A DEFENCE OF THE PAMPHLET ASCRIBED TO
JOHN REEVES, Esq.
AND ENTITLED,
"Thoughts on the English Government."
[Price Two Shillings and Sixpence.]
A DEFENCE OF THE PAMPHLET ASCRIBED TO
JOHN REEVES, ESQ.
AND ENTITLED,
"Thoughts on the English Government."
BY THE REV. J. BRAND, A. M.
ADDRESSED TO THE MEMBERS OF THE
LOYAL ASSOCIATIONS
AGAINST REPUBLICANS AND LEVELLERS.
LONDON: PRINTED FOR T. N. LONGMAN, PATERNOSTER-ROW, AND J. OWEN, PICCADILLY; AND SOLD BY ALL THE BOOKSELLERS AT THE ROYAL EXCHANGE.
1796.
INTRODUCTION: ADDRESSED TO THE
ASSOCIATIONS
AGAINST REPUBLICANS AND LEVELLERS.
MY LORDS AND GENTLEMEN.
MR. REEVES, the Institutor of the Associations, has been charged, as appears by the printed Debates in the Newspapers, by some Speakers in the two Houses, with having written a supposed libel on the Constitution: a similar crimination has also been brought forward against Mr. Arthur Young, who first stated and impressed upon the Nation the necessity of property being armed to defend itself, and thus laid the foundation of the institution of the Yeomanry Cavalry, to be employed against external violence, and internal insurrection. The same Gentleman has taken the leading part in both these accusations.
EACH of the above Institutions is hereby exposed to one common danger. The great majority of mankind judge of measures by their authors. If their general principles be believed to be inimical to the freedom of our mixed Government, the same bad quality will be supposed to lurk in every one of their measures; especially such as shall not have been frequently seen carried into execution; and as this class of people judges by names, not things, it is evident to what hazards the success of any measure requiring the co-operation of multitudes may be exposed. if an erroneous charge be suffered to be attached to the name of its author.
HENCE it appears, that the charge against these Gentlemen is
admirably calculated
to excite a jealousy against the plans they have proposed for the of the public. I now advert particularly to its probable effect on the Associations founded by Mr. Reeves; for it is to the attack upon him that the whole of the following Tract will apply. It was expedient, however, to mention that on Mr. Young, as it is a part of the same measure, and which, for that reason, will be introduced a second time to your consideration, at its proper place.
THESE jealousies are easily improved into clamours; and these again heightened into the alarming appearance of popular discontent. This will weaken your Associations; it will draw off a great number of the Associators of the middle classes, but terrify many more—the muscles that make the nerves of the arm effective. For if Discontent be unable so totally to paralize your Institution, Fear is at hand to assist it. We have among us those who are not ignorant of the receipt to inflame discontent to its highest pitch. They want not the hardiness, in the face of day, to conduct it on precisely to that very point, which immediately precedes the extreme of violence and outrage. If new Meetings of the Associations become necessary, numbers will be thus kept away. Those who shall venture to come to the support of the effective Constitution, will be terrified to see three quarters of their force annihilated: they will hear the commands of their insolent and new masters, and be glad to compound for safety by non-efficiency.
LOOK back to the state of the kingdom, when your Associations first were formed. What man, qualified to think on the interest of the State, except those interested in the subversion of it, who did not in his face carry all the marks of consternation? But when men who wished well to their country, of all descriptions of parties, became united; in their union, in the
bonorum omnium consensus,
they saw their superiority: the faction seemed to fall before you.
IT is much to be wished on your parts, that the same popular favour, the same opinion of the Constitutional principles on which your Associations were formed, and of the objects they have pursued, might still second you, if they should be again called forth, as the events of every day may add new importance to them. Their continuation and their undiminished vigour may be necessary for the preservation of legal Government. But if the principles of the man who formed the bond of union by which you are cemented, be injuriously reputed to be adverse to the principles of the existing limited Monarchy, that union will become the object of popular jealousy, as I have shown before; it will be weakened, and in danger of being rendered nugatory.
If, therefore, good reason support him, you will equitably hear that reason. Truth knows no predilection. When you fit in judgment, you must discard all preconceived sentiments of favour. I should not indeed press you to forget it any longer than until your ultimate sentence be given. Were I to fit in judgment on such an occasion, I should bend all my faculties to fulfil the severe and necessary functions of a Judge, the rational organ of the Law, that knows no affections. But if the innocence of the defendant should extort an acquittal from me, I should then think my awful function at an end; I should rise from my tribunal to congratulate the brother, or the benefactor, who had stood as a culprit before me. When I had finished my duty as a Judge, those of my prior relation would claim the next place. I shall only say further, that in the defence of the passage quoted by Mr. Sheridan from the pamphlet, I impose this law upon myself: The principles it contains shall be proved to be the first principles of English Law, and on the best esteemed authorities, on
primâ facie
evidence. Where I apprehend a doubt may be attached to the utility of such principles, even though laid down in the law books, they shall be supported by the authority of political writers, proved by abstract reasoning, and the process of a regular induction from historical examples. The matter purely historical shall also be proved from the best English histories, or historical disquisitions on the subject, and on
primâ facie
evidence likewise, as in proofs of the first description. If these arguments shall impress you with conviction, what your well-weighed judgment shall approve you will support. In the hour of exertion or difficulty, much of your effective strength will depend upon it.
BUT, to prevent misconstruction, something must be added by way of explanation here, before I proceed to another very important consideration, which must find a place in my Address to you. It is not meant that the principle of civil Associations, and those to be considered in the extract from the Pamphlet, are so connected as necessarily to stand and fall together. The effect of the latter on the former is purely accidental, as being supposed to be brought forward by the same man; yet in the present circumstances of the times, it must be nevertheless real, although the principles of the Associations are defensible on their own proper grounds: and as an attack is recommenced against them, I state one of those grounds, among others, which at the moment suggests itself to me. When a body of insurgents are actually assembled, and have just begun by open force to attack Government, they are to be repulsed by assemblies of loyal subjects, and by the like force. If those of the former description unite into bodies, actually or apparently for the ends stated above, those of the latter should, by a parity of reason, unite or associate to oppose and resist them; and by every other means prevent their gathering in such force, or putting themselves in such situations, as might facilitate the attack. No good Government can reject what is a fundamental principle of perfect Government, as this may be shown to be; for supposing a form of Government of plenary and absolute perfection should begin to exist, it must include this principle, or it would want one good property which it possibly might possess, the greatest chance of permanency; which is contrary to the supposed nature of such a form. It may be said, that a Government so constituted would resemble a perfect machine, and be able to preserve itself in motion without the assistance of any additional help: but a Government of that description must be numbered among the bad forms; for it debases the human character, by banishing from every breast all care about that greatest interest,
a Public.
Every interest that could be advanced or obstructed would be private. Hence every end pursued would be little; for the range of the mind of a Nation is nearly circumscribed by the limits of the object it has to pursue; and its energies, employed only on little things, never obtain their natural growth. The empire of China is an imperfect example of such a State. This argument, or others far better, might be urged in vain in favour of the principles of the Association, if it could be alledged against them that they spring from a polluted source.
I HAVE shown how far the utility of these Associations is endangered by the accusations which have been thus urged against them. I shall now consider the ends to which these accusations are intended apparently to be subservient.
AT the instant they were brought forward, the ferment in the spirits of the people was at a height which has been yet unequalled. The populace had been wrought up to attack the King's person; laws were introduced into the House to cut up the very root of those machinations by which this atrocious spirit had been kindled, the execution of which laws may ultimately rely much on the support of the Associations. The zeal, the alacrity, and the strength of the Cavalry may likewise tend much to keep back the first appearance of violence: and this Institution might be extended into more counties, as the approaching necessity increased. The accusation of Mr. Reeves and Mr. Young have a direct tendency to prevent such increase; to weaken the attachment of the one to the cause in which they are engaged; to paralise the exertions of the other; and to leave the country open to the treasons which are meditating.
WHEN I consider the passage which is the object of the legal inquiry to be made, in conjunction with what precedes and follows it
This is requisite in every fair statement of a Writer's meaning or principles: without it, he may be represented as speaking what is different or contradictory to them.
, the original complaint seems to have been intended as a false attack only. Nothing was probably expected from it where it was brought forward. But, though the Party imagined it would be inefficacious there, they had considerable expectation of the effect the bare name of such a thing might have in another quarter. By a Motion against the principles said to have been advanced by Mr. Reeves, and one or two intemperate declamations made in support of it, they had hoped to render the Associations intirely inefficient, at a time when certain speeches upon another topic tended to create so urgent a necessity for their most spirited exertions in favour of legal Government.
CONTRARY to expectation, the friends of Government gave way; and some admitted the book attributed to Mr. Reeves to be a libel on the Constitution. If we search for the cause of this singular event, it will not be very difficult to discover it. It is but at this instant, as it were, that men begin to examine the Constitution and its principles, in the only true source of information, the letter of the Law. We have all been educated to look for it in brilliant romances of Legislation, entirely different therefrom. When practical necessity calls upon us to consider this political Cartesianism, one error of it drops to-day, another to-morrow; but the multitude that remain still seem almost as well rooted as ever, when they are discussed only as points of speculation. The Writer of the Tract presented three or four points relating to the legal Constitution, as the existing laws state them, and that without demonstration. These, being somewhat different from what is to be found in the fine writings I have just mentioned, which are judged by many as infallible standards of truth, were hastily condemned. It might become the dignity of the Commons in future to make it a rule of the House, that in case of any writing being there complained of, a Committee should be appointed to select such passages from it as they thought required examination; and these should be sent to the printer, or author if avowed, and the book should lie ten days upon the table, before any further proceedings should be had upon it.
WHEN it was now perceived that some impression was made, a person of more established weight in the Party stepped forward, and converted this false attack into a real one, the extent and object of which I shall describe. Mr. R
eves had, in 1792, succeeded in instituting two thousand Associations against Republicans and Levellers. Against these likewise, and our foreign enemies, Mr. Young bad succeeded in causing a fine body of
orse to be raised, and stationed over the country, and these were for
(
me
i
tiu
ver
)
of what Cromwell thought the best materials. This was to effect great things; and it is as much the interest of a combination to ruin the men who have done such things, as men who bear great titles; and our factions at present know their own interest: I find too in this transaction an exact resemblance of the conduct of the leaders of the Long Parliament; not indeed in that part of their conduct which deserves our praises, but in their extreme violence.—Those who they supposed could effect much for the King, were impeached, (some of them had titles indeed,) and their judges were forced by mobs to condemn them.
THIS new assailant is reported in the public prints to have stated this Pamphlet to be a part of a series of attempts to make the Crown everything and the People nothing. He joins in this censure the writings of
Soame Jenyns, Dr. Whitaker,
and
Mr. Young;
and by a sweeping clause, he includes an indefinite number of those Gentlemen, who, in concert with Mr. Reeves's Committee, have endeavoured to preserve the peace and legal Constitution of the kingdom. From the encouragement which the spirit of resistance to laws, now established, has lately received from the violent declarations of the Minority, the union of the best abilities of such men is likely to become more necessary than ever; and at this very juncture, to deter them from employing their best faculties in the cause of their country, the terror of a Parliamentary prosecution is hung over their heads. Nor are the Associations less directly denounced, "whose system," the same Gentleman is declared in these Papers to have asserted to be,
to draw the Lords and Commons into contempt, and to place the King to govern alone:
adding also, that if the powers of the Committee
had been enlarged
What precedent was selected to favour such enlargement? That of a Committee of the Commons in 1680. And what was one of the offences of
Janes
and
Weston?
They had said that
Calvin
was a favourer of Democracy. I cite the Universal History'.—Did he not ultimately maintain the liberty of the Republic of Geneva
V. 32. p. 299.
as such, when it was in danger of falling as soon as it rose?—This particular inquiry was instituted to keep up the ferment of the Nation about the Popish Plot;—a disgrace to our history;—and by a House of Commons. "who greatly lamented the death of
Bedloe
"as a material witness, on whose testimony they much depended;" who endeavoured by their countenance and protection to purge off the extreme infamy of
Dangerfield
(pilloried four times, and an outlaw
P. 121.
), and to restore him to a capacity of being a witness
P. 129.
; embracing the most incredible texture of falsehood and wickedness, and supporting the belief of it by a series of legal murders, to introduce the Exclusion Bill, whatever the consequences of that measure might have been. The popular violences and anarchy of the insurrection at Munster, had at first flung a load of odium on the Protestants in general, and Luther had found it necessary to refute the charges brought against himself and his disciples. But it is needless to make any observations on the worse part of the conduct of the Parliament of 1640, pieced with some links of the chain of measures taken up by that of 1680.
If the matter which is here stated from the public papers was really brought forward in the House. I feel some astonishment at the impolicy of its introduction. Men had presently after some late State Trials, reflected pretty much upon those which took place before London Juries at the time of the Popish Plot; the period of our history the Newspapers state to have been referred to. Can it be doubted but Faction led on some, and fear for their own safety, amidst enemies they could not at all times guard against, induced others, to find those guilty whose innocence was sufficiently established by evidence? And is it not to be supposed, that a guilty person, with proofs as strong against him, would even with more facility have been declared innocent, if the Juries had been influenced that way by the same motives? And we find charges of this kind, when the offenders were of the popular party, strongly urged against the Juries of the metropolis in the last century. (See Hume, v. 8. p. 171. 173. Dalrymple's Mem. 410. 1771. p. 4. 15.) The mention of the Committee of 1680, points out, as with a sescue, the trials so connected with it.
, in pursuance of the precedent on a like occasion in 1680, it could have proved that these Associations were part of the system of a deep-laid conspiracy to establish military despotism.
This charge, it is to be observed, includes all the Associations, which are stated to amount to two thousand.
THESE accusations bear a very close resemblance (accidental or designed) to the conduct of the Long Parliament,
who were resolved to render the most considerable bodies of the Nation obnoxious to them
Hume, 8vo. 1767. v. 6. p. 309.
.
The exercise of powers
warranted by all former precedents, yet not authorized by statute, they declared to be illegal, and the persons who had assumed them delinquents
Ibid. p.
10.
.
