ENCYCLOPÆDIA BRITANNICA.
ENGLAND.
PART III.
GOVERNMENT AND LAWS.
I.—GOVERNMENT.
“BY the constitution of a country, is meant so much of its law as relates to the designation and form of the legislature; the rights and functions of the several parts of the legislative body; the construction, office, and jurisdiction of courts of justice.” This is the definition given by Paley. It seems necessary to add also, “whatever prerogatives are vested in the executive;” at least, in case any powers and privileges are conferred on it beyond what, from being indispensable to the administration of the public affairs of a community, must be common alike to all executives. Even with this addition, the mere mechanism of a government, in the three principal relations which it bears to its subjects, is all that is here described. Yet something more is generally understood by a constitution, and would seem to be properly comprehended under that name. A government, it is true, may and must be influenced in a hundred ways by independent circumstances, and by manifold considerations, which are no part of it. But when certain specific tendencies and principles are directly and designedly moulded into its original conformation as so many distinct ends and maxims, or when they are subsequently developed by it or incorporated with it, so as to guide and qualify its spirit, they become entitled to the character of constitutional as much as the organization itself. There is no doubt that the mechanism of a government, if left to itself, will mainly determine the nature and direction of its movements; yet this mechanism consists of a moral and intellectual agency. It is accordingly capable of accommodating itself, and of working in subjection to whatever rules and impulses may be impressed upon it by the society whose instrument it is.
No society can be so stationary but that changes must take place, sooner or later, for the better or for the worse, in some one or other of the conditions, whether of principle or of organization, which make up its constitution. When these happen to take place, hardly any society can have been so judiciously constructed from the first, or be so fortunate in all its future circumstances, that lawyers shall be able at once to call every change which is for the worse, unconstitutional, and which is for the better, constitutional. An approximation to this favourable situation has been one of the great and innumerable advantages of the uniform and gradual progress by which the English constitution has been distinguished. Its history is the history of the internal policy of a people, who at every advance in civilization succeeded in occupying one advanced post after another, fortifying their free position at every remove. The early prospect would have discouraged the most sanguine philosopher. But the evil tendencies were suppressed, and the good ones brought forward, until the process appears to resemble the natural development by which a germ grows up into a plant, with but little occasional help from the pruning hand of man. Precisely the reverse might have happened. It is what takes place during that imperceptible decay, which, by a foolish analogy to vegetable and animal life, it has been supposed that institutions are also destined to undergo. The bulk of mankind more easily perceive that abrupt and extensive changes, the innovations by which new principles, or a new organization, are introduced, amount in fact, as far as they go, to a new constitution. This may be done legally or illegally. If illegally, it is a revolution; a case which by the supposition has nothing to do with law. If legally, the letter of the law and the forms of the
1 For this part of the article the Editor is indebted to William Empson, Esq. Professor of the Laws of England at the East India College.
constitution may be used for the purpose of substituting a worse as well as a better government to the extent that the ancient constitution is displaced. The question, what name will most properly describe any specific measure of this class? must depend upon the nature and degree of the measure. There is on these occasions another question for a people, prior in time, and far more important than discussions about a name. It is their duty to ascertain whether the proposed change is, under all the circumstances, a practicable improvement, and to fix where the authority for deciding this point can, upon the whole, be most safely lodged. A comparison of the different methods by which the latter problem can be solved will show what little cause there is for maintaining, as some modern writers are disposed to do, that the course adopted in England is too loose and arbitrary to be consistent with the positive character implied in a constitution.
Three very different systems may prevail in this respect. The two first are alluded to rather than recognised in English history. Its whole tenor proceeds upon the last.
Every country has at one time or another given more or less countenance, upon some favourite points, to the de-
clusion of fundamental laws and unalienable rights; mean-
ing by these, laws and rights incapable of alteration, except
by a violence or decay equivalent to the suspension, if not
dissolution, of society. Confounding the principle of mo-
ral and of legal obligation, Chief-Justice Hobart, from the
bench, and Blackstone, calmly writing in his closet for
the instruction of the eighteenth century, concur in stat-
ing that the supreme power of every state is necessarily
subject to one condition. By this condition, all legislative
commands against natural justice must be void in them-
selves, that is, void in law. With much less latitude than
has often been given to the law of nature and to the rights
of man, this exception might be made to cover extensive
and dangerous ground. Lord Coke, for example, has said,
that a statute against Magna Charta, or one to prevent the
Irish from coming into England, would be void. In this
manner the Stuarts were taught by servile judges to be-
lieve that most of the prerogatives anciently affixed to
the crown were irrevocable even by act of parliament. A
similar opinion, grounded on the doctrine of the three
estates of the realm, was formerly propagated concerning
the episcopal right of sharing in the legislature. At the
Reformation, Bishop Gardiner conceived, that in conse-
quence of the forced absence of himself and his brethren,
its proceedings would be of none effect. The example
was followed, but equally in vain, when, during the violent
re-action provoked by Charles I., who considered himself
as so pre-eminently a Church of England king, the bishops
protested against all acts passed in their absence by a par-
liament no longer free. Charles I. held the very act by
which the bishops were excluded, although some of them
attended and voted against it, to be ipso facto null. The
more intelligent a nation really becomes, the less likely is
it thus to presume in favour of the political optimism of its
own or of former times. No fiction can be more gratui-
tously mischievous than the creed that there can be any
thing in the force of invading arms in 1066, or in the au-
thority of national wisdom in 1688, or in any length of
prescription whatsoever, to disable successive generations
from exercising their own discretion respecting the pro-
priety of their existing institutions.
Another plan is to set apart, in a written charter or de-
claration, certain excepted cases. The high matters which
are the chosen objects of this deliberate sanction, are con-
ceived to acquire thereby the privilege of being placed
beyond the control of the ordinary legislature, and of being
reserved for the direct volition of the body of the people.
Locke, in treating of the right of popular resistance, seems
to have stated too broadly, that the power of a community
can never be exercised in this manner under any form
of government, because such a proceeding, he says, pre-
sumes the government to be dissolved. Blackstone (vol. i.
p. 161) expresses himself still more strongly to the same
effect, adding, that no government will presuppose its own
destruction. The contemplated occasions are neither as
extreme in theory nor as impracticable in execution as
this language would represent. There is really no ques-
tion in this case about resistance, nor what can reason-
ably be called dissolution. Whilst, on the one hand, the
law has nothing to do with possibilities belonging to the
ultimate and latent right of resistance; on the other, the
idea of a supreme power which may be lawfully resisted
in points where it is called supreme, is of course a con-
tradiction. Thus in an absolute government society must
be remitted to its first principles before the right of popu-
lar interposition can be recognised by it. An ordinance
of Louis XIV. declared that the extinction of the family
of Bourbon would raise a case of this kind, and that on
the occurrence of such event the right of electing to the
crown of France would revert to the French people. But
limited governments stand in an entirely different posi-
tion. Minor contingencies, far short of the transgressions
which justify an appeal to arms, or of the accident which
summons a nation to the Champ du Mars to agree upon
a successor to a vacant throne, are part of their neces-
sities. The entire legislature may be only supreme sub-
modo. For under the doctrine both of fundamental laws
and constitutional charters, every variety of restriction
may be imposed upon the legislature. The prudence of
these restrictions is more than problematical. But where-
ever a government consists of several parts possessing co-
ordinate authority, the demand for some external control
necessarily arises; since encroachments of one part on the
other must be expected; and means ought to be arranged
beforehand for bringing them back peaceably within their
proper limits.
