunals, already so formidable, wrap
themselves up in mystery, and be made, as it
were, inaccessible.* - * ºr
* An allusion is made here to the secrecy with which the
proceedings, in the administration of criminal justice, are to
be carried on, according to the rules of the civil law, which
in that respect are adopted over all Europe. As soon as the
prisoner is committed, he is debarred of the sight of every
body, till he has gone through his several examinations. One
or two judges are appointed to examine him, with a clerk to
take his answers in writing: and he stands alone before them
in some private room in the prison. The witnesses are to be
examined apart, and he is not admitted to see them till their
evidence is closed; they are then confronted together before
all the judges, to the end that the witnesses may see if the
prisoner is really the man they meant in giving their respective
evidences, and that the prisoner may object to such of them
as he shall think proper. This done, the depositions of those
witnesses who are adjudged upon trial to be exceptionable, are
set aside: the depositions of the others are to be laid before
the judges, as well as the answers of the prisoner, who has
been previously called upon to confirm or deny them in their
presence; and a copy of the whole is delivered to him, that he
may, with the assistance of a counsel, which is now granted
him, prepare for his justification. The judges are, as has been
said before, to decide both upon the matter of law and the
matter of fact, as well as upon all incidents that may arise
during the course of the proceedings, such as admitting wit-
messes to be heard in behalf of the prisoner, &c.
This mode of criminal judicature may be useful as to the
bare discovery of truth, a point which I do not propose to dis-
cuss here; but, at the same time, a prisoner is so completely
delivered up into the hands of the judges, who even can de-
tain him almost at pleasure by multiplying or delaying his ex-
aminations, that, whenever it is adopted, men are almost as
much afraid of being accused, as of being guilty, and es-
I42 THE CONSTITUTION
He could not think, without dismay, of those
vast prisons within which he is one day perhaps to
be immured—of those proceedings, unknown to
him, through which he is to pass—of that total
seclusion from the society of other men—or of
those long and secret examinations, in which,
abandoned wholly to himself, he will have nothing
but a passive defence to oppose to the artfully va-
ried questions of men, whose intentions he shall at
least mistrust; and in which his spirits, broken
down by solitude, shall receive no support, either
from the counsels of his friends, or the looks of
those who may offer up vows for his deliverance.
The security of the individual, and the con-
sciousness of that security, being then equally es-
sential to the enjoyment of liberty, and necessary
for the preservation of it, these two points must
never be left out of sight, in the establishment of
a judicial power; and I conceive that they neces-
sarily lead to the following maxims.
In the first place I shall remind the reader of
what has been laid down above, that the judicial
authority ought never to reside in an independent
body; still less in him who is already the trustee
of the executive power.
Secondly, the party accused ought to be pro-
vided with all possible means of defence. Above
pecially grow very cautious how they interfere in public mat-
ters. We shall see presently how the trial by jury, peculiar
to the English nation, is admirably adapted to the nature of a
free state,
OF ENGLAND. 143
all things the whole proceedings ought to be pub-
lic. The courts, and their different forms, must
be such as to inspire respect, but never terror:
and the cases ought to be so accurately ascer-
tained, the limits so clearly marked, that neither
the executive power, nor the judges, may ever
hope to transgress them with impunity.
In fine, since we must absolutely pay a price for
the advantage of living in society, not only by re-
linquishing some share of our natural liberty (a
surrender which, in a wisely framed government,
a wise man will make without reluctance), but
even also by resigning part of our personal secu-
rity,+in a word, since all judicial power is an
evil, though a necessary one, no care should be
omitted to reduce as far as possible the dangers
of it.
As there is, however, a period at which the
prudence of man must stop, at which the safety
of the individual must be given up, and the law
is to resign him to the judgment of a few persons,
that is (to speak plainly), to a decision in some
sense arbitrary, it is necessary that the law should
narrow as far as possible this sphere of peril, and
so order matters, that when the subject shall hap-
pen to be summoned to the decision of his fate by
the fallible conscience of a few of his fellow-crea-
tures, he may always find in them advocates, and
never adversaries.
144 THE CONSTITU'ſ PION
CHAPTER XIII.
The Subject continued.
AFTER having offered to the reader, in the
preceding chapter, such general considerations as I
thought necessary, in order to convey a more
just idea of the spirit of the criminal judicature in
England, and of the advantages peculiar to it, I
now proceed to exhibit the particulars.
When a person is charged with a crime, the
magistrate, who is called in England a justice of
the peace, issues a warrant to apprehend him;
but this warrant can be no more than an order
for bringing the party before him: he must then
hear him, and take down in writing his answers,
together with the different informations. If it
appears, on this examination, either that the
crime laid to the charge of the person who is
brought before the justice was not committed, or
that there is no just ground to suspect him of it,
he must be set absolutely at liberty; if the con-
trary results from the examination, the party ac-
cused must give bail for his appearance to answer
to the charge, unless in capital cases: for then he
must, for safer custody, be really committed to
prison, in order to take his trial at the next
sessions.
OF ENGLAND. 145
But this precaution, of requiring the examina-
tion of an accused person, previous to his im-
prisonment, is not the only care which the law
has taken in his behalf; it has further ordained,
that the accusation against him should be again
discussed, before he can be exposed to the danger
of a trial. At every session the sheriff appoints
what is called the grand jury. This assembly
must be composed of more than twelve men, and
less than twenty-four; and is always formed out
of the most considerable persons in the county.
Its function is to examine the evidence that has
been given in support of every charge: if twelve
of those persons do not concur in the opinion that
an accusation is well grounded, the party is im-
mediately discharged; if, on the contrary, twelve
of the grand jury find the proofs sufficient, the
prisoner is said to be indicted, and is detained in
order to go through the remaining process.
On the day appointed for his trial, the prisoner
is brought to the bar of the court, where the
judge, after causing the bill of indictment to
be read in his presence, must ask him how he
would be tried; to which the prisoner answers,
IBy God and my country; by which he is under-
stood to claim to be tried by a jury, and to have
all the judicial means of defence to which the law
entitles him. The sheriff then appoints what is
called the petit jury: this must be composed of
twelve men chosen out of the county where the
crime was committed, and possessed of a landed
L
146 THE CONSTITUTION
income of ten pounds a year; their declaration
finally decides on the truth or falsehood of the ac-
cusation. § -
As the fate of the prisoner thus entirely depends
on the men who compose this jury, justice requires
that he should have a share in the choice of them;
and this he has through the extensive right which
the law has granted him, of challenging, or ob-
jecting to, such of them as he may think excep-
tionable. -
These challenges are of two kinds. One, which
is called the challenge to the array, has for its
object to have the whole pannel set aside; it is
proposed by the prisoner when he thinks that the
sheriff who formed the pannel is not indifferent in
the cause; for instance, if he thinks he has an in-
terest in the prosecution, that he is related to the
prosecutor, or in general to the party who pre-
tends to be injured.
The other challenges are called, to the polls—
(in capita): they are exceptions proposed against
the jurors, severally, and are reduced to four heads
by sir Edward Coke.—That which he calls propter
honoris respectum, may be proposed against a
lord empannelled on a jury; or he might challenge
himself. That propter defectum takes place when
a juror is legally incapable of serving that office,
as, if he is an alien ; if he has not an estate suffi-
cient to qualify him, &c. That propter delictum
has for its object to set aside any juror convicted
of such crime or misdemeanor as renders him in-
. OF ENGLAND, 147
famous, as felony, perjury, &c. That propter
affectum is proposed against a juror who has an
interest in the conviction of the prisoner: one, for
instance, who has an action depending between
him and the prisoner; one who is of kin to the
prosecutor, or his counsel, attorney, or of the
same society or corporation with him, &c.”
In fine, in order to relieve even the imagination
of the prisoner, the law allows him, independently
of the several challenges above-mentioned, to
challenge peremptorily, that is to say, without
showing any cause, twenty jurors successively.f
When at length the jury is formed, and they
have taken their oath, the indictment is opened,
and the prosecutor produces the proofs of his ac-
cusation. But, unlike to the rules of the civil
law, the witnesses deliver their evidence in the
presence of the prisoner: the latter may put ques-
tions to them; he may also produce witnesses in
his behalf, and have them examined upon oath.
Lastly he is allowed to have a counsel to assist
him, not only in the discussion of any point of law
which may be complicated with the fact, but also
in the investigation of the fact itself, and who
* When a prisoner is an alien, one half of the jurors must
also be aliens; a jury thus formed is called a jury de medie-
tate lingua.
f When these several challenges reduce too much the num-
ber of the jurors on the pannel, which is forty-eight, new
ones are named on a writ of the judge, who are named the
tales, from those words of the writ, decem or octo tales.
L 2 *
I48 THE CONSTITUTION
points out to him the questions he ought to ask, or
even asks them for him.* º
Such are the precautions which the law has de-
vised for cases of common prosecutions; but in
those for high treason, and for misprision of trea-
son, that is to say, for a conspiracy against the
life of the king, or against the state, and for a
concealment of it, f—accusations which suppose a
heat of party and powerful accusers, the law has
provided for the accused party farther safeguards.
First, no person can be questioned for any trea-
son, except a direct attempt on the life of the king,
after three years elapsed since the offence. . 2. The
accused party may, independently of his other
legal grounds of challenging peremptorily, chal-
lenge thirty-five jurors. 3. He may have two
counsel to assist him through the whole course of
the proceedings. 4. That his witnesses may not
be kept away, the judges must grant him the
same compulsive process to bring them in, which
they issue to compel the evidences against him.
5. A copy of his indictment must be delivered to
him ten days at least before the trial, in presence
of two witnesses, and at the expense of five shil-
lings; which copy must contain all the facts laid
to his charge, the names, professions, and abodes,
* This last article, however, is not established by law, ex-
cept in cases of treason; it is done only through custom and
the indulgence of the judges.
t The penalty of a misprision of treason is the forfeiture of
all goods, and imprisonment for life.
OF ENGLAND. Ł49.
of the jurors who are to be on the pammel, and of
all the witnesses, who are intended to be produced
against him.* w 4.
When, either in cases of high treason, or of in-
ferior crimes, the prosecutor and the prisoner have
closed their evidence, and the witnesses have an-
swered to the respective questions both of the
bench and of jurors, one of the judges makes a
speech, in which he sums up the facts which have
been advanced on both sides. He points out to
the jury what more precisely constitutes the hinge
of the question before them; and he gives them
his opinion both with regard to the evidences that
have been given, and to the point of law which is
to guide them in their decision. This done, the
jury withdraw into an adjoining room, where they
must remain without eating and drinking, and
without fire, till they have agreed unanimously
among themselves, unless the court give a permis-
sion to the contrary. Their declaration or verdict
(veredictum) must (unless they choose to give a
special verdict) pronounce expressly, either that
the prisoner is guilty, or that he is not guilty, of
the fact laid to his charge. Lastly, the funda-
mental maxim of this mode of proceeding is, that
the jury must be unanimous.
And as the main object of the institution of the
trial by jury is to guard accused persons against all
* Stat. 7 Will. III. c. 3, and 7 Anne, c. 21. The latter was
to be in force only after the death of the late Pretender.
I50 THE constitution
decisions whatsoever from men invested with any
permanent official authority,” it is not only a set-
tled principle that the opinion which the judge de-
livers has no weight but such as the jury choose to
give it; but their verdict must besides compre-
hend the whole matter in trial, and decide as well
upon the fact, as upon the point of law that may
arise out of it: in other words, they must pro-
nounce both on the commission of a certain fact,
and on the reason which makes such fact to be
contrary to law.f -
This is even so essential a point, that a bill of
indictment must expressly be grounded upon those
two objects. Thus an indictment for treason must
charge, that the alleged facts were committed with
a treasonable intent (proditorie). An indictment
for murder must express that the fact has been
committed with malice prepense, or afore-thought.
An indictment for robbery must charge, that the
* “Laws,” as Junius says extremely well, “are intended,
“not to trust to what men will do, but to guard against what
“ they may do.”
f Unless they choose to give a special verdict.—“When the
“jury,” says Coke, “doubt of the law, and intend to do that
“ which is just, they find the special matter; and the entry
is, Et super totá materić pet unt discretionem justiciorum.”
Inst. iv. These words of Coke, we may observe, confirm be-
yond a doubt the power of the jury to determine on the whole
matter in trial ; a power which in all constitutional views is
necessary; and the more so, since a prisoner cannot in Eng-
land challenge the judge, as he can under the civil law, and
for the same causes as he can a witness.
& ©
OF ENGLAND. 15I
things were taken with an intention to rob (animo
furandi), &c.” -
Juries are even so uncontrollable in their ver-
dict, so apprehensive has the constitution been
lest precautions to restrain them in the exercise
of their functions, however specious in the begin-
ning, might in the issue be converted to the very
destruction of the ends of that institution,-that
it is a repeated principle that a juror, in delivering
his opinion, is to have no other rule than his opi-
nion itself-that is to say, no other rule than the
belief which results to his mind from the facts
alleged on both sides, from their probability, from
the credibility of the witnesses, and even from all
such circumstances as he may have a private
knowledge of Lord chief justice Hale expresses
himself on this subject, in the following terms:
* The principle that a jury is to decide both on the fact and
the criminality of it, is so well understood, that, if a verdict
were so framed as only to have for its object the bare existence
of the fact laid to the charge of the prisoner, no punishment.
could be awarded by the judge in consequence of it. Thus,
in the prosecution of Woodfall, for printing Junius's Letter to
the King (a supposed libel); the jury brought in the follow-
ing verdict, guilty of printing and publishing only; the con-
sequence of which was the discharge of the prisoner.
[As some of the judges, however, were unwilling to concede
this point in the case of libels, the friends of the constitution
brought forward a bill, in 1792, by which it was enacted, that,
on every trial for a libel, a jury might give a verdict upon the
whole matter in issue, and should not be required or directed
by the judge to find the defendant guilty, merely on a proof
of the publication of the alleged libel, and of the sense ascribed
to it in the record.—EDIT.]
152 THE coxsTITUTION
“ In this recess of the jury, they are to consi-
“ der the evidence, to weigh the credibility of
“ the witnesses, and the force and efficacy of their
“ testimonies; wherein (as I have before said)
“ they are not precisely bound by the rules of the
“civil law, viz. to have two witnesses to prove
“every fact, unless it be in cases of treason, nor
“ to reject one witness because he is single, or
“ always to believe two witnesses, if the proba-
“bility of the fact does upon other circumstances
“ reasonably encounter them; for the trial is not
“here simply by witnesses, but by jury; nay, it
“ may so fall out, that a jury upon their own
“ knowledge may know a thing to be false, that a
“witness swore to be true, or may know a witness
“ to be incompetent or incredible, though nothing
“ be objected against him—and may give their
“ verdict accordingly.” . .
If the verdict pronounces not guilty, the pri-
soner is set at liberty, and cannot, on any pre-
tence, be tried again for the same offence. If the
verdict declares him guilty, then, and not till then,
the judge enters upon his function as a judge, and
pronounces the punishment which the law ap-
points. But, even in this case, he is not to judge
* History of the Common Law of England, chap. 12,
sect. 11. The same principles and forms are observed in civil
matters; only peremptory challenges are not allowed.
t When the party accused is one of the lords temporal, he
likewise enjoys the universal privilege of being judged by his
peers; though the trial then differs in several respects. In
the first place, as to the number of the jurors: all the peers
OF ENGLAND. #53
according to his own discretion only; he must
strictly adhere to the letter of the law; no con-
structive extension can be admitted; and, how-
ever criminal a fact might in itself be, it would
pass unpunished if it were found not to be posi-
tively comprehended in some one of the cases pro-
vided for by the law. The evil that may arise
from the impunity of a crime, that is, an evil
which a new law may instantly stop, has not by
the English laws been considered as of magnitude
sufficient to be put in comparison with the danger
of breaking through a barrier on which so mate-
rially depends the safety of the individual.”
are to perform the function of such, and they must be sum-
moned at least twenty days beforehand. 2. When the trial
takes place during the session, it is said to be in the high court
of parliament; and the peers officiate at once as jurors and
judges: when the parliament is not sitting, the trial is said to
be in the court of the high steward of England; an office
which is not usually in being, but is revived on those occa-
sions; and the high steward performs the office of judge. 3.
In either of these cases, unanimity is not required; and the
majority, which must consist of twelve persons at least, is to
decide. - - t
* I shall here give an instance of the scruple with which
the English judges proceed upon occasions of this kind. Sir
Henry Ferrers having been arrested by virtue of a warrant, in
which he was termed a knight, though he was a baronet,
Nightingale, his servant, took his part, and killed the officer;
but it was decided, that, as the warrant “was an ill warrant,
“the killing of an officer in executing that warrant could not
“be murder, because no good warrant: wherefore he was
“found not guilty of the murder and manslaughter.”—See
Croke's Rep. P. III. p. 371. ... •
H.54 THE CONSTITUTION
To all these precautions taken by the law for
the safety of the subject, one circumstance must
be added, which indeed would alone justify the
partiality of the English lawyers to their laws in
preference to the civil law;—I mean the abso-
lute rejection they have made of torture.” With-
out repeating here what has been said on the sub-
ject by the admirable author of the treatise on
Crimes and Punishments,f I shall only observe,
that the torture, in itself so horrible an expedient,
would, more especially in a free state, be attended
with the most fatal consequences. It was abso-
lutely necessary to preclude, by rejecting it, all
attempts to make the pursuit of guilt an instru-
ment of vengeance against the innocent. Even
the convicted criminal must be spared, and a prac-
tice at all rates exploded, which might so easily be
made an instrument of endless vexation and perse-
cution.
* Coke says (Inst. III. p. 35.), that when John Holland,
duke of Exeter, and William de la Pole, duke of Suffolk, re-
newed under Henry VI. the attempts made to introduce the
civil law, they exhibited the torture as a beginning thereof.
The instrument was called the duke of Exeter's daughter.
1 Beccaria. -
f Judge Foster relates, from Whitelocke, that the bishop
of London having said to Felton, who had assassinated the
duke of Buckingham, “If you will not confess, you must go
“ to the rack;” the man replied, “If it must be so, I know not
“whom I may accuse in the extremity of the torture; bishop
“Laud, perhaps, or any lord at this board.” -
“Sound sense (adds Foster) in the mouth of an enthusiast
“ and a ruffian.”
OF ENGLAND. 155
For the farther prevention of abuses, it is an
invariable usage that the trial be public. The
prisoner neither makes his appearance, nor pleads,
but in places where every body may have free
entrance; and the witnesses when they give their
evidence, the judge when he delivers his opinion,
the jury when they give their verdict, are all un-
der the public eye. Lastly, the judge cannot
change either the place, or the kind of punishment
ordered by the law; and a sheriff who should
take away the life of a man in a manner different
from that which the law prescribes, would be pro-
secuted as guilty of murder.”
In a word, the constitution of England, being
a free constitution, demanded from that circum-
stance alone (as I should already have but too
often repeated, if so fundamental a truth could
be too often urged) extraordinary precautions to
guard against the dangers which unavoidably at-
tend the power of inflicting punishments; and it
is particularly when considered in this light, that
the trial by jury proves an admirable institution.
By means of it, the judicial authority is not only
placed out of the hands of the man who is in-
Laud having proposed the rack, the matter was shortly
debated at the board, and it ended in a reference to the
judges, who unanimously resolved that the rack could not be
legally used.
‘. . * And if any other person but the sheriff, even the judge
himself, were to cause death to be inflicted upon a man, though
convicted, it would be deemed homicide. See Blackstone,
book iv. chap. 14.
156 THE CONSTITUTION
vested with the executive authority—it is even
out of the hands of the judge himself. Not only
the person who is trusted with the public power
cannot exert it, till he has, as it were, received
the permission to that purpose, of those who are
set apart to administer the laws; but these latter
are also restrained in a manner exactly alike, and
cannot make the law speak, but when, in their
turn, they have likewise received permission.
And those persons to whom the law has thus
exclusively delegated the prerogative of deciding
that a punishment is to be inflicted,—those men
without whose declaration the executive and the
judicial powers are both thus bound down to in-
action, do not form among themselves a perma-
ment body, who may have had time to study how
their power can serve to promote their private
views or interest: they are men selected at once
from among the people, who perhaps never were
before called to the exercise of such a function,
nor foresee that they ever shall be called to it
again.
As the extensive right of challenging effectu-
ally baffles, on one hand, the secret practices of
such as, in the face of so many discouragements,
might still endeavour to make the judicial power
subservient to their own views, and on the other
excludes all personal resentments, the sole affec-
tion which remains to influence the integrity of
those who alone are entitled to put the public
power into action, during the short period of their
§
OF ENGLAND; 157
authority, is, that their own fate as subjects is es-
sentially connected with that of the man whose
doom they are going to decide.
In fine, such is the happy nature of this institu-
tion, that the judicial power, a power so formi-
dable in itself, which is to dispose, without finding
any resistance, of the property, honour, and life
of individuals, and which, whatever precautions
may be taken to restrain it, must in a great de-
gree remain arbitrary, may be said, in England,
to exist,--to accomplish every intended purpose,
and to be in the hands of nobody.”
In all these observations on the advantages of
the English criminal law, I have only considered
it as connected with the constitution, which is a
free one ; and it is in this view alone that I have
compared it with the jurisprudence received in
other states. Yet, abstractedly from the weighty
constitutional considerations which I have sug-
gested, I think there are still other interesting
grounds of pre-eminence on the side of the laws of
England. -
In the first place, they do not permit that a
man should be made to run the risque of a trial,
but upon the declaration of twelve persons at
least (the grand.jury). Whether he be in prison,
* The consequence of this institution is, that no man in
England ever meets the man of whom he may say, “That
“man has a power to decide on my death or life.” If we
could for a moment forget the advantages of that institution,
we ought at least to admire the ingenuity of it.
I58 THE constitution
or on his trial, they never for an instant refuse
free access to those who have either advice or com-
fort to give him; they even allow him to summon
all who may have any thing to say in his favour.
And lastly, what is of very great importance, the
witnesses against him must deliver their testimony
in his presence; he may eross-examine them, and,
by one unexpected question, confound a whole
system of calumny : indulgences these, all denied
by the laws of other countries.
Hence, though an accused person may be ex-
posed to have his fate decided by persons (the
petty jury) who possess not, perhaps, all that
sagacity which in some delicate cases it is parti-
cularly advantageous to meet with in a judge, yet
this inconvenience is amply compensated by the
extensive means of defence with which the law,
as we have seen, has provided him. If a jury-
man does not possess that expertness which is the
result of long practice, yet neither does he bring
to judgment that hardness of heart which is, more
or less, also the consequence of it: and bearing
about him the principles (let me say, the un-
impaired instinct) of humanity, he trembles while
he exercises the awful office to which he finds him-
self called, and in doubtful cases always decides
for mercy.
It is to be farther observed, that, in the usual
course of things, juries pay great regard to the
opinions delivered by the judges; that, in those
cases where they are clear as to the fact, yet find
OF ENGLAND. - 159
themselves perplexed with regard to the degree of
guilt connected with it, they leave it, as has been
said before, to be ascertained by the discretion of
the judge, by returning what is called a special
verdict ; that, whenever circumstances seem to
alleviate the guilt of a person, against whom
nevertheless the proof has been positive, they
temper their verdict by recommending him to the
mercy of the king (which seldom fails to produce
at least a mitigation of the punishment): that,
though a man once acquitted can never, under
any pretence whatsoever, be again brought into
peril for the same offence, yet a new trial would
be granted if he had been found guilty upon evi-
dence strongly suspected of being false. Lastly,
what distinguishes the laws of England from
those of other countries in a very honourable man-
ner, is, that as the torture is unknown to them, so
neither do they know any more grievous punish-
ment than the simple deprivation of life.”
All these circumstances have combined to in-
troduce such a mildness into the exercise of cri-
minal justice, that the trial by jury is that point
of their liberty to which the people of England
are most thoroughly and universally wedded; and
the only complaint I have ever heard uttered
against it, has been by men who, more sensible of
* This assertion is erroneous; for, in cases of high treason,
the punishment is far more grievous than simple death, the of
fender being half-hanged, and then subjected to excruciating .
torments. EDIT.
*
töð THE CONSTITUTION
the necessity of public order than alive to the feel.
ings of humanity, think that too many offenders
escape with impunity."
CHAPTER XIV.
The Subject concluded. Laws relative to Im-
prisonment.
BUT what completes that sense of independence
which the laws of England procure to every in-
dividual (a sense which is the noblest advantage
attending liberty), is the greatness of their pre-
cautions upon the delicate point of imprisonment.
In the first place, by allowing, in most cases,
enlargement upon bail, and by prescribing, on
* A writer in a Scottish review speaks contemptuously of
the trial by jury, and thinks that the English pay too great a
price for its presumed advantages, “in the number of unjust
“verdicts which are given by ignorant, perverse, or corrupted
“juries.” He adds, that this form of trial has been rendered
subservient to arbitrary power at several periods of our history.
But it may be contended, that, even if the improper decisions
of juries were far more numerous than we have found them to
be, and if the influence of arbitrary princes or judges has been
much more frequently exerted over them than it appears to
have been, the benefits of the institution strikingly prepon-
derate over its inconveniences; and it merits the warm praise,
and claims the continued support, of a loyal and grateful
nation.—EDIT.
OF ENGLAND. 16.1
that article, express rules for the judges to follow,
they have removed all pretexts, which circumstances
might afford, for depriving a man of his liberty.
But it is against the executive power that the
legislature has, above all, directed its efforts: nor
has it been but by slow degrees that it has been
successful in wresting from it a branch of power
which enabled it to deprive the people of their
leaders, as well as to intimidate those who might
be tempted to assume the function; and which,
having thus all the efficacy of more odious means
without the dangers of them, was perhaps the
most formidable weapon with which it might at-
tack public liberty.
The methods originally pointed out by the laws
of England for the enlargement of a person un-
justly imprisoned, were the writs of mainprize,
de odio et atia, and de homine replegiando. Those
writs, which could not be denied, were an order
to the sheriff of the county in which a person was
confined, to inquire into the causes of his confine-
ment; and, according to the circumstances of his
case, either to discharge him completely, or upon
bail.
But the most useful method, and which even,
by being most general and certain, has tacitly
abolished all the others, is the writ of Habeas
Corpus, so called, because it begins with the
words Habeas Corpus ad subjiciendum. This
writ being a writ of high prerogative, must issue
from the Court of King's Bench: its effects ex-
M
3.
162 THE CôNSTITUTION
tendequally to every county; and the king by it
requires, or is understood to require; the person
who holds one of his subjects in custody, to carry
him before the judge, with the date of the con-
finement, and the cause of it, in order to discharge
him, or continue to detain him, according as the
judge shall decree. -
But this writ, which might be a resource in
cases of violent imprisonment effected by indi-
viduals, or granted at their request, was but a
feeble one, or rather was no resource at all against
the prerogative of the prince, especially under the
sway of the Tudors, and in the beginning of that
of the Stuarts. And even in the first years of
Charles the First, the judges of the King's Bench,
who, in consequence of the spirit of the times, and
of their holding their places durante bene placito;
were constantly devoted to the court, declared,
“that they could not, upon a Habeas Corpus,
“either bail or deliver a prisoner, though commit-
“ted without any cause assigned, in case he was
“committed by the special command of the king,
“ or by the lords of the privy council.” .
Those principles, and the mode of procedure
which resulted from them, drew the attention of
parliament; and in the bill called the Petition of
Right, passed in the third year of the reign of
Charles the First, it was enacted, that no person
should be kept in custody, in consequence of such
imprisonments. . -
But the judges knew how to evade the intention
$.
OF ENGLAND. 163
of this act: they indeed did not refuse to dis-
charge a man imprisoned without a cause; but
they used so much delay in the examination of
the causes, that they obtained the full effect of
an open denial of justice. * -
The legislature again interposed, and in the act
passed in the sixteenth year of the reign of Charles
the First, the same in which the Star-chamber
was suppressed, it was enacted, that “if any per-
“son be committed by the king himself in person,
“ or by his privy council, or by any of the mem-
“bers thereof, he shall have granted unto him,
“without delay upon any pretence whatsoever, 3.
“writ of Habeas Corpus ; and that the judge
“shall thereupon, within three court-days after
“ the return is made, examine and determine the
“legality of such imprisonment.”
This act seemed to preclude every possibility of
future evasion: yet it was evaded still; and, by
the connivance of the judges, the person who de-
tained the prisoner could, without danger, wait,
for a second, and a third writ, called an alias and
a pluries, before he produced him.
All these different artifices gave at length birth
to the famous act of Habeas Corpus (passed in
the thirty-first year of the reign of Charles the
Second), which is considered in England as a se-
cond Great Charter, and has extinguished all the
resources of oppression.*
* The real title of this act is, An Act for better securing
Jº M 2
164 THE CONSTITUTION
The principal articles of this act are,
1. To fix the different terms allowed for bring-
ing a prisoner: those terms are proportioned to
the distance; and none can in any case exceed
twenty days. -
2. That the officer and keeper neglecting to
make due returns, or not delivering to the pri-
soner, or his agent, within six hours after demand,
a copy of the warrant of commitment, or shifting
the custody of the prisoner from one to another,
without sufficient reason or authority (specified in
the act); shall for the first offence forfeit one hun-
dred pounds, and for the second two hundred, to
the party aggrieved, and be disabled to hold his
office.
3. No person, once delivered by Habeas Cor-
pus, shall be committed for the same offence, on
penalty of five hundred pounds.
4. Every person committed for treason or fe-
lony, shall, if he require it, in the first week of
the next term, or the first day of the next session,
be indicted in that term or session, or else ad-
mitted to bail, unless it should be proved upon
oath, that the king's witnesses cannot be produced
at that time : and if not indicted and tried in the
second term or session, he shall be discharged of
his imprisonment for such imputed offence.
5. Any of the twelve judges, or the lord-chan-
the Liberty of the Subject, and for Prevention of Imprison-
onent beyond the Seas.
OF ENGLAND. 165
cellor, who shall deny a writ of Habeas Corpus,
on sight of the warrant, or on oath that the same
is refused, shall forfeit severally to the party ag
grieved five hundred pounds. -
6. No inhabitant of England (except persons
contracting, or convicts praying to be transported)
shall be sent prisoner to Scotland, Ireland, Jersey,
Guernsey, or any place beyond the seas, within
or without the king's dominions,—on pain, that
the party committing, his advisers, aiders, and
assistants, shall forfeit to the party aggrieved a
sum not less than five hundred pounds, to be re-
covered with treble costs, shall be disabled to bear
any office of trust or profit—shall incur the penal-
ties of a pramunire,” and be incapable of the
king's pardon.
* The statutes of praemunire, thus called from the writ for
their execution, which begins with the words praemunire (for
pra-monere) facias, were originally designed to oppose the
usurpations of the popes. The first was passed under the reign
of Edward the First, and was followed by several others,
which, even before the reformation, established such effectual
provisions as to draw upon one of them the epithet of execra-
Öile statutum. The offences against which those statutes were
framed were likewise distinguished by the appellation of prae-
munire; and under that word were included all attempts to
increase the power of the pope at the expense of the royal
authority. The punishment decreed for such cases, was also
called a praemunire : it has since been extended to several
other kinds of offence, and amounts to imprisonment at the
king's pleasure, or for life, and forfeiture of all goods and
rents of lands.
[It may be proper to add, that prosecutions upon a prae-
munire are now entirely disused.—EDIT.]
ºf 66 THE CONSTITUTION
BOOK II.
—sº-
A VIEW OF THE ADVANTAGES OF THE ENGLISH
GOVERNMENT, AND OF THE RIGHTS AND
LIBERTIES OF THE PEOPLE ; AND A CONFIR-
MATION, BY REFERENCE TO FACTS, OF THE
PRINCIPLES STATED IN THE WORK.
CHAPTER I.
Some Advantages peculiar to the English Consti-
tution. 1. The Unity of the Erecutive Power.
WE have seen in former chapters the resources
allotted to the different parts of the English go-
vernment for balancing each other, and how their
reciprocal actions and re-actions produce the free-
dom of the constitution, which is no more than an
equilibrium between the ruling powers of the state.
I now propose to show that the particular nature
and functions of these same constituent parts of
the government, which give it so different an ap-
pearance from that of other free states, are more-
over attended with peculiar and very great advan-
tages, which have not hitherto been sufficiently
observed. *
The first peculiarity of the English government,
as a free government, is its having a king-its
O.F. ENGLAND. 167
having thrown into one place the whole mass, if I
may use the expression, of the executive power,
and having invariably and for ever fixed it there.
By this very circumstance also has the depositum
of it been rendered sacred and inexpugnable;—by
making one great, very great man in the state,
has an effectual check been put to the pretensions
of those who otherwise would strive to become
such ; and disorders have been prevented, which,
in all republics, ever brought on the ruin of liberty,
and, before it was lost, obstructed the enjoyment
of it. *
If we cast our eyes on all the states that ever
were free, we shall see that the people ever turning
their jealousy, as it was natural, against the exe-
cutive power, but never thinking of the means of
limiting it, so happily prevalent in England,” never
* The rendering that power dependent on the people for its
supplies.—See on this subject chap. vi. book i. &
[A late writer (in the Edinburgh Review) doubts the eficacy
Qf this supposed safeguard of our constitutional rights,—the
power of with-holding supplies. A refusal of granting the im-
mense sums requisite for the service of the year, would, he
thinks, “operate like the dissolution of civil society.” In
the present critical state of affairs, such conduct might, in-
deed, have a very mischievous effect; and, if we had an in-
considerate and ambitious prince on the throne, he might so
far trust to the forbearances of the commons in this respect, as
to encroach on the liberties of the people; but such is the
energy of the general system, such is the inherent spirit of
the nation, and so commanding is the influence of public opi-
anion on the ruler of a free state, that we have no reason to
dread such an invasion of our rights.-EDIT.]
I68 THE CONSTITUTION
employed any other expedients besides the obvious
one of trusting that power to magistrates whom
they appointed annually; which was in great mea-
sure the same as keeping the management of it to
themselves: whence it resulted, that the people,
who, whatever may be the fame of the govern-
ment, always possess, after all, the reality of
power, thus uniting in themselves with this reality
of power the actual exercise of it, in form as well
as in fact, constituted the whole state. In order
therefore legally to disturb the whole state, nothing
more was requisite than to put in motion a cer-
tain number of individuals.
In a state which is small and poor, an arrange-
ment of this kind is not attended with any great
inconveniences, as every individual is taken up
with the care of providing for his subsistence, as
great objects of ambition are wanting, and as
evils cannot, in such a state, ever become much
complicated. In a state that strives for aggran-
disement, the difficulties and danger attending the
pursuit of such a plan inspire a general spirit of
caution, and every individual makes a sober use
of his rights as a citizen.
But when, at length, those exterior motives
Cease, and the passions, and even the virtues,
which they excited, are thus reduced to a state
of inaction, the people turn their eyes back to-
wards the interior of the republic; and every in-
dividual, in seeking then to concern himself in all
affairs, seeks for new objects that may restore him
OF ENGLAND. I69
to that state of exertion which habit, he finds,
has rendered necessary to him, and aims at the
exercise of a share of power which, small as it is,
yet flatters his vanity.
As the preceding events must have given an
influence to a certain number of citizens, they
avail themselves of the general disposition of the
people, to promote their private views: the legis-
lative power is thenceforth continually in motion;
and as it is badly informed and falsely directed,
almost every exertion of it is attended with some
injury to the laws, or the state. ***.
This is not all; as those who compose the ge-
neral assemblies cannot, in consequence of their
numbers, entertain any hopes of gratifying their
private ambition, or, in general, their private
passions, they at least seek to gratify their politi-
cal caprices, and they accumulate the honours
and dignities of the state on some favourite whom
the public voice happens to raise at that time.
But, as in such a state there can be, from the
irregularity of the determinations of the people,
no such thing as a settled course of measures, it
happens that men never can exactly tell the pre-
sent state of public affairs. The power thus given
away has already become very great before those
for whom it was given so much as suspect it; and
he himself who enjoys that power does not know
its full extent: but then, on the first opportunity
that offers, he suddenly pierces through the cloud
which hid the summit from him, and at once seats
170 THE CONSTITUTION
himself upon it. The people, on the other hand,
no sooner recover sight of him, than they see
their favourite now become their master, and dis-
cover the evil, only to find that it is past remedy.
As this power, thus surreptitiously acquired, is
destitute of the support both of the law and of the
ancient course of things, and is even but indiffer-
ently respected by those who have subjected them-
selves to it, it cannot be maintained but by abusing
it. The people at length succeed in forming
somewhere a centre of union; they agree in the
choice of a leader: this leader in his turn rises;
in his turn also he betrays his engagements; power
produces its wonted effects; and the protector be-
comes a tyrant.
This is not all : the same causes which have
given one master to the state, give it two, give it
three. All those rival powers endeavour to swallow
up each other; the state becomes a scene of end-
less quarrels and broils, and is in a continual con-
vulsion.
If amidst such disorders the people retained their
freedom, the evil must indeed be very great to
take away all the advantages of it; but they are
slaves, and yet have not what in other countries
makes amends for political servitude; I mean
tranquillity.
In order to prove all these things, if proofs
were deemed necessary, I would only refer the
reader to what every one knows of Pisistratus and
Megacles, of Marius and Sylla, of Caesar and
OF ENGLAND. I'71
Pompey. However, I cannot avoid translating a
part of the speech which a citizen of Florence ad-
dressed once to the senate: the reader will find in
it a kind of abridged story of all republics; at
least of those which, by the share allowed to the
people in the government, deserved that name,
and which, besides, attained a certain degree of
extent and power.
“That nothing human may be perpetual and
“stable, it is the will of Heaven that, in all
“states whatsoever, there should arise certain
“ destructive families, who are the bane and ruin
“of them. Of this our own republic affords as
“many and more deplorable examples than any
* other, as it owes its misfortunes not only to one,
“but to several such families. We had at first
“ the Buondelmonti and the Huberti. We had
“afterwards the Donati and the Cerchi : and at
“present (shameful and ridiculous conduct!) we
“are waging war among ourselves for the Ricci
“ and the Albizzi.
“When in former times the Ghibelins were
“suppressed, every one expected that the Guelfs,
“, being then satisfied, would have chosen to live
“in tranquillity; yet, but a little time had elapsed,
“when they again divided themselves into the
“factions of the whites and the blacks. When
“the whites were suppressed, new parties arose,
“ and new troubles followed. Sometimes battles
“were fought in favour of the exiles; and, at
“other times, quarrels broke out between the no-
172 THE CONSTITUTION
“bility and the people. And, as if resolved to
* give away to others what we ourselves neither
“could, nor would, peaceably enjoy, we com-
“mitted the care of our liberty sometimes to king
“Robert, and at other times to his brother, and
“at length to the duke of Athens; never settling
“ or resting in any kind of government, as not
“ knowing either how to enjoy liberty or support .
* Servitude.”*
The English constitution has prevented the
possibility of misfortunes of this kind. By di-
minishing the power, or rather actual eavercise
of the power, of the people,f and making them
share in the legislature only by their representa-
tives, the irresistible violence has been avoided of
those numerous and general assemblies, which, on
whatever side they throw their weight, bear down
every thing. Besides, as the power of the people,
when they have any kinds of power, and know
how to use it, is at all times really formidable, the
constitution has set a counterpoise to it; and the
royal authority is this counterpoise.
In order to render it equal to such a task, the
constitution has, in the first place, conferred on
the king, as we have seen before, the exclusive
prerogative of calling and dismissing the legislative
bodies, and of putting a negative on their resolutions.
* See the History of Florence, by Machiavel, lib. iii.
t We shall see in the sequel, that this diminution of the
exercise of the power of the people has been attended with a
great increase of their liberty. • ,
of ENGLAND. 173
Secondly, it has also placed on the side of the
king the whole executive power in the nation.
Lastly, in order to effect still nearer an equili-
brium, the constitution has invested the man
whom it has made the sole head of the state, with
all the personal privileges, all the pomp, all the
majesty, of which human dignities are capable.
In the language of the law, the king is sovereign
lord, and the people are his subjects;—he is uni-
versal proprietor of the kingdom;-he bestows all
the dignities and places; and he is not to be ad-
dressed but with the expressions and outward
ceremony of almost eastern humility. Besides,
his person is sacred and inviolable; and any at-
tempt whatsoever against it is, in the eye of the
law, a crime equal to that of an attack upon the
whole state.
In a word, since, to have too exactly com-
pleted the equilibrium between the power of the
people and that of the crown, would have been to
sacrifice the end to the means, that is, to have
endangered liberty with a view to strengthen the
government, the deficiency which ought to remain
on the side of the crown, has at least been, in
appearance, made up, by conferring on the king
all that sort of strength that may result from the
opinion and reverence of the people; and, amidst
the agitations which are the unavoidable attendants
of liberty, the royal power, like an anchor that
resists both by its weight and the depth of its
hold, ensures a salutary steadiness to the vessel of
the state.
174. THE CONSTITUTION
The greatness of the prerogative of the king,
by thus procuring a great degree of stability to
the state in general, has much lessened the possi-
bility of the evils we have above described; it has
even, we may say, totally prevented them, by ren-
dering it impossible for any citizen to rise to any
dangerous greatness.
And to begin with an advantage by which the
people easily suffer themselves to be influenced, I
mean that of birth, it is impossible for it to pro-
duce in England effects in any degree dangerous;
for though there are lords who, besides their
wealth, may also boast of an illustrious descent,
yet that advantage, being exposed to a continual.
comparison with the splendor of the throne,
dwindles almost to nothing; and, in the gradation
universally received of dignities and titles, that of
sovereign prince and king places him who is in-
vested with it out of all degree of proportion.
The ceremonial of the court of England is even
formed upon that principle. Those persons who
are related to the king have the title of princes of
the blood, and, in that quality, an undisputed
pre-eminence over all other persons.” Nay, the
first men in the nation think it an honourable dis-
tinction to themselves, to hold the different menial
offices, or titles, in his household. If we therefore
were to set aside the extensive and real power of the
* This, by stat. of the 31st of Hen. VIII. extends to the
sons, grandsons, brothers, uncles, and nephews, of the reign-
ing king. {
of ENGLAND. I'75
king, as well as the numerous means he possesses
of gratifying the ambition and hopes of individuals,
and were to consider only the majesty of his title,
and that kind of strength founded on public
opinion which results from it; we shall find that
advantage so considerable, that to attempt to en-
ter into a competition with it, with the bare ad-
vantage of high birth, which itself has no other
foundation than public opinion, and that too in a
very subordinate degree, would be an attempt.
completely extravagant.
If this difference is so great as to be thoroughly
submitted to, even by those persons whose situation
might incline them to disown it, much more does
it influence the minds of the people. And if, not-
withstanding the value which every Englishman
ought to set upon himself as a man, and a free
man, there were any whose eyes were so very.
tender as to be dazzled by the appearance and the
arms of a lord, they would be totally blinded when
they came to turn them towards the royal majesty.
The only man, therefore, who, to persons un-
acquainted with the constitution of England,
might at first sight appear in a condition to put
the government in danger, would be one who, by
the greatness of his abilities and public services,
might have acquired in a high degree the love of
the people, and obtained a great influence in the
house of commons.
But how great soever this enthusiasm of the
public may be, barren applause is the only fruit
176 THE constitution
which the man whom they favour can expect from
it. He can hope neither for a dictatorship, nor a
consulship, nor in general for any power under the
shelter of which he may at once safely unmask
that ambition with which we might suppose him
to be actuated, or, if we suppose him to
have been hitherto free from any, grow insensi-
bly corrupt. The only door which the constitu-
tion leaves open to his ambition, of whatever kind
it may be, is a place in the administration, during
the pleasure of the king. If, by the continuance
of his services, and the preservation of his influ-
ence, he becomes able to aim still higher, the only
door which again opens to him is that of the house
of lords.
But this advance of the favourite of the people
towards the establishment of his greatness is at
the same time a great step towards the loss of that
power which might render him formidable.
In the first place, the people seeing that he is
become much less dependent on their favour, be-
gin, from that very moment, to lessen their at-
tachment to him. Seeing him moreover distin-
guished by privileges which are the objects of their
jealousy, I mean their political jealousy, and mem-
ber of a body whose interests are frequently op-
posite to theirs, they immediately conclude that
this great and new dignity cannot have been ac-
quired but through a secret agreement to betray
them. Their favourite, thus suddenly transformed,
is going, they make no doubt, to adopt a conduct
of ENGLAND. 177:
entirely opposite to that which has till then been
the cause of his advancement and high reputation,
and, in the compass of a few hours, completely
to renounce those principles which he has so long
and so loudly professed. In this, certainly the
people are mistaken; but yet neither would they
be wrong, if they feared that a zeal hitherto so.
warm, so constant, I will even add, so sincere,
when it concurred with their favourite’s private
interest, would, by being thenceforth often in op-
position to it, become gradually much abated.
Nor is this all : the favourite of the people does
not even find in his new dignity all the increase of
greatness and éclat that might at first be imagined.
Hitherto he was, it is true, only a private in-
dividual; but then he was the object in which the
whole nation interested themselves; his actions
and words were set forth in the public prints;
and he every where met with applause and ac-
clamation.
All these tokens of public favour are, I know,
sometimes acquired very lightly : but they never
last long, whatever people may say, unless real
services are performed : now, the title of benefac-
tor to the nation, when deserved, and universally
bestowed, is certainly a very handsome title, and
which does no-wise require the assistance of out-
ward pomp to set it off. Besides, though he was
only a member of the inferior body of the legisla-
ture, we must observe, he was the first ; and the
word first is always a word of very great moment.
N
Jºſé THE CONSTITUTION
But now that he is made a lord, all his great-
mess, which hitherto was indeterminate, becomes
defined. By granting him privileges established
and fixed by known laws, that uncertainty is taken
from his lustre which is of so much importance in
those things which depend on imagination; and
his value is lowered, just because it is ascertained.
Besides, he is a lord; but then there are several
men who possess but small abilities, and few esti-
mable qualifications, who also are lords; his lot is,
nevertheless, to be seated among them; the law
places him exactly on the same level with them;
and all that is real in his greatness is thus lost in
a crowd of dignities, hereditary and conventional.
Nor are these the only losses which the favourite
of the people is to suffer. Independently of those
great changes which he descries at a distance, he
feels around him alterations no less visible, and still
more painful. -
Seated formerly in the assembly of the repre-
sentatives of the people, his talents and continual
success had soon raised him above the level of his
fellow-members; and, being carried on by the vi-
vacity and warmth of the public favour, those who
might have been tempted to set up as his competi-
tors were reduced to silence, or even became his
supporters.
Admitted now into an assembly of persons in-
vested with a perpetual and hereditary title, he
finds men hitherto his superiors, men who see
yrith a jealous eye the shining talents of the homo
OF ENGLAND. 179
novus, and who are firmly resolved, that after hav-
ing been the leading man in the house of commons,
he shall not be the first in theirs.
In a word, the success of the favourite of the
people was brilliant, and even formidable; but the
constitution, in the very reward it prepares for
him, makes him find a kind of ostracism. His
advances were sudden, and his course rapid ; he
was, if you please, like a torrent ready to bear
down every thing before it; but this torrent is
compelled , by the general arrangement of things,
finally to throw itself into a vast reservoir, where
it mingles and loses its force and direction.”
I know it may be said, that, in order to avoid
the fatal step which is to deprive him of so many
advantages, the favourite of the people ought to
refuse the new dignity which is offered to him,
and wait for more important successes, from his
eloquence in the house of commons, and his in-
fluence over the people.
But those who give him this counsel have not
* This view of the progress of a popular man is not inap-
plicable to Mr. Pulteney, who became earl of Bath, and Mr.
Pitt, afterwards earl of Chatham. Both were men of aspiring
minds, extraordinary talents, and great influence; and each,
in less tranquil times, and under a republican government,
might have risen to exorbitant power, and have erected a
temporary fabric of tyranny: but the well-poised frame of our
constitution, the energy of the government, and the loyalty of
the nation, discountenanced all such presumptuous views, and
annihikated all ideas of encroaching on the royal power, or
rising above the level of the laws.-EDIT.
N 2
I80 THE CONSTITUTION
sufficiently examined it. Without doubt there are
men in England, who, in their present pursuit of
a project which they think essential to the public
good, would be capable of refusing for a while a
dignity which would deprive their virtue of oppor-
tunities of exerting itself, or might more or less
endanger it: but woe to him who should persist
in such a refusal, with any pernicious design' and
who, in a government where liberty is esta-
blished on so solid and extensive a basis, should
endeavour to make the people believe that their
fate depends on the persevering virtue of a single
citizen. His ambitious views being at last dis-
covered (mor could it be long before they were so),
his obstinate resolution to move out of the ordinary
course of things would indicate aims, on his part,
of such an extraordinary nature, that all men
whatever, who have any regard for their country,
would instantly rise up from all parts to oppose
him, and he must fall overwhelmed with so much
ridicule,” that it would be better for him to fall
from the Tarpeian rock.f
* Not merely ridicule, but strong censure and general in-
dignation.—EDIT.
f The reader will, perhaps, object, that no man in England
can entertain such views as those I have suggested here: this
is precisely what I intended to prove. The essential advan-
tage of the English government above all those that have been
called free, and which in many respects were but apparently
so, is, that no person in England can entertain so much as a
thought of ever rising to the level of the power charged with
the execution of the laws. All men in the state, whatever
OF ENGLAND. I8I
In fine, even though we were to suppose that
the new lord might, after his exaltation, have pre-
served all his interest with the people, or, what
would be no less difficult, that any lord whatever
could, by dint of his wealth and high birth, rival
the splendor of the crown itself, all these advan-
tages, how great soever we may suppose them, as
they would not of themselves be able to confer on
him the least executive authority, must for ever
remain mere showy unsubstantial advantages.
Finding all the active powers of the state con-
centred in that very seat of power which we sup-
pose him inclined to attack, and there secured by
formidable provisions, his influence must always
evaporate in ineffectual words; and after having
advanced himself, as we suppose, to the very foot
of the throne, finding no branch of independent
power which he might so far appropriate to himself,
as at last to give a reality to a political importance,
he would soon see it, however great it might have
at first appeared, decline and die away.
God forbid, however, that I should mean that
the people of England are so fatally tied down to
inaction, by the nature of their government, that
they cannot, in times of oppression, find means of
appointing a leader! No, I only meant to say that
the laws of England open no door to those accu-
may be their rank, wealth, or influence, are thoroughly con-
vinced that they must, in reality as well as in name, continue
to be subjects; and are thus compelled really to love, defend.
and promote, those laws which secure liberty to the subject.
182 THE CGNSTITUTION
mulations of power, which have been the ruin of
so many republics; that they offer to the ambi-
tious no means of taking advantage of the inad-
vertence or even the gratitude of the people, to
make themselves their tyrants; and that the pub-
lic power, of which the king has been made the
exclusive depository, must remain unshaken in his
hands, so long as things continue in the legal
order; which, it may be observed, is a strong in-
ducement to him constantly to endeavour to main-
tain them in it.*
* Several events, in the English history, put in a very
strong light this idea of the stability which the power of the
crown gives to the state. -
One is, the facility with which the great duke of Marlbo-
rough, and his party at home, were removed from their em-
ployments. Hannibal, in circumstances nearly similar, had
continued the war against the will of the senate of Carthage:
Caesar had done the same in Gaul : and when at last he was
expressly required to deliver up his commission, he marched
his army to Rome, and established a military despotism. But
the duke, though surrounded, as well as the above-named ge-
nerals, by a victorious army, and by allies, in conjunction with
whom he had carried on such a successful war, did not even
hesitate to surrender his commission. He knew that all his
soldiers were inflexibly prepossessed in favour of that power
against which he must have revolted: he knew that the same
prepossessions were deeply rooted in the minds of the whole
nation, and that every thing among them concurred to support
the same power: he knew that the very nature of the claims
he must have set up would instantly have made all his officers
and captains turn themselves against him, and, in short, that,
in an enterprise of this nature, the arm of the sea he had to
repass was the smallest of the obstacles he would have to en-
COunter.
OF ENGLAND. $83
CHAPTER II.
The Subject concluded.—The Erecutive Power is
more easily confined when it is ONE.
ANOTHER great advantage, and which one
would not at first expect, in this unity of the pub-
lic power in England,—in this union, and, if I
may so express myself, in this coacervation, of all
the branches of the executive authority, is the
greater facility it affords of restraining it.
In those states where the execution of the laws
is intrusted to several hands, and to each with
different titles and prerogatives, such division, and
the changeableness of measures which must be the
consequence of it, constantly hide the true cause of
the evils of the state: in the endless fluctuation of
things, no political principles have time to fix among
the people : and public misfortunes happen, without
ever leaving behind them any useful lesson.
