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manded by the friends of the wife. Still, a woman would feel it as a hardship to be obliged to request or stipulate for a provision which her mothers had enjoyed for so many ages as matter of right; and there can be no doubt that the friendless or portionless female would often be induced to become the wife even of a landholder, without any legal protection against a destitute widowhood. But what security can the possessor of personal property offer in lieu of dower? A sum of money vested in the funds and assigned to the trustees, is the only one to be depended on; but every one is aware of the extreme inconvenience to a monied man, especially one engaged in commerce, of thus locking up from present use any considerable part of his own capital, or often even of that which his wife may bring as her portion. It may further be remarked, that the assignment of a certain proportion of what he leaves at his death, is a provision much better adapted to the situation of the partner of a mercantile man, subject to great fluctuations of fortune, than the settlement of any specific sum. Under such circumstances, a jointure cannot well be made; a woman is naturally averse to require the security of a bond for dower from him to whose care she surrenders her person and her happiness, and many a man is but too much inclined to look upon the demand of such security as a want of proper confidence and esteem. Here the old law stepped in between, and while it prevented the necessity of an improvident grant on one side, or an improvident trust on the other, it cut short the disagreeable intercourse of bargaining between man and wife, and asserted the dignity of the latter, by securing her eventual independency: but its beneficent provisions are now abolished, and where the circumstances of the parties have forbidden a particular settlement, no power whatever exists able to redress the injustice of a brutal or faithless husband, who should think fit to bequeath away every shilling of his fortune from the partner of his life, to whom he has solemnly addressed the now nugatory declaration, "With all my worldly goods I thee endow." That instances of such extreme cruelty are common, may, it is hoped, be denied, but that even they have occurred, and that lower degrees of the same hardship are frequent, is a fact which could readily be proved; and the bare knowledge that such things might be, ought to be sufficient to alarm all who take an interest in the credit of their country; for what could be concluded by the philosophical historian of any foreign land, from this abolition, by modern statutes, of the ancient privileges of the female sex, but that the English nation is rapidly declining in social refinement and in legislative justice?
ART. V.-Defects in the English Constitution.
As it is proposed to treat a little in the following essay on the Defects of the English Constitution, it is proper to keep in view the definitions contained in our last; for to those definitions we must occasionally revert. Let us then first consider the defects of the definitions.
The reader must have observed that ancient writers, and even some of the best political writers of our own country, are defective here, owing often to imperfect and inadequate ideas of the true basis of all political authority. He must be, therefore, content to let their principles serve the purpose of definitions, where their definitions are not sufficiently comprehensive in principles. Let us then attend to the definitions given by more modern writers.
When Dr. Johnson says "to constitute is to give formal existence, to make any thing what it is," he is guilty of a solecism, indeed of an Irishism :---what is, is already made; and to talk of making a thing which already is, is going beyond the sailor's definition of the word disembogue. When he says, further,
a Constitution is an established form of government, a system of laws and customs,” he misleads us, and by throwing us too soon on government, diverts us from fundamentals, which give government all their authority, and which are, or ought to be, the very soul of Constitutions. Mr. Paine's definition, that a Constitution + is a thing antecedent to government, the political Bible, is cor·rect, as referrable to the American Constitutions; but is too permanent and unmanageable for so complicate, so variable a ma chine, I must be permitted to call it so, as the English Constitution. Mr. Robinson's definition ‡ is correct, so far as Civil Constitution goes; it is defective in not taking in Ecclesiastical; for the British Constitution is a Constitution of State and Church. A definition formed on Mr. Rotheram's § idea of a strong arch of government rising from different foundations, but bending towards each other as they rise, and meeting in a center, would be correct in comprehending the civil and ecclesiastical union, and, in ele. gant words, might be like Judge Blackstone's admired similitude of a pyramíd; it would be notwithstanding erroneous, for it would suppose the Church to be essential and fundamental in the Constitution.