In this manner, wherever the doctrine of fundamental
laws is admitted, a sufficient authority, as, for instance, a
high court of justice, should be created for the purpose of
inquiring into and correcting any violation of them with
which the ordinary legislature may happen to be charged.
It will be necessary, besides, to chalk out, as in pri-
mary assemblies or otherwise, the extraordinary course
by which the policy of the fundamental laws themselves
may be reviewed, as occasion shall require. Both these
precautions have been introduced and satisfactorily ap-
plied by the founders of the United States. But they are
not wanted for this purpose by the English constitution.
For, notwithstanding a few fanciful conjectures, as above,
at times incautiously or intemperately hazarded, the Eng-
lish constitution is not established on any strictly funda-
mental laws, and still less are any specific questions re-
served by it for the direct intervention of the people. But
there are analogous dilemmas which may arise under it as
a limited and a mixed monarchy. Many, indeed most, of
these dilemmas appear to be left open to the chances of
unnecessary aggravation, by the want of some similar ar-
rangement. A government, composed of several members
with distinct powers, can only exist as such on the suppo-
sition that they each remain content with their own share,
or that, in case one should trespass on the other, the irre-
gularity can be set right by recurring to expedients legal-
ly providing for the emergency. Every one of the triple
divisions of the English legislature has in its turn made
experimental encroachments, against which there exist
but imperfect and often very circuitous guards in the con-
stitution. By the law of constructive contempts, once so
flagrantly abused, either house of parliament is armed
with a despotic weapon. This weapon is beginning to gather a prudential rust in the sheath at present; but the want or the jealousy of a superior court is a poor excuse for allowing it to continue there at all. The mysticism belonging to the maxim that the king can do no wrong, coupled with the recognised absence of any remedy against the crown for any possible amount of misgovernment, proved the ruin of the Stuarts. It encouraged them in the opinion that the supreme power was lodged, not merely in part, but wholly, in the sovereign, and that it might be abused with legal impunity. The 16th Charles II., as renewed by 6 William and Mary, declares that a new parliament shall be called within three years of the determination of the former; but no measures are taken by either statute for the assembling of a parliament in case the king should not choose to call one. The security is left to the old indirect check, the stoppage of the supplies, and to the new one, which, by means of the annual mutiny act, has been derived from a source where an aid to freedom could hardly have been expected, namely, the innovation of a standing army. There is at present abundance of rectifying principle and of auxiliary appliances in the sounder portions of the English constitution, which will prop up the rest, and hold the feeble part to its work. Otherwise the history of the Habeas Corpus act is a striking proof of the inadequacy of all general declarations. In doubtful times these are merely waste paper, unless accompanied by positive arrangements for carrying them into execution, and subjected to proportionate penalties on their infringement and neglect. The act of 16 Charles I. had provided, that if the king neglected to call a parliament for three years, the peers might assemble and issue writs for choosing one; and, in case of neglect by the peers, the constituents might meet and elect one themselves. This act was repealed with great ignominy at the Restoration. But it seems to have left the crown its due precedence, and to have provided, with as little impatience as possible, for the securing an object which all parties are agreed it is absolutely necessary some way or other to secure. The debates upon the command of the militia previously to the breaking out of the civil war, are a memorable instance of the folly of leaving great constitutional rights in obscurity up to the fatal hour when they can no longer be settled calmly and on reasonable terms. If it be important to define rights in times of tranquillity, it is no less so to provide the particular forms by which, in case of violation, the remedy may be applied. It is true that these collisions approach to the character of revolutions. When a king has so far separated himself from his parliament, there is little chance of their returning to that harmony by which alone a constitutional monarchy subsists. No previous arrangements can completely meet the crisis after it has occurred; but they may mitigate its severity, and, by the mere fact of their known existence, may do the still more acceptable service of preventing its occurrence.
According to the third and remaining plan, the constitution recognises the existing legislature as supreme for all purposes whatsoever. To this plan the English nation has always steadfastly adhered. From the time when the commons of England were adopted into the legislature (49 Hen. III.), or shortly afterwards, the legislature has, without any deviation worth mentioning, been the parliament; that is, the king, lords, and commons, in parliament assembled. The popularity of parliaments has been so paramount throughout, that the public have never until recent times been tempted to look elsewhere for rules, inclinations, or opinions. The supremacy of parliament kept its hold, like an anchor which nothing could shake, in the most stormy seasons, and under every variety of circum-
stance. The impossibility of complying with the customary forms was satisfied as often as it occurred, by the nearest approximation which could be obtained. This was no less remarkable in the course taken as far back as the supposed resignations of Edward II. and Richard II., than on the later occasions of the imperfect convention parliaments. Nobody suggested the propriety of calling together the people to restore Charles II., or to instal William III. into the vacant throne. Mr Hallam observes, that in the combination of gift, descent, and popular election, which took place on the accession of Henry IV. in the year 1399, there was as great formality as in 1688, making due allowance for times and men. The semblance of election remained with the members of the quasi-parliament. They had been summoned by the king's writ, but, from not having his commission, they did not take that solemn name, and only called themselves the estates of the realm. Wherever it was possible to preserve by fictions the appearance of a regular parliament, fictions were called in. Thus, during the infancy of Henry VI. the shadow of the royal infant, then only nine months old, opened his first parliament, and made appointments during pleasure. On the derangement of George III. the regency was appointed under the great seal. To keep up the entirety of the body politic of the state, the co-operation and personal will of the king were necessarily assumed in the very act which was to supply his personal incapacity. It was from the court of parliament that Richard III. obtained a confirmation of his alleged title. He rested upon it as "the known quieter of men's minds;" and the Earl of Surrey appealed to it as the one conclusive authority, when taunted afterwards by the successful competitor for the crown upon Bosworth Field. Though Wolsey, "hating parliaments," which therefore hated him, "had been the means that none was holden in the realm but one for the space of fourteen years;" yet Henry VIII. told them that he was informed by his judges that he was never so great as when sitting there in his estate royal. The great test of the omnipotence of parliament was its power of altering the succession. This, which was the established doctrine of the prior period, it was by a statute of Elizabeth made treason to deny. At the beginning of the civil wars, Charles I. called the peers together at York; and the cavalier members seceded from the House of Commons. Under these circumstances a metaphysical question might easily have been raised, as to which was the real parliament. But the locality of Westminster was like keeping the field of battle. It decided the direction of that wonderful and superstitious homage, which made Clarendon complain that "an implicit reverence for the name of parliament was the fatal disease of the whole kingdom." The substance and vitality, however, of the institutions to which the entire authority of national legislation is transferred, are still more important than the name. For this purpose their independence as intelligent deliberative assemblies must be secured. No question can be made concerning open violence. Any attempt by intimidation to force the repeal of a law or a change of measures, or to overawe either house, is treason. But, further than this, no minority or fraction of the people must be allowed to exercise over the legislature an influence of opinion, which the constitution does not attribute to the people at large, or at least does not provide them with the means of exercising. This is a subject of great delicacy; but still there must be some limits. Accordingly, both in law and practice, limits more or less elastic have been put on the nature and degree even of the moral pressure which may be urged on parliament from without.
