In fine, a very remarkable circumstance in the English government (and which alone evinces something peculiar and excellent in its nature) is, that spirit of extreme mild. ness with which justice, in criminal cases, is administered in England: a point with regard to which England differs from all other countries in the world.

When we consider the punishments in use in the other states of Europe, we wonder how men can be brought to treat their fellow-creatures with so much cruelty: and the bare consideration of those punishments would sufficiently convince us (if we did not know the fact from other circumstances) that the men in those states, who frame the laws, and preside over their execution, have little apprehension, that either they or their friends will ever fall victims to those laws which they thus rashly establish.

In the Roman republic, circumstances of the same nature with those just mentioned were also productive of the greatest defects in the kind of criminal justice which took place in it. That class of citizens, who were at the head of the republic, and who knew how mutually to exempt each other from the operation of any too severe laws or practice, not only allowed themselves great liber. ties, as we have seen, in disposing of the lives of the inferior citizens, but had also introduced, into the exercise

be found to justify. They had done nothing but follow a practice, of which they found several precedents, established in their offices: and their case, if I am well informed, was such, that most individuals, under similar circumstances, would have thought themselves authorized to have acted as they had done.

The second case I propose to relate, affords a singular instance of the confidence with which all subjects in England claim what they think their just rights, and of the certainty with which the remedies of the law are in all cases open to them. The fact I mean, is the arrest executed in the reign of queen Anne, in the year 1708, on the person of the Russian ambassador, by taking him out of his coach for the sum of fifty pounds.-And the consequences that followed this fact are still more remarkable: The czar highly resented the affront, and demanded that the sheriff of Middlesex, and all others concerned in the arrest, should be punished with instant death. But the queen (to the amazement of that despotic court, says judge Blackstone, from whom I borrow this fact) directed the secretary of state to inform him, that she could inflict no punishment upon any, the meanest of her subjects, unless warranted by the law of the land. An act was afterward passed, to free from arrests the persons of foreign ministers, and such of their servants as they have delivered a list of to the secretary of state. A copy of this act, elegantly engrossed and illuminated, continues judge Blackstone, was sent to Moscow, and an ambassador extraordinary commissioned to deliver it,

of the illegal powers they assumed to themselves in that respect, a great degree of cruelty.

Nor were things more happily conducted in the Grecian republics. From their democratical nature, and the frequent revolutions to which they were subject, we naturally expect to find that authority used with mildness which those who enjoyed it must have known to have been precarious; yet such were the effects of the violence attending those very revolutions, that a spirit, both of great irregularity and cruelty, had taken place among the Greeks, in the exercise of the power of inflicting punishments. The very harsh laws of Draco are well known, of which it was said that they were not written with ink, but with blood. The severe laws of the Twelve Tables among the Romans were in great part brought over from Greece: and it was an opinion commonly received in Rome, that the cruelties practised by the magistrates on the citizens were only imitations of the examples which the Greeks had given them.+

In fine, the use of torture, that method of administering justice, in which folly may be said to be added to cruelty, had been adopted by the Greeks in consequence of the same causes which had concurred to produce the irregularity of their criminal justice. And the same practice continues, in these days, to prevail on the continent of Europe, in consequence of that general arrangement of things which creates there such a carelessness about remedying the abuses of public authority.

But the nature of that same government which has procured to the people of England all the advantages we have before described, has, with still more reason, freed them from the most oppressive abuses which prevail in other countries.

The common manner in which the senate ordered citizens to be put to death was, by throwing them headlong from the top of the Tarpeian rock. The consuls, or other particular magistrates, sometimes caused citizens to expire upon a cross; or, which was a much more. common case, ordered them to be beaten to death, with their heads. fastened between the branches of a fork; which they called cervicem furce inserere.

+ Cæsar expressly reproaches the Greeks with this fact in his speech in favour of the accomplices of Catiline, which Sallust has transmitted to us Eodem illo tempore, Græciæ morem imitati (majores nostri) verberibus animadvertebant in civeis; de condemnatis ultimum supplicium sumptum.'

That wantonness in disposing of the dearest rights of mankind, those insults upon human nature, of which the frame of the governments established in other states unavoidably becomes more or less productive, are entirely banished from a nation which has the happiness of having its interest guarded by men who continue to be themselves exposed to the pressure of those laws which they concur in making, and of every tyrannic practice which they suffer to be introduced-by men whom the advantages which they possess above the rest of the people render only more exposed to the abuses they are appointed to prevent, only more alive to the dangers against which it is their duty to defend the community.