When Lord Fortescue and other lawyers tell us, that our "body of laws” is our Constitution; and others, that our Con
* See his Dictionary.
+ Rights of Man.
Essay on Establishments,
stitution is in our Statute-book, they tell us some truth; but let us count their words, and not be too hasty in conceding; for statutes do really exist which are unfavourable to the rights of Britons, and contrary to the spirit of the English Constitution; and lawyers have been too busy as legislators: statutes these, which are the dirty patches on a clean surtout, the rubbish about beautiful building, the rottenness which generates ugliness and maggots in a beautiful blooming peach.
Blackstone's pyramid (which may serve the purpose of a definition) rising from a broad foundation and diminishing to a point as it rises, will apply to the Constitutions of the American States, or to any other where there resides a mixture of the three powers, with as much force as to the English. The equilateral triangle, with a crown at top, a similitude adopted by some, is applicable enough to a king and three estates, but does not seem to accord with the present, the real state of the English Constitution.
As I presume not to offer a new model of a Constitution while I shall attempt to point out, though I hope with due respect, some defects in the present, so I attempt not a new definition, though I think all the above incomplete. I shall only say, that no definition which did not comprehend principles for present rule and future direction, which did not provide for the distinct offices of the three estates, which did not make room for the church, and for laws founded on constitutional and fundamental maxims, which did not, in short, in some measure provide for those varieties which arise from change of circumstances and the alterations of time,---that no definition but such an one would be complete. Some indeed suppose, among whom, if I mistake not, was the late Mr. Charles Fox, that a certain instability or fleetingness (though I do not use their word) was an excellency in the English Constitution; and such will rest satisfied with something short of a perfect definition. But of definitions enough: let us return to the Constitution.
Though the following principles are not all exhibited in any written code, like the American, Polish, and some of the French Constitutions, yet they pervade our political theories, and, being seized as bearing points in our best constitutional writers, I consider them as essential to English liberties. I am not speaking of their defects, but let us take them along with us before we proceed.
All free States make their own laws ;---all that are deemed such, admit or suppose this fundamental principle ;---in all the different changes of the English Government, the people, or some persons in their name, have asserted this fundamental right.---Even William the Norman is said to have been called the Conqueror improperly he was called Conquestor, say some,---quod Angliam
conquisivit*, because he obtained or acquired England,---under a pledge to rule by the laws of the land. That we have a right to liberty is the substance of the golden clause + in Magna Charta; by that maxim may be sanctioned the delegations of power from the people, the best and wisest provision in our laws; from that may be deduced freedom of thought, freedom of speech, and a free press; from the same principle may be deduced the Habeas Corpus Act itself, no less than our Parliaments and Trials by Juries,--however they at first originated,---the inheritance now of every Briton, and considered now as the very essence of the English Constitution:-in short, though forms have often overshadowed principles, and some bad laws do certainly exist,---yet the three great blessings, personal security, personal liberty, and the quiet possession of personal property, may be asserted by every Briton from Magna Charta, from our fundamental laws,---according to which it has been said, Anglia jura in omni casu libertati dant favorem,---the laws of England do in every case favour liberty; and though Magna Charta itself is not without its defects, though it relates only to the Free Tenants, and there were at the time numerous slaves, yet subsequent laws have extended these rights to all Englishmen. The English law does not know slaves. By the English law a slave, as soon as he puts his foot on English ground, is free; and any law or action of individuals that should violate those principles would be deemed unconstitutional: such may be called our fundamentals, and such are not to be ascribed to our defects, but to our excellencies.
The ancient Britons had Public Councils, though we have no. thing now remaining like a body of their laws, but in our public libraries are the Laws and Constitutions of our Saxon ancestors ‡,
VOL. II. NO. III.