Tumultuous petitions having been carried to a great
excess during the long parliament, the statute 13 Charles II. in consequence, imposed several restrictions upon petitions for any alteration in church or state. But notwithstanding the opinion of Mr Dunning, and the present practice, these restraints have been judicially determined not to be affected by the bill of rights. Mr Hallam says that he has traced public meetings for the debate of political questions no higher than the year 1769, and, subject to very few exceptions, petitions simply political not quite so high. Rights of this kind, guaranteed to the body of the people, and liberally construed, appear to be supplemental to a representation which stops short of annual parliaments and universal suffrage. They are the democratic counterpart to addresses of loyalty to the throne, and of confidence in the government, which are said by Evelyn to have come in even in the time of Cromwell. The right will probably not be used, certainly not used frequently, till a want of sympathy between the representative body and the people, or particular classes, begins to be suspected. The sense of the public, so taken, may often be found to clash with the sense of particular constituencies. In this case, two questions necessarily arise for a member's consideration: first, what weight either one or the other ought to have as mere authority in overruling his own opinion; and, next, which of them, in the event of competition, is entitled to a preference. The same constitutional answer will apply to both difficulties. The inclination on the part of the English constitution appears to have settled down, after some previous oscillation, to one consistent course, as soon as the commons began to feel and act up to their real dignity and strength. A member must necessarily be returned for a particular place. The question is, Are his duties therefore local? The terms of the writ of summons had all along plainly signified that, although chosen by a single district, he was chosen for the wants and service of the realm. Nevertheless many instances formerly occurred of the commons begging for time to consult with their constituents. It may naturally be presumed that this was nothing more than a timid way of evading unreasonable requests. Because their ancestors, afraid of Edward III.'s designs upon their subsidies and fifteenths, had declined to be made consulting parties to his wars, it was absurd in James I. to imagine that he could altogether call away from politics the English gentry of his day. Yet at so late a period no less a person than Burghley condescended to argue against the propriety of the interference of the House of Commons in matters of war and peace; and to take the distinct ground that its members by its institution had minds only of a compass each for the place which he served. But parliament had already heard the contrary within its walls. The movement of society which had made it impossible to execute the statute requiring the member of a district to be an inhabitant, had brought out, in the reign of Elizabeth, the first parliamentary declaration in behalf of the complete legislative authority of members of the House of Commons, in full accordance with the letter and conditions of the ancient writ. In the declaration that members were to act not only for their constituents, but for the whole kingdom, it was evident that a great principle was proclaimed. If sycophants then contested it, Mr Hallam, speaking of modern days, says very truly, that it is one which at present "none but the servile worshippers of the populace are ever found to gainsay." The weightiest arguments in Burke's letter to the sheriff of Bristol, against particular instructions, are little more than the application and extension of this principle. The necessity of going back to their constituents for a specific assent, was one of the main grounds of that incompetency to the duties of a representative assembly which faci-
litated the ruin of the states-general of France. A few votes beyond what a question would have obtained upon its general merits may thus be stolen, and a few individuals may thus push themselves forward into temporary notice. But public opinion can never be truly ascertained, any more than the public interest comprehensively promoted, by desultory and individual pledges. For this purpose the public must act in concert. With this view, kings of England have sought to satisfy themselves and the House of Lords with regard to the reality of the public sentiments, by a dissolution addressed to specific points. On the occasion of Mr Fox's India bill, the new members were expected to bring to the House of Commons an answer concerning the royal choice of particular men as ministers; and on the occasion of the Reform Bill, concerning the policy of a particular measure. This is the utmost advance which the English constitution has made towards admitting the doctrine of the will of the people or the instructions of constituents. So narrowed, it is a proper, and at times an indispensable part of every rational system of representation. It is practically quite consistent with the general rule that the select body of electors are trustees for the entire community; and that their representatives are the only organ by which the public will is on all subjects ultimately and conclusively expressed.
This then is the English system. It seems to be an extreme and fanciful subtlety to doubt whether the title and character of a constitution can properly belong to it. It is something in its favour that it can appeal to experience as practically embodied in a government, now of ancient standing, at once the most progressive and the most permanent which the world has ever yet seen. Why is it less a constitution because it gives to its ordinary contemporary legislature the most plenary attributes of supreme political power, and because it disclaims the supposition that its early constitutional legislation had or could have the sanction of any higher authority? The assent of any one generation can be of neither greater nor less value than that of another. It is not wonderful that a society, setting up for itself for the first time, or obliged by circumstances to begin anew in an enlightened age, should try to build upon the basis of fundamental laws. But it is fortunate for a constitution, of which the first stone was laid in haste and ignorance, and in the dark, and which nevertheless always kept so far in advance of its contemporaries, as to serve other nations for the model whence the criticisms have been derived by which its irregularities were afterwards to be condemned, that it started with no similar pretensions. If it were to suit the ages through which it was to endure, it could only do so by a plastic mode of conformation. In this manner its people were educated along with it and up to it, the two acting and re-acting upon each other. Hence an instinctive intelligence and conformity, otherwise almost unattainable, appear to have been secured, which political changes have hitherto slightly disturbed. Some bad logic, and a few incidental anomalies, are a small price to pay for conciliating opinions and smoothing over the transitions through which, in the course of centuries, an improving nation has to pass. But the mode in which these alterations have been made is objected to. The body of the people, it is said, ought to have legislated upon them in their own persons. It is surely a sufficient answer that it would be difficult to name a year, when in point of fact more would not have been lost than gained by tying up the hands of parliament, and putting its legislature to the circuitry of an appeal to the freeholders of the county courts. The nature of things does not admit of there being any greater security for good government than can be given by a legislature of which a popular representative assembly, pro-
Government and Laws. properly chosen and seasonably renewed, is a member. To call in the people to council, is to abandon to that extent, under circumstances too of great probable excitement, the advantages of representation; and for no countervailing benefit, unless on the singular supposition that a people incapable of choosing able and honest representatives, will be found capable of being able and honest legislators themselves. The device is much more likely practically to delay improvement than to check encroachments; since, for the latter purpose, the restraints it imposes are either unnecessary or insufficient. There can be no substitute for the spirit of a people. With that spirit, these precautions are not wanted; without it they are vain. The two cases which look most suspicious in English history (one in substance, the other in form) are the proclamation-statute of Henry VIII. and the septennial bill. The parliament of Henry VIII. gave royal proclamations in certain cases the force of law. The extent of the innovation has often been exaggerated. But, with regard to the present question, there can be no doubt, that a generation which by royal order changed its religion four times in twelve years, would, on the subject of royal proclamations, have as readily acceded to his majesty's desires. A few corporations petitioned against the septennial bill. But an observer of the prior, contemporary, and subsequent conduct of the body of the people on this point, and a reader of Burke's speech against triennial parliaments, will perhaps see little reason to believe or to wish that the people, if calmly consulted, would have come to a different conclusion. It should be recollected, that the question is one of pure argument only, and not of history. By the common law a parliament, unless dissolved, lasted for the king's life. In 1694 this duration was first shortened to three years; but in 1717 these three years were lengthened to seven. Thus, the law of triennial parliaments, spoken of by some as an almost vital part of the English constitution, was never known in England but for neither more nor less than the space of twenty and three years.