At some times military tribunes, and at others
The other event I shall mention here, is that of the revo-
lution of 1689. If the long-established power of the crown
had not beforehand prevented the people from accustoming
themselves to fix their eyes on some particular citizens, and in
general had not prevented all men in the state from attaining
too considerable a degree of power and greatness, the expul-
sion of James II. might have been followed by events similar to
those which took place at Rome after the death of Caesar.
#84 THE CONSTITUTION
consuls, bear an absolute sway: sometimes patri-
cians usurp every thing, and at other times those
who are called nobles : * at one time the people
are oppressed by decemvirs, and at another by dic-
tators. - -
Tyranny, in such states, does not always beat
down the fences that are set around it; but it
Jeaps over them. When men think it confined
to one place, it starts up again in another;-it
mocks the efforts of the people, not because it is
invincible, but because it is unknown;–seized by
the arm of a Hercules, it escapes with the change
of a Proteus. -
But the indivisibility of the public power in
&England has constantly kept the views and efforts
of the people directed to one and the same ob-
ject; and the permanence of that power has also
given a permanence and a regularity to the pre-
'cautions they have taken to restrain it.
Constantly turned towards that ancient fortress,
the royal power, they have made it for seven cen-
turies the object of their fear; with a watchful
* The capacity of being admitted to all places of public
trust (at length gained by the plebeians) having rendered
ºuseless the old distinction between them and the patricians,
a coalition was then effected between the great plebeians, or
commoners, who got into these places, and the ancient patri-
cians. Hence a new class of men arose, who were called no-
tiles and nobilitas. These are the words by which Livy, after
* = e , s \ ,
who were at the head of the state. *
OF ENGLAND. 185
jealousy they have considered all its parts; they
have observed all its outlets; they have even
pierced the earth to explore its secret avenues and
subterraneous works.
United in their views by the greatness of the
danger, they regularly formed their attacks. They
established their works, first at a distance; then
brought them successively nearer; and, in short,
raised none but what served afterwards as a foun-
dation or defence to others.
After the Great Charter was established, forty
successive confirmations strengthened it. The act
called the Petition of Right, and that passed in
the sixteenth year of Charles the First, then ſol-
lowed: some years after, the Habeas Corpus act
was established; and the Bill of Rights at length
made its appearance. In fine, whatever the cir-
cumstances may have been, the people always had,
in their efforts, that inestimable advantage of
knowing with certainty the general seat of the
evils they had to defend themselves against; and
each calamity, each particular eruption, by point-
ing out some weak place, served to procure a new
bulwark for public liberty. *
To conclude in a few words;–the executive
power in England is formidable, but then it is for
ever the same ; its resources are vast, but their
mature is at length known; it has been made the
indivisible and inalienable attribute of one person
alone, but then all other persons, of whatever rank
\,
186 THE CONSTITUTION
or degree, become really interested to restrain it
within its proper bounds.” - *
-—
CHAPTER III.
A second Peculiarity. The Division of the Le-
gislative Power.
THE second peculiarity which England, as an
individual state and a free state, exhibits in its
constitution, is the division of its legislature. That
the reader may be more sensible of the advantages
of this division, he is desired to attend to the fol-
lowing considerations.
It is, without doubt, absolutely necessary, for
securing the constitution of a state, to restrain the
executive power: but it is still more necessary to
restrain the legislative. What the former can only
do by successive steps (I mean subvert the laws),
and through a longer or shorter train of enterprises,
the latter can do in a moment. As its bare will
can give being to the laws, so its bare will can also
* This last advantage of the greatness and indivisibility of
the executive power, viz. the obligation it lays upon the great-
est men in the state, sincerely to unite in a common cause
with the people, will be more amply discussed hereafter, when
a more particular comparison between the English government
and the republican form shall be offered to the reader.
iOF ENGLANL). 187
annihilate them; and, if I may be permitted the
expression, the legislative power can change the
constitution, as God created the light.
In order, therefore, to ensure stability to the
constitution of a state, it is indispensably necessary
to restrain the legislative authority. But here we
must observe a difference between the legislative
and the executive powers. The latter may be
confined, and even is the more easily so, when
undivided : the legislative, on the contrary, in
order to its being restrained, should absolutely be
divided. For, whatever laws it may make to re-
strain itself, they never can be, relatively to it, any
thing more than simple resolutions: as those bars
which it might erect to stop its own motions must
then be within it, and rest upon it, they can be
no bars. In a word, the same kind of impossibi-
lity is found, to fix the legislative power when it is
one, which Archimedes objected against his mov-
ing the earth.*
Nor does such a division of the legislature only
render it possible for; it to be restrained, since
each of those parts into which it is divided can then
serve as a bar to the motions of the others, but
it even makes it to be actually so restrained. If
it has been divided into only two parts, it is pro-
bable that they will not in all cases unite, either
for doing or undoing :-if it has been divided into
three parts, the chance that no changes will be
made is greatly increased. Nay more; as a kind
* He wanted a spot whereupon to fix his instruments.
188 THE CONSTITUTION
of point of honour will naturally take place be-
tween these different parts of the legislature, they
will therefore be led to offer to each other only
such propositions as will at least be plausible; and
all very prejudicial changes will thus be prevented,
as it were, before their birth.
If the legislative and executive powers differ so
greatly with regard to the necessity of their being
divided, in order to their being restrained, they
differ no less with regard to the other consequences
arising from such division.
The division of the executive power necessarily
introduces actual oppositions, even violent ones,
between the different parts into which it has been
divided; and that part which in the issue suc-
ceeds so far as to absorb, and unite in itself, all
the others, immediately sets itself above the
laws. But those oppositions which take place,
and which the public good requires should
take place, between the different parts of the
legislature, are never any thing more than oppo-
sitions between contrary opinions and intentions;
all is transacted in the regions of the understand-
ing ; and the only contention that arises is wholly
carried on with those inoffensive weapons, assents
and dissents, ayes and noes. *
Besides, when one of these parts of the legis-
lature is so successful as to engage the others to
adopt its proposition, the result is, that a law
takes place which has in it a great probability of
being good: when it happens to be defeated, and
OF ENGLAND. . . 189
sees its propositions rejected, the worst that can
result from it is, that a law is not made at that
time; and the loss which the state suffers thereby,
reaches no farther than the temporary setting-aside
of some more or less useful speculation.
In a word, the result of a division of the execu-
tive power is either a more or less speedy establish-
ment of the right of the strongest, or a continued
state of war: *—that of a division of the legis-
lative power, is either truth, or general tran-
quillity.
The following maxims will therefore be ad-
mitted. That the laws of a state may be perma-
ment, it is requisite that the legislative power
should be divided;—that they may have weight,
and continue in force, it is necessary that the exe-
cutive power should be one.
If the reader should conceive any doubt as to
the truth of the above observations, let him cast
his eyes on the history of the proceedings of the
English legislature down to our times, and he will
readily find a proof of them. He would be sur-
prised to see how little variation there has been
in the political laws of this country, especially
* Every one knows the frequent hostilities that took place
between the Roman senate and the tribunes. In Sweden
there have been continual contentions between the king and
the senate, in which they have overpowered each other by
turns. And in England, when the executive power became
double, by the king allowing the parliament to have a perpe-
tual and independent existence, a civil war almost immediately
followed. -
I90 THE CONSTITUTION
during the last hundred years: though, it is most
important to observe, the legislature has been as
it were in a continual state of action, and (no dis-
passionate man will deny) has generally promoted
the public good. Nay, if we except the act
passed under William III., by which it had been
enacted, that parliaments should sit no longer
than three years, and which was repealed by a
subsequent act, under George I. which allowed
them to sit for seven years, we shall not find that
any law, which may really be called constitutional,
and which has been enacted since the Restoration,
has been changed afterwards.
Now, if we compare this steadiness of the
English government with the continual subversions
of the constitutional laws of some ancient republics,
with the imprudence of some of the laws passed
in their assemblies,” and with the still greater in-
considerateness with which they sometimes re-
pealed the most salutary regulations, as it were, the
day after they had been enacted,—if we call to mind
the extraordinary means to which the legislature of
those republics, at times sensible how its very power
was prejudicial to itself and to the state, was obliged
to have recourse, in order, if possible, to tie its own
hands,f we shall remain convinced of the great
* The Athenians, among other laws, had enacted one to
forbid the application of a certain part of the public revenues
to any other use than the expenses of the theatres and public
shows.
t In some ancient republics, when the legislature wished
OF ENGLAND. 191
advantages which attend the constitution of the
English legislature.* 4.
Nor is this division of the English legislature
accompanied (which is indeed a very fortunate
circumstance) by any actual division of the nation;
each constituent part of it possesses strength suf-
ficient to ensure respect to its resolutions; yet no
real division has been made of the forces of the
state. Only a greater proportional share of all
those distinctions which are calculated to gain the
reverence of the people, has been allotted to those
parts of the legislature which could not possess
their confidence in so high a degree as the others;
and the inequalities in point of real strength be-
tween them have been made up by the magic of
dignity. -
Thus, the king, who alone forms one part of
the legislature, has on his side the majesty of the
kingly title: the two houses are, in appearance,
to render a certain law permanent, and at the same time mis-
trusted their own future wisdom, they added a clause to it,
which made it death to propose the revocation of it. Those
who afterwards thought such revocation necessary to the pub-
lic welfare, relying on the mercy of the people, appeared in
the public assembly with a halter about their necks.
* We shall perhaps have occasion to observe hereafter,
that the true cause of the equability of the operations of the
English legislature is the opposition that happily takes place
between the different views and interests of the several bodies
that compose it; a consideration this, without which all politi-
cal inquiries are no more than airy speculations, and the only
one that can lead to useful practical conclusions.
193 THE CONSTITUTION
no more than councils entirely dependent on him;
they are bound to follow his person; they only
meet, as it seems, to advise him; and never ad-
dress him but in the most solemn and respectful
manner. '
As the nobles, who form the second order of the
legislature, bear, in point both of real weight and
numbers, no proportion to the body of the people,”
they have received, as a compensation, the advan-
tage of personal honours, and of an hereditary title.
Besides, the established ceremonial gives to their
assembly a great pre-eminence over that of the re
presentatives of the people. They are the upper
house, and the others are the lower house. They
are in a more special manner considered as the
king’s council; and it is in the place where they
assemble that his throne is placed.
When the king comes to the parliament, the
commons are sent for, and make their appearance
at the bar of the house of lords. It is moreover
* It is for want of having duly considered this subject, that
M. Rousseau exclaims somewhere against those who, when they
speak of the general estates of France, “dare to call the peo-
“ple the third estate.” At Rome, where all the order we
mention was inverted,—where the fasces were laid at the feet
of the people, and where the tribunes, whose function, like
that of the king of England, was to oppose the establishment
of new laws, were only a subordinate kind of magistracy,
many disorders followed. In Sweden, and in Scotland (before
the union), faults of another kind prevailed: in the former
kingdom, for instance, an overgrown body of two thousand
nobles frequently overruled both king and people.
OF ENGLAND. 193
before the lords, as before their judges, that the
commons bring their impeachments. When, after
passing a bill in their own house, they send it to
the lords to desire their concurrence, they always
order a number of their own members to accom-
pany it:* whereas the lords send down their bills
to them, only by some of the assistants of their
house.f. When the nature of the alterations which
one of the two houses may wish to make in a bill
sent to it by the other, renders a conference be-
tween them necessary, the deputies of the commons
to the committee, which is then formed of mem-
bers of both houses, are to remain uncovered.
Lastly, those bills which (in whichever of the two
houses they have originated) have been agreed to
by both, must be deposited in the house of lords,
there to remain till the royal pleasure is signified.
Besides, the lords are members of the legislature
by virtue of a right inherent in their persons; and
they are supposed to sit in parliament on their
own account, and for the support of their own
interest. In consequence of this, they have the
privilege of giving their votes by provy; £ and,
* The speaker of the house of lords must come down from
the woolpack to receive the bills which the members of the
commons bring to their house.
t The twelve judges and the masters in chancery. There
is also a ceremonial established with regard to the manner
and marks of respect, with which those two of them, who are
sent with a bill to the commons, are to deliver it.
f The commons have not that privilege, because they are
themselves proxies for the people.—See Coke's Inst. 4. p. 41.
O
194 THE constitution
when any of them dissent from the resolutions of
their house, they may enter a protest against
them, containing the reasons of their particular
opinion. In a word, as this part of the legisla-
ture is destined frequently to balance the power of
the people, what it could not receive in real strength
it has received in outward splendour and great-
ness; so that, when it cannot resist by its weight,
it overawes by its apparent magnitude.
In fine, as these various prerogatives, by which
the component parts of the legislature are thus
made to balance each other, are all intimately
connected with the fortune of the state, and
flourish and decay according to the vicissitudes of
public prosperity or adversity, it thence follows,
that, though differences of opinion may sometimes
take place between those parts, there can scarcely
arise any when the general welfare is really in
question. And when, to resolve the doubts that
may arise on political speculations of this kind, we
cast our eyes on the debates of the two houses for
a long succession of years, and see the nature of
the laws which have been proposed, of those
which have passed, and of those which have been
rejected, as well as of the arguments that have
been urged on both sides, we shall remain con-
vinced of the goodness of the principles on which
the English legislature is formed.
OF ENGLANDs, 19ér
CHAPTER IV. . t . . . . . f
*. {{*} . . . . . . .'; , . . . . . . . .
A third Advantage peculiar to the English Goº,
vernment.—The Business of proposing: Laws,
lodged in the Hands of the People. . . . ...,...,
A THIRD circumstance, which f propose tº
show to be peculiar to the English government, is:
the manner in which the respective offices of the
three component parts of the legislature have beeff
divided, and allotted to each of them. *
In most of the ancient free states, the share of
the people in the business of legislation was to ap-
prove or reject the propositions which were made
to them, and to give the final sanction to the laws.
The function of those persons (or in general those
bodies), who were intrusted with the executive.
power, was to prepare and frame the laws, and
then to propose them to the people: and, in a
word, they possessed that branch of the legislative
power which may be called the initiative; that is,
the prerogative of putting that powerinaction.* .
This initiative, or exclusive right of proposing
* This power of previously considering and approving such
laws as were afterwards to be propounded to the people, was,
in the first times of the Roman republic, constantly exercised
by the senate : laws were made, popul; jussu, er auctoritate
senatiºs. Even in cases of elections, the previous approbation
and auctoritas of the senate, with regard to those persons who
were offered to the suffrages of the people, were required. Tum
O 2. $.
196 THE CONSTITUTION
in legislative assemblies, attributed to the magi-
strates, is indeed very useful, and perhaps even
* necessary, in states of a republican form, for
giving a permanence to the laws, as well as for
preventing the disorders and struggles for power
which have been mentioned before; but, upon
examination, we shall find that this expedient is
attended with inconveniences of little less magni-
stude than the evils it is meant to remedy.
These magistrates, or bodies, at first indeed
apply frequently to the legislature for a grant of
such branches of power as they dare not of them-
selves assume, or for the removal of such obstacles
to their growing authority as they do not yet think
it safe for them peremptorily to set aside. But
when their authority has at length gained a suffi-
enim non gerebat is magistratum qui ceperat si patres auctores
won erant facti. Cic. pro Plancio, 3.
At Venice the senate also exercises powers of the same
kind, with regard to the grand council or assembly of the no-
bles.* In the canton of Bern, all propositions must be dis-
cussed in the little council, which is composed of twenty-seven
members, before they are laid before the council of the two
hundred, in whom resides the sovereignty of the whole canton.
And, in Geneva, the law is, “that nothing shall be treated
“ in the general council or assembly of the citizens, which has
** not been previously treated and approved in the council of
“ the two hundred; and that nothing shall be treated in the
* two hundred which has not been previously treated and ap-
“ proved in the council of the twenty-five.
* This and the following remarks are no longer applicable
to the countries in question, as great changes have been made
in their respective governments.--EDIT.
\ OF ENGLAND. 197
cient degree of extent and stability, as farther
manifestations of the will of the legislature could
then only create obstructions to the exercise of
their power, they begin to consider the legislature
as an enemy whom they must take great care never
to rouse. They consequently convene the assem-
bly of the people as seldom as they can. When
they do it, they carefully avoid proposing any
thing favourable to public liberty. They soon
even entirely cease to convene the assembly at alk:
and the people, after thus losing the power of le-
gally asserting their rights, are exposed to that
which is the highest degree of political ruin, the
loss of even the remembrance of them, unless some
direct means are found, by which they may from
time to time give life to their dormant privileges;
means which may be found, and succeed pretty
well in small states, where provisions can more
easily be made to answer their intended ends;.
but, in states of considerable extent, have always
been found, in the event, to give rise to disorders
of the same kind with those which were at first
intended to be prevented.
But as the capital principle of the English con-
stitution totally differs from that which forms the
basis of republican governments, so it is capable
of procuring to the people advantages that are to
be found unattainable in the latter. It is the peo-
ple in England, or at least those who represent
them, who possess the initiative in legislation
that is to say, who perform the office of framing
ºb%8 THE CONSTITUTION
“laws, and proposing them. And among the many
circumstances in, the English government, which
would appear entirely new to the politicians of
antiquity, that of seeing the person intrusted with
the executive power bear that share in legislation
which they looked upon as being necessarily the
lot of the people, and the people enjoy that which
...they thought the indispensable office of its magis-
trates, would not certainly be the least occasion
of their surprise.
I foresee that it will be objected, that, as the
sking of England has the pc ºyer of dissolving, and
even of not calling parliaments, he is hereby pos-
sessed of a prerogative which, in fact, is the same
with that which I have just now represented as
being so dangerous.
To this I answer, that all circumstances ought
to be combined. Doubtless, if the crown had
been under no kind of dependence whatever on
the people, it would long since have freed itself
from the obligation of calling their representatives
together; and the British parliament, bike the na-
tional assemblies of several other kingdoms, would
most likely have no existence now, except in his-
tory.
But, as we have above seen, the necessities of
the state, and the wants of the sovereign himself,
put him under a necessity of having frequent re-
course to his parliament; and then the difference
may be seen between the prerogative of not call-
ing an assembly, when powerful causes never,
OF ENGLAND. 199
theless render such a measure necessary, and the
exclusive right, when an assembly is convened,
of proposing laws to it.
In the latter case, though a prince, let us even
suppose, in order to save appearances, might con-
descend to mention any thing besides his own
wants, it would be at most to propose the giving
up of some branch of his prerogative upon which he
set no value, or to reform such abuses as his incli.
nation does not lead him to imitate; but he would
be very careful not to touch any points which
might materially affect his authority. _-
Besides, as all his concessions would be madé,
or appear to be made, of his own motion, and
would in some measure seem to spring from the
activity of his zeal for the public welfare, all that
he might offer, though in fact ever so inconsider-
able, would be represented by him as grants of the
most important nature, and for which he expects
the highest gratitude. Lastly, it would also be his
province to make restrictions and exceptions to
laws thus proposed by himself; he would also be
the person who would choose the words to express
them, and it would not be reasonable to expect
that he would give himself any great trouble to
avoid all ambiguity.*
* In the beginning of the existenee of the house of com-
mons, bills were presented to the king under the form of peti-
tions. Those to which the king assented were registered
among the rolls of parliament, with his answers to them; and
at the end of each parliament the judges formed them into
200 THE CONSTITUTION
But the parliament of England is not, as we
said before, bound down to wait passively and in
silence for such laws as the executive power may
condescend to propose to them. At the opening
of every session, they of themselves take into their
hands the great book of the state; they open all
the pages, and examine every article.
When they have discovered abuses, they pro-
ceed to inquire into their causes:—when these
abuses arise from an open disregard of the laws,
they endeavour to strengthen them; when they
proceed from their insufficiency, they remedy the
evil by additional provisions.” *
statutes. Several abuses having crept into that method of
proceeding, it was ordained that the judges should in future
make the statute before the end of every session. Lastly, as
even that became, in process of time, insufficient, the present
method of framing bills was established: that is to say, both
Thouses now frame the statutes in the very form and words in
which they are to stand when they have received the royal
aSSent.
* No popular assembly ever enjoyed the privilege of start-
ing, canvassing, and proposing new matter, to such a degree
As the English commons. In France, when their General
Estates were allowed to sit, their remonstrances were little
regarded; and still less regard could the particular Estates of
the provinces expect. In Sweden, the power of proposing
new subjects was lodged in an assembly called the secret com-
*mittee, composed of nobles, and a few of the clergy; and is
now possessed by the king. In Scotland, until the Union,
all propositions to be laid before the parliament were to be
framed by the persons called the lords of the articles. In
regard to Ireland,t all bills must be prepared by the king in
*—
yº
f Before the Union in 1801.
OF ENGLAND. 201
Nor do they proceed with less regularity and
freedom, in regard to that important object, sub-
sidies. They are to be the sole judges of the
quantity of them, as well as of the ways and
means of raising them; and they need not come
to any resolution with regard to them till they see
the safety of the subject completely provided for.
In a word, the making of laws is not, in such an
arrangement of things, a gratuitoils contract, in
which the people are to take just what is given
them, and as it is given them :—it is a contract,
in which they buy and pay, and in which they
themselves settle the different conditions, and fur-
nish the words to express them.
The English parliament have given a still greater
extent to their advantages on so important a sub-
ject. They have not only secured to themselves a
right of proposing laws and remedies, but they
have also prevailed on the executive power to re-
nounce all claim to do the same. It is even a con-
stant rule, that neither the king nor his privy
his privy council, and are to be laid before the parliament by
the lord-lieutenant, for their assent or dissent: only they are
allowed to discuss, among them, what they call heads of a
bill, which the lord-lieutenant is desired afterwards to transmit
to the king, who selects out of them what clauses he thinks
proper, or sets the whole aside; and is not expected to give,
at any time, a precise answer to them. And, in republican
governments, magistrates are never at rest till they have en-
tirely secured to themselves the important privilege of propo-
sing: nor does this follow merely from their ambition; it is
also the consequence of the situation they are in, from the
principles of that mode of government.
202 THE CONSTITUTION
council can make any amendments in the bills
preferred by the two houses; but the king is merely
to accept or reject them; a provision this, which,
if we pay a little attention to the subject, we shall
find to have been also necessary for completely se-
curing the freedom and regularity of the parlia-
mentary deliberations.”
I indeed confess, that it seems very natural,
in the modelling of a state, to intrust this very
important office of framing laws to those persons
who may be supposed to have before acquired ex-
perience and wisdom in the management of public
affairs. But events have unfortunately demon-
strated, that public employments and power im-
prove the understanding of men in a less degree
than they pervert their views; and it has been
found in the issue, that the effect of a regulation
* The king, indeed, at times, sends messages to either
house; and nobody, I think, can wish that no means of inter-
course should exist between him and his parliament. But
these messages are always expressed in very general words:
they are only made to desire the house to take certain subjects
into their consideration : no particular articles or clauses are
expressed; the commons are not to declare, at any settled
time, a solemn acceptance or rejection of the proposition
made by the king; and, in short, the house follow the same
mode of proceeding, with respect to such messages, as they
usually do in regard to petitions presented by private indivi-
duals. Some member makes a motion upon the subject ex-
pressed in the king's message: a bill is framed in the usual
way: it may be dropped at every stage of it; and it is never
, the proposal of the crown, but the motions of some of their
own members, which the house discuss, and finally accept or
reject.
OF 15.NGLAND. 203
which, at first sight, seems so perfectly consonant
with prudence, is to confine the people to a mere
passive and defensive share in the legislation, and
to deliver them up to the continual enterprises of
those who, at the same time that they are under
the greatest temptations to deceive them, possess
the most powerful means of effecting it.
If we cast our eyes on the history of the ancient
governments, in those times when the persons in-
trusted with the executive power were still in a
state of dependence on the legislature, and conse-
quently were frequently obliged to have recourse
to it, we shall see almost continual instances of
selfish and insidious laws proposed by them to the
assemblies of the people.
And those men, in whose wisdom the law had
at first placed so much confidence, became, in the
issue, so lost to all sense of shame and duty, that
when arguments were found to be no longer suffi-
cient, they had recourse to force; the legislative
assemblies became so many fields of battle, and
their power a real calamity.
I know very well, however, that there are other
important circumstances besides those I have just
mentioned, which would prevent disorders of this
kind from taking place in England.” But, on the
other hand, let us call to mind that the person who,
* I particularly mean here the circumstance of the people
having entirely delegated their power to their representatives;
the consequences of which institution will be discussed in the
next chapter.
204 THE constituTION
in England, is invested with the executive autho-
rity, unites in himself the whole public power and
majesty. Let us represent to ourselves the great
and sole magistrate of the nation pressing the ac-
ceptance of those laws which he had proposed,
with a vehemence suited to the usual importance
of his designs, with the warmth of monarchical
pride, which must meet with no refusal, and exert-
ing for that purpose all his immense resources.
It was therefore a matter of indispensable ne-
cessity, that things should be settled in England in
the manner they are. As the moving springs of
the executive power are, in the hands of the king,
a kind of sacred depositum, so are those of the
legislative power in the hands of the two houses.
The king must abstain from touching them, in the
same manner as all the subjects of the kingdom are
bound to submit to his prerogatives. When he
sits in parliament, he has left, we may say, his
executive power without doors, and can only as-
sent or dissent. If the crown had been allowed to
take an active part in the business of making laws,
it would soon have rendered useless the other
branches of the legislature.
OF ENGLAND. 205
CHAPTER V.
In which an Inquiry is made, whether it would
be an Advantage to public Liberty, that the
Laws should be enacted by the Votes of the
People at large.
BUT it will be said, whatever may be the wis-
dom of the English laws, how great soever their
precautions may be with regard to the safety of
the individual; the people, as they do not them-
selves expressly enact them, cannot be looked upon
as a free people. The author of the Social Con-
tract carries this opinion even farther: he says,
that, “ though the people of England think they
“ are free, they are much mistaken; they are so
* only during the election of members for parlia-
“ment: as soon as these are elected, the people are
“slaves—they are nothing.”
Before I answer this objection, I shall observe
that the word liberty is one of those which have
been most misunderstood or misapplied.
Thus, at Rome, where that class of citizens who
were really masters of the state, were sensible that
a lawful regular authority, once trusted to a single
ruler, would put an end to their tyranny, they
taught the people to believe, that, provided those
who exercised a military power over them, and
* See M. Rousseau's Social Contract, chap. xv.
206 . THE, CONSTITUTION
overwhelmed them with insults, went by the
names of consules, dictatores, partricii, nobiles,
in a word, by any other appellation than that hor-
rid one of rea, they were free, and that such a
valuable situation must be preferred at the price
of every calamity.
In the same manner, certain writers of the pre-
sent age, misled by their inconsiderate admiration
of the governments of ancient times, and perhaps
also by a desire of presenting lively contrasts to
what they call the degenerate manners of our mo-
dern times, have cried up the governments of Sparta
and Rome, as the only ones fit for us to imitate.
In their opinions, the only proper employment of
a free citizen is, to be either incessantly assembled
in the forum, or preparing for war. Being va-
liant, inured to hardships, inflamed with an ar-
dent love of one's country, which is, after all, no-
thing more than an ardent desire of injuring all
mankind for the sake of that society of which we
are members, and with an ardent love of glory,
which is likewise nothing more than an ardent
desire of committing slaughter, in order to make
afterwards a boast of it, have appeared to these
writers to be the only social qualifications worthy
of our esteem, and of the encouragement of law-
givers.” And while, in order to support such
* I have used all the above expressions in the same sense
in which they were used in the ancient commonwealths, and
still are by most of the writers who describe their govern-
Inents
\,
OF ENGLAND. 207.
opinions, they have used a profusion of exagge-
rated expressions without any distinct meaning,
and perpetually repeated, though without defining
them, the words dastardliness, corruption, great-
ness of soul, and virtue, they have not once thought
of telling us the only thing that was worth our
knowing, which is, whether men were happy under
those governments which they have so much ex-
horted us to imitate.
Nor, while they have thus misapprehended the
only rational design of civil societies, have they
better understood the true end of the particular
institutions by which they were to be regulated.
They were satisfied when they saw the few who
really governed every thing in the state, at times
perform the illusory ceremony of assembling the
body of the people, that they might appear to con-
sult them; and the mere giving of votes, under
any disadvantage in the manner of giving them,
and how much soever the law might afterwards
be neglected that was thus pretended to have been
made in common, has appeared to them to be
liberty.
But those writers are seemingly in the right:
a man who contributes by his vote to the passing
of a law, has himself made the law; in obeying it,
he obeys himself;-he therefore is free. A play
on words, and nothing more. The individual who
has voted in a popular legislative assembly has not
made the law that has passed in it; he has only
contributed, or seemed to contribute, towards en-
208 THE CONSTITUTION
acting it, for his thousandth, or even ten thou-
sandth, share; he has had no opportunity of mak-
ing his objections to the proposed law, or of can-
vassing it or of proposing restrictions to it; and he
has only been allowed to express his assent or
dissent. When a law has passed agreeably to his
vote, it is not as a consequence of this his vote
that his will happens to take place; it is because
a number of other men have accidentally thrown
themselves on the same side with him :—when a
law contrary to his intentions is enacted, he must
nevertheless submit to it.
This is not all; for though we should suppose
that to give a vote is the essential constituent of
liberty, yet such liberty could only be said to last
for a single moment, after which it becomes neces-
sary to trust entirely to the discretion of other
persons, that is, according, to this doctrine, to be
no longer free. It becomes necessary, for instance,
for the citizen who has given his vote, to rely on
the honesty of those who collect the suffrages; and
more than once have false declarations been made
of them.
The citizen must also trust to other persons for
the execution of those things which have been re-
solved upon in common: and when the assembly
shall have separated, and he shall find himself
alone, in the presence of the men who are invested
with the public power, of the consuls, for instance,
or of the dictator, he will have but little security
for the continuance of his liberty, if he has only
OF ENGLAND. 209
that of having contributed by his suffrage towards
enacting a law which they are determined to neg-
lect.
What then is liberty?—Liberty, I would ann
swer, so far as it is possible for it to exist in:a:
society of beings whose interests are almost pers
petually opposed to each other, consists in this,
that every man, while he respects the persons of
others, and allows them quietly to enjoy the pra-
duce of their industry, be certain himself like-
wise to enjoy the produce of his own industry,
and that his person be also secure. But to con-
tribute by one's suffrage to procure these advan-
tages to the community,+to have a share in esta-
blishing that order, that general arrangement of
things by means of which an individual, lost as it
were in the crowd, is effectually protected;—to
lay down the rules to be observed by those who,
being invested with a considerable power, are
charged with the defence of individuals, and pro-
vide that they should never transgress them ;-
these are functions, are acts of government, but
not constituent parts of liberty.
In a word: To concur by one's suffrage in
enacting laws, is to enjoy a share, whatever it
may be, of power: to live in a state where the
laws are equal for all, and sure to be executed
(whatever may be the means by which these ad-
vantages are attained), is to be free.
Be it so: we grant that to give one's suffrage is
not liberty itself, but only a mean of procuring it,
P
210 THE CONSTITUTION
and a mean too which may degenerate to mere
form; we grant also, that other expedients might
be found for that purpose; and that for a man to
decide that a state with whose government and in-
terior administration he is unacquainted, is a state
in which the people are slaves, are nothing,
merely because the comitia of ancient Rome are
no longer to be met with in it, is a somewhat pre-
cipitate decision. Yet many, perhaps, will con-
tinue to think that liberty would be much more
complete, if the people at large were expressly
called upon to give their opinion concerning the
particular provisions by which it is to be secured,
and that the English laws, for instance, if they
were made by the suffrages of all, would be wiser,
more equitable, and, above all, more likely to be
executed. To this objection, which is certainly
specious, I shall endeavour to give an answer.
If, in the first formation of a civil society, the
only care to be taken was that of establishing,
once for all, the several duties which every indi-
vidual owes to others and to the state;—if those
who are intrusted with the care of procuring the
performance of these duties, had neither any am-
bition, nor any other private passions, which such
employment might put in motion, and furnish the
means of gratifying :—in a word, if, looking upon
their function as a mere task of duty, they were
never tempted to deviate from the intentions of
those who had appointed them:—I confess that,
in such a case, there might be no inconvenience in
* OF ENGLAND, 2II
allowing every individual to have a share in the
government of the community of which he is a
member; or rather, I ought to say, in such a
society, and among such beings, there would be
no occasion for any government.
But experience teaches us that many more pre-
cautions, indeed, are necessary to oblige men to
be just towards each other; nay, the very first ex-
pedients that may be expected to conduce to such
an end, supply the most fruitful source of the evils
which are proposed to be prevented. Those laws
which were intended to be equal for all, are soon
warped to the private convenience of those who
have been made the administrators of them : in-
stituted at first for the protection of all, they soon
are made only to defend the usurpations of a few ;
and, as the people continue to respect them, while
those to whose guardianship they were intrusted
make little account of them, they at length have
no other effect than that of supplying the want of
real strength in those few who have contrived to
place themselves at the head of the community,
and of rendering regular and free from danger the
tyranny of the smaller number over the greater.
To remedy, therefore, evils which thus have a
tendency to result from the very nature of things,
—to oblige those who are in a manner masters of
the law, to conform themselves to it,--to render
ineffectual the silent, powerful, and ever-active
conspiracy of those who govern, requires a degree
P 2
212 THE goNSTITUTION
gf knowledge, and a spirit of perseverance, whigh
are not to be expected from the multifude. *
The greater part of those who compose this
multitude, taken up with the care of, providing
for their subsistence, have neither sufficient lei-
sure, nor even, in consequence of their more
imperfect education, the degree of information
requisite for functions of this kind, Nature, be-
sides, wh9, is sparing of her gifts, has bestowed
upon ºnly a few men an understanding-capable of
the complicated researches of legislation: and, as
a sick man trusts to his physician, a client to his
lawyer, so the greater number of the citizens
must trust to those who have more abilities than
themselves for the execution of things, which, at
the same time that they so materially concern
them, require so many qualifications to perform
them with any degree of sufficiency.
To thºse considerations, of themselves so ma-
terial, another must be added, which is, if pos-
sible, ºf still greater weight. This is, that the
multitude, in consequence of their being a mul-
tityde, are incapable of coming to any mature
resolution.
Those who compose a popular assembly are
not actuated, in the course of their deliberations,
by any clear and precise views of present or posi-
tive personal interest. As they see themselves
lost, as it were, in the crowd of those who are
called upon to exercise the same function with t
themselves—as they know that their individual
of ENGLAND. 21%
votes will make no change in the public resolu-
tions, and that, to whatever side they may incline,
the general result will nevertheless be the same;—
they do not undertake to inquire how far the
things proposed to them agree with the whole of
the laws already in being, or with the present
circumstances of the state, because men will not
enter upon a laborious task, when they know that
it can scarcely answer any purpose.
It is, however, with dispositions of this kind,
and each relying on all, that the assembly of the
people meet. But, as very few among them have
previously considered the subjects on which they
are called upon to determine, very few carry along
with them any opinion or inclination, or at least
any inclination of their own, and to which they
are resolved to adhere. As, however, it is neces-
sary at last to come to some resolution, the major
part of them are determined by reasons which
they would blush to pay any regard to on much
less serious occasions. An unusual sight, a change
of the ordinary place of the assembly, a sudden
disturbance, a rumour, are, amidst the general
want of a spirit of decision, the sufficiens ratio of
the determination of the greatest part; * and from
this assemblage of separate wills, thus formed
* Every one knows of how much importance it was, in the
Roman commonwealth, to assemble the people in one place
rather than another. In order to change entirely the nature
of their resolutions, it was often sufficient to hide from them,
or let them see, the Capitol.
314, THE CONSTITUTION
hastily, and without reflection, a general will re-
sults, which is also void of reflection.
If, amidst these disadvantages, the assembly
were left to themselves, and nobody had an in-
terest to lead them into error, the evil, though
very great, would not, however, be extreme, be-
cause such an assembly never being called upon
but to determine upon an affirmative or negative
(that is, only having two cases to choose between),
there would be an equal chance of their choosing
either; and it might be hoped that at every other
turn they would take the right side.
But the combination of those who share either
in the actual exercise of the public power, or in
its advantages, do not thus allow themselves to
sit down in inaction. They wake, while the peo-
ple sleep. Entirely taken up with the thoughts
of their own power, they live but to increase it.
Deeply versed in the management of public busi-
mess, they see at once all the possible consequences
of measures. And, as they have the exclusive di-
rection of the springs of government, they give
rise, at their pleasure, to every incident that may
'influence the minds of a multitude who are not on
their guard, and who wait for some event or other
that may finally determine them.
It is they who convene the assembly, and dis-
solve it : it is they who offer propositions, and
make speeches to it. Ever active in turning to
their advantage every circumstance that happens,
they equally avail themselves of the tractableness
OF ENGLAND, . 215
of the people during public calamities, and its
heedlessness in times of prosperity. When things.
take a different turn from what they expected,
they dismiss the assembly. By presenting to it
many propositions at once, and which are to be
voted upon in the lump, they hide what is destined
to promote their own private views, or give a co-
lour to it, by joining it with things which they
know will take hold of the mind of the people.*
By presenting, in their speeches, arguments and
facts which men have no time to examine, they
lead the people into gross, and yet decisive errors:
and the common-places of rhetoric, supported by
their personal influence, ever enabled them to draw
to their side the majority of votes.
On the other hand, the few (for there are, after
all, some) who, having meditated on the proposed
question, see the consequences of the decisive step
which is just going to be taken, being lost in the
crowd, cannot make their feeble voices to be heard
amidst the universal noise and confusion. They
* It was thus the senate at Rome assumed to itself the
power of laying taxes. They promised, in the time of the
war against the Veientes, to give pay to such citizens as would
enlist; and to that end they established a tribute. The peo-
ple, solely taken up with the idea of not going to war at their
own expense, were transported with so much joy, that they
crowded at the door of the senate, and laying hold of the
hands of the senators, called them their fathers—Nihil un-
quam, acceptum a plebe tanto gaudio traditur: concursum ita-
que ad curiam esse, prehensatasque ereuntium manus, patres
were appellatos, &c. See Tit. Liv, book iv.
216 THE CONSTITUTION
have it. no more in their power to stop the general
motion, than a man in the midst of an army, on a
march, has it in his power to avoid marching.
In the mean time, the people are giving the
suffrages; a majority appears in favour of the
proposal; it is finally proclaimed as the general
will of all; and it is at bottom nothing more than
the effect of the artifices of a few designing men,
who are exulting among themselves.”
* I might confirm all these things by numberless instances
from ancient history; but if I may be allowed, in this case, to
draw examples from my own country, et celebrare domestica
..facta, I shall relate facts which will be no less to the purpose.
—In Geneva, in the year 1707, a law was enacted, that a
general assembly of the people should be held, every five
years, to treat of the affairs of the republic: but the magis-
trates, who dreaded those assemblies, soon obtained from the
citizens themselves the repeal of the law; and the first reso-
lution of the people, in the first of those periodical assemblies
(in the year 1712), was to abolish them for ever. The pro-
found secrecy with which the magistrates prepared their pro-
posal to the citizens on that subject, and the sudden manner
in which the latter, when assembled, were acquainted with it,
and made to give their votes upon it, have indeed accounted
but imperfectly for this strange determination of the people;
and the consternation which seized the whole assembly when
the result of the suffrages was proclaimed, has confirmed many
in the opinion that some unfair means had been used. The
whole transaction has been kept secret to this day; but the
common opinion on this subject, which has been adopted by
M. Rousseau, in his Lettres de la Montagne, is this : The
magistrates, it is said, had privately instructed the secretaries
in whose ears the citizens were to whisper the suffrages:
when a citizen said approbation, he was understood to approve
the proposal of the magistrates: when he said rejection, he
was understood to reject the periodical assemblies.
OF ENGLAND. 217
In a word, those who are acquainted with re-
publican governments, and, in general, who know
the manner in which business is transacted in nu-
merous assemblies, will not scruple to affirm that
the few who are united, who take an active part
in public affairs, and whose station makes them
In the year 1738, the citizens enacted at once into laws a
small code of forty-four articles, by one single line of which
they bound themselves for ever to elect the four syndics (the
chiefs of the council of the twenty-five) out of the members of
the same council; whereas they were before free in their
choice. They at that time suffered also the word approved to
be slipped into the law mentioned in the note, p. 196, which
was transcribed from a former code; the consequence of
which was to render-the magistrates absolute masters of the
legislature.
The citizens had thus been successively stripped of all their
political rights, and had little more left to them than the plea-
sure of being called a sovereign assembly, when they met (which
idea, it must be confessed, preserved among them a spirit of
resistance which it would have been dangerous for the magis-
trates to have provoked too far), and the power of at least
refusing to elect the four syndics. Upon this privilege the
citizens, a few years ago (A. D. 1765 to 1768), made their
last stand: and a singular conjunction of circumstances having
happened at the same time, to raise and preserve among them,
during three years, an uncommon spirit of union and per-
severance, they in the issue succeeded, in a great measure,
to repair the injuries which they had been made to do to
themselves for two hundred years and more, (A total change
has since that time been effected by foreign forces, in the go-
vernment of the republic (A. D. 1782), upon which this is not a
proper place to make any observation.)
[Since the year 1789, farther changes have been made in
the government of Geneva; and it is now a département of the
extensive and increasing empire of France.—EDIT.]
$218 THE CONSTITUTION
conspicuous, have such an advantage over the
many who turn their eyes towards them, and are
without union among themselves, that, even with
a middling degree of skill, they can at all times
direct, at their pleasure, the general resolutions;
that, as a consequence of the very nature of
things, there is no proposal, however absurd, to
which a numerous assembly of men may not, at
one time or other, be brought to assent, and
that laws would be wiser, and more likely to
procure the advantage of all, if they were to be
made by drawing lots, or casting dice, than by
the suffrages of a multitude.
CHAPTER VI.
Advantages that accrue to the People from
appointing Representatives.
How then shall the people remedy the disad-
vantages that necessarily attend their situation?
How shall they resist the phalanx of those who
have engrossed to themselves all the honours, dig-
nities, and power in the state 2
It will be by employing for their defence the
same means by which their adversaries carry on
their attack:—it will be by using the same wea-
pons as they do, the same order, the same kind
of discipline.
OF ENGLAND, 219
They are a small number, and consequently
easily united ;-a small number must therefore
be opposed to them, that a like union may also
be obtained. It is because they are a small num-
ber, that they can deliberate on every occur-
rence, and never come to any resolutions but such
as are maturely weighed;—it is because they are
few, that they can have forms which continually
serve them for general standards to resort to, ap-
proved maxims to which they invariably adhere,
and plans which they never lose sight of:—here,
therefore, I repeat it, oppose to them a small
number, and you will obtain the like advantages.
Besides, those who govern, as a farther conse-
quence of their being few, have a more consider-
able share, consequently feel a deeper concern in
the success, whatever it may be, of their enter-
prises. As they usually profess a contempt for
their adversaries, and are at all times acting an
offensive part against them, they impose on them-
selves an obligation of conquering. They, in
short, who are all alive from the most powerful
incentives, and aim at gaining new advantages,
have to do with a multitude, who, wanting only
to preserve what they already possess, are unavoid-
ably liable to long intervals of inactivity and su-
pineness. But the people, by appointing repre-
sentatives, immediately gain to their cause that
advantageous activity which they before stood in
need of, to put them on a par with their adver-
saries; and those passions become excited in their
$329 THE CONSTITUTION
defenders, by which they themselves cannot be
aëtitated. r
Exclusively charged with the care of public
liberty, the representatives of the people will be
animated by a sense of the greatness of the con-
cerns with which they are intrusted. Distin-
guished from the bulk of the nation, and forming
among themselves a separate assembly, they will
assert the rights of which they have been made
the guardians, with all that warmth which the
esprit de corps is used to inspire.* Placed on an
elevated theatre, they will endeavour to render
themselves still more conspicuous; and the arts
and ambitious activity of those who govern will
now be encountered by the vivacity and persever-
ance of opponents actuated by the love of glory.
Lastly, as the representatives of the people will
naturally be selected from among those citizens
who are most favoured by fortune, and will have
consequently much to preserve, they will, even
in the midst of quiet times, keep a watchful eye
on the motions of power. As the advantages they
possess will naturally create a kind of rivalship
between them and those who govern, the jealousy
which they will conceive against the latter will
give them an exquisite degree of sensibility on
every increase of their authority. Like those de-
.* If it had not been for an incentive of this kind, the Eng-
lish commons would not have vindicated their right of taxation
with so much vigilance as they have done, against all enter-
prises (often perhaps involuntary) of the lords.
OF. ENGLAND. . 22::
licate instruments which discover the operations
of nature, while they are yet imperceptible to our
senses, they will warn the people of those things
which of themselves they never see but when it is
too late; and their greater proportional share,
whether of real riches, or of those which lie in the
opinions of men, will make them, if I may so ex-
press myself, the barometers that will discover in
its first beginning, every tendency to a change in
the constitution.* * f.
CHAPTER VII.
The Subject continued.—The Advantages that ac-
crue to the People from their appointing Re-
presentatives are very inconsiderable, unless
they also entirely trust their Legislative Au-
thority to them.
THE observations made in the preceding chap-
ter are so obvious, that the people themselves, in
popular governments, have always been sensible
of the truth of them, and never thought it pos-
sible to remedy, by themselves alone, the dis-
advantages necessarily attending their situation.
Whenever the oppressions of their rulers have
* All the above reasoning essentially requires that the re-
presentatives of the people should be united in interests with
the people. We shall soon see that this union really prevails
in the English constitution, and may be called the master-
piece of it.
222 THE CONSTITUTION
forced them to resort to some uncommon exer-
tion of their legal powers, they have immedi-
ately put themselves under the direction of those
few men who had been instrumental in informing
and encouraging them: and when the nature of
the circumstances has required any degree of
firmness and perseverance in their conduct, they
have never been able to attain the ends they pro-
posed to themselves, except by means of the most
explicit deference to those leaders whom they had
thus appointed. t
But, as these leaders, thus hastily chosen, are
easily intimidated by the continual display which
is made before them of the terrors of power;--
as that unlimited confidence which the people
now repose in them only takes place when pub-
lic liberty is in the utmost danger, and cannot
be kept up otherwise than by an extraordinary
conjunction of circumstances, in which those
who govern seldom suffer themselves to be
caught more than once;—the people have con-
stantly sought to avail themselves of the short in-
tervals of superiority which the chance of events
had given them, for rendering durable those ad-
vantages which they knew would, of themselves,
be but transitory, and for getting some persons
appointed, whose peculiar office it may be to
protect them, and whom the constitution shall
thenceforward recognise. Thus it was that the
people of Lacedaemon obtained their ephori, and
the people of Rome their tribunes.
OF ENGLAND, 223
We grant this, will it be said; but the Roman
people never allowed their tribunes to conclude any
thing definitively ; they, on the contrary, reserved
to themselves the right of ratifying * any resolu-
tions the latter should take. This, I answer, was
the very circumstance that rendered the institu-
tion of tribunes totally ineffectual in the event.
The people—thus wanting to interfere, with their
own opinions, in the resolutions of those on whom
they had, in their wisdom, determined entirely to
rely—and endeavouring to settle with a hundred
thousand votes things which would have been set-
tled equally well by the votes of their advisers,
defeated in the issue every beneficial end of their
former provisions: and while they meant to pre-
serve an appearance of their sovereignty (a chime-
rical appearance, since it was under the direction
of others that they intended to vote), they fell back
into all those inconveniencies which we have before
mentioned.
The senators, the consuls, the dictators, and the
other great men of the republic, whom the people
were prudent enough to fear, and simple enough
to believe, continued still to mix with them, and
play off their political artifices. They continued
to make speeches to them, and still availed them-
* See Rousseau's Social Contract.
+ Valerius Maximus relates, that the tribunes of the people
having offered to propose some regulations in regard to the
price of corn, in a time of great scarcity, Scipio Nasica over-
ruled the assembly merely by saying, “Silence, Romans? I
3.24. THE CONSTITUTION
selves of their privilege of changing at their plea-
sure the place and form of the public meetings.
When they did not find it possible by such means
to direct the resolutions of the assemblies, they pre-
tended that the omens were not favourable, and
under, this pretext, or others of the same kind,
they dissolved them.* And the tribunes, when
they had succeeded so far as to effect an union
among themselves, thus were obliged to submit to
the pungent mortification of seeing those projects
which they had pursued with infinite labour, and
even through the greatest dangers, irrecoverably
defeated by the most despicable artifices.
When, at other times, they saw that a confede-
racy was carrying on with uncommon warmth
against them, and despaired of succeeding by em-
ploying expedients of the above kind, or were
afraid of diminishing their efficacy by a too fre-
quent use of them, they betook themselves to other
know better than you what is expedient for the repuplic.—
“Which words were no sooner heard by the people, than they
“ showed by a silence full of veneration, that they were more
“affected by his authority, than by the necessity of providing
“for their own subsistence.” Tacete, quaeso, Quirites / Plus
enim ego quam vos quid reipublicae expediat intelligo.—Quá
voce auditá, omnes, pleno venerationis silentio, majorem ejus
auctoritatis quam alimentorum suorum curam egerunt.
* Quid enim majus est, si de jure augurum quarimus, (says
Tully, who was himself an augur, and a senator also,) quam
posse a summis imperiis et summis potestatibus comitiatus et
concilia wel instituta dimittere wel habita rescindere? Quid
gravius, quam rem susceptam dirimi, si unus augur ALIUM (id
est, alium diem) diverit? See De Legib. lib. ii. § 12.
OF ENGLAND. 225
stratagems. They then conferred on the consuls,
by the means of a short form of words for the oc-
casion,” an absolute power over the lives of the
citizens, or even appointed a dictator. The people,
at the sight of the state masquerade which was
displayed before them, were sure to sink into a
state of consternation: and the tribunes, however.
clearly they might see through the artifice, also
trembled in their turn, when they thus beheld
themselves left without defenders.f
At other times, they brought false accusations
against the tribunes before the assembly itself; or,
by privately slandering them with the people, to-
tally deprived them of their confidence. It was
through artifices of this kind, that the people were
brought to behold, without concern, the murder
of Tiberius Gracchus, the only Roman that was
really virtuous—the only one who truly loved the
people. It was also in the same manner that
Caius, who was not deterred by his brother's fate
from pursuing the same plan of conduct, was in
the end so entirely forsaken by the people, that
nobody could be found among them who would
even lend him a horse to fly from the fury of the
* Videat consul ne quid detrimenti respublica capiat.
f “The tribunes of the people,” says Livy, who was a
great admirer of the aristocratical power, “and the people
“ themselves, durst neither lift up their eyes, nor even mutter,
“in the presence of the dictator.” Nec adversus dictatoriam
vim, aut tribuni plebis, aut insa plebs, attollere oculos, aut his-
cere, audebant. See Tit, Liv. lib. vi. § 16.
Q
296 THE CONSTITUTION
nobles; and he was at last compelled to lay violent.
hands upon himself, while he invoked the wrath of
the gods on his inconstant fellow-citizens.
At other times, they raised divisions among the
people. Formidable combinations broke out sud-
denly on the eve of important transactions; and
all moderate men avoided attending assemblies,
where they saw that all was to be tumult and
confusion.
In fine, that nothing might be wanting to the
insolence with which they treated the assemblies
of the people, they sometimes falsified the declara-
tions of the number of the votes; and once they
even went-so far as to carry off the urns into which
the citizens were te throw their suffrages.”
* The reader, with respect, to all the above observations,
may see Plutarch's, Lixes, particularly the Lives of the two
Gracchi. I must add, that I have avoided drawing any in-
stance from those assemblies in which one-half of the people
were made to arm themselves against the other. I have here
only alluded torthose times which immediately either preceded
of followed the third Punic war, as these are commonly called
the best periods of the republic.
* OF ENGLAND. 227
CHAPTER VIII.
The Subject concluded—Effects that have resulted
in the English Government, from the People's
Power being completely delegated to their Re-
presentatives. y
BUT when the people have entirely trusted their
power to a moderate number of persons, affairs im-
mediately take a widely different turn. Those who
govern are from that moment obliged to leave off
all those stratagems which had hitherto ensured
their success. ''Instead of those assemblies which
they affected to despise, and were perpetually com-
paring to storms, or to the current of the Euripus;*
and in regard to which they accordingly thought
themselves at liberty to pass over the rules of jus-
tice, they now find that they have to deal with
men who are their equals in point of education and
knowledge, and their inferiors only in point of
rank and form. They, in consequence, soon find
it necessary to adopt quite different methods; and,
* Tully makes no end of his similes on this subject. Quod
enim fretum, quem Euripum, tot motus, tantas et tam varias
habere putatis agitationes fluctuum, quantas perturbationes et
quantos aestus habet ratio comitiorum ? See Orat. pro Muraenå.