* Guliel. I. Conquestor dicitur, quia Angliam Conquisivit, i. e. acquisivit, non quod subegit.-Vide Spelmanni Glossar. sub voce, Conquestus. -See further sub voce, Parliamentum.-Selden's opinion of this Conquest, or Acquisition, may be seen at large in Nathaniel Bacon's Historical View of the English Government. Bacon says, that he remembers judges on the bench interrupting people, who have called William, the Conqueror.
+ Ch. 29. No freeman shall be taken or imprisoned, or disseised of his freehold, &c. but by lawful judgment of his peers, or by the law of the land, &c.
In the Cottonian Collection, in the British Museum; in Bishop Parker's, Bennett's College, Cambridge; and in the Bodleian, Oxford, These laws, the Saxon, were first printed by Lambard, under the title of Archaionomia, published in London in 1568. Wheler published an improved and enlarged edition of them at Cambridge in 1644, and Spelman his British Councils, in 1639. But even Wheler, having many faults as well as defects, Dr. David Wilkins, at the King's command, published an edition in folio, still further improved and enlarged, in 1721. This volume contains all the Anglo-Saxon, Gallo-Norman, and Latin laws, which now remain from Ethelbert, who be
and we now have them in print. No exemplar appears in those laws which would satisfy such persons as so rigidly demand a written Constitution. The Book of Constitutions which there oc. curs is a sort of concise book of Homilies; and what is the Dom or Doma-bek + alluded to there, it is not easy to ascertain; though it was certainly of great authority. This, however, is certain, that the laws were made in common council,---tam cleri, quam populi; in magna, servorum Dei frequentia, &c.; i. e. "both of clergy and people, in a great crowding, of the servants of God;" --for thus the proceedings in the Wittena-gemot, the council of the wise-men, or, as it is sometimes called, the Mickel-gemot, the council of the many, are uniformly described.
In this assembly, public and general matters were transacted, Rege, Baronibus, et Populo,---" by the King, the Barons, and People ;"---laws were established; leagues were formed with other nations; war and peace adjusted; and matters relating to the church arranged and established. For in the Saxon times it does not appear that there was any difference between a Synod ‡ and a Wittena-gemot; and public grievances as well as private oppres'sions found a remedy. With an allowance for the superstitions of that age, the laws breathed a tone of justice and goodness worthy the attention of more enlightened periods § (vinculis coercere rarum est), were not prodigal of blood; and were merciful to debtors: husbandry found strong protection; and the lands were held by easy tenures for by a law of the Confessor's, no one holding by socage tenures could be troubled, except for his rent, nor be turned out of his farm by his lord, but for failure of doing service.
The Saxon laws, it is true, partook of mixtures and varieties ||,
gan his reign in 561, the first Christian lawyer that we know of in England, to the Magna Charta of Henry III., who began his reign in 1216.
* Liber Constitutionum. Wilkins Leges Anglosax. p. 147.
+ Dom, or Doom, or Doma-book, from the Anglosax. Dom and Bek, Liber Judicialis, and hence domesdæg, the Day of Judgment, and William the Norman's Domesday-book, or Census-book of all England, the fine original MS. of which is in the Exchequer. Bishop Wilkins observes of the Saxon, Dombec, in the Saxon Laws; Dombec, Liber Judicialis, corpus forsitan est Legum Congestum a Regibus Anglosax., qui ante Edwardum venerunt. An autem, alius quidam Liber fuerit, qui nulli hactinus innotuit, vix dicere audeo.-Leg. Anglosax. Wilkins, p. 48.
See Chancellor Reynolds on Convocations, and Nathaniel Bacon's Historical View of the English Government.
Ordeal was introduced by the clergy. tised, has no foundation in the Saxon Law.
Torture, though it was prac
This, however, is said with some submission to what Bishop Nicholson says, in his Letter to Dr. Nichols, and with perfect conviction of the truth of what he says, on the meaning of Danélaga, and that the Danish Laws were not left as an intermixture in the Saxon.-Vid. Præf. Episcopi Deo-. rensis præmis, ad Leges Anglosax. per Wilkins, p. 15, 16.