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as being formed much from ancient customs, local experiments, and progressive improvements. But they had some excellent things, the features of all times; and their divisions into decennaries, hundreds, and counties, was a plan of police, of prodigious strength; for the purposes both of private security and national defence replete with wisdom ;—and even for their benevolence between fellow-men, worthy of the imitation of every age.
The British or Old Welsh Laws, by Hoel Dha, of a subsequent period, were alluded to in a former essay, partly as a literary cu riosity, and partly because the Council called by that prince, of which the preface gives an account, seems to have been formed on the plan of the ancient Saxons *. The Proæmium mentions a Council assembled, consisting of six of the wise men from each hundred and it has been shewn that these British Laws resem. bled the Saxon.
The Wittena-gemot assembled only on great occasions, and for the purpose of making laws, but at certain times, at first, on the new and full moon, afterwards at Easter and Whitsuntide; and at Easter the Saxons had their Folk-mote, or the assembly of the people, which was a confederation of fellow-citizens, for the pur. poses of fidelity and allegiance to the prince, and for complaints of grievance. This assembled once a-year, on the beginning of May, or on any other emergency. Our Saxon ancestors, also, had their Shire-gemots, that assembled thrice a-year or oftener : -We have nothing equal to these institutions in excellence and regularity in the present times t.
This little tour has been made for the purpose of returning with a better grace to Mr. Paine's definition, which comprehending such only as the American Constitutions, led him on to proclaim aloud, to the astonishment of many, that the English have none. But Mr. Paine's declaration should be exchanged for a modification, thus-the English have a Constitution; the principles of which are not always either readily seen, or generally admitted the pri vileges of which are frequently matter of dispute and doubt:its checks often the cause of jealousies and divisions-partaking the nature rather of irritations, sometimes salutary, and often pernicious, more than of regular scientific movements; and the political liberty of which Constitution, in short, must be nugatory, the representation of the people being evasive, ineffective, and precarious ;-a declaration this, which leaving us under the imputation of great defects, will be considered as humiliating, but which
* Cyfreithjen Hywel Dha, Leges Wallica Hoel-Boni ex vari Codicibus MSS. eruit, &c. Gulielmus Wotton, cum Interpretatione Latina, &c. See more particularly Dr. William Clarke's learned preface to this work, + Spelmanni Glossar, sub loco.
which still leaves room for the counter-delaration,-and for that reason I have run over our Jura Libertalis,-that the English Constitution, after all, possesses much that is good.-Let us return to our defects.
I have said the English Constitution is defective in political liberty.
Then a nation enjoys political liberty when it possesses, by a proper organization of its Constitution, the means of expressing the public sentiment and will, and a controul over its officers or governors by some regular plan of responsibility. "One nation there is," says Montesquieu, speaking of the English, "that has political liberty for the direct object of the Constitution :" hat is its excellence.
If we consider, that representation is the only true measure of political liberty, and acquaint ourselves with its nature and extent in this country, we shall possess the true barometer for ascertaining our quantum of political liberty, and be prepared to understand the import of Montesquieu's philosophical, freezing pause, Ce n'est a moi a examiner, si les Anglois jouissent actuellement de cette liberte * ;-i. e. "It is not my business to examine, whether the English actually enjoy this liberty." Such, however, has been the aim of the author of "Lectures on Montesquieu's Spirit of Laws," who, though admitting that the people of this country enjoy many advantages, as citizens, over other nations, yet proceeds to shew, that even they are defective in political li berty and till this defect is remedied in a country, it would be too extemporaneous an impulse, an extravagant, thoughtless flight, which should hurry us away with Pope,
For forms of government let fools contest,
Monarchies, and aristocracies, in their nature, refer all political power to one or more grandees. Aristotle and Xenophon, in their systems, have no political liberty for the people. Plato, in his Republic, mistook the way §, through conceits about equality in wives, children, servants, cattle, and money. He was for banishing poetry, and all the arts which employ fiction; and he encroached in some other instances on intellectual liberty. Such an equality never ought, never could be obtained. Political liberty is the only equality at which a nation should aim. Constitutions founded on the basis of political liberty would provide for and secure, what none other can, gaudy or sim. ple, the public happiness. A nation may certainly adopt what form of government it best approves; but without political li. berty
*De L'Esprit des Lois. + Περι Νόμος
Kuga Пaid, Lib. I.
berty it has no security for a good administration of government; it is playing at random, a cast of a die, a mere movement of the wheel of fortune, in the event of which public misery has full as great a chance to turn up as public happiness. In our political system, then, call it what we please, here lies our first, our radical defect, it is defective in political liberty, and therefore is not in harmony with the great principles already laid down.
In the Saxon times, there was more of this balance, and therefore, through the Wittena-gemots, but still more their Folk-motes, the different powers of the government had more of their just equilibrium than in any other period of our history. From the time of the conquest there has been less of this balance, and the people's liberties have, in proportion, had less security. William, though bound by an oath, yet how soon did he burst that feeble restraint! How soon his successors, William Rufus, Stephen, Henry I. and Richard! And though John was forced to his recollections, and we got Magna Charta; yet did not both he and his successor, Henry III., easily violate charters, and can cel all obligations? When there was so little political liberty, whence was there to be expected security? In all contentions, from those times to the present, when we complain that our liberties are gone, this defect, if we examine the matter to the bottom, will be found the real cause: a defect altogether irremediable, Í fear, to any great extent, but by a more proper representation of the people than we have ever yet had.