Every government is characterized by the ends which it proposes as its primary objects, and by the means which it applies for the attainment of its ends. These objects represent what is vaguely called its spirit. The only means properly at its command refer to the making, interpreting, and executing laws. It follows that the most important distinctions in this respect between one government and another, must be found in the specific provisions which determine the formation and distribution of the legislative, judicial, and administrative power. The English constitution is a limited or mixed monarchy; limited, by the maxim that the king has no rights but those which are prescribed and ascertained by law; mixed, by the fact that the parliament, in which the sole legislative authority resides, consists of the king and the three estates, the nobility, clergy, and commonalty of the realm, as comprised in the two houses of Lords and Commons. The suppression of partial interests is sought to be attained, and the practical recognition of the great end of government, namely, the happiness of the whole body of the people, has been principally developed and enforced by the share which the people exercise more or less in the government. This takes place in the legislative department, by means of their representatives; in the judicial, by the agency of the jury; in the administrative, by the doctrine of official responsibility, and from the example and control of a great diversity of popular local municipal institutions.
A more considerate legislation is promoted by a second legislative assembly. A great addition is also made
to the political stability of a limited monarchy, by forming the members of this second assembly into an hereditary nobility. A mixed government has, however, a still greater advantage. It naturally leads to and facilitates a division of powers, which is the most important of all the checks that mere arrangement can produce. According to this division, the authority of parliament is strictly confined to the original enactment of the laws. The duty of the judges is as strictly judicial. They have no more to do with the politic administering of the law than with the making of it. The law being thus made, and thus interpreted, the entire charge of carrying it into effect is vested immediately or mediately in the crown. Whilst the several parties who make, interpret, and execute the laws, are kept, in this manner, perfectly distinct, it becomes exceedingly improbable that any confusion, either unintentional or wilful, should arise between the principles properly belonging to their several operations. This is a caution which the cause of public liberty, as well as that of civil justice, alike imperatively require. Blackstone has expressed a strong opinion as to the propriety of the executive being only a branch, and not the whole, of the legislative; also1 that the judicial authority should in some degree be separated from both. This was one of the points on the paramount importance of which Jefferson and Adams were agreed when they came to apply the experience of the English constitution to the construction of their own.
Government and Laws. Eastern nations, notwithstanding their supposed immortal civilization, appear never to have got much nearer than the inhabitants of the South Sea Islands to a conception of the just foundation on which alone the rights and duties of sovereignty rest. On the other hand, the citizens of Greece and Rome were fully aware that political society was grounded on the advantage of its members. Their patriotism was not more exalted by the pride of national independence than by the consciousness of being responsible only to the law. Nevertheless, the real condition of these great commonwealths was for the most part in lamentable contradiction to the individual ability and virtue by which their history has been made famous throughout all ages. The glory of free and classical antiquity was frequently clouded, and was brought at last to an abrupt and final termination. This is apparently to be attributed to the defective mechanism of their institutions, more than to any other cause. Their construction and division of the legislative, judicial, and executive authority were all along so imperfect, that their negligence of the means of a better political arrangement can only be accounted for by their ignorance of its necessity. There is nothing to this effect, even in their theoretical works upon government, when carefully examined. Polybius, it is true, gives the preference to a combination of monarchy, aristocracy, and democracy, as being in a degree more stable than the simple forms. Cicero also agrees with him in saying, that this was the true Roman constitution; but he most unwisely adds, in compliance with the Roman jealousy of kings, that wherever the executive is placed in a single hand, the government is mixed only, not tempered, and must be ruined by the vices of the individual. Different writers appear to have meant different things by the same word. Aristides denominated the government a mixed one as late as the time of Marcus Aurelius. Tacitus saw through the fictions, and thought that the word implied more, otherwise he would scarcely have said that such a combination may be more easily praised than effected, and that were it effected it
1 Commentaries, vol. i. p. 146 and 151.
2 Ibid. p. 269.
could never be lasting. In case, however, the constitution had done nothing further than realize the above combination in the general sense which alone these philosophical statesmen were contemplating, it would have stopped infinitely short of the principal benefits which it has conferred. The separation of the three great branches of political authority into distinct departments, as it is one of the most probable consequences of a mixed monarchy, so is it beyond all comparison the most valuable. Unfortunately it had not taken place under the imperfect specimens of mixed government with which they were acquainted. It is not surprising, therefore, that in theory the philosophical truth of such a corollary should never have occurred to them. If that consequence had been duly presented to his mind, Tacitus must surely have seen reason to question the cycle of Polybius, and to feel greater confidence in the political contrivance by which the efficiency and the durability of states have both been found in practice to gather equal strength. No political phenomenon can be more interesting than the circumstances and the method by which a government has thus arrived at the high distinction of first uniting improvement and stability, liberty and order, and has been enabled to combine the greatest of all ends with what, from the failure of the most celebrated experiments, it may be well supposed were means very difficult both to discover and to apply. Sanguine spirits often appear to imagine that as good a constitution as can be devised may be struck out and fitted upon at a moment's notice. The history of the English constitution may teach them greater caution. A distinct examination of its respective parts will show, not only how slowly they have been formed, but to what extreme risks at different periods the existence and the principle of each have been, and perhaps must be, severely exposed.
The English constitution is more historical than philosophical. It has been the gradual development of national good sense, shown in a spirited and prudent improvement of tendencies and events, without any of the ambition of a regular, preconceived system. Its object was never stated in a declaration of the abstract rights of man, nor its organization derived from a metaphysical analysis of the elements of human nature. He must have been indeed a prophet, who, at the time of the Norman conquest, could have foreseen the course by which it would outstrip the feudal monarchies which resembled and surrounded it. The difference lay in this: For successive centuries, circumstances played favourably for a people who had the merit or the good fortune to profit by them as they occurred. M. Rey is so far right. England has experienced the truth of Aristotle's observation with regard to Crete. An insular position has great advantages for political experiments. Assistance has also frequently come in from the most unlikely quarters, and the scale has more than once been turned by causes to which, as far as we can observe, no nobler name than that of accident is to be assigned. At one time the very strength and concentration of the monarchy of England, as compared with the weakness of the monarchy of France, brought the barons, the people, and even the church, into a closer union for their defence. At a later period the impoverishment of the crown by foreign wars, and the alienation of the crown lands, brought it into dependence upon, what was most fortunately, one national parliament instead of several distinct provincial assemblies. The separation of the greater from the lesser barons, the assembling of the commons and the lords in different chambers, the transit through which the exemptions claimed by the clergy became disqualifications, the conversion of the jury from their original character (whatever that may have been) into a popular
tribunal, have turned out to be the hinges on which English freedom has ultimately turned. They are instances of incidents, in themselves at first comparatively trifling, diverted by circumstances into a deeper channel, or transmuted by a noble alchemy into a much higher purpose than what was their original purview and intent. Although the English government was from the first a limited monarchy, it was not for nothing that monks and lawyers lent a hand in the pious frauds of forging tales about Alfred, Kentish privileges, and imaginary Saxon laws, or in encouraging the more recent fiction of the notorious anti-tallage statute. The stoutest antiquarian who ever argued that the title of William the Conqueror represented merely the feudal conquisitio, and not the conquest of the nation, nevertheless must admit from time to time great historical distinctions. The nature and degree of the limitations practically needed and applied to the powers and mechanism of the several component parts of the government varied exceedingly at different periods. The importance even of the grand division between the legislative, judicial, and executive authorities, was far from being at once recognised and observed.
