ESSAY III.

DEFECTS IN THE ENGLISH CONSTITUTION.

HAVING proposed to treat, in the following letter, on the Defects of the English Constitution, I must request the reader to keep in view the definitions contained in the last; for to those definitions I shall occasionally revert. Let us then first consider the

defects of the definitions.

The reader has seen, 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 the principles of such writers serve the purpose of definitions, where their definitions are not sufficiently comprehensive in principles. Let us then attend to the definitions given by the more modern writers, to whom an allusion was made in our last.

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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, already is made; and to talk of making a thing which is already, is going beyond the sailor's definition of the word disembogue: "I disembogue you, you disembogue me; now do you understand me?" A man may make that chair to be a stool, by turning it into a stool; but if he makes that chair to be a chair, he must unmake it, and make it over again. When Johnson 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 correct, as referrible to the American constitutions; but is too permanent and unmanageable for so complicate, so variable a machine, I must be permitted to call it so, as

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the English constitution. Mr. Robinson's definition is correct, as far as civil constitution goes; so is Major Cartwright's; but defective, in my opinion, in not taking in ecclesiastical; for the British constitution is a constitution of state and church.

The following statement will show the ground of this opinion. When it was enacted, that the church of England should be no longer under the Pope, Lord Cromwell was made King's Vicegerent for ecclesiastical jurisdiction, and he accordingly sent out injunctions to the clergy, in 1533; which injunctions, though at first opposed, were afterwards accepted, by the clergy in convocation; and at all events, Heury contrived, previously, to have an act of parliament, and upon this authority he acted, in claiming the supremacy of the church of England; 3 and though with respect to the canons put forth by James the First, but which were never sanctioned by parliament, it has been doubted whether they have a binding quality on the nation at large, they are generally understood to bind the clergy; for of the legality of the King's title, as. supreme head of the established church, there can exist no doubt, I therefore think it correct to speak of this constitution, as a constitution of church and state; and 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 centre, would be correct in comprehending the civil and ecclesiastical union, and, in elegant words, might be like. Judge Blackstone's admired similitude of a pyramid; it would be, notwithstanding, erroneous, for it would suppose the church to be essential and fundamental in the constitution; which I do not admit.

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When Lord Fortescue and other lawyers tell us, that our "body of laws" is our constitution; and others, that our constitution 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 unfavorable 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 a beautiful building, the rottenness, which generates ugliness and maggots in a beautiful blooming peach.

'Political Catechism.

2 Reform, Mock Reform, and Constitutional Reform.

3 Burnet's Hist. Reformation, Part I.

Essay on Establishments.

I call it Judge Blackstone's, because it is generally considered his, though I have met with it in a writer, I forget who, much antecedent to him. Mr. Rotheram's simile, if I mistake not, is in Nathaniel Bacon. 6 Preface to Records,

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, the similitude adopted by some politicians, 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.

Were I disposed to attempt another definition of the word, in reference to our constitution, I perhaps might define it, 'The settling of original rules, and parliamentary laws consistent with those rules, for the government of state and church;' but, 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 all churches in the nation, in whatever form existing, and the introduction of laws, founded on constitutional 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) is 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.

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Though the following principles are not all, totidem verbis, exhibited in any written code, like those in the American, Polish, and some of the French constitutions, yet they pervade our political theories, and, being seised 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 while 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,'

1 Guliel. I. Conquestor dicitur, quia Angliam conquisivit, i. e. acquisivit, non quod subegit.-Vide Spelmanni Glossar. sub voce Conquestus.-See

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 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, Angliæ jura in omni casu libertati dant favorem,-the laws of England do in every case favor 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 nothing now remaining like a body of their laws, but in our public libraries are the laws and constitutions of our Saxon ancestors,3 and we now have them in print. Our British ancestors had

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.

2 Hywel Dda's (Leges Wallica) are of a subsequent period.

3 In the Cottonian collection, in the British Museum; in Bishop Parker's, Bene't 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 work contains all the Anglo-Saxon, Gallo-Norman, and Latin laws, (though with some spurious ones,) which now remain, from Ethelbert, who began his reign in 561, to the Magna Charta of Henry III., who began his reign in 1216.

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not what the moderns understand by charters. They were intro→ duced, according to Ingulphus,' by the Normans; according to others,2 by the Anglo-Saxons: and no exemplar appears in our ancient laws which would satisfy such persons as so rigidly demand a written constitution. The Book of Constitutions, which there occurs in our Anglo-Saxon laws, 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 of great authority.-The word occurs in Hywel Dda's laws, though not, I conceive, in the modern sense. This, however, is clear, 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.

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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, (though after the conquest there certainly was) and public grievances as well as private oppressions 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,) not being so prodigal of blood: they were merciful to debtors; hus

1 Ingulph. Hist. Abb. Croyland, p. 70.

2 Dr. Hickes's Dissert. Epistolaris, and Mr. Ruddiman's Introduction to Mr. James Anderson's Diplomata Scotiæ, ch. 5.

3 Liber Constitutionum. Wilkins: Leges Anglo-Sax. p. 147.

+ Dom, or Doom, or Doma-book, from the Anglo-Sax. 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 hactenus innotuit, vix dicere audeo."-Leg. Anglo-Sax. Wilkins, p. 48.

5 Lib. I. Præfat. prim. Dr. Wotton's translation of the words a wnaeth, is, fecit, sancivit, constituit, he adds, has leges observandas. The constitutiones there mean laws.

6 Compare together Chancellor Reynolds on Convocations, Nathaniel Bacon's Historical View of the English Government, and Sir Robert Cotton's Posthuma, p. 212.

7 Ordeal was introduced by the clergy. Torture, though it was practised, has no foundation in the Saxon law.