—Concio, says he in another place, quae er imperiwissimis con-
stat, &c. De Amicitiã, § 25.
Q 2
228 THE CONSTITUTION
above all, become very careful not to talk to them
any more about the sacred chickens, the white or
black days, and the Sibylline books.—As they see
their new adversaries expect to have a proper re-
gard paid to them, that single circumstance in-
spires them with it:—as they see them act in a
regular manner, observe constant rules, in a word,
proceed with form, they come to look upon them
with respect, for the very same reason which makes
them themselves to be reverenced by the people.
The representatives of the people, on the other
hand, do not fail soon to procure for themselves
every advantage that may enable them effectually
to use the powers with which they have been in-
trusted, and to adopt every rule of proceeding that
may make their resolutions to be truly the result
of reflection and deliberation. . Thus it was that
the representatives of the English nation, soon
after their first establishment, became formed into
a separate assembly: they afterwards obtained the
liberty of appointing a president:-soon after, they
insisted upon their being consulted on the last form
of the acts to which they had given rise :—lastly,
they insisted on thenceforth framing them them-
selves. ti ji: . . . . . .
In order to prevent any possibility of surprise in
the course of their proceedings,"it is a settled rule
with them, that every proposition, or bill, must
be read three times, at different prefixed days.”
* On some occasions, however, a bill of urgent necessity
has been read three times in one day.—EDIT.
OF ENGLAND. 229
before it can receive a final sanction : and before
each reading of the bill, as well as at its first in-
troduction, an express resolution must be taken to
continue it under consideration. If the bill be
rejected in any one of those several operations, it
must be dropped, and cannot be proposed again
during the same session.*
The commons have been, above all, jealous of
the freedom of speech in their assembly. They
have expressly stipulated, as we have mentioned
above, that none of their words or speeches should
be questioned in any place out of their house. In
fine, in order to keep their deliberations free from
every kind of influence, they have denied their
president the right to give his vote, or even his
opinion:—they moreover have settled it as a rule,
not only that the king could not send to them any
express proposal about laws, or other subjects, but
even that his name should never be mentioned in
the deliberations.#
* It is moreover a settled rule in the house of commons, that
no member is to speak more than once in the same debate.
When the number and nature of the clauses of a bill require
that it should be discused in a free manner, a committee is
appointed for the purpose, who are to make their report after-
wards to the house. When the subject is of importance, this
committee is formed of the whole house, which still continues
to sit at the same place, but in a less solemn manner, and
under another president, who is called the chairman of the
committee. In order to form the house again, the mace is re-
placed on the table, and the speaker goes again into his chair.
t If any person should mention in his speech, what the
king wishes should be, would be glad to see, &c. he would be
230 THE CONSTITUTION
But that circumstance which, of all others,
constitutes the superior excellence of a government
in which the people act only through their repre-
sentatives, that is, by means of an assembly
formed of a moderate number of persons, and in
which it is possible for every member to propose
new subjects, and to argue and to canvass the
questions that arise, is, that such a constitution
is the only one capable of the immense advantage
(of which perhaps I did not convey an adequate
idea to the reader when I mentioned it before *) of
putting into the hands of the people the moving
springs of the legislative authority.
In a constitution where the people at large ex-
ercise the function of enacting the laws, as it is
only to those persons towards whom the citizens
are accustomed to turn their eyes, that is, to the
very men who govern, that the assembly have
either time or inclination to listen, they acquire,
at length, as has constantly been the case in all
republics, the exclusive right of proposing, if they
please, when they please, in what manner they
please: a prerogative this, of such extent, that it
would suffice to put an assembly, formed of men of
the greatest parts, at the mercy of a few dunces,
and renders completely illusory the boasted power
of the people. Nay more, as this prerogative is
thus placed in the very hands of the adversaries of
immediately called to order, for attempting to influence the
debate.
* * See chap. iv. of this book.'
OF ENGLANT). 23 1
the people, it forces the people to remain exposed
to their attacks, in a condition perpetually pas-
sive, and takes from them the only legal means by
which they might effectually oppose their usurpa-
tions.
To express the whole in a few words—A repre-
sentative constitution places the remedy in the
hands of those who feel the disorder: but a popu-
lar constitution places the remedy in the hands of
those who cause it: and it is necessarily produc-
tive, in the event, of the misfortune—of the po-
litical calamity, of trusting the care and the means
of repressing the invasions of power, to the men
who have the enjoyment of power.
CHAPTER IX. .
A farther Disadvantage of Republican Govern-
ments.—The People are necessarily betrayed
by those in whom they trust.
However, those general assemblies of a peo-
ple who were made to determine upon things
which they neither understood nor examined,—
that general confusion in which the ambitious
could at all times hide their artifices, and carry
on their schemes with safety, were not the only
evils attending the ancient commonwealths. There
Was a more secret defect, and a defect that struck
232 THE CONSTITUTION
immediately at the very vitals of it, inherent in
that kind of government.
It was impossible for the people ever to have
faithful defenders. Neither those whom they had
expressly chosen, nor those whom some personal
advantages enabled to govern the assemblies (for
the only use, I must repeat it, which the people
ever make of their power, is either to give it away,
or allow it to be taken from them), could possibly
be united to them by any common feeling of the
same concerns. As their influence put them, in a
great measure, upon a level with those who were
invested with the executive authority, they cared
little to restrain oppressions out of the reach of
which they saw themselves placed. Nay, they
feared they should thereby lessen a power which
they knew was one day to be their own ; if they
had not even already an attual share in it.*
Thus, at Rome, the only end which the tri-
bunes ever pursued with any degree of sincerity
and perseverance, was to procure to the people,
that is, to themselves, an admission to all the dif-
ferent dignities in the republic. After having
obtained that a law should be enacted for admit-
* How could it be expected that men who entertained views
, of being praetors, would endeavour to restrain the power of
the praetors, -that men who aimed at being one day consuls,
would wish to limit the power of the consuls, that men whom
their influence among the people made sure of getting into the
senate, would seriously endeavour to confine the authority of
the senate?
OF ENGLAND, 23
ting plebeians to the consulship, they procured for
them the liberty of intermarrying with the patri-
cians. They afterwards rendered them admissible
to the dictatorship, to the office of military tri-
bune, to the censorship: in a word, the only use
they made of the power of the people, was to in-
crease privileges which they called the privileges
of all, though they and their friends alone were
ever likely to have the enjoyment of them.
We do not find that they ever employed the
power of the people in things really beneficial to
the people. We do not find that they ever set
bounds to the terrible power of its magistrates,
that they ever repressed that class of citizens who
knew how to make their crimes pass uncensured,
—in a word, that they ever endeavoured, on the
one hand to regulate, and on the other to strengthen,
the judicial power; precautions these, without
which men might struggle to the end of time, and
never attain true liberty.* -
And indeed the judicial power, that sure crite-
rion of the goodness of a government, was al-
ways, at Rome, a mere instrument of tyranny.
The consuls were at all times invested with an
absolute power over the lives of the citizens. The
dictators possessed the same right; so did the
praetors, the tribunes of the people, the judicial
commissioners named by the senate, and so, of
* Without such precautions, laws must always be, as Pope
expresses it,
“Still for the strong too weak, the weak too strong.”
234 THE . GONSTITUTION
course, did the senate itself: and the fact of the
three hundred and seventy deserters whom it
commanded to be thrown at one time, as Livy re-
lates, from the Tarpeian rock, sufficiently shows
that it well knew how to exert its power upon oe-
casion.
It even may be said, that, at Rome, the power
of life and death, or rather the right of killing,
was annexed to every kind of authority whatever,
even to that which results from mere influence, or
wealth; and the only consequence of the murder
of the Gracchi, which was accompanied by the
slaughter of three hundred, and afterwards of
four thousand unarmed citizens, whom the nobles
knocked on the head, was to engage the senate to
erect a temple to Concord. The Lew Porcia de
tergo civium, which has been so much celebrated,
was attended with no other effect than that of
more completely securing, against the danger of a
retaliation, such consuls, praetors, quaestors, &c.
as, like Verres, caused the inferior citizens of Rome
to be scourged with rods, and put to death upon
crosses, through mere caprice and cruelty.*
* If we turn our eyes to Lacedæmon, we shall see, from
several instances of the justice of the ephori, that matters
were little better ordered there, in regard to the administra-
tion of public justice. And in Athens itself, the only one of
the ancient commonwealths in which the people seem to have
enjoyed any degree of real liberty, we see the magistrates
proceed nearly in the same manner as they now do among the
Turks: and I think no other proof needs to be given than the
story of that barber in the Piraeus, who having spread about
6) F : ENGLAND, 235
In fine, nothing can more completely show to
what degree the tribunes had forsaken the interests
of the people, whom they were appointed to de-
fend, than the fact of their having allowed the
senate to invest itself with the power of taxation;
they even suffered it to assume to itself the power,
not only of dispensing with the laws, but also of
abrogating them.* -
In a word, as the necessary consequence of the
communicability of power, a circumstance essen-
tially inherent in the republican form of govern-
ment, it is impossible for it ever to be restrained
within certain rules. Those who are in a con-
dition to control it, from that very circumstance
the town the news of the overthrow of the Athenians in Sicily,
which he had heard from a stranger who had stopped at his
shop, was put to the torture, by the command of the archons,
because he could not tell the name of his author.—See Plut.
Life of Nicias.
* There are frequent instances of the consuls taking away
from the Capitol the tables of the laws passed under their
predecessors. Nor was this, as we might at first be tempted
to believe, an act of violence which success alone could jus-
tify; it was a consequence of the acknowledged power enjoyed
by the senate, cujus erat gravissimum judicium de jure legum,
as we may see in several places in Tully. Nay, the augurs
themselves, as this author informs us, enjoyed the same pri-
vilege. “If laws had not been laid before the people in the
“legal form, they (the augurs) may set them aside; as was
“done with respect to the Lex Tatia, by the decree of the
“college, and to the Leges Liviae, by the advice of Philip,
“who was consul and augur.” Legem, si nonjure rogata est,
tollere possunt ; ut Tatiam, decreto collegii, ut Livias, consilio
Philippi, consulis et auguris.-See De Legib. lib. ii. § 12.. .
236 THE CONSTITUTION
become its defenders. Though they may have
risen, as we may suppose, from the humblest sta-
tions, and such as seemed totally to preclude them
from all ambitious views, they have no sooner
reached a certain degree of eminence, than they
begin to aim higher. Their endeavours had at
first no other object, as they professed, and per-
haps with sincerity, than to see the laws impar-
tially executed: their only view now is to set
themselves above them; and seeing themselves
raised to the level of a class of men who possess all
the power and enjoy all the advantages of the
state, they make haste to associate themselves
with them.*
Personal power and independence on the laws
being, in such states, the immediate consequence
of the favour of the people, they are under an
* Which always proves an easy thing. It is in common-
wealths the particular care of that class of men who are at the
head of the state, to keep a watchful eye over the people, in
order to draw over to their own party any man who happens to
acquire a considerable influence among them; and this they
are (and indeed must be) the more attentive to do, in propor-
tion as the nature of the government is more democratical.
The constitution of Rome had even made express provisions
on that subject. Not only the censors could at once remove
any citizen into what tribe they pleased, and even into the
senate (and we may easily believe that they made a political
use of this privilege); but it was moreover a settled rule, that
all persons who had been promoted to any public office by the
people, such as the consulship, the aedileship, or tribuneship,
became, ipso facto, members of the senate.—See Middleton's
Dissertation on the Roman Senate.
OF ENGLAND. 237
unavoidable necessity of being betrayed. Cor-
rupting, as it were, every thing they touch, they
cannot show a preference to a man, but they
thereby attack his virtue; they cannot raise him,
without immediately losing him and weakening
their own cause; nay, they inspire him with
views directly opposite to their own, and send
him to join and increase the number of their
enemies.
Thus, at Rome, after the feeble barrier which
excluded the people from offices of power and
dignity had been thrown down, the great ple-
beians, whom the votes of the people began to
raise to those offices, were immediately received
into the senate, as has been just now observed.
From that period, their families began to form,
in conjunction with the ancient patrician families,
a new combination, or political association of per-
sons ; * and as this combination was formed of no
particular class of citizens, but of all those who
had influence enough to gain admittance into it,
a single overgrown head was now to be seen in
the republic, which, consisting of all who had
either wealth or power of any kind, and disposing
at will of the laws and the power of the peo-
ple, soon lost all regard to moderation and de-
cency.
* Called mobiles and mobilitas.
t It was, in several respects, a misfortune for the people of
Rome, whatever may have been said to the contrary by the
writers on this subject, that the distinction between the patri-
238 THE CONSTITUTION
Every constitution, therefore, whatever may
be its form, which does not provide for inconveni-
ences of the kind; here, mentioned, is a constitu-
tion essentially imperfect. It is in man himself
that the source of the evils to be remedied lies;
general precautions therefore can only prevent
them. If it be a fatal error entirely to rely on
the justice and equity of those who govern, it is
an error no less dangerous to imagine, that, while
virtue and moderation are the constant companions
of those who oppose the abuses of power, all am-
bition, all thirst after dominion, have retired to the
other party.
Though wise men, led astray by the power of
mames, and the heat of political contentions, may
sometimes lose sight of what ought to be their real
aim, they nevertheless know that it is not against
the Appii, the Coruncanii, the Cethegi, but against
all those who can influence the execution of the
laws, that precautions ought to be taken ;-that it
is not the consul, the praetor, the archon, the mi-
mister, the king, whom we ought to dread, nor the
tribune, or the representative of the people, on
whom we ought implicitly to rely: but that all
those persons, without distinction, ought to be the
objects of our jealousy, who, by any methods, and
under any names whatsoever, have acquired the
means of turning against each individual the col-
lective strength of all, and have so ordered things
cians and the plebeians was ever abolished; though, to say
the truth, this was an event which could not be prevented.
OE ENGEA.N.D. 239
around, themselves, that whoever attempts to resist
them, is sure to find himself engaged alone against
a thousand.
CHAPTER X.
Fundamental Difference between the English
Government, and the Governments just de-
scribed—In England all Eavecutive Authority
is placed out of the Hands of those in whom
the People trust.—Usefulness of the Power
of the Crown.
IN what manner then has the JEnglish constitu-
tion contrived to find a remedy for evils which,
from the very nature of men and things, seem to
be irremediable? How has it found means to
oblige those persons to whom the people have given
up their power, to make them effectual and last-
ing returns of gratitude?—those who enjoy an
exclusive authority, to seek the advantage of all?
—those who make the laws, to make only equita-
ble ones?—It has been by subjecting themselves
to those laws, and for that purpose excluding them
from all share in the execution of them,
Thus, the parliament can establish as numerous
a standing army as it will; but immediately ano-
ther power comes forward, which takes the abso-
lute command of it, fills all the posts in it, and di-
rects its motion at its pleasure. The parliament
may lay new taxes; but immediately another power
240 THE CONºTITUTION
seizes the produce of them, and alone enjoys the
advantages and glory arising from the disposal of
it. The parliament may even, if you please, re-
peal the laws on which the safety of the subject is
grounded; but it is not their own caprices and
arbitrary humours, it is the caprice and pas-
sions of other men, which they will have grati-
fied, when they shall thus have overthrown the
columns of public liberty.
And the English constitution has not only ex-
cluded from any share in the execution of the
laws, those in whom the people trust for the
enacting them, but it has also taken from them
what would have had the same pernicious influ-
ence on their deliberations—the hope of ever in-
vading that executive authority, and transferring
it to themselves.
This authority has been made in England one
single, indivisible prerogative: it has been made for
ever the inalienable attribute of one person, marked
out and ascertained before-hand by solemn laws and
strong-established customs; and all the active
forces in the state have been left at his disposal.
In order to secure this prerogative still farther
against all possibility of invasions from individuals,
it has been heightened and strengthened by every
thing that can attract and fix the attention and
reverence of the people. The power of conferring
and withdrawing places and employments has also
been added to it; and ambition itself has thus
been interested in its defence and service.
OF ENGLAND. 24I
A share in the legislative power has also been
given to the man to whom this prerogative has
been delegated; a passive share indeed, and the
only one that can, with safety to the state, be
trusted to him, but by means of which he is ena-
bled to defeat every attempt against his constitu-
tional authority.
Lastly, he is the only self-existing and perma-
ment power in the state. The generals, the mi-
nisters of state, are so only by the continuance of
his pleasure. He would even dismiss the parlia-
ment itself, if ever he saw it begin to entertain
dangerous designs; and he needs only to say one
word to disperse every power in the state that may
threaten his authority. Formidable prerogatives
these; but with regard to which we shall be in-
clined to lay aside our apprehensions, if on one
hand we consider the great privileges of the people
by which they have been counter-balanced, and,
on the other, the happy consequences that result
from their being thus united.
From this unity, and, if I may so express my-
self, this total sequestration of the executive au-
thority, this advantageous consequence in the first
place results—the attention of the whole nation is
directed to one and the same object. The people,
besides, enjoy this most essential advantage,
which they would vainly endeavour to obtain under
the government of many ;—they can give their
confidence, without giving power over themselves,
R.
242 THE CONSTITUTION
and against themselves; they can appoint trustees,
and yet not give themselves masters. *
Those men to whom the people have delegated
the power of framing the laws, are thereby made
sure to feel the whole pressure of them. They
can increase the prerogatives of the executive
authority, but they cannot invest themselves with
it:--they have it not in their power to command
its motions, they only can unbind its hands.
They are made to derive their importance from
(nay, they are indebted for their existence to) the
need in which that power stands of their assist-
ance; and they know that they would no sooner
have abused the trust of the people, and completed
the treacherous work, than they would see them-
selves dissolved, spurned, like instruments now
spent and become useless. -
This same disposition of things also prevents in
England that essential defect, inherent in the go-
vernment of many, which has been described in
the preceding chapter.
In that sort of government, the cause of the
people, as has been observed, is continually de-
serted and betrayed. The arbitrary prerogatives
of the governing powers are at all times either
openly or secretly favoured, not only by those in
whose possession they are, not only by those who
have good reason to hope that they shall at some
future time share in the exercise of them,--but
also by the whole crowd of those men who, in
OF ENGLAND. 243
consequence of the natural disposition of mankind
to over-rate their own advantages, fondly imagine,
either that they shall one day enjoy some branch of
this governing authority, or that they are even al-
ready, in some way or other, associated to it.
But as this authority has been made, in England,
the indivisible, inalienable attribute of one alone,
all other persons in the state, are, ipso facto, in-
terested to confine it within its due bounds. Li-
berty is thus made the common cause of all; the
laws that secure it are supported by men of every
rank and order; and the Habeas Corpus Act, for
instance, is as zealously defended by the first no-
bleman in the kingdom as by the meanest subject.
Even the minister himself, in consequence of
this inalienability of the executive authority, is
equally interested with his fellow-citizens to main-
tain the laws on which public liberty is founded.
He knows, in the midst of his schemes for enjoy-
ing or retaining his authority, that a court-intrigue
or a caprice may at every instant confound him
with the multitude, and the rancour of a succes-
sor, long kept out, send him to linger in the same
prison which his temporary passions might tempt
him to prepare for others.
In consequence of this disposition of things,
great men are made to join in a common cause
with the people, for restraining the excesses of the
governing power; and, which is no less essential
to the public welfare, they are also, from the same
cause, compelled to restrain the excess of their
R 2
‘244 THE CONSTITUTION
own private power and influence; and a general
spirit of justice becomes thus diffused through all
parts of the state.
The wealthy commoner, the representative of
the people, the potent peer, always having before
their eyes the view of a formidable power,<-of a
power, from the attempts of which they have only
the shield of the laws to protect them, and which
would, in the issue, retaliate a hundred-fold upon
them their acts of violence,—are compelled, both
to wish only for equitable laws, and to observe
them with scrupulous exactness.
Let then the people dread (it is necessary to the
preservation of their liberty), but let them never
entirely cease to love, the throne, that sole and in-
divisible seat of all the active powers in the state.
Let them know, it is that, which, by lending an
immense strength to the arm of justice, has en-
abled her to bring to account, as well the most
powerful as the meanest offender,-which has sup-
pressed, and, if I may so express myself, weeded
out all those tyrannies, sometimes confederated
with, and sometimes adverse to, each other, which
incessantly tend to grow up in the middle of civil
societies, and are the more terrible in proportion as
they feel themselves to be less firmly established.
Let them know, it is that, which, by making all
honours and places depend on the will of one man,
has confined within private walls those projects,
the pursuit of which, in former times, shook the
foundations of whole states;–has changed into in-
OF ENGLAND. 245
trigues the conflicts, the outrages of ambition:-
and that those contentions which, in the present
times, afford them only matter of amusement, are
the volcanoes which set in flames the ancient com-
monwealths.
It is that, which, leaving to the rich no other
security for his palace than that which the peasant
has for his cottage, has united his cause to that of
the latter;-the cause of the powerful to that of
the helpless, the cause of the man of extensive in-
fluence and connexions to that of him who is with-
out friends.
It is the throne above all, it is this jealous power,
which makes the people sure that its represen-
tatives never will be any thing more than its re-
presentatives: at the same time it is the ever-sub-
sisting Carthage, which vouches to it for the dura-
tion of their virtue.
CHAPTER XI.
The Power which the People themselves evercise.
—The Election of Members of Parliament.
THE English constitution having essentially con-
nected the fate of the men to whom the people
trust their power with that of the people them-
selves, really seems, by that caution alone, to have
procured the latter a complete security.
246 THE CONSTITUTION
However, as the vicissitude of human affairs
may, in process of time, realize events, which at
first had appeared most improbable, it might hap-
pen that the ministers of the executive power, not-
withstanding the interest they themselves have in
the preservation of public liberty, and in spite of
the precautions expressly taken to prevent the
effect of their influence, should at length employ
such efficacious means of corruption as might bring
about a surrender of some of the laws upon which
this public liberty is founded. And though we
should suppose that such a danger would really be
chimerical, it might at last happen, that, conniving
at a vicious administration, and being over-liberal
of the produce of general labour, the representa-
tives of the people might make them suffer many
of the evils which attend worse forms of govern-
ment.
Lastly, as their duty does not consist only in
preserving their constituents against the calamities
of an arbitrary government, but moreover in pro-
curing them the best administration possible, it
might happen that they would manifest, in this
respect, an indifference which would, in its conse-
quences, amount to a real calamity.
It was, therefore, necessary that the constitution
should furnish a remedy for all the above cases:
now, it is in the right of electing members of par-
liament, that this remedy lies.
When the time is come at which the commission
given by the people to their delegates expires, they
OF ENGLAND. 247
again assemble in their several towns or counties:
on these occasions they have it in their power to
elect again those of their representatives whose
former conduct they approve, and to reject those
who have contributed to give rise to their com-
plaints: a simple remedy this, and which only re-
quiring, in its application, a knowledge of matters
of fact, is entirely within the reach of the abilities
of the people; but a remedy, at the same time,
which is the most effectual that could be applied;
for, as the evils complained of arise merely from
the peculiar dispositions of a certain number of
individuals, to set aside those individuals is to pluck
up the evil by the roots.
But I perceive, that, in order to make the reader
sensible of the advantages that may accrue to the
people of England from their right of election,
there is another of their rights, of which it is
absolutely necessary that I should first give an
account.
CHAPTER XII.
The same Subject continued.— Liberty of the
Press.
As the evils that may be complained of in a state
do not always arise merely from the defect of the
laws, but also from the non-execution of them;
248 THE CONSTITUTION
and this non-execution of such a kind, that it is
often impossible to subject it to any express pu-
nishment, or even to ascertain it by any previous
definition; men, in several states, have been led to
seek for an expedient that might supply the un-
avoidable deficiency of legislative provisions, and
begin to operate, as it were, from the point at
which the latter begin to fail: I mean here to
speak of the censorial power,-a power which may
produce excellent-effects, but the exercise of which
(contrary to that of the legislative power) must be
left to the people themselves.
As the proposed end of legislation is not, accord-
ing to what has been above observed, to have the
particular intentions of individuals, upon every
case, known and complied with, but solely to have
what is most conducive to the public good, on the
occasions that arise, found out and established, it
is not an essential requisite in legislative operations
that every individual should be called upon to de-
liver his opinion ; and since this expedient, which
at first sight appears so natural, of seeking out by
the advice of all that which concerns all, is found
liable, when carried into practice, to the greatest
inconveniences, we must not hesitate to lay it aside
entirely. But as it is the opinion of individuals
alone which constitutes the check of a censorial
power, this power cannot produce its intended ef.
fect any farther than this public opinion is made
known and declared: the sentiments of the people
are the only thing in question here: it is therefore
OF ENGLANIO. 249
necessary that the people should speak for them-
selves, and manifest those sentiments. A parti-
cular court of censure would essentially frustrate
its intended purpose: it is attended, besides, with
very great inconveniences. *
As the use of such a court is to determine upon
those cases which lie out of the reach of the laws,
it cannot be tied down to any precise regulations.
As a farther consequence of the arbitrary nature
of its functions, it cannot even be subjected to any
constitutional check; and it continually presents
to the eye the view of a power entirely arbitrary,
and which in its different exertions may affect, in
the most cruel manner, the peace and happiness
of individuals. It is attended, besides, with this
very pernicious consequence, that, by dictating to
the people their judgment of men or measures, it
takes from them that freedom of thinking, which
is the noblest privilege, as well as the firmest sup-
port of liberty.”
* M. de Montesquieu, and M. Rousseau, and indeed all the
writers on this subject I have met with, bestow vast encomiums
on the censorial tribunal that had been instituted at Rome:—
they have not been aware that this power of censure, lodged in
the hands of peculiar magistrates, with other discretionary
powers annexed to it, was no other than a piece of state-craft,
like those described in the preceding chapters, and had been
contrived by the senate as an additional mean of securing its
authority. Sir Thomas More has also adopted similar opinions
on the subject: and he is so far from allowing the people to
canvass the actions of their rulers, that in his System of Policy,
which he calls An Account of Utopia (the happy region, svand
250 THE constitution
We may therefore look upon it as a farther
proof of the soundness of the principles on which
the English constitution is founded, that it has, al-
lotted to the people themselves the province of
openly canvassing and arraigning the conduct of
those who are invested with any branch of public
authority; and that it has thus delivered into the
hands of the people at large the exercise of the
censorial power. Every subject in England has
not only a right to present petitions to the king,
or to the houses of parliamen t, but he has a right
also to lay his complaints and observations before
the public, by means of an open press: a formi-
dable right this, to those who rule mankind; and
which, continually dispelling the cloud of majesty
by which they are surrounded, brings them to a
level with the rest of the people, and strikes at the
very being of their authority.
And indeed this privilege is that which has been
obtained by the English nation with the greatest
difficulty, and latest in point of time, at the ex-
pense of the executive power. Freedom was in
rerog), he makes it death for individuals to talk about the con-
duct of government.
I feel a kind of pleasure, I must confess, to observe, on this. º
occasion, that though I have been called by some an advocate
for power, I have carried my idea of liberty farther than many
writers who have mentioned that word with much enthusiasm.
[The author, it must be allowed, is not an advocate for ar-
bitrary power: he is pleased with our limitations of despotism,
and propagates rational ideas of liberty.—EDIT.]
OF ENGLAND: 25.I.
every other respect already established, when, the
English were still, with regard to the public ex-
pression of their sentiments, under restraints that
may be called despotic. History abounds with
instances of the severity of the Court of Star-
chamber, against those who presumed to write on
political subjects. It had fixed the number of
printers and printing-presses, and appointed a
licenser, without whose approbation no book could
be published. Besides, as this tribunal decided
matters by its own single authority, without the
intervention of a jury, it was always ready to find
those persons guilty whom the court was pleased
to look upon as such : nor was it indeed without
ground that the chief justice Coke, whose notions
of liberty were somewhat tainted with the preju-
dices of the times in which he lived, concluded the
eulogiums he bestowed on this court, with saying;
that “the right institution and orders thereof
“being observed, it doth keep all England in
“quiet.”
After the Court of Star-chamber had been abo-
lished, the Long Parliament, whose conduct and
assumed power were little better qualified to bear
a scrutiny, revived the regulations against the free-
dom of the press. Charles the Second, and after
him James the Second, procured farther renewals
of them. These latter acts having expired in the
year 1692, were at this aera, although posterior to
the Revolution, continued for two years longer; so
that it was not till the year 1694, that, in conse-
252 THE CONSTITUTION
quence of the parliament’s refusal to prolong the
prohibitions, the freedom of the press (a privilege
which the executive power could not, it seems,
prevail upon itself to yield up to the people) was
finally established. *
In what, then, does this liberty of the press pre-
cisely consist? Is it a liberty left to every one to
publish any thing that comes into his head? to
calumniate, to blacken, whomsoever he pleases?
No; the same laws that protect the person and
the property of the individual, do also protect
his reputation ; and they decree against libels,
when really so, punishments of much the same
kind as are established in other countries. But,
on the other hand, they do not allow, as in other
states, that a man should be deemed guilty of a
crime for merely publishing something in print;
and they appoint a punishment only against him
who has printed things that are in their nature
criminal, and who is declared guilty of so doing
by twelve of his equals, appointed to determine
upon his case, with the precautions we have before
described.
The liberty of the press, as established in
England, consists therefore (to define it more pre-
cisely) in this, that neither the courts of justice,
nor any other judges whatever, are authorised to
take notice of writings intended for the press, but
are confined to those which are actually printed, and
must, in these cases, proceed by the trial by jury.
It is even this latter circumstance which more
OF ENGLAND. 253
particularly constitutes the freedom of the press.
If the magistrates, though confined in their pro-
ceedings to cases of criminal publications, were
to be the sole judges of the criminal nature of
the things published, it might easily happen that,
with regard to a point which, like this, so highly
excites the jealousy of the governing powers, they
would exert themselves with so much spirit and per-
severance, that they might, at length, succeed in
completely striking off all the heads of the hydra.
But whether the authority of the judges be
exerted at the motion of a private individual,
or whether it be at the instance of the govern-
ment itself, their sole office is to declare the
punishment established by the law:—it is to the
jury alone that it belongs to determine on the
matter of law, as well as on the matter of fact;
that is, to determine, not only whether the writ-
ing which is the subject of the charge has really
been composed by the man charged with having
done it, and whether it be really meant of the per-
son named in the indictment, but also whether
its contents are criminal.
And though the law in England does not allow
a man, prosecuted for having published a libel,
to offer to support by evidence the truth of the
facts contained in it * (a mode of proceeding which
* In actions for damages between individuals, the case, if I
nistake not, is different, and the defendant is allowed to pro-
duce evidence of the facts asserted by him.
[This, though doubtfully expressed, is not an ill-founded as-
sertion.—EDIT.]
254 THE CONSTITUTION
would be attended with very mischievous conse-
quences, and is every where prohibited), yet, as
the indictment is to express that the facts are
false, malicious, &c. and the jury, at the same
time, are sole masters of their verdict,--that is,
may ground it upon what considerations they
please, it is very probable that they would acquit
the accused party, if the fact, asserted in the writ-
ing before them, were matter of undoubted truth,
and of a general evil tendency. They, at least,
would certainly have it in their power.”
And it is still more likely that this would be
the case, if the conduct of the government itself
was arraigned ; because, besides this conviction
which we suppose in the jury, of the certainty of
the facts, they would also be influenced by their
sense of a principle generally admitted in England,
and which, in a late celebrated cause, was strongly
insisted upon, viz, That, “ though to speak ill of
“individuals deserved reprehension, yet the public
“acts of government ought to lie open to public
“examination, and that it was a service done to
“ the state to canvass them freely.”f
And indeed this extreme security with which
* And whatever may be said of the libellous nature even of
true remarks or assertions, every juror ought so far to distin-
guish between truth and falsehood, as to exercise little seve-
rity in the one case, compared with the other.—EDIT.
t See Serjeant Glynn's Speech for Woodfall in the pro-
secution against the latter, by the attorney-general, for pub-
ishing Junius' Letter to the King.
OF ENGLAND, 255
every man in England is enabled to communicate
his sentiments to the public, and the general con-
cern which matters relative to the government are
always sure to create, have wonderfully multi-
plied all kinds of public papers. Besides those
which, being published at the end of every year,
month, or week, present to the reader a recapitu-
lation of every thing interesting that may have
been done or said during their respective periods,
there are several others, which, making their ap-
pearance every day, or every other day, commu-
nicate to the public the several measures taken by
the government, as well as the different causes of
any importance, whether civil or criminal, that
occur in the courts of justice, and sketches from
the speeches either of the advocates, or the judges,
concerned in the management and decision of
them. During the time the parliament continues
sitting, the votes or resolutions of the house of
commons are daily published by authority; and the
most interesting speeches in both houses are taken
down in short-hand,” and communicated to the
public in print.
Lastly, the private anecdotes in the metropolis,
and the country, concur also towards filling the
collection; and as the several public papers circu-
late, or are transcribed into others, in the different
* Any stranger who should presume to take down the de-
bates in short-hand, would be in danger of being excluded from
the gallery. Reporters, therefore, chiefly trust to memory;
or, if they take motes, it must be done by stealth-EDIT.
256 THE CONSTITUTION
country towns, and even find their way into the
villages, where every man, down to the labourer,
peruses them with a sort of eagerness, every in-
dividual thus becomes acquainted, with the state
of the nation, from one end to the other; and by
these means the general intercourse is such, that
the three kingdoms seem as if they were one
single town.
And it is this public motoriety of all things that
constitutes the supplemental power, or check,
which, we have above said, is so useful to remedy
the unavoidable insufficiency of the laws, and keep
within their respective bounds all those persons
who enjoy any share of public authority.
As they are thereby made sensible that all their
actions are exposed to public view, they dare not
venture upon those acts of partiality, those secret
connivances at the iniquities of particular persons,
or those vexatious practices which the man in office
is but too apt to be guilty of, when, exercising
his office at a distance from the public eye, and as
it were in a corner, he is satisfied, that provided
he be cautious, he may dispense with being just.
Whatever may be the kind of abuse in which per-
sons in power may, in such a state of things, be
tempted to indulge themselves, they are con-
vinced that their irregularities will be immediately
divulged. The juryman, for example, knows that
his verdict—the judge, that his direction to the
jury—will presently be laid before the public: and
there is no man in office, but who thus finds him-
OF ENGLAND. 257
self compelled, in almost every instance, to choose
between his duty, and the surrender of all his
former reputation.
It will, I am aware, be thought that I speak
in too high terms of the effects produced by the
public news-papers. I indeed confess that all
the pieces contained in them are not patterns of
good reasoning, or of the truest Attic wit; but,
on the other hand, it scarcely ever happens that a
subject in which the laws, or in general the public
welfare, are really concerned, fails to call forth
some able writer, who, under some form or other,
communicates to the public his observations and
complaints. I shall add here, that, though an
upright man, labouring for a while under a strong
popular prejudice, may, supported by the con-
sciousness of his innocence, endure with patience
the severest imputations; the guilty man, hearing
nothing in the reproaches of the public but what
he knows to be true, and already upbraids himself
with, is very far from enjoying any such comfort;
and that, when a man’s own conscience takes part
against him, the most despicable weapon is suffi-
cient to wound him to the quick.”
* I shall take this occasion to observe, that the liberty of
the press is so far from being injurious to the reputation of in-
dividuals (as some persons have complained), that it is, on the
contrary, its surest guard. When there exists no means of
communication with the public, every one is exposed, without
defence, to the secret shafts of malignity and envy. The man in
office loses his reputation, the merchant his credit, the private
individual his character, without so much as knowing either
S
258 THE CONSTITUTION
Even those persons whose greatness seems most
to set them above the reach of public censure, are
not those who least feel its effects. They have
need of the suffrages of that vulgar whom they
affect to despise, and who are, after all, the dis-
pensers of that glory which is the real object of
their ambitious cares. Though all have not so
much sincerity as Alexander, they have equal
reason to exclaim, O people ! what toils do we
nº underga, in order to gain your applause !
I confess that in a state where the people dare
not speak their sentiments, but with a view to
please the ears of their rulers, it is possible that
either the prince, or those to whom he has trusted
his authority, may sometimes mistake the nature
of the public sentiments; or that, for want of
that affection of which they are denied all possible
marks, they may rest contented with inspiring
terror, and make themselves amends in beholding
the over-awed multitude Smother their complaints.
who are his enemies, or which way they carry on their attacks.
But when there exists a free press, an innocent man immedi-
ately brings the matter into open day, and crushes his adver-
saries, at once, by a public challenge to lay before the public
the grounds of their several imputations.
[Yet innocence and guilt are so frequently confounded
amidst the rage of party, the wildness of caprice, and the wan-
tonness of scandal, that any one who forms his ideas of public
characters from news-papers and pamphlets, is liable to be
gºessly deceived. The chief tendency of news-paper abuse,
garried as it now is to a most lieentious excess, is to render
men calleus, and indifferent to general censure or praise-
RBIT.]
GF ENGLAND, 259
But when the laws give a full scope to the
people for the expression of their sentiments, those
who govern cannot conceal from themselves the
disagreeable truths which resound from all sides.
They are obliged to put up even with ridi-
cule; and the coarsest jests are not always those .
which give them the least uneasiness. Like the
lion in the fable, they must bear the blows of
those enemies whom they despise the most; and
they are, at length, stopped short in their career,
and compelled to give up those unjust pursuits
which, they find, draw upon them, instead of that
admiration which is the proposed end and reward
of their labours, nothing but mortification and
disgust.
In short, whoever considers what it is that con-
stitutes the moving principle of what we call
great affairs, and the invincible sensibility of man
to the opinion of his fellow-creatures, will not
hesitate to affirm, that if it were possible for the
liberty of the press to exist in a despotic govern-
ment, and (what is not less difficult) for it to exist
without changing the constitution, this liberty
would alone form a counterpoise to the power of
the prince. If, for example, in an empire of the
East, a place could be found which, rendered re-
spectable by the ancient religion of the people,
might ensure safety to those who should bring
thither their observations of any kind, and from
this sanctuary printed papers should issue, which,
S 2
260 THE CONSTITUTION
under a certain seal, might be equally respected,
and which in their daily appearance should exa-
mine and freely discuss the conduct of the cadis,
the pashas, the vizir, the divan, and the sultan
himself—that would immediately introduce some
degree of liberty.
CHAPTER XIII.
The Subject continued.
ANOTHER effect, and a very considerable
one, of the liberty of the press, is, that it enables
the people effectually to exert those means which
the constitution has bestowed on them, of influ-
encing the motions of the government.
It has been observed in a former place, how it
came to be a matter of impossibility for any large
number of men, when obliged to act in a body,
and upon the spot, to take any well-weighed re-
solution. But this inconvenience, which is the
inevitable consequence of their situation, does in
nowise argue a personal inferiority in them, with
respect to the few who, from some accidental ad-
vantages, are enabled to influence their determi-
nations. It is not fortune, it is nature, that has
made the essential differences between men; and
whatever appellation a small number of persons,
OF ENGLAND, 261
who speak without sufficient reflection, may affix
to the general body of their fellow-creatures, the
whole difference between the statesman, and many
a man from among what they call the dregs of
the people, often lies in the rough outside of the
latter, a disguise which may fall off on the first
opportunity: and more than once has it happened,
that from the middle of a multitude, in appear-
ance contemptible, a Viriatus has been suddenly
seen to rise, or a Spartacus to burst forth.*
Time, and a more favourable situation, are
therefore the only things wanting to the people;
and the freedom of the press affords the remedy
to these disadvantages. Through its assistance,
every individual may, at his leisure and in retire-
ment, inform himself of every thing that relates
to the questions on which he is to take a resolu-
tion. Through its assistance, a whole nation,
as it were, holds a council, and deliberates,—
slowly indeed (for a nation cannot be informed
like an assembly of judges), but after a regular
manner, and with certainty. Through its assist-
ance, all matters of fact are at length made clear;
and, through the conflict of the different answers
* Many of our readers may not recollect, that Viriatus
was a Lusitanian shepherd, who roused his countrymen to
arms, and harassed the Roman invaders for fourteen years,
during, and after, the third Punic war; or that Spartacus
was a gladiator, who, at a later period, led an army of rebel
slaves into the field, and fought for a time with distinguished
spirit.—EDIT.
$362 THE CONSTITUTION
and replies, nothing at last remains but the sound
part of the arguments.”
Hence, though all good men may not think
themselves obliged to concur implicitly in the
tumultuary resolutions of a people whom their
orators take pains to agitate, yet, on the other
[* Some may think, however, that in these printed dis-
cussions, the sound parts of the argument are occasionally
so involved in a cloud of sophistry and misrepresentation,
as not to be fully perceived and comprehended by the ma-
jority of readers.-EDIT.]
This right of publicly discussing political subjects is alone
a great advantage to a people who enjoy it; and if the citi-
zens of Geneva preserved their liberty better than the peo-
ple were able to do in the other commonwealths of Switzer-
land, it was, I think, owing to the extensive right they pos-
sessed of making public remonstrances to their magistrates.
To these remonstrances the magistrates (for instance the
council of twenty-five, to which they were usually made) were
obliged to give an answer. If this answer did not satisfy the
remonstrating citizens, they took time, perhaps two or three
weeks, to make a reply to it, which must also be answered;
and the number of citizens who went up with each new re-
monstrance increased, according as they were thought to have
reason on their side. Thus, the remonstrances which were
made on account of the sentence against Rousseau, and were
delivered at first by only forty citizens, were afterwards often
accompanied by about nine hundred. This circumstance,
together with the ceremony with which those remonstrances
or representations were delivered, rendered them a great
check on the conduct of the magistrates: they were even still
more useful to the citizens of Geneva, as preventives than as
remedies; and nothing was more likely to deter the magis-
trates from taking a step of any kind than the thought that it
might give rise to a representation.
OF ENGLAND. *263
hand, when this same people, left to itself, perse-
veres in opinions which have for a long time been
discussed in public writings, and from which (it is
essential to add) all errors concerning facts have
been removed, such perseverance is certainly a
very respectable decision; and then it is, though
only then, that we may with safety say,+“the
voice of the people is the voice of God.”
How therefore can the people of England act,
when, having formed opinions which may really
be called their own, they think they have just
cause to complain of the administration ? It is,
as has been said above, by means of the right
they have of electing their representatives; and
the same method of general intercourse that has
informed them with regard to the objects of their
complaints, will likewise enable them to apply
the-remedy to them.
Through this medium they are acquainted with
the nature of the subjects that have been de-
liberated upon in the assembly of their represen-
tatives;–they are informed by whom the different
motions were made,-by whom they were sup-
ported;—and the manner in which the suffrages
are delivered, is such, that they always can know
the names of those who have voted constantly for
the advancement of pernicious measures.
And the people not only know the particular
dispositions of every member of the house of
commons, but, from the general motoriety of
affairs, have also a knowledge of the political
264 THE CONSTITUTION
sentiments of a great number of those whom their
situation in life renders fit to fill a place in that
house. And availing themselves of the several
vacancies that happen, and still more of the op-
portunity of a general election, they purify, either
successively or at once, the legislative assembly;
and thus, without any commotion or danger to
the state, they effect a material reformation in
the views of the government.
I am aware that some persons will doubt these
patriotic and systematic views, which I am here
attributing to the people of England, and will
object to me the disorders that sometimes happen
at elections. But this reproach, which, by the
way, comes with little propriety, from writers
who would have the people transact every thing
in their own persons,—this reproach, I say,
though true to a certain degree, is not, however, so
much so, as it is thought by certain persons who
have taken only a superficial survey of the state
of things.
Without doubt, in a constitution in which all
important causes of uneasiness are so effectually
prevented, it is impossible but that the people
will have long intervals of inattention. Being
then suddenly called, from this state of inactivity,
to elect representatives, they have not examined
before-hand the merits of those who solicit their
votes; and the latter have not had, amidst the
general tranquillity, any opportunity of making
themselves known to them.
OF ENGLAND. 265
The elector, persuaded, at the same time, that
the person whom he will elect will be equally
interested with himself in the support of public
liberty, does not enter into laborious disquisitions,
and from which he sees he may exempt himself.
Obliged, however, to give the preference to some-
hody, he forms his choice on motives which would
mot be excusable, if it were not that some motives
are necessary to make a choice, and that, at this
instant, he is not influenced by any other; and
indeed it must be confessed, that, in the ordinary
course of things, and with electors of a certain
rank in life, that candidate who gives the best
entertainment has a great chance to get the better
of his competitors.
But if the measures of government, and the
reception of these measures in parliament, by
means of a too complying house of commons,
should ever be such as to spread a serious alarm
among the people, the same causes which have
concurred to establish public liberty would, no
doubt, operate again, and likewise concur in its
support. A general combination would then be
formed, both of those members of parliament who
have remained true to the public cause, and of
persons of every order among the people. Public
meetings, in such circumstances, would be ap-
pointed; general subscriptions would be entered
into, to support the expenses, whatever they
might be, of such a necessary opposition; and all
private and unworthy purposes being suppressed
$266 THE CONSTITUTION
by the sense of the mational danger, the choice of
the electors would then be wholly determined by
the consideration of the public spirit of the can-
didates, and the tokens given by them of such
spirit.
Thus were those parliaments formed, which
suppressed arbitrary taxes and imprisonments.
Thus was it, that, under Charles the Second, the
people, when recovered from that enthusiasm of
affection with which they received a king so long
persecuted, at last returned to him no parliaments
but such as were composed of a majority of men
attached to public liberty. Thus it was, that,
persevering in a conduct which the circumstances
of the times rendered necessary, the people baffled
the arts of the government; and Charles dissolved
three successive parliaments, without any other
effect than that of having those same men re-
chosen, and set again in opposition to him, of
whom he hoped he had rid himself for ever.
Nor was James the Second happier in his at-
tempts than Charles had been. This prince soon
experienced that his parliament was actuated by
the same spirit as those which had opposed the de-
signs of his late brother; and having suffered
himself to be led into measures of violence, in-
stead of being better taught by the discovery he
made of the real sentiments of the people, his
reign was terminated by that catastrophe with
which every one is acquainted.
Indeed, if we combine the right enjoyed by the
OF ENGILAND. 26?
people of England, of electing their representa-
tives, with the whole of the English government,
we shall become continually more and more sen-
sible of the excellent effects that may result from
that right. All men in the state are, as has been
before observed, really interested in the support of
public liberty. Nothing but temporary motives,
and such as are quite peculiar to themselves, can
induce the members of any house of commons to
connive at measures destructive of this liberty.
The people, therefore, under such circumstances,
need only change these members, in order effec-
tually to reform the conduct of that house; and it
may fairly be pronounced beforehand, that a house
of commons, composed of a new set of persons,
will, from this bare circumstance, be in the in-
terests of the people.
Hence, though the complaints of the people do
not always meet with a speedy and immediate re-
dress (a celerity which would be the symptom of a
fatal unsteadiness in the constitution, and would
sooner or later bring on its ruin); yet, when we
attentively consider the nature and the resources
of this constitution, we shall not think it too bold
an assertion to say, that it is impossible but that
complaints in which the people persevere (that is,
well-grounded complaints) will sooner or later be
redressed.
268 THE CONSTITUTION
CHAPTER XIV.
Pight of Resistance.
BUT all those privileges of the people, considered
in themselves, are but feeble defences against the
real strength of those who govern. All those pro-
visions, all those reciprocal rights necessarily sup-
pose that things remain in their legal and settled
course : what would then be the resource of the
people, if ever the prince, suddenly freeing him-
self from all restraint, and throwing himself as it
were out of the constitution, should no longer
respect either the person or the property of the
subject, and either should make no account of his
conventions with the parliament, or attempt to
force it implicitly to submit to his will?—It would
be resistance. *
Without entering here into the discussion of a
doctrine which would lead us to inquire into the
first principles of civil government, consequently
engage us in a long disquisition, and with regard
to which, besides, persons free from prejudices
agree pretty much in their opinions, I shall only
observe here (and it will be sufficient for my pur-
pose) that the question has been decided in favour
of this doctrine by the laws of England, and that
resistance is looked upon by them as the ulti-
mate and lawful resource against the violences of
power.
OF ENGLAND. 269
º
It was resistance that gave birth to the Great
Charter, that lasting foundation of English liberty,
and the excesses of a power established by force
were also restrained by force.* It has been by
the same means that, at different times, the peo-
ple have procured the confirmation of the same
charter. Lastly, it has also been the resistance to
a king who made no account of his own engage-
ments, that has, in the issue, placed on the throne
the family which is now in possession of it.
This is not all ; this resource, which till then
had only been an act of force opposed to other acts
of force, was, at that aera, expressly recognised
by the law itself. The lords and commons, solemnly
assembled, declared, that “king James the Second,
“ having endeavoured to subvert the constitution
“ of the kingdom, by breaking the original con-
‘ tract between king and people, and having vio-
* lated the fundamental laws, and withdrawn him-
“ self, had abdicated the government; and that
“ the throne was thereby vacant.”f
6
&
/
* Lord Lyttelton says, extremely well, in his Persian Let-
ters, “If the privileges of the people of England be conces-
“sions from the crown, is not the power of the crown itself
“a concession from the people?” It might be said with equal
truth, and somewhat more in point to the subject of this
chapter,-If the privileges of the people be an encroachment
on the power of kings, the power itself of kings was at first
an encroachment (no matter whether effected by surprise) on
the natural liberty of the people. ,
t The Bill of Rights has since given a new sanction to all
these principles.
270 THE CONSTITUTION
And lest those principles, to which the revolu-
tion thus gave a sanction, should, in process of
time, become mere arcana of state, exclusively
appropriated, and only known to a certain class
of subjects; the same act, we have just mentioned,
expressly ensured to individuals the right of pub-
licly preferring complaints against the abuses of
government, and, moreover, of being provided with
arms for their own defence. Judge Blackstone
expresses himself in the following terms, in his
Commentaries on the Laws of England.
“To vindicate these rights, when actually vio-
* lated or attacked, the subjects of England are
‘ entitled, in the first place, to the regular admi-
* nistration and free course of justice in the courts
“ of law; next, to the right of petitioning the
“ king and parliament for redress of grievances;
and, lastly, to the right of having and using
arms for self-preservation and defence.”
Lastly, this right of opposing violence, in what-
ever shape, and from whatever quarter it may
6
6
6
6
6
6
6
[The doctrine of resistance is not expressly stated and in-
culcated in our authoritative codes of constitutional law; for
such a promulgation of it might have a mischievous tendency,
by encouraging a frequent recourse to those violent remedies
which nothing but atrocious tyranny can justify or excuse.
The law, therefore, still speaks of the absolute sovereignty
and transcendent power of the monarch, omitting the mention
of all exceptions from the general rule of submission and obe-
dience, and leaving the question of resistance to the feelings
and good sense of the public, to be decided by the emergency
of the case.—EDIT.]
OF ENGLA.N.D. 271
come, is so generally acknowledged, that the
courts of law have sometimes grounded their judg-
ments upon it. I shall relate on this head a fact
which is somewhat remarkable.
A constable, being out of his precinct, arrested
a woman whose name was Anne Dekins ; one
Tooly took her part, and, in the heat of the fray,
killed the assistant of the constable.
Being prosecuted for murder, he alleged, in his
defence, that the illegality of the imprisonment
was a sufficient provocation to make the homicide
ercusable, and entitle him to the benefit of clergy.
The jury, having settled the matter of fact, left
the criminality of it to be decided by the judge,
by returning a special verdict. The cause was
adjourned to the King's Bench, and thence again
to Serjeants’ Inn, for the opinion of the twelve
judges. Here follows the opinion delivered by chief
justice Holt, in giving judgment.
* If one be imprisoned upon an unlawful au-
thority, it is a sufficient provocation to all people,
out of compassion, much more so when it is
done under colour of justice; and when the
“ liberty of the subject is invaded, it is a provoca-
“ tion to all the subjects of England. A man
“ ought to be concerned for Magna Charta and
“ the haws; and if any one against law imprison
“ a man, he is an offender against Magna Charta.”
After some debate, occasioned chiefly by Tooly's
appearing not to have known that the constable
was out of his precinct, seven of the judges were
272 THE CONSTITUTION
of opinion that the prisoner was guilty of man-
slaughter, and he was admitted to the benefit of
clergy.”
But it is with respect to this right of an ultimate
resistance, that the advantage of a free press ap-
pears in a most conspicuous light. As the most
important rights of the people, without the prospect
of a resistance which overawes those who should
attempt to violate them, are little more than mere
shadows, so this right of resisting, itself, is but
vain, when there exist no means of effecting a
general union between the different parts of the
people.