The crime indeed of delinquency they did not exactly define; it is to be understood, however, as something inferior to that of changing our mixed Government into a simple Monarchy, and establishing a military despotism. To the latter part of the charge I have to observe, it seems meant to include the subscribers to the Yeomanry Cavalry, whose different meetings were virtually Associations. But as these corps were raised in pursuance of an Act of Parliament, that has hitherto protected them from being included by name in these accusations, though they appear not obscurely marked out as part at least of the Janizaries or Praetorians of the new Tyranny. I simply trace out the parallel between the spirit of the measure said to be attempted by Opposition now, and those votes of the Long Parliament; strengthened by which, a few vile incendiaries were able to lead the Nation into a civil war, even after Government had been reformed and purified in all its branches. I hope it is superfluous to attempt to awaken your vigilance by a detail of the years of misery and desolation in which it involved this kingdom; but to that vigilance I must recommend to reflect duly upon the enormity of the declarations which the Papers have lately put into the mouths of some great Political Characters. An obedience to temporary restraining Laws, the unfortunate fruit of the necessity of the times, and meant to terminate with that necessity,
is held out
to the populace, not as a moral duty, but an act of prudence only. To me these violent declarations, if really delivered, seem not to be accounted for on any other footing than that of some confidence the speakers may entertain in the populace, by whose assistance they might be able to give them effect. They will not say anything was to be expected from such declarations in the place where they were delivered; their object therefore was the consequences they might produce beyond the walls of a certain House, and those consequences you will guard against by all your endeavours.
THE Pamphlet attributed to Mr. Reeves is said to contain unconstitutional matter, and this seems to have been admitted by an Authority which you have not frequently found reason to object to. When any one steps forward in defence of a work lying under such censure, somejealousy may be entertained of the soundness of his own principles. I shall therefore say, that I look upon all simple forms of Government, over bodies of people numerous enough to be properly called a Nation, to be bad; and of all compound systems, that resulting from the combination of the three forms, as in Britain, to be best. But the effect of such a Government on the happiness of society will be very different, as the proportion of power enjoyed by the three may differ; and I should be a decided enemy to any change in the proportion which now exists here by law and in fact; as the force of each was so well determined, that this proportion has been preserved without any great effort of any one of the Estates against the power of either of the other two above a century; a circumstance of which no example is to be found in our own Government, and which shows the present proportion best adapted to the Country.
I HAVE suffered the necessity I felt myself under to do away any jealousy which might rob what I have to say of its weight (be it less or more), to get the better of my reluctance to write one paragraph of egotism. I conclude my Address to you with the final words of this Pamphlet. This
is a season when the spirits of men, whether good or bad, are most in motion; and all YOUR prudence is wanted to preserve us from folly and wickedness.—YOU, therefore, YOU at least watch.
It is with that deference which is due to a set of mën who have already preserved legal Government in the extremity of danger, and will, I trust, preserve it from future danger, that I have the honour to subscribe myself.
My Lords and Gentlemen, &c.
Yours, &c. &c. &c. THE AUTHOR.
A DEFENCE, &c. &c. &.
IN considering the Pamphlet which is the subject of these Observations, and which has been attributed to Mr. REEVES, I shall first state the sentiments of the Writer on several points relating to our legal Constitution. In the second place, the paragraph read from it by Mr. Sturt will be considered on authorities of law and history. To this will be added, a vindication of the remaining parts of the Letter which have been censured.
IT is evident from what passed in the Debates upon this tract, "that a resolution of the House may be rescinded" in the same Session in which it is made. I bring forward here some reasons which may be urged in favour of such a rescission of the Resolutions on this work, a thing which I suppose to be perfectly in order; for a Resolution being the act of one House of Parliament only, it certainly is as legal for an individual to plead for its being rescinded, as for the repeal of a law, which is the act of the whole Parliament. Beside, the House of Commons are the guardians and trustees of every individual; though the first term, perhaps, best implies their pre-eminence and duty. If a guardian direct a suit to be commenced in the name of any person for whom he is in trust▪ such ward may go to him, and lay down his reason to induce him to withdraw it; and if there were good ground for the application, the lowest individual who was guardian to another would have the privilege to comply with it; nor can such an assembly as the House of Commons want a privilege collectively that every one possesses individually in similar cases.
THE matter which may be urged against this Pamphlet I shall take from the speeches attributed to the Members of both Houses in the public prints; they are the best authorities people in general have to judge from, and may be received as faithful enough to the principles and leading opinions, though less accurate as to the words of the speakers. I therefore do not from those publications quote the name of any speaker.
PART I.
MEN who are friends to our legal Constitution, and to the spirit of it, agree in all the main outlines, and differ more or less only on subordinate points; on which, if you find two individuals agreed, you will not find even a single subsection of a party, all the members of which bold precisely the same opinion. It is by these great outlines, therefore, that the constitutional principles of our Author are to be judged.
IN the public prints, one of the conductors of the attack on this Pamphlet is made to declare, that it is part of a series of attempts to make the Crown everything, and the People nothing. There cannot be a fuller contradiction to this charge than certain passages contained in the work itself. The powers and dignity vested in the King are declared to be sufficient for his high station in the following words: We have
an hereditary King, who bears all the burthen of Government, who is endued
with
ALL
the power
NECESSARY
That is, all that is necessary, and no more.
to carry it on,
and who enjoys ALL
the honour and pre-eminence
NECESSARY TO GIVE SPLENDOR
to so high a station
P. 9. l. 22.
.
The word "hereditary" will possibly give a little more disgust to some than will be openly avowed; but it is not necessary to guard a part where you know that your adversary, in his present circumstances, dares not to aim a blow; therefore we will consider the only objection he will venture to bring forward. The Writer, he might urge, for anything that here appears to the contrary, may consider the right of the King as
divine and indefeasible.
But I think, when an author, somewhat elaborately, endeavours to limit his own terms, exclusively, to another and more ordinary sense than they obviously bear, he is to be supposed to wish to have them understood in that sense only. What that is let him lay down. Now among
the high pretensions, founded on visionary and refined theories,
like castles in the air,
I thought (says this Writer), that the divine indefeasible right of Kings, and other fancies of former times, were exploded;
and he adds, "because they have no warrant in law
P. 47. l. 1.
." He asserts, indeed, that a Monarchy is preferable to the tyranny of
five hundred Republicans, that govern by their ordinances, that is, by their own will.
But what species of Monarchy is it he here prefers to such a Republic? That under which we are
the subjects of a King who governs by law
P. 16 l. 6.
.
And I observe further, that by the term
law
the context requires us to understand the law of the limited Monarchy of England. Some Members of the Minority, I believe, when they have been obliged to speak explicitly on the consequences of the French oligarchy of despots, have gone a little further.
So much for the foundation of the first part of the charge, that the Author of this Pamphlet wishes to make the King everything. Now let us see what ground there is for imputing to him a wish to make the People nothing. In the fullest and most direct contradiction to this, I shall show that he admits the influence of the People in terms which prove his high sense of its utility, and even of the necessity of its frequent interposition. Their actual influence, and its utility, are inferred from these words:
The people of sense who look on have a great sway, though not always seen, in balancing the weight of parties
P. 59. l. 8.
.
in what terms is it that he mentions their consequence, during every Meeting of Parliament? On the deliberations of that Assembly, "Englishmen, says he,
this is a season when your superintending influence is most needed; and we usually see it is then most happily predominant
P. 80. l. 3.
.
What is the good sense of the country but the good sense of the People? Does not this Writer tell us, that
nothing can be brought to a successful conclusion, unless it is approved by the good sense of the country
P. 4. l. 2.
?
Does he not call the sway it enjoys "gentle and useful
P. 4. l. 9.
?" Does he not insist at large that it has been the preservative against every party which has been engaged in bad councils
P. 3. the whole.
? With this the pamphlet begins; and what was the last thought dwelling upon his mind at the conclusion?
Englishmen, the Parliament is now assembled.
***
You,
therefore—
you!
at least,
"watch"
Last words of Pamphlet.
! Such are the principles contained in a pamphlet which is part of a series of measures, the second object of which is to make the People nothing!
I GO on, with somewhat more brevity, to state other principles of this Writer. On our excellent form of Government he says, that it is "real and substantial;"
we see and feel it; we can take its height and its depth; and we know its movements, because they are regulated by established and known laws;
and he adds,
that this is the only Constitution ever supposed or named by men of sober minds and sound understanding
P. 57. l. 24.
.
Now this description certainly includes all that is constituted; and he who adds any other things to this idea of the Constitution, cannot affirm they are constituted; and I would wish him for the future, for the sake of logical distinctness, to call all such things, the
unconstituted
parts of the Constitution. But we shall have to revert again to the double sense of the term Constitution, whence the wildest abuses have arisen. But of the Constitution established by law he says, its
best title is professed to be, its conformity to the principles of reason
P. 13. last line.
.
HIS sentiments on the subject of Civil Liberty I shall introduce by observing, that our noblest principles never can be dishonoured but by actual fanaticism, or by the viler hypocrisy of those men who, for ends which will not bear the light, put on the wildest appearance of that fanaticism to kindle the reality in others. Impressed with this truth, the Writer of the Pamphlet reprobates those
who have rendered the best things odious by THEIR corrupt contact; who have made the friendly appellation of
Citizen
a badge of separation and enmity; and the very name of Liberty suspected to the ear of an Englishman
P. 72. l. 21.
.
It would require a logic which I am not master of to find an enemy to that "best" of "things,"
liberty,
in the man who admits it so to be, and who censures with such vigour those who have brought its name into discredit.
THIS act of his political creed would be incomplete without the addition of the Writer's sentiments on that great event which placed King William on the Throne of these kingdoms. This, he says,
was brought about by the energy, good sense, and firmness, of some of the best and greatest men in the Nation
P. 43. l. 2.
.
Yet he stands charged in a supposed speech with
having written a libel on the illustrious characters who brought it about.
I know of no more liberal praise that imagination could devise to give to it than to say, it was in everything adequate to the occasion, and in nothing superfluous. This he does in the following words, in which he speaks of the Reformation at the same time:
These memorable transactions were conducted in a way that was truly English; the actors in them proceeded with their remedy as far as the disease reached, and no further
P. 25 l. 11.
;
and returning to the subject, in another place, he fully declares it to be
a precedent to be regarded with reverence and with gratitude toward those who made it, but which we hope never to have occasion to follow
P. 40. l. 8.
.
Is this ground for the House to resolve that he has written "a libel on the Revolution;" that
he speaks of it with contempt;
that he represents it as "a farce?" for such are the charges against him by the paper speech-makers. The last sentence of the above extract, we suppose, may give reasonable grounds of unostensible, though deep, disgust to some of his enemies. After this spirited eulogy of the great movers of the great transaction of 1688, and of the transaction itself, what he says of the term Revolution is a question for a court of grammarians, not of law: but that will find its place to be considered. He seems indeed to me to think, that our science of politics may want a new nomenclature as well as that of chemistry: but in this he must expect to be sturdily opposed, to the last, by the partizans of Dr. Priestley and the old phlogistic theory.
IT appears therefore, to sum up the whole, to be this Writer's sentiments, that the power of the King, with its legal limitations, is sufficient; that the Good Sense of the People has, and ought to have, great influence with the Legislature, which influence it is their duty to exert; that the events of 1688 were a remedy to the pre-existing evil, absolutely necessary and fully adequate; to the authors of which we ought to look up with gratitude and reverence. And in these sentiments extracted from the Pamphlet are fully comprised the great outlines of the real principles of our Constitution.
THERE remains very little more to be said, connected with this branch of my subject, except, that if any part of the Pamphlet shall, on examination, be found to bear two senses, the first of which shall be found to agree with what is above laid down or any other part of the context, while the second does not so agree, the former sense is to be taken to be the true meaning of the author; that is, every part shall be so construed (if possible) that the whole may stand. I now proceed to examine, whether there is anything to be found in the remainder of this Pamphlet inconsistent with the extracts already made from it.
PART II.
THE Writer of the Letter, I am considering, has divided it into six parts, as appears by the summary in the title-page. The second part is on the nature of the English Government, and it contains the paragraph said to be a libel on the Constitution. To the consideration of that paragraph I shall prefix a brief analysis of what precedes it in that section, together with the most material strictures reported in the papers to have been made upon it.
THE King (makes
Words of Legislation, "the King wills it" (i. e.) by and with &c.
or) enacts laws, by and with the advice and consent of the Lords and Commons.
HE executes these laws according to the verdict of a Grand and Petty Jury.
THIS leads us to one simple view of the Royal Power, that both in the act of Legislation and the execution of Law it is limited by two prior negatives.
THIS description of the Writer seems more accurate, and, according to the lax sense of the term, more constitutional than the parallel passage in Blackstone:
In England, the supreme power is divided into two branches; the one Legislative, to wit, the Parliament, consisting of King, Lords, and Commons; the other executive, consisting of the King alone
Comm. vol. i. p. 147.
.
HERE I have to observe, that the newspapers represent a Member of one House to have declared, that this Author has stated
the Constitution of this country to be an absolute Monarchy;
and that he has
said distinctly, that the King makes laws and executes laws,
totally suppressing the modifications of this power as laid down above. In the same spirit was an observation there said to have been made in another House, that the Writer insinuates
that all personal security and property is dependent on the King.
It will be contended, perhaps, that he admits the limitations he has described above to be parts of the Constitution
de facto
only; and it may be made a question, with what degree of regard he looks upon those two prior negatives of the subject, on every exertion of the powers of the Sovereign? In answer to this, I will add a few extracts more from his Letter to those already made. He begins his book with complimenting his countrymen upon the possession of more good sense than their neighbours; and his leading proof of it is,
that he has yet not seen,
elsewhere,
equal marks of it in those matters where, of all others, they should be manifested; I mean, (says he) in their
Laws and Government
P. 2. l. 3.
.
Considered in a second point of view, he calls the existing Government
an organ of public union and activity, which is adapted to the
humour
and
mode of thinking
of those" *** who live under it
P. 9. l. 11.
;
that humour, the leading quality of which he describes to be the jealousy of power, without the turbulent ambition of it
P. 5. l. 14.
; that mode of thinking formed by the good sense of a nation whom he holds to possess more of that quality
than any other in the world
P. 2. l. 10.
.
And almost at the conclusion of his work, impressed with the general view of the whole structure of our Government, he affirms,
that it is so compacted in all its parts, that every conceit of politicians must vanish before it.
THESE things premised, I shall give at length the whole of the paragraph in which the passage objected to is found; distinguishing the parts of the latter which form a distinct Proposition, or imply one, by breaks.
I.
WITH the exception, therefore, of the advice and consent of the two Houses of Parliament; and the interposition of Juries, the Government, and the administration of it in all its parts, may be said to rest wholly and solely on the King, and those appointed by him.