A constitution upon paper and in practice are such very different things; that we must look into the history as well as the laws of a country, in order to know at any given time what was the real contemporary character of its government. English antiquarians have been more or less successful in tracing back the dates of their most popular institutions. But the sense in which the same institutions were in point of fact understood and administered at different periods, and the security which they were capable of affording, are distinct and much more interesting questions. A people and their government, it is true, are always cause and effect to each other; and none more so than those of England. In the present instance, however, there can be no doubt but that the narrative of English parliaments and of English juries establishes their existence, as a matter of pedigree, long before there was spread throughout the community either the spirit, the knowledge, or the means to turn them to their legitimate account. The systematic regularity of modern governments was unknown even to the ancient republics. No wonder, therefore, that it was wholly unthought of either by the feudal chieftains themselves, or by the rude vassals who attended to do suit and service at their courts. Our ancestors were satisfied, we are told, with the rough standard of measurement taken from parts of the human body, though differing in different men, till Henry I. ordered the ulna or ell, which answers to our modern yard, to be made the precise length of his own arm. To lay down any thing like a precise standard for civil obedience, was left for later times, and for arms still stronger than those of any king. Even long after the golden rules and metewand of the law were recognised at Westminster, acts of violence were frequent over the kingdom, with more or less remonstrance; so that judicandum est legibus non exemptis is a maxim which the constitutional inquirer is obliged to keep constantly before him.
The history of England opens with a society divided into castes. The distinctions taken by the law were one-sided and severe. There is a great difference between Glanville and Beaumanoir. Nevertheless, the blot upon Magna Charta itself, in the limitation (liber homo) cannot be explained away. The later threat of Richard II. after the unsuccessful insurrection to which the peasantry had been driven by oppression, is equally intelligible. Their condition, he told them, should be made yet more miserable. The statute of labourers, which was passed in the reign of Edward III., was in the same spirit. It continued to be a no less absurd than wicked favourite with after-
Govern-ment and Laws. times. It is impossible to look over the whole intermediate legislation concerning the lower orders down to the reign of Elizabeth, without perceiving that most of its provisions are as much statutes of police as of trade. They have the air of being expressly directed to the object of preventing the consolidation of the different degrees of society into one people. When we compare the laws of England in this respect with those of the continent, we cannot estimate too highly the comparative equality of ranks, and the absence of exclusive privileges. Nevertheless the laws were bad, and public opinion worse. The dialogue on the Exchequer, written towards the close of the reign of Henry II., observes, that in all cases of secret slaying, whether of English or Norman, the penalty should be levied on the hundred, "unless there are plain iudicia of the servile condition of the deceased." The petition of the commons to Richard II. that villeins might not be put to school and so get on in the church, "for the honour of all freemen," was re-echoed two hundred years later, in the cry against the Lord Cromwell, on account of his "villein blood." The class was then about to disappear. It is evident that it was only by its extinction that prejudices incompatible with real equality under a free constitution could be removed. The gradual elevation of the entire population into the condition of freemen, put all ultimately in possession of rights which had been wrested from the crown by feudal leaders and independent yeomen with a much more partial object. It took ages to compass this emancipation, and to reverse the proportional shares of the national wealth, as held by the king, the church, the nobility, and the commons. If all the land of the kingdom had continued to be the portion of the church, the king, and the immediate tenants of the crown, who, according to the list in Domesday-book and Brady, did not exceed seven hundred in number, this consummation would never have been accomplished. Civil wars and commerce, by scattering properties and displacing chivalry, broke up the feudal system much more effectually than any positive enactment. The possession of property gave leisure; leisure, especially when the reformation and the press stirred up the human mind with new and more liberal excitements, gave knowledge. Even without the strength of numbers, the combined influence of property and knowledge must give power. Until the body of a people has obtained the intelligence necessary to understand something of their own interests, and the power of making an attention to their interest and feelings a matter of prudence on the part of the higher classes, it is in vain to expect that just principles of government will be steadily acknowledged, much less that they will be steadily put in practice.
The king appears in the law-books as the source of almost every institution and every right. There is no other independent political existence save his baronial court. Nevertheless, as far at least as concerned the people, the king was originally still more powerful in fact than even in law. There was always a legal control upon him. But it was lodged at the beginning in an assembly where as yet the people bore no part. Bracton, who wrote under Henry III., probably not long before Leicester's writs to knights, citizens, and burgesses, appears to have as little anticipated them as he could have anticipated their effect. In his perversion of the imperial law to the purposes of a limited monarchy, he declares that the will of the prince must be according to his counsellors; that is, of "his court of earls and barons." He terms them his "associates," and makes them his superiors; for he adds, "were the king without a bridle from the law, they ought to put one on him." The court of peers, or royal council of France, by the non-attendance of the tenants in chief,
sunk into the great judicial tribunal of the country, and became known by the name of parliament, after the time of St. Louis. The peers of England were not so confident of their feudal exemption from supreme legislative control; consequently, when, about the same time, or a little earlier, the aula regis or great council of England assumed a new form, it separated into two compartments: one judicial, or the supreme courts of justice; the other legislative. The last consisted originally of the earls and barons only. By the time that the incipient House of Commons became its colleague, the name of parliament was appropriated, and, from its omnipotence over the feelings of the English nation, has become almost consecrated in their behalf. It was long before the parliament felt its strength, or knew how to use it. In the mean while the constitution, directly or indirectly, within doors and without, kept making head. During the struggles which the crown, reign after reign, was maintaining, sometimes with different members of the royal family, at others with the aristocracy, and at others against the church and papal usurpations, the people became important as allies. The people appear on the whole to have judiciously sided, where, according as the temporary pressure was felt to bear, it was for the interest of the public that they should side. It is difficult, owing partly to the uniformity which prevails at present, to comprehend the sudden turns which this instinctive policy might call upon them to make.