Private individuals, unknown to each other, are
forced to bear in silence injuries in which they do
not see other people take a concern. Left to their
own individual strength, they tremble before the
formidable and ever-ready power of those who
govern: and as the latter well know (and are even
apt to over-rate) the advantages of their own situ-
ation, they think that they may venture upon any
thing.
But when they see that all their actions are ex-
posed to public view, that, in consequence of the
celerity with which all things become communi-
cated, the whole nation forms, as it were, one
continued irritable body, no part of which can
be touched without exciting an universal tremor,
—they become sensible that the cause of each in-
* See Reports of Cases argued, debated, and adjudged, in
Banco Reginae, in the time of queen Anne.
OF ENGLAND. 273,
dividual is really the cause of all, and that to attack
the lowest among the people is to attack the whole
people.
Here also we must remark, the error of those
who, as they make the liberty of the people consist
in their power, so make their power consist in
their action.
When the people are often called to act in their
own persons, it is impossible for them to acquire
any exact knowledge of the state of things. The
event of one day effaces the motions which they
had begun to adopt on the preceding day; and
amidst the continual change of things, no settled
principle, and, above-all, no plans of union, have
time to be established among them.—You wish to
have the people love and defend their laws and li-
berty; leave them, therefore, the necessary time
to know what laws and liberty are, and to agree
in their opinion concerning them; you wish an
union, a coalition, which cannot be obtained but
by, a slow and peaceable process; forbear therefore
continually to shake the vessel.
Nay, farther, it is a contradiction, that the peo-
ple, should act, and at the same time retain any
reak power. Have they, for instance, been forced
by the weight of public oppression to throw off the
restraints of the law, from which they no longer
received protection ?—they presently find them-
selves suddenly become subject to the command of
a few leaders, who are the more absolute in pro-
portion as the nature of their power is less clearly,
T
274, THE CONSTITUTION
ascertained: may, perhaps, they must even submit
to the toils of war, and to military discipline.
If it be in the common and legal course of
things that the people are called to move, each in-
dividual is obliged, for the success of the measures
in which he is then made to take a concern, to
join himself to some party; nor can this party be
without a head. The citizens thus grow divided
among themselves, and contract the pernicious
habit of submitting to leaders. They are, at
length, no more than the clients of a certain num-
ber of patrons; and the latter soon becoming able
to command the arms of the citizens in the same
manner as they at first governed their votes, make
little account of a people, with one part of which
they know how to curb the other.
But when the moving springs of government
are placed entirely out of the body of the people,
their action is thereby disengaged from all that
could render it complicated, or hide it from the
eye. As the people thenceforward consider things
speculatively, and are, if I may be allowed the
expression, only spectators of the game, they ac-
quire just notions of things; and as these notions,
amidst the general quiet, gain ground and spread
themselves far and wide, they at length entertain,
on the subject of their liberty, but one opinion.
Forming thus, as it were, one body, the peo-
ple, at every instant, have it in their power to
strike the decisive blow, which is to level every
thing. Like those mechanical powers, the greatest
OF ENGLAND. 275
efficiency of which exists at the instant which pre-
cedes their entering into action, it has an immense
force, just because it does not yet exert any ; and
in this state of stillness, but of attention, consists
its true momentum.
With regard to those who (whether from per-
sonal privileges, or by virtue of a commission from
the people) are intrusted with the active part of
government, as they, in the mean while, see them-
selves exposed to public view, and observed as
from a distance by men free from the spirit of
party, and who place in them but a conditional
trust, they are afraid of exciting a commotion,
which, though it might not prove the destruction
of all power, yet would surely and immediately be
the destruction of their own. And if we might
suppose that, through an extraordinary conjunction
of circumstances, they should resolve among them-
selves upon the sacrifice of those laws on which
public liberty is founded, they would no sooner lift
up their eyes towards that extensive assembly,
which views them with a watchful attention, than
they would find their public virtue return upon
them, and would make haste to resume that plan
of conduct, out of the limits of which they can
expect nothing but ruin and perdition.
In short, as the body of the people cannot act
without either subjecting themselves to some power,
or effecting a general destruction, the only share
they can have in a government, with advantage to
T 2 *
276, THE CONSTITUTION
themselves, is not...to interfere; but to influence-
to-be-able to act, and not to act.
The power of the people is not when they strike, ,
but when they keep in awe; it is when, they can
overthrow every thing, that they never need to
move; and Manlius included all in four words,
when he said to the people of Rome—Ostendite.
bellum, pacem habebitis.
CHAPTER XV.
Proofs drawn from Facts, of the Truth of the
Principles laid down in the present Work-
1. The peculiar Manner in which Revolutions
have always been concluded in England.
It may not be sufficient to have proved by argu-
ments the advantages of the English constitution;
it will perhaps be asked, whether the effects core
respond to the theory 2 To this question (which
I confess is extremely proper) my answer is ready :
it is the same which was once made, I believe, by:
a Lacedaemonian—Come and see.
If we peruse, the English history, we shall, be
particularly-struck with one-circumstance, to be.
observed in it, and which distinguishes most ad-
vantageously the English government from all:
OF TENGEAND. 277
other free governments; I mean the manner in
which revolutions and public commotions have al-
-ways been terminated in England.
If we read with some attention the history of
other free states, we shall, see that the public"dis-
sensions that have taken place in them have cen-
“stantly been terminated by: settlements" in which
the interests only of a few were really provided
for, while the grievances of the many were hardly,
if at all, attended to. In England the very reverse
has happened; and we find revolutions always to
have been terminated by extensive and accitate
provisions for securing the general liberty.
The histories of the ancient Greeian common-
wealths; and, above all; of the Roman republic, of
which more complete accounts have been left us,
afford striking proof of the former part of this ob-
servation.
What was; for instance; the consequence of that
great revolution by which the kings were driven
from Rome, and in which the senate and patricians
acted as the advisers and leaders of the people?
‘The consequence was, as we find in Dionysius of
Halicarnassus, and Livy, that the senators imme-
diately assumed all those powers lately so much
complained of by themselves, which the kings had
exereised. The execution of their future decrees
were entrusted to, two “magistrates, taken from
their own body, and entirely dependent on them,
whom they called consuls, and who were made to
bear about them, all the ensigns of power which
had formerly attended the kings. . Only care, was
278 THE CONSTITUTION
taken that the axes and fasces, the symbols of
the power of life and death over the citizens, which
the senate now claimed to itself, should not be
carried before both consuls at once, but only before
one at a time, for fear, says Livy, of doubling the
terror of the people.* *
Nor was this all: the senators drew over to
their party those men who had the most interest
at that time among the people, and admitted them
as members into their own body;f which indeed
was a precaution they could not prudently avoid
taking. But the interests of the great men in the
republic being thus provided for, the revolution
ended. The new senators, as well as the old, took
care not to lessen, by making provisions for the
liberty of the people, a power which was now be-
come their own. Nay, they presently stretched
this power beyond its former tone; and the pu-
nishments which the consul inflicted, in a military
manner, on a number of those who still adhered
to the former mode of government, and even upon
his own children, taught the people what they had
to expect for the future, if they presumed to op-
pose the power of those whom they had thus un-
warily made their masters.
Among the oppressive laws or usages which the
senate, after the expulsion of the kings, had per-
* “Omnia jura (regum), omnia insignia, primi consules
“temuere; id modó cautum est, ne, si ambo fasces haberent,
“duplicatus terror videretur.” Tit. Liv. lib. ii. § 1.
t These new senators were called conscripti; hence the
name of patres conscripti, afterwards indiscriminately given to
the whole senate.—Tit. Liv. ibid.
OF ENGLAND. 279
mitted to continue, what were most complained of
by the people, were those by which such citizens
as could not pay their debts, with the interest
(which at Rome was enormous), at the appointed
time, became slaves to their creditors, and were
delivered over to them, bound with cords; hence
the word neari, by which slaves of that kind were
denominated. The cruelties exercised by creditors
on those unfortunate men, whom the private
calamities, caused by the frequent wars in which
Rome was engaged, rendered very numerous,
at last roused the body of the people: they
abandoned both the city and their inhuman fellow-
citizens, and retreated to the other side of the
river Anio.
But this second revolution, like the former, only
procured the advancement of particular persons.
A new office was created, called the tribuneship.
Those whom the people had placed at their head
when they left the city, were raised to it.
Their duty, it was agreed, was, for the future, to
protect the citizens: and they were invested with
a certain number of prerogatives for that purpose.
This institution, it must however be confessed,
would have, in the issue, proved very beneficial to
the people, at least for a long course of time, if
certain precautions had been taken with respect to
it, which would have much lessened the future
personal importance of the new tribunes:* but
* Their number, which was only ten, ought to have been
much greater; and they never ought to have accepted the power
: 280 THE A CONSTITUTION
these precautions the latter did not think proper
to suggest; and in regard to those abuses them-
selves, which had at first given rise to the corn-
‘plaints of the people, no farther mention was made
of them.* *-
As the senate and patricians, in the early ages
of the commonwealth, kept themselves closely
united, the tribunes, for all their personal privi-
leges, were not able, during the first times after
their creation, to gain an admittance: either to the
consulship, or into the senate, and thereby to se-
parate their condition any farther from that of the
people. This situation of theirs, iin which it was
-to be wished they might always have been kept,
produced at first excellent effects, and caused their
conduct to answer, in a great measure, the expec-
tation of the people. The tribunes complained
loudly of the exorbitancy of the powers possessed
by the senate and consuls; and here we must ob-
serve that the power exercised by the latter over
the lives of the citizens, had never been yet sub-
jected (which will, probably surprise the reader)
to any known laws, though sixty years had already
elapsed since the expulsion of the kings. The
tribunes therefore insisted that laws should be made
in that respect, which the consuls should thence-
forward be bound to follow, and that they should
left to each of them, of stopping, by his single opposition, the
proceedings of all the rest.
* Many other seditions were afterwards raised upon the
{Sånne 'acCOunt. $
OF ENGLANT). 281
mo longer be left, in the exercise of their power
over the lives of the citizens, to their own capriée
and wantonness.”
Equitable as these demands were, the senate'arid
patricians opposed them with great warmth, and,
either by naming dictators, or calling in the assist-
ance of the priests, or other means, they defeated,
..for nine years together, all the endeavours of the
...tribunes. However, as the latter were at that
time in earnest, the senate was at length obliged
to comply ; and the Lea Terentilla was passed,
by which it was enacted, that a general code of
laws should be made.
These beginnings seemed to promise great:sue-
cess to the cause of the people. But, unfortu-
mately for them, the senate found means to have
it agreed, that the office of tribune should be
-set aside during the whole time that the code
should be framing. They, moreover, obtained
that the ten men, called decemvirs, to whom the
charge of composing this code was to be given,
-should be taken from the body of the patricians.
The same causes, therefore, produced again the
same effects; and the power of the senate and
consul was left in the new code, or laws of the
Twelve Tables, as undefined as before. As to
the laws above mentioned, concerning debtors,
which never had ceased to be bitterly complained
* “Quod populus in se jus dederit, eo consulem usurum ;
“non ipsos libidinem ac licentiam suam pro lege habituros.”
—Tit. Liv. lib. iii. § 9.
282 THE CONSTITUTION
of by the people, and in regard to which some sa-
tisfaction ought, in common justice, to have been
given them, they were confirmed, and a new ter-
ror added to them from the manner in which they
were expressed. &
The true motive of the senate, when they thus
trusted the framing of the new laws to a new
kind of magistrates, called decemvirs, was, fbat,
by suspending the ancient office of consul, they
might have a fair pretence for suspending also
the office of tribune, and thereby rid themselves
of the people, during the time that the important
business of framing the code should be carrying
on : they even, in order the better to secure that
point, placed the whole power of the republic
in the hands of those new magistrates. But the
senate and patricians experienced then, in their
turn, the danger of intrusting men with an un-
controlled authority. As they themselves had
formerly betrayed the trust which the people had
placed in them, so did the decemvirs, on this oc-
casion, likewise deceive them. They retained by
their own private authority the unlimited power
that had been conferred on them, and at last exer-
cised it on the patricians as well as the plebeians.
Both parties therefore united against them, and
the decemvirs were expelled from the city.
The former dignities of the republic were re-
stored, and with them the office of tribune. Those
from among the people who had been most instru-
mental in destroying the power of the decemvirs,
OF ENGLAND. 283
were, as it was natural, raised to the tribuneship;
and they entered upon their offices with a prodigi-
ous degree of popularity. The senate and the
patricians were, at the same time, sunk extremely
low in consequence of the long tyranny which had
just expired; and those two circumstances united,
afforded the tribunes but too easy an opportunity
of making the present revolution end as the former
ones had done, and converting it to the advance-
ment of their own power. They got new personal
privileges to be added to those which they already
possessed; and moreover procured a law to be
enacted, by which it was ordained, that the reso-
lutions taken by the comitia tributa (an assembly
in which the tribunes were admitted to propose
new laws) should be binding upon the whole com-
monwealth;-by which they at once raised to
themselves an imperium in imperio, and acquired,
as Livy expresses it, a most active weapon.*
From that time great commotions arose in the
republic, which, like all those before them, ended
in promoting the power of a few. Proposals for
easing the people of their debts, for dividing with
some equality amongst the citizens, the lands
which were taken from the enemy, and for lower-
ing the rate of the interest of money, were fre-
quently made by the tribunes. And indeed all
these were excellent regulations to propose; but,
* Acerrimum telum.
‘984 THE CONSTITUTION
unfortunately for the people, the proposals of
-them, were only"pretences used by the tribunes
for promoting schemes of a fatal, though some-
what remote, tendency to public liberty. Their
real aims were at the consulship, the praetorship,
the priesthood, and other offices of executive
power, which they were intended to control, and
not to share. To these views they constantly
made the cause of the people subservient. I shall
relate, among other instances, the manner in
•which they procured to themselves an admittance
to the office of consul.
Having, during several years, seized every
opportunity of making speeches to the people on
that subject, and even excited seditions in order to
overcome the opposition of the senate, they at
last availed themselves of the circumstance of an
interregnum (a time, during which there happened
to be no other magistrates in the republic beside
themselves), and proposed to the tribes, whom
they had assembled, to enact the three following
laws:—the first, for settling the rate of interest of
money; the second, for ordaining that no citizen
should be possessed of more than five hundred
acres of land; and the third for providing that
one of the two consuls should be taken from the
“body of the plebeians. . But on this occasion it
evidently appeared, says Livy, which of the laws
in agitation were most agreeable to the people,
and which, to those who proposed them; for the
OF. ENGLAND. 285,
* ,
tribes accepted the laws concerning the interest
of money, and the lands; but as to that concern-
ing: the plebeian consulship, they rejected it; and
both the former articles would from that moment
have been settled, if the tribunes had not declared,
that the tribes were called upon, either to accept,
or reject, all their three proposals at once.* Great
commotions ensued thereupon, for a whole year;
but at last the tribunes, by their perseverance in
insisting. that the tribes should vote on their three
rogations jointly, obtained their ends, and over-
came both the opposition of the senate, and the
reluctance of the people.
. In the same manner did the tribunes get them-
selves made capable of filling all other places of
executive power, and public trust, in the republic.
Put when all their views of that kind were ac-
complished, the republic did not for all this enjoy
more quiet, nor was the interest of the people
better attended to, than before, New struggles
then arose for actual admission to those places,-
for procuring them to relatives or friends,-forgo-
vernments of provinces, and commands of armies.
A few tribunes, indeed, did at times apply them--
selves seriously, out of real virtue and love of their
* “Ab tribunis, velut per interregnum, concilio plebis ha-
“bito, apparuit quae ex promulgatis plebi, quae latoribus, gra-
“tiora essent; nam de foenore atque agro rogationes jubebant, .
“de plebeio consulatu antiquabant. (antiquis stabant); et per+-
“fecta utraque res esset, ni tribuni se in omnia simul consu-
“lere plebem dixissent.”— Tit. Liv. lib. vi. § 39.
$86 THE CONSTITUTION
duty, to remedy the grievances of the people; but
their fellow-tribunes, as we may see in history,
and the whole body of those men upon whom the
people had, at different times, bestowed consul-
ships, aedileships, censorships, and other dignities
without number, united together with the utmost
vehemence against them; and the real patriots,
such as Tiberius Gracchus, Caius Gracchus, and
Fulvius, constantly perished in the attempt.
I have been somewhat explicit on the effects
produced by the different revolutions that hap-
pened in the Roman republic, because its history
is much known to us, and we have, either in Di-
onysius of Halicarnassus or in Livy, considerable
monuments of the more ancient part of it. But
the history of the Grecian commonwealths would
also have supplied us with a number of facts to
the same purpose. That revolution, for instance,
by which the Pisistratidae were driven out of
Athens,—that by which the four hundred, and
afterwards the thirty, were established,—as well
as that by which the latter were in their turn ex-
pelled,—all ended in securing the power of a few.
The republic of Syracuse, that of Corcyra, of
which Thucydides has left us a pretty full account,
and that of Florence, of which Machiavel has
written the history, also present to us a series of
public commotions ended by treaties, in which, as
in the Roman republic, the grievances of the peo-
ple, though ever so loudly complained of in the
beginning by those who acted as their defenders,
OF ENGLAND, 287
were, in the issue, most carelessly attended to, or
even totally disregarded.*
But, if we turn our eyes towards the English
history, scenes of a quite different kind will offer
to our view; and we shall find, on the contrary,
that revolutions in England have always been
terminated by making such provisions, and only
such, as all orders of the people were really and
indiscriminately to enjoy.
Most extraordinary facts, these ! and which,
from all the other circumstances that accompanied
them, we see, all along, to have been owing to
the impossibility (a point that has been so much
insisted upon in former chapters) in which those
who possessed the confidence of the people, were,
of transferring to themselves any branch of the
executive authority, and thus separating their own
condition from that of the rest of the people.
Without mentioning the compacts which were
made with the first kings of the Norman line, let
us only cast our eyes on Magna Charta, which
is still the foundation of English liberty. A num-
ber of circumstances, which have been described
in the former part of this work, concurred at that
time to strengthen the regal power to such a de-
gree that no men in the state could entertain a
hope of succeeding in any other design than that
* The revolutions which formerly happened in France, all
£nded like those above-mentioned. A similar remark may be
extended to the history of Spain, Denmark, Sweden, Scot-
land, &c.
288, THE, CONSTITUTION
of setting bounds to it. How great was the union.
which thence arose among all orders of the people!
--what extent, what caution, do we see in the
provisions made by the Great Charter! All, the
objects for which men naturally wish to live in a
state of society were settled in its various articles.
The judicial authority was regulated. The person
and property of the individual were secured. The
safety of the merchant and stranger was pro-
vided. for. The higher class of citizens gave
up. a number of oppressive privileges, which they
had long accustomed themselves to look upon as
their undoubted rights.” Nay, the implements
of tillage of the bondman, or slave, were also se-
cured to him : and for the first time, perhaps, in
the annals of the world, a civil war was terminated:
by making stipulations in favour of those unfortu-
mate men to whom the avarice and lust of domi-
nion, inherent in human nature, continued, over
the greatest part of the earth, to deny the common
rights of mankind.
Under Henry the Third great disturbances
arose; and they were all terminated by solemn,
confirmations given to the Great Charter. Un-
der Edward I. Edward II. Edward III. and
Richard II. those who were intrusted with the
care of the interests of the people lost no opportu-
mity that offered, of strengthening still farther
* All possessors of lands took the engagement to establish
in behalf of their tenants and vassals (erga suos) the same
liberties which they demanded from the king.
OF ENGLANID, 289
that foundation of public liberty,+of taking all
such precautions as might render the Great
Charter still more effectual in the event. They
had not ceased to be convinced that their cause
was the same with that of all the rest of the
people.
Henry of Lancaster having laid claim to the
crown, the commons received the law from the
victorious party. They settled the crown upon
Henry, by the name of Henry the Fourth ; and
added, to the act of settlement, provisions which
the reader may see in the second volume of the
Parliamentary History of England. Struck with
the wisdom of the conditions demanded by the
commons, the authors of the book just-mentioned
observe (perhaps with some simplicity) that the
commons of England were no fools at that time.
They ought rather to have said—The commons
of England were happy enough to form among
themselves an assembly in which every one could
propose what matters he pleased, and freely dis-
cuss them;-they had no possibility left of con-
verting either these advantages, or in general the
confidence which the people had placed in them,
to any private views of their own: they, there-
fore, without loss of time, endeavoured to stipu-
late useful conditions with that power by which
they saw themselves at every instant exposed to be
dissolved and dispersed, and applied their industry
to insure the safety of the whole people, as it was
the only means they had of procuring their own.
U
290 THE CONSTITUTION
In the long contentions which took place be-
tween the houses of York and Lancaster, the com-
mons remained spectators of disorders which in
those times it was not in their power to prevent;
they successively acknowledged the title of the
victorious parties: but whether under Edward the
Fourth, under Richard the Third, or Henry the
Seventh, by whom those quarrels were terminated,
they continually availed themselves of the impor-
tance of the services which they were able to per-
form to the new-established sovereign, for obtain-
ing effectual conditions in favour of the whole
body of the people.
At the accession of James the First, which, as
it placed a new family on the throne of England,
may be considered as a kind of revolution, no de-
mands were made by the men who were at the head
of the nation, but in favour of general liberty.
After the accession of Charles the First, discon-
tents of a very serious nature began to take place;
and they were terminated, in the first instance, by
the act called the Petition of Right, which is still
looked upon as a most precise and accurate deli-
neation of the rights of the people.”
* The disorders which took place in the latter part of the
reign of that prince seem indeed to contain a complete contra-
diction to the assertion which is the subject of the present
chapter; but they, at the same time, are a no less convincing
confirmation of the truth of the principles laid down in the
course of this whole work. The above-mentioned disorders
took rise from that day in which Charles the First gave up the
power of dissolving his parliament, that is, from the day in
OF ENGLAND. 29I
At the restoration of Charles the Second, the
constitution being re-established upon its former
principles, the former consequences produced by it
began again to take place; and we see at that aera,
and indeed during the whole course of that reign,
a continued series of precautions taken for securing
the general liberty.
Lastly, the great event which took place in the
year 1689, affords a striking confirmation of the
truth of the observation made in this chapter. At
this aera the political wonder again appeared—of a
revolution terminated by a series of public acts,
in which no interests but those of the people at
large were considered and provided for:—no
clause, even the most indirect, was inserted, either
to gratify the present ambition, or favour the fu-
ture views, of those who were personally con-
cerned in bringing those acts to a conclusion. Pn-
deed, if any thing is capable of conveying to us an
adequate idea of the soundness, as well as peculi-
arity, of the principles on which the English go-
vernment is founded, it is the attentive perusal of
the system of public compacts to which the revolu-
tion of the year 1689 gave rise, of the Bill of
Rights with all its different clauses, and of the se-
veral acts, which, till the accession of the house of
Hanover, were made in order to strengthen it.
which the members of that assembly acquired an independent,
personal, permanent authority, which they soon began to turn
against the people who had raised them to it.
U 2
292 THE CONSTITUTION
CHAPTER XVI.
Second Difference.—The Manner after which
the Laws for the Liberty of the Subject are
evecuted in England.
THE second difference I mean to speak of be-
tween the English government and that of other
free states, concerns the important object of the
execution of the laws. On this article, also, we
shall find the advantage to lie on the side of the
English government; and, if we make a compari-
son between the history of those states, and that
of England, it will lead us to the following ob-
servation, viz. that though in other free states the
laws concerning the liberty of the citizens were
imperfect, yet the execution of them was still
more defective. In England, on the contrary, not
only the laws for the security of the subject are
very extensive in their provisions, but the manner
in which they are executed carries these advan-
tages still farther; and English subjects enjoy no
less liberty from the spirit both of justice and mild-
ness, by which all branches of the government are
influenced, than from the accuracy of the laws
themselves.
The Roman commonwealth will here again sup-
'ply us with examples to prove the former part of
the above assertion. When I said, in the fore-
OF ENGLAND. 293
going chapter, that, in times of public commotion,
no provisions were made for the body of the
people, I meant no provisions that were likely to
prove effectual in the event. When the people
were roused to a certain degree, or when their
concurrence was necessary to carry into effect cer-
tain resolutions, or measures, that were particu-
larly interesting to the men in power, the latter
could not, with any prudence, openly profess a
contempt for the political wishes of the people;
and some declarations expressed in general words,
in favour of public liberty, were indeed added to
the laws that were enacted on those occasions.
But these declarations, and the principles which
they tended to establish, were afterwards even
openly disregarded in practice.
Thus, when the people were made to vote,
about a year after the expulsion of the kings, that
the regal government never should be again esta-
blished in Rome, and that those who should en-
deavour to restore it should be devoted to the gods,
an article was added, which, in general terms,
confirmed to the citizens the right they had be-
fore enjoyed under the king, of appealing to the
people from the sentences of death passed upon
them. No punishment (which will surprise the
reader) was decreed against those who should vio-
late this law; and indeed the consuls, as we may
see in Dionysius of Halicarnassus and Livy, con-
cerned themselves but little about the appeals of
the citizens, and, in the more than military exer-
294 THE CONSTITUTION
cise of their functions, continued to sport with
rights which they ought to have respected, how-
ever imperfectly and loosely they had been secured.
An article, to the same purport with the above,
was afterwards also added to the laws of the
Twelve Tables; but the decemvirs, to whom the
execution of those laws was at first committed, be-
haved exactly in the same manner, and even worse
than the consuls had done before them: and after
they were expelled,” the magistrates who suc-
ceeded them, appear to have been as little tender
of the lives of the citizens. I shall, out of many
instances, select one which will show upon what
slight grounds the citizens were exposed to have
their lives taken away.—Spurius Maelius being ac-
cused of endeavouring to make himself king, was
summoned by the master of the horse to appear
before the dictator, in order to clear himself of
this somewhat extraordinary imputation. Spu-
rius took refuge among the crowd; the master of
the horse pursued him, and killed him on the spot.
The people having thereupon expressed a great in-
dignation, the dictator had them called to his tri-
bunal, and declared that Spurius had been law-
fully put to death, even though he might be in-
* At the time of the expulsion of the decemvirs, a law was
also enacted, that no magistrate should be created from whom
no appeal could be made to the people (magistratus sine pro-
vocatione. Tit. Liv. lib. iii. § 55.); by which the people ex-
pressly meant to abolish the dictatorship; but this law was
not better observed than the former ones had been.
OF ENGLAND. 295
nocent of the crime laid to his charge, for having
refused to appear before the dictator, when desired
to do so by the master of the horse.*
About one hundred and forty years after the
times we mention, the law concerning the appeal
to the people was enacted for the third time. But
we do not see that it was better observed in the
sequel than it had been before: we find it fre-
quently violated, after that period, by the different
magistrates of the republic; and the senate itself,
notwithstanding this same law, at times made
formidable examples of the citizens. Of this we
have an instance in the three hundred soldiers
who had pillaged the town of Rhegium. The
senate of its own authority ordered them all to be
put to death. In vain did the tribune Flaccus re-
monstrate against so severe an exertion of public
justice on Roman citizens; the Senate, says Wale-
rius Maximus, nevertheless persisted in its resolu-
tion.f
* Tumultuantem deinde multitudinem, incertà existimatione
facti, ad concionem vocari jussit, et Maelium jure caesum pro-
nunciavit, etiamsi regni crimine insons fuerit, qui vocatus a
magistro equitum, ad dictatorem non venisset. Tit. Liv. lib.
iv. § 15.
f Val. Max. book ii. ch. 7. This author does not mention
the precise number of those who were put to death on this oc-
casion: he only says that they were executed fifty at a time,
on different successive days : but other authors make the num-
ber of them amount to four thousand. Livy speaks of a whole
legion—Legio Campana, quae Rhegium occupaverat, obsessa, de-
ditione factá, securi percussa est.—Tit. Liv. lib. xv. Epit.—
296 THE CONSTITUTION
All these laws for securing the lives of the citi-
zens had hitherto been enacted without any men-
tion of a punishment against those who should
violate them. At last the celebrated Lev Porcia
was passed, which subjected to banishment those
who should cause a Roman citizen to be scourged
and put to death. From a number of instances
posterior to this law, it appears that it was not
better observed than those before it had been ;
Caius Gracchus, therefore, caused the Lea Sem-
pronia to be enacted, by which a new sanction
was given to it. But this second law did not se-
cure his own life, and that of his friends, better
than the Lea Porcia had done that of his bro-
ther, and those who had supported him; indeed
all the events which took place about those times
rendered it manifest that the evil was such as was
beyond the power of any laws to cure. I shall
here mention a fact which affords a remarkable in-
stance of the wantonness with which the Roman
magistrates had accustomed themselves to take
away the lives of the citizens. A citizen, named
Memmius, having put up for the consulship, and
publicly canvassing for the same, in opposition to
a man whom the tribune Saturninus supported, the
latter caused him to be apprehended, and made
him expire under blows in the public forum. The
tribune even carried his insolence so far (as Cicero
informs us) as to give to this act of cruelty, trans-
I have here followed Polybius, who says that only three hun-
dred were taken and brought to Rome. **
OF ENGLAND, 297
acted in the presence of the whole people assem-
bled, the outward form of a lawful act of public
justice.*
Nor were the Roman magistrates satisfied with
committing acts of injustice in their political capa-
city, and for the support of the power of that body
of which they made a part. Avarice and private
rapine were at last added to political ambition.
The provinces were first oppressed and plundered.
The calamity, in process of time, reached Italy it-
self, and the centre of the republic; till at last the
Lew Calpurnia de repetundis was enacted to put
a stop to it. By this law an action was given to
the citizens and allies for the recovery of the mo-
ney extorted from them by magistrates, or men in
power: and the Lew Junia afterwards added the
penalty of banishment to the obligation of making
restitution.
But here another kind of disorder arose. The
* The fatal forms of words (cruciatüs carmina) used by the
Roman magistrates when they ordered a man to be put to
death, resounded (says Tully in his speech for Rabirius) in the
assembly of the people, in which the censors had forbidden
the common executioner even to appear, I, lictor, colliga ma-
nus. Caput obnubito. Arbori infelici suspendito—Memmius
being a considerable citizen, as we may conclude from his
canvassing with success for the consulship, all the great men
in the republic took the alarm at the atrocious action of the
tribune : the senate, the next day, issued out its solemn man-
date, or form of words, to the consuls, to provide that the re-
public should receive no detriment ; and the tribune was killed
in a pitched battle that was fought at the foot of the Capitol.
298 THE CONSTITUTION
judges proved as corrupt, as the magistrates had
been oppressive. They equally betrayed, in their
own province, the cause of the republic with which
they had been entrusted; and rather chose to share
in the plunder of the consuls, the praetors, and the
proconsuls, than put the laws in force against
them.
New expedients were therefore resorted to, in
order to remedy this new evil. Laws were made
for judging and punishing the judges themselves;
and, above all, continual changes were made in the
manner of composing their assemblies. But the
malady lay too deep for common legal provisions
to remedy. The guilty judges employed the same
resources, in order to avoid conviction, as the guilty
magistrates had done; and those continual
changes, at which we are amazed, that were made
in the constitution of the judiciary bodies,” instead
* The judges (over the assembly of whom the praetor usu-
ally presided) were taken from the body of the senate, till
some years after the last Punic war; when the Lea Sempronia,
proposed by Caius S. Gracchus, enacted that they should in
future be taken from the equestrian order. The consul Caepio
procured afterwards a law to be enacted, by which the judges
were to be taken from both orders, equally. The Lex Servilia
soon after put the equestrian order again in possession of the
judgments; and, after some years, the Lew Livia restored
them entirely to the senate. The Lew Plautia enacted after-
wards, that the judges should be taken from the three orders,
the senatorian, equestrian, and plebeian. The Lew Cornelia,
framed by the dictator Sylla, enacted again, that the judges
should be entirely taken from the body of the senate. The Ler
Aurelia ordered anew, that they should be taken from the
OF ENGLAND. 299
of obviating the corruption of the judges, only
transferred to other men the profit arising from
becoming guilty of it. It became a general com-
plaint, so early as the times of the Gracchi, that
no man, who had money to give, could be brought
to punishment.* Cicero says, that, in his time,
the same opinion was universally received; if and
his speeches are full of his lamentations on what
he calls the levity, and the infamy, of the public
judgments.
Nor was the impunity of corrupt judges the
only evil under which the republic laboured.
Commotions of the whole empire at last took
place. The horrid vexations, and afterwards
the acquittal, of Aquilius, proconsul of Syria,
and of some others who had been guilty of the
same crimes, drove the provinces of Asia to
desperation: and then it was that the terrible
war of Mithridates arose, which was ushered in
by the death of eighty thousand Romans, mas-
sacred in one day, in various cities of Asia.f
The laws and public judgments not only
thus failed of the end for which they had been
established: they even became, at length, new
means of oppression added to those which al-
three orders. Pompey made afterwards a change in their num-
ber (which he fixed at seventy-five), and in the manner of
electing them. And lastly, Caesar restored the judgments to
the order of the senate.
* App. de Bell. Civ. t Act. in Verr. i. § 1 -
f Appian.
300 THE CONSTITUTION
ready existed. Citizens possessed of wealth,
persons obnoxious to particular bodies, or the
few magistrates who attempted to stem the tor-
rent of the general corruption, were accused and
condemned ; while Piso, of whom Cicero, in his
speech against him, relates facts which make the
reader shudder with horror, and Verres, who
had been guilty of enormities of the same kind,
escaped unpunished.
Hence a war arose, still more formidable than
the former, and the dangers of which we wonder
that Rome was able to surmount. The greatest
part of the Italians revolted at once, exasperated
by the tyranny of the public judgments; and
we find in Cicero, who informs us of the cause
of this revolt, which was called the Social JWar,
a very expressive account both of the unfortu-
nate condition of the republic, and of the per-
version that had been made of the methods
taken to remedy it. ‘A hundred and ten years
‘ have not yet elapsed (says he) since the law
* for the recovery of money extorted by magi-
‘strates was first propounded by the tribune
* Calpurnius Piso. A number of other laws
* to the same effect, continually more and more
* severe, have followed: but so many persons
have been accused, so many condemned, so
* formidable a war has been excited in Italy
‘ by the terror of the public judgments, and,
* when the laws and judgments have been sus-
“ pended, such an oppression and plunder of our
6
OF ENGLAND. 301
* allies have prevailed, that we may truly say,
* it is not by our own strength, but by the weak-
* ness of others, that we continue to exist.’”
I have entered into these particulars with
regard to the Roman commonwealth, because
the facts on which they are grounded are re-
markable of themselves, and yet no just conclu-
sion can be drawn from them, unless a series of
them were presented to the reader. Nor are
we to account for these facts by the luxury which
prevailed in the latter ages of the republic, by
the corruption of the manners of the citizens,
their degeneracy from their ancient principles,
and such loose general phrases, which may
perhaps be useful to express the manner itself
in which the evil became manifested, but by no
means set forth the causes of it.
The above disorders arose from the very
nature of the government of the republic,+of a
government in which the executive and supreme
power being made to centre in the body of those
in whom the people had once placed their con-
fidence, there remained no other effectual power
in the state that might render it necessary for
them to keep within the bounds of justice and
decency. And in the mean time, as the peo-
ple, who were intended as a check over that
body, continually gave a share in this executive
authority to those whom they intrusted with the
care of their interests, they increased the evils
* See Cic, de Off, lib. ii., § 75.
302 THE CONSTITUTION
they complained of, as it were, at every attempt
they made to remedy them; and instead of
raising up opponents to those who were become
the enemies of their hiberty, as it was their inten-
tion to do, they continually supplied them with new
associates.
From this situation of affairs, flowed, as an un-
avoidable consequence, that continual desertion
of the cause of the people, which, even in times
of revolutions, when the passions of the people
themselves were roused, and they were in a great
degree united, manifested itself in so remarkable
a manner. We may trace the symptoms of the
great political defect here mentioned, in the earli-
est ages of the commonwealth, as well as in the
last stage of its duration. In Rome, while small
and poor, it rendered vain whatever rights or
power the people possessed, and blasted all their
endeavours to defend their liberty, in the same
manner, as in the more splendid ages of the com-
monwealth, it rendered the most salutary regula-
tions utterly fruitless, and even instrumental to
the ambition and avarice of a few. The prodigi-
ous fortune of the republic, in short, did not create
the disorder; it only gave full scope to it.
But if we turn our view towards the history of
the English nation, we shall see how, from a
government in which the above defects did not
exist, different consequences have followed;—how
cordially all ranks of men have always united
together, to lay under proper restraints this ex-
OF ENGLAND. 303
ecutive power, which they knew could never be
their own. In times of public revolutions, the
greatest care, as we have before observed, was
taken to ascertain the limits of that power; and
after peace had been restored to the state, those
who remained at the head of the nation continued
to manifest an unwearied jealousy in maintaining
those advantages which the united efforts of all
had obtained.
Thus it was made one of the articles of Magna
Charta, that the executive power should not touch
the person of the subject, but in consequence of a
judgment passed upon him by his peers; and so
great was afterwards the general union in main-
taining this law, that the trial by jury, that
admirable mode of proceeding, which so effectually
secures the subject against all the attempts of
power, even (which seemed so difficult to obtain)
against such as might be made under the sanction
of the judicial authority—hath, been preserved to
this day. It has even been preserved in all its
original purity, though the same has been success-
ively suffered to decay, and then to be lost, in the
other countries of Europe, where it had been for-
merly known.” Nay, though this privilege of
* The trial by jury was in use among the Normans long
before they came over into England; but, even among them,
it soon degenerated from its first institution; we see in
Hale's History of the Common Law of England, that the
unanimity among jurymen was not required in Normandy for
making a good verdict; but, when jurymen dissented, some
304 THE CONSTITUTION
being tried by one's peers was at first a privilege
of conquerors and masters, exclusively appropri-
ated to those parts of nations which had originally
invaded and reduced the rest by arms, it has in
England been successively extended to every or-
der of the people.
And not only the person, but also the property
of the individual, has been secured against all
abitrary attempts from the executive power; and
the latter has been successively restrained from
touching any part of the property of the subject,
even under pretence of the necessities of the state,
any otherwise than by the free grant of the repre-
sentatives of the people. Nay, so true and per-
severing has been the zeal of these representatives,
were taken out, and others added in their stead, till an unan-
nimity was procured.—In Sweden, where, according to the
opinion of the learned in that country, the trial by Jury had
its origin, only some forms of that institution are now pre-
served in the lower courts in the country, where sets of jury-
men are established for life, and have a salary accordingly.
And in Scotland the vicinity of England has not been able to
preserve to the trial by jury its genuine ancient form ; the
unanimity among jurymen is not required (as I have been
told) to form a verdict; but the majority is decisive. [Two
thirds of the number must agree, to form a verdict of con-
viction.—EDIT.]
[In civil actions and causes (except questions of revenue)
the Scots have not the benefit of this mode of trial; but it
is the intention of some well-wishers to the English system
of jurisprudence, to propose to the imperial parliament the
introduction of juries on every judicial occasion that may
arise in Scotland.—EDIT.]
OF TENGLAND. 305
in asserting on that account the interests of the
nation, from which they could not separate their
own, that this privilege of taxing themselves,
which was in the beginning grounded on a most
precarious tenure, and only a mode of governing
adopted by the sovereign for the sake of his own
convenience, has become, in time, a settled right
of the people, which the sovereign has found it
necessary solemnly and repeatedly to acknow-
ledge.
Nay more, the representatives of the people
have applied this right of tawation to a still no-
bler use than the mere preservation of property:
they have, in process of time, succeeded in convert-
ing it into a regular and constitutional mean of
influencing the motions of the executive power.
By means of this right, they have gained the ad-
vantage of being constantly called to concur in the
measures of the sovereign, of having the great-
est attention shown by him to their requests, as
well as the highest regard paid to any engage-
ments that he enters into with them. Thus has
it become at last the peculiar happiness of English
subjects, to whatever other people, either ancient
or modern, we compare them, to enjoy a share in
the government of their country, by electing re-
presentatives, who, by reason of the peculiar cir-
cumstances in which they are placed, and of the
extensive rights they possess, are both willing
faithfully to serve those who have appointed them,
and able to do so.
X
306 THE CONSTITUTION
And indeed the commons have not rested satis-
fied with establishing, once for all, the provisions
for the liberty of the people which have been just
mentioned; they have afterwards made the pre-
servation of them the first object of their care,”
and taken every opportunity of giving them new
vigour and life.
Thus, under Charles the First, when attacks of
a most alarming nature were made on the privi-
lege of the people, to grant free supplies to the
crown, the commons vindicated, without loss of
time, that great right of the nation, which is the
constitutional bulwark of all others, and hastened
to oppugn, in the beginning, every precedent of a
practice that must in the end have produced the
ruin of public liberty.
They even extended their care to abuses of every
kind. The judicial authority, for instance, which
the executive power had imperceptibly assumed to
itself, both with respect to the person and property
of the individual, was abrogated by the act which
abolished the court of Star-chamber : and the
crown was thus brought back to its true constitu-
tional office, viz. the countenancing, and support-
ing with its strength, the execution of the laws.
The subsequent endeavours of the legislature
* The first operation of the commons, at the beginning of
a session, is to appoint four grand committees. One is a com-
mittee of religion, another of courts of justice, another of trade,
and another of grievances; they are to be standing committees
during the whole session.
OF ENGLAND. 307
have carried to a still greater extent the above
privileges of the people. They have, moreover,
succeeded in restraining the crown from any at-
tempt to seize and confine, even for the shortest
time, the person of the subject, unless it be in the
cases ascertained by the law, of which the judges
of it are to decide.
Nor has this extensive unexampled freedom at
the expense of the executive power been made, as
we might be inclinable to think, the exclusive ap-
propriated privilege of the great and powerful. It
is to be enjoyed alike by all ranks of subjects.
Nay, it was the injury done to a common citizen
that gave existence to the act which has completed
the security of this interesting branch of public
liberty. The oppression of an obscure individual,
says Judge Blackstone, gave rise to the famous
Habeas Corpus Act. Junius has quoted this ob-
servation of the judge; and the same is well worth
repeating a third time, for the just idea it conveys
of that readiness of all orders of men to unite in
defence of common liberty, which is a characteristic
circumstance in the English government.*
* The individual here alluded to was one Francis Jenks,
who having made a motion at Guildhall, in the year 1676, to
petition the king for a new parliament, was examined before
the privy-council, and afterwards committed to the Gate-
house, where he was kept about two months, through the de-
lays made by the several judges to whom he applied, in grant-
ing him a Habeas Corpus.-See the State Trials, vol. vii.
anno 1676.
X 2
398 THE CONSTITUTION
And this general union in favour of public
liberty has not been confined to the framing of
laws for its security: it has operated with no less
vigour in bringing to punishment such as have
ventured to infringe thera; and the sovereign has
constantly found it necessary to give up the viola-
tors of those laws, even when his own servants, to
the justice of their country.
Thus we find, so early as the reign of Edward
the First, judges who were convicted of having
committed exactions in the exercise of their of
fices, to have been condemned by a sentence of
parliament.* From the immense fines which were
laid upon them, and which it seems they were in
a condition to pay, we may indeed conclude that,
in those early ages of the constitution, the remedy
was applied rather late to the disorder; but yet it
was at last applied.
Under Richard the Second, examples of the
same kind were renewed. Michael de la Pole,
earl of Suffolk (who had been lord chancellor of
the kingdom), the duke of Ireland, and the arch-
bishop of York, having abused their power by
carrying on designs that were subversive of public
liberty, were declared guilty of high-treason; and
a number of judges, who, in their judicial capacity,
* Sir Ralph de Hengham, chief justice of the King's Bench,
was fined 7000 marks; sir Thomas Wayland, chief justice of
the Common Pleas, had his whole estate forfeited; and sir
Adam de Stratton, chief baron of the Exchequer, was fined
3400 marks.
©F ENGE, AND, 309
had acted as their instruments, were involved in
the same condemnation.* tº
In the reign of Henry the Eighth, sir Richard
Empson, and Edmund Dudley, who had been the
promoters of the exactions eomímitted under the
preceding reign, fell victims to the zeal of the
commons for vindicating the cause of the people.
Under king. James the First, the lord-chancellor
Bacon experienced that neither his high dignity,
nor great personal qualifications, could screen him
from having the severest censure passed upon him,
for the corrupt practices of which he had suffered
himself to become guilty. And in the reign of
* The most conspicuous among these judges were sir Robert
Belknap, and sir Robert Tresilian, chief justice of the King's
Bench. The latter had drawn up a string of questions cal-
culated to confer a despotic authority on the crown, or rather
on the ministers above-named, who had found means to ren-
der themselves. entire masters of the person of , the king.
These questions sir Robert Tresilian proposed to the judges,
who had been summoned for that purpose, and they gave their
opinions in favour of them. One of these opinions of the
judges, among others, tended to annihilate, at one stroke, al
the rights of the commons, by taking from them that impor.
tant privilege mentioned before, of starting and freely diseuss-
ing whatever subjects of debate they think proper: the com-
mons were to be restrained, under pain of being punished as
traitors, from proceeding upon any articles besides those
limited to them by the king. All those who had had a share
in the above declarations of the judges were attainted of high-
treason. Tresilian, and Brembre, who had been mayor of
London, were hanged; the others were only banished, at the
intercession of the bishops.-See the Parl. History of Eng-
land, vol. i.
310 THE CONSTITUTION
Charles the First, the judges having attempted
to imitate the example of the judges under
Richard the Second, by delivering opinions sub-
versive of the rights of the people, found the same
spirit of watchfulness in the commons, as had
proved the ruin of the former. Lord Finch,
keeper of the great seal, was obliged to fly be-
yond sea. The judges Davenport and Crawley
were imprisoned: and judge Berkeley was seized
while sitting upon the bench, as we are informed
by Rushworth. }
In the reign of Charles the Second, we find
fresh instances of the vigilance of the commons.
Sir William Scroggs, lord chief justice of the
King’s Bench, sir Francis North, chief justice of
the Common Pleas, sir Thomas Jones, one of the
judges of the King's Bench, and sir Richard West,
one of the barons of the Exchequer, were im-
peached by the commons, for partialities shown
by them in the administration of justice; and the
chief justice Scroggs, against whom some positive
charges were well proved, was removed from his
employments.
The several examples offered here to the reader
have been taken from different periods of the
English history, in order to show that neither the
influence, nor the dignity of the infractors of the
laws, even when they have been the nearest ser-
vants of the crown, have ever been able to check
the zeal of the commons in asserting the rights of
the people. Other examples might perhaps be
OF ENGLAND. 31I
related to the same purpose; though the whole
number of those to be met with, will, upon in-
quiry, be found the smaller, in proportion as the
danger of infringing the laws has always been in-
dubitable.
So much regularity has even (from all the cir
cumstances above-mentioned) been introduced into
the operations of the executive power in England,
—such an exact justice have the people been ac-
customed, as a consequence, to expect from that
quarter, that even the sovereign, for his having
once suffered himself personally to violate the
safety of the subject, did not escape severe cen-
sure. The attack made, by order of Charles the
Second, on the person of sir John Coventry, filled
the nation with astonishment; and this violent
gratification of private passion, on the part of the
sovereign (a piece of self-indulgence with regard to
inferiors, to which whole classes of individuals in
certain countries almost think that they have a
right), excited a general ferment. “This event,”
says Bishop Burmet, “put the house of commons
“ in a furious uproar.—It gave great advantages to
“all those who opposed the court; and the names
“of the court and country party, which till now
“ had seemed to be forgotten, were revived.””
These are the limitations that have been set, in
* See Burnet's History, vol. i. anno 1669.--An act of par-
liament was made on this occasion, for giving a farther extent
to the provisions before made for the personal security of the
subject; which is still called the Coventry act.
3H2 THE CONSTITUTION
the English government, on the operations of the
executive power: limitations to which we find
nothing comparable in any other free states, an-
cient or modern; and which are owing, as we
have seen, to that very circumstance which seemed
at first sight to prevent the possibility of them,-I
mean the greatness and unity of that power; the
effect of which has been, in the event, to unite,
upon the same object, the views and efforts of all
orders of the people.
From this circumstance, that is, the unity and
peculiar stability of the executive power in Eng-
land, another most advantageous consequence has
followed, that has been before noticed, and which
is is not improper to mention again here, as this
chapter is intended to confirm the principles laid
down in the former ones;–I mean the unremitted
continuance of the same general union among all
ranks of men, and the spirit of mutual justice
which thereby continues to be diffused through all
orders of subjects.
Though surrounded by the many boundaries
that have just now been described, the crown, we
must observe, has preserved its prerogative undi-
vided : it still possesses its whole effective strength,
and is only tied by its own engagements, and
the consideration of what it owes to its dearest
interests.
The great, or wealthy men in the nation, who,
assisted by the body of the people, have succeeded
in reducing the exercise of its authority within
OF TENGLAND. 3]{3
such well-defined limits, can have no expectation
that it will continue to confine itself to them
any longer than they themselves continue, by
the justice of their own conduct, to deserve that
support of the people, which alone can make
them appear of consequence in the eye of the
Sovereign, no probable hopes that the crown
will continue to observe those laws by which
their wealth, dignity, liberty, are protected, any
longer than they themselves also continue to ob-
Serve them.
Nay more, all those claims of their rights
which they continue to make against the crown,
are encouragements which they give to the rest
of the people to assert their own rights against
them. Their constant opposition to all arbi-
trary proceedings of that power, is a continual
declaration they make against any acts of op-
pression which the superior advantages they en-
joy might entice them to commit on their in-
ferior fellow-subjects. Nor was that severe
censure, for instance, which they concurred in
passing on an unguarded violent action of their
sovereign, only a restraint put upon , the per-
sonal actions of future English kings; no, it was
a much more extensive provision for the se-
curing of public liberty;—it was a solemn en-
gagement entered into by all the powerful men
in the state to the whole body of the people,
scrupulously to respect the person of the lowest
among them.
314 THE CONSTITUTION
And indeed the constant tenor of the conduet,
even of the two houses of parliament, shows us
that the above observations are not matters of
mere speculation. From the earliest times we see
the members of the house of commons to have
been very cautious not to assume any distinction
that might alienate from them the affections of
the rest of the people.* Whenever those privi-
leges which were necessary to them for the dis-
charge of their trust have proved burdensome to
the community, they have retrenched them. And
those of their members who have applied either
these privileges, or in general that influence which
they derived from their situation, to any oppres-
sive purposes, they themselves have endeavoured
to bring to punishment.
Thus we see, that, in the reign of James the
First, sir Giles Montpesson, a member of the
house of commons, having been guilty of mono-
polies, and other acts of great oppression on the
people, was not only expelled, but impeached and
prosecuted with the greatest warmth by the
house, and finally condemned by the lords to be
* In all cases of public offences, down to a simple breach
of the peace, the members of the house of commons have no
privileges whatever above the rest of the people : they may
be committed to prison by any justice of the peace; and are
dealt with afterwards in the same manner as any other sub-
jects. With regard to civil matters, their only privilege is to
be free from arrests during the time of a session, and forty
days before, and forty days after : but they may be sued, by
process against their goods, for any just debt during that time.
OF ENGLAND. 315
publickly degraded from his rank of a knight, held
for ever an infamous person, and imprisoned
during life.
In the same reign, sir John Benet, who was
also a member of the house of commons, having
been found to have been guilty of corrupt prac-
tices, in his capacity of judge of the Prerogative
Court of Canterbury (such as taking exorbitant
fees, and the like), was expelled the house, and
prosecuted for those offences.
In the year 1641, Mr. Henry Benson, member
for Knaresborough, having been detected in sell-
ing protections, experienced likewise the indig-
nation of the house, and was expelled.