Hence we see, that the use of torture has, from the earliest times, been utterly unknown in England. And all attempts to introduce it, whatever might be the power of those who made them, or the circumstances in which they renewed their endeavours, have been strenuously opposed and defeated.

From the same cause also arose that remarkable forbear. ance of the English laws to use any cruel severity in the punishments which experience shewed it was necessary for the preservation of society to establish; and the utmost vengeance of those laws, even against the most enor mous offenders, never extends beyond the simple depri

vation of life.

Nay, so anxious has the English legislature been to establish mercy, even to convicted offenders, as a fundamental principle of the government of England, that they made it an express article of that great public compact which was framed at the important era of the Revolution, that no cruel and unusual punishments' should be enforced. They even endeavoured, by adding a clause for

A very singular instance occurs in the history of the year 1605, of the care of the English legislature not to suffer precedents of cruel practices to be introduced:-During the time that those concerned in the gunpowder plot were under sentence of death, a motion was made in the House of Commons to petition the king, that the execution might be staid, in order to consider of some extraordinary punishment to be inflicted upon them: but this motion was rejected. A proposal of the same kind was also made in the House of Lords, where it was dropped. -See the Parliamentary History of England, vol. v. anno 1605.

+See the Bill of Rights, Art. x.- Excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.'

that purpose to the oath which kings were thenceforward to take at their coronation, as it were to render it an everelasting obligation of English kings, to make justice to be executed with mercy."

CHAP. XVII.

A more inward view of the English government than has hitherto been offered to the reader in the course of this work.-Very essential differences between the English monarchy, as a monarchy, and all those with which we are acquainted.

THE doctrine constantly maintained in this work, and which has, I think, been sufficiently supported by facts. and comparisons, drawn from the history of other countries, is, that the remarkable liberty enjoyed by the Eng. lish nation is essentially owing to the impossibility under which their leaders, or in general all men of power among them, are placed, of invading and transferring to themselves any branch of the governing executive authority; which authority is exclusively vested, and firmly secured, in the crown. Hence the anxious care with which those men continue to watch the exercise of that authority. Hence, the perseverance in observing every kind of engagement which themselves may have entered into with the rest of the people.

But here a consideration of a most important kind presents itself: How comes the crown in England thus constantly to preserve to itself (as we see it does) the executive authority in the state, and moreover to preserve it so completely, as to inspire the great men in the nation with that conduct so advantageous to public liberty which has just been mentioned? These are effects which we do not find, upon examination, that the power of crowns has hitherto been able to produce in other countries.

Those same dispositions of the English legislature which have led them to take such precautions in favour even of convicted offenders, have still more engaged them to make provisions in favour of such persons as are only suspected and accused of having committed ofences of any kind. Hence the zeal with which they have availed hemselves of every important occasion-such, for instance, as that of The Revolution, to procure new confirmations to be given to the intitation of the trial by jury, to the laws on imprisonments, and in gemeral, to that system of criminal jurisprudence of which a description" as been given in the first part of this work, to which I refer the teader.

In all states of a monarchical form, we indeed see, that those men whom their rank and wealth, or their personal power of any kind, have raised above the rest of the people, have formed combinations among themselves to oppose the power of the monarch. But their views, we must observe, in forming these combinations, were not by any means to set general and impartial limitations on the sovereign authority. They endeavoured to render themselves entirely independent of that authority, or even utterly to annihilate it, according to circumstances.

Thus we see, that in all the states of ancient Greece, the kings were at last destroyed and exterminated. The same event happened in Italy, where, in remote times, there ex. isted for a while several kingdoms, as we learn both from the ancient historians and poets; and in Rome, we even know the manner and circumstances in which such a revolution was brought about.

In more modern times, we see the numerous monarchical sovereignties (which had been raised in Italy on the ruins of the Roman empire) successively destroyed by powerful factions; and events of much the same nature have at dif. ferent times taken place in the kingdoms established in the other parts of Europe.

In Sweden, Denmark, and Poland, for instance, we find the nobles reducing their sovereigns to the condition of simple presidents over their assemblies-of mere ostensible heads of the government.

In Germany and in France, countries were the monarchs, being possessed of considerable demesnes, were better able to maintain their independence than the princes just mentioned, the nobles waged war against them, sometimes singly and sometimes jointly;-and events similar to these have successively happened in Scotland, Spain, and the modern kingdoms of Italy.

In fine, it has only been by means of standing armed forces that the sovereigns of most of the kingdoms we have mentioned have been able, in a course of time, to assert the prerogatives of the crown; and it is only by continuing to keep up such forces, that, like the eastern monarchs, and indeed like all the monarchs that ever existed, they continue to be able to support their authority.

How, therefore, can the crown of England, without the