P 68 l. 20.
Those two adjuncts of
Parliament
and
Juries
are subsidiary and occasional; but the King's power is a substantive one, always visible and active. By his Officers, and in his name, everything is transacted that relates to the peace of the realm and the protection of the subject. The subject eels this, and acknowledges with thankfulness a superintending sovereignty, which alone is congenial with the sentiments and temper of Englishmen.
II.
IN FINE, the Government of England is a Monarchy; the Monarch is the antient stock from which have sprung those goodly branches of the Legislature, the Lords and Commons, that at the same time give ornament to the tree, and afford shelter to those who seek protection under it. But these are still only branches, and derive their origin and their nutriment from their common parent; they may be lopped off, and the tree is a tree still, shorn indeed of its honours, but not like them cast into the fire.
III.
The Kingly Government may go on in all its functions without Lords or Commons: it has heretofore done so for years together, and in our times it does so during every recess of Parliament; but without the King,
HIS
Parliament is no more.
IV.
The King, therefore, alone it is who necessarily subsists without change or diminution; and from HIM alone we unceasingly derive the protection of Law and Government.
THE analysis of this paragraph is as follows: It consists of four parts, as numbered: In the first, an account is given of the nature of the Royal Power; in the second, the origin of the Second and Third Estates
as they now exist,
and some consequences from their being so derived; in the third, he compares the legal powers of the King and the Two Estates with regard to one quality or accident of their operation, that is, their perpetuity; and in the fourth, he reverts to the substantive power of the King affirmed in the first.
THE mode in which the citation was made from the whole of the paragraph was this: The whole second part was taken, and, from the first period of the third, the first colon or member being cut off, was applied to what precedes, as if explanatory thereof.
THIS mode, therefore, of quoting a passage for censure, is highly censurable; for on such occasions so much ought to be quoted as to exhibit the full and perfect meaning of the Writer; and the colon with which the citation ends indicates the sense of the last part to be not completed. A common English Grammar may be cited for this, where we read, that when
a member of a sentence, which of it self would make a complete sentence, and so requires a greater pause than a semicolon, yet is followed by an additional part, making a more full and perfect sense, may be distinguished by a colon
Lowth's Grammar, 1776, p. 154.
.
But beyond this colon the accusers of the Letter-Writer did not read, though three sentences follow in the period to limit and explain the meaning of the first, which they severed from them in the citation.
THE additional colon has likewise another mark of severance from what precedes it; it contains abstract matter: all that precedes it is metaphorical: therefore there was a full pause of the sense before it; and it can connect only with what follows it. But when this colon, or incompleted meaning, was cut off from the period of which it is a part, and joined to the last sentence of the former, it was deduced from it, that the Writer meant to affirm,
that the Lords and Commons may be lopped off without impairing the Constitution;
or, as it was said in another place, that the Constitution so lopped
might and would be complete.
It is thus that by an illegitimate mode of quotation the passage censured is rendered uncouth, and then, in consequence of some illegitimate reason, which the reporters of these debates have entirely concealed, and which cannot be divined, it is further rendered criminal.
I HAD not had an opportunity of seeing this passage in the original work when the following Observations were drawn up. In them, therefore, it will be found, that it is taken for granted that the quotation was properly made. I now, therefore, proceed to shew, that everything contained in the passage, as cited for censure, is strictly true, both on historical and legal evidence.
I DIVIDE the whole matter it contains into three Propositions, which shall be severally proved: the two which are positive are placed first. As I find the ground taken for these proofs is the same as that referred to by the Letter-Writer when he enters at all upon proof, these co-incidences will be noted in his own words in the margin.
PROPOSITION I. The second and third Estate owe their origin to the Crown, or have sprung out of the Monarchy.
PROPOSITION II. The continuance of the functions of the Houses is temporary; that of those of the Crown perpetual.
PROPOSITION III. The LEGAL capacity of action may be taken from the Houses by violence, the effect of which may subsist some time after the violence is removed; but at all times the legal capacity of action remains in the Crown.
—OR the actors of such violence at any period acquiring permanent power, the Peerage of a country, and the families from which the Thrid Estate was then taken, may become effectively extinct; while a succession of Kings
de jure
may more probably be preserved many ages, if not cut off by an act of abdication by an ancestor in
possession,
from whom they derive
I am afraid the censure of the passage would have been much aggravated if the Author had added as a conclusion to it,
The King is superior to both Houses in dignity;
yet this is laid down as a principle by Blackstone, v. 1. p. 150.
.
THIS is the whole abstract matter of the paragraph; the truth of the two general principles is to be shown from good law authorities, and where necessary, from the reason of the thing; and the possibility or absolute truth of the facts asserted from history, particularly that of England
The matters contained in the extract, the Writer states to be such
as can be demonstrated from the incontestable evidence of history and records.
Page 13. Where I looked for his defence, thither I find he has referred all his readers: The points of law to be quoted will be taken from "Blackstone's Commentaries;" which a Noble Lord in opposition at the time when this matter was agitated, speaking of another subject, declared it to be the duty of every Magistrate to study. The edition made use of is that of 1773, in 8 vo; and as Hume is quoted as evidence by the censurers of the Letter, I shall take my principal historical authorities from him (8 vo. 1767) and the former writer.
.
PROPOSITION I.
THE Second and Third Estates have sprung out of the Monarchy. This is the abstract sense of the following parts of the passage:
The Monarch is the ancient stock, from which have sprung those goodly branches of the Legislature, the Lords and Commons; but these are still only branches, and derive their origin and nutriment from their common parent.
I CONSIDER this point, first, Historically; secondly, Legally; thirdly, It will be shewn that this order of the parts of a mixed Government coming into existence, is better than the contrary one.
1. HISTORICAL PROOF.
WITH respect to the Peers this is evidently true, for the date of the creation of almost every Barony may be assigned.
WITH respect to the Commons, the Sovereigns of Europe formed Corporations to balance the powers of the Barons; and gathered the Representatives of such Corporations, and those of provincial districts, together in a Third Estate, still better to counterpoise the power of the Barons, who had before the advantage of an union of force.
IN England this period was forwarded some years only, by the Earl of Leicester pretending to act in the name of the King: Upon the fall of that nobleman, the continuance and stability of the House of Commons was favoured by the Crown, through the policy described above, even though
"planted by so unauspicious a hand."
Hume, year 1265. This form of government differed very much from that established by our Saxon ancestors: their Wittenagemote, by all the accounts which we have of it, resembled what has subsisted down to our day in France, under the name of the
Assembly of Notables;
it was sometimes held before the people: but Bacon, in his "Historical Disquisitions," leans to the opinion that they had no voice therein; such a body, he observes,
would be as monstrous as the Anthropophagi, whose heads were too near their bellies to be wise
Page 61, 410. 1647.
.
II. FROM LAW AUTHORITIES.
IT will not be denied, even by those who were the most violent in their censures of the Letter, that the Sovereignty rests in the Legislature, of which the King is
Caput,
PRINCIPIUM,
et Finis.
4. Inst. 1, 2. Stat. 1. El. c. 5. Hale of Parl. from Black. Com. vol. 1. p. 153.
HENCE it appears to be a maxim of the law of England, that the Crown is the
principium,
the source or origin of each legal Parliament individually, and consequently was so of the first; and the Law of England is descriptive of the Constitution of England, which no other writing is
per se;
for the Law is what is constituted, and nothing but what is so constituted is of the Constitution.
WE may add some supplementary authorities here: the Convention Parliament of 1660 assembled without the King's writ; after his return an Act passed declaring this to be a good Parliament, 12. C. 2. c. 2.; the next confirmed its Acts, 12. C. 2. c. 2. c. 14. Bl. Com. b. 1. c. 21. It was then held by many, that the assent of the King, whose authority alone was wounded, could not heal the defect of the Acts of their assembly. If there had been a vacancy of the Throne, this authority vesting in no one could receive no wound; and the confirmation of their Acts would have been unnecessary. In the ratification of the Acts of the first, by the second Parliament, this Assembly was guided by its ideas of the theory of law, and nothing can be said against the competency of their general decisions on such points. I state it on the authority of Blackstone, that they left to the next only one Act to make to carry public law "to theoretical perfection," the Habeas Corpus Act,
though the following years were times of great practical oppression
Bl. v. 4. p. 439.
.
THE following seems likewise, to me, a fact of great weight: The Peers and Gentlemen who had espoused the cause of William, in answer to a message of James to that Prince, demanded that the writs which he had issued to summon a Parliament should be superseded;
We may drive away the King (said the Prince), but it is not so easy to come by a Parliament
Clarendon's Diary in Macpherson's History, v. 1. p. 534.
.
The demand was changed for that of a free Parliament
Burnet's Occasional Serm
ns, Pref. p. 14. Edit. 1713.
. Hence it is evident that this reasoning, at that time, met the principles of those great men who brought about the Revolution, and of King William himself. I step out of my way here to observe, that from these words I draw a consequence totally contrary to that deduced by Macpherson; they imply, that King William did not then wish for the abdication of James. But to return to the subject, the ultimate decision of William's Council, appears at that instant to have been legally right; but they were soon reduced by the flight of James, under another law, the
jus extremae necessitatis,
and in that state the summoning a Convention was absolutely legal, according to its proper code; but then they proceeded by the nearest possible approximation to the old forms.
III. FROM POLITICAL PRINCIPLES.
THE best constituted mixed Monarchies are those in which the Estates have sprung out of the Monarchy; this shall be proved by authority, by abstract reason, and by history.
1.
From Authority.
MONARCHY (says Lord Bolingbroke, comparing the simple forms of Government) is to be preferred to other Governments, because you can better ingraft any description of Republic on a Monarchy, than anything of Monarchy upon the Republican forms
From Burke's "Reflections," 4th edit. p. 187.
2.
Abstract Reasoning.
IT is not necessary to understand here, that a simple Monarchy is the best simple Government to have lived under, antecedent to the change to a mixed Monarchy; the conclusion will not be weakened if it be admitted to be a bad inn in a dirty village, but from which the best road leads to a fine place you are desirous to go to; for it is to be observed, that a mixed Government, generated out of a simple Monarchy, may admit the same quantity of political liberty, and a greater degree of personal freedom, than if generated from a simple Republic; for the antecedent habit of allegiance and subordination being greater, while it continues supported by the consideration of the legal origin of the Estates, the coercion of laws may be less, or personal freedom greater, and the same general regularity be produced.
3.
Historical Evidence.
WE are now to examine this principle by induction, or the experiments thereon recorded in history; an evidence in these matters superior to any furnished by abstract principles.
THE first example is that of the Roman Republic: In the speech of Galba in Tacitus, it is said, that the Empire could not be held together without a single person at the head of it. I look upon this profound politician as the author of the speech; and the principle, as deduced by him from a retrospective view of the Roman History: This single person was in power, though not in title, a Monarch, established by an armed force. The new system established by Augustus was a
disguised
arbitrary power; and the administration, at least after his time, tyrannical in the extreme.
ENGLAND was in the last century, after the death of Charles I. reduced to a Republic verging to anarchy. A single person, in power a Monarch, was established by an armed force; the new system was that of arbitrary power,
less disguised
than that of Rome under Augustus; the trials of the state criminals were by high courts of justice, without juries
Hume, vol. 7. p. 245.
; the Asiatic system of despotism was introduced, the country being divided into districts, under Major Generals, who had power to decimate the incomes, not of the Royalists only, but also of other individuals, and who levied the taxes imposed by the Protector's Council of Fifteen
Ibid. p. 252.
: they were laid aside by him two years before his death. That he continued his arbitrary taxation to the last is evident, for the grants of his last Assembly amounted to 1,300,000 l. for a year only, and it does not appear that any taxes were voted to raise even that sum
Ibid. p. 285.
; but he levied in taxes, upon an average, two million yearly
Ibid. p. 347.
. His administration was rigid, at least to the measure of his state necessity.
THESE are examples of the government of a single person, ingrafted upon a Republic by the assistance of an armed force, degenerating into tyranny; we pass on to those which have seemingly had a more promising origin.
HOLLAND, though not in name, yet in effect was a limited Monarchy, both under its elective and hereditary Stadtholders; or a limited Monarchy arising out of a Republican Constitution: that it was effectively such a Monarchy we have the authority of King William, who called himself Stadtholder of England and King of Holland.
IN this State there were effected four Revolutions in 178 years, ending in 1747; the office of Stadtholder was twice suppressed by edict, and twice restored by popular insurrections, for a purpose which will presently be seen: it is here noted that the mean interval between two Revolutions was forty-four years and a half.
BESIDES these, between the establishment of the Republic and the year 1787, four other Revolutions were very nearly effected: The first by Prince Maurice; the second by his grandson William; the third, when the City of Amsterdam invited Prince Casimir to set up against King William, which he declined; and the fourth, when the present Prince of Orange was expelled from the Hague in 1787. Thus in 218 years there were eight Revolutions effected, or nearly effected; and the mean interval between the imminent hazard of one Revolution and another was twenty-seven years and a half.
THE longest term of fixed government in that country was from the death of King William to the year 1747, or for the term of forty-five years.
IT is to be noted, that the primary cause of these Revolutions, was the power of a single person being grafted upon a Republic; but there is one principle which a commercial Republic will adopt, which will greatly accelerate the fall of the mixed form they may be desirous to introduce, or destroy its stability: but as it arises out of the simple form in such a State, and as all Republics tend thereto, I shall not lengthen these cursory observations with any further notice of it.
THE fourth example will be the French Constitution of 1791. The fiction was adopted by the Constituent Assembly of grafting a Monarchy upon a Republic; all appearances of the principles of the former were soon annihilated, by the change of opinion introduced by this novel principle, and by force jointly. This Constitution
nominally
lasted one year.
I DECLINE adding more instances, not to lengthen this part of the tract. Of the four examples of mixed Monarchies rising out of a Republic, two terminated in despotism; one was perpetually exposed to Revolutions; and the fourth ended, almost as soon as it arose, in anarchy.
IT is to be observed, that all debates upon this question must proceed upon a supposition, that it is in our choice out of which of the two forms of simple Government we will originate a mixed Monarchy. If a General had possessed himself of two gates of a town which he wanted to occupy, in the streets leading from one of which he had few or no obstacles to expect; but he knew that in the quarter into which the other opened all of them were enfiladed by cannon, were guarded by barricades, and full of covered pits and wolf-holes, and the houses on each side of the way occupied by musqueteers; there is little difficulty to determine which entrance he ought to prefer.