In fine, in order, as it were, to make it com—
pletely notorious, that neither the condition of
representative of the people, nor even any degree
of influence in their house, could excuse any one
of them from strictly observing the rules of justice,
the commons did on one occasion pass the most
severe censure they had power to inflict, upon
their speaker himself, for having, in a single in-
stance, attempted to convert the discharge of his
duty, as speaker, into the means of private emolu-
ment. Sir John Trevor, speaker of the house
of commons, having, in the sixth year of the reign
of king William, received a thousand guineas
from the city of London, “as a gratuity for the
“trouble he had taken with regard to the passing
“of the Orphan Bill,” was voted guilty of a
high crime and misdemeanor, and expelled the
316 THE CONSTITUTION
house. Even the inconsiderable sum of twenty
guineas which Mr. Hungerford, another member,
had been weak enough to accept on the same
score, was looked upon as deserving the notice of
the house; and he was likewise expelled.*
If we turn our view towards the house of lords,
we shall find that they have also constantly taken
care that their peculiar privileges should not
prove impediments to the common justice which
is due to the rest of the people.f. They have
constantly agreed to every just proposal that has
been made to them on that subject by the com-
mons: and indeed, if we consider the numerous
and oppressive privileges claimed by the nobles in
most other countries, and the vehement spirit
with which they are commonly asserted, we shall
think it no small praise to the body of the nobility
in England (and also to the nature of that govern-
* Other examples, of the attention of the house of com-
mons to the conduct of their members, might be produced,
either before or after, that which is mentioned here. The
reader may, for instance, see the relation of their proceedings
in the affair of the South-Sea Company scheme; and a few
years after, in that of the Charitable Corporation,-a fraudu-
lent scheme, particularly oppressive to the poor, for which
several members were expelled.
t In case of a public offence, or even a simple breach of the
peace, a peer may be committed till he finds bail, by any jus-
tice of the peace: and peers are to be tried by the common
course of law, for all offences under felony. With regard to
civil matters, they are at all times free from arrests; but ex-
ecution may be had against their effects, in the same manner
as against those of other subjects.
‘OF ENGLAND. 317
ment of which they make a part), that it has been
by their free consent that their privileges have
been confined to what they now are ; that is to
say, to no more, in general, than what is neces-
sary to the accomplishment of the end and con-
stitutional design of that house.
In the exercise of their judicial authority with
regard to civil matters, the lords have manifested a
spirit of equity nowise inferior to that which they
have shown in their legislative capacity. They
have, in the discharge of that function (which of
all others is so liable to create temptations), shown
an incorruptness really superior to what any judi-
cial assembly in any other nation can boast. Nor
do I think that I run any risque of being contra-
dicted, when I say, that the conduct of the house
of lords, in their civil judicial capacity, has con-
stantly been such as has kept them above the
reach of even suspicion or slander.
Even that privilege which they enjoy, of exclu-
sively trying their own members, in case of any
accusation that may affect their lives (a privilege
which we might at first sight think repugnant to
the idea of a regular government, and even
alarming to the rest of the people), has constantly
been rendered, by the lords, subservient to the
purpose of doing justice to their fellow-subjects;
and if we cast our eyes either on the collection
of the State Trials, or on the History of Eng-
land, we shall find very few examples, if any,
of a peer, really guilty of the offence laid to
3.18 THE CONSTITUTION
his charge, that has derived any advantage from
his not being tried by a jury of commoners.
Nor has this just and moderate conduct of the
two houses of parliament, in the exercise of their
powers (a moderation so unlike what has been re-
lated of the conduct of the powerful men in the
Roman republic), been the only happy consequence
of that salutary jealousy which those two bodies
entertain of the power of the crown. The same
motive has also engaged them to exert their ut-
most endeavours to put the courts of justice under
proper restraints; a point of the highest import-
ance to public liberty.
They have, from the earliest times, preferred
complaints against the influence of the crown over
these courts, and at last procured laws to be enact-
ed by which such influence has been entirely pre-
vented; all which measures, we must observe,
were at the same time strong declarations that no
subjects, however exalted their rank might be,
were to think themselves exempt from submitting
to the uniform course of the law, or hope to influ-
ence or over-awe it. The severe examples which
they have united to make on those judges who
have rendered themselves the instruments of the
passions of the sovereign, or of the designs of the
ministers of the crown, are also awful warnings to
the judges who have succeeded them, never to at-
tempt to deviate in favour of any, the most power-
ful individuals, from that straight line of justice
which the joint wisdom of the legislature has once
marked out to them.
OF ENGLAND. 319
This singular situation of the English judges,
relatively to the three constituent powers of the
state (and also the formidable support which they
are certain to receive from them as long as they
continue to be the faithful ministers of justice), has
at last created such an impartiality in the distri-
bution of public justice in England, has introduced
into the courts of law the practice of such a thorough
disregard to either the influence or wealth of the
contending parties, and procured toevery individual,
both such an easy access to these courts, and such
a certainty of redress, as are not to be paralleled
in any other government.—Philip de Comines, so
long as three hundred years ago, commended in
strong terms the exactness with which justice was
done in England to all ranks of subjects;* and the
impartiality with which the same is administered
in these days, will, with still more reason, excite
the surprise of every stranger who has an opportu-
nity of observing the customs of this country.f
* See page 33 of this work.
† Soon after I came to England for the first time (if the
reader will give me leave to make mention of myself in this "
case), an action was brought in a court of justice against a
prince very nearly related to the crown; and a noble lord was
also, much about that time, engaged in a law-suit for the pro-
perty of some valuable lead-mines in Yorkshire. I could not
but observe that in both these cases a decision was given
against the two most powerful parties; though I wondered but
little at this, because I had before heard much of the impartial-
ity of the law'proceedings in England, and was prepared to see
instances of that kind, But what I was much surprised at was
that nobody appeared to be in the least so, even at the strictness
326) THE CONSTITUTION
Indeed to such a degree of impartiality has the
administration of public justice been brought in
England, that it is saying nothing beyond the exact
truth, to affirm that any violation of the laws,
though perpetrated by men of the most extensive
influence—may, though committed by the special
direction of the very first servants of the crown—
will be publicly and completely redressed. And
the very lowest of subjects will obtain such redress,
if he has but spirit enough to stand forth, and ap-
peal to the laws of his country.—Most extraordi-
mary circumstances these! which those who know
the difficulty of establishing just laws among man-
kind, and of providing afterwards for their due ex-
ecution, only find credible because they are matters
of fact, and can begin to account for, only when
they look up to the constitution of the government
itself; that is to say, when they consider the cir-
cumstances in which the executive power, or the
crown, is placed in relation to the two bodies that
concur with it to form the legislature, the circum-
stances in which those two assemblies are placed
with which the ordinary course of the law had, particularly in
the former case, been adhered to, -and that those proceedings
which I was disposed to consider as great instances of justice,
to the production of which some circumstances peculiar to the
times, at least some uncommon virtue or spirit on the part of
the judges, must have more or less co-operated, were keoked
upon by all those whom I heard speak about it, as nothing more
than the common and expected courseof things. This circum-
stance became a strong inducement to me to enquire into the
aature of a government by which such effects were produced.
OF ENGLAND. 321
in relation to the crown, and to each other, and
the situation in which all the three find themselves
with respect to the whole body of the people."
*The assertion above made, with respect to the impartiality
with which justice is, in all cases, administered in England, not
being of a nature to be proved by alleging single facts, I have
entered into no particulars on that account. However, I will
subjoin two cases, which, I think, cannot but appear remarka-
ble to the reader.
The first is the case of the prosecution commenced in the
year 1763, by some journeymen printers, against the king's
messengers, for apprehending and imprisoning them for a short
time, by virtue of a general warrant from the secretary of state;
and that which was afterwards carried on by another private
individual against one of the secretaries themselves. In
these actions, all the ordinary forms of proceedings used in
cases of actions, between private subjects, were strictly ad-
hered to; and both the secretary of state, and the messengers,
were, in the end, condemned. Yet, which it is proper the reader
should observe, from all the circumstances that accompanied
this affair, it is difficult to propose a case in which ministers
could, of themselves, be under greater temptations to exert an
undue influence to hinder the ordinary course of justice. Nor
were the acts for, which those ministers were condemned acts of
evident oppression, which nobody could be found to justify.
They had done nothing but, follow a practice, of which they
found several precedents, established in their offices: and their
case, if I am well informed, was such that most individuals,
under similar circumstances, would have thought themselves
authorised to have acted as they had done.
The second case. I propose to relate, affords a singular in-
stance of the confidence with which all subjects in England
claim what they think their just rights, and of the certainty
with which the remedies of the law are in all cases open to them.
The fact, I mean, is the arrest executed in the reign of queen
Anue, in the year:1708, on the personvof the Russian ambas-
sador, by taking him out of his coach for the sum of fifty pounds.
Y
322 THE CONSTITUTION
In fine, a very remarkable circumstance in
Englishgovernment (and which alone evinces some-
thing peculiar and excellent in its nature), is that
spirit of extreme mildness with which justice, in
criminal cases, is administered in England; a point
with regard to which England differs from all other
countries in the world. p
When we consider the punishments in use in the
other states of Europe, we wonder how men can be
brought to treat their fellow-creatures with so much
cruelty; and the bare consideration of those punish-
ments would sufficiently convince us (if we did not
know the fact from other circumstances) that the
men in those states who frame the laws, and preside
over their execution, have little apprehension that
either they, or their friends, will ever fall victims
to those laws which they thus rashly establish.
In the Roman republic, circumstances of the same
nature with those just mentioned were also produc-
And the consequences that followed this fact are still more re-
markable. The czar highly resented the affront, and demand-
ed that the sheriff of Middlesex, and all others concerned in
the arrest, should be punished withiinstant death. “But the
queen” (to the amazement of that despotic court, says judge
Blackstone, from whom I borrow this fact) “directed the secre-
“ tary of state to inform him that she could inflict no punish-.
“ment uponany, the meanest of hersubjects, unless warranted by
“the law of the land.”—Anact was afterwards passed to free from
arrest the persons of foreign ministers, and such of their ser-
vants as they have delivered a list of to the secretary of state.
A copy of this act, elegantly engrossed and illuminated, conti-
nues judge Blackstone, was sent to Moscow, and an ambassador,
extraordinary commissioned to deliver it.
OF ENGIAND. 323
tive of the greatest defects in the kind of criminal
justice which took place in it. That class of citi-
zens who were at the head of the republic, and
who knew how mutually to exempt each other from
the operation of any too severe laws or practice, not
only allowed themselves great liberties, as we have
seen, in disposing of the lives of the inferior citizens,
but had also introduced, into the exercise of the
illegal powers they assumed to themselves in that
respect, a great degree of cruelty.”
Nor were things more happily conducted in the
Grecian republics. From their democratical nature,
and the frequent revolutions to which they were
subject, we naturally expect to find that authority
used with mildness, which those who enjoyed it
must have known to have been precarious; yet such
were the effects of the violence attending those very
revolutions, that a spirit both of great irregularity
and cruelty had taken place among the Greeks
in the exercise of the power of inflicting punish-
ments. The very harsh laws of Draco are well
known, of which it was said that they were not
written with ink, but with blood. The severe laws
of the Twelve Tables among the Romans were in
* The common manner in which the senate ordered citizens
to be put to death, was by throwing them headlong from the
top of the Tarpeian rock. The consuls or other particular ma-
gistrates, sometimes caused citizens to expire upon a cross; or,
which was a much more common case, ordered them to be
beaten to death, with their heads fastened between the
branches of a fork; which they called cervicem furcae inserere.
Y 2
324 THE CONSTITUTION
great part brought over from Greece. And it was
an opinion commonly received in Rome, that the
cruelties practised by the magistrates on the citizens
were only imitations of the examples which the
Greeks had given them.*
In fine, the use of torture, that method of admi-
mistering justice, in which folly may be said to be
added to cruelty, had been adopted by the Greeks
in consequence of the same causes which had
concurred to produce the irregularity of their cri-
minal justice. And the same practice continues, in
these days, to prevail on the continent of Europe,
in consequence of that general arrangement of
things which creates there such a carelessness
about remedying the abuses of public authority.
But the nature of that same government which
has procured to the people of England all the
advantages we have before described, has, with still
more reason, freed them from the most oppressive
abuses which prevail in other countries.
That wantonness in disposing of the dearest
rights of mankind, those insults upon human nature,
of which the frame of the governments established in
other states unavoidably beeomes more or less pro-
ductive, are entirely banished from a nation which
has the happiness of having its interest guarded by
* Caesar expressly reproaches the Greeks with this fact
in his speech in favour of the accomplices of Catiline,
which Sallust has transmitted to us—Eodem illo tempore,
Graecia morem imitati (majores nostri), verberibus animadver-
abant in cives ; de condemnatis summum supplicium sumebant.
OF ENGLAND. 325
men who continue to be themselves exposed to the
pressure of those laws which they concur in making,
and of every tyrannic practice which they suffer to
be introduced,—by men whom the advantages
which they possess above the rest of the people
render only more exposed to the abuses they are
appointed to prevent, only more alive to the dangers
against which it is their duty to defend the com—
munity.* iº
Hence.we see that the use of torture has, from
theearliest times, been utterly unknown in England.
And all attempts to introduce it, whatever might
be the power of those who made them, or the cir-
cumstances in which they renewed their endeavours,
have been strenuously opposed and defeated.[
From the same cause also arose that remarkable
forbearance of the English laws to use any cruel
severity in the punishments which experience show-
edit was necessary for the preservation of society to
establish; f and the utmost vengeance of those laws,
* Historians take notice that the commons, in the reign of
Charles II., made haste to procure the abolition of the old sta-
tute, De Haeretico comburendo (for burning Heretics), as soon
as it became publicly known that the presumptive heir to the
crown was a Roman catholic. Perhaps they would not have
been so diligent and earnest, if they had not been fully con-
vinced that a member of the house of commons, or his friends,
might be brought to trial as easily as any other individuals
among the people, so long as an express and written law could
be produced against them.
t See the two notes in page 153 and 154 of this work.
I Was not the practice of burning a fellow-creature the most
cruel severity that could be exercised ? Yet this horrible inhu-
: 326 THE CONSTITUTION
even against the most enormous offenders, never
extends beyond the simple deprivation of life.”
Nay, so anxious has the English legislature been
to establish mercy, even to convicted offenders, as a
fundamental principle of the government of England,
that they made it an express article of that great
public compact which was framed at the important
aera of the Revolution, that “no cruel and unusual
punishments’’ should be enforced. H. They even
endeavoured, by adding a clause for that purpose
to the oath which kings were thenceforward to take
at their coronation, as it were to render it an ever-
lasting obligation of English kings, to make justice
to be “executed with mercy.””
manity long prevailed in England in the case of supposed he-
resy, and to a much later period, against females condemned for
treason, or the murder of their husbands. EDIT.
* A very singular instance occurs in the history of the year
1605, of the care of the English legislature not to suffer prece-
dents of cruel practices to be introduced. During the time
that those concerned in the gunpowder-plot were under sen-
tance of death, a motion was made in the house of commons
to petition the king, that the execution might be stayed, in
order to consider of some extraordinary punishment to be in-
flicted upon them: but this motion was rejected. A proposal
of the same kind was also made in the house of lords, where it
was dropped.—See the Parliamentary History of England, vol. v.
anno 1605.
t See the Bill of Rights, Art.x.—“ Excessive bail ought
“not to be required, nor excessive fines imposed; not cruel
“ and unusual punishments inflicted.”
# Those same dispositions of the English legislature which
have led them to take such precautions in favour even of con-
victed offenders, have still more engaged them to make provi-
OF ENGIAND. 327
CHAPTER XVII.
A more inward View of the English Government
than has hitherto been offered to the Reader in
the Course of this Work-Very essential Dif.
ferences between the English Monarchy, as a
Monarchy, and all those with which we are
acquainted.
THE doctrine constantly maintained in this work,
and which has, I think, been sufficiently supported
by facts and comparisons drawn from the history
of other countries, is, that the remarkable liberty
enjoyed by the English nation is essentially owing
to the impossibility under which their leaders, or
in general all men of power among them, are placed,
of invading and transferring to themselves any
branch of the governing executive authority; which
authority is exclusively vested, and firmly secured
in the crown. Hence the anxious care with which
those men continue to watch the exercise of that
sions in favour of such persons as are only suspected and ac-
cused of having committed offences of any kind. Hence the zeal
with which they have availed themselves of every important oc-
casion,-such for instance, as that of the Revolution, —to pro-
cure new confirmations to be given to the institution of the trial
by jury to the laws on imprisonments, and in general to that
system of criminal jurisprudence of which a description has been
given in the first part of this work.
328 THE CONSTITUTION
authority. Hence their perseverance in observing
every kind of engagement which themselves may
have entered into with the rest of the people.
But here a consideration of a most importantkind
presents itself: How comes the crown in England
thus constantly to preserve to itself (as we see it
does) the executive authority in the state, and more-
over to preserve it so completely as to inspire the
great men in the nation with that conduct so ad-
vantageous to public liberty, which has just been
mentioned 2 These are effects which we do not find,
upon examination, that the power of crowns has
hitherto been able to produce in other countries.
In all states of a monarchical form, we indeed
see that those men whom their rank and wealth,
or their personal power of any kind, have raised
above the rest of the people, have formed combi—
nations among themselves to oppose the power of
the monarch. But their views, we must observe,
in forming these combinations, were not by any
means to set general and impartial limitations on
the sovereign authority. They endeavoured to
render themselves entirely independent of that au–
thority; or even utterly to annihilate it, according
to circumstances.
Thus we see that in all the states of ancient
Greece, the kings were at last destroyed and ex-
terminated. The same event happened in Italy,
where in remote times there existed for a while
several kingdoms, as we learn both from the ancient
historians and poets. And in Rome, we even knew
OF ENGLAND. 329
the manner and circumstances in which such a re-
volution was brought about.
In more modern times, we see the numerous mo–
marchical sovereignties (which had been raised in
Italy on the ruins of the Roman empire) successively
destroyed by powerful factions; and events of much
the same nature have at different times taken place
in the kingdoms established in the other parts of
Europe.
In Sweden, Denmark, and Poland, for instance,
we find the nobles reducing their sovereigns to the
condition of simple presidents over their assemblies,
—of mere ostensible heads of the government.
In Germany and in France, countries where the
monarchs, being possessed of considerable demesnes,
were better able to maintain their independence
than the princes just mentioned, the nobles waged
war against them, sometimes singly and sometimes
jointly; and events similar to these have succes-
sively happened in Scotland, Spain, and the modern
kingdoms of Italy.
In fine, it has only been by means of standing
armed forces that the sovereigns of most of the
kingdoms we have mentioned have been able, in a
course of time, to assert the prerogatives of the
crown. And it is only by continuing to keep up
such forces, that, like the eastern monarchs, and in-
deed like all the monarchs that ever existed, they
continued to be able to support their authority.
How therefore can the crown of England, with-
out the assistance of any armed force, maintain, as
330 THE CONSTITUTION
it does, its numerous prerogatives? How can it, un-
der such circumstances, preserve to itself the whole
-executive power in the state 2 For here we must
observe, the crown in England does not derive any
support from what regular forces it has at its dis-
posal; and if we doubted this fact, we need only
look to the astonishing subordination in which the
military is kept to the civil power, to become
convinced that an English king is not indebted to
his army for the preservation of his authority.”
If we could suppose that the armies of the kings
of Spain or of France, for instance, were, through
some very extraordinary circumstance, all to vanish
in one night, the power of those sovereigns, we
must not doubt, would, in six months, be reduced
to a mere shadow. They would immediately be-
hold their prerogatives, however formidable they
may be at present, invaded and dismembered;f and
supposing that regular governments continued to
exist, they would be reduced to have little more in-
fluence in them than the doges of Venice or of Genoa
possess in the governments of those republics.f
How therefore, to repeat the question once
more, which is one of the most interesting that can
* Henry VIII. the most absolute prince, perhaps, who ever
sat upon a throne, kept no standing army.
t As was the case in the several kingdoms into which the
Spanish monarchy was formerly divided; and in no very remote
times, in France itself.
f Or than the kings of Sweden were allowed to enjoy, before
the last revolution in that country—[that which took place in
1772.]
OF ENGLAND. 331
occur in politics, how can the crown in England
without the assistance of any armed force, avoid
those dangers to which all other sovereigns are ex-
posed ?
How can it, without any such force, accomplish
even incomparably greater works than those sove-
reigns, with their powerful armies, are, we find, in
a condition to perform 2–How can it bear that
universal effort, (unknown in other monarchies),
which, we have seen, is continually and openly ex-
erted against it 2 How can it even continue to re-
sist this effort so powerfully as to preclude all in-
dividuals whatever from entertaining any views
besides those of setting just and general limitations
to the exercise of its authority ? How can it enforce
the laws upon all subjects, indiscriminately, without
injury or danger to itself? How can it, in fine, im-
press the minds of all the great men in the state
with so lasting a jealousy of its power, as to neces-
sitate them, even in the exercise of their undoubted
rights and privileges, to continue to court and de-
serve the affection of the rest of the people?
Those great men, I shall answer, who even in
quiet times prove so formidable to other monarchs,
are in England divided into two assemblies; and
such, it is necessary to add, are the principles upon
which this division is made, that from it result, as
necessary consequences, the solidity and the indi-
visibility of the power of the crown.
The reader may perceive that I have led him,
in the course of this work, much beyond the line
332 THE CONSTITUTION
within which writers on the subject of government
have confined themselves; or rather, that I have
followed a track entirely different from that which
those writers have pursued. But as the observation
just made, on the stability of the power of the
crown in England, and the cause of it, is new in its
kind, so do the principles from which its truth is to
be demonstrated totally differ from what is com-
monly looked upon as the foundation of the science
of politics. To lay those principles here before the
reader, in a manner completely satisfactory to him,
would leadius into philosophical discussions on what
really constitutes the basis of governments and
power amongst mankind, both extremely long,
and in a great measure foreign to the subject of this
book. I shall therefore content myself with
proving the above observations by facts; which is
more, after all, than political writers usually under-
take to do with regard to their speculations.
As I chiefly propose to show that the extensive
liberty the English enjoy is the result of the pecu-
liar frame of their government, and occasionally to
compare the same with the republican form, I even
had at first intended to confine myself to that cir-
cumstance, which both constitutes the essential
difference between those twoforms of government,
and is the immediate cause of English liberty,’—
Imean the having placed all the executive authority
in the state out of the hands of those in whom the
people trust. With regard to the remote cause of
that same liberty, that is to say, the stability of

OF ENGLAND, 333
the power of the crown, the singular solidity, with-
out the assistance of any armed force, by which
this executive authority is so secured, I should per-
haps have been silent, had I not found it absolutely
necessary to mention the fact in this place, in order
to obviate the objections which the more reflecting
part of readers might otherwise have made, both
to several of the observations before offered to them,
and to a few others which are soon to follow. .
Besides, I shall confess here, I have been several
times under apprehensions, in the course of this
work, that the generality of readers, misled by the
similarity of names, might put too extensive a
construetion upon what I said with regard to the
usefulness of the power of the crown in England;
—that they might accuse or suspect me, for
instance, of attributing the superior advantages of
the English mode of government over the republi-
can form, merely to its approaching nearer to the
mature of the monarchies established in the other
parts of Europe, and of looking upon every kind of
monarchy as preferable in itself to a republican
government;-an opinion which I do not by any
means, or in any degree, entertain : I have too
much affection, or (if you please) prepossession, in
favour of that form of government under which I
was born ; and, as I am sensible of its defects, so
do I know how to set a value upon the advantages
by which it compensates for them.
I therefore have, as it were, made haste to avail.
myself of the first opportunity of explaining my
334 THE CONSTITUTION
meaning on this subject, of indicating that the
power of the crown in England stands upon found-
ations entirely different from those on which the
same power rests in other countries, and of en-
gaging the reader to observe (which for the pre-
sent will suffice), that, as the English monarchy.
differs, in its nature and main foundations, from
every other, so all that is said here of its advan-
tages is peculiar and confined to it. -
But to come to the proofs (derived from facts)
of the solidity accruing to the power of the crown.
in England, from the co-eristence of the two assem-
blies which concur to form the English parliament,
I shall first point out to the reader several open
acts of these two houses, by which they have by-
turns effectually defeated the attacks of each other.
upon its prerogative.
Without looking farther back for examples than
the reign of Charles the Second, we see that the
house of commons had, in that reign, begun to
adopt the method of adding (or tacking, as it is
commonly expressed) such bills as they wanted
more particularly to have passed, to their money
bills. This forcible use of their undoubted privi-
lege of granting money, if it had been suffered to
grow into common practice, would have totally de-
stroyed the equilibrium that ought to subsist be-,
tween them and the crown. But, the lords took .
upon themselves the task of maintaining that
equilibrium; they complained with great warmth
of the several precedents, that were made by the
OF ENGLAND. 335
commons, of the practice we mention : they insist-
ed that bills should be framed “ in the old and
decent way of parliament ; ” and at last made it
a standing order of their house, to reject, upon
the sight of them, all bills that are tacked to
money bills. -
Again, about the thirty-first year of the same
reign, a strong party prevailed in the house of
commons; and their efforts were not entirely con-
fined, if we may credit the historians of those
times, to serving their constituents faithfully, and
providing for the welfare of the state. Among
other bills which they proposed in their house,
they carried one to exclude from the crown the
immediate heir to it; an affair this, of a very high
nature; and with regard to which it may well be
questioned whether the legislative assemblies have
a right to form a resolution, without the express
and declared concurrence of the body of the
people. But both the crown and the nation were
delivered from the danger of establishing such a
precedent, by the interposition of the lords, who
threw out the bill on the first reading.
In the reign of king William the Third, a few
years after the Revolution, attacks were made
upon the crown from another quarter. A strong
party was formed in the house of lords; and, as we
may see in Bishop Burnet's History of his Own
Times, they entertained very deep designs. One
of their views, among others, was to abridge the
royal prerogative of calling parliaments, and judg-
336 THE CONSTITUTION
ing of the propertimes of doing it". They accord-
ingly framed and carried in their house a bill for
ascertaining the sitting of parliament every year:
but the bill, after it had passed in their house, was
rejected by the commons.#
Again, we find, that, a little after the acces-
sion of king George the First, an attempt was
made by a party in the house of lords, to wrest
from the crown a prerogative which is one of its
finest flowers, and is, besides, the only check it
has on the dangerous views which that house
(which may stop both money bills and all other
bills) might be brought to entertain; I mean the
right of adding new members to it, and judging
of the times when it may be necessary to do so.
A bill was accordingly presented, and carried, in
the house of lords, for limiting the members of
that house to a fixed number, beyond which it
should not be increased; but after great pains
taken to ensure the success of this bill, it was at
last rejected by the commons.
* They, besides, proposed to have all money bills stopped
in their house, till they had procured the right of taxing them-
selves, their own estates, and to have a committee of lords,
and a certain number of the commons, appointed to confer
together concerning the state of the nation: “which com-
“mittee (says Bishop Burnet) would soon have grown to have
“been a council of state, that would have brought all affairs
“under their inspection, and never had been proposed but
“when the nation was ready to break into civil wars.”—See
Burnet's History, anno 1693.
+ Nov. 28, 1693.
OF ENGLAND. 337
In fine, the several attempts which a majority
in the house of commons have in their turn made
to restrain, farther than it now is, the influence
of the crown arising from the distribution of pre-
ferments and other advantages, have been checked
by the house of lords, and all place-bills have,
from the beginning of this century," constantly
miscarried in that house.f
Nor have these two powerful assemblies only
succeeded in thus warding off the open attacks of
each other on the power of the crown. Their
co-existence, and the principles upon which they
are severally framed, have been productive of an-
other effect much more extensive, though at first
less attended to,-I mean the preventing even the
making of such attacks; and in times too, when
the crown was of itself incapable of defending its
authority; the views of each house destroying,
upon these occasions, the opposite views of the
other, like those positive and negative equal quan-
tities (if I may be allowed the comparison), which
* Now the last that is, the eighteenth.—EDIT.
t This assertion is too general; for, by a statute of the
sixth year of queen Anne, persons holding any office under the
crown, created since 1705, are obliged to vacate their seats,
without being absolutely certain of re-election. It may be
added, though contractors are not (in strictness of speech)
place-men, that, with the same view of restraining the in-
fluence of the crown, they have been declared ineligible to a
seat in parliament, by an act of the twenty-second year of the
present reign.—EDIT.
Z
338 THE CONSTITUTION
destroy each other on the opposite sides of an
equation.
Of this we have several remarkable examples:
for instance, when the sovereign has been a mi-
nor. If we examine the history of other nations,
especially before the invention of standing armies,
we shall find that the event we mention never
failed to be attended with open invasions of the
royal authority, or even sometimes with complete
and settled divisions of it. In England, on the con-
trary, whether we look at the reign of Richard II.
or that of Henry VI. or of Eäward VI. we shall
see that the royal authority was quietly exercised
by the councils that were appointed to assist those
princes; and when they came of age, it was de-
livered over to them undiminished.
But nothing so remarkable can be alledged on
this subject as the manner in which the two
houses have acted upon those occasions, when, the
crown being without any present possessor, they had
it in their power, both to settle it on what person
they pleased, and to divide and distribute its effec-
tual prerogatives, in what manner, and to what set
of men, they might think proper. Circumstances
like these we mention have never failed, in other
kingdoms, to bring on a division of the effectual
authority of the crown, or even of the state itself.
In Sweden, for instance (to speak of a kingdom
which has borne the greatest outward resemblance
to that Öf England) when queen Christina was
put under a necessity of abdicating the crown,
OF ENGLAND. 339
and it was transferred to the prince who stood
next to her in the line of succession, the executive
authority in the state was immediately divided,
and either distributed among the nobles, or as-
signed to the senate, into which the nobles alone
could be admitted; and the new king was only
to be a president over it.
After the death of Charles the Twelfth, who
died without male heirs, the disposal of the crown
(the power of which Charles the Eleventh had
found means to render again absolute) returned to
the states, and was settled on the princess Ulrica,
and the prince her husband. But the senate, at the
same time it thus settled the possession of the
crown, again assumed to itself the effectual au-
thority which had formerly belonged to it. The
privilege of assembling the states was vested in
that body. They also secured to themselves the
power of making war and peace, and treaties with
foreign powers, the disposal of places, the com-
mand of the army and of the fleet,_and the ad-
ministration of the public revenue. Their number
was to consist of sixteen members. The majority
of votes was to be decisive upon every occasion.
The only privilege of the new king was to have
his vote reckoned for two: and if at any time he
should refuse to attend their meetings, the busi-
ness was nevertheless to be done as effectually
and definitively without him.”
* The senate had procured a seal to be made, to be af-
fixed to their official resolutions, in case the king should re-
Z 2
340 THE CONSTITUTION
But in England, the revolution of the year 1689
was terminated in a manner totally different.
fuse to lend his own. The reader will find more particulars
concerning the former government of Sweden in the nine-
teenth chapter.
Regulations of a similar nature had been made in Denmark,
and continued to subsist, with some variations, till the re-
volution which, in the seventeenth century, placed the whole
power of the state in the hands of the crown without control.
The different kingdoms into which Spain was formerly divided,
were governed in much the same manner.
And in Scotland, that seat of anarchy and aristocratical
feuds, the great offices in the state were not only taken from
the crown, but they were moreover made hereditary in the
principal families of the body of the nobles: such were the
offices of high admiral, high steward, high constable, great
chamberlain, and justice general; this last office implied
powers analogous to those of the chancellor and the chief
justice of the king's bench, united.
The king's minority, or personal weakness, or, in general,
the difficulties in which the state might be involved, were cir-
cumstances of which the Scotch leaders never failed to avail
themselves, for invading the governing authority. A remark-
able instance of the claims which they used to set forth on
those occasions, occurs in a bill that was framed in the year
1703, for settling the succession to the crown, after the demise
of the queen, under the title of An Act for the Security of the
Kingdom.
The Scotch parliament was to sit by its own authority every
year, on the first day of November, and adjourn itself as it
should think proper. -
The king was to give his assent to all laws agreed to, and
offered by, the estates; or commission proper officers for
doing the same.
A committee of one and thirty members, chosen by the par-
liament, were to be called the King's Council, and govern dur-
ing the recess, being accountable to the parliament.
OF ENGLAND. 34I
Those who at that interesting epoch had the
guardianship of the crown, those in whose hands
it lay vacant—did not manifest so much as a
thought to split and parcel out its prerogative.
They tendered it to a single indivisible possessor,
impelled as it were by some secret power operating
upon them, without any salvo, without any ar-
ticle to establish the greatness of themselves or
of their families. It is true, those prerogatives
destructive of public liberty, which the late king
had assumed, were retrenched from the crown ;
and thus far the two houses agreed. But as to
any attempt to transfer to other hands any part of
the authority of the crown, no proposal was even
made about it. Those branches of prerogative
which were taken from the kingly office were an-
nihilated, and made to cease to exist in the state:
and all the executive authority that was thought
necessary to be continued in the government, was,
as before, left undivided in the crown.
In the very same manner was the whole autho-
rity of the crown transferred afterwards to the
princess who succeeded king William the Third,
and who had no other claim to it but what was
conferred on her by the parliament. And in the
same manner again it was settled, a long time
The King was not to make any foreign treaty without the
consent of parliament. -
All places and offices, both civil and military, and all pen-
sions formerly given by the king, were ever after to be given
by parliament. See Parliamentary Debates, A. 1703.
3.42 THE CONSTITUTION
beforehand, on the princes of Hanover who suc-
ceeded her.”
There is yet one more extraordinary fact, to
which I desire the reader to give attention.—Not-
withstanding all the revolutions we mention, al-
though parliament hath sat every year since the
beginning of this century, and though they have
constantly enjoyed the most unlimited freedom,
both as to the subjects and the manner of their
deliberations, and numberless proposals have in
consequence been made,-yet such has been the
efficiency of each house, in destroying, prevent-
ing, or qualifying, the views of the other, that
the crown has not been obliged during all that
period to make use, even once, of its negative
* It may not be improper to observe here, as a farther proof
of the indivisibility of the power of the crown (which has been
above said to result from the peculiar frame of the English
government), that no part of the executive authority of the
king is vested in his privy council, as it was in the senate of
Sweden: the whole business centres in the sovereign; the
votes of the members are not even counted; and in fact, the
constant style of the law is, the king in council, and not the
king and council. A proviso is indeed sometimes added to
some bills, that certain acts mentioned in them are to be
transacted by the king in council; but this is only a precau-
tion taken in the view that the most important affairs of a great
nation may be transacted with proper solemnity, and to pre-
vent, for instance, all objections that might, in process of
time, be drawn from the uncertainty whether the king had
assented, or not, to certain particular transactions. The king
names the members of the privy council; or excludes them,
by causing their names to be struck out of the book.
OF ENGLAND. 343
voice; and the last bill rejected by a king of Eng-
land was that rejected by king William the Third
in the year 1692, for triennial parliaments.”
There occurs another instance yet more remark-
able of this forbearing conduct of the parliament
in regard to the crown, to whatever open or latent
cause it may be owing, and how little their esprit
de corps in reality leads them, amidst the apparent
heat sometimes of their struggles, to invade its
governing executive authority: I mean, the faci-
lity with which they have been prevailed upon to
give up any essential branch of that authority,
even after a conjunction of preceding circum-
stances had caused them to be actually in posses-
sion of it: a case this, however, that has not
frequently happened in the English history. After
the restoration of Charles the Second, for instance,
the parliament, of their own accord, passed an
act (in the first year that followed that event), by
which they annihilated, at pne stroke, both the
independent legislative authority, and all claims
to such authority, which they had assumed dur-
ing the preceding disturbances: by the stat.
13 Car. II. c. 1. it was forbidden, under the pe-
malty of a praemunire, to affirm that either of the
two houses of parliament, or both jointly possess,
without the concurrence of the king, the legisla-
tive authority. In the fourth year after the Re-
storation, another capital branch of the governing
* He assented a few years afterwards to that bill, when
several amendments had been made in it.
344 THE CONSTITUTION
authority of the crown was also restored to it,
without any manner of struggle:—by the stat.
16 Car. II. c. 1. the act was repealed by which
it had been enacted, that in case the king should
neglect to call a parliament once at least in three
years, the peers should issue the writs for an elec-
tion : and that, should they neglect to issue the
same, the constituents should of themselves assem-
ble to elect a parliament.
It is here to be observed, that, in the same
reign, the parliament passed the Habeas Corpus
Act, as well as the other acts that prepared for
the same, and in general showed a jealousy in
watching over the liberty of the subject, superior
perhaps to what has taken place at any other pe-
riod of the English history. This is another
striking confirmation of what has been remarked
in a preceding chapter, concerning the manner in
which public disturbances have been terminated
in England. Here we find a series of parliaments
to have been tenaciously and perseveringly jealous
of those kinds of popular universal provisions,
which great men in other states ever disdained
seriously to think of, or give a place to, in those
treaties by which internal peace was restored to
the nation ; and at the same time these parlia-
ments cordially and sincerely gave up those high
and splendid branches of governing authority,
which the senates, or assemblies of great men
who surrounded the monarchs in other limited
monarchies, never ceased anxiously to strive to
OF ENGLAND. 345
assume to themselves,—and which the monarchs,
after having lost them, never were able to recover
but by military violence, aided by surprise, or
through national commotions. All these are po-
litical singularities, certainly remarkable enough.
It is a circumstance in no small degree conducive
to the solidity of the executive authority of the
English crown (which is the subject of this chap-
ter), that those persons who seem to have it in
their power to wrest the same from it, are even
prevented from entertaining thoughts of doing so.”
* I shall mention another instance of this real disinterested-
ness of the parliament in regard to the power of the crown;–
nay, of the strong bent that prevails in that assembly to make
the crown the general depository of the executive authority of
the nation; I mean to speak of the manner in which they are
accustomed to provide for the execution of such resolutions of
an active kind as they may at times adopt : it is always by ad-
dressing the crown for that purpose, and desiring it to interfere
with his own executive authority. Even in regard to the print-
ing of their Journals, the crown is applied to by the commons,
with a promise of making good to it the necessary expenses.
Certainly, if there existed in that body any latent anxiety, any
real ambition (I speak here of the general tenor of their con-
duct) to invest themselves with the executive authority in the
state, they would not give up the providing by their own
authority, at least for the object just mentioned; it might give
them a pretence for having a set of officers belonging to them,
as well as a treasury of their own, and, in short, for establish-
ing in their favour some sort of beginning or precedent; at the
same time that a wish on their part, to be the publishers of
their own journals, could not be decently opposed by the
crown, nor would be likely to be disapproved by the public.
To some readers the fact we are speaking of may appear
346 THE CONSTITUTION
As another proof of the peculiar solidity of the
power of the crown, in England, may be men-
tioned the facility, and safety to itself and to the
state, with which it has at all times been able to
deprive any particular subjects of their different
offices, however overgrown and even dangerous
their private power might seem to be. A very
remarkable instance of this kind occurred when
the great duke of Marlborough was suddenly re-
moved from all his employments: the following is
the account given by dean Swift in his “History
“ of the four last Years of the Reign of Queen
“Anne.” º
“As the queen found herself under a neces-
“sity, either, on the one side, to sacrifice those
“friends, who had ventured their lives in rescuing
“her out of the power of some, whose former
“treatment she had little reason to be fond of.-
“to put an end to the progress she had made
“towards a peace, and dissolve her parliament;
trifling; to me it does not seem so; I confess I never see a
paragraph in the newspapers, mentioning an address to the
crown for borrowing its executive prerogative in regard to the
inconsiderable object here alluded to, without pausing on the
article. Certainly there must exist causes of a very peculiar
nature, which produce in an assembly possessed of so much
weight that remarkable freedom from any serious ambition to
push their advantages farther, which inspire it with the great
political forbearance we have mentioned, with so sincere an
indifference in general, in regard to arrogating to themselves
any branch of the executive authority of the crown: they
really seem as if they did not know what to do with it after
having acquired it, or of what kind of service it may be to them.
OF ENGIAND. 34?
“ or, on the other side, by removing one person
“from so great a trust, to get clear of all her
“ difficulties at once; her majesty determined upon
“ the latter expedient, as the shorter and safer
“course; and during the recess at Christmas,
“sent the duke a letter, to tell him she had no
“farther occasion for his service. &
“There has not perhaps in the present age
“ been a clearer instance to show the instability of
“greatness which is not founded on virtue: and
“it may be an instruction to princes who are well
“in the hearts of their people, that the overgrown
“ power of any particular person, although sup-
“ ported by exorbitant wealth, can, by a little
“ resolution, be reduced in a moment, without any
“ dangerous consequences. This lord, who was,
“beyond all comparison, the greatest subject in
“Christendom, found his power, credit, and influ-
“ence, crumble away on a sudden; and except
“a few friends and followers, the rest dropped off
“ in course,” &c. (B.I. near the end.)
The ease with which such a man as the duke
was suddenly removed, dean Swift has explained
by the necessary advantages of princes who pos-
sess the affection of their people, and the natural
weakness of power which is not founded on virtue.
However, these are very unsatisfactory explana-
tions. The history of Europe, in former times,
presents a continual series of examples to the con-
trary. We see in it numberless instances of
princes incessantly engaged in resisting in the field
348 THE CONSTITUTION
the competition of the subjects invested with the
eminent dignities of the realm, who were not by
any means superior to them in point of virtue,
or, at other times, living in a continual state of
vassalage under some powerful man whom they
durst not resist, and whose power, credit, and
influence, they would have found it far from pos-
sible to reduce in a moment, or crumble on a sud-
den, by the sending of a single letter, even though
assisted by a little resolution, to use dean Swift's
expressions, and without any dangerous conse-
‘quences.
Nay, certain kings, such as Henry the Third of
France, in regard to the duke of Guise, and James
the Second of Scotland, in regard to the two earls
of Douglas successively, had at last recourse to
plot and assassination; and expedients of a similar
sudden violent kind are the settled methods adopted
by the eastern monarchs; nor is it very sure that
they can always easily do otherwise.*
* We might also mention here the case of the emperor
Ferdinand II. and the duke of Walstein, which seems to have
at the time made a great noise in the world.—The earls of
Douglas were sometimes attended by a retinue of two thousand
horse. See Dr. Robertson's History of Scotland.—The duke
of Guise was warned, some hours before his death, of the dan-
ger of trusting his person in the king's presence or house; he
answered, On m'oseroit, They durst not.
If Mary, queen of Scots, had possessed a power analogous
to that exerted by queen Anne, she might perhaps have
avoided being driven into those instances of ill-conduct which
were followed by such tragical consequences.
OF ENGLAND. 349
Even in the present monarchies of Europe, not-
withstanding the awful force by which they are
outwardly supported, a discarded minister is the
cause of more or less anxiety to the governing
authority; especially if, through the length of
time he has been in office, he happens to have
acquired a considerable degree of influence. He
is generally sent and confined to one of his estates
in the country, which the crown names to him : he
is not allowed to appear at court, nor even in the
metropolis; much less is he suffered to appeal to
the people in loud complaints, to make public
speeches to the great men in the state, and intrigue
among them, and, in short, to vent his resentment
by those bitter, and sometimes desperate methods,
which, in the constitution of this country, prove in
a great measure harmless. -
But a dissolution of the parliament, that is, the
dismission of the whole body of the great men in
the nation, assembled in a legislative capacity, is
a circumstance in the English government, in a
much higher degree remarkable and deserving our
notice than the depriving any single individual,
however powerful, of his public employments.
When we consider in what an easy and complete
manner such a dissolution is effected in England,
we must become convinced that the power of the
crown bears upon foundations of very uncommon,
though perhaps hidden, strength; especially if we
attend to the several facts that take place in other
countries.
350 - THE constituTION
In France, for example, * we find the crown,
notwithstanding the immense outward force by
which it is surrounded, to use the utmost caution
in its proceedings towards the parliament of Paris;
an assembly only of a judiciary nature, without
any legislative authority or avowed claim, and
which, in short, is very far from having the same
weight in the kingdom of France as the English
parliament has in England. The king never
repairs to that assembly, to signify his intentions,
or hold a lit de justice, without the most overawing
circumstances of militaryapparatus and preparation,
constantly choosing to make his appearance among
them rather as a general than as a king. -
And when the late king,t having taken a se-
rious alarm at the proceedings of this parliament,
at length resolved upon their dismission, he fenced
himself, as it were, with his army; and military
messengers were sent with every circumstance of
secrecy and dispatch, who, at an early part of the
day, and at the same hour, surprised each member
in his own house, causing them severally to retire to
distant parts of the country, which were described
to them, without allowing them time to consider,
much less to meet, and hold any consultation.
But the person who is invested with the kingly
office in England, has need of no other weapon, no
other artillery, than the civil insignia of his digni-
* The reader must still keep in mind the time when the
author last revised his work; namely, the year 1784.—EDIT.
f Louis the Fifteenth. .
Ołº ENGLAND. 35:1
ty to effect a dissolution of the parliament. He
steps into the midst of them, telling them that they
are dissolved ; and they are dissolved:—he tells
them that they are no longer a parliament; amd
they are no longer so. Like the wand of Popilius,”
a dissolution instantly puts a stop to their warmest
debates and most violent proceedings. The per-
emptory words by which it is expressed have no
sooner met their ears, than all their legislative
faculties are benumbed : though they may still be
sitting on the same benches, they look no longer
on themselves as forming an assembly; they no
longer consider each other in the light of associates
or of colleagues. As if some strange kind of wea-
pon, or a sudden magical effort, had been exerted
in the midst of them, all the bonds of their union
are cut off; and they hasten away, without having
so much as the thought of continuing for a single
minute the duration of their assembly...f
* A Roman ambassador, who stopped the army of Antiochus
king of Syria. Livii. Hist. lib. xlv. gº
t Nor has London post-horses enough to drive them far
and near into the country, when the declaration, by which the
parliament is dissolved, also mentious the calling, of a new one.
A dissolution, when proclaimed by a common crier assisted
by a few beadles, is attended by the very same effects.
To the account of the expedient used by Louis XV., gf
Framee to effect the dismission of the parliament of Paris, we
may add the manner in which the crown.of Spain, more arbil
trary perhaps than that of France, undertook some years ago to
rid itself of the religious society of the Jesuits, whose politica-
influence and intrigues had grown to give it umbrage. They
were seized by an armed force at the same minute of the same
day in every town or borough of that extensive monarchy, where
352 THE CONSTITUTION
To all these observations concerning the peculiar
solidity of the authority of the crown in England.
I shall add another that is supplied by the whole
series of the English history; which is, that though
bloody broils and disturbances have often taken
place in England, and war been often made against
the king, yet it has scarcely ever been done, but by
persons who positively and expressly laid claim to
the crown. Even while Cromwell contended with
an armed force against Charles the First, it was in
the king’sown name that he waged war against him.
they had residence, in order to their being hurried away to
ships that were waiting to carry them into another country;
the whole business being conducted with circumstances of
secrecy, of surprise, and of preparation, far superior to what is
related of the most celebrated conspiracies mentioned in his-
tory.
The dissolution of the parliament which Charles the Second
had called at Oxford is an extremely curious event; a very
lively account of it is to be found in Oldmixon's History of
England.
If certain alt-rations, however imperceptible they may per-
haps be at first to the public eye, ever take place, the period
may come at which the crown will no longer have it in its
power to dissolve the parliament; that is to say, a dissolution
will no longer befollowed by the same effects that it is at present.
[This power of dissolution has lately been exercised in a
very extraordinary manner. The parliament which met for
the first time in December 1806, was dissolved in the follow-
ing April, merely for the purpose of procuring a decisive minis-
terial majority. The people, perhaps, ought not to object
even to very frequent appeals of this kind, as they are thus en-
abled to re-exercise the elective franchise; but the necessity
of this recent act of prerogative may well be disputed; and its
tendency to public benefit is much less apparent than its sub-
serviency to private interest.—EDIT.]
OF ENGLAND. 353
The same objection might be expressed in a more
general manner, and with strict truth, by saying
that no war has been waged, in England, against
the governing authority, except upon national
grounds; that is to say, either when the title to
the crown has been doubtful, or when general com-
plaints, either of a political or religious kind, have
arisen from every part of the nation. As instances
of such complaints, may be mentioned those that
gave rise to the war against king John, which
ended in the passing of the Great Charter; the
civil wars in the reign of Charles the First; and
the Revolution of the year 1689. From the facts
just mentioned it may also be observed as a con-
clusion, that the crown cannot depend on the great
security we have been describing any longer than
it continues to fulfil its engagements to the nation,
and to respect those laws which form the compact
between it and the people. And the imminent
dangers, or at least the alarms and perplexities, in
which the kings of England have constantly invol-
ved themselves, whenever they have attempted to
struggle against the general sense of the nation,
manifestly show that all that has been above ob-
served, concerning the security and the remarkable
stability somehow annexed to their office, is to be
understood, not of the capricious power of the man,
but of the lawful authority of the head of the state.*
* One more observation may be made on the subject; which
is, that when the kingly dignity has happened in England to .
2 A
854 THE CONSTITUTION
Second Part of the Chapter.
THERE is certainly a very great degree of sin-
gularity in all the circumstances we have been de-
scribing here: those persons who are acquainted
with the history of other countries cannot but re-
mark with surprise that stability of the power of
the English crown," that mysterious solidity, that
be wrested from the possessor, through some revolution, it has
been recovered, or struggled for, with more difficulty than in
other countries: in all the other countries upon earth, a king de
Jure (by claim) possesses advantages in regard to the king
in being, much superior to those of which the same circum-
stance may be productive in, England. The power of the other
sovereigns in the world is not so securely established as that of
an English king; but then their character is more indelible;
that is to say,–till their antagonists have succeeded in cutting
of them and their families, they possess, in a high degree, a
power to renew those claims and disturb the state. Those
family pleas or claims of priority, and, in general, those argu-
ments to which the bulk of mankind have agreed to allow so
much weight, cease ‘alinostentirely to be of any effect in Eng-
land, against the person, actually invested with the kingly,
office, as soon as the constitutional parts and springs have be-
gun to move, and, in short, assoon as the machine of the govern-
ment has once begun to be in full play. An universal general
ferment, similar to that which produced the former disturbances
is the only time of real danger.
The remarkable degree of internal national quiet, which,
for very near a century past, has followed the Revolution of
the year 1689, is a strong proof of the truth of the observations
above made; nor do I think that, all circumstances being con-
sidered, any other country can produce the lik instance.
*
OF ENGLAND. 355
inward binding strength with which it is able to
carry on with certainty its legal operations, amidst
the clamorous struggle and uproar with which it is
commonly surrounded, and without the medium of
any armed threatening force. To give a demon-
stration of the manner in which all these things
are brought to bear and operate, it is not, as I
said before, my design to attempt here; the princi-
ples from which such demonstration is to be derived,
suppose an inquiry into the nature of man, and of
human affairs, which rather belongs to philosophy
(though to a branch hitherto unexplored) than to
politics; at least such an inquiry certainly lies out
of the sphere of the common science of politics.”
However, I had a very material reason for intro-
ducing all the abovementioned facts concerning the
peculiar stability of the governing authority of
England, inasmuch as they lead to an observation
of a most important political nature; which is, that
this stability allows several essential branches of
English liberty to take place, which, without it,
could not exist. For there is a very essential con-
sideration to be made in every science, though
speculators are sometimes apt to lose sight of it,
which is this—in order that things may have exist-
* It may, if the reader pleases, belong to the science of
metapolitics; in the same sense as we say metaphysics ; that
is, the science of those things which lie beyond physical or
substantial things. A few more words are bestowed upon the
same subject in the advertisement, or preface, at the head of
this work.
2 A 2
356 THE CONSTITUTION
ence, they must be possible; in order that political
regulations of any kind may obtain their effect,
they must imply no direct contradiction, either open
or hidden, to the nature of things, or to the other
circumstances of the government. In reasoning
from this principle, we shall find that the stability
of the governing executive authority in England,
and the weight it gives to the whole machine of
the state, have actually enabled the English nation,
considered as a free nation, to enjoy several advan-
tages which would really have been totally unat
tainable in the other states we have mentioned in
former chapters, whatever degree of public virtue
we might even suppose to have belonged to the
men who acted in those states as the advisers
of the people, or, in general, who were intrusted
with the business of framing the laws.
One of these advantages resulting from the soli-
dity of the government, is, the extraordinary per-
sonal freedom which all ranks of individuals in
England enjoy at the expense of the governing au-
thority. In the Roman commonwealth, for in-
stance, we behold the senate invested with a num-
ber of powers totally destructive of the liberty of
the citizens: and the continuance of these powers
was, no doubt, in a great measure, owing to the
treacherous remissness of those men to whom the
people trusted for repressing them, or even to their
determined resolution not to abridge those pre-
rogatives. Yet, if we attentively consider the
constant situation of affairs in that republic, we
OF ENGLAND, 357
shall find, that though we should suppose those
persons to have been ever so truly attached to the
cause of the people, it would not really have been
possible for them to procure to the people an en-
tire security. The right enjoyed by the senate, of
suddenly naming a dictator with a power unre-
strained by any law, or of investing the consuls
with an authority of much the same kind, and the
power it at times assumed of making formidable
examples of arbitrary justice, were resources of
which the republic could not, perhaps, with safety
have been totally deprived; and though these ex-
pedients frequently were used to destroy the just
liberty of the people, yet they were also very often
the means of preserving the commonwealth.
