Politicians have perceived the difficulty; and they have provided, as they suppose, against it, by saying that the important negative, the essential to a third estate, is seldom 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 does not the supreme magistrate know 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? May he not, even with some plausibility, plead conscience for using this influence? Some perhaps may be prepared, 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 instances, 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 paralysed 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 incongruous 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 favor, aggrandisement, 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, objections to the admission of his ministers into parliament. They are part of the executive power. They are the channels through which corruption must flow, if it has a tendency to flow, from the fons potestatis, the supreme magistrate : they may be responsible, but with their influence responsibility

will be but a name; it comports not with the principle openly avowed in Magna Charta, which provides, that certain officers should hold no pleas of the crown;-evidently, because they are supposed to be necessarily under influence.

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The supreme magistracy of the Saxons, like that of the ancient Germans, rested ultimately on elective principles, though suffered often to be hereditary in practice. Thus it continued till the Conquest. Without dwelling on any particular period, suffice it to say, that the supreme magistracy in this country is now heredi tary in a particular family, but still subject to stipulations, and conducted on elective principles. The old doctrine of divine indefeasible right is gone by, to the bats and moles; and an hereditary government, thus circumstanced, is understood to be the strength and stay of the English government.

But it has been doubted by some, whether what may be the strength and stay of the supreme magistracy, may be required in any other part of the state, either for the purpose of office or dignity, or for the interest and stay of particular families. Sufficient provision seems to be made for all these-in office itself,-in the means of distinction and favor, always in the hands of a vast executive power,-in the power of amassing property by men in offices, and in the influence which high office always affords for promoting the interests of particular families throughout the country. Great evils may perhaps be conceived by some in this hereditary part of our system. It is said, however, by others, amidst some acknowledged evils, to be the Corinthian capital of our political system; and, admired as this provision seems to be by the practice of all Europe, I shall, with due submission and respect, pass it; just observing, that among our Saxon ancestors, the ealdorman and earl, that is, the first officers in the kingdom, were liable to lose their dignity, both civil and military, and a ceorl might arrive at it. The greater kings or thanes, indeed, might be born so, and the title was attached to landed property: (there were greater and lesser thanes) but the rank of thane was not exclusive: the most humble person might attain it, and the highest dignitary might lose it. The adelings, or æthelings, were nobles of royal race, but even these, so high in rank, were liable to be set aside.

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It has been already observed, in reference to some definitions of the English constitution, that the church also is a part. The church is interwoven with it in all our Saxon laws; the councils

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Principes ex nobilitate sumunt. Tacitus de Mor. Germ. The word Sumo occurs in Tacitus in the sense of to choose.

2 See Spelman. Glossar. sub voce Adelingus. VOL. XII.

Pam.

NO. XXIV.

2 D

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of the church and the sovereign's power go hand in hand; and, as Sir Robert Cotton has observed, "there is a successive record of councils, or convocations, less interrupted than of parliaments;" and its civil rights, though not its doctrines, were provided for by Magna Charta.

The same theory also occurs in Hywel Dda's laws; the king, and laics, and scholastics, who, as appears from another place, were clergy, met in one place to frame laws or constitutions; the latter, the scholastics, for the express purpose, "that nothing should be established that was contrary to the Sacred Scriptures.' The same theory also occurs in the "Lawes and Actes of Parliament maid by King James I. and his Successours Kinges of Scotland" according to which, not only were the prelates to appear personally in parliament, but the "aulde privileges and freedome of halie kirk was preserved, and the civil power and halie kirk united anent (against) hereticques, and to support and help halie kirk." 5

3

At the Reformation, through our separation from the church of Rome, the union of church and state became more close: under the Roman pontiff, as Nathaniel Bacon or Selden expresses it, "the foundation was neither on the rock nor on good ground, but by a gin screwed to the Roman Consistory." By our separation from the Roman church, this gin was actually screwed to the state. The king became, in regard to the church, the seigneur souverain; and if we consider the origin and progress of our national church, it will be found to rest partly on the authority of princes, and partly on our parliaments; and that the whole constitution of the church may now, in fact, be considered as so many acts of parliaments, or rather, perbaps, as one great act of parlia

ment.

There are those who consider this union of church and state as a most excellent part of our constitution. Others consider it as one of our greatest defects. You cannot form this union, say they, without disuniting all parties: you cannot form it, without something of a spirit of persecution: and the history of all Nonconformists, whether Presbyterians, Independents, Baptists, Quakers, Methodists, or Jews, they say, affords proof of it. It

See an Answer to certain Arguments, raised from supposed antiquity, and urged by some Members of the Lower House of Parliament, to prove that Ecclesiastical Laws ought to be enacted by temporal men. Posthuma.