THIS question certainly cannot pass off without the Constitution of America being introduced into it: There is certainly something of limited Monarchy to be found in the office of President, but no conclusion can yet be drawn from it; it has not been established long enough for its latent vices, if any such exist, to break out. Experience shews us there was no principle of stability in the Constitution of Holland, yet the mean interval between one actual Revolution and another was forty-four years and a half; and between a Revolution effected, or nearly effected, twenty-seven years and a quarter. That of America has not yet stood the shorter of those periods; experience has not therefore proved this Constitution to be as stable as even that of Holland was; besides something like smoke has been before, and is now discernibly breaking out of some crevices of the building.
DIVISION (says an eminent American writer) is a calamity which we have more occasion to sear; and I see with infinite regret that obstinate factions are beginning to be formed; to what degree they may proceed in decomposing and dissolving the present harmonious system, can be known only to God and to posterity
Sermon at a Public Thanksgiving, preached at Philadelphia, Feb. 19, 1795, by Dr. Stanhope Smith, Vice-Persident, &c. &c. in the College of New Jersey.
IT is stated in the censured passage, that the two Branches receive their nutriment as well as origin from their Parent Tree: This circumstance is left out of the abstract proposition formed to take in the whole of the rest. If it can be supposed to want a particular defence, it may be said, that the continuance of the prosperity of every order in the State, depends on the exercise of the legal power of the King, in whose
name every thing is transacted that relates to the peace of the realm and the protection of the subject
Letter, p. 12. l. 12.
.
Besides, the number of the Members of the Upper House would continually decrease by the successive extinction of Peerages, if the Crown did not keep its numbers up by new creations; and thus, as in the human frame, the Constitution would perish by the inanition of one of its vital parts.
PROPOSITION II. THE continuance of the functions of the Houses is temporary, and that of those of the Crown perpetual.
IN the interval between two Parliaments neither of the Houses can be said to exist; there are no Representatives; and as no Parliament exists, no Peers of Parliament, these would be Peers of a non-entity; and even while a Parliament exists, the functions of the two Houses are not permanently necessary; those of the Crown are; their commencement and conclusion depend upon the will of the King, being summoned and prorogued by him; during the life of the person who holds the Crown, the discontinuance of the exercise of his functions depends, by the Constitution, on the act of God alone, as in demise, by illness, &c. or his own will, declared by an act of abdication.
WHEN the military establishments of the Sovereigns of Europe were on so limited a scale as to give no jealousy for the safety of these kingdoms, and we had not taken our place in the great Northern Commonwealth of States, which happened at the period of the Revolution, we wanted no annual establishment of what may be called an army of observation; no annual land and malt tax: hence, "heretofore," though Kingly Government was permanently necessary, Parliaments were not assembled "for years together
Letter, p. 13. l. 4.
." In the Bill of Rights it was enacted, that Parliaments should be held frequently; but the term
frequently
being indefinite, by the statute 6. Will. & Mary, c. 2. it was declared,
that a new Parliament should be called within three years after the determination of the former.
Bl. v. 1. p. 153. This is the present legal Constitution. I only remark this to shew, that the Letter-Writer has not urged all the legal proofs he might have adduced of the superior permanency of the Royal functions.
BLACKSTONE says, "that the King" is the only branch of the
Legislature that has a separate existence, and is capable of performing
any act
at a time when no Parliament is in being.
Bl. v. 1. p. 150.
The Letter-Writer, in the passage here considered, asserts, that
the Kingly Government may go on, in all
its functions,
without Lords or Commons.
THE second extract seems to be taken from the first; the Commentaries have never been censured as an unconstitutional book by Parliament, on the contrary the work is there frequently quoted as a book of reference. The greatest difference between the passages is, the substitution of the word
function
for the more general term
act,
and the first is more definitely constitutional than the second; for a function, is the performance of a thing limited and prescribed; or the power of so doing it, mostly signifies ministration in some legal office, including the notion of some prior or external obligation when it is applied to a moral agent; and this obligation must arise either from a compact, or voluntary engagement, or the lawful command of a superior; the word itself is not applicable to the act of an unlimited agent.
WE find the Dictionary-Writers rendering the Latin word
officium,
the primary meaning of which is
duty,
by the word
function;
and, on the other hand,
fungor
is translated, in its primary signification,
to discharge an office or duty,
and again "to conform to" a prescribed mode; and
functio,
in its primary signification, they render the execution of a
charge.
It became also a technical term in the Roman Law, and then signified the discharge of a debt, not in specie, but by some presentation of equal value, as in commodities, labour, &c.
THE similitude of the subject, and of the manner in which it is to be treated, renders it not improper here to enter into the consideration of what is to be found further in the Letter relating to the Royal power, which has not been considered before, or will not become the subject of the next Proposition. Those points I shall state in the Writer's own words in one column, and over-against them those of Blackstone:
LETTER.
COMMENTARIES.
WITH the exception of the advice and consent of the two Houses of Parliament, and the interposition of Juries,
the Government, and the administration of it in all its parts, may be said to rest wholly and solely on the King,
and those appointed by him. Page 12, l. 4.
AFTER what has been premised in this chapter (the Limitations on the Crown) I shall not, I trust, be, considered as an advocate for arbitrary power, when
I lay it down as a principle, that in the exertion of lawful prerogative, the King is and ought to be absolute;
that is, so far absolute that there is no legal authority that can either delay or resist him. Bl. v. 1. p. 250.
 
THE King of England is not only the chief,
but properly the sole Magistrate of the nation;
all others acting in commission from, and in due subordination to him.
Ibid.
IT is to be concluded from this, that the principle laid down in the Letter would not, in the judgment of Judge Blackstone, shew the Writer an advocate for arbitrary power. He continues thus:
LETTER.
COMMENTARIES.
THOSE two adjuncts of Parliament and Juries are
subsidiary
and occasional. Page 12. l. 9.
WE are to consider the King with regard to his Councils; for in order to
assist
him in the discharge of his duties, the Law has assigned him a diversity of Councils to advise with.
 
THE first of these is the High Court of Parliament. Bl. v. 1.227.
HERE we see the High Court of Parliament stated to be
subsidiary
or
assistant
to the King, terms of the same import. The Letter-Writer seems to consider its functions to be to
inform the King's legislative will,
and that of Juries
to inform his executive conscience;
placing the first in the rank it is ordinarily held, and the latter somewhat higher
In addition to what I have said above it may be re-observed, that the point of view in which this writer has placed the two limitations of the Royal Power, shews that quality, in that part of the plan of our Constitution (considered apart from its effects), which is called unity of design.
. He further, after having admitted its limitations, goes on thus:
LETTER.
COMMENTARIES.
BUT
the King's power is a substantive one,
always visible and active.—And again, p. 13. l. 8.
The King alone it is who necessarily subsists
without change or diminution.
PREROGATIVES are either direct or incidental; the direct, are such
positive and substantial parts
of the Royal character and authority as are rooted in, and spring from the King's political person, considered merely by itself, without reference to any other extrinsic circumstance. V. 1. p. 240. And first of "
these substantive
or "direct
prerogatives,
" he names the Royal character or dignity.
Ibid.
p. 241.
THE latter part of each of these quotations from the Letter relates to the perpetuity of the exercise of the Royal functions, which has been before considered. If the whole of what Blackstone has said of the substantive power of the Crown could have had a place here, the following conclusion would have been apparent: That in every point hitherto compared, the last but one excepted, he has expressed himself in stronger and fuller terms on the dignity of the Crown than this Writer; and in the excepted instance with equal force.
PROPOSITION III. EVEN the legal capacity of acting may be taken from the Houses by violence, the effect of which must subsist some time after the violence is removed; but at all times the legal capacity of action remains in the Crown.
FIRST, To avoid the necessity of repetition, I note here, once for all, that throughout this article it is to be taken for granted, that no act of abdication has taken place on the part of the King.
THE legal capacity of the Houses to act depends upon their being assembled, which may be prevented by the violence stated; and after such violence is removed, some interval of time must pass before they can be legally reassembled by the Crown; and the term may extend so long, that the Parliament which was in existence at its commencement may be brought to an end, by the act of the law, before such force is removed. But the legal powers of the Crown will not be so extinguished, although it be impossible to exert them in act.
BEFORE I consider the second part or sense of this Proposition, I transcribe the passage in the paragraph in which it is found:
THEY (the Lords and Commons) are only branches, and derive their origin and nutriment from the common parent; they may be lopped off, and the Tree is a Tree still; shorn indeed of its honours, but not, like them, cast into the fire.
—I shall afterwards consider the expression, and prove the following, with what has preceded, to be the only senses of it; having made one observation in this place on the style: Through the whole of the Letter it is equable, though correct and even elegant; without those bolder figures which prose, on some occasions, may admit. The passage which is censured, taken without the last sentence, severed from the following period, is perfectly insulated; it looks like a single hill starting up out of a plain, whose surface is indeed waving and diversified. Thus placed, we meet a passage highly metaphorical, and continued to a considerable length: Who would not pronounce in such a case, where a Writer departs from his own manner, that the cause was some sudden and strong impression on his mind, operating at the moment, though he suppresses the mention of it? and there are recent circumstances of that kind dwelling in every man's mind. Is the passage very different from a portrait of the situation of Louis XVI. when a limited Sovereign, in the last year of his reign? Nobility abolished by a law he was compelled to assent to; and even every man of the Third Estate, distinguished by virtue and ability, was driven into exile, or at least forced to fly from the Assembly: The goodly branches of the Legislature were lopped off; the Tree remained indeed, in name, a Tree still, shorn of its honours, and not
yet
like them cast into the fire. Or to come to the immediate instant when we must suppose the paragraph to have been written, Was not the King of France then in exile? her Nobility half exterminated, half begging sustenance in foreign countries? or, Were the Commons of the realm represented by the vile instruments of Robespierre, Barrere, or Tallien? Hence the Writer will be thought to have had at that time before his eye that dreadful calamity, in which the Nobles and the more opulent and respectable individuals of the commonalty were involved, and the annihilation rapidly advancing upon them; and perhaps his more eager censurers may become inclined to admit, if they can suppose it
possible only
that he wrote with such impressions, that he did not look upon the philosophical politics of lopping and burning, and the sublime process of regenerating by annihilating with an unconstitutional approbation. This premised, I come to the second sense of the passage.
SECONDLY, The actors of such violence at any period acquiring permanent power, the Peerage of a country, and the families from which the Third Estate was then taken, may become effectively extinct, while a succession of Kings
de jure
may probably be preserved for many ages.
A FAMILY is said to be effectively extinct when it has no known representative; no one who can establish himself to be such upon proof. We learn from Caesar that the feudal system was established among the Gauls, whose institutions those of the Britons perfectly resembled. They too had their order of Nobility or Lords
Bacon's Hist. Disc.
; but their Nobility is totally extinct. And the same is true of the Saxon Nobility and greater Gentry; we have no Peers with a Saxon title; and few Gentry who can shew themselves descendants of an opulent Saxon family. Those ornamental branches of the Royalty of the British and Saxon line, have, by the violence of the sword of the successive conquerors of the kingdom, been lopped off and cast into the fire: while the fortune of the parent stem, was little attended to, as we shall see, on decisive authority, hereafter
I do not think that any Deputies of the Commons formed a part of the Saxon Great Councils. He that shall prove this opinion to be erroneous will strengthen the cause of the Letter-Writer on the one hand, more than he will weaken it on the other, by furnishing a proof that the popular branch may be cut off by violence, and that the monarchical Trunk may preduce a new one, even after the lapse of two Centuries.
.
BUT the extermination of the Lords and the greater families of the Commons has not been in this country, and in latter ages, possible only; it is a danger which, in the opinion of the most judicious modern historian, Mr. Hume, has been very probable; has been suspended over their heads by a very slender thread indeed. At the end of his account of the Restoration he observes, that
the violence of the English Parties exceeded anything we can now imagine; had they continued but a little longer, there was just reason to dread all the horrors of the antient massacres and proscriptions
from
the military usurpers
V. 7. p. 339.
.
IF Providence had at that time visited the Nation with this dreadful yet probable calamity, the Writer asserts the tree would have remained a tree still; for it shall be shown that a case resembling this is the only one he could have had in contemplation when he wrote. If this tragedy had been effected, it is paying no undeserved tribute to the moral sense of the lower orders in this country, to say, that the perpetrators would have been held in such execration, that the supposition of their being favourable to a Restoration is no violent assumption. In that case, by the legal prerogatives attached to and still remaining in the person of the King (according to the Author's assertions), a House of Peers might have been formed, and by his writs a lawful House of Commons assembled; and he would have been legally able to have formed the wheels, and set together again the whole machine of Government. Thus, by the operation of the Law of the Land, as adequate a remedy as possible would have been found for such a calamity: a better source to derive it from than the
jus extremae necessitatis;
or the supposition that the Civil Government was quite dissolved. And only such a case as this, it must be granted, the writer had in his eye For when he supposed such an extermination, he must have supposed it effected by some agent or agents; by the King, or by rebels, or foreign force. The first it is incredible he should think lightly of; the second we have recently seen attempted, and almost effected; the last does not enter into the question.
THE King
de jure
(Charles II.) being abroad, would have escaped this calamity; shorn of his branches, but not like them cast into the fire; and in the kingdoms where the principle of Salic Law is not in force, the Royal Families mostly marrying their daughters to foreign Princes (events of which faithful records are preserved), are not nearly so liable to become apparently extinct as even the existing classes of Nobility and Gentry.
A VERY singular instance of the truth of this occurs in our own history. The title of the British Sovereigns was in the Welch Princes. By the marriage of Gladys, sister of Llewellyn ap Jorwerth the Great, their title ultimately fell into the house of Mortimer. Thus Edward the IVth united the Norman title in the York line with that of the British Princes. By the marriage of his daughter Elizabeth with Henry, heir of the line of Lancaster, there was an union of three titles in their descendants; which at last vesting in those of her daughter Margaret Queen of Scotland, the Crown passed to James the Ist; and in his person a fourth title was added to the former three. Margaret daughter of Edward the Outlaw, son of Edmund Ironside, married to Malcolm King of Scotland: she was sister to Edgar Atheling,
cui de jure
(says Matthew Paris)
debebatur regnum Anglorum.