Upon the same principle we should possibly
find that the ostracism, that arbitrary method of
banishing citizens, was a necessary resource in
the republic of Athens. A Venetian noble would
perhaps also confess, that, however terrible the
state inquisition, established in his republic, may
be even to the nobles themselves, yet it would not
be prudent entirely to abolish it. And we do not
know but a minister of state in France, though
ever so virtuous and moderate a man, would say
the same with regard to secret imprisonments, the
lettres de cachet, and other arbitrary deviations
from the settled course of law, which often take
place in that kingdom, and in the other monar-
chies of Europe. No doubt, if he was the man
we suppose, he would confess that the expedients
358 THE CONSTITUTION
mentioned have in numberless instances been base-
ly prostituted to gratify the wantonness and pri-
vate revenge of ministers, or of those who had any
interest with them; but still perhaps he would
continue to give it as his opinion, that the crown,
notwithstanding its apparently immense strength,
could not avoid recurring at times to expedients
of this kind; much less could it publicly and ab-
solutely renounce them for ever.
It is therefore a most advantageous circum-
stance in the English government, that its security
renders all such expedients unnecessary, and that
the representatives of the people have not only
been constantly willing to promote the public li-
berty, but that the general situation of affairs has
also enabled them to carry their precautions so far
as they have done. And indeed, when we consi-
der what prerogatives the crown, in England,
has implicitly renounced ;-that, in consequence
of the independence conferred on the judges, and
of the method of trial by Jury, it is deprived of
all means of influencing the settled course of the
law both in civil and criminal matters:—that it
has renounced all power of seizing the property of
individuals, and even of restraining in any man-
ner whatsoever, and for the shortest time, the li-
berty of their persons:—we do not know which
we ought most to admire, whether the public vir-
tue of those who have deprived the supreme exe-
cutive power of all those dangerous prerogatives,
or the nature of that same power, which has en-
QF ENGLANT). 359
abled it to give them up without ruin to itself-
whether the happy frame of the English govern-
ment, which makes those in whom the people
trust, continue so faithful to the discharge of their
duty, or the solidity of that same government,
which can afford to leave to the people so exten-
sive a degree of freedom.”
Again, the liberty of the press, that great ad-
vantage enjoyed by the English nation, does not
exist in any of the other monarchies of Europe,
however well established their power may at first
seem to be ; and it might even be demonstrated
that it cannot exist in them. The most watchful
* At the times of the invasions of the Pretender, assisted
by the forces of hostile nations, the Habeas Corpus Act was
indeed suspended (which by the bye may serve as one proof,
that, in proportion as a government is in danger, it becomes
necessary to abridge the liberty of the subject); but the exe-
cutive power did not thus of itself stretch its own authority;
the precaution was deliberated upon and taken by the repre-
sentatives of the people; and the detaining of individuals in
consequence of the suspension of the act was limited to a cer-
tain fixed time. Notwithstanding the just fears of internal
and hidden enemies which the circumstances of the times
might raise, the deviation from the former course of the law
was carried no farther than the single point we have mention-
ed. Persons detained by order of the government were to be
dealt with in the same manner as those arrested at the suit of
private individuals; the proceedings against them were to be
carried on no otherwise than in a public place: they were to
be tried by their peers, and have all the usual legal means ºf
“defence, allowed to them, such as calling of witnesses, peremp-
tory challenge of juries, &c.
360 THE CONSTITUTION
eye, we see, is constantly kept in those monar-
chies upon every kind of publication; and a jea-
lous attention is paid even to the loose and idle
speeches of individuals. Much unnecessary trou-
ble (we may be apt at first to think) is taken upon
this subject ; but yet if we consider how uniform
is the conduct of all those governments, how con-
stant and unremitted are their cares in those re-
spects, we shall become convinced, without look-
ing farther, that there must be some sort of ne-
cessity for their precautions.
In republican states, for reasons which are at
bottom the same as in the before-mentioned go-
vernments, the people are also kept under the
greatest restraints by those who are at the head of
the state. In the Roman commonwealth, for in-
stance, the liberty of writing was curbed by the
severest laws:* with regard to the freedom of
speech, things were but little better, as we may
conclude from several facts; and many instances
may even be produced of the dread with which
the private citizens, upon certain occasions, com-
municated their political opinions to the consuls,
or to the senate. In the Venetian republic, the
press is most strictly watched; nay, to forbear to
speak in any matter whatsoever of the conduct of
* The law of the Twelve Tables had established the pu-
nishment of death against the author of a libel : nor was it by
a trial by jury that they determined what was to be called a
libel. S1 auis CARMEN occENTAssit, ACTITAssiT, conDI-
DIS SIT, QUOD ALTERI FLAGITIUM FAXIT, CAPITAL Esq.o.
OF ENGLAND. 361
the government is the fundamental maxim which
they inculcate on the minds of the people through-
out their dominions.”
With respect therefore to this point, it may
again be looked upon as a most advantageous cir-
cumstance in the English government, that those
who have been at the head of the people have not
only been constantly disposed to procure the pub-
lic liberty, but also that they have found it possi-
* Of this I have myself seen a proof somewhat singular,
which I beg leave of the reader to relate. Being, in the year
1768, at Bergamo, the first town of the Venetian state as you
come into it from the state of Milan, about a hundred and
twenty miles distant from Venice, I took a walk in the evening
in the neighbourhood of the town: and wanting to know the
names of several places which I saw at a distance, I stopped a
young countryman to ask for information. Finding him to be a
sensible young man, I entered into some farther conversation
with him; and as he had himself a great inclination to see
Venice, he asked me, whether I proposed to go there? I an-
swered that I did : on which he immediately warned me, when
I was at Venice, not to speak of the prince (del prencipe); an
appellation assumed by the Venetian government, in order, as
I suppose, to convey to the people a greater idea of their union
among themselves. As I wanted to hear him talk farther on
the subject, I pretended to be entirely ignorant in that re-
spect, and asked for what reason I must not speak of the
prince? But he (after the manner of the common people in
Italy, who, when strongly affected by anything, rather choose
to express themselves by some vehement gesture than by
words) ran the edge of his hand, with great quickness, along
his neck, meaning thereby to express, that being strangled, or
having one's throat cut, was the instant consequence of taking
such liberty. -
362 THE CONSTITUTION
ble for them to do so; and that the remarkable
strength and steadiness of the government have
admitted of that extensive freedom of speaking
and writing which the people of England enjoy.”
A most advantageous privilege this! which afford-
ing to every man a mean of laying his complaints
before the public, procures him almost a certainty
of redress against any act of oppression that he
may have been exposed to ; and which leaving,
moreover, to every subject a right to give his opi-
mion on all public matters, and, by thus influencing
the sentiments of the nation, to influence those of
the legislature itself (which is sooner or later
obliged to pay a deference to them), procures to
him a sort of legislative authority of a much more
efficacious and beneficial nature than any formal
right he might enjoy of voting by a mere yea, or
may, upon general propositions suddenly offered to
him, and which he could have neither a share in
* This freedom was considerably abridged under the admi-
mistration of Mr. Pitt. A bill was enacted in the year:1795,
rendering the authors, printers, and publishers, of inflamma-
tory papers or writings, liable to capital punishment, and de-
claring seditious or free and licentious speaking to be a high
offence, punishable in many cases by transportation for seven
years. As popular meetings are usually accompanied with
freedom of speech, it was ordained, by another act of the same
session, that if above fifty persons should meet without previ-
ously informing the “magistrates of their intention, and so few
as twelve should remain assembled for an hour after being or-
dered to retire, death should be 'inflicted on the offenders,
—EDIT.
OF ENGLAND. 368
framing, nor any opportunity of objecting to and
modifying. *
Such a privilege, by supporting in the people a
continual sense of their security, and affording
them undoubted proofs that the government, what-
ever may be its form, is ultimately designed to
ensure the happiness of those who live under it, is
both one of the greatest advantages of freedom, and
its surest characteristic. The kind of security, as
to their persons and possessions, which subjects,
who are totally deprived of that privilege, enjoy
at particular time under other governments, perhaps
may entitle them to look upon themselves as the
well administered property of masters who rightly
understand their own interests; but it is the right
of canvassing without fear the conduct of those who
are placed at their head, which constitutes a free
nation.*
The unbounded freedom of debate, possessed by
the English parliament, is also a consequence of
the peculiar stability of the government. All so-
vereigns have agreed in their jealousy of assemblies
of this kind, in their dread of the privileges of as-
semblies who attract in so high a degree theat-
tention of the rest of the people, who in a course
* If we consider the great advantages to public liberty
which result from the institution of the trial by jury, and from
the liberty of the press, we shall find England to be in realitya
more democratical state than any other we are accquainted
with. The judicial power, and the censorial power, are wested
in the people. ºf
364 THE CONSTITUTION
of time become connected by so many essentialties
with the bulk of the nation, and acquire so much
real influence by the essential share they must
needs have in the management of public affairs, and
by the eminent services, in short, which they are
able to perform to the community.” Hence it has
happened that monarchs, or single rulers, in all
countries, have endeavoured to dispense with the
assistance of assemblies like those we mention, not-
withstanding the capital advantages they might
have derived from their services towards the good
government of the state; or, if the circumstances
of the times have rendered it expedient for them to
call such assemblies together, they have used the
utmost endeavours in abridging those privileges
and legislative claims which they soon found to
prove so hostile to their security: in short, they
have ever found it impracticable to place an unre-
served trust in public meetings of this kind.
We may here name Cromwell, as he was sup-
ported by a numerous army, and possessed more
power than any foreign monarch who has not been
secured by an armed force. Even after he had
purged, by the agency of colonel Pride and two
regiments, the parliament that was sitting when
his power became settled, thereby thrusting out all
* And which they do actually perform, till they are able to
throw off the restraints of impartiality and moderation,-athing
which, being men, they never fail to do when their influence is
generally established, and proper, opportunities offer. So-
vereigns know these things, and dread them.
OF ENGLAND. 365
his opponents, to the amount of about two hundred,
he soon found his whole authority endangered by
the proceedings of those who remained, and was
under a necessity of turning them out in the military
manner with which every one is acquainted.
Finding still a meeting of this kind highly expe-
dient to legalise his military authority, he called
together that assembly which was called Barebone's
parliament. He had himself chosen the members
of this parliament, to thenumber of about a hundred
and twenty, and they had severally received the
summons from him; yet notwithstanding this cir-
cumstance, and the total want of personal weight
in most of the members, he began in a very few
months, and in the midst of his powerful victorious,
army, to feel a serious alarm at their proceedings;
he soon heard them talk of their own divine com-
mission, and of the authority they had received
from the Lord ; and, in short, finding he could not
trust them, he employed the offices of a second
colonel, to effect their dismission. Being now
dignified with the legal appellation of Protector,
he ventured to call a parliament elected by consi-
derable parts of the people; but though the exist-
ence of this parliament was grounded, we might
say grafted, upon his own, and though bands of
soldiers were even posted in the avenues to keep
out all such members as refused to take certain
personal engagements to him, he made such haste
in the issue, to rid himself of their presence, as to
contrive a mean quibble or device to shorten the
366. THE C&NSTITUTION
time of their sitting"by ten or twelve days.” To
a fourth assembly he again applied; but though
the elections had been so managed as to procure
him a formal tender of the crown during the first
sitting, he put an end to the second with resentment
and precipitation.}
The example of the Roman emperors, whose
power was outwardly so prodigious, may also be
introduced here. They used to show the utmost
jealousy in their conduct with respect to the Roman
senate; and that assembly, which the prepossession
of the people, who looked upon it as the ancient
remains of the republic, had made it expedient to
continue, were not suffered to assemble but under
the drawn scymitars of the praetorian guards.
Even the kings of France, though their authority
is so unquestioned, so universally respected, as well
as strongly supported, have felt frequent anxiety
from the claims and proceedings of the parliament
of Paris, an assembly of much less weight than the
English parliament. The alarm has been mentioned
.* They were to have sitten five months; but Cromwell pre-
tended that the months were to consist of only twenty-eight
days; as this was the way of reckoning time used in paying
the army and the fleet.
f The history of the conduct of the deliberating and debating
assemblies we are alluding to, in regard to the monarchs, or
single rulers of any denomination, who summon them together,
may be expressed in very few words. If the monarch is un-
armed, they over-rule him so as almost entirely to set him
aside : if his power is of a military kind, they form connexions
with the army.
OF ENGLANE). 367
which Louis XV. at last expressed concerning
their measures, as well as the expedient to which
he resorted, to free himself from their presence.
And when his successor thought proper to call
again this parliament together, a measure highly
prudent in the beginning of his reign, every jealous
precaution was at the same time taken to abridge
those privileges of deliberating and remonstrating,
upon which any distant claim to, or struggle for, a
share of the supreme authority, might be grounded.
It may be objected that the pride of kings or sin-
gle rulers makes them averse to the existence of as-
semblies like those we mention, and despise the ca-
pital services which they might derive from them
for the good government of their kingdoms. I
grant it may in some measure be so. But if we
inquire into the general situation of affairs in dif-
ferent states, and into the examples with which
their history supplies us, we shall also find that the
pride of those kings agrees in the main with the in-
terest and quiet of their subjects, and that their
preventing the assemblies we speak of from meet-
ing, or, when met, from assuming too large a share
in the management of public affairs, is, in a great
measure, matter of necessity.
We may therefore reckon it as a very great ad-
vantage, that, in England, no such necessity exists.
Such is the frame of the government, that the su-
preme executive authority can both give leave to
assemble, and show the most unreserved trust, when
assembled, to those two houses which concur toge-
ther to form the legislature.
368 THE CONSTITUTION
These two houses, we see, enjoy the most com .
plete freedom in their debates, whether the subject
be grievances, or regulations concerning govern-
ment matters of any kind; no restriction whatever
is laid upon them; they may start any subject they
please. The crown is not to take any notice of
their deliberations: its wishes, or even its name,
are not to be introduced in the debates. And, in
short, what makes the freedom of deliberating, exer-
cised by the two houses, really unlimited, is the pri-
vilege, or sovereignty we may say, enjoyed by each
within its own walls, in consequence of which, no-
thing done or said in parliament is to be questioned
in any place out of parliament. Nor will it be pre-
tended by those persons who are acquainted with
the English history, that these privileges of parlia-
ment we mention are nominal privileges, only privi-
leges upon paper, which the crown has disregarded
whenever it has thought proper, and to the viola-
tions of which the parliament have used very tamely
to submit. That these remarkable advantages,—
this total freedom from any compulsion or even fear,
and, in short, this unlimited liberty of debate, so
strictly claimed by the parliament, and so scrupu-
lously allowed by the crown, should be exer-
cised year after year, during a long course of
time, without producing the least relaxation in
the execution of the laws, the -smallest degree
of anarchy, are certainly very singular political
phaenomena. *
It may be said, that the remarkable solidity of the
sº
OF ENGLAND. 369
governing executive authority, in England, ope-
rates to the advantage of the people with respect to
the objects we mention, in a twofold manner. In
the first place, it so far takes from the great men in
the nation all serious ambition to invade this autho-
rity, that their debates do not produce such anar-
chical and more or less bloody struggles as have
very frequently disturbed other countries. In the
second place, it inspires those great men with that
salutary jealousy of the same authority which leads
them to frame such effectual provisions for laying
it under proper restraints. On which I shall ob-
serve, by way of a short digression, that this distin-
guished stability of the executive authority of the
English crown affords an explanation of the pecu-
liar manner in which public commotions have con-
stantly been terminated in England, compared with
the manner in which the same events have been
concluded in other kingdoms. When I mentioned,
in a former chapter, this peculiarity in the English
government, I mean the accuracy, impartiality, and
universality of the provisions by which peace, after
internal disturbances, has been restored to the na-
tion, I confined my comparisons to instances drawn
from republican governments, purposely postponing
to say any thing of governments of a monarchical
form, till I had introduced the very essential obser-
vation contained in this chapter, which is, that the
power of crowns, in other monarchies, has not been
able, by itself, to produce the same effects it has in
England,-that is, has not been able to inspire the
3 B
370 THE CONSTITUTION
great men in the state with any thing like that sa-
lutary jealousy we mention, nor of course to induce
them to unite in a real common cause with the rest
of the people. In other monarchies,” those men
who, during the continuance of the public disturb-
ances, were at the head of the people, finding it in
their power in the issue, to parcel out, more or less,
the supreme governing authority (or even the state
itself), and to transfer the same to themselves,
constantly did so, in the same manner, and for the
very same reasons, as it happened in the ancient
commonwealths; those monarchical governments
being in reality, so far as that, of a republican
nature : and the governing authority was left, at
the conclusion, in the same undefined extent it
had before.f. But, in England, the great men in
the nation finding themselves in a situation essen-
tially different, lost no time in pursuits like those
in which the great men of other countries used to
indulge themselves on the occasion we mention.
Every member of the legislature plainly perceived,
from the general aspect of affairs, and his feelings,
that the supreme executive authority in the state
must in the issue fall somewhere undivided, and
* I mean before the introduction of those numerous stand-
ing armies which are now kept by all the crowns of Europé .
since that epoch, which is of no very ancient date, no treaty
has been entered into by those crowns with any subjects.
t As a remarkable instance of such a treaty, may be men-
tioned that by which the war for the public good was termi-
nated in France. See the note in page 25 of this work.
OF ENGLAND. 371,
continue so; and being moreover sensible, that
neither personal advantages of any kind, nor the .
power of any faction, but the law alone, could af-
terwards be an effectual restraint upon its motions,
they had no thought or aim left, except to frame
with care those laws on which their own liberty
was to continue to depend, and to restrain a power
which they judged it so impracticable to trans-
fer to themselves or their party, or to render them-
selves independent of. These observations I
thought necessary to be added to those in the fif-
teenth chapter, to which I now refer the reader.
Nor has the great freedom of canvassing politi-
cal subjects we have described, been limited to the
members of the legislature, or confined to the
walls of Westminster, that is, to the exclusive spot
on which the two houses meet: the like privilege
is allowed to the other orders of the people: and a
full scope is given to that spirit of party, and a
complete security ensured to those numerous and
irregular meetings, which, especially when directed
to matters of government, create so much un-
easiness in the sovereigns of other countries. In-
dividuals even may, in such meetings, take an ac-
tive part for procuring the success of those public-
steps which they wish to see pursued; they may
frame petitions to be delivered to the crown, or to
both houses, either to procure the repeal of mea-
sures already entered upon by government, or to
prevent the passing of such as are under consider-
ation, or to obtain the enacting of new regula-
2 B 2
372 THE CONSTITUTION
tions of any kind; they may severally subscribe
their names to such petitions: the law sets no re-
striction on their numbers; nor has it, we may
say, taken any precaution to prevent even the
abuse that might be made of such freedom.
That mighty political engine, the press, is also
at their service; they may avail themselves of it to
advertise the time and place, as well as the intent,
of the meetings, and moreover to set off and in-
culcate the advantages of those motions which they
wish to see adopted.
Such meetings may be repeated; and every in-
dividual may deliver what opinion he pleases on
the proposed subjects, though ever so directly op-
posite to the views or avowed designs of the go-
vernment. The member of the legislature may,
if he chooses, have admittance among them, and
again enforce those topics which have not obtain-
ed the success he expected, in that house to which
he belongs. The disappointed statesman, the mi-
Inister turned out, also find the door open to them:
they may bring in the whole weight of their in-
fluence and of their connexions: they may exert
every nerve to enlist the assembly in the number
of their supporters; they are bidden to do their
worst : they fly through the country from one
place of meeting to another: the clamour in-
creases: the constitution, one may think, is going
to be shaken to its very foundations:—but these
mighty struggles, by some means or other, always
find a proportionate degree of re-action; new dif-
OF ENGLANT). 373
ficulties, and at last insuperable impediments, grow
up in the way of those who would take advantage
of the general ferment to raise themselves on the
wreck of the governing authority: a secret force
exerts itself, which gradually brings things back
to a state of moderation and calm : and that sea so
stormy, to appearance so deeply agitated, con-
stantly stops at certain limits which it seems as if it
wanted the power to pass.
The impartiality with which justice is dealt to
all orders of men in England, is also in great mea-
sure owing to the peculiar stability of the govern-
ment: the very remarkable, high degree, to which
this impartiality is carried, is one of those things,
which, being impossible in other countries, are pos-
sible under the government of this country. In
the ancient commonwealths, from the instances
that have been introduced in a former place, and
from others that might be quoted, it is evident
that no redress was to be obtained, for the acts of
injustice or oppression committed by the men pos-
sessed of influence or wealth, upon the inferior ci-
tizens. In the monarchies of Europe, in former
times, abuses of a like kind prevailed to a most
enormous degree. In our days, notwithstanding
the great degrees of strength acquired by the dif-
ferent governments, it is matter of the utmost dif-
ficulty for subjects of the inferior classes to obtain
the remedies of the law against certain indivi-
duals: in some countries it is impossible, let the
abuse be ever so flagrant; an open attempt to pure
374 THE CONSTITUTION
sue such remedies being moreover attended with
danger. Even in those monarchies of Europe in
which the government is supported both by real
strength, and by civil institutions of a very advan-
tageous nature, great differences prevail between
individuals in regard to the facility of obtaining
the remedies of the law; and to seek for redress,
is at best, in many cases, so arduous and precari-
ous an attempt, as to take from injured individuals
all thoughts of encountering the difficulty. Nor
are these abuses we mention, in the former or pre-
sent governments of Europe, to be attributed only
to the want of resolution in the heads of those go-
vernments. In some countries, the sovereign, by
an open design to suppress these abuses, would
have endangered at once his whole authority: and
in others, he would find obstructions multiply so in
his way as to compel, him, perhaps very quickly,
to drop the undertaking. How can a monarch,
alone, make a persevering stand against the avowed
expectations of all the great men by whom he is
surrounded, and against the loud claims of power-
ful classes of individuals 2 In a commonwealth,
what can the senate do when they find that their
refusing to protect a powerful offender of their
own class, or to indulge some great citizen with
the impunity of his friends, is likely to be produc-
tive of serious divisions among themselves, or per-
haps of disturbances among the people?
If we cast our eyes on the strict and universal
impartiality with which justice is administered in
OF ENGLAND. 375
England, we shall soon become convinced that
some inward essential difference exists between
the English government and those of other coun-
tries, and that its power is founded on causes of
a distinct nature. Individuals of the most exalt-
ed rank do not entertain so much as the thought
to raise the smallest direct opposition to the ope-
ration of the law. The complaint of the meanest
subject, if preferred and supported in the usual
Way, immediately meets with a serious regard.
The oppressor of the most extensive influence,
though in the midst of a train of retainers, nay,
though in the fullest flight of his career and pride,
and surrounded by thousands of applauders and
partisans, is stopped short at the sight of the legal
paper which is delivered into his hands; and a
tipstaff is sufficient to bring him away, and pro-
duce him before the bench.
Such is the greatness, and such is the uninter-
rupted prevalence of the law;* such is, in short,
the continuity of omnipotence, of resistless supe-
riority, it exhibits, that the extent of its effects at
length ceases to be a subject of observation to the
public.
Nor are great or wealthy men to seek for re-
dress or satisfaction of any kind, by any other
means than such as are open to all; even the sove-
reign has bound himself to resort.to no other; and
experience has shown that he may without danger
* Ler magna est, et praevalebit.
376 THE CONSTITUTION
trust the protection of his person, and of the places
of his residence, to the slow and litigious assistance
of the law.” - -
Another very great advantage attending the re-
markable stability of the English government, is,
that the same is effected without the assistance of
an armed standing force: the constant expedient
this of all other governments. On this occasion I
shall introduce a passage of Doctor Adam Smith,t
in a work published since the present chapter was
first written, in which passage an opinion certainly
erroneous is contained; the mistakes of persons of
his very great abilities deserve attention. This
gentleman, struck with the necessity of a sufficient
power of re-action, of a sufficient strength, on the
side of government, to resist the agitations attend-
ant on liberty, has looked round, and judged that
the English government derived the singular sta-
bility it manifests from the standing force it has at
its disposal: the following are his expressions:
“To a sovereign who feels himself supported, not
“ only by the natural aristocracy of the country,
“but by a well-regulated standing army, the
“rudest, the most groundless, and the most licen-
“tious remonstrances can give little disturbance.
* I remember, soon after my first coming to this country,
"I took notice of the boards set up from place to place behind
the enclosure of Richmond Park.-" Whoever trespasses upon
“this ground will be prosecuted."
f An Inquiry into the Nature nd Causes of the Wealth of
Nations. Book v. Chap. i. . . . . .
OF ENGLAND. 377
“He can safely pardon or neglect them, and his
“consciousness of his superiority naturally disposes
“ him to do so. That degree of liberty which
“approaches to licentiousness, can be tolerated
“ only in countries where the sovereign is secured
“ by a well-regulated standing army.”
The above positions are grounded on the notion,
that an army places in the hands of the sovereign
a united irresistible strength, a strength liable to
no accidents, difficulties, or exceptions; a suppo-
sition this, which is not conformable to experience-
If a sovereign was endued with a kind of extra-
ordinary power attending on his person, at once to
lay under water whole legions of insurgents, or to
repulse and sweep them away by flashes and
shocks of the electrical fluid, then indeed he might
use the great forbearance above described:—
though it is not perhaps very likely he would put
up with the rude and groundless remonstrances of
his subjects, and with their licentious freedom, yet
he might, with safety, do or not do so, at his own
choice. But an army is not that, simple weapon
which is here supposed. It is formed of officers
and soldiers who feel the same passions with the
rest of the people, the same disposition to pro-
mote their own interest and importance, when they
* The author's design, in the whole passage, is to show that
standing armies, under proper restrictions, cannot be hurtful
to public liberty: and may in some cases be useful to it, by
freeing the sovereign from any troublesome jealousy in regard
to this liberty.
378 THE CONSTITUTION
find out their strength, and proper opportunities
offer. What will therefore be the resource of the
sovereign, if into that army, on the assistance of
which he relies, the same party spirit creeps, by
which his other subjects are actuated 2 Where will
he take refuge, if the same political caprices, abet-
ted by the serious ambition of a few leading men,
—the same restlessness, and at last perhaps the
same disaffection,-begin to pervade the smaller
king-dom of the army, by which the main king-
dom or nation is agitated?
The prevention of dangers like those just men-
tioned constitutes the most essential part of the
precautions and state-craft of rulers, in those go-
vernments which are secured by standing armed
forces. Mixing the troops formed of natives with
foreign auxiliaries, dispersing them in numerous
bodies over the country, and continually shifting
their quarters, are among the methods that are
used; which it does not belong to our subject to
enumerate, any more than the extraordinary ex-
pedients employed by the eastern monarchs for the
same purposes. But one caution, very essential to
be mentioned here, and which the governments we
allude to never fail to take before every other, is to
retrench from their unarmed subjects a freedom,
which, transmitted to the soldiery, would be at-
tended with such fatal consequences; hindering
such bad examples from being communicated to
those in whose hands their power and life are
trusted, is what every notion of self-preservation
OF ENGLAND. 379
&
suggests to them ; every weapon is accordingly
exerted to suppress the rising and spreading of so
awful a contagion. dº
In general, it may be laid down as a maxim,
that, where the sovereign looks to his army for the
'security of his person and authority, the same
military laws by which this army is kept together,
must be extended over the whole nation ; not in
regard to military duties and exercises, but cer
tainly in regard to all that relates to the respect
due to the sovereign and to his orders. The mar-
tial law, concerning these tender points, must be
universal. The jealous regulations concerning
mutiny and contempt of orders cannot be severely
enforced on that part of the nation which secures
the subjection of the rest, and enforced too through
the whole scale of military subordination, from the
soldier to the officer, up to the very head of the
military system,--while the more numerous and
inferior part of the people are left to enjoy an un-
restrained freedom:—that secret disposition which
prompts mankind to resist and counteract their
superiors cannot be surrounded by such formidable
checks on one side, and be left to be indulged to a
degree of licentiousness and wantonness on the
other.
In a country where an army is kept, capable of
commanding the obedience of the nation, this army
will both imitate the licentiousness above-men-
tioned, and check it in the people. Every officer
and soldier, in such a country, claim a superiority
*
380 THE CONSTITUTION
in regard to other individuals; and, in proportion
as their assistance is relied upon by the govern
ment, expect a greater or less degree of submission
from the rest of the people.*
* In the beginning of the passage which is here examined,
the author says, “Where the sovereign is himself the gene-
“ral, and the principal nobility and gentry of the country are
“ the chief officers of the army, where the military force is
“ placed under the command of those who have the greatest
“interest in the support of the civil authority, because they
, “ have the greatest share of that authority,+a standing army
“can never be dangerous to liberty. On the contrary, it may
“in some cases be favourable to liberty,” &c. In a country
so circumstanced, a standing army can never be dangerous to
liberty; no, not the liberty of those principal nobility and
gentry, especially if they have wit enough to form combi-
nations among themselves against the sovereign. Such a
union as is here mentioned, of the civil and military powers,
in the aristocratical body of the nation, leaves both the sove-
'reign and the people without resource. If the former kings of
Scotland had adopted the expedient of a standing army, and
had trusted this army, thus defrayed by them, to those noble-
men and gentlemen who had rendered themselves hereditary
admirals, hereditary high-stewards, hereditary high-constables,
hereditary great chamberlains, hereditary justices—general,
hereditary sheriffs of counties, &c. they would have ill re-
paired the disorders under which the government of their
country laboured; they would only have supplied these nobles
with fresh weapons against each other, against the sovereign,
and against the people.
If those members of the British parliament, who sometimes
make the whole nation resound with the clamour of their dise
sentions, had an army under their command which they might
engage in the support of their pretensions, the rest of the
people would not be the better for it. Happily the swords
are secured, and force is removed from their debates.
OF ENGTAND, 38:
The same author concludes his above quoted
observations concerning the security of the power
of an armed sovereign, by immediately adding:
“It is in such countries only that it is unneces-
“sary that the sovereign should be trusted with
“any discretionary power for suppressing even the
“ wantonness of this licentious liberty.” The idea
here expressed coinciding with those already dis-
cussed, I shall say nothing farther on the subject.
My reason for introducing the above expressions,
has been, that they lead me to take notice of a
remarkable circumstance in the English govern-
ment. From the expression, it is unnecessary
that the sovereign should be trusted with any
discretionary power, the author appears to think
that a sovereign at the head of an army, and
whose power is secured by this army, usually waits
to set himself in motion, till he has received leave
for that purpose; that is, till he has been trusted
with a power for so doing. This notion in the
author we quote, is borrowed from the steady and
thoroughly legal government of this country; but
the like law-doctrine, or principle, obtains under
no other government. In all monarchies (and it
is the same in republics), the executive power in
the state is supposed to possess, originally and by
The author whom we are quoting has deemed a govern-
ment to be a more simple machine, and an army a more
simple instrument, than they in reality are. Like many other
persons of great abilities, while struck with a certain peculiar
eonsideration, he has overlooked others no less important.
382 THE CONSTITUTION
itself, all manner of lawful authority: every one
of its exertions is deemed to be legal : and they do
not cease to be so, till they are stopped by some
express and positive regulation.—The sovereign,
and also the civil magistrate, till so stopped by
some positive law, may come upon the subject
when they choose: they may question any of his
actions; they may construe them into unlawful
acts; and inflict a penalty, as they please: in these
respects they may be thought to abuse, but not to
exceed, their power. The authority of the govern-
ment, in short, is supposed to be unlimited so far
as there are no visible boundaries set up against
it; within which boundaries lies whatever degree
of liberty the subject may possess.
In England, the very reverse obtains. It
is not the authority of the government, it is the li-
berty of the subject which is supposed to be un-
bounded. All the actions of an individual are
supposed to be lawful, till that law is pointed out
which makes them to be otherwise. The onus.
probandi is here transferred from the subject to the
prince. The subject is not at any time to show the
ground of his conduct. When the sovereign or
magistrate think proper to exert themselves it is
their business to find out and produce the law in
their own favour, and the prohibition against the
subject.” *
* I shall take the liberty to mention another fact respecting,
myself, as it may serve to elucidate the above observations, or
at least my manner of expressing them. I remember, when I
OF ENGLAND. - - 383 .
This kind of law principle, owing to the general
spirit by which all parts of the government are in-
fluenced, is even carried so far that any quibble,
or trifling circumstance, by which an offender
may be enabled to step aside and escape, though
was beginning to pay attention to the operations of the English
government, I was under a prepossession of quite a contrary na-
ture to that of a gentleman whose opinions have been discuss-
ed.: I used to take it for granted that every article of liberty the
subject enjoys in this country was grounded upon some positive
law by which this liberty was ensured to him. In regard to the
freedom of the press, I had no doubt that it was so, and that there
existed some particular law, or rather series of laws or legisla-
tive paragraphs, by which this freedom was defined and care-
fully secured: and as the liberty of writing happened at that
time to be carried very far, and to excite a great deal of atten-
tion (the noise about the Middlesex election had not yet sub-
sided), I particularly wished to see those laws I supposed, not
doubting that there must be something remarkable in the word-
ing of them. I looked into those law books which I could
meet with ; such as Jacob's and Cunningham's Law Dictiona-
ries, Wood's Institutes and Judge Blackstone's Commentaries. I
also found means to have a sight of Comyn's Digest of the Laws
of England, and I was again disappointed: this author, though
the work consists of five folio volumes, had not had, any more
than the authors just mentioned, room to spare for the interest-
ing law I was in search of. At length it occurred to me, that
this liberty of the press was grounded upon it's not being pro-
hibited; that this want of prohibition was the sole, and at the
same time solid, foundation of it. This led me, when I after-
wards thought of writing upon the government of this country,
to give that definition of the freedom of the press which is con-
tained in p. 252,253; adding to it the important consideration,
that all actions respecting publications are to be decided by a
jury. -
384 THE CONSTITUTION
ever so narrowly, the reach of the law, will screen
him from punishment, let the immorality or intrin-
sic guilt of his conduct be everso openly admitted.*
Such a narrow circumscription of the exertions
of the government is very extraordinary: it does
not exist in any country but this ; nor could it.
The situation of other governments is such, that
they cannot thus allow themselves to be shut out
of the unbounded space unoccupied by any law,
in order to have their motions confined to that
spot which express and previously-declared provi-
sions have chalked out. The power of these go-
verments being constantly attended with more or
less precariousness, there must be a degree of dis.
cretion answerable to it.f
The foundation of the law-principle, or doctrine,
* A number of instances, some even of a ludicrous kind,
might be quoted in support of the above observation. Even a
trifling flaw in the mere words of an indictment is enough to
make it void.
I do not remember the name of that political author, who
having published a treasonable writing for which he escaped
punishment, used afterwards to answer to his friends, when
they reproached him with his rashness, I knew I was writing
within an inch of the gallows. The law being both ascertained
and strictly adhered to, he had been enabled to bring his
words and positions so nicely within compass.
f It might perhaps also be proved, that the great lenity used
in England in the administration of criminal justice, both in
regard to the mildness, and to the frequent remission of pu-
nishments, is essentially connected with the same circumstance
of the stability of the government. Experience indicates that
it is needless to use any great degree of harshness and severity
AOF ENGLAND. 385
which confines the exertion of the power of the
government to such cases only as are expressed by
a law in being, was laid when the Great Charter
was passed: this restriction was implied in one of
those general impartial articles which the barons
united with the people to obtain from the sovereign.
The crown, at that time, derived from its foreign
dominions that stability and inward strength (in re-
gard to the English nation), which are now in a
Secret hidden manner annexed to the civil branch
of its office, and which, though operating by dif-
ferent means, continue to maintain that kind of
confederacy against it, and union between the differ-
ent orders of the people. By the article in Magna
Charta here alluded to, the sovereign bound
himself neither to go, nor send, upon the subject,
otherwise than by the trial of peers, and the law of
the land.* This article was, however, afterwards
disregarded in practice, in consequence of the law-
ful efficiency which the king claimed for his pro-
clamations, and especially by the institution of the
court of Star-chamber, which grounded its proceed-
ings not only upon these proclamations, but also
upon the particular rules it chose to frame within
itself. By the abolition of this court (and also of
the court of High Commision)in the reign of Charles
the First, the above provision of the Great Charter
in regard to offenders; and the supreme governing authority is
under no necessity of showing the subordinate magistracies
any bad example in that respect.
* See page 23 of this work.
2 C
386 THE CONSTITUTION
was put in actual force; and it has appeared by
the event, that the very extraordinary restriction
upon the governing authority we are alluding to,
and its execution, are no more than what the in-
trinsic situation of things, and the strength of the
constitution, can bear.”
The law-doctrine we have above described, and
its being strictly regarded by the high governing
authority, I take to be the most characteristic cir-
cumstance in the English government, and the
most pointed proof that can be given of the true
freedom which is the consequence of its frame.
The practice of the executive authority thus to
square its motions upon such laws, and such only
as are ascertained and declared before-hand, can-
not be the result of that kind of stability which
the crown might derive from being supported by an
armed force, or, as the above-mentioned author has
expressed it, from the sovereign being the general
* The court of Star-chamber was like a court of equity in
regard to criminal matters; it took upon itself to decide, upon
those cases of offence upon which the usual courts of law,
when uninfluenced by the crown, refused to decide, either on
account of the silence of the laws in being, or of the particular
rules they had established within themselves; which is ex-
actly the office of the court of Chancery (and of the Ex-
chequer) in regard to matters of property. The great useful-
ness of courts of this kind has caused the courts of Equity, in
regard to civil matters, to be supported and continued; but
experience has shown, that no essential, inconvenience can
arise from the subject being indulged with the very great free-
dom he has acquired by the total abolition of all arbitrary or
provisional courts in regard to criminal matters.
OF ENGLAND. 387
of an army; such a rule of acting is even contra-
dictory to the office of a general: the operations
of a general eminently depend for their success,
on their being sudden, unforeseen, attended by
surprise.
In general, the stability of the power of the
English crown cannot be the result of that kind of
strength which arises from an armed force: the
kind of strength which is conferred by such a
weapon as an army, is too uncertain, too compli-
cated, too liable to accidents: in a word, it falls
infinitely short of the degree of steadiness neces-
sary to counterbalance, and at last quiet, those ex-
tensive agitations in the people which sometimes
seem to threaten the destruction of order and go-
vernment. An army, if its support be well direct-
ed, may be useful to prevent this restlessness in the
people from beginning to exist: but it cannot keep
it within bounds, when it has once taken place.
If, from general arguments and considerations,
we pass to particular facts, we shall actually find
that the crown, in England, does not rely for its
support, nor ever has relied, upon the army of
which it has the command. From the earliest
times, that is, long before the invention of stand-
ing armies among European princes,-the kings
of England possessed an authority certainly as full
and extensive as that which they now enjoy. After
the weight they derived from their possessions
beyond sea had been lost, a certain arrangement
of things began to be formed at home, which sup-
2 C 2
388 THE CONSTITUTION
plied them with a strength of another kind, though
not less solid; and they began to derive from the
civil branch of their regal office that secure power
which no other monarchs had ever possessed,
except through the assistance of legions and prae-
torian guards, of armies of Janissaries, or of
Sretlitzes.
The princes of the house of Tudor, to speak of
a very remarkable period in the English history,
though they had no other visible present force than
inconsiderable retinues of servants, were able to
exert a power equal to that of the most absolute
monarchs that ever reigned, equal to that of a
Domitian or a Commodus, an Amurath or a Ba-
jazet: may, it even was superior, if we consider
the steadiness and outward show of legality with
which it was attended throughout.
The stand which the kings of the house of
Stuart were able to make, though unarmed, and
only supported by the civil authority of their office,
during a long course of years, against the restless
spirit which began to actuate the nation, and the
vehement political and religious motions that broke
out in their time, is still more remarkable than
even the exorbitant power of the princes of the
house of Tudor, during whose reign prepossessions
of quite a contrary nature were universal.
The struggle opened with the reign of James
the First ; yet he peaceably weathered the be-
ginning storm, and transmitted his authority un-
diminished to his son. Charles the First, indeed,
OF ENGLAND. 389
was at last crushed under the ruins of the consti-
tution: but if we consider that, after making the
important national concessions contained in the
Petition of Right, he was able, single and un-
armed, to maintain his ground without loss or real
danger, during the space of eleven years (that is,
till the year 1640), we shall be inclined to think
that, had he been better advised, he might have
avoided the misfortunes that at length befell him.
Even the events of the reign of James the Se-
cond afford a proof of that solidity which is an-
nexed to the authority of the English crown.
Although the whole nation, not excepting the
army, were in a manner unanimous against him,
he was able to reign four years, standing single
against all, without meeting with any open
resistance. Nor was such justifiable and neces-
sary resistance easily brought about at length.*
Though it is not to be doubted that the dethroning
* Mr. Hume is rather two anxious in his wish to exculpate
James the Second. He begins the conclusive character he
gives of him, with representing him as a prince whom we may
safely pronounce more unfortunate than criminal. If we con-
sider the solemn engagements entered into, not by his prede-
cessors only, but by himself, which this prince endeavoured to
break, how cool and deliberate was his attack on the liberties
and religion of the people, how unprovoked the attempt, and,
in short, how totally destitute he was of any plea of self-
defence or necessity, a plea to which most of the princes who
have been at variance with their subjects have had a more or
less distant claim, we shall look upon him as being perhaps
the most guilty monarch that ever existed.
390 THE CONSTITUTION
of James the Second would have been effected in
the issue, and perhaps in a very tragical manner;
yet, if it had not been for the assistance of the
prince of Orange, the event would certainly have
been postponed for a few years. That authority
on which James relied with so much confidence,
was not annihilated at the time it was, otherwise
than by a ready and considerable armed force
being brought against it from the other side of the
sea, like a solid fortress, which, though without
any visible outworks, requires, in order to be com-
pelled to surrender, to be battered with cannon.
If we look into the manner in which this
country has been governed since the Revolution,
we shall evidently see that it has not been by
means of the army that the crown has been able
to preserve and exert its authority. It is not by
means of their soldiers that the kings of Great
Britain prevent the manner in which elections are
carried on, from being hurtful to them; for these
soldiers must move from the places of election one
day before such elections are begun, and not return
till one day after they are finished. It is not by
means of their military force that they prevent the
several kinds of civil magistracies in the kingdom
from invading and lessening their prerogative;
for this military force is not to act till called
for by these latter, and under their direction. It
is not by means of their army that they lead the
two branches of the legislature into that respect to
their regal authority which we have before de-
OF ENGLAND. 391
scribed ; since each of these two branches, severally,
is possessed of an annual power of disbanding this
army.*
There is another circumstance, which, abstract-
edly from all others, makes it evident that the
executive authority of the crown is not supported
by the army : I mean the very singular subjection
in which the military is kept in regard to the civil
power in this country.
In a country where the governing authority in
the state is supported by the army, the military
profession, who, in regard to the other professions,
have on their side the advantage of present force,
being now moreover countenanced by the law,
immediately acquire, or rather assume, a general
ascendency; and the sovereign, far from wishing
to discourage their claims, feels an inward happi-
mess in seeing that instrument on which he rests
his authority, additionally strengthened by the
respect of the people, and receiving a kind of legal
sanction from the general outward consent.
And not only the military profession at large,
but the individuals belonging to it, also claim per-
* The generality of the people have from early times been
so little accustomed to see any display of force used to influence
the debates of the parliament, that the attempt made by
Charles the First to seize the five members, attended by a
retinue of about two hundred servants, was the actual spark
that set in a blaze the heap of combustibles which the pre-
ceding contests had accumulated. The parliament, from that
fact, took a pretence to make military preparations in their
turn; and then the civil war began.
392 THE CONSTITUTION
sonally a pre-eminence: chief commanders, officers,
soldiers, or janissaries, all claim, in their own
spheres, some sort of exclusive privilege : and
these privileges, whether of an honorary, or of a
more substantial kind, are violently asserted, and
rendered grievous to the rest of the community, in
proportion as the assistance of the military force is
more evidently necessary to, and more frequently
employed by, the government. These things
cannot be otherwise.
Now, if we look into the facts that take place
in England, we shall find that a quite different
order prevails from what is above described. All
courts of a military kind are under a constant sub-
ordination to the ordinary courts of law. Officers
who have abused their private power, though only
in regard to their own soldiers, may be called to
account before a court of common law, and com-
pelled to make proper satisfaction. Even any
flagrant abuse of authority committed by members
of courts-martial, when sitting to judge their own
people, and determine upon cases entirely of a mi-
litary kind, makes them liable to the animadver-
sion of the civil judge.*
* A great number of instances might be adduced to prove
the above-mentioned subjection of the military to the civil
power. I shall introduce one which is particularly remark-
able: I met with it in the periodical publications of the year
1746.
A lieutenant omarines, whose name was Frye, had been
charged, while in the West-Indies, with contempt of orders,
OF ENGLAND. 393
To the above facts concerning the pre-eminence
of the civil over the military power at large, it is
for having refused, when ordered by the captain, to assist
another lieutenant in carrying another officer prisoner on
board the ship: the two lieutenants wished to have the order
given in writing. For this, lieutenant Frye was tried at
Jamaica by a court-marshal, and sentenced to fifteen-years'
imprisonment, besides being declared incapable of serving the
king. He was brought home; and his case (after being laid
before the privy-council) appearing in a justifiable light, he
was released. Some time after, he brought an action against
sir Chaloner Ogle, who had been president of the above court-
martial, and had a verdict in his favour for one thousand pounds
damages, as it was also proved that he had been kept four-
teen months in the most severe confinement before he was
brought to his trial. The judge moreover informed him, that
he was at liberty to bring his action against any of the mem-
bers of the said court-martial he could meet with. The fol-
Iowing part of the affair is still more remarkable.
Upon application made by lieutenant Frye, sir John Willes,
lord chief justice of the Common Pleas, issued his writ
against admiral Mayne, and capt. Rentone, two of the persons
who had composed the above court-martial, who happened to
be at that time in England, and were members of the court-
martial that was then sitting at Deptford, to determine on the
affair between admirals Matthews and Lestock, of which ad-
miral Mayne was also president; and they were arrested im-
mediately after the breaking-up of the court. The other
members resented highly what they thought an insult; they
met twice on the subject, and came to certain resolutions, which
the judge-advocate was directed to deliver to the Board of
Admiralty in order to their being laid before the king. In
these resolutions they demanded “satisfactiou for the high
“insult on their president, from all persons, how high soever
“in office, who have set on foot this arrest, or in any degree
“advised or promoted it:”—moreover complaining, that, by
the said arrest, “ the order, discipline, and government of his
394 THE CONSTITUTION
needless to add that all offences committed by per-
sons of the military profession, in regard to indi-
viduals belonging to the other classes of the ped-
ple, are to be determined upon by the civil judge.
Any use they may make of their force, unless ex-
pressly authorised and directed by the civil magis-
trate, let the occasion be what it may, makes
them liable to be convicted of murder for any life
that may have been lost. To allege the duties or
customs of their profession, in extenuation of any
offence, is a plea which the judge will not so much
as undertsand. Whenever claimed by the civil
power, they must be delivered up immediately.
Nor can it, in general, be said that the counte-
mance shown to the military profession by the ruling
power in the state has constantly been such as to
“ majesty's armies by sea were dissolved, and the statute 13
* Car. II. made null and void.”
The altercations on that account lasted some months. At
length the court-martial thought it necessary to submit; and
they sent to lord chief justice Willes a letter signed by the
seventeen officers, admirals and commanders, who composed
it, in which they acknowledged that “the resolutions of the 16th
“ and 21st of May, were unjust and unwarrantable, and to ask
“ pardon of his lordship, and the whole court of Common Pleas,
“...for the indignity offered to him and the court.”
This letter judge Willes read in the open court, and directed
the same to be registered in the Remembrance Office, as a
“ memorial to the present and future ages, that whoever set
“ themselves above the law, will, in the end, find themselves mis-
“ taken. The letter from the court-martial, and judge Willes's
acceptation, were inserted in the next Gazette, 15th November.
1746.
OF ENGLAND. 395
inspire the bulk of the people with a disposition
tamely to bear their acts of oppression, or to raise
in magistrates and juries any degree of prepossession
sufficient to lead them always to determine with
partiality in their favour.”
The subjection of the military to the civil power,
carried to that extent it is in England, is another
characteristic and distinctive circumstance in the
English government.
It is sufficiently evident that a king does not
look to his army for his support, who takes so lit-
tle pains to bribe and unite it to his interest.
In general, if we consider all the different cir-
cumstances in the English government, we shall
find that the army cannot procure to the sovereign
any permanent strength, – any strength upon
which he can rely,–and from it expect the success
of any future and distant measures.
The public notoriety of the debates in parliament
induces all individuals, soldiers as well as others,
to pay some attention to political subjects; and the
* The reader my see, in the publications of the year 1770,
the clamour that was raised on account of a general in the
army (Gen. Gansell) having availed himself of the vicinity of
his soldiers to prevent certain sheriff's officers from executing
an arrest upon his person, at Whitehall. It however appeared
that the general had done nothing more than put forth a few
of his men, in order to perplex and astonish the sheriff's officers;
and in the mean time he took an opportunity for himself to slip
out of the way. The violent clamour we mention was no doubt
owing to the party spirit of the time; but it nevertheless shows
what the motions of the bulk of the people were on the subject.
396 THE CONSTITUTION
liberty of speaking, printing, and intriguing, being
extended to every order of the nation by whom
they are surrounded, makes them liable to imbibe
every motion that may be directly contrary to the
views of that power which maintains them.
The case would be still worse if the sovereign
should engage in a contest with a very numerous
part of the nation. The general concern would
increase in proportion to the vehemence of the
parliamentary debates: individuals, in all the dif-
ferent classes of the public, would try their elo-
quence on the same subjects; and this eloquence
would be in great measure exerted, during such
interesting times, in making converts of the sol-
diery : these evils the sovereign could not obviate,
nor even know, till it should be in every respect
too late. A prince, engaged in the contest we
suppose, would scarcely have completed his first
preparations,—his project would scarcely be half
ripe for execution—before his army would be
taken from him. And the more powerful this army
might be, the more adequate, seemingly, from its
numbers, to the task it is intended for, the more
open it would be to the danger we mention.
Of this, James the Second made a very remark-
able experiment. He had augmented his army to
the number of thirty thousand. But when the day
came in which their support was to have been use-
ful to him, some deserted to the enemy; others
threw down their arms; and those who continued
to stand together, showed more inclination to be
OF ENGLAND. 397
spectators of, than agents in, the contest. In short,
he gave all over for lost, without making any trial
of their assistance.*
From all the facts before-mentioned, it is evident
* The army made loud rejoicings on the day of the acquittal.
of the bishops, even in the presence of the king, who had pur-
posely repaired to Hounslow Heath on that day. He had not
been able to bring a single regiment to declare an approba-
tion of his measures in regard to the test and penal statutes.
The celebrated ballad Lero lero lillibulero, which is reported to
have had such an influence on the minds of the people at that
time, and of which bishop Burnet says, “Never perhaps so slight
“a thing had so great an effect,” originated in the army: “the
“whole army, and at last people both in city and country,
“were perpetually singing it.”
To a king of England, engaged in a project against public
liberty, a numerous army, ready formed before-hand, must, in
the present situation of things, prove a very great impediment;
he cannot give his attention to the proper management of it:
the less so, as his measures for that purpose must often be con-
tradictory to those he is to pursue with the rest of the people.
If a king of England, wishing to set aside the present consti-
tution, and to assimilate his power to that of the other sove-
reigns of Europe, should do me the honour to consult me as to
the means of obtaining success, I would recommend to him, as
his first preparatory step, and before his real project is even
suspected, to disband his army, keeping only a strong guard,
not exceeding twelve hundred men. This done, he might, by
means of the weight and advantages of his place, set himself
about undermining such constitutional laws as he dislikes;
using as much temper as he can, that he may have the more
time to proceed. And when at length things should be
brought to a crisis, then I would advise him to form another
army, out of those friends or class of the people whom the
turn and incidents of the preceding contests will have link-
ed and riveted to his interest; with this army he might now
take his chance; the rest would depend on his generalship.
398 THE CONSTITUTION
that the power of the crown, in England, rests upon
foundations quite peculiar to itself, and that its se-
curity and strength are obtained by means totally
different from those by which the same advantages
are so incompletely procured, and so dearly paid
for, in other countries.