A sagacious and honest yeoman may have been with King John to-day, and with his barons to-morrow. To look merely at property: the Conqueror retained in his own hands fourteen hundred manors, the reserved rent on which Burke, in his Abridgment of English History, reduces to £70,000 of the money of that period. The resumption of the grants of Henry VI. was prefaced by a public declaration that his ordinary income did not amount to more than £5000. In the next reign we find Edward IV., independently of parliamentary supplies, the owner of above a fifth of the lay property of the kingdom. Within half a century the scale had again changed its balance. Wholesale confiscations, succeeded by the minuter and more politic arts of Henry VII., humbled the pride and broke the combinations of the nobility. Although the nominal rental of the royal demesnes was reduced to £32,000 at the accession of James I., yet the idea of any danger to the monarchy from aristocratical competition was almost a faint tradition at the time of Lord Russell's trial. He justly exclaimed, in allusion to the apprehension, "We have no great men now." Previously to this revolution in society, it depended for the most part on the personal capacity and character of the sovereign, whether the contingencies to which a wise constitutional jealousy ought to have been most alive, would come from the turbulent intrigues of the aristocracy, or from monarchical ambition. The royal prerogative attracts the first and the liveliest attention, as its power is always present and most promptly felt. Besides, it was absolute in language, prominent in form, and often irritating in the subject and occasion of its exercise. But all the great points whence a cloud might have arisen over the freedom of the nation had been soon foreclosed, and, in spite of occasional, indeed numerous violations, were closely watched. There is no denying that many remaining prerogatives were absurd and even odious. Still the nature and the danger of the grievances to which the people were legally and practically exposed from them are usually overrated. The Stuarts let no prerogative drop willingly; and it is well known that they laboured hard to revive some that were obsolete. Yet Lord Bacon declared, on presenting an address to King James, that there was no grievance in the kingdom "so general, so continual, so sensible, and so bitter, as the preroga-
tive of purveyance." Nevertheless, what did it amount to when represented in money? From one cause or another, the commons receded from their negotiation, rather than buy off this their master grievance, and that of military tenures into the bargain, at the cost of an annuity of £200,000. In the interval which elapsed between the depression of the nobles and the rise of the commons, the monarch had the stage comparatively to himself. The crown also at that critical moment passed into a line of able and haughty princes. Mr Hallam observes, that constitutional freedom was consequently retrograde from Henry VI. to VIII.; yet it is evident, from what passed during that period, that the hardy plant was not only alive, but safe. Bills in the form of acts, instead of petitions, which by adding to or diminishing from what the commons had petitioned for, had been for ages scandalously abused, begin with the reign of Henry VI. The first writ of habeas corpus, apparently so simple a result of Magna Charta, was obtained against Henry VII., the wiliest of the Tudors. Elizabeth had her father's spirit, and can scarcely be suspected of relaxing a hold which she could have decently retained. Yet in 1586 the House of Commons first succeeded in bringing the inquiry into election returns from out of chancery before themselves. By unfairly selecting the arbitrary passages from the reign of Elizabeth, and misrepresenting them as the ordinary course of her government, Hume gave both colour and currency to sophisms, which betrayed a much greater passion for ingenious paradox than for historical truth. The English people are wrong, it seems, in charging the Stuarts personally with the misgovernment which provoked the great rebellion. That misgovernment is represented to be nothing more than a continuance of the ancient English constitution, such alone as their ancestors had known it. According to this statement, the fault of the Stuarts would have consisted in carrying down the prior constitutional misrule into times which would no longer bear it. If such had been the fact, it is a fact which those times must certainly have known. But the understanding of contemporary parties was plainly all the other way. History has preserved the positive admission of Charles I. to the contrary, in a reference too remarkable not to prove that he was himself conscious of, and was aware also that his subjects knew, the whole extent as well as spirit of his innovations. What a satire on his own and on his father's government, that he should, in 1640,1 hold it out to his parliament as a boon, that he would return to the precedents of a sovereign whom they had already endeared to the people as "Good Queen Bess," whose reign, however, we know, notwithstanding, to have abounded with tyrannical executions, gross and frequent enough, it might have been thought, to have satisfied any of her successors. It is not the less true, that the time had come when the authority as well as the ceremonies of the court must undergo mutations, at which minds, with much larger views of government than that of Clarendon, would be startled, and perhaps annoyed. The state of society required popular changes to be admitted, for which no precise precedent could be found. Under these circumstances, men like Selden, for instance, a little too apt not to look for liberty
beyond their law-books, must often have felt embarrassed how to act. The Stuarts, however, did as much as could well be done towards relieving their subjects from difficulties of this description.
Unluckily for the Stuarts, none of the innovations which they attempted, may not even the consistent system to which it had been their object to bring the practice of their government, were so new and so outrageous as the principles on which they professed to reign. No country set a higher value than England, whether it was pleaded on behalf of the prerogative royal, or in the much more reasonable case of civil possessions, on the somewhat stationary title of prescription. The coronation oath on the one hand, and the oath of allegiance on the other, the theory of the feudal system, and many passages in their annals, had accustomed them to look to a rough notion of contract as the criterion of submission. The divinity studies of the early lawyers, and the usages of the puritans, tended to influence the thought and language of modern times by the course of authorities in the Old Testament. But these views were common property. All went there for what they wanted, and all found it. The partizans of despotism and freedom, Hobbes and Locke, Bossuet and Algernon Sidney, discovered, the two first in Chronicles, the two last in Deuteronomy, arguments for their opposite systems. It was far otherwise with the novelty which the Stuarts took up, and made the creed of their supporters. The new creed was precise and positive, and the whole spirit of English history was in contradiction to it. No later than the 13th Elizabeth, a statute had been passed, declaring it treason to maintain in any wise that the king and parliament had not the power to limit the succession. It was natural to lament that the feeling of feudal attachment was decayed. But the doctrine of a divine hereditary patriarchal right was a strange invention to replace it withal. The cavalier loyalty of Ormond belonged to former days, and had nothing in common with the superstition of Mainwaring and Sancroft. Principles utterly inconsistent with all that had been ever written on the subject, almost with all which had been ever done, became the favourite and insulting theme of speeches, proclamations, sermons. Thence the dread of the convocation sitting after the dissolution of parliament; thence the unanimous resolution that their new canons would not bind even the clergy; thence the protests against the new pulpit law, to make the king more absolute than his predecessors. Roman Catholic ecclesiastics had put their hands to Magna Charta. The Oxford decree was the boast of the Church of England. The latter books of Hooker, on account of their heretical latitude, were to be made out to be fabrications; whilst Jeremy Taylor, the great ornament of his profession, pronounces that there are few cases of conscience in which a man may hope for half as much conviction as on passive obedience and non-resistance. Non-resistance was soon improved into absolute compliance. It became, in other words, the indefeasible legitimacy of modern days. These prodigies of doctrine defeated themselves. They misled the governors and provoked the governed, and, in James the Second's expostulation with the seven bishops, returned
1 "At the opening of parliament, the king very frankly delivered himself to the lords and commons, and was resolved to follow their advice in repairing the grievances at home, which he confessed the necessities of the times had brought upon his people. All those, whether in church or state, he was willing should be removed, and desired that all things might be reduced to the good order and practice of Queen Elizabeth; which to the people of England were sure looked upon with the greatest reverence." (1. Clarendon, 610.) This important passage is printed for the first time in the last edition. It is one of the worst omissions in the former garbled text. The speech is imperfectly given in the parliamentary history, with a rather later date. It is in itself a complete answer to the comparison laboured by Hume. The truth is, that the Stuarts had a dread of English history, for its testimony against them. Bishop Nicholson observes, in his Historical Library, that the publication of the second part of the Glossary of even the orthodox Spelman was supposed to be delayed, because he had called Magna Charta, Libertatum Anglicanum diploma et sacra anchora; and that in 1614 the Society of Antiquaries was suppressed on account of the jealousy manifested by James I.