He died without issue; and thus, after an interval of 586 years, the lineal representative of Edmund Ironside was seated on the English throne; uniting in his single person the claims of the British, the Saxon, the York, and the Lancaster lines. The particulars of this descent here given I have taken out of Blackstone, b. i. c. 3. He remarks, that this accumulation of titles suggested to a Prince of more learning than wisdom, that his hereditary title was indefeasible: and it may be added, that those of his age, and for a considerable time after, who were most zealously attached to our Liberty and Laws, which are ultimately derived from the Saxon race, might, in their affection to the memory of those excellent Sovereigns to whom they were indebted for them, think they discovered the immediate hand of Providence in the restoration of this line, and even carry the consequences they deduced from it to an erroneous length.
IN a word, the heir of Edmund Ironside, Llewellyn the Great, and William the Norman, in the Protestant line, is now seated on the Throne. But is there a single person to be found in the kingdom who can shew himself to be the representative of a British or a Saxon Lord? or many who can derive their descent from the Saxon Gentry? These classes have twice become extinct. The representative of the dynasties wears the Crown.
PART III. ON THE DICTION OR EXPRESSION OF THE PARAGRAPH.
IT is necessary to be unusually particular in the remarks upon this topic, because the circumstance of the Pamphlet being made the subject of Parliamentary inquiry, seems to me to hang much upon it. The greatest part of it is metaphorical; and one of the metaphors has, I presume, given offence to many of the Members of the House who have voted upon the subject.
THE Lords and Commons are described as branches springing from the antient stock of Monarchy; the honours of the tree; goodly, and giving it ornament, and affording shelter to those who take protection under it. Here is much said of the utility and beauty of the Estates; and the matter of their origination being true, which was proved above, their good qualities are as warmly painted as we usually find them, and perhaps it may be said to be more so.
To meet the objection to be considered afterwards, it becomes necessary here to observe, that all this imagery is of the school of the Hebrew poetry: a secondary mark of the peculiar genius of which was, to confine some particular metaphors almost exclusively to certain subjects; as a cedar, or any majestic tree, to express a King or Prince. The image is of this sort. If any one should say that its proximate source is to be found in Shakespear, in a poetical compliment to James the Ist, I shall not dispute it with him.
He shall flourish,
And, like a mountain cedar, reach his branches
To all the plains about him.
BUT I must have the liberty of adding Hurd's Note on this passage:
It is easy to see his cedar is not of English growth, but transplanted from Judea
Hurd's Horace, v. 3, p. 164.
.
THE subject leads the Writer to add another circumstance to this description; the abstract matter of which is, that the Three Estates may be destroyed, but the Monarch remain. As he began metaphorically, this he has rightly expressed in the same manner. Yet in this second metaphor is to be found one great part, and I believe the principal part, of the ground of the censure. This destruction is thus expressed:
The branches may be lopped off—and cast into the fire.
The charge certainly is not weakened by thus removing these phrases out of their places and putting them into uxta-position.
j
IN this metaphor the word
may
is capable of being construed in two senses; the first limited to a simple possibility of the thing; the second, that it is not only possible but right to be done. Now when a word bears two senses (and there are few in common use which do not), the meaning in which the writer intends to be understood is to be determined by the context. In which sense the verb
may
is here used, is to be gathered from what he has said of the qualities of the two branches. Now as their utility and beau
y have been warmly painted, as has been particularly shewn before, it is to be construed in the first sense, that the branches may eventually or possibly happen to be lopped off, and cast into this fire; not that they ought to be so, because they do not produce good fruit.
YET in these two phrases, as they are here put together, the Writer has copied one verbally, and only made a slight alteration in the words of another, from the conclusion of a beautiful allegory, which is a fine example of the Hebrew school:
Every tree which bringeth not forth good fruit,
is hewn down, and cast into the fire.
The words of the latter part of this quotation may recall the former to memory; but it has been particularly shewn above, that the Writer did not mean that these branches did not bring forth good fruit; for such fruits he has specified; and even supposing this had not been capable of such proof, it would be rightly said, that the adoption of images in this mode, forms a kind of cento in prose: but when a man is composing a cento, if he takes the last hemistich of a verse in Virgil to conclude his own, is it to be supposed that he means the former part to be understood before it?
BUT it will be asked,
Was it not enough for this writer to have once expressed, figuratively, the destruction of the two Estates? Was it not sufficiently described by the phrase,
they may be lopped off?
Why does he affectedly repeat it, dwelling on the idea, and add, as if in contempt,
they may be cast into the fire?
To this it is answered, that it is that quality of the figurative style of the Hebrew school, which may be called its essential difference, to give that impression to its images by reduplication, which the Europeans effect by epithets. I take this from Lowth's Praelections on the Hebrew Poetry; and I translate his Latin Example.—1st. My instruction shall descend as a shower;—2d. My speech shall fall as the dew;—3d. As the fine showers on the plants;—4th. As the thick dew drops on the grass.
I HAVE but a single metaphorical sentence more in the citation to remark upon. The branches being lopped off,
"the tree is a tree still, shorn indeed of its honours."
How he formed the idea has been pointed out before; it must now be shown where he had his colouring. This imagery has a different source from the former; but blends very well with it. Here we may infallibly detect the passage or passages of a great Poet whom the writer had in his eye; and they will give us the picture then present to his mind, of the state of a monarch whose greater subjects were involved in such utter ruin. The impressions they make upon us were the impressions he felt when he wrote, and endeavoured to excite in us by the allusion to be pointed out. I need not quote Hurd's 5th or 6th marks of imitation, to prove that the phrase "shorn of its honours" is borrowed from Milton; it suggests to us directly the picture
Of glory obscur'd; as when the sun, new risen,
Looks through the horizontal misty a
r
SHORN OF HIS BEAMS; or from behind the moon,
In dim eclipse disastrous twilight sheds
On half the Nations;
and with fear of change
Perplexes Monarchs.
AND in the same page, fifteen lines further, by the h
re change of the singular number for the plural, we read,
How he stands.
His glory withered. As when heaven's fire
Has scathed a forest oak or mountain pine;
With finged top his stately growth, though bare,
Stands on the blasted heath.
FROM these two passages the Writer most probably took the whole of that here considered;
the tree is a tree still, shorn indeed of its honours
(branches); and the latter might suggest to him to add what immediately follows, "but not like them cast into the fire." The first sentence of the passage quoted is left simple, probably to avoid the appearance of servile imitation, or the giving to the whole an air of poetry too much above the customary style in which subjects of the nature of his pamphlet are generally treated.
THE conclusion I draw from the whole is, that in this paragraph we have the advantages of the two Houses fairly stated, and the dignity of the Sovereign more fully insisted on, yet from circumstances proved by general experience and law; and if either of the other two parts of the Constitution had been now attempted to be subverted, any one of its advocates (and I hope they would have been numerous, zealous, and able) ought to have proceeded in the same manner; that is, briefly but fully acknowledging the utility of the two unattacked parts, then directing all his attention to the defence of the third. Whether it were the Commons or the Lords, it would then be doubtless pretended, as it is now, when so many engines are at work to weaken or destroy the Crown, that no attack was intended against that particular part of the Constitution. But it is to be observed, with respect to such cases, that it has very frequently happened, when one army has marched out of its trenches, in the dark, to attack another, they have lighted up every tent to make their adversaries believe that they were very quietly at supper. And if it be still constitutional to defend the Government established by law, it is constitutional to give a summary of the Royal prerogatives acknowledged by it, and point out their utility. This must be allowed by those who feel themselves inclined to stop somewhat short of the doctrine of Blackstone, as the Writer actually has done, who says,
the mass of mankind will be apt to grow insolent and refractory, if taught to consider their Prince as a man of no greater perfection than themselves. The law therefore ascribes to the King, in his high political character, not only large power and emoluments which form his prerogative and revenue, but likewise certain attributes of a great and transcendant nature, by which the people are led to consider him in the light of a superior being, and to pay him that awful respect which may enable him with greater ease to carry on the business of Government. This (he adds) is what I understand by the Royal dignity
V. 1. p. 241.
.
And this defence has been so conducted by the Letter-Writer, that the strength of Blackstone's expression (quoted frequently as unsuspected authority in both Houses) appears almost perpetually lowered by him. If therefore the Pamphlet be, as it was described in the House of Commons,
a practical Exhortation, addressed to the Plain Sense of the People,
there appears to lie no crimination against the Parts hitherto considered. Whether any criminating matter is to be found in the remainder, we are now to proceed briefly to enquire.
PART IV. FIRST.—ON THE REVOLUTION PART OF THE WORK.
I NOW come to consider what the Letter-Writer has said on the Revolution; a motion having been made in the House to declare this also a libel. In the First Part of this Tract it has been shewn, that he had spoken of that even with all the warmth of praise. It certainly therefore is not doing him great justice to sever the remainder, which is judged unexceptionable, from that context, and consider it apart: yet such is the method here adopted in his defence, most favorable to his accusers, and least so to the accused.
OMITTING all those kinds of revolutions of States, whose causes or effects are external, our observations must be directed to civil or internal revolutions, and these are of the following kinds: First, those which change the form of Government: Secondly, the governors; these are simple revolutions: or, in the third place, both conjointly, or compound revolutions. Infinite varieties fall under the third head. As for instance, a compound revolution may fix a new Dynasty upon the throne, and the first principles of the old form of Government and the Laws may undergo a very great or total change. Or it may fix a family derived from a new common stock upon the throne; while the changes in the form of the old Government and the Laws are much less than in the former case; and such as do not,
per se,
approach to a revolution of the other kind.
EVERY friend of legal liberty must unreservedly approve of the transactions which placed William and Mary on the throne, as just and necessary; but fully impressed with that sentiment, men may so far differ as to number the Revolution among events either of the first or the second kind, and
, in so doing, traduce or libel the Revolution.
THERE are authorities on both sides; I shall state what I look upon as the best, and begin with those for the first opinion.
IN the Declaration of Rights (Mr. Hume says) all the points which had of late years been disputed between King and People, were finally determined; and the powers of the Royal Prerogative were more narrowly circumscribed, and more exactly defined, than in any former period of the English Government
Hume, v. 8. p. 309.
.
It does not indeed follow from this that the disputable points were many or few; the remedy of more or less extent; the change of the legal form of Government considerable only, or intitled to be called a total change therein. His idea of the magnitude of that change is to be found in the following passage:
That great event (the Revolution) not only put a period to the hereditary succession of the house of Stuart, but made a new settlement of the whole Constitution
Ib. v. 8. p. 310.
.
I LOOK upon the opinion, that we had no Constitution until the Revolution, or that
that
event drew it out of the chaos in which it was involved, to have been derived from these and some other passages of Mr. Hume's works; at least I know no other respectable source of such an opinion. According to that, we are to suppose that he understoo
Declaration or Bill of Rights to be the "Corinthian capital
Burke on the French Revolution.
" wanted still to finish that column of British Freedom, the Constitution, and complete the most beautiful ordonnance that human art had ever formed. Yet, on this occasion, he only says of it, at such a time such a member was put upon the top of the shaft, without any account of its form or proportion; while he describes certain parts of the pedestal and base, and their mouldings and ornaments, with the most minute detail and attention. I say, if he thought thus of the Bill of Rights, contrary to his ordinary manner, he has, in the body of his History (which concludes with the first quotation), given only seven lines to an account of it in general terms. On the occasion of some former ameliorations of the Constitution, which he must have esteemed as of much less consequence, he has been infinitely more particular. His known manner is, on treating on such subjects, to state every topic that could be urged by a profound politician on both sides, and he practically shews us, that Tacitus has been indebted to warm imaginations for some part of the praises he has received. And would not such a writer have been glad to have concluded his History with so fine and so important a close, as a finished dissertation on the vicious redundances which remained to be taken away, and the improvements to be adopted, to complete a Constitution held in such esteem, by a Declaration of Rights, claimed on a change of the succession to the throne? Does he not scorn thus even to apply a capital to the best column of his own immortality? Instead of doing this, we find no one article of its contents, not one argument for or against it; he condenses the account of it into a single period of seven lines; while to the Petition of Rights, brought forward in the reign of Charles the First, the articles of which are not so many in number, he has given twenty pages
V. 6. pp. 277-196 inclusive.
; containing the Petition at length, some full and fine extracts from the debates, and an elaborate dissertation of his own for and against it. From this circumstance some people may be inclined to think, that he felt he could not give the Declaration the same consequence with which he had treated the Petition; though they may keep back their assent, from the opinion of Macpherson on the former; who says,
that the Rights that were claimed had been recognized in the most arbitrary reigns, though they were sometimes evasively invaded
History, v. 1. p 568.
.
THAT something must be subtracted from the weight Mr. Hume's authority gives to the position, that the Revolution
made a new settlement of the whole Constitution,
in the sense in which it is commonly understood, appears likewise on another ground. In commenting on the usurpations and illegal acts of the house of Stuart▪ later authors had thought fit to judge and condemn them on the laws and the principles now universally established. This proceeding he contends to be analogous to trying a man by an
ex post facto
law. This is true, in many instances, in respect to the first two sovereigns of that family. But he did not sufficiently consider what great approaches were made in the first part of the reign of Charles the Second toward that Constitution we have now the happiness to enjoy. Hence, in the last of these passages, he seems to hold out the idea, that the nation passed,
per saltum,
at a single step, from the old and confused system, almost as it existed under the last of the Tudors, to the new and settled form of Government. His ground for an apology for the house of Stuart is happy, but his affection for it has drawn him to a certain length into the error opposite to that which he attacks; and although his deviations be by no means so gross as those of the writer's he has in his eye, yet to consider how he fell into them leads us directly to the authority on which the question before us ought to be decided: this inquiry I therefore now enter upon.
IF, as it is laid down above, great improvements had been made in Legislation during the former part of the reign of Charles the Second; yet as they were brought forward successively, and not in a mass, under a single statute, like the Petition of Right in 1628, they must be found scattered up and down among facts of that eventful period, which were more striking to the imagination of the reader, and even that of the historian. When the miscellaneous materials of history are so joined together, he is not able by a retrospective glance upon the assemblage of all of them to obtain a distinct view of one class of events; as for example, the changes of the spirit or letter of Laws. To give a precise idea of these interesting particulars, proper epochs must be selected in the course of a History, and at each term the state of the Laws should be accurately delineated; then the variation from term to term should be truly and carefully assigned, and it should be shewn, by way of result, whether they were in a gradual state of improvement, or the contrary. These periodical reviews, or balances, Mr. Hume has not drawn out; but admit him to have attempted it, it is certain he would have been much better qualified for the task, if that acuteness and judgment in which he excelled had been principally employed in the study of the statute books, and the whole theory, practice, and history of our Laws. He then would have been intitled to entire credit with regard to what he had said on the change of the legal Constitution at the accession of King William, on the maxim,
Cuilibet suâ in arte credendum.