It is without the assistance of an armed force that
the crown, in England, is able to manifest that
dauntless independence on particular individuals, or
whole classes of them, with which it discharges its
legal functions and duties. Without the assistance
of an armed force, it is able to counterbalance the
extensive and unrestrained freedom of the people,
and to exert that resisting strength which con-
stantly keeps increasing in a superior proportion to
the force by which it is opposed,—that ballasting
power by which, in the midst of boisterous winds
and gales, it recovers and rights again the vessel of
the state.*
and even in a great measure on his bare reputation in that
respect. *
In offering my advice to the king of England, I would, how-
ever, conclude with observing to him, that his situation is as
advantageous to the full as that of any king upon earth, and,
upon the whole, that all the advantages which can arise from
the success of his plan cannot make it worth his while to un-
dertake it.
* There are many circumstances in the English government,
which those persons who wish for speculative meliorations,
such as parliamentary reform, or other changes of a like kind,
do not perhaps think of taking into consideration. If so, they
are, in their proceedings, in danger of meddling with a number
of strings, the existence of which they do not suspect. While
OF ENGLAND. 399
It is from the civil branch of its office the crown
derives that strength by which it subdues even the
military power, and keeps it in a state of subjection
to the laws, unexampled in any other country.
It is from a happy arrangement of things it derives
that uninterrupted steadiness, that invisible solid-
ity, which procure to the subject both so certain a
protection, and so extensive a freedom. It is from
the nation it receives the force with which it go-
verns the nation. Its resources are official energy,
and not compulsion,-free action, and not fear,<
and it continues to reign through the political dra-
ma, the struggle of the voluntary passions of those
who pay obedience to it.*
they only mean reformation and improvement, they are in
danger of removing the talisman on which the existence of the
fabric depends; or, like the daughter of king Nisus, of cutting
off the fatal hair with which the fate of the city is connected.
* Many persons, satisfied with seeing the elevation and
upper parts of a building, think it immaterial to give a look
under ground and notice the foundation. Those readers,
therefore, who choose, may consider the long chapter that
has just been concluded, as a kind of foreign digression,
or parenthesis, in the course of the work.
[The author was apprehensive that this chapter would not be
perfectly understood, as being too refined for ordinary read-
ers. It may therefore seem to require, at its close, some
illustrative remarks.
In governments, much depends on public opinion : even
fancy, it may be said, has no small effect in the support of na-
tional tranquillity; and the popular persuasion, more prevalent
in this country than in any other, of the foundation of the
400 THE CONSTITUTION
CHAPTER XVIII.
How far the Evamples of Nations who have lost
their Liberty are applicable to England.
EVERY government (those writers observe, who
have treated on these subjects) containing within
itself the efficient cause of its ruin, a cause which
is essentially connected with those very circum-
throne on the basis of public good, and of the identity of inte-
rest between the king and the people, has an extensive and
authoritative influence. A prince who is supposed to govern
for the general benefit, who administers the laws to freemen,
instead of tyrannising over slaves,—who, though ostensibly
the supreme ruler of the state, is only a branch of that legis-
lature which includes the paramount power of the nation,--
seems so far to command the loyalty and ensure the submis-
sion of the people, as not to require the aid of a dependent
army, or those other means of terror to which despotic mo-
marchs have recourse. The ties between such a prince and
the nation seem to be so much stronger than the union be-
tween the government and the people in other countries;–
his sense of his own popularity, and the opinion which his
subjects entertain, not only of his good dispositions, but of the
policy of moderation and forbearance on his part, have such
a tendency to the production of harmony and order;—and so
powerful is the efficacy of a system of law, calculated for the
protection of all classes of the community ;-that a govern-
ment of this kind, from obvious causes, and perhaps also from
some mysterous circumstances, may be supposed to possess a
very high degree of strength and stability.-EDIT. I
OF ENGLAND. 401
stances that had produced its prosperity; the ad-
vantages attending the English government can-
not therefore, according to these writers, exempt
it from that latent defect which is secretly work-
ing its ruin; and M. de Montesquieu, giving his
opinion both of the cause and the effect, says, that
the English constitution will lose its liberty, will
perish: “Have not Rome, Lacedaemon, and Car-
“ thage, perished 2 It will perish when the legisla-
“tive power shall have become more corrupt than
“ the executive.”
Though I do by no means pretend that any hu-
man establishment can escape the fate to which
we see every thing in nature is subject, nor am so
far prejudiced by the sense I entertain of the great
advantages of the English government as to reckon
among them that of eternity,+I will, however,
observe in general, that as it differs by its struc-
ture and resources from all those with which his-
tory makes us acquainted, so it cannot be said to
be liable to the same dangers. To judge of one
from the other, is to judge by analogy where no
analogy is to be found: and my respect for the au-
thor I have quoted will not preclude me from say-
ing that his opinion has not the same weight with
me on this occasion that it has on many others.
Having neglected, as indeed all systematic writ-
ers upon politics have done, to inquire attentively
into the real foundations of power and of govern-
ment among mankind, the principles he lays down
are not always so clear, or even so just, as we
2 D
402 THE CONSTITUTION
might have expected from a man of so acute a ge-
nius. When he speaks of England, for instance,
his observations are much too general: and though
he had frequent opportunities of conversing with
men who had been personally concerned in the
public affairs of this country, and he had been
himself an eye witness of the operations of the
English government, yet, when he attempts to
describe it, he rather tells us what he conjectured
than what he saw.
The examples he quotes, and the causes of dis-
solution which he assigns, particularly confirm this
observation. The government of Rome, to speak
of the one which, having gradually, and as it
were of itself, fallen to ruin, may afford matter
for exact reasoning, had Îio relation to that of
England. The Roman people were not, in the
later ages of the commonwealth, a people of citi-
zens but of conquerors. Rome was not a state,
but the head of a state. By the immensity of its
conquests, it came in time to be in a manner only
an accessory part of its own empire. Its power
became so great, that, after having conferred it; it
was at length no longer able to resume it : and
from that moment it became itself subjected to it,
for the same reason that the provinces were so.
The fall of Rome, therefore, was an event pe-
culiar to its situation; and the change of manners
which accelerated this fall, had also an effect
which it could not have had but in that same situ-
ation. Men who had drawn to themselves all the
OF ENGLAND. 493;
riches of the world, could no longer be content
with the supper of Fabricius, or with the cottage
of Cincinnatus. The people who were masters of
all the corn of Sicily and Africa, were no longer
obliged to plunder their neighbours. All possible
enemies, besides, being exterminated, Rome, whose
power was military, ceased to be an army; and
that was the aera of her corruption: if, indeed, we
ought to give that name to what was the inevit-
able consequence of the nature of things.
In a word, Rome was destined to lose her li-
berty when she lost her empire; and she was des-
tined to lose her empire, whenever she should be-
gin to enjoy it.
But England forms a society founded upon
principles entirely different. Here, all liberty and
power are not accumulated as it were in one point
so as to leave, every where else, only slavery and
misery, consequently only seeds of division and
secret animosity. From one end of the island to
the other the same laws take place, and the same
interests prevail: the whole nation, besides, equal-
ly concurs in the framing of the government; no
one part, therefore, has cause to fear that the other
parts will suddenly supply the necessary forces to
destroy its liberty: and the whole have, of course,
no occasion for those ferocious kinds of virtue
which are indispensably necessary to those who,
from the situation to which they have brought
themselves, are continually exposed to dangers,
2 D 2
404 THE CONSTITUTION
and, after having invaded every thing, must ab-
stain from every thing.
... The situation of the people of England, there-
fore, essentially differs from that of the people of
Rome. The form of the English government does
not differ less from that of the Roman republic:
and the great advantages it has over the latter,
for preserving the liberty of the people from ruin,
have been described at length in the course of this
work. .
Thus, for instance, the ruin of the Roman re-
public was principally brought about by the exor-
bitant power to which several of its citizens were
successfully enabled to rise. In the latter times
of the commonwealth, those citizens went so far
as to divide among themselves the dominions of
the republic in much the same manner as they
might have done lands of their own. And to
them others in a short time succeeded, who not
only did the same, but even proceeded to such a
degree of tyrannical insolence, as to make cessions
to each other, by express and formal compacts, of
the lives of thousands of their fellow-citizens.”
But the great and constant authority and weight
of the crown, in England, prevent, in their very
beginning (as we have seen), all misfortunes of
this kind: and the reader may recollect what has
been said before on that subject.
* Augustus, Antony, and Lepidus, in particular, were guilty
of this aiabolical atrocity.—EDIT.
OF ENGLAND. 405
At last the ruin of the republic, as every one
knows, was completed. One of those powerful citi-
zens to whom we alluded, in process of time,
found means to exterminate all his competitors;
he immediately assumed the whole power of the
state, and erected an arbitrary monarchy. But
such a sudden and violent establishment of a mo-
narchical power, and all the fatal consequences
that would result from such an event, are calami-
ties which cannot take place in England. That
kind of power has here existed for ages: it is cir-
cumscribed by fixed laws, and established upon re-
gular and well-known foundations. -
Nor is there any great danger that this power
may, by means of those legal prerogatives it al-
ready possesses, suddenly assume others, and at
last openly make itself absolute. The important pri-
vilege of granting to the crown its necessary sup-
plies, we have before observed, is vested in the na-
tion: and how extensive soever the prerogatives of
a king of England may be, it constantly lies in the
power of his people either to grant or deny him
the means of exercising them. - -
This right, possessed by the people of England,
constitutes the great difference between them and
all other themations that live under monarchical go-
vernments. It likewise gives them a great advan-
tage over such as are formed into republican states,
and confers on them a mean of influencing the
conduct of the government, not only more effec-
tual, but also (which is more in point to the sub-
406 THE CONSTITUTION
ject of this chapter) incomparably more lasting and
secure than those reserved to the people, in the
states we mention.
In those states, the political rights which usu-
ally fall to the share of the people are those of
voting in general assemblies, either when laws are
to be enacted, or magistrates to be elected. But
as the advantages arising from these general rights
of giving votes are never very clearly ascertained
by the generality of the people, so neither are the
consequences attending particular forms or modes
of giving these votes generally and completely un-
derstood. They accordingly never entertain any
strong and constant preference for one method ra-
ther than another; and hence it always proves too
easy a thing in republican states, either by insidi-
ous proposals made at particular times to the peo-
ple, or by well-contrived precedents, or other
means, first to reduce their political privileges to
mere ceremonies and forms, and, at last, entirely
to abolish them.
Thus, in the Roman republic, the mode which
was constantly in use for about one hundred and
fifty years, of dividing the citizens into centuria:
when they gave their votes reduced the right of
the greater part of them, during that time, to lit-
tle more than a shadow. After the mode of di-
viding them by tribes had been introduced by the
tribunes, the bulk of the citizens indeed were not,
when it was used, under so great a disadvantage
as before; but yet the great privileges exercised
OF ENGLAND, 407
by the magistrates in all the public assemblies, the
power they assumed of moving the citizens out of
one tribe into another, and a number of other cir-
cumstances, continued to render the rights of the
citizens more and more inefficient: and in fact we
do not find that when those rights were at last en-
tirely taken from them, they expressed any very
great degree of discontent.
In Sweden (the former government of which
partook much of the republican form) the right
allotted to the people in the government was that
of sending deputies to the general states of the
kingdom, who were to give their votes on the re-
solutions that were to be taken in that assembly.
But the privilege of the people of sending such
deputies was, in the first place, greatly diminished
by some essential disadvantages under which these
deputies were placed with respect to the body, or
order, of the nobles. The same privilege of the
people was farther lessened by their deputies being
deprived of the right of freely laying their differ-
ent proposals before the states, for their assent or
dissent; and by vesting the exclusive right of
framing such proposals in a private assembly,
which was called the secret committee. Again,
the right allowed to the order of the nobles, of
having a number of members in, this secret com-
mittee, double to that of all the other orders taken
together, rendered the rights of the people still
more ineffectual. At the last revolution, the .
rights we mention were in a manner taken from
408 THE CONSTITUTION
the people; and they do not seem to have made
any great efforts to preserve them.*
But the situation of affairs in England is totally
different from that which we have just described.
The political rights of the people are inseparably
connected with the right of property—with a right
which it is as difficult to invalidate by artifice, as
it is dangerous to attack by force, and which we
see that the most arbitrary kings, in the full career
of their power, have never offered to violate with-
out the greatest precautions. A king of England
who would enslave his people, must begin with
doing, for his first act, what all other kings re-
serve for the last ; and he cannot attempt to de-
prive his subjects of their political privileges, with-
out declaring war against the whole nation at the
same time, and attacking every individual at once
in his most permanent and his best-understood
interest.
The mean possessed by the people of England,
of influencing the conduct of the government, is
not only in a manner secure against any danger
of being taken from them : it is moreover attended
with another advantage of the greatest importance;
* I might have produced examples of a number of repub-
lican states, in which the people have been brought, at one
time or other, to submit to the loss of their political privileges.
In the Venetian republic, for instance, the right, long vested
exclusively in a certain number of families,—of enacting laws,
and electing the doge and other magistrates,—was originally
enjoyed by the whole people. +
OF ENGLAND. 409
which is that of conferring naturally, and as it
were necessarily, on those to whom they intrust
the care of their interests, the great privilege we
have before described, of debating among them-
selves whatever questions they deem conducive to
the good of their constituents, and of framing
whatever questions they think proper, and in what
terms they choose. .
This privilege of starting new subjects of de-
liberation, and, in short, of propounding in the
business of legislation, which, in England, is al-
lotted to the representatives of the people, forms
another capital difference between the English
constitution, and the government of other free
states, whether limited monarchies or common-
wealths, and prevents that which, in those states,
proves a most effectual mean of subverting the
laws favourable to public liberty,+namely, the
undermining of these laws by the precedents and
artful practices of those who are invested with the
executive power in the government.
In the states we mention, the active share, or
the business of propounding, in legislation, being
ever allotted to those persons who are invested
with the executive authority, they not only possess
a general power, by means of insidious and well-
timed proposals made to the people, of getting
those laws repealed which set bounds to their
authority; but when they do not choose openly to
discover their wishes in that respect, or perhaps
are even afraid of failing in the attempt, they have
4:10 THE CONSTITUTION
another resource, which, though slower in its ope-
ration, is no less effectual in the issue. They
neglect to execute those laws which they dislike,
or deny the benefit of them to the separate
straggling individuals who claim it, and, in short,
introduce practices that are directly repugnant to
them. These practices in a course of time become
respectable usages, and at length obtain the force
of laws.
The people, even where they are allowed, a
share in legislation, being ever passive in the ex-
ercise of it, have no opportunities of framing new
provisions by which to remove the spurious prac-
tices or regulations, and declare what the law in
reality is. The only resource of the citizens, in
such a state of things, is either to be perpetually
cavilling, or openly to oppose: and, always ex-
erting themselves either too soon or too late, they
cannot come forth to defend their liberty, without
incurring the charge, either of disaffection, or of
rebellion.
And while the whole class of politicians, who
are constantly alluding to the usual forms of
limited governments, agree in deciding that free-
dom, when once lost, cannot be recovered,” it
happens that the maxim principiis obsta, which
they look upon as the safeguard of liberty, and
which they accordingly never cease to recommend,
* “Ye free nations, remember this maxim: Freedom may
be acquired, but it cannot be recovered.” Rousseau's Social
Contract, chap. viii.
Golº ENGLAND.. 4II
besides its requiring a degree of watchfulness in-
compatible with the situation of the people, is in a
manner impracticable.
But the operation of preferring grievances, which
in other governments is a constant forerunner of
public commotions, and that of framing new law-
remedies, which is so jealously secured to the ruling
powers of the state, are, in England, the constitu-
tional and appropriated offices of the representa-
tives of the people.
How long soever the people may have remained
in a state of supineness, as to their most valuable
interests, whatever may have been the neglect and
even the errors of their representatives, the instant
the latter come either to see these errors, or to
have a sense of their duty, they proceed, by means
of the privilege we mention, to abolish those
abuses or practices which, during the preceding
years, had taken place of the laws. To how low
soever a state public liberty may happen to be re-
duced, they take it where they find it, lead it back
through the same path, and to the same point,
from which it had been compelled to retreat; and
the ruling power, whatever its usurpations may
have been,_how far soever it may have over-
flowed its banks,—is ever brought back to its old
limits.
“To the exertions of the privilege we mention,
were owing the frequent confirmations and eluci-
dations of the Great Charter that took place in
different reigns. By means of the same privilege
412 THE CONSTITUTION
the act was repealed, without public commotion,
which had enacted that the king's proclamation
should have the force of law : by this act public
liberty seemed to be irretrievably lost; and the
parliament which passed it, seemed to have done
what the Danish nation did about a century after-
wards. The same privilege procured the peace-
able abolition of the Court of star-chamber–a
court which, though in itselfillegal, had grown to
be so respected through the length of time it had
been suffered to exist, that it seemed to have for
ever fixed and riveted the unlawful authority it
conferred on the crown. By the same means was
set aside the power which the privy council had
assumed of imprisoning the subject without admit-
ting to bail, or even mentioning any cause. This
power was, in the first instance, declared illegal by
the Petition of Right; and the attempts of both
the crown and the judges to invalidate this declara-
tion, by introducing or maintaining practices that
were derogatory to it, were as often obviated, in a
peaceable manner, by fresh declarations, and, in the
end, by the celebrated Habeas Corpus act.*
* The case of general warrants may also be mentioned as an
instance. The issuing of such warrants, with the name of the
person to be arrested left blank, was a practice that had been fol-
lowed by the secretaries of state for above sixty years. In
a government differently constituted, that is, in a government
in which the magistrates, or executive power, should have been
possessed of the key of legislation, it is difficult to say how the
contest might have been terminated; these magistrates would
have been but indifferently inclined to frame and bring forth a
OF ENGLAND. - 413
I shall take this opportunity of observing, in
general, how the different parts of the English
government mutually assist and support each other.
It is because the whole executive authority of the
state is vested in the crown, that the people may
without danger delegate the care of their liberty to
representatives:—it is because they share in the
government only through these representatives,
that they are enabled to possess the great advantage
arising from framing and proposing new laws: but
for this purpose it is again absolutely necessary
that a correspondent prerogative of the crown, that
is to say, a veto of extraordinary power, should
exist in the state. -
It is, on the other hand, because the balance of
the people is placed in the right of granting to the
crown its necessary supplies, that the latter may,
without danger, beintrusted with the great authority
we mention: and that the right for instance, which
is vested in it, of judging of the proper time for
calling and dissolving parliaments (a right abso-
lutely necessary to its preservation)” may exist
declaration which wouldabridge their assumed authority. In the
republic of Geneva, the magistracy, instead of rescinding the
judgement against M. Rousseau, of which the citizens com-
plained, chose rather openly to avow the maxim, that standing
uses were valid derogations from the written law, and ought to
supersede it. This rendered the clamour more violent than
before. . &
* As affairs are situated in England, the dissolution of a par-
liament on the part of the crown is no more than an appeal
either to the people themselves, or to another parliament.
414 THE CONSTITUTION
without producing, ipso facto, the ruin of public
liberty. The most singular government upon
earth, and which has carried farthest the liberty of
the individual, was in danger of total destruction,
when Bartholomew Columbus was on his passage
to England, to teach Henry the Seventh the way
to Mexico and Peru.
As a conclusion of this subject (which might
open a field for speculation without end) I shall
take notice of an advantage peculiar to the English
government, and which, more than any other we
could mention, must contribute to its duration.
All the political passions of mankind, if we attend
to it, are satisfied and provided for in the English
government; and whether we look at the monarchi-
cal, the aristocratical, or the democratical part of it,
we find all those powers already settled in it in a re-
gular manner, which have an unavoidable tendency
to arise, at one time or other, in all human societies.
If we could for an instant suppose that the
English form of government, instead of having
been the effect of a concurrence of fortunate cir-
cumstances, had been established from a settled
plan by a man who had discovered, before-hand
and by reasoning, all those advantages resulting
from it which we now perceive from experience,
and had undertaken to point them out to other
men capable of judging of what he said to them,
the following is, most likely, the manner in which
he would have expressed himself.
* Nothing is more chimerical (he might have
OB. ENGLAND. z '4'Iſà
“said) than a state either of total equality, or
‘ total liberty, amongst mankind. In all socie-
‘ties of men, some power will necessarily arise.
* This power, after gradually becoming confined
‘to a smaller number of persons, will by a like
‘necessity, at last fall into the hands of a single
* leader; and these two effects (of which you may
‘see constant examples in history) arising from the
‘ ambition of one part of mankind, and from the
“various affections and passions of the other, are
‘ absolutely unavoidable. -
* Let us, therefore, admit this evil at once, since
‘ it is impossible to avoid it. Let us, of ourselves,
‘establish a chief among us, since we must, some
‘time or other, submit to one; we shall by this step
• effectually prevent the conflicts that would arise
‘ among the competitors for that situation. But
“let us, above all, avoid plurality; lest one of the
“chiefs, after successively raising himself on the
“ruin of his rivals, should, in the end, establish
‘ despotism, and that through a train of incidents
‘the most pernicious to the nation. .
* Let us even give him every thing we can con-
‘fer without endangering our security. Let us
‘ call him our sovereign; let us make him con-
* sider the state as being his own patrimony; let
‘us grant him, in short, such personal privileges
‘as none of us can ever hope to rival him in; and
‘we shall find that those things which we were at
“first inclined to consider as a great evil, will be in
‘reality a source of advantage to the community.
416 THE CONSTITUTION
* We shall be the better able to set bounds to that
‘power which we shall have thus ascertained and
* fixed in one place. We shall thus render more
“interested the man whom we shall have put in
* possession of so many advantages, in the faithful
“discharge of his duty; and we shall procure, for
* each of us, a powerful protector at home, and
* for the whole community, a defender against
“foreign enemies, superior to all possible tempta-
‘tion of betraying his country.
‘You may also have observed (he might con-
‘tinue) that in all states there naturally arise
‘ around the person or persons, who are invested
* with the public power a class of men, who, with-
* out having any actual share in that power, yet
* partake of its lustre, who, pretending to be dis-
‘tinguished from the rest of the community, do
* from that very circumstance become distin-
‘guished from it; and this distinction, though
‘ only matter of opinion, and at first thus surrep-
‘titiously obtained, yet may become in time the
“source of very grievous effects.
* Let us therefore regulate this evil, which we
‘ cannot entirely prevent. Let us establish this
‘class of men, who would otherwise grow up
‘ among us without our knowledge, and gradually
‘ acquire the most pernicious privileges. Let us
‘grant them distinctions that are visible and
* clearly ascertained: their nature will thus be the
‘better understood, and they will of course be
• much less likely to become dangerous. By the
OF ENGLANL), 417
same means also, we shall preclude all other per-
* sons from the hopes of usurping them. As to
‘pretend to distinctions can thenceforward be no
* longer a title to obtain them, every one who
“shall not be expressly included in their number
‘must continue to confess himself one of the
‘people; and, just as we said before, “Let us
* “choose ourselves one master that we may not
* “ have fifty,” we may now say, “Let us establish
* “three hundred lords, that we may not have ten
* “ thousand nobles.””
* Besides, our pride will better reconcile itself
to a superiority which it will no longer think of
“ disputing. Nay, as they will themselves see
• that we are before-hand in acknowledging it,
• they will think themselves under no necessity of
“being insolent to furnish us a proof of it. Secure
“as to their privileges, all violent measures on their
* part for maintaining, and at last perhaps extend-
‘ing them, will be prevented: they will never com-
“bine with any degree of vehemence, but when
“they really have cause to think themselves in dan-
‘ger; and by having made them indisputably great
* men, we shall have a chance of often seeing them
‘behave like modest and virtuous citizens.
• In fine, by being united in a regular assembly,
• they will form anintermediatebodyinthestate,that
“is to say, a very useful part of the government.
“It is also necessary (our reasoning lawgiver
“might add) that we, the people, should have an
“influence upon government: it is necessary for
2 E
4.18 THE CONSTITUTION
“our own security; it is no less necessary for the
* Security of the government itself. But expe-
“rience must have taught you, at the same time,
‘ that a great body of men cannot act, without
* being, though they are not aware of it, the instru-
‘ments of the designs of a small number of per-
‘sons; and that the power of the people is never
“any thing but the power of a few leaders, who
* (though it may be impossible to tell when or
“how) have found means to secure to themselves
* the direction of its exercise.
* Let us, therefore, be also before-hand with
• this other inconvenience. Let us effect openly
“what would, otherwise, take place in secret.
• Let us intrust our power, before it be taken from
“us by address. Those whom we shall have ex-
“ pressly made the depositories of it, being freed
* from any anxious care about supporting them-
* selves, will have no object but to render it useful.
* They will stand in awe of us the more, because
* they well know that they have not imposed upon
* us; and instead of a small number of leaders,
* who would imagine they derive their whole im-
‘portance from their own dexterity, we shall have
‘ express and acknowledged representatives, who
* will be accountable to us for the evils of the state.
“But above all, by forming our government
* with a small number of persons, we shall prevent
“any disorder that may take place in it from ever
* becoming dangerously extensive. Nay more,
‘we shall render it capable of such inestimable
OF ENGLAND. 419
* combinations and resources, as would be utterly
* impossible in the government of all, which never
‘ can be any thing but uproar and confusion.
* In short, by expressly divesting ourselves of a
* power, of which we should, at best, have only an
* apparent enjoyment, we shall be entitled to make
* conditions for ourselves: we will insist that our
* liberty be augmented; we will, above all, reserve
* to ourselves the right of watching and censuring
* that administration which will have been esta-
‘blished by our own consent. We shall the better
‘see its faults, because we shall be only spectators
* of it : we shall correct them the better, because
* we shall not have personally concurred in its ope-
* rations. * *
The English constitution being founded upon
such principles as those we have just described, no
true comparison can be made between it and the
government of any other state; and since it evi-
dently secures, not only the liberty, but the gene-
ral satisfaction, in all respects, of those who are
subject to it, in a much greater degree than any
other government ever did, this consideration alone
* He might have added,—“As we will not seek to coun-
“teract nature, but rather to follow it, we shall be able to pro-
“cure ourselves a mild legislation. Let us not be without
“cause afraid of the power of one man; we shall have no
“need either of a Tarpeian rock, or of a council of ten. Hav-
“ing expressly allowed to the people a liberty to inquire into
“the conduct of government, and to endeavour to correct it.
“we shall need neither state prisons, nor secret informers."
2 E 2
A 20 THE CONSTITUTION
affords sufficient ground to conclude, without look-
ing farther, that it is also more likely to be pre-
served from ruin. - --
And indeed we may observe the remarkable
manner in which it has been maintained in the
midst of such general commotions as seemed to
lead to its unavoidable destruction. It rose again,
we see, after the wars between Henry the Third
and his barons,—after the usurpation of Henry
the Fourth, and after the long and bloody con-
tentions between the houses of York and Lancas-
ter. Nay, though totally destroyed in appearance
after the fall of Charles the First, and though the
greatest efforts had been made to establish another
form of government in its stead, yet no sooner was
Charles the Second called over, than the con-
stitution was re-established upon all its ancient
foundations.
However, as what has not happened at one time
mây happen at another, future revolutions (events
which no form of government can totally prevent)
may perhaps end in a different manner from that
in which past ones have terminated. New com—
binations may possibly take place among the then
ruling powers of the state, of such a nature as to
prevent the constitution, when peace shall be
restored to the nation, from settling again upon its
ancient and genuine foundations: and it would cer-
tainly be a very bold assertion to affirm, that both
the outward form, and the true spirit of the Eng-
lish government, would again be preserved from
OF ENGLAND. 42I
destruction, if the same dangers to which they have
in former times been exposed should again happen
to take place.
Nay, such fatal changes as those we mention
may be introduced even in quiet times, or, at
least, by means in appearance peaceable and con-
stitutional. Advantages, for instance, may be
taken by particular factions, either of the feeble
capacity, or of the misconduct of some future king.
Temporary prepossessions of the people may be so
artfully managed as to make them concur in doing
what will prove afterwards the ruin of their own
liberty. Plans of apparent improvement in the
constitution, forwarded by men who, though with
good intentions, shall proceed without a due know-
ledge of the true principles and foundations of
government, may produce effects quite contrary
to those which were intended, and in reality pave
the way to its ruin.” The crown, on the other
* Instead of looking for the principles of politics in their true
sources, that is to say, in the nature of the affections of
mankind, and of those sacred ties by which they are united in
a state of society, men have treated that science in the same
manner as they did natural philosophy in the time of Aristotle,
continually recurring to occult causes and principles, from
which no useful consequence could be drawn. Thus, in order
to ground particular assertions, they have much used the word
constitution in a personal sense, the constitution loves, the consi-
tution forbids, and the like. At other times they have had re-
course to luxury, in order to explain certain events; and, at
others, to a still more occult cause, which they have called
corruption ; and abundance of comparisons drawn from the
422 THE CONSTITUTION
hand, may, by the acquisition of foreign dominions,
acquire a fatal independency on the people: and
if, without entering into any farther particulars on
this subject, I were required to point out the prin-
cipal events which would, if they were ever to
happen, prove immediately the ruin of the English
government, I would say,+the English govern-
ment will be no more, either when the crown shall
become independent on the nation for its supplies,
or when the repesentatives of the people shall
begin to share in the executive authority.”
human body have been also used for the same purposes :
continued instances of such defective arguments and conside-
rations occur in the works of M. de Montesquieu, though a
man of so much genius, and from whose writings so much
information is nevertheless to be derived. Nor is it only the
obscurity of the writings of politicians, and the impossibility
of applying their speculative doctrines to practical uses, which
Prove that some peculiar and uncommon difficulties lie in the
way of the investigation of political truths ; but the remark-
able perplexity which men in general, even the ablest, labour
under, when they attempt to descant and argue upon abstract
questions in politics, also justifies this observation, and proves
that the true first principles of this science, whatever they are,
lie deep both in the human feelings and understanding.
... * And if at any time dangerous changes were to take place
*n the English constitution, the pernicious tendency of which
the people were not able at first to discover, restrictions on the
liberty of the press, and on the power of juries, will give them
the first information.
OF ENGI, AND. 423
CHAPTER XIX.
A few additional Thoughts on the Attempts that
at particular Times may be made to abridge
the Power of the Crown, and some of the
Dangers by which such Attempts may be
attended.
T HE power of the crown is supported by deeper
and more numerous roots than the generality of
people are aware of, as has been observed in a
former chapter; and there is no cause to fear that
the wresting any capital branch of its prerogative
may be effected, in common peaceable times, by
the mere theoretical speculations of politicians.
However, it is not equally impracticable that
some event of the kind we mention may be
brought about through a conjunction of several cir-
cumstances. Advantage may, in the first place,
be taken of the minority, and even of the inexpe-
rience or the errors of the person invested with the
kingly authority. Of this a remarkable instance
happened in the reign of George the First, while
that bill, by which the order of peers was in
future to be limited to a certain number, was
under consideration in the house of commons, to
whom it had been sent by the lords. So unac-
quainted was the king at that time with his own
interest, and with the constitution of the English
424 THE CONSTITUTION
government, that, having been persuaded by the
party who wished success to the bill, that the
commons only objected to it from an opinion of its
being disagreeable to him, he was prevailed upon
to send a message to them, to let them know that
sueh an opinion was ill-grounded, and that, should
the bill pass in their house, it would meet with
his assent. Considering the prodigious impor-
tance of the consequences of such a bill, the fact
is certainly very remarkable.
With those personal disadvantages under
which the sovereign may lie for defending his au-
thority, other causes of difficulty may concur,
such as popular discontents of long continuance in
regard to certain particular abuse of influence or
authority. The generality of the public, bent, at
that time, both upon remedying the abuses com-
plained of, and preventing the like from taking
place in future, will perhaps wish to see that branch
of the prerogative which gave rise to them taken
from the crown : a general disposition to ap-
laud such a measure, if effected, will be ma-
nifested from all quarters ; and at the same
time men may not be aware, that the only
material consequence that may arise from depriv-
ing the crown of that branch of power which has
caused the public complaints, will perhaps be the
having transferred that branch of power from its
former seat to another, and having intrusted it to
new hands, which will be still more likely to abuse
it than those in which it was formerly lodged.
OF ENGLAND. 425
In general, it may be laid down as a maxim,
that power under any form of government must
exist, and be intrusted somewhere. If the constitu-
tion does not admit of a king, the governing autho-
rity is lodged in the hands of magistrates. If the
government, at the same time that it is a limited
one, bears a monarchical form, those portions of
power that are retrenched from the king’s prero-
gative will most probably continue to subsist, and
be vested in a senate or assembly of great men,
under some other name of the like kind.
Thus, in the kingdom of Sweden, which, having
been a limited monarchy, may supply examples
very applicable to the government of this country,
we find that the power of convoking the general
states (or parliament) of that kingdom had been
taken from the crown; but at the same time we
also find that the Swedish senators had invested
themselves with that essential branch of power
which the crown had lost: I mean here the govern-
ment of Sweden as it stood before the last revo-
lution.
The power of the Swedish king to confer offices
and employments had been also very much
abridged. But what was wanting to the power of
the king, the senate enjoyed: it had the nomina-
tion of three persons for every vacant office, out
of whom the king was to choose one.
The king had but a limited power in regard to
pardoning offenders; but the senate likewise pos-
sessed what was wanting to that branch of his
426 THE CONSTITUTION
prerogative, and it appointed two persons, without
the consent of whom the king could not remit the
punishment of any offence.
The king of England has an exclusive power in
regard to foreign affairs, war, peace, treaties;—in
all that relates to military affairs, he has the dispo-
sal of the existing army, of the fleet, &c. The
king of Sweden had no such extensive powers; but
they nevertheless existed: every thing relating to
the above-mentioned objects was transacted in the
assembly of the senate; the majority decided ; the
king was obliged to submit to it; and his only pri-
vilege consisted in his vote being accounted two.”
If we pursue farther our inquiry on the subject,
* The Swedish senate was fully composed of sixteen mem-
bers. In regard to affairs of smaller moment they formed
themselves into two divisions, in either of these, when they
did sit, the presence of seven members was required for the
effectual transacting of business : in affairs of importance, the
assembly was formed of the whole senate ; and the presence
of ten members was required to give force to the resolutions.
When the king could not or would not take his seat, the se-
nate proceeded nevertheless, and the majority continued to be
equally decisive.
As the royal seal was necessary for putting in execution the
resolutions of the senate, king Adolphus Frederic tried, by re-
fusing to lend the same, to procure that power which he had
not by his suffrage, and to stop the proceedings of the senate.
Great debates in consequence of that pretension arose, and
continued for a while ; but at last, in the year 1756, the king
was over-ruled by the senate, who ordered a seal to be made,
that was named the king's seal, which they affixed to their
cfficial resolutions, when the king refused to lend his own.
OF ENGLAND. 427
we shall find that the king of Sweden could not raise
whom he pleased to the office of senator, as the
king of England can in regard to the office of mem-
ber of the privy council; but the Swedish states,
in the assembly of whom the mobility enjoyed most
capital advantages, possessed a share of the power
we mention, in conjunction with the king; and in
cases of vacancies in the senate, they elected three
persons, out of whom the king was to return one.
The king of England may, at all times, deprive
the ministers of their employments. The king of
Sweden could remove no man from his office ; but
the states enjoyed the power that had been denied
to the king; and they might deprive of their places
both the senators, and those persons in general
who had share in the administration.
The king of England has the power of dissolving,
or keeping assembled, his parliament. The king of
Sweden had not that power; but the states might
of themselves prolong their duration as they
thought proper.
Those who think that the prerogative of a king
cannot be too much abridged, and that power loses
all its influence on the dispositions and views of
those who possess it, according to the kind of name
used to express the offices by which it is conferred,
may be satisfied, no doubt, to behold those branches
of power that were taken from a king distributed
to several bodies, and shared by the representatives
of the people; but those who think that power
428 THE CONSTITUTION
when parceled and diffused, is never so well re-
pressed and regulated as when it is confined to a
sole indivisible seat, which keeps the nation united
and awake, -those who know, that names by no
means altering the intrinsic nature of things, the
representatives of the people, as soon as they are
invested with independent authority, become, ipso
facto, its masters, those persons, I say, will not
think it a very happy regulation in the former
constitution of Sweden to have deprived the king
of prerogatives formerly attached to his office, in
order to vest the same either in a senate, or in the
deputies of the people, and thus to have intrusted
with a share in the exercise of the public power
those very men whose constitutional office should
have been to watch and restrain it.
From the indivisibility of the governing autho-
rity in England, a community of interest takes
place among all orders of men; and hence arises,
as a necessary consequence, the liberty enjoyed by
all ranks of subjects. This observation has been
insisted upon at length in the course of the present
work. The shortest reflection on the frame of the
human heart suffices to convince us of its truth,
and at the same time manifests the danger that
would result from making any changes in the form
of the existing government, by which this general
community of interest might be lessened,—unless
we are at the same time also determined to believe,
that partial nature forms men in this island with
OF ENGLAND. 429
sentiments very different from the selfish and am-
bitious dispositions which have ever been found in
other countries.*
* Such regulations as may essentially affect, through their
consequences, the equipoise of a government, may be brought
about, even though the promoters themselves of those regu-
lations are not aware of their tendency. When the bill
passed in the seventeenth century, by which it was enacted
that the crown should give up its prerogative of dissolving the
parliament then sitting, the generality of people had no
thought of the calamitous consequences that were to follow :
very far from it. The king himself certainly felt no very great
apprehension on that account; else he would not have given
his assent; and the commons themselves, it appears, had very
faint notions of the capital changes which the bill would
speedily effect in their political situation.
When the crown of Sweden was, in the first instance,
stripped of all the different prerogatives we have mentioned,
it does not appear that those measures were effected by sudden
open provisions for that purpose: it is very probable that the
way had been paved for them by indirect regulations formerly
made, the whole tendency of which scarcely any one perhaps
could foresee at the time they were framed.
When the bill was in agitation, for limiting the house of
peers to a certain number, its great constitutional conse-
quences were scarcely attended to by any body. The king
himself certainly saw no harm in it, since he sent an open
message to promote the passing of it: a measure which was
not, perhaps, strictly regular. The bill was, it appears, ge-
nerally approved out of doors. Its fate was for a long time
doubtful in the house of commons ; nor did they acquire any
favour with the bulk of the people by finally rejecting it: and
judge Blackstone, as I find in his Commentaries, does not
seem to have thought much of the bill, and its being rejected,
as he only observes that the commons “wished to keep the
“door of the house of lords as open as possible.” Yet, no
430 THE CONSTITUTION
But experience does not by any means allow
us to entertain so pleasing an opinion. The pe-
rusal of the history of this country will show us,
that the care of its legislators, for the welfare of
the subject, always kept pace with the exigencies
of their own situation. When, through the mi-
nority, or easy temper of the reigning prince, or
other circumstances, the dread of a superior power
began to be overlooked, the public cause was im-
mediately deserted in a greater or less degree, and
pursuit after private influence and lucrative offices
took the place of patriotism. When, in the reign
of Charles the First, the authority of the crown
was for a while annihilated, those very men, who
till then had talked of nothing but Magna Charta
bill of greater constitutional importance was ever agitated in
parliament; since the consequences of its being passed would
have been the freeing the house of lords, both in their judicial
and legislative capacities, from all constitutional check what-
ever, either from the crown or the nation. Nay, it is not to
be doubted, that they would have acquired, in time, the right
of electing their own members: though it would be useless to
point out here by what series of intermediate events the
measure might have been brought about. Whether there
existed any actual project of this kind among the first framers
of the bill, does not appear; but a certain number of the
members of the house we mention would have thought of it
soon enough, if the bill in question had been enacted into a
law; and they would certainly have met with success, had
they been contented to wait, and had they taken time. Other.
equally important changes in the substance, and perhaps the
outward form, of the government would have followed.
OF ENGLAND. 431
and liberty, instantly endeavoured openly to
trample both under foot.
Since the time we mention, the former con-
stitution of the government having been restored,
the great outlines of public liberty have indeed
been warmly and seriously defended; but if any
partial unjust laws or regulations have been made,
especially since the revolution of the year 1689,-
if any abuses injurious to particular classes of in-
dividuals have been suffered to continue, it will
certainly be found upon inquiry, that those laws
and those abuses were of such a complexion, that
from them, the members of the legislature well
knew, neither they nor their friends would ever be
likely to suffer.
If, through the unforeseen operation of some
new regulation made to restrain the royal pre-
rogative, or through some sudden public revo-
lution, any particular bodies or classes of indivi-
duals were ever to acquire a personal independent
share in the exercise of the governing authority,
we should behold the public virtue and patriotism
of the legislators and great men immediately cease
with its cause, and aristocracy, as it were, watch-
ful of the opportunity, burst out at once, and
spread itself over the kingdom.
The men who are now the ministers, but then
the partners of the crown, would instantly set
themselves above the reach of the law, and soon
after ensure the same privilege to their several
supporters or dependants.
432 THE CONSTITUTION
Personal and independent power becoming the
only kind of security of which men would now
show themselves ambitious, the Habeas Corpus act,
and in general all those laws which subjects of
every rank regard with veneration, and to which
they look up for protection and safety, would be
spoken of with contempt, and mentioned as
remedies fit only for peasants and cits:—it even
would not be long before they would be set aside,
as obstructing the wise and salutary steps of the
Senate. $º
The pretensions of an equality of right in all
subjects of whatever rank and order, to their pro-
perty and to personal safety, would soon be looked
upon as an old-fashioned doctrine, which the
judge himself would ridicule from the bench.
And the liberty of the press, now so universally
and warmly vindicated, would, without loss of
time, be cried down and suppressed, as only serving
to keep up the insolence and pride of a refractory
people.
And let us not believe, that the mistaken
people, whose representatives we now behold
making such a firm stand against the indivisible
power of the crown, would, amidst the general de-
vastation of every thing they hold dear, easily
find men equally disposed to repress the encroach-
ing, while attainable, power of a senate and body
of nobles.
The time would be no more when the people,
upon whatever men they should fix their choice,
OF ENGLAND. 433
would be sure to find them ready sincerely to join
in the support of every important branch of public
liberty.
Present or expected personal power, and inde-
pendence on the laws, being now the consequence
of the trust of the people,_wherever they should
apply for servants, they would only meet with be-
trayers. Corrupting, as it were, every thing they
should touch, they could confer no favour upon an
individual but to destroy his public virtue; and
(to repeat the words used in a former chapter)
“ their raising a man would only be immediately
“ inspiring him with views directly opposite to
“ their own, and sending him to increase the num-
“ ber of their enemies.”
All these considerations strongly point out the
very great caution which is necessary to be used
in the difficult business of laying new restraints on
the governing authority. Let therefore the less
informed part of the people, whose zeal requires to
be kept up by visible objects, look (if they choose)
upon the crown as the only seat of the evils they
are exposed to ; mistaken notions on their part are
less dangerous than political indifference; and
they are more easily directed than roused;—but,
at the same time, let the more enlightened part of
the nation constantly remember, that the consti-
tution only subsists by virtue of a proper equili-
brium,--by a discriminating line being drawn
between power and liberty.
Made wise by the examples of several other-
2 F
434 THE CONSTITUTION
nation, by those which the history of this very
country affords, let the people, in the heat of their
struggles in the defence of liberty, always take
heed, only to reach, never to overshoot the mark,
—only to repress, never to transfer and diffuse
power.
Amidst the alarms that may at particular times
arise from the really awful authority of the crown,
let it, on one hand, be remembered, that even the
power of the Tudors was opposed and subdued,—
and, on the other, let it be looked upon as a funda-
mental maxim, that, whenever the prospect of per-
sonal power and independence on the governing
authority shall offer to the view of the members of
the legislature, or in general of those men to whom
the people must trust, even hope itself is destroyed.
The Hollander, in the midst of a storm, though
trusting to the experienced strength of the mounds
that protect him, shudders, no doubt, at the sight
of the foaming element that surrounds him; but
they all gave themselves over for lost, when they
thought the worm had penetrated into their
dykes.*
* Such new forms as may prove destructive of the real
substance of a government may be unwarily adopted, in the
same manner as the superstitious notions and practices de-
scribed in my work, entitled Memorials of Human Superstition,
may be introduced into a religion, so as entirely to subvert the
true spirit of it.
OF ENGLAND. 435
CHAPTER XX.
A few additional Observations on the Right of
Taration, which is lodged in the Hands of the
Representatives of the People. What kind of
Danger this Right may be earposed to.
*
THE generality of men, or at least of poli-
ticians, seem to consider the right of taxing them-
selves, enjoyed by the English nation, as being no
more than the means of securing their property
against the attempts of the crown; while they
overlook the nobler and more extensive efficiency
of that privilege.
The right to grant subsidies to the crown,
possessed by the people of England, is the safe-
guard of all their other liberties, religious and
civil; it is a regular mean conferred on them by
the constitution, of influencing the motion of the
executive power; and it forms the tie by which
the latter is bound to them. In short, this privi-
lege is a sure pledge in their hands, that their so-
vereign, who can dismiss their representatives at
his pleasure, will never entertain thoughts of ruling
without the assistance of these. -
If, through unforeseen events, the crown could
attain to be independent on the people in regard
to its supplies, such is the extent of its preroga-
2 F 2
436 THE CONSTITUTION
tive, that, from that moment, all the means the
people possess to vindicate their liberty would be
annihilated. They would have no resource left,
except indeed that uncertain and calamitous one,
of an appeal to the sword; which is no more,
after all, than what the most enslaved nations
enjoy.
* Let us suppose, for instance, that abuses of
power should be committed, which, either by their
immediate operation, or by the precedent they
might establish, should undermine the liberty of
the subject. The people, it will be said, would
then have their remedy in the legislative power pos-
sessed by their representatives. The latter would,
at the first opportunity, interfere, and frame such
bills as would prevent the like abuses for the
future. But here we must observe, that the as-
sent of the sovereign is necessary to make those
bills become laws; and if, as we have just now
supposed, he had no need of the support of the
commons, how could they obtain his assent to
laws thus purposely framed to abridge his au-
thority ?
Again, let us suppose that, instead of content-
ing itself with making slow advances to despotism,
the executive power, or its minister, should at once
openly invade the liberty of the subject. Ob-
noxious men, printers for instance, or political
writers, might be persecuted by military violence,
Or, to do things with more security, with the forms
of law. Then, it will be said, the representatives
OF ENGLAND. 437
of the people would impeach the persons concerned
in those measures. Though unable to reach a
king who personally can do no wrong, they at
least would attack those men who were the imme-
diate instruments of his tyrannical proceedings,
and endeavour, by bringing them to condign pu-
nishment, to deter future judges or ministers from
imitating their conduct. . All this I grant; and I
will even add, that, circumstanced as the represen-
tatives of the people now are, and having to do
with a sovereign who can enjoy no dignity with-
out their assistance, it is most likely that their en-
deavours in the pursuit of such laudable objects
would prove successful. But if, on the contrary,
the king, as we have supposed, stood in no need of
their assistance, and moreover knew that he should
never want it, it is impossible to think that he
would then suffer himself to remain a tame spec-
tator of their proceedings. The impeachments
thus brought by them would immediately prove
the signal of their dismission; and the king would
make haste, by dissolving them, both to revenge
what would then be called the insolence of the
commons, and to secure his ministers.
But even those are vain suppositions; the evil
would reach much farther; and we may be as-
sured that, if ever the crown should be in a con-
dition to govern without the assistance of the
representatives of the people, it would dismiss them
for ever, and thus rid itself of an assembly which,
continuing to be a clog on its power, would no
438 THE CONSTITUTION
longer be of any service to it. This Charles the
First attempted to do when he found his parlia-
ments refractory, and the kings of France really
have done, with respect to the general estates of
their kingdom.
Indeed if we consider the extent of the prero-
gative of the king of England, and especially the
circumstance of his completely uniting in himself
all the executive and active powers of the state,
we shall find that it is no exaggeration to say that
he has power sufficient to be as arbitrary as the
kings of France, were it not for the right of tax-
ation, which, in England, is possessed by the peo-
ple; and the only constitutional difference between
the French and English nations is, that the
former can neither confer benefits on their sove-
reign, nor obstruct his measures; while the latter,
how extensive soever the prerogative of their king
may be, can deny him the means of exerting it.
But here a most important observation is to be
made ; and I entreat the reader's attention to the
subject. This right of granting subsidies to the
crown can only be effectual when it is exercised
by one assembly alone. When several distinct
assemblies have it equally in their power to supply
the wants of the prince, the case becomes totally
altered. The competition which so easily takes
place between those different bodies, and even the
bare consciousness which each entertains of its
inability to obstruct the measures of the sovereign,
render it impossible for them to make any effec-
OF ENGLAND. 439
tual constitutional use of their privilege. “Those
“ different parliaments, or estates (to repeat the
“observation introduced in the former part of this
“work) having no means of recommending them-
“selves to their sovereign, but their superior
“readiness in complying with his demands, vie
“with each other in granting what it would not
“ only be fruitless but even dangerous to refuse.
“And the king, in the mean time, soon comes to
“demand, as a tribute, a gift which he is confident
“ to obtain.” In short, it may be laid down as a
maxim, that when a sovereign is made to depend,
in regard to his supplies, on more assemblies than
one, he in fact depends upon none. And indeed
the king of France is not independent of his peo-
ple for his necessary supplies, any otherwise than
by drawing the same from several different as-
semblies of their representatives: the latter have
in appearance a right to refuse all his demands:
and as the English call the grants they make to
their kings, aids or subsidies, the estates of the
French provinces call theirs dons gratuits, or free
gifts. •
What is it, therefore, that constitutes the dif.
ference between the political situation of the
French and English nations, since their rights thus
seem outwardly to be the same? The difference
lies in this, that there has never been in England
more than one assembly that could supply the
wants of the sovereign. This has always kept
him in a state, not of a seeming, but of a real de-
440 THE CONSTITUTION
pendence on the representatives of the people for
his necessary supplies; and how low soever the
liberty of the subject may, at particular times,
have sunk, they have always found themselves
possessed of the most effectual means of restoring
it, whenever they thought proper so to do. Under
Henry the Eighth, for instance, we find the des-
potism of the crown to have been carried to an as-
tonishing height: it was even enacted that the
proclamations of the king should have the force of
law : a thing which, even in France, never was so
expressly declared : yet, no sooner did the nation
recover from its long state of supineness, than the
exorbitant power of the crown was reduced within
its constitutional bounds.
To no other cause than the disadvantage of
their situation, are we to ascribe the low con-
dition in which the deputies of the people in the
assembly called the general estates of France,
were always forced to remain. ,-
Surrounded as they were by the particular
estates of those provinces into which the kingdom
had been formerly divided, they never were able
to stipulate conditions with their sovereign : and
instead of making their right of granting subsidies
to the crown serve to gain them in the end a share
in the legislation, they ever remained confined to the
unassuming privilege of “humble supplication and
remonstrance.” ” . . .
* An idea of the manner in which the business of granting
supplies to the crown was conducted by the states of the pro-
OF ENGLAND. 441
Those estates, however, as all the great lords in
France were admitted into them, began at length
to appear dangerous; and as the king could in the
mean time do without their assistance, they were
set aside. But several of the particular states of
vince of Bretagne in the reign of Louis the Fourteenth, may
be formed from several lively strokes to be met with in the
Letters of Madame de Sevigné, whose estate lay in that pro-
vince, and who had often assisted at the holding of those states.
The granting of supplies was not, it seems, looked upon as
any serious kind of business. The whole time the states were
sitting, was a continued scene of festivity and entertainment;
the canvassing of the demands of the crown was chiefly carried
on at the table of the nobleman who had been deputed from
court to hold the states; and the different points were usually
decided by a kind of acclamation. In a certain assembly of
those states, the duke of Chaulmes, the lord deputy, had a
present of fifty thousand crowns made to him, as well as a
considerable one for his duchess, besides obtaining the demand
of the court: and the lady we quote here, commenting some-
what jocularly on these grants, says, Ce n'est pas que nous soyons
riches : mais nous sommes honnétes, mous avons du courage,
et entre midi et une heure mous me savons rien refuser a nos
amis. “It is not that we are rich ; but we are civil, we are
“full of courage, and between twelve and one o'clock we are
“unable to deny any thing to our friends.”
The different provinces of France, it may be observed, are
liable to pay several taxes besides those imposed on them by
their own states. Dean Tucker, in one of his tracts, in which
he has thought proper to quote this work, has added to the
above instance of the French provinces that of the states
of the Austrian Netherlands, which is very conclusive.