Johnson (I allude to his Dictionary) is often as futile in his de finitions as he is erroneous in his etymologies; and here his definition whether bungling or artful let others determine, leaves no provision for a grain of political liberty. Princes circumstanced as those just mentioned, will be always ready with their "lingua juravi mentem injuratam tenao;" and the most mortifying part of the story is, that the citizens themselves are usually made the instruments of their own oppressions: for as Machiavel well observes," A town that has been anciently free, cannot be more easily kept in subjection than by employing its own citizens *.” With the blessed name of liberty" in their mouths, they lose sight of the reality. But let us proceed to another article.
Some of the Eastern nations addressed their monarchs with the titles of divinity, and approached them with adoration; and Robert Barclay, a person very much attached to the English limited monarchy, as was also William Penn,— —as abundantly appears from the writings of both,-in the name of a religious, Voltaire calls them a philosophic sect, observes, as to "that title of majesty, usually as cribed
The Prince, ch. v.
cribed to princes, we do not find it given to any such in the Holy Scriptures, but that it is specially and peculiarly given to God." He adds, "therefore, in all the old compellations used to princes in the Old Testament, it is not to be found, nor yet in the New*." He might have said, also, in the most enlightened nations of an tiquity, the Greeks and Romans. Among the latter, their princes and magistrates were content in the best days of their empire with titles appropriate to their offices; in a degenerate period, they be came gods; in the same manner as in the rise, and amidst the glo ries of their empire, their coins were of the most exquisite work. manship, but became base and badly executed in its decline and
The title of Sacred Majesty which the Quakers used to object to so much, might be suffered to pass, in these enlightened times, as a mere title of courtesy, and unconnected with any constitutional claim, had it not been much abused, and not merely to the purposes of superstition, but of arbitrary power,-I mean by such writers as Filmer and others, who assert for the Kings of England a divine right; and considering them as the Lord's anointed, and the vice-gerents of heaven, claimed for them unlawful privileges, pernicious exemptions, and unconstitutional autho rities. Who can help smiling to see such a man as Sir Robert Cotton (a great advocate for the Commons in opposition to the unconstitutional claims of the Lords) when claiming precedency of the Kings of England over those of Spain, write such a passage as this: The Kings of England are anointed as the Kings of France, who only have their pretensions over their kingdoms derived from miracles, in the cure of the regius morbus, which they can effect only, and that of antiquity; for Edward the Confessor healed many +." Who without a smile can see such a man as Lord Bacon placing James the First only next to Jesus Christ, whom he would have spoken of as a deity, and conceiv ing, or perhaps rather affecting to conceive, something occult in magic and witchcraft, because his Majesty had written a Treatise on Witchcraft?—The unconstitutional doctrine of divine right was the talisman which was to effect the dormant state of passive obedience; and who knows not what an abuse of our Constitution that introduced, by placing the King above Law, and what a struggle it occasioned to break the delusion? But all this by the bye.
In the kingly office, as exercised in the English Constitution, are still united, directly or indirectly, the whole executive government,
Barclay's Apology for the Quakers,
+ A Brief Extract of the Question of Precedency between England and Spain, in Cottoni Posthuma.
Lord Bacon's Advancement of Learning, in the Introduction; and in the course of his work, he speaks of witchcraft.
ment, and one-third of the Legislature. This was shewn in our last essay; and to some this appears its prime excellence; to others it may seem a radical defect, or perhaps rather its excess. How is this, they may ask, to be reconciled to that admired maxim of our civil policy, that the executive and legislative should be distinct?
Politicians have perceived the difficulty; and they have provid ed, as they suppose, against it, by saying that the important nega tive, the essential to a third estate, is not enforced. True; it would be dangerous to enforce it: might not this circumstance create a suspicion, in some minds, that it ought not to exist?
But the supreme magistrate knows he has a constitutional claim to this negative; and while perceiving the expediency, even the necessity, of conceding a claim, given him by the Constitution, may he not be tempted to use a power which the Constitution gives him not, that of controlling or of influencing the other estates of the legislature? Might he not, even with some plausibility, plead conscience for using this influence? Some, perhaps, tray be pre pared, though unwillingly, to think, that in this power thus exercised, they have a key to the solution of that well-known maxim, "that corruption is essential to the English Constitution." And those who know the nature and extent of the executive power, need not be told, how immense its resources are for recovering by influence what it relinquishes from prudence.
We have been witnesses in our own time of two remarkable in, stances, in which the union of the executive and legislative power has been felt as a difficulty, almost insuperable. I allude to the suspension, through the unfortunate malady of the King, of the executive power, as it was said, but in fact, was it not a suspension of the whole legislative power too? Could a single law be made? The government, as one forcibly expresses it, was paralyzed: what contradictory opinions were advanced! what vague uncertain conclusions drawn! and after all, what unconstitutional means devised to keep the machine of the Constitution in any sort of motion?
A man may perceive, or think he perceives, something incon gruous in this system without any thing resembling dislike to the mixture of the three powers, even with a hearty approbation of the kingly office. But what he thinks not necessary for any just purpose of favour, aggrandizement, or self-protection, may appear an excess of power, and therefore a defect in a Constitution. I know what is accustomed to be said on this subject. I know how dextrous some are in managing the balance. Those who object to the union of the executive and legislative power in the person of the Supreme Magistrate, would have similar, if not stronger, ob jections to the admission of his Ministers into Parliament. They