Now what Hume omitted, and what he was not, from a long and necessary course of study, so well able to effect, has been done by Judge Blackstone, at the end of his Commentaries on the Laws of England. After he had recently finished a full systematical account of the whole, he gives a history of the variations the Law has undergone, divided into periods, as above described. The reign of Charles the Second forms a period by itself, and the fifth in order; and from so complete a view of the subject he lays it down, that
the Constitution of England had arrived to its full vigour, and the true balance between Liberty and Prerogative was happily established by Law in the reign of King Charles the Second
V. 4. p. 439.
;
wicked, sanguinary, and turbulent,
as he had before admitted it to have been. He adds, in a note below, that
the point of time at which he would chuse to fix this
theoretical
perfection in our public Law, is in the year 1679; though those which followed it were times of great practical oppression
Ibid.
.
And in the last paragraph of his work, he states that our Laws and Liberties were totally eclipsed at the Norman Conquest, and
were not thoroughly and completely regained till after the Restoration of King Charles; nor fully and explicitly acknowledged and defined till the aera of the happy Revolution
Ibid. p. 442.
.
Those liberties, when they were fully and completely regained, were then as securely ours as law, in the turbulent state of society which then obtained, could render them; and the explicit acknowledgement of some pre-existing laws and their principles cannot be considered as even a change of them; it cannot amount to new-modelling a Constitution; or what Mr. Hume (as quoted above) calls a new settlement of the whole Constitution: nor is such a change to be found in the improvement of a definition. The greatest alteration made in the Law was, that the King should be of the Protestant religion. Otherwise, the Bill of Rights, though containing matter of great consequence, was absolutely declaratory; stating certain points either to be already the Law of the Land, or contradictory thereto. In a word, the Constitution of England, as existing in 1679, stood on the footing of Law in 1688; and if we admit with Blackstone, that it had attained theoretical perfection at the first period, I should hold it
a libel on the Revolution
to say after Mr. Hume, that a new settlement was then made of the whole, or that any other Constitution was then established. What then was the Revolution, as it affected the Constitution? A successful resistance against an attempt to overthrow the system of Government established by the Laws. And what is it now to act upon Revolution principles? To resist all attempts, whether popular, aristocratical, or regal, to subvert such Government. The Revolution was the conservation of the Constitution already established by Law, which was arrived at such perfection, that any attempts, by violence, at a supposed improvement of it, would have been in the highest degree criminal.
THE present general interest in the question, how far the Revolution was a change of the pre-established form of Government and of the Laws, has led me into a considerable length, perhaps more than necessary, from my direct object. In what precedes, however, it will be found, that the principles, on which what the Author of the Letter has said on the Revolution, which seems to have given offence, may be justified at their full extent. I come now to their application. It is not of the nature of a Constitution to be free from the attempts of external force: but so early as the year 1679, that
of England had arrived to its full vigour, and the true balance between liberty and prerogative
Bl. v. 4. p. 439.
.
The people had sufficient power, residing in
their own hands, to assert and preserve that liberty if invaded
Ib. p. 440.
;
as the event proved in 1688. The Constitution therefore wanted neither formation nor establishment; the exertion of power already possessed was become, indeed, highly necessary; it was well exerted, and the Constitution was saved. Hence the Letter-Writer justly reprobates those who, disguising other principles under the name of Revolutional, "idolize a Revolution in the abstract
Let. p. 40. l. 25.
;" that is, any change of governors or legal forms of Government; those who
have no love for the
Constitution,
but for that which was
formed at the Revolution,
previously to which it was perfectly formed, and, according to the opinion of Blackstone, established in full vigour, and before James the Second ascended the throne; and hence the Author very rightly laughts at the
disappointment and discomfiture of these idolizers of a Constitution supposed to be established at the Revolution, on discovering, at length, that they have bestowed their applause and affection upon shreds and patches of old date
Let. p. 53. 11.
,
which they so ostentatiously affect to desprise, although the records of what they had imagined to be a new Constitution made in 1688. It is likewise by the same respectable, and I suppose Constitutional authority, that of the Commentaries, we are informed, that public law had attained its
theoretical
perfection in 1679; though the years which immediately followed it were times of great
practical
oppression
Bl. v. 4. p. 439.
. This has been cited before for another purpose; but I may say here, that on such authority the Letter-Writer might very well pronounce of the politicians described above,
that if they had lived in the wicked reigns of Charles the Second and James the Second, they would have enjoyed in
theory,
though not in
practice,
(and theory, of the two, is more considered by modern reformers,) as good a Constitution as they have had since, with the single exception of a Protestant King
Let. p. 53. l. 15.
.
IN the beginning of the page from which the last citation is made, he affirms that
the other points, which were twelve in number, were, as I have said, known to be the Law of the Land before, and were now declared and secured by express definition in Parliament.
This was done by the Bill of Rights. These observations on the effect of the transactions of that time on the Constitution, cannot be closed without a brief exposition of the nature of that Bill. Its object, according to the Letter-Writer, was
only, that what had been the recent cause of alarm, what was so deeply impressed on the minds of all, and what might be thought, from late experience, to be of a nature that required it should be solemnly inculcated, might be held up for admonition to future ages
Let. p. 53. l. 1.
In these two passages nothing more is to be found than the sentiments that Blackstone had expressed, with a little more vivacity, that
our Liberties and Laws, extinguished by the Norman Conquest,
were thoroughly and completely regained before the Revolution,
and
at that happy aera explicitly acknowledged and defined
Bl. v. 4. p. 442.
.
Both these writers agree that the object of the Bill of Rights was to reassert those parts of the Laws and Constitution which had been violated in act, or of which doubts were entertained; and another authority of great weight may be brought to show (what is indeed obvious in itself), that all change of the legal Constitution was sedulously avoided, even such as might appear evident ameliorations, and which recent experience seemed to call for.
One thing (says Dalrymple) very remarkable in the Declaration of Rights is, that it condemns not the suspending and dispensing powers, but only those powers as exercised by King James.
—
And in the last great article of all,
(that Parliaments should be frequently assembled,)
the words—frequent Parliaments—left the intervals of their assembling, and the duration of their sitting, as undeterminate as ever
Dal. Part i. p. 208.
.
THE spirit with which this Declaration was penned may be gathered from what passed at the vote of Abdication, when
the wiser part of the Whigs, at the head of whom was Mr. Sommers, persuaded their Party to make their own sentiments of liberty bend to the nature of the Constitution, and to the principles of the Tories;
some of them having pointed at laying such restrictions upon the authority of either King or Regent, as would have reduced the offices almost to empty titles
Dal. Part I. p. 194.
.
This sober system, though transient, was adhered to in drawing up the Declaration of Rights
Ibid. p. 209.
: if in any part of it they had aimed at even an amelioration of the legal Constitution, we might expect to have seen it done with regard to the suspending power, and the assembling of Parliaments. But on so fair a ground they scrupulously abstained from it, and confined themselves to the simple declaration of the letter of the existing Constitution, on those points in which it had been endangered. The Revolution consisted in the voluntary abdication of James; his will being demonstrated by three overt acts, specified in the Vote of the Convention; and its proper definition is, a Revolution by Abdication. But as the whole definition is too long, either for conversation or writing, it were to be wished, that in giving a shorter name to this event, we had formed it upon the language of Parliament, and called it the Abdication. The name contains a moral lesson of sufficient strength to any future Prince instructing him, that a certain period
gravi documento in posterum sancitum fuit; ne quis unquam Populo injuriam opportunam reputaret
Livy.
. It likewise holds out no equivocal sense, like the term Revolution, which a pernicious demagogue can catch hold of, to subvert that very Constitution which the transactions of 1688 saved from subversion, intire and without change
The spirit of Administration is a point of great consequence in every Government; but that always depends upon the temper of the governors and that of the people conjointly: it admits no specific definition, any more than the several gradations of light between total darkness and sun-rise. It can be marked only in general terms, incapable of legal precision in their senses; it therefore cannot be established by law. The spirit of Administration in Government has been very much ameliorated since the Revolution; but this could arise from no change of an actual Constitution; it is totally to be attributed to the salutary lesson the Abdication conve
ed, and a change of manners and ideas.
.
THE term
Revolution
itself, being equally applicable to all changes of Government or Governors, good or bad, is generical. There are many species of Revolutions, and bad men avail themselves of the ambiguity of the term. From the praises of the Revolution of 1688, the populace are easily induced to believe a Revol
tion of another species must be likewise good; in the event they may find it the greatest of evils. The botanists tell us, that that excellent root the potatoe is of the genus
Solanum;
yet if any person, describing its wholesomeness and good qualities to one not acquainted with the plant, should instruct him only in its generical character or marks, which he afterwards discovering very clearly in the nightshade, should eat it with confidence, his life would pay for the error he was led into: and into this error our political botanists appear to have led a neighbouring nation.
THERE is a circumstance of some curiosity in the history of the Bill of Rights; to which, as it tends to justify the Letter-Writer's account of the state of Parties at the Revolution, which has been obj
cted to with much asperity, I shall here give a place. After the Convention became a Parliament, the Commons, in which the Whig Party intirely prevailed
From an anecdote extracted by Dalrymple from Clarendon's Diary, it seems very probable that many of the more respectable Commoners of the Whig Party lost their elections to the Convention Parliament; I mean those who acceded to the coalition with the Tories in James's time, whom I presume to have been the most moderate men, who did not run into such diametrical extremity of opposition to them. These joined the Prince, and were in his camp when James issued his writs for the calling of a Parliament. It filled them with alarm for their seats; so much so, as to induce them to propose to William, and strongly to insist upon a very strange measure; and, when he summoned the Convention, many of them must have found they had begun their canvas too late. The same I suppose to have been the disappointment of many of the Tories of moderate principles and of fidelity to their engagements. At first things went on well, under the direction of Mr. Sommers; but the latent distempers arising from the bad formation of the House, soon broke out, and suffer us little to regret its dissolution in about one year; and less to wonder either that King William should attempt it, or succeed without shaking his new throne.
, turned the Declaration of Rights into a Bill, which they sent up to the Peers, in which House the Tories had a majority. Upon the suggestion of the King, Bishop Burnet proposed, as an additional clause, that the Princess Sophia of Hanover, and her posterity, should succeed to the Crown in case of the death of the daughters of James the Second without lineal heirs. This Amendment was adopted by the Lords; and the Bill of Rights, with this addition tacked to it, was flung out of the House of Commons, and by the Whig Party
Dal. Part II. p. 69.410.1771.
. In the following Sessions they again declined to admit the succession of the House of Hanover as a part of the Bill
Ib. p. 102.
; but the obnoxious clause being struck out, at last it was suffered to pass
Ib. p. 105.
.
To render the King's revenue annual would absolutely destroy his independence, and render him a cypher in the Constitution; reducing it to a government of the two Houses, or ultimately to that of an Elective National Assembly. Yet this very party, in the House of Commons, having postponed the settlement of the revenue till the 10th of December 1689, voted it then for one year only
Dal. Part II. p. 106.
.
WITH these events in his recollection, any man, attached to this solemn Declaratory Act, to the House of Hanover, or to a mixed Monarchy, may say, if the authors of these measures were active in producing the Revolution, that although
that event was brought about by the energy, good sense, and firmness of some of the best and greatest men in the Nation, it was of a nature unlike most good things) to be helped on by the concurrence and approbation of some of the worst men that could be found
Let. p. 43. l. 1.
.
But in the defence of these men and their measures, I do not see that those Whigs,
who mean no otherwise than well toward the antient Government and Laws of the Land
Ibid. p. 66. l. 6.
,
are any further interested than the members of the Church of England in the vindication o
the Anabaptists at Munster in the last century, because the latter called themselves Protestants. But perhaps the time is not yet come when any Party will venture to claim the national confidence by a decisive censure of the evils that have been committed or attempted by those who have assumed and perhaps usurped their names; and the successors of these men were too long permitted to range themselves among them. However, the fermentation of the time has been of use to the dignity of the Whig Party; a natural separation has taken place, and this feculence has subsided. They are completely separated from that subdivision, formerly incorporated with them, the school of the Eclectics, who combined a profession of the political theory of Harry Vane with the political practice of Lord Shaftefbury, and who had obtained to be of the number, or, in the words of the Letter-Writer,
had taken their stand among the Whigs
Let. p. 44 l.
.
before 1688. I shall conclude what I have to say about the Revolution, by proving this point; that after having cleared the Writer of the accusation of having treated that event as a farce, I may not be involved in it myself for having said that the change then effected in the Constitution itself was minute, and that the object of the Bill of Rights was to preserve the Constitution in its then existing form. It may also teach those who venerate our legal liberties, and even the independence of the popular Estate of the Legislature on the power of the Crown, so to continue to distinguish themselves from this faction, that they may never again have the appearance of belonging to them, to aid them in their designs to overwhelm both in one common ruin. I shall therefore here shew the necessity of the Revolution in one point of view, in which our more elegant and popular historians have not distinctly placed it.
AFTER the seizing of the charter of the City of London, in the reign of Charles the Second, many of the richer Corporations purchased new ones. There appears to have been no disposition to grant them
gratis,
even upon voluntary surrender
Coke's Detection, e. 2. p. 207.
. The terms of these new charters were such as to leave the nomination of the representatives of those Corporations almost entirely in the power of the Crown. After this wide breach in the Constitution, the servility of James's first and last Parliament was not sufficient to answer all his purposes. The charters of the most numerous class of the Corporations, that is of the poorer boroughs, had not been yet called in. To induce them to a general surrender, he determined to grant new ones without fees
Ib. p. 434.
. Under these new charters the Crown had ultimately the power of nominating to all offices: but to add to this influence in elections, all which fell little short of absolute nomination, James instituted a set of officers, called Regulators, to examine the qualifications of electors, and exclude all such as adhered to the Test and penal statutes
Hume, 7.8. p. 255.
. The House of Commons then consisted of 513 members; of which, by this arrangement, 421 would have been effectually nominated by the Crown
Coke's Detection, p. 385.
. Nor did he want agents to assist him in the completion of his plan to render his power predominant in all the Corporations; a plan which his brother had left imperfect:
he
might dread, or
he
might be averse to the experiment. I copy the words of Coke, a cotemporary writer, a zealot for the principles of Whiggism, and therefore an unexceptionable evidence, when censuring the conduct of that Party.