2 Leges Wallicæ, p. 7.

+ First parliament, p. 1.

3 Third parliament, p. 52.

5 Second parliament, p. 28.

Cottoni

6 Hist. and Political Discourse of the Laws and Government of England, part I. ch. xv.

does not, say they, depend on the present clergy; they may be able, generous, mild, and enlightened men-but in the constitution-and they trace all the evils of test-laws, exclusive privileges, and such-like dividing matters, to this system.

But, though this is certainly a part of our constitution, it may at least be doubted whether it is the best part of it; nor does it seem to be an essential in it: if the church is a fundamental part of our constitution, we had no right to disunite it from Rome: for the union with Rome made part of our constitution before; and a system of exclusive privileges cannot be made to harmonise with the amiable spirit of our civil constitution, with any thing great in Magna Charta, or that is free, and generous, and manly, in the enlightened mind of a true Englishman.

France, amidst the many bad lessons she had taught Europe, had taught them one that was wise,-how to unite an established church with a complete (not toleration-in her concordat she reprobated the word) liberty, at least with an admission of all the citizens to the enjoyment of the common rights of citizens, yet with all due regard to the true interest of an established church. France gives us still the same lesson.

دو

Thus have I, amidst great admiration of what is excellent in our constitution, (and there is certainly much excellence in our fundamentals and common law; our parliaments and our juries ought to be most excellent) pointed out, I hope, with all due humility, what appear to me some of its defects. I have not gone half SO far on some points as Andrew Horne, the author of the " Mirrour of Justices,' mentioned before. But Horne has not entered on the topics that are the principal subject of this essay. In his chapter" De Abusion," he enumerates one hundred and fitty-five abuses of the common law, and subjoins "et autres abusions," &c. His next chapter invades even our GREAT CHARTER."Les Défautes de la Grand Charter;" to which he devotes eight or nine pages. These defaults relate to what more particularly concerned those times. But two defects in it (if we are to consider that as a constitution) I shall beg leave to mention, as unnoticed by him. It makes no provision for political liberty, in the sense laid down in this essay, nor for councils (now parliaments), though it was given in one.

In what has been here delivered, I have, on some points, spoken rather covertly than openly; and indeed of the evils themselves, prominent enough as effects, the causes much retire as we see the tops of a building while the foundation is out of sight, or the leaves of a plant while the seed and the sap lie concealed. Still though of the evils of life, no less than of its blessings, the sources are often secret, it may be proper and useful to be aware of them,

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and whatever knowledge we attain, may be made a part of our practical philosophy on the one hand, men may be guarded against misdirected fruitless inquiries, and violent conclusions, nugatory experiments, and misplaced expectations, wrong conclusions, and too serious disappointments; and on the other, (for the public good should be the rule of all governments, and the desire of all good citizens) they may be led to keep their better feelings alive, to consider their benevolent affections not merely as a private stock, to be drawn upon only by their families and friends, but as a sort of public fund; to consider that no man is so private as not to have his post of duty-so independent as to be beneath it, so great as to be above it, to know the weakness of our government as well as its strength.

In the above sketch, I have but glanced at many defects-our representation, which has been called misrepresentation-our modes of popular election, called by some unpopular; the people having so little share in them, in some cases none at all-rotten boroughs (as they are called), lords of boroughs, and the like. These matters are alluded to merely, as observed elsewhere, in a general way partly, because some are to be considered not as defects in our theory, but as evils produced by our practice; evils, indeed, too glaring not to be seen, too serious not to be felt; and they are of such a nature, and so extensive in their influence, that every one who thinks properly must wish to see remedied; but many of them do not properly belong to the constitution of England: there is a more pervading spirit, to which, if those evils were not originally created by it, they may be made subservient; and that; it is to be feared, does belong to our system. That pervading spirit is called influence; which would remain, some think, to a certain extent, even if some of the evils to be so lamented were removed; and readers may easily see, from what has already been said on the structure of our government, how influence may arise though I am aware that some think, if our representation was correct, there need be no corruption, and that there would be no improper influence at all.

As to our militia-here, too, the defect is rather in our administration, than our constitution; for it is certain, that it is agreeable to our ancient laws, which have never been repealed, that gentlemen, yeomen, and serving-men," should be exercised in the

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It is most seriously observed by Milton,-" that if it be a high point of wisdom in every private man, much more is it in a nation, to know itself; rather than puffed up with vulgar flatteries and encomiums, for want of self-knowledge, to enterprise rashly, and come off miserably in great undertakings." Hist. of Britain, 3d book.

2 Hints to Political Reformers.