them their poisoned chalice to their own lips. A limited monarchy and unconditional allegiance are a contradiction in terms. The only consequence of allowing to a brave and thinking people rights and privileges in the statute-book, and yet closing up every practicable channel through which, if they are violated, a legal remedy can be obtained, is the generating a spirit which sooner or later must force itself a way by some great convulsion. Another revolution, and the example of a new dynasty, were made necessary to establish the truth of the opinion which Gourville expressed in vain to Charles II.: "A king of England who will be the man of his people, is the greatest king in the world; but if he would be any thing more, he is nothing at all." So evident, indeed, has it ever been since the Revolution, that no king can long carry on the government upon any other terms than by becoming the man of his people, as represented in parliament, that the royal legislative negative has fallen into abeyance for a century and a half. Elizabeth, at the close of one session, rejected forty-eight bills which had passed both houses. The last exercise of this prerogative was in 1692, when William III. refused his assent to the bill for triennial parliaments. With the modifications, and under the circumstances in which alone the negative of the president of the United States can be interposed, it is easy to see how the head of that republic may prudently venture on the exercise of a power to which it would be the height of imprudence in a king of England so far to put himself in opposition to both houses as to revert. It cannot be said that the change is in the mode of operation only, and that the king does now by influence what he used to do by prerogative. It is notorious that, on several occasions since 1692, influence has failed in doing that which the acknowledged prerogative would have done by its single word. The result is, that the king, who for many centuries was more powerful in fact than in law, is more powerful in law than in fact at the present time.
If under the same forms the rise of the commons has changed imperceptibly, but entirely, their relative position with regard to the crown, this has happened to a still greater extent between them and the barons. The power of the nobility consisted in their immense possessions, in the clan-devotion of their dependents, in their territorial jurisdictions, and in the original superintending authority of the supreme feudal court. The blow struck at their properties, both by force and artifice, speedily took effect. The shake once given was so certain of spreading further, that the formation of new aristocratical fortunes out of the monastic confiscations has never been made an imputation on the policy of Henry VIII. It was as the favourite of Elizabeth more than as the lord of Kenilworth, that Leicester succeeded in making the gentry of Warwickshire wear his livery. The original relation between lord and tenant implied protection on the one hand, and obedience on the other. If the tenant could not alien without the lord's license, the lord could not transfer the tenant's seignorial dependence without the consent of the tenant. The social movement, commencing at the top, naturally occasioned a relaxation in these duties and sympathies on the part of the lord in the first instance. This broke the charm. It soon became evident that king-maker could be the title of no future Warwick. There had been a series of concentric circles, through which the feudal feeling rose from the vassal of the mesne lord up even to the throne. But all gave way at once. It was clear that the mischievous distinction between a king de facto and a king de jure could not be recalled, nor the allegiance of the subject transferred from the regal office of the sovereign to his natural person and blood royal, when once the feudal feeling lower down the
ladder had been so completely destroyed, that, in the words of the age of Selden, an English tenant would be the first person to lay his landlord by the heels. The landlords and the sovereign have been both amply indemnified in increased security, for whatever either may have lost. At the same time the constitution and the country have been infinite gainers by the general adoption of a more rational patriotism. The civil exemptions which the peers possessed in their individual character were all along insignificant. The judicial authority vested in their territorial jurisdictions was superseded by circuit judges, and by justices of the peace in every county. That which had been reserved to them collectively was of a kind more honorary than formidable, and one which there was little temptation to abuse. The small value which they attached to their power as a civil tribunal is proved by the intermission which took place of all writs of error to the lords from the time of Henry IV. till the accession of James I. Their criminal jurisdiction, except in the case of impeachment, was confined to the members of their own order. From the time that the commons were united with the lords, and their joint assent became equally indispensable to all legislative measures, the sole undivided glory of Bracton's baronial court was at an end. A statute of Edward II. declares that every legislative measure not sanctioned by the consent of king, lords, and commons, shall be void. It states also that this is according to custom. Nevertheless it was long before the commons had the courage to act upon this supposed equality. Sometimes they stultified themselves by way of policy, to avoid any possible responsibility. On ordinary occasions they felt themselves overshadowed by the neighbouring greatness of the lords. Thus they applied to them on great emergencies, begging that they would send some of their members to instruct them in their duty (as in 1st Richard II.), "on account of the arduousness of their charge, and the feebleness of their own power and understanding." In the same manner, on the insanity of Henry VI. they left the establishment of the regency with the peerage. "You, the peerage, in whom, by occasion of the infirmity, resteth the exercise of his authority." In the reign of Charles I. the commons are seen for the first time taking the lead, and carrying the lords along with them. Several of the lords in that crisis gave in their adhesion, and co-operated with the commons. Before this, the spectacle of their concurrence had always been, the commons walking in the train of the lords. New principles must accompany such a change. The House of Peers could no longer claim the privilege of legislating exclusively for the benefit of their order, nor proceed on the distinction that they sit in their own right, answerable only to themselves; whereas the House of Commons, as a representative body, is answerable to the people. The sophistical distinction can hardly serve at present to prop up the privilege of their proxy; a pretension not less incompatible than popular instructions with the first duty of a deliberative assembly. Fifty years ago, when Paley first published his Moral Philosophy, the peers had so far fallen into the back ground, and political reasoners had so far learned to look to reason only, that Paley defends the institution of a House of Lords as a part of the British constitution, on grounds which would have amazed Simon de Montfort, and perhaps somewhat scandalized John earl of Somers. His main argument is founded on the use of a second and totally distinct legislative assembly, in order to protect the state against popular caprice and fury. Ever since the Revolution, the momentum in English legislation has lain necessarily in the commons. The king and the lords have both sought to keep there a hold, by way of influence, so as to fight their
battle in that field always in the first instance, and thus procure an additional guard against the chances of more direct collision. The reform bill has to a certain degree stopped up the communications by which this arrangement had been in substance effected ever since, and, in fact, long previously to the Revolution. Mr Hume remarks, on the existence of two legislative assemblies, separate from each other, yet each of them supreme, as one of the great anomalies of the Roman institutions. The characteristic danger of such a state of things exists also wherever the consent of two or more men is required in carrying on public business. The only difference is, that the danger in the latter case, is often counterbalanced by greater advantages; and that the mischief will probably be less violent from their opposition in the passive shape of refusing to legislate in the same direction, than in the more active shape which their opposition might have assumed in Rome, that of positively legislating, one against another. It is evident, however, that a society, the elements of which, by the supposition, are not paralysed and torpid, must soon find out the means of evading the evils of a political stale-mate. The necessary unanimity can be only obtained by reciprocal compromises and forbearance. If we will have the benefits peculiar to such institutions, we must be content to pay the price. In the administration of justice, the limits which separate pertinacity and weakness is one of the difficult discretionary questions which judges and jurors have to settle with their respective colleagues. If every member of a jury or a senate were to be as impracticable as Cato is described to have been, institutions of this nature could in no country be allowed to last a week.