The
Whigs
were but too forward to congratulate the King on his designs, and in humouring him
in giving him up their charters;
as the Tories, in King Charles's reign, in their abhorrences of the King's calling a Parliament, and as forward then, as the Whigs now in surrendering their charters
Coke's Detection, p. 464. The passage is given as it stands, without any alteration of its construction. Coke is frequently quoted by Hume.
.
It must be admitted here, that this charge upon the Whigs is too general. There then existed a numerous body among them who were, to use the language of the times, "Tories in the Church, and Whigs in the State
Dal. Mem. Part II. p. 20.
." These must have been in the most diametrical opposition to the plans of James. The section of the Whig Party here meant, must be such of the bigoted sectaries who mingled with them; and we may add to these, all who could, by the emoluments of office, or the love of power, or the desire of trampling upon their formidable rivals, be blinded to a danger, apparently both distant and contingent. But unfortunately that spirit was then extremely prevalent: and the distribution of rewards by James points out that the agents of this service are here rightly assigned. The offices of all the Corporations whose charters were surrendered, had, before this, been filled with those who had opposed the Exclusion Bill:
these were now turned out with disgrace, and those who appeared most violently against him were put into the magistracy
Burnet's Hist. 12 mo. 1725. p. 1197.
;
the Corporation of London was filled up with Dissenters, and afterwards that of every other town
Hume, v. 8. p. 255.
.
THUS the King had completed, or nearly completed, the seizing into his own hands the effective nomination of 421 Members of the House of Commons, and, by reducing it to a total dependence upon himself, annihilated the Third Estate, by annihilating its use: and with an independent income of £. 2,150,000 a year, which he managed with a rigid oeconomy, he dictated his arbitrary will to the Nation at the head of a regular army of 20,000 men. Such were the formidable machines which he had prepared to batter down the bulwarks of the Constitution. There were likewise other violations of Law, and usurped powers, which alone would have rendered the measures pursued against him necessary. He had, it is true, begun to retract; but the wind shifted, it blew the Dutch fleet back, and he re-retracted; and the Revolution consisted, almost solely, in the expulsion of such a Sovereign
I might have proceeded farther, and said, that the conferring of the Crown and the intire administration upon William, preserved the Kingly power in the Constitution. The attempts to annihilate it at the beginning of his reign have been shown; all his policy, his cool determination and vigour were requisite to preserve it. If a Regency had been set up, or the sceptre had been placed in the hands; of Mary, it could not have been maintained. By his arrival William preserved one integral part of the Constitution from virtual annihilation, the Popular Estate. In little more than a year he was called to a new task; the Constitution was again threatened with destruction, by measures which would have ended in the abolition of Royalty, and he preserved it, by an act of the greatest political courage and vigour (the dissolution of the Parliament which had placed him on the Throne), from becoming a turbulent Democracy.
I cannot help making one observation, to which I should be inc
ned to give a place in the natural history of Parties, that the practical opinions of better men in each differ very much, from what their Agitators lay down as principles, and their consequences; for all Parties have their Agitators, and sometimes even men of some figure are found in this forlorn hope. Following the order of time, I shall take from the Tories the first example of this truth. When real danger threatened the popular part of the Constitution,
from them, it is certain, the most pressing calls to the Prince of Orange came
Dal. Part I. p. 133.
.
Sir Edward Seymour, who was the leader of that Party, was the first who, rearing the standard of Liberty, joined the Prince with a considerable force; bringing with him the Gentlemen of Dorsetshire and Somersetshire: he planned the famous Association
Whitworth's Davenant, Vol. IV. p. 134, Dal. V. I. Part I. p. 161. Burnet, p. 1332.
.
The generous support the Tories then gave to legal liberty, we now see the whole body of Whigs, with few exceptions worth regarding, pay to legal Kingly power.
With a Constitutional nobility of spirit they have thronged around the standard of legal mixed Monarchy;
and the best men of either Party (if there be any speculative Tories now) might, with a little change of two lines of Cowley's celebrated Poem upon Crashaw, say of their opponents so acting,
Their saith, perhaps, in some nice tenets might
Be wrong; their lives, I'M SURE, were in the right.
Little doubt, I suppose, can be made but the Agitators and Bigots of the Tory Party (for I suppose they had not the "sturdy morality" to deny leave to the Absolute Monarchy-men to call themselves by their name) were not wanting on this occasion to call these generous defenders of the Constitution apostates, and their declarations against the excesses of their unconstitutional fanaticism, desertion of principle; holding all principles that are barely general to be universally true; for people of this sort have been always-very charitable to a parcel of poor words, whose lot it has been to be held in discredit;
o
e
ing their unfortunate lot very much, by applying them to subjects to which nothing bad can attach, so taking off most of the odium in which they have been formerly held. But I cannot equally praise the goodnature of
persons at this day, in the exercise of the absolute power they have over the English language, with respect to the poor-word "Patriot;" which, though it may retain its honours in the graver style, yet by their too frequent application of it, they have made it in common conversation and familiar writing synonymous to "Political Tartusse;" and my love of English literature is such, that I beseech, nay even, with Dr. Bentley, "vehemently exhort." the said Legislators in Language, that they will send to the Gentleman who is (as I hear) now compiling a Dictionary of the English Language at Oxford, a list of all such words as they purpose to employ in the next five years, either in panegyric or reprehension (that it may not be in part obsolete before it comes out); together with the day on which they intend first so to use the same; as for example, July the 14th, 1798; whereby he may warn the purchasers of his work, that until July the 14th, 1798, the word is to be understood in its present established sense; but that at 12 o'clock on that day, and ever after, it is to be used in burlesque only, or in that figure to which the Greek
ricians have given the name of Irony.
.
EVERY Revolution must be defended on the necessity of the individual case; and no arguments drawn from this example can be brought to justify a Revolution in any case, not of the same kind, much less Revolutions in general. As for instance: It is a common belief that the first Revolution in Poland was a good one; yet not one particular argument in favour of that of 1688, will apply to the latter; nor can any consequences be drawn from a Revolution of persons or governors, whereby the Laws and Constitution were intended to be preserved, to prove the utility of a Revolution, whose end is to effect a change in them, let the nature of that change be what it will; and he seems to me to be ignorant of the merits of the Revolution, or to traduce it, who commends it for being what it was not. It would be ignorance, in an eulogium of Newton to praise him as a sublime poet, or Locke for his skill in naval tactics; and if I were to celebrate the personal courage of Augustus, or the conjugal fidelity of Henry the Fourth, I should be supposed to be advancing some sly invectives against them. Perhaps not to find in one Revolution sufficient grounds for another, may be to make it of no consequence;
to make a farce of it:
for nothing, with some persons, can be of consequence in the first, which is not ground for a second: but to others it may still seem that the right of resistance is one of the
jura extremae necessitatis;
and therefore it may be of some danger to be always inculcating it into the minds of the populace. We know that by the same laws of extreme necessity, a man may take a loaf of bread or a few pounds of meat from his neighbour to save himself from perishing; but if in all the churches and chapels of his Majesty's dominions, this were to be perpetually preached and enforced in every pulpit, upon the great principle of self-preservation, the enlightened populace would always conceive themselves to be in extreme necessity, and hold themselves in readiness to exercise this right.
FROM what has been said above on the Constitution, and the different senses given to that term, it appears the Letter-Writer is a friend to the Laws and Liberties of his country; and equally so in the unreserved approbation, which in the First Part he has been shown to have given to the national moderation, dignity, and greatness, manifested in the Revolution in 1688; and in censuring the equivocal use of the term to effect a second, different in its nature and consequences. The equivocal use of the word Constitution is of equal danger, as it is perverted to the same purposes; and he treats it in the same manner, both as to its genuine and adulterated sense, which at the proper places I shall show as I go on.
ONE might think the word Constitution
I find the term Constitution, in its true sense, to have been in common use in 1628. "Why do we trouble ourselves," says Sir F. Seymour, in the debates on the Petition of Right,
with disputes about a Constitution and franchises?
The term I suppose to have grown into disuse, and to have been revived in the days of North, who mentions it as a new term,
commonly brought forward with a Republican face.
—Let. p. 46. l. 2.
rather more untractable, and less liable to perversion, than the term Revolution; but by a dextrous treatment it has been moulded down to serve the same purposes. It will be of use, therefore, to commence these observations with a definition of the term Constitution, in its genuine and original sense. Our Laws are divisible into two classes: Those which relate to the subject as such; and those which relate to the Governors as such; or in the exercise of the functions of Government. The whole mass of the latter form the Constitution of Government; the parts of which are found scattered up and down in the Statute and Common Law; and the Constitution is, in this sense, what is so already constituted, and nothing else. But the present Constitution might have been called by the same name when it was future, and the same liberty is now taken. Another Constitution, which some persons are desirous of establishing, is called the Constitution; and neglecting to distinguish which they mean, they attribute to the word used in the second sense, that which is true of the first—the obligation to venerate and support it, &c.
IT is of a Constitution differing from that which is defined by Law, that the Letter-Writer speaks thus:
The Government we know, and the Laws we know, but the Constitution we know not
Let. p. 57. l. 15.
.
This strong disjunction shows him to have meant a system of Government different from what the Laws have here established, and this admits of plain proof. The preceding page is taken up in shewing that it has become a doctrine in some other countries, That nothing is intitled to be called a Constitution, but a system springing out of an act declaratory of abstract principles, as of the Rights of Man
Substance of p. 56 of the Letter.
; whence they tell us that we have
no Constitution
. To this he subjoins, that we
may, without yielding anything, take these Constitution-makers at their word; and at once allow that we have no Constitution in the sense in which
they
understand it.
And continuing to employ the word in the same sense, six lines after follows the passage quoted:
The Government we know—and the Laws we know—
but the Constitution we know not.
There is no doubt that certain general principles may be inferred from the Laws, relating to our Governors as such; but these inductions are not a part of the body of the Law. The object of Civil Law is human acts: it ordains what is right or expedient in act, and forbids the contrary: these are its limits, and it extends no further. Therefore such abstract principles are not the objects or subject-matter of Law. Nor ought a system of such opinions, to be declared by a particular law, to form a foundation for all the rest. And those who would do this, either in the whole or in part, are the Constitution-makers against whom he in many places declares Let us at least extract wisdom from what must long be a source of grief even to us; but when the curtain draws up, and we see a Constitution brought forward upon the stage, dressed with this lofty
thuraus
to give it strut and dignity, depend upon it the piece that is going to be performed is a tragedy.
LET us now examine what the Letter-Writer has said on the existing Constitution, by Law established. In the same paragraph from whence the last passage is cited, he gives his opinion, that
the English Government is real and substantial; we see and feel it; we can take its height and its depth; we know its movements, because they are regulated by established and known Laws. This is the only Constitution ever supposed or named by men of sober minds and sound understanding; that is,—the Constitution of our Government, or the Constitution established by Law
Let. p. 57. l, 24.
.
I have no occasion to show that he holds out this idea of the Constitution as a preservative against Republican principles, or at least those which tend to incline many greatly to increase the weight in the popular scale, and thus endeavours to represent them as visionary and fantastic theories. But this fact which he lays down may be employed to another purpose: it may be applied with equal success against the reveries of unlimited Monarchymen; and we find, in effect, he had before expressly thus applied it. "I always thought," says he,
that Englishmen required plain and defined sentences for the Charter of their Rights and Liberties; that they claimed to have known, written, and express Laws to govern them.
That
the divine indefeasible rights of Kings,
with
other fancies
of former times, were exploded principally, because they were positions that had no warrant from the known express Laws of the Land, but rested on general reasoning, from topics not known to the usage and Laws of the Country
Let. p. 46. l. 23.
IT is in the Common Law and Statutes alone that we are to search for the rules which regulate the actions of our Governors
as such,
or for the Constitution. Protestants search for the principles of their religion only in the letter of the Revelation; and Englishmen for the principles of the Constitution in the letter of the Law. It is not accessible in the original, indeed, to every one, to whom some knowledge of those principles is necessary. Expositors and Commentators are of high utility, but their authority is to be estimated exclusively by the care with which they follow the letter of these originals, and explain with equal accuracy, fullness, and force, what regards the constituent powers of the Constitution. The real Constitution, and the history of its variations, are finely delineated in Blackstone's Commentaries; and although I would not subscribe to everything he lays down, where he comes to treat certain parts of the subject philosophically, yet a diligent study of this work I esteem as the best preservative against the flux and reflux of popular errors, which at different past periods have made the general idea of the Constitution shift like a loose sandbank.
THERE are other schools in which this knowledge is sometimes sought. Debates in Parliament will have their use in giving perfection and ornament to it. But here considerable caution is required: they are to be read as the arguments of Advocates in a court, giving the most specious dress to the side on which they are retained; not as the judgment of the Bench. When the State is divided into Parties, either of them will tell you this is true of their opponents. But there is one caution here particularly necessary: when we are examining the arguments of the Party who
proposed
any law, we ought to inspect very closely whether the principles they lay down do not extend farther than the actual law itself; for to the principle, in that extent, that law has given a tacit negative: it is therefore unconstitutional. And I believe an observance of this caution would have suppressed in embryo many very brilliant remarks on the nature of the Constitution.
THE Codes which contain our civil and religious duties are liable to the same abuses of misinterpretation: the Constitution has its Methodist Preachers. There were
y enthusiasts formerly, who could see nothing in the Laws but what made for the Royal power. There were
Lawyers of this class formerly, and there is a numerous body of ignorant fanatic Preachers now belonging to it, who resolutely overlook all these texts, and can see nothing but what exalts the popular branch of the Government over the other two. There is likewise another set of professors of Constitutional Science, formed upon the model of the Socinians, who now usurp the name of Rational Divines. These men borrow a good deal from the school of the Metaphysical Politicians, whom I shall presently notice. These expositors of the Law and Constitution thus furnished the plan of their relations, the Divines. The professional man of this sect, when he finds anything in his book which will not square with them, cuts the knot by affirming it is not Law; because Law being the perfection of reason, must concur with his reason. And sometimes he goes another way to work; imposing his own sense upon the words of Law; for which purpose he has a private code of verbal criticisms, which the grammarians who have seen it, declare to be so profound as to surpass their comprehension. At some seasons the whole weight of popular favour will be so flung into one scale, as almost to overset the balance of the Constitution; and at other times it shall be cast into the other. The error of the Multitude is always called by them a Constitutional Truth. At such times he will obtain the reputation of a Constitutional Lawyer, who flings his whole weight into the overloaded scale.