‘And examples to the same purpose might be supplied by
all those kingdoms of Europe in which provincial states are
holden. -
442 THE constituTION
the provinces are preserved to this day: * some,
which for temporary reasons had been abolished,
have been restored: nay, so manageable have po-
pular assemblies been found by the crown, when it
has to do with many, that the kind of government
we mention is that which it has been found most
convenient to assign to Corsica: and Corsica has
been made un pays d'états.f
That the crown in England should, on a sud-
den, render itself independent on the commons for
its supplies,<-that is, should on a sudden success-
fully assume to itself a right to lay taxes on the
subject, by its own authority,+is not certainly an
event likely to take place, nor indeed is it one that
should, at the present time, raise any kind of po-
litical apprehension. But it is not equally im-
practicable that the right of the representatives of
the people might become invalidated, by being di-
vided in the manner that has been just described.
Such a division of the right of the people might
be effected in various ways. National calamities,
for instance, unfortunate foreign wars attended
with loss of public credit, might suggest methods
* The year 1784. -
t The English, partly by conquest, and partly by the sub-
mission of the inhabitants, gained possession of Corsica in
1794; and a national parliament was granted to the island by
its new possessors. But the people did not long submit with
patience to the British government: the island was evacuated
in 1796, and re-possessed by the French, who reduced it under
the same tyrannical yoke to which their other territories were
subject.—EDIT.
OF ENGLAND. 443
for raising the necessary supplies, different from
those which have hitherto been used. Dividing
the kingdom into a certain number of parts, which
should severally vote subsidies to the crown, or
even distinct assessments to be made by the dif-
ferent counties into which England is now divided,
might, in the circumstances we suppose, be looked
upon as advisable expedients; and these being
once introduced, might be continued. 3.
Another division of the right of the people,
much more likely to take place than those just
mentioned, might be such as might arise from ac-
quisitions of foreign dominions, the inhabitants of
which should in time claim and obtain a right to
treat directly with the crown, and grant supplies
to it, without the interference of the British legis-
lature.
Should any colonies acquire the right we men-
tion,-should, for instance, the American colonies
have acquired, as they claimed it, it is not to be
doubted that the consequences which have resulted
from a division like that we mentioned in most of
the kingdoms of Europe, would also have taken
place in the British dominions, and that the spirit
of competition, above described, would in time
have manifested itself between the different colo-
nies. This desire of ingratiating themselves with
the crown, by means of the privilege of granting sup-
plies to it, was even openly confessed by an agent
of the American provinces," when, on his being ex-
* Dr. Franklin.
444 THE CONSTITUTION
amined by the house of commons, in the year 1766,
he said, “the granting aids to the crown is the
“only means the Americans have of recommend-
“ing themselves to their sovereign.” And the
events that have of late years taken place in
America, render it evident that the colonies would
not have scrupled going any lengths to obtain fa-
vourable conditions at the expense of Britain and
the British legislature.
That a similar spirit of competition might be
raised in Ireland, is also sufficiently plain from
certain late events. And should the American
colonies have obtained their demands,-and at the
same time should Ireland and America have in-
creased in wealth to a certain degree,_the time
might have come at which the crown might have
governed England with the supplies of Ireland and
America—Ireland with the supplies of England
and of the American colonies—and the American
colonies with the money of each other, and of
England and Ireland. -
To this it may be objected, that the supplies
granted by the colonies, even though joined with
those of Ireland, never could have risen to such a
height as to have counterbalanced the importance
of the English commons.—I answer, in the first
place, that there would have been no necessity
that the aids granted by Ireland and America
should have risen to an equality with those granted
by the British parliament: it would have been
sufficient to produce the effects we mention, that
OF ENGLAND. 445
they had only borne a certain proportion to the
latter, so far as to have conferred on the crown a
certain degree of independence, and at the same
time have raised in the English commons a cor-
respondent sense of self-diffidence in the exercise
of their undoubted privilege of granting, or rather
refusing, subsidies to the crown.—Here it must
be remembered, that the right of granting or re-
fusing supplies to the crown is the only ultimate
forcible privilege possessed by the British parlia-
ment: by the constitution it has no other, as has
been observed in the beginning of this chapter.
This circumstance ought to be combined with the
exclusive possession of the executive powers lodged
in the crown—with its prerogative of dissenting
from the bills framed by parliament, and even of
dissolving it.*
* Being with Doctor Franklin at his house in Craven-street,
some months before he went back to America, I mentioned to
him a few of the remarks contained in this chapter, and, in
general, that the claim of the American colonies directly
clashed with one of the vital principles of the English consti-
tution. The observation, I remember, struck him very much :
it led him afterwards to speak to me of the examination he had
undergone in the house of commons; and he concluded with
lending me that volume of the Collection of Parliamentary
Debates, in which an account of it is contained. Finding the
constitutional tendency of the claim of the Americans to be a
subject not very generally understood, I added a few para-
graphs concerning it in the English edition I some time after
gave of this work; and on publishing a third edition of the
same, I thought it might not be amiss to write something
more compact on the subject, and accordingly added the pre-
446 THE CONSTITUTION
I shall mention, in the second place, a remark-
able fact in regard to this subject (which may serve
to show that politicians are not always consistent,
or even sagacious in their arguments); which is,
that the same persons who were the most strenu-
ous advocates for granting to the American colo-
nies their demands, were likewise the most san-
guine in their predictions of the future wealth and
greatness of America; and at the same time also
used to make frequent complaints of the undue
influence which the crown derives from the scanty
supplies granted to it by the kingdom of Ireland.*
Had the American colonies fully obtained their
demands, both the essence of the present English
government, and the condition of the English peo-
ple, would certainly have been altered thereby:
nor would such a change have been inconsiderable,
but in proportion as the colonies should have re-
mained in a state of national poverty.f
sent new chapter, into which I transferred the few additional
paragraphs I mention, leaving in the place where they stood
(page 45), only the general observations on the right of grant-
ing subsidies, which were formerly in the French work. Se-
veral of the ideas, and even expressions contained in this chap-
ter, made their appearance in the Public Advertiser, about the
time I was preparing the first edition : I sent them myself to
that newspaper, under the signature of Advena.
* For instance, the complaints made in regard to the pen-
sions on the Irish establishment.
t When I observe that no man who wished for the preser-
vation of the form and spirit of the English constitution ought
to have desired that the claim of the American colonies might
OF ENGLAND. 447
CHAPTER XXI.
Conclusion.—A few Words on the Nature of the
Divisions that take place in England.
I SHALL conclude this work with a few obser-
vations on the total freedom from violence with
which the political disputes and contentions in
be granted to them, I mean not to say that the American
colonies should have given up their claim. The wisdom of
ministers, in regard to American affairs, ought to have been
constantly employed in making the colonies useful to this
country, and at the same time in hiding their subjection from
them (a caution, which is, after all, more or less used in every
government upon earth); it ought to have been exerted in
preventing the opposite interests of Britain, and of America,
from being brought to an issue, −to any such clashing dilem-
ma as would render disobedience on the one hand, and the
resort to force on the other, almost unavoidable. The gene-
rality of the people fancy that ministers use a great depth of
thought and much forecast in their operations; whereas the
truth is, that ministers, in all countries, never think but of
providing for present, immediate contingencies; in doing
which they constantly follow the open track before them.
This method does very well for the common course of human
affairs, and even is the safest ; but whenever cases and cir-
cumstances of a new and unknown nature occur, sad blunders
and uproar are the consequences. The celebrated count Ox-
enstiern, chancellor of Sweden, one pay when his son was ex-
pressing to him his diffidence of his own abilities, and the
dread with which he thought of ever engaging in the manage-
ment of public affairs, made the following Latin answer to
him; Nescis, mi fili, quam parv4 cum sapientiá regitur mundus
448 THE CONSTITUTION
England are conducted and terminated, in order
both to give a farther proof of the soundness of the
principles on which the English government is
founded, and to confute in general the opinion
of foreign writers or politicians, who, misled by
the apparent heat with which these disputes are
sometimes carried on, and the clamour to which
they give occasion, look upon England as a perpe-
tual scene of civil broils and dissensions.
In fact, if we consider, in the first place, the
constant tenour of the conduct of the parliament, we
shall see that whatever different views the several
—“You do not know, my son, with what little wisdom the
“world is governed.”
Matters having come to an eruption, it was no longer to
be expected they could be composed by the palliative offers sent
at different times from this country to America. When the
earl of Carlisle solicited to be at the head of the solemn com-
mission that sailed for the purpose we mention, he did not cer-
tainly show modesty equal to that of the son of chancellor Ox-
enstiern. It has been said, in that stage of the contest, the
Americans could not think that the proposals thus sent to them
were seriously meant: however, this cannot have been the
pincipal cause of the miscarriage of the commission. The
fact is, that after the Americans had been induced to open their
eyes on their political situation, and rendered sensible of the
local advantages of their country, it became in a manner impos-
sible to strike with them any bargain at which either nation
would afterwards have cause to rejoice, or even to make any
bargain at all. It would be needless to say anything more, in
this place, on the subject of the American contest.
The motto of one of the English nobility should have been
that of ministers, in their regulations for rendering the colonies
useful to the mother country,<-Faire sans dire.
OF ENGLAND. 449
branches that compose it may at times pursue, and
whatever use they may accordingly make of their
privileges, they never go, in regard to each other,
beyond the terms of decency, or even of that
general good understanding which ought to pre-
vail among them.
Thus the king, though he preserves the style of
his dignity, never addresses the two houses but in
terms of regard and affection; and if at any time he
chooses to refuse their bills, he only says that he
will consider of them (le roy s'avisera); which is
certainly a gentler expression than the word veto.
The two houses on their part, though very
jealous, each within their own walls, of the freedom
of speech, are on the other hand, careful that this
liberty shall never break out into unguarded ex-
pressions with regard to the person of the king.
It is even a constant rule amongst them never to
mention him, when they mean to blame the admi-
mistration; and those things which they may
choose to censure, even in the speeches made by
the king in person, and which are apparently his
own acts, are never considered but as the deeds of
his ministers, or, in general, of those who have
advised him.
The two houses are also equally attentive to
prevent every step that may be inconsistent with
that respect which they owe to one another. The
examples of their differences with each other are
very rare, and have been, for the most part, mere
misunderstandings. Nay, in order to prevent all
2 G.
450 THE CONSTITUTION
subject of altercation, the custom is, that, when
one house refuses to assent to a bill presented by
the other, no formal declaration is made of such
refusal; and that house whose bill is rejected,
learns its fate only from hearing no more of it,
or by what the members may be told as private
persons.
In each house, the members take care, even in
the heat of debate, never to go beyond certain
bounds in their manner of speaking of each other:
if they were to offend in that respect, they would
certainly incur the censure of the house.* And
as reason has taught mankind to refrain, in their
wars, from all injuries to each other that have no
tendency to promote the main object of their con-
tentions, so a kind of law of nations (if I may so ex-
press myself) has been introduced among the
persons who form the parliament and take a part
in the debates: they have discovered that they
may very well be of opposite parties, and yet not
hate and persecute one another. Coming fresh
from debates carried on even with considerable
warmth, they meet without reluctance in the or-
dinary intercourse of life; and, suspending all hos-
* Yet many duels have occurred in consequence of intem-
perate expressions thrown out amidst the warmth of debate;
for the laws of imaginary honour are supposed to overbalance
all regard to common morality, and to rise superior to that
sense of public duty which ought to prompt every member of
a national assembly to sacrifice private resentment on the altar
of patriotism.—EDIT.
OF ENGLAND, 451
tilities, they hold every place out of parliament to
be neutral ground. -
In regard to the generality of the people, as
they never are called upon to come to a final de-
cision with respect to any public measures, or
expressly to concur in supporting them, they pre-
serve themselves still more free from party spirit
than their representatives themselves sometimes
are. Considering, as we have observed, the affairs
of government as only matter of speculation, they
never have occasion to engage in any vehement
contests among themselves on that account : much
less do they think of taking an active and violent
part in the differences of particular factions, or the
Quarrels of private individuals. And those family
feuds, those party animosities, those victories and
consequent outrages of factions alternately success-
ful; in short, all those inconveniences which in so
many other states have constantly been the attend-
ants of liberty, and which authors tell us we must
submit to, as the price of it, are things in very
great measure unknown in England.
But are not the English perpetually making
complaints against the administration ? and do
they not speak and write as if they were conti-
nually exposed to grievances of every kind?
Undoubtedly, I shall answer, in a society of
beings subject to error, dissatisfactions will neces-
sarily arise from some quarter or other; and, in a
free society, they will be openly manifested by
2 G 2
452 THE CONSTITUTION
complaints. Besides, as every man in England is
permitted to give his opinion upon all subjects, and
as, to watch over the administration, and complain
of grievances, is the proper duty of the represen-
tatives of the people, complaints must necessarily
be heard in such a government, and even more
frequently, and upon more subjects, than in any
other.
But those complaints, it should be remembered,
are not, in England, the cries of oppression forced
at last to break its silence. They do not suppose
hearts deeply wounded. Nay, I will go farther
—they do not even suppose very determinate sen-
timents; and they are often nothing more than
the first vent which men give to their new and yet
unsettled conceptions. -
The agitation of the popular mind, therefore, is
not in England what it would be in other states;
it is not the symptom of a profound and general
discontent, and the forerunner of violent commo-
tions. Foreseen, regulated, even hoped for by the
constitution, this agitation animates all parts of
the state, and is to be considered only as the be-
neficial vicissitude of the seasons. The governing
power, being dependent on the nation, is often
thwarted; but, so long as it continues to deserve
the affection of the people, it can never be endan-
gered. Like a vigorous tree which stretches its
branches far and wide, the slightest breath can put
it in motion; but it acquires and exerts at every
OF ENGLAND: 453
moment a new degree of force, and resists the
winds, by the strength and elasticity of its fibres,
and the depth of its roots.
In a word, whatever revolutions may at times
happen among the persons who conduct the public
affairs in England, they never occasion the shortest
interruption of the power of the laws, or the
Smallest diminution of the security of individuals.
A man who should have incurred the enmity of
the most powerful men in the state—what do I
say ?—though he had, like another Vatinius,
drawn upon himself the united detestation of all
parties,<-might, under the protection of the laws,
and by keeping within the bounds required by
them, continue to set both his enemies and the
whole nation at defiance.
The limits prescribed to this book do not admit
of entering into any farther particulars on the sub-
ject we are treating here; but if we were to
pursue this inquiry, and investigate the influence
which the English government has on the manners
and customs of the people, perhaps we should find
that, instead of inspiring them with any disposition
to disorder or anarchy, it produces in them a quite
contrary effect. As they see the highest powers
in the state constantly submit to the laws, and they
receive, themselves, such a certain protection from
those laws whenever they appeal to them, it is
impossible but they must insensibly contract a
deep-rooted reverence for them, which can at no
time cease to have some influence on their actions-
454 THE CONSTITUTION
And, in fact, we see that even the lower class of
the people, in England, notwithstanding the appa-
rent excesses into which they are sometimes hur-
ried, possess a spirit of justice and order superior
ito what is to be observed in the same rank of men
in other countries. The extraordinary indulgence
which is shown to accused persons of every degree,
is not attended with any of those pernicious con-
sequences which we might at first be apt to fear
from it. And it is, perhaps, to the nature of the
English constitution itself (however remote the
cause may seem) and to the spirit of justice which
it continually and insensibly diffuses through all
orders of the people, that we are to ascribe the
singular advantage possessed by the English na-
tion, of employing an incomparably milder mode of
administering justice in criminal matters than any
40ther nation, and at the same time of affording,
perhaps, fewer instances of violence or cruelty.
Another consequence which we might observe
here, as flowing also from the principles of the
JEnglish government, is the moderate behaviour of
those who are invested with any branch of public
authority. If we look at the conduct of public
officers, from the minister of state, or the judge,
down to the lowest officer of justice, we find a
spirit of forbearance and lenity prevailing in Eng-
land, among the persons in power, which cannot
but create surprise in those who have visited other
countries.
Two circumstances more I shall mention here,
OF ENGLAND. 455
as peculiar to England; namely, the constant
attention of the legislature in providing for the in-
terests and welfare of the people, and the indul-
gence shown by them to their very prejudices;
advantages these, which are, no doubt, the con-
sequence of the general spirit that animates the
whole English government, but are also particu-
larly owing to the circumstance peculiar to it, of
having lodged the active part of legislation in the
hands of the representatives of the nation, and
committed the care of alleviating the grievances of
the people to persons who either feel them, or see
them nearly, and whose surest path to advance-
ment and fame is to be active in finding remedies
for them.
I mean not, however, to affirm, that the Eng-
lish government is free from abuses, or that all
possible good laws are enacted, but that there is a
constant tendency in it, both to correct the one,
and improve the other. And that all the laws
which are in being are strictly executed, when-
ever appealed to, is what I look upon as the charac-
teristic and undisputed advantage of the English
constitution,--a constitution the more likely to
produce all the effects we have mentioned, and
to procure in general the happiness of the people,
since it has taken mankind as they are, and has
not endeavoured to prevent every thing, but to re-
gulate every thing; I shall add, the more difficult
to discover, because its form is complicated, while
its principles are natural and simple. Hence it is
456 THE CONSTITUTION
that the politieians of antiquity, sensible of the in-
conveniences of the governments they had oppor-
tunities of knowing, wished for the establishment
of such a government, without much hope of ever
seeing it realized:* even Tacitus, an excellent
judge of political subjects, considered it as a project
entirely chimerical. Nor was it because he had
not thought of it, had not reflected on it, that he
was of this opinion: he had sought for such a
government, had had a glimpse of it, and yet
continued to pronounce it impracticable.
Let us not, therefore, ascribe to the confined
viewsofman, to his imperfect sagacity, the discovery
of this important secret. The world might have
grown old, generations might have succeeded ge-
merations, still seeking it in vain. It has been by a
fortunate conjunction of circumstances, I shall
add, by the assistance of a favourable situation,--
that Liberty has at last been able to erect herself
a temple.
Invoked by every nation, but of too delicate a
nature, as it should seem, to subsist in societies
formed of such imperfect beings as mankind, he
showed, and merely showed herself, to the inge-
* “Statuo esse optime constitutam rempublicam quae ex
“tribus generibus illis, regali, optimo, et populari, modice
“ confusa.”—Cic. Frag. -
f “Cuncta nationes et urbes, populus, priores, aut sin-
“guli, regunt. Delecta ex his et constituta reipublicae for-
“ma, laudari facilius quam evenire : vel si evenit, haud diu-
“turna esse potest.”—Tac. Ann. lib, iv.
OF ENGLAND. 457
nious nations of antiquity who inhabited the south
of Europe. They were constantly mistaken in the
form of the worship they paid to her. As they
continually aimed at extending dominion and
conquest over other nations, they were no less mis-
taken in the spirit of that worship; and though
they continued for ages to pay their devotions to
this divinity, she still continued, with regard to
them, to be the unknown goddess.
Excluded, since that time, from those places to
which she had seemed to give a preference, driven
to the extremity of the Western World, banished
even out of the Continent, she has taken refuge in
the Atlantic Ocean. There it is, that, freed from
thedangers of external disturbance, and assisted by a
happy pre-arrangement of things, she has been able
to display the form that suited her; and she has
found six centuries to have been necessary for the
completion of her work.
Being sheltered, as it were, within a citadel, she
there reigns over a nation which is the better enti-
tled to her favours, as it endeavours to extend her
empire, and carries with it, to every part of its do-
minions, the blessings of industry and equality.
Fenced in on every side (to use the expression of
Chamberlayne) with a wide and deep ditch, the
sea,-guarded with strong out-works, its ships of
war, and defended by the courage of her seamen,
she preserves that mysterious essence, that sacred
fire so difficult to be kindled, and which, if it were
once extinguished, would, perhaps, never belighted
458 THE CONSTITUTION OF ENGLAND.
again. When the world shall have been again laid
waste by conquerors, she will still continue to show
mankind, not only the principle that ought to unite
them, but, what is of no less importance, the form
under which they ought to be united. And the
philosopher, when he considers the constant fate of
civil societies amongst men, and observes the mu-
merous and powerful causes which seem, as it were,
unavoidably to conduct them all to a state of poli-
tical slavery, will take comfort in seeing that Li-
berty has at length disclosed her nature and ge-
nuine principles, and secured to herself an asylum,
against despotism on one hand, and popular licem-
tiousness on the other.”
* This work cannot be dismissed without praise by any edi-
tor who has a due sense of merit. The author, like an ingenious
painter, sees the whole of his subject at one view; exhibits
the prominent features in a strong light, without neglecting
the inferior parts of the piece; observes the keeping and the
perspective, and gives an interesting finish to the strokes of
art. His colouring is, perhaps, too high : I do not mean that
his style is brilliant; but his display is, in some respects, too
flattering. Occasionally he seems to refine too much, in at-
tributing to art and design what may in a great measure have
arisen from chance. But this is the natural effect of that zeal
for his subject, and of that respect for our ancestors, which he
imbibed in the progress of his work. -
I N HD E X.
A
AMERICAN Colonies, their claim of voting supplies to the
crown, hurtful, if obtained, to the English constitution,
443, 446. What ought to have been the general conduct
of ministers in regard to the colonies, 446, 447. tº sº *
Appeal, in case of murder, its effects, and to whom allowed,
Army, restrictions on the power of the king in regard to the
keeping of it, 75, 76. Is not, in England, the means of
supporting the authority of the crown, 375. How little its
assistance was useful to James II., 396. See Military
Power and Crown.
Arrest, method of, in civil causes, by the English laws, 95,
96. By the Roman laws, 98, 99. The alterations in the
English law in that respect, 100.
Assemblies, popular, the disadvantages they lie under in re-
gard to each coming to any deliberate well-weighed reso-
lution, 212, 213. The advantages a few distinguished
citizens have over them, 217, 218. Tully’s passage con-
cerning them, 227. See Commonwealths, People, Rome.
Athens, arbitrary proceedings of its magistrates, 234.
Aula Regis, what kind of Court, 13. The Court of Common
Pleas dismembered from it, 93. The Court of King’s
Bench may be considered as the remains of it, 94.
Author, occasional personal remarks of his, 319, 359, 360,
374, 382, 383. His Memorials of Human Superstition
quoted, 434. His conversation with Dr. Franklin, 445.
B.
13arons, originally in a great measure independent in France,
460 INDEX,
10, 11. No so in England, 12. Unite in a common cause
with the people, 19, 288, 385.
Beauchamp, lord (now marquis of Hertford), procures the
passing of a bill for limiting personal arrests, 100.
Bills, how deliberated upon and framed, 57, 193, 199, 228,
229. See Commons and Parliament.
Bill of Rights, an account of, 49. Utility of its provisions,
291.
Blackstone, judge, quoted, 58, 155, 307, 321.
Burnet, bishop, quoted, 311, 397.
C.
Caesar, public speech of his quoted, 324.
Censorial power, that established in Rome only a senatorial
artifice, 249. See Press.
Censors, in Rome, might remove a man from one tribe into
another, and elect senators, 236.
Chancery, court of, its office in regard to the framing of writs,
108, 109. See Equity, courts of.
Charles I., sketch of his reign, 40–44. Maintains his ground
eleven years against the violent political and religious
spirit of his times, 389. His attempt to seize the five
members led to the civil war, 391.
Charles II., conduct of, 45.
Charta, Magna, substance of 23, 24.
Cicero quoted, 104, 120, 224, 227, 235, 301.
Civil English laws, divided into unwritten and written law,
90. The sources of the unwritten law, 91. How far the
civil law is a part of the same, 92. What the written law
is, 93. Peculiarities of the English civil laws, 95. Re-
finements and subtilties in them, 100, et seq. Compared
with the old Roman civil laws, 106.
Civil power in England, how superior to the military, 390,
391, 395.
Civil Roman laws, the constant dislike of the English law-
yers for them, 87, 88. Formalities in the ancient Roman
laws, 103, 104. The different collections of them, 126.
Coke, sir Edward, quoted, 150, 153, 193,251.
Comines, Philip de, quoted, 33.
Commons, English, their origin, under Henry III. and Ed-
ward I., 26, 27. How inconsiderable their weight at first,
27. This soon increases, 28, 29. Farther advances, 34, 35.
How the house is constituted, 51. Vindicate the right of
taxation against the attempts of the crown, 38, 43. And
of the lords, 72. See Tawation. They cannot vote by
INDEX. 46]
proxy, 193. Enjoy a freedom of debate superior to that
ever possessed by any popular assembly, 200. They are
debarred from any share in the executive authority, 240.
Are thence led to serve the people faithfully, 242. Strik-
ing instances of this in the laws they have framed at par-
ticular times, 289—291. And in their watching their
execution, 306–308. Have impeached the servants of
the crown and judges, 308. Their proceedings in the
case of sir John Coventry, 311. See Parliament and Re-
presentative. Abridge their own personal privileges, 314.
Do strict justice on their own members, 314. On what
occasion they repealed the statute De Haeretico Combu-
rendo, 326. Their attacks on the crown's prerogative
defeated by the lords, 334. They in their turn defeat the
like attempts from the lords, 335.
Commonwealths, the people in them apt to be misled by
favourite leaders, 169, 170. The division of the execu-
tive authority that takes place in them, makes it very dif.
ficult to lay it under proper restraint, 170. The people
unavoidably betrayed by those whom they trust with
power, 232, 235, 237. Revolutions always concluded, in
them, in a manner disadvantageous to public liberty, 276,
277. See Revolutions. The laws to secure the liberty
of the citizens, besides being imperfect, are not even care.
fully executed, 292, et seq. Cannot subsist without cer-
tain arbitrary powers, contrary to the liberty of the citi-
zens, 357. Do not admit the liberty of speaking and
writing, and, perhaps, cannot, 359. The power of the
government supposed by law to be unbounded, till stopped
by some positive regulation, 381. By what means com-
monwealths generally lose their liberties, 406. Great
difficulty for the people in them to preserve their rights,
406, 407. See Rome and Geneva.
Conquest, the, is the real aera of the formation of the present
English government, 6, 7.
Constitution, English, the aeras of its formation, 6, 7, 33, 48,
70. Being different from that of all other free states, can-
not fall into ruin from the same causes, 401. Causes that
operate for its preservation, 409. Endangered by the offers
of Columbus to Henry VII., 414. Farther reasons of its
future preservation, 420. How it rises again, after being
in a manner overwhelmed, 420. Dangers to which it may
be exposed, 420, 421. In what circumstances it may be
looked upon as annihilated, 422. Meddling with it, upon
the score of improvement, may prove very dangerous ex-
periments, 398, 399, 429. See Crown. Would have been
462 INDEX,
altered by granting the Americans their claims, 446.
See Taration. Seems to diffuse a spirit of order and
justice among the lower classes of people, 453. Such a
one wished for by the politicians of antiquity, 455.
Consols, the aera of their creation, and nature of their office,
277. Unrestrained power, 233, 293. See Rome.
Coronation oath, 77.
Coventry, sir John, his case, 311. Resentment of the com-
mons, and their bill, 311.
Courts of law, in England, their names and functions, 93–
95. Kept by parliament under strict rules, 318. The
great impartiality of their proceedings, 313, et seq. See
Laws and Jury.
Cromwell, his fruitless attempts to form a popular assembly
obedient to him, 365.
Crown, its power much superior in England after the Con-
quest to what it was in France, 12. The barons compelled
to unite with the commonalty, to restrain its power, 19.
Its present constitutional prerogative, 60. Restraints it
lies under, 63, 66. Totally dependent on the people for
its supplies, 63. Usefulness of its power in preventing
any citizen or popular leader from acquiring a degree of
power dangerous to public liberty, 174. Instances of it,
182. Is not to make open proposals to parliament for their
assent or dissent, 201. May send messages to each house,
and to what effect, 202. Unites in itself the whole execu-
tive authority, 240. Thereby produces a union in a
common cause among all orders of subjects, 243. Is like
an ever-subsisting Carthage, that maintains the virtue of the
representatives of the people, 245. Farther illustration of
the same fact, 302, 312. The power of Crowns has not
produced these effects in other countries, 328. Instances
of this, 329. The stability of the executive power of the
English crown, 331, is a great peculiarity of it, 334. Is
not a subject to be explained here otherwise than by facts,
333. Its power alternately defended by the two houses,
334. The secret forbearance of the two houses from in-
vading its prerogative, 338. Remarkable instances of
this, 341, 343, 344. Its secure power rendered con-
spicuous in the facility with which it dismisses great men
from their employments, 346. Not so in other monarchies,
347. The facility with which it dismisses the parliament,
349. Never attacked except by persons who positively
laid claim to it, or at least upon national grounds, 353.
Its power more secure in itself, but not so indelibly an-
nexed to the person of an individual as in other countries,
INDEX. 463
354. The secret causes of its peculiar stability form a
subject more properly belonging to philosophy than to
politics, 355. "Great advantages result from this stability,
355. I. The numerous restraints it is able to bear, and
great freedom it can allow the subject at its expense, 356.
II. The liberty of speaking and writing, 359, 361.
III. The unlimited freedom of debate in parliament, 363.
IV. The union among all orders of subjects in defence
of public liberty, , 370. W. The unlimited freedom al-
lowed to the people of meddling with government affairs,
371. VI. The impartiality with which justice is adminis-
tered, without respect to persons, 373. VII. Needlessness
of an armed force to support its power, 376. VIII. Its
strict respect even for the letter of the law, 384. IX. The
lenity used in the administration of criminal justice, may,
perhaps, be ascribed in great part to the general security
which the stable power of the crown gives to the whole
machine of government, 384. The great power the crown
formerly derived from its dominions beyond sea, supplied
afterwards by sudden circumstances at home, 387. In-
stances of this great power without the support of an
armed force, 388, 389. It keeps the military power in a
surprising state of subjection to the law, 392. Instances
of this, 392. Really could not, in the general situation
of things, derive any assistance from a standing army
against the people, 395. The method it should adopt for
setting aside the present constitution, 397. Its power is
wholly annexed to the civil branch of its office, 399.
Hints concerning its effectual foundations, 399. Prevents
the English constitution from being destroyed in the same
manner the Roman republic was, 402, 403. The great
usefulness of its veto power, 413. Considerations on the
attempts to abridge its prerogative, 423. In what cir-
cumstances these attempts might be brought to succeed,
423. A comparison between its prerogative, and that of
the kings of Sweden, before the last revolution, 425. The
abridging of its prerogative might not answer the expec-
tations of those politicians who wish for it, 427, et seq.
Sketches of the dangers to public liberty that might arise
therefrom, 431. The rule to be followed in pursuing such
attempts, 433. How dependent on the people for its
supplies, see Taration.
464 INDEX.
D.
Debate, freedom of, secured by the bill of rights, 82. See
Propounding. How conducted in the English parliament,
57, 229. The unlimited freedom exercised in the English
parliament not followed by any bad consequences, and why,
368, 369.
Democracy, remarks on, 44. -
Dictators, their great power, 224, 225, 294. Their ab-
solute power was often useful, 357. See Rome.
Dissolution of the parliament, its effects, 55. Easily effected
by the crown in England, 350.
E.
Edward I., surnamed the English Justinian, 25.
Elections, laws relating to them, 52, 83. Grenville's bill for
deciding contested elections, 83, 84. Advantages arising
from the right of the people to elect representatives, 246,
267. See People.
Elizabeth, queen, the inquisitorial court of High Commission
established during her reign, 39.
Emancipation of sons, in Rome, manner of, 119, 120.
England, the power of the king becomes very great at the
aera of the Conquest, 11, 12. The lords or barons much
dependent on the crown, 12. Are thence compelled to
unite in a common cause with the people, 19. Different
from France, forming one compact united kingdom, 22.
This circumstance favours the establishment of public li-
berty, 22. A peculiarity of its government, viz. the ad-
vantageous manner to public liberty in which revolutions
have constantly been concluded, 287, et seq. The strict-
mess with which laws favourable to the liberty of the sub-
ject are executed, 303, et seq. See Commons. Remark-
able impartiality in the courts of law, 318. Instances
quoted, 319, 321. Farther strictures on the same subject,
375. Singular law-doctrine, concerning the authority of
government, and the liberty of the subject, 382, .383.
The people’s situation different from that of the people in
Rome, 404. . See People. The balance of the people in
government is connected with the right of property, 408.
See Taxation, Divisions among the people never carried
very far, 451. The lower class possessed of a considerable
spirit of order and justice, 454.
INDEX, 465
Equity, courts of; and inquiry into the meaning of the word,
and their real office, 115. A court of this kind existed in
Rome, 117. See Praetor. Remedies afforded by the
English courts of equity, 121. How these courts were
first instituted, 122. The opposition they met, 122, 123.
Their method of proceeding to enforce appearance, and
submission to their decrees, 123. Are kept within much
more strict bounds than the praetor’s equity court was at
Rome, 124. Farther definition of their office, 127, 128.
Executive power, lodged in the king, is more easily repressed
when confined to a sole indivisible seat, 183, et seq.-is
taken out of the hands of the representatives of the people,
240. Great advantages thence arising, 241. See Crown.
F.
Faire sans dire, the motto quoted, 448.
Favourite of the people, how prevented in the English con-
stitution from acquiring a power dangerous to public
liberty, 175, et seq. See Commonwealths.
Felton, his answer to the bishop of London, 154.
Feudal government introduced in France through a long series
of events and years, 9. Is introduced suddenly and at
once in England by the Conquest, 11. Consequences of
this difference, 13, 14.
Fictions of law, 112.
France, the feudal government was established in it very
slowly, 9. The crown was at first elective, 10. The au-
thority of the king originally very inconsiderable, 10, 11,
14. The barons were in great measure independent of the
crown, 14. These circumstances were prejudicial to the
liberty of the people, 14. The kingdom was formed by an
aggregation of different sovereignties, 15. The remark-
able treaty by which the war for the public good was ter-
minated, 25. General estates, how constituted, 28. The
third estate, or commons, never possessed any weight, 28.
A remarkable insurrection, 30. Edits enrégistrés, 59. Ex-
pedient for dismissing the parliament of Paris, 350. The
jealousy of the crown against that assembly, 366. Com-
parison between the French and English constitutions, in
regard to the right of taxation, 438, 440. .”
Franklin, Dr. quoted, 444, 445.
French language introduced into the English laws by William
the Conqueror, 58. Is still used by the king in declaring
his intention to the parliament, 58. -
2 H
466 INDEX,
G.
General warrants, set aside, 412. .
Geneva, republic of, mentioned, 196,216, 262, 413.
George I. king, led into an imprudent step, 424, 429.
Germany, by what cause the growth of the power of the
crown was checked there, 32.
Gracchi, how forsaken by the people, 225.
Grand jury, its office, 145.
Grecian commonwealths, revolutions in them only favourable
to the particular interests of leaders and demagogues, 286.
The reproach made them by Caesar, 323.
Guise, death of the duke of, 347, 348.
H.
Habeas Corpus act, when passed, and for what purpose, 163.
The tenour of it, 164. The particular occasion of it,
307. Expressions of judge Blackstone on the subject, 307.
On what occasion suspended, and with what caution, 359.
By what means finally settled, 412.
Hale, judge, quoted, 26. His description of the office of a
jury, 152.
Henry I., charter of, 20.
Henry VIII., his great power, 38. Was unsupported by a
standing army, 330.
Holt, judge, remarkable opinion delivered by him, 271.
Hugh Capet, the first hereditary king in France, 11. The
haughty answer of a French lord to him, 11.
Hume, Mr., a few words on the character given by him of
James II. 389.
I.
James I., liberty begins to revive in his reign, 40. His .
lofty notions concerning regal authority, 40. Keeps his
ground against the restless spirit of the times, 388.
James II., how his dethronement was effected, 47, 48. Was
inexcusable in his conduct, 389. Received no assistance
from his numerous army, 396.
Jesuits, how expelled from Spain, 351.
Impeachment, public, what, and its effects, 79. The king's
pardon no bar to the prosecution of an impeachment, 81.
Can it prevent the execution of the judgment? 80, 81.
INDEX. 467
Instances of ministers and judges impeached by the com-
mons, 79, 80, 308–310.
Imprisonment, the methods formerly used for liberating im-
prisoned persons, 161. They were insufficient against
the power of the court, 162, 163. A new force, given to
them by the petition of right, 162. Habeas Corpus act,
163. - -
John, king, grants the great charter, 22.
Johnson, Dr. Samuel, his opinion concerning the office of the
courts of equity, examined, 115, 116.
Judges, independence of, 67. Their office, in criminal
causes, is only to direct the jury, and afterwards to pro-
nounce the law, 150. Cannot alter the mode of punish-
ment, 155. Instances of judges impeached, 308. See
Courts.
Judicial power, in regard to criminal matters, the necessary
cautions in establishing such power, 131, et seq. Should
not be trusted, especially in a free state, to any too power-
ful persons or bodies, 137. Allusions to the French courts
of law, 139. See Trial. May be said in England to be in
the hands of nobody, 157. Lodged in the people, 363.
Junius's Letters quoted, 150, 307. 1 -º
Jury, how they are to shape their verdict, 149. Must decide
both upon the fact and the criminality of it, 150. What
rules must be followed in their opinion, 151,152. Judge
Hale's remarkable passage in that respect, 152. Usually
pay a great regard to the judge’s direction, 158. The
effect of their recommending to mercy, 158. See Trial
and Judicial Power.
Justice, impartiality of its administration in England, 319,
373. See Law and Judicial Power.

K.
King, his prerogative by the constitution, 51, 60, 61. The
restrictions set by law upon the exercise of the same, 63,
66, 71. He is not to interfere, nor his privy-council, in
the decision of causes either civil or criminal, 74. It is
disputed whether he can remit the prosecution of a sen-
tence awarded in consequence of an impeachment, 80, 81.
Not to be named in debates, 229. The last instance of one
using his negative voice, 343. See Crown.
2 H 2
468 INDEX.
L.
Laws. See Legislation. Laws of England, 90. Difficulty
in procuring just ones, 211.” All who can influence the
execution of them, are to be strictly watched, 238. A
very necessary caution in framing them, 240.
Law, criminal, how strictly the letter of it is adhered to in
England, without any extension, 152, 153, 384. Great
mildness of it, 159. See Pnnishment.
Legislative power, how formed in England, 51, et seq.
Advantages arising from its being divided, 189, et seq.
Remarkable constancy in its operations in England, 190.
Not so in the ancient commonwealths, 190. See Par-
liament.
Legislation, mode of, in commonwealths, 195. Inconveni-
ency of it, 196. The manner in which laws are framed in
England, 197. Advantages of the same, 200. See Pro-
pounding. Would it be an advantage if laws were enacted
by the people at large : 209–218. See People. -
Liberty, causes of English, 17–19. Its progress, 20, et
seq. Private liberty, 84. The word much misapplied or
misunderstood, 205. A more accurate definition of the
same, 209. How the provisions to secure it should be
directed, 238. Singular law-doctrine in England con-
cerning the liberty of the subject, 383.
Livy, quoted, 215, 225, 278, 281, 283, 285, 295.
Lords, the house of, how constituted, 54. Not suffered by
the commons to frame, or even alter, a money-bill, 57, 72.
Make it a standing order to reject all money bills, to which
bills of another nature have been tacked, 66, 334. Have
not given up their claim in regard to altering money bills,
72. The great pre-eminence allowed them in point of
ceremony over the commons, 192. Can vote by proxy,
193. Unite in a common cause with the people against
the power of the crown, 17, 41,243, 308. Abridge their
own personal privileges, 314. Their impartiality in their
judicial capacity, 317. Cannot be charged with having
abused their privilege of trying their own members, 318.
Defeat the attempts of the commons on the crown’s pre-
rogative, 335. Their own attempts defeated by the com-
mons, 336. A bill is framed to limit their number, 423.
The great importance of that bill generally overlooked,
429, 430. See Parliament and Peers.
Lyttletou, lord, quoted, 269.
INDEXe ' 469
M.
Machiaval’s History of the republic of Florence, quoted, 171.
Magna Charta, remarkable extensiveness and impartiality of
the provisions of, 287. r -
Marlborough, duke of, easily dismissed from his employments,
182, 346.
Martial courts, a remarkable dispute between one and a
court of law, 392.
Martial law must be universal, where the authority of the
government is supported by a standing army, 379.
Members of the house of commons, their personal privileges,
314. Instances of some punished by their own house,
314, 315. See Commons.
Military power, a cause of anxiety to those sovereigns whose
authority is supported by it, 379. Cannot in such case be
subjected to the civil power, 392. Not necessary to sup-
port the power of the crown in England, 390. The sur-
prising subjection of it to the civil power in England, 391,
409. See Crown. -
Minister, equally interested with other subjects in maintain-
ing the laws concerning personal security, 243. A dis-
carded one in other countries, the cause of some anxiet
or jealousy to the government, 349. Not so in England,
349.
Monarchies, revolutions generally concluded in them by pro-
visions for the advantage of great men and leaders, not of
the people, the same as in commonwealths, 287, 339. The
executive power of the crown in all ancient or modern
monarchies, wanting that peculiar stability of the English
crown, 328. Not secured otherwise than by standing
armies, 328. The monarchs are afraid of powerful sub-
jects, 348. Cannot do without some arbitrary means of
asserting their authority, 357. Very jealous of the li-
berty of the press, and, perhaps, are really obliged to be
so, 359. Extremely averse, out of fear for their own
security, to calling popular assemblies, 364. Respect of
persons in the administration of justice cannot be prevented
in them, 374. Anxious precautions taken in them in re-
gard to the military power, 378. Their law-doctrine con-
cerning the executive authority of the government, 38%. ,
The military superior to the civil power, 391.
Money-bills. See Taration.
Montesquieu, quoted, 249, 401.
More's Utopia quoted, 249.
470 INDEX,
O.
Obedience, passive, an absurd doctrine, 50.
Ostracism, an arbitrary unjust expedient, but, perhaps, ne-
cessary in the republic of Athens, 357. -
Owenstiern, chancellor, his words to his son, 447.
P.
Parliament, English, the constitution of, 51–59. How to
be convoked, 53, 73. Proceedings in Parliament not to be
questioned in any other place or court, 82. The secret
bent of that assembly to forbear invading the prerogative
of the crown, 343. Cautious conduct of the three branches
towards each other, 448, 449. See Commons and Crown.
Parliaments, French, great weight of, 139. Difficult to be
managed by the crown, 139. How Louis XV. dismissed
that of Paris, 350. Precautions taken by the next king in
restoring it, 367. See France.
Parliamentary History of England, a superficial observation
of its authors, 289. *
Pardon, the prerogative of, lodged in the king, 60. Cannot
be pleaded as a bar to an impeachment being carried on,
80. Often granted on the recommendation of a jury,
158.
Peers, how to be tried, 153. Have few real personal privi-
leges above the subject, 316. See Lords.
People, how misled by favourites or demagogues, 170. How
influenced or deceived by the magistrates or great men in
commonwealths, 214. Should act through representatives,
218. Should entirely delegate the legislative authority to
these, 221. How, and in what circumstances only, the
right of resistance may be usefully exerted by them, 274.
See Commonwealths and England. May be said in England
to possess both the judicial and censorial powers, 363.
The freedom they enjoy of interfering in government mat-
ters, 371.
Pope, Mr., quoted, 233.
Porcia Lea de tergo civium, 234, 288.
Praemunire, writ of, 185. f
Praetor, his office in Rome, 98. Assumes the office of a
judge of equity, 117. His provisions, 118. Their power
very arbitrary, 124. When first restrained, 125.
INDEX, 47I
Press, liberty of the, is a real censorial power lodged in the
people, 248. Much more effectual and beneficial than the
one established in Rome, 249. A licenser appointed upon
the press by the star-chamber, 251. By the long parlia-
ment, 251. By Charles II. and James II., 251. Finally
established in the year 1694, and how, 252. A definition
of it, 252. Actions respecting the same not to be decided
without a jury, 252. How extensive its use has become,
254. Great political advantages arising from the same,
256. Is farther useful, combined with the other rights of
the people, 260. Such as the right of election, 263.
How useful a support to the right of resistance, 273. Is
not allowed in commonwealths, or in monarchies, 359. Its
being tolerated in England to so high a degree, depends on
the stability of the executive power of the crown, 361.
The real foundation on which it rests in England, 383.
Error of the author, at first, in this respect, 383.
Prisoner, how to be committed, 144. When once acquitted,
cannot be tried again for the same offence, 152. See
Trial.
Privy council, its power abridged by the same act which
abolished the star-chamber, 74.
Prorogation, its effects, 55. The term not to be afterwards
shortened, 74. -
Propounding, in legislation, the privilege of, reserved to the
executive power in commonwealths, 195. Allotted in
the English constitution to the representatives of the
people, 197. How the same point was formerly settled in
France, Sweden, Scotland, and Ireland, 200. Great ad-
vantage accruing to public liberty from this right being
lodged in the representatives of the people, 201, 228. Its
remarkable advantages for preserving the English consti-
tution, and instances of it, 408. -
Punishments, the judge cannot alter the mode of, 155. Nor
the sheriff, 155. Do not extend beyond the simple de-
privation of life, 159. Their mildness in England, 322.
Not so among the Greeks and Romans, 323. Attention
of the English legislature in that respect, 325.
R.
Representatives, qualifications for being one, 52. Advan-
tages that accrue to the people from acting through re-
presentatives, 219, et seq. More hurtful than beneficial
when their interest is not in reality united with that of the
472. INDEX,
people, 221. The people should entirely delegate the le-
gislative authority to them, 227. The sedate manner in
which in England they debate and vote, 228. Do not
allow the speaker to have a vote, or the king’s name to be
introduced in debates, 229. Are debarred from all exe-
cutive authority, 240. Capital advantages thence arising,
242, et seq. See Commons and People.
Resistance, right of, admitted by the English laws, 268.
Opinion of Judge Blackstone quoted, 270. Recognised
even by the courts of law, 271. Is in a great measure a
useless right, unless combined with the liberty of the
press, 272. What circumstances are required for its being
usefully exerted, 274.
Revenue, of the king, very trifling, without grants from the
parliament, 63. -
Revolutions have always been concluded in England in a
manner advantageous to public liberty, 286, 287. A series
of instances, .288, &c. Not so in the Roman common-
wealth, 277. A series of instances during the whole time
of its duration, 277—286. The same disadvantage oc-
curred in the Greek republics, 286. And in the limited
monarchies of Europe, such as Scotland, Sweden, &c. 287.
Revolution of the year 1689, how accomplished and improved,
47, 291.
Re-unions of particular provinces to the crown, in France, 15.
Right, petition of 43, 290.
Rome, wrong notions of liberty the patricians and senate gave
to the people, 205. The influence of senators and great
men over the people, and their artifices, 223. The people,
and even the tribunes, greatly over-awed by a dictator,
227. The people betrayed by those in whom they trusted,
233. The tribunes not earnest in the defence of public
liberty, 233. The senate, consuls, and dictators, possessed
of an arbitrary power over the lives of the citizens, 234.
The censorial power only a piece of senatorial craft, 249.
Revolutions constantly concluded in a manner disadvanta-
geous to public liberty, 277. The laws concerning the
liberty of the citizens were not strictly executed, 293.
Remarkable instance of insolence and cruelty of a magis-
trate, 294. The rapacity of the men in power in regard
to the allies and subjects of the republic, 297. Corruption
of the judges, 298. Remarkable changes in the formation
of them, 299. A remarkable passage of Tully in regard
to the disorders that took place in the republic, 300. A
short sketch of their real, cause, 301. Dangers to which
both its liberty, and empire were exposed, 402. How the
INDEX. & 473
final overthrow of the republic was operated, 404. The
political rights allotted to the people, 406.
Rousseau quoted, 192, 205, 223, 249, 410.
Russian ambassador, the cause of his arrest, 321.
S.
Saron government, abolished in England by the Norman con-
quest, 8. Note upon that disputed subject, 7, 8.
Scotland, the number of representatives it sends, to parlia-
ment, 52. The lords of the articles, what assembly, 200.
The authority of the crown commonly invaded by the
nobles, 339. The bill framed for settling the crown on
the house of Hanover, 340. No advantageous expedient
to have trusted the mobility with the command of a stand-
ing army, 379. *
Secretary of state, case of an action brought against one, by
a private individual, 321.
Senate, Roman, how formed, 236,237. See Rome. Its conduct
at the expulsion of the kings, 277. See Revolutions.
Sevigné, madame de, quoted, 440, 441.
Smith, Dr. Adam, his opinion on liberty, and on the effects
produced by a standing army, examined, 380. Farther ob-
servations on the same subject in general, 387.
Spain, how that monarchy was formed, 30.
Spelman, quoted, 6–8.
Star-chamber, court of, how constituted, 43. It crushed the
liberty of the press, 251. Expressions of Sir Edward Coke
concerning it, 251. Was a kind of a court of equity in
regard to criminal matters, 386. By what means abolished,
412.
Statute de hatretico comburendo, for what reason repealed, 326.
That for allowing parliaments to meet of themselves, re-
pealed, 344.
Sweden, an account of the revolutions that have taken place
in its government, and of the restraints at times put on the
authority of the crown, 338. The disadvantages of the
body of the people in the legislature, 407. An account of
its government before the last revolution, 425.
Swift, dean, quoted, 346.
T.
Tacitus quoted, 36, 456.
Tawation, right of, when first secured to the lords and com-
474 - INDEx.
mons, 29. Possessed in England by a single parliament,
not by several assemblies as in France, 37, 38. Is rendered
thereby a much more efficacious check upon the crown, 38.
All taxes or money-bills must originate in the house of
commons, as well as the alterations in such bills, 56. The
great constitutional efficiency of that right, 63, 68. The
existence of the commons depends upon the same, 71.
The advantages of this right of the commons, when com-
bined with the right of propounding law-remedies, 198—
202. How firmly it secures all the other rights of the
people, and the whole constitution, against the attempts
of the crown, 408. Is the constitutional balance of the
people against the crown, 435. At the same time the only
forcible one, 436, 438, 445. Rendered ineffectual when
lodged in several distinct provincial assemblies, 37, 439.
How it might become so divided in England, 442.
Temple, sir William, quoted, 6.
Torture, attempted to be introduced in the reign of Henry
VI., 154. Declared illegal by the judges, 155.
Treason, high, statutes concerning it, repealed, 38, 69. How
trials in cases of treason are to be conducted, 149.
Trial by jury revived in the reign of Henry II., 21. How
to be conducted, 150, et seq. Great advantages of this
institution, 155–160. How strictly preserved in Eng-
land, 303. Not so in Normandy, Sweden, and Scotland,
303, 304.
Trials, the manner in which prisoners are tried in foreign
countries, 141.
Tribunes, Roman, betrayed the cause of the people, 233.
Their interested public conduct, 283. See Rome.
Tucker, dean, 441.
Tudors, the great power of the princes of that house, 36,
69, 388. f
V.
Verdict, how to be expressed, 150. A special one, what, 150.
W.
Walstein, duke of, caused to be slain by the emperor Ferdi-
mand II., 348.
William the conqueror set aside the Saxon, and substituted
the feudal government, 7, 11, 12. Possessed an un-
commonly great authority, 12, 13.
INDEX. 475
Writers, political, their ill-judged expressions and notions,
206. Their unwise admiration of the censorial power in
Rome, 249. Have not penetrated into the real foundation
of the science of politics, 401. Have treated it as an occult
kind of science, as natural philosophy was considered in
the time of Aristotle, 421. Anecdote of one, 384.
Writs, their importance in the English courts of law, 107.
Compared to the Roman actiones legis, 107. The difficulty
in creating new writs, 111.
I N T E X
TO THE
NOTES OF THE EDITOR.
B.
Burgesses, first election of, 27.
C.
Convocation, a mullity, 74.
Corsica, state of 442.
D.
Dissolution of parliament, extraordinary instance of 352.
Duels, a remark upon, 450. º
G.
Government, stability of the English, 399, 400.
I.
Impeachment, remarks upon, 34, 80.
Ireland, union with, 52, 55.
Jury, trial by, 21, 160, 304.
K.
King can do no wrong, a maxim in our law, 61.
L.
Land-taw, perpetual, 76.
478 INDEX,
Law, as opposed to equity, 129. Occasional cruelty of the
English laws, 325.
Libels, law of, 151; truth of, 254.
N.
Newspaper abuse, effect of, 258.
O.
Office, disqualifications from, 337.
P.
Peers, house of, sometimes alter money-bills in effect, 72.
Popularity, progress of 179.
Punishment, in cases of high tºwn, 159.
R.
Resistance, doctrine of, 269.
Revolution, French, 2. True nature of that of England, 48.
S.
Saron constitution, whether subverted, or not, by William the
conqueror, 8.
Shires, knights of, 27.
Supplies, power of with-holding, 167.
T.
Treating of electors, new act against, 53.
W.
Wilkes, case of, 135.
William the Conqueror, tyranny of, 12.
Wittena-gemot, annual, 72.
THE END.
c. Baldwin, Printer,
New Bridge-street, London.
*
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