LAST, but not for their inferiority in rank to either of the preceding classes, we may place the Metaphysical Politicians. And these are divided into two sects: one, setting out from the doctrine of the good effects of union of power, concenter it absolutely; the other, now, from the abuse of it, disperse it to the utmost, by equalising every man's share. These walk in the
"via regia,"
the "high
priori
road" of the science of politics; and make a short cut to all their conclusions, by the use of certain things called Abstract Principles; and of these they prepare the bread of life for the Constitution. Now an abstract principle is a thing very like a Cassava root; if you grate it, and press the virulent juices out of it, it makes a very nourishing food; but if you use it without that preparation. it is a poison. These philosophers formerly have gone very slightly through this course of manipulation; but now they omit it entirely, and the Abbé Sieyes has condemned it as an
attaint upon principle.
BUT I pass from these men, and the confusion they have introduced into our notions of the Constitution, to describe one dangerous but sp
cious source of error, in arguing on it. When we consider the power of any one of its constituent parts separately, and the reasons urged for it, we may sometimes
, by analogy, that more should be added to it; and
y will, at first view, conclude that this is an argument for so doing. But it will be
sily shewn that this is not conclusive; for by adding
o any one power. we destroy the pre-established balance and proportion of the three: and if the Constitution were good before, if the effect of the change be small, it is almost a movement without a motive; if great, it is an evil; it generates a new Constitution, different from that found before by experience to be good. The identity of mixed Constitutions depends upon the same constituent parts being combined in the same manner and in the same proportion, like that of a medical composit on; for if you vary the proportion of the ingredients of the latter, though you preserve the number, its effect may greatly vary; in one proportion the compound may restore a man to health, in a dangerous illness; in another, put an end to his existence.
IT follows from this, that when any man or set of men are charged with wishing to make a great change in the existing Constitution; if they barely declare themselves friends to a Government by King, Lords, and Commons, they do not thereby disclaim that charge. For this purpose they must make an addition to this declaration, and say, that each ought to possess the same powers they now hold. For a Party who may wish to bring the Government of Great Britain very near to a Democracy, to an Aristocracy, or to pure Despotism, with two almost non-effective pageants of power, to support the names of its other two constituent parts, may with equal truth make the same declaration. Of the equivocation I am describing, it is to be feared there are too many instances. I illustrate this matter farther, by examples taken from our own history.
HENRY the Eighth trampled upon the Lords and Commons; in the reign of Henry the Sixth, during some time before the civil wars, the Nobility tyrannized over the King and the people; and before Charles the First quitted the metropolis, the Commons had effectively reduced the Peers and the King to cyphers; and if any of these three usurpations had been confirmed by the forms of Law, it would have been a Government by King, Lords, and Commons: but it could not take place now without a subversion of the existing Constitution.
THE defence of the Constitution, as it is now fixed by Law and Custom, is and ought to be the common center of union, both to those who consider it as arrived at that degree of practical perfection, that no farther experiments should be tried upon it, and those who, allowing much that is excellent in it, full retain an idea that it might be worth the while to attempt some farther moderate ameliorations of it. I freely declare in favour of the former, and even on speculative principles; but on the points in which these allies differ I urge nothing. In the little I have to
. I hope to be in concurrence with the sentiments of the latter. While the present fermentation in the minds of the populace is kept up by every class of se
tious agit
rs, to attempt any change in the existing proportion of the
ree powers, does not seem mo
e safe than the c
ging of the position of an army wh
n the enemy
approached close up to it, and is about instantly to commence
attack, which almost inevitably must terminate in a total rout. If you should carry your point now, your victory the agitators will represent as theirs, and they will meet with ready belief. They and their Party will grow in courage, in number, in force, and in consequence, most probably too high for you and your former opponents, if united, to make a stand against them; and the Constitution you will have to live under, will at least be much more remote from what you have fixed upon in your minds as a standard, than the present.
WITH two or three miscellaneous observations, I shall close a Tract, that has grown to a much greater length than I expected. I must remark on the Letter-Writer, that Calvin did not concur with Beza on the subject of Church Government by Bishops
It will be seen that this does not invalidate his general statement.
. There is no Divine of the Church of England now, who would speak the language of the former. I have not his works, but I find in the Preface to the Clergyman's
Vade Mecum,
that in his Answer to the artful and elegant work of Cardinal Sadolet against the first Reformers, he certainly does
anathematize all those who do not revere and pay the most profound obedience to that hierarchy in which Bishops retain their eminence; but so as to submit to Christ Jesus, and depend on him as their Head
Second Edit. Pref. p. 36.
.
Now I have never heard even of Archbishop Laud. that he fulminated an anathema against all who did not "most profoundly revere" the Episcopal Church Government in England. But of Beza, the Marquis D'Argens informs us, that at the conferences at Poissi, by his declaration against the Episcopal Government,
he lost the finest opportunity possible of introducing a thorough reformation in the Gallican Church
Jewish Letters. Let. 178.—Translation.
.
If Bayle had known this particular, he would not have been perplexed to assign the reason why those conferences were so unexpectedly broken off. We also find in the History of Geneva, that the citizens founded a College for the education of foreigners resorting thither; and the circumstance immediately following it is, that the Duke of Savoy and Charles the Ninth of France remonstrated strongly with the Republic, that the students on their return excited their subjects to disobedience and sedition
Modern Universal H
v. 32. p. 304. paragraph abridged.
The name of Hugonot, according to De Thou, was not originally that of a sect, but of a political Party, and borrowed from Geneva, which was divided into two classes; the Eignots, or confederates by oath; and the Mamalues, or Egyptian sl
ves
Ibid. p. 26
.
; which seem very well to answer the modern terms of Party in France. What a leaven of Republicanism they there got and diffused in their native conntries, debasing the superior purity of their doctrines, we see in an unmived and unequivocal light in one part of the history of that kingdom. The Edict of Nantz had been passed seven years; Henry the Fourth, their patron, was still on the throne; his administration with respect to them was such, that they wished him immortal. It is the Protestant Duke of Sully that is their accuser. If we may believe that great man,
a scheme had been formed for establishing a kind of a Commonwealth; or at least a body apart from the rest of the kingdom, by an association among the Protestants
Ibid. v.
1. p.
1.
.
He names the men who formed it. The historian continues —
The body of the Protestants did not see the thing in this light, and when they did, they disapproved it.
Sully must have been so willing to be satisfied, that I cannot suppose he was not. We all stop short, by a kind of instinct, in the investigation of facts, the result of which will give us pain. His declaration likewise by no means exculpates those who guided their councils. It was perhaps impolitic, when the storm was weathered, to draw aside the veil attempted to be drawn over the conspiracy. The Hugonots had been formed into something like an
imperium in imperio
for years; and it is not likely that the disciples of Geneva should form a Republic without knowing it. Though I admit, if a man were to set up the frame of a house upon my ground, and upon my threatening a prosecution he were to consent to remove it, and were to tell me, that when he cut out his timbers into proper scantlings, adapted them to one another, framed and pinned them together, he did not know it was a house which he had been framing, and that "he looked upon it in another light," the point seems to me so exceedingly difficult of proof, that I should not contest it, though I knew he had been educated in a carpenter's shop.
IT remains to consider what the Letter-Writer has said on the late Trials of certain persons for Treason. The material part of it is as follows:
They were indeed
acquitted by a Jury,
but they have been since found
guilty by their Country, on the evidence
of the proceedings at the Trial
Let. p. 73. l. 24.
.
This is first brought as a proof, that he does not treat Juries with due reverence. I subscribe without hesitation to their absolute necessity, as I do to our mode of making Laws; but as I do not suppose myself treating the Legislature of the kingdom with contempt, when I find fault with a law enacted by it, which must have been so often debated, and have received three such important sanctions, every Englishman has surely the full right to treat the verdict of a Jury, decided at once, with the same freedom, without an imputation of want of reverence for that excellent institution. The voice of the Law itself is on this side. To guard our liberties, and in tenderness to persons arraigned, no second trial takes place in criminal cases at the suit of the Crown; but it is not to be supposed that Juries are more infallible when sitting on such causes than in civil cases, in which the Law itself supposes that they may give a verdict contrary to evidence, by allowing a new trial in such cases.
THE Jury mentioned before were acknowledged by the Judge to have displayed "the most unwearied attention "and the most diligent investigation." They also brought in their verdict after much private deliberation. But what does this amount to? That they went through all the forms of business with the strictest attention to decorum. The point where he stopped directs the attention decidedly to what he was silent upon. I think to remember having observed this when I first saw the words. It is a "silence that speaks;" and I think on the side of the Letter-Writer. Do not Judges frequently express their satisfaction at a verdict? and did this Judge appear to have been backward in giving approbation where he could do it with propriety? These constructions of silence, when certain decorums impose it, are at least as old as Menander, whom I quote in the margin, and who observes, "they speak
many things
S. Poetae Men. p. 489.
." And if the authority of a Poet will not do, we may bring that of an Historian; that when by the state of political affairs great men are induced to show some things and keep others back, the public attention is strongly called to the latter. Was not the memory of Brutus and Cassius impressed upon every Roman's mind most strongly, because the discretion of one of their descendants concealed their statues on a well-known occasion?
LET the question now be considered in another point of light. We are to observe that the word Evidence bears, in common conversation, two senses; according to the species thereof considered; historical or judicial evidence. The evidence may be enough to make any man believe the existence of a plot, or come up to the point here called historical; but it may fall short of that degree of strength the Law requires to take away the life of an individual, or judicial evidence. And where the evidence is only of the first magnitude, or (as it may do) where it much exceeds the weight required by the first, but still falls short of the standard of the second, the Public MUST condemn, and the Jury MUST acquit; each with the same matter before them. The national transactions with foreign Nations in peace and war, are solely guided by the first species of evidence. Senates proceed in their declarative decisions on the first species of evidence, when they think the State in danger, to give the watch-word to the People: Courts of Justice on the second. If nothing but judicial evidence were historical evidence, history must be a blank, or at least half the instructive, lessons it holds out to mankind must be blotted out: and upon that evidence men must speak, or be reduced to mutes.
JURIES are adjuncts to the Royal Executive Power; and the Letter-Writer is charged with having said that they may be "lopped off" without detriment to the State. But in effect, he nowhere supposes the axe applied to this subsidiary and occasional power at all: and when in other cases he supposes it to be applied, he represents the monarchical trunk as being in consequence "shorn of its honours;" and if he holds the latter may be done without detriment to the State, he is a Republican; if both conjointly, an Anarchist. But I have never heard that the supposed Author of the Letter holds any such political heresies, which I am sure are not to be found there. It is true, however, that when the kingly power was in this country
shorn of its honours,
Juries, in cases then called cases of High Treason, were "lopped off." We are expressly told, that Cromwell and the Parliament set them aside, and erected "High Courts of Justice
Hume, v. 7. p. 208, 209.
." And to supersede them in like manner, very soon after they were introduced, the French Republicans copied this precedent in their Revolutionary Tribunals; and if the same Republican usurpation should again take place in this country, Juries may be once more
lopped off.
THERE is another charge of a similar formation brought against what the Writer has said on the late Verdicts. A great Orator has been made in the public papers to declare, that it is asserted in the Letter, that
the verdict of Juries is not a final decision in trials at Bar.
This I have not seen there; no more did he, if by Bar he means the legal Bar. But there is another and an awful Bar, at which such verdicts have been often set aside, as contrary to evidence; that of impartial posterity; that of history; that even of the men who live at the time when they are given, after the
erment attending such a cause has subsided; for even this last must be granted, unless we suppose truth to be a volatile ingredient like camphor, which being mixed in that compound called a verdict, it shall thus retain, as to sense, the full odour thereof for a given time or number of years; smell faintly for a second term; and be quite flat always afterwards.
YET if we grant this, as highly probable, to those who contend for this philosophical hypothesis, they must, according to their own principles, at the same time admit it to be possible, that it may be sometimes infused therein in a liquid form like aether; and in cases where the ingredient is only so blended in the compound, a man shall appear as the innocent victim of State persecution to-night, and be universally believed an acquitted felon to-morrow; for evaporate this aether will. You may as easily fix "Hermes," which it is known cannot be done without the powder of precipitation. I have said it before, and I repeat it again, Juries are of the most absolute necessity to guard subjects against the oppression of governors: but it does not follow that any dozen of reputable shop-keepers, or farmers, or merchants, or esquires, in his Majesty's dominions, are jointly vested with the sublime gift of infallibility. The sublimest monuments of human wisdom and virtue are dishonoured by being praised for what they are not. When we find them dressed out in such fantastical attributives, we suspect, perhaps, the design of such needless extravagance, but we directly strip off the frippery. And I believe any man of taste would do the same, if a French taylor and a French perruquier had exhausted all the wonders of their art upon the Farnesian Hercules.
To return to the doctrine I am considering; which is, that the verdict, which is decisive in a trial, should decide every man's opinion. Those who hold this doctrine are prepared, I suppose, to defend the legality of the decision on Algernon Sidney, and all the verdicts in the war of legal murders carried on by both the factions in the latter end of the reign of Charles the Second. To me it appears, that during all the time in the last century, in which the Republican Party appeared visibly in existence and in action, until it dwindled into obscurity, the political Trials by Jury form no ornament to the page of our history: a brilliant exception or two may, however, be alledged.
FOR these reasons I think the Letter-Writer guiltless,
in toto,
of all the charges I have seen brought against him. If the Public attributes the work to the true Author, it is every man's duty, who thinks as I do of his past merits and the general importance of his political character, and who has opportunities, to take up his defence.
THIS Tract was sent to the press without the Writer's being able to read the whole together. He had the choice of abiding the censures of all inaccuracies so caused; or to have delayed the publication too long; and he has chosen the former, because on all such occasions, that little sacrifice ought to be made. It ought, also, to be announced; because, in such a circumstance, a Writer is intitled to certain allowances.
THE END.
Lately published by the same Author,
The ALTERATION of the CONSTITUTION of the HOUSE OF COMMONS, and the INEQUALITY of the LAND-TAX, considered conjointly. Price Three Shillings and Sixpence.
A FAST SERMON. Price One Shilling.
ALSO, POLITICAL OBSERVATIONS on the TEST-ACT. Price One Shilling and Sixpence.