Mr Hume and Mr Bentham appear to agree in thinking, that in the case of numerous assemblies called upon to determine the much more extensive and variable questions which arise in the general conduct of political affairs, it would be unwise to rely upon the exercise of a similar discretion, as sufficient security for the analogous compromises which are nevertheless indispensable conditions to an efficient co-operation. For this purpose they both acknowledge the propriety of some species of influence, which shall make the one to a certain degree, dependent upon the other. In such a case the only question which remains practically to be argued will be its nature and the mode and degree of its exercise. If Dr Paley gives too much countenance to influences approaching to a sordid bias, Mr Hallam, it may be feared, is somewhat too confident in the assurance that moral influences will of themselves always secure a just, or at least an adequate, concurrence.
Polybius has shown that the simple forms of government, however suited originally to this or that stage of society, necessarily become in time unsuitable. What he describes as the specific germ of decay, "congenite in each form," would be more properly described as an alteration in society itself. This alteration drags the government after it into the requisite modifications of its form. It is one of the great merits of a mixed government, that, without the violence of a revolution, it can accommodate itself to these changes in a community, and pass the initiative with comparative facility from one class to another, just as the leading shoot in society may happen to be making head. Under a nominal invariableness in the balance, some variance in the weights must always be going on. The crown was not easily content to resign the ascendancy it once enjoyed. When the higher classes had to outward appearance ceded the political powers they had formerly possessed, they were enabled afterwards by circumstances to continue in the covert enjoyment of it, to a much greater extent and a much longer period than any one
could beforehand have presumed. James I. probably was not aware of the tendency of the proclamation by which, on calling his first parliament, he directed the sheriffs to address the writs upon a principle substantially the same as the late reform bill. There can be no greater proof, on one hand, of the respect of the people of England for ancient forms, and, on the other, of the moderation by which the higher conciliated the jealousy of the middle classes, than the fact that the adoption of this principle was postponed during the next two hundred years. In those classes, including the gentry and independent commonalty of the realm, in whom for some time past the heart's blood of the country has mainly been formed, the reform bill has at last placed the command of the House of Commons. The power which this portion of the community before exercised indirectly over the whole parliament, and especially over that house, it now exercises directly. The consequence is, that there is a much greater security than before, that no measure detrimental to their interests, and in opposition to their feelings, will be agreed to by a House of Commons of which they are themselves now made the constituents. There need be no fear for the duration of moral frame-works like that of government, on the ground of their supposed analogy to the growth and decay of material forms. There seems also no better foundation for the inference drawn by Polybius, in his comparison between the governments of Carthage and of Rome as they existed at the time of the campaigns of Hannibal, where he says that a mixed government, in which the preponderance has passed from the monarchical and aristocratical to its popular members, has run its course, and is so much nearer to its termination. Difficulties enough remain inherent in the nature of all government, which no possible adjustment of the machinery can reach. But a mixed, though incomparably safer than a simple, government, has some difficulties peculiarly its own. It depends on a nicer balance of proportions, and it calls for a greater degree of temper, patience, and mutual concession from its members. A rational and public-spirited House of Commons must be in constant danger of offending one or other of the extreme parties in the state. Whilst its honest concurrence with the other branches of parliament must frequently incur the displeasure of the demagogue and his mob, the sovereign or the peerage, one or both, are often not unlikely to regard its general or particular opinions with equal jealousy. A constitution thus settled is only safe as long as the more intelligent part of society can take advantage of its intermediate position, and arbitrate between the extremes. A House of Commons, identified with the great arteries of the nation, contains within itself no inherent security for good government, beyond the power of stopping bad measures, and of sending good ones up for their acceptance to the other partners in the firm. If they accept, well; if they reject, a class of cases arises, on which all the good sense and good humour of a country may be wanted, in order to guide a people to discriminate aright on the course which it becomes them to pursue. Unless a power of rejection, according to a liberal construction of independent judgment, be conceded, the whole benefit of a second assembly will be altogether lost. The power of rejection may, however, be so exercised by a headstrong monarch or by a small hereditary body, especially when, in the case of the latter body, the greater part of the legislature have been recently raised to the peerage from the ranks of one political party only, as to amount to a declaration that they are looking only to themselves, their own interests and passions. A civil dissenance from the sympathies of the nation, like that of the Roman Catholic clergy, justifies the extreme remedy of removing the obstacle by whatever
Government and Laws.
means. The occurrence of such fatal obstinacy in the person of the sovereign, would be an exception to every presumption upon which hereditary monarchy is engrafted on a mixed government. The contingency of so remote and so insane a possibility could only be formally counteracted by some such expedient as is adopted with respect to the veto of the president of the United States. In the instance of a refractory House of Peers, the constitution has given the king the means of applying this remedy by a creation of additional peers. This course was taken by Queen Anne on a much more questionable occasion, namely, for the sake of a mere ministerial majority. It is not the less clear that a justifiable occasion might occur. If the king took courage to apply the constitutional remedy, all would proceed as usual. If he shrank from it, the public would be remitted to those ultimate considerations of civil prudence which are always in reserve. They are the very same considerations which justify the sacrifices of natural liberty which men must make upon entering into a commonwealth. They may equally justify the sacrifice of social order which man is called upon to make whenever a commonwealth is overturned. It is to higher authorities than the precedents which are to be found in Rushworth, that freemen have recourse when they are compelled to seek new modes of legislation by forms which announce that the constitution has been destroyed.
The spirit and effect of institutions and of measures depend, as has been shown, in a great degree upon circumstances beyond themselves. The same institution at different periods produces very different results, whilst the collateral and unforeseen consequences of a measure are frequently much more considerable than the objects which its framers had in view. All that is most important in the present forms of the English constitution, is of a certainty to be traced, however obscurely and imperfectly, from a very early date. At the same time, it has become what it is, only by making the most of a series of fortunate contingencies. The English government may be advantageously compared with the Roman in its best characteristic, the tendency to progressive self-improvement. In the nature of the improvements there can be no comparison.
According to the process pursued, the substance has been in a course of much more extensive alteration than the forms. With regard to the latter, the change has chiefly consisted in removing partial impediments out of the way of certain movements, in strengthening particular springs to meet particular pressures, and in separating the several parts of the mechanism by more positive divisions, lest they should clash one with another. The manner in which the English clergy overreached themselves, by standing on their claim to exemption from temporal jurisdiction, and on their right to be taxed for temporal purposes, if at all, by themselves only, and in an assembly of their own, is very instructive and curious. They chose to remain apart, a separate estate; and resisted the attempt of Edward I. to incorporate the inferior clergy in the House of Commons, when that house as yet existed mainly for taxation. They procured their convocation about the same time instead of it. Afterwards, in its palmy state of general legislation, they discovered, when it was too late, that their exemption was turned into an exclusion. In 1663 the supreme head of the church of England found it no longer necessary to keep up appearances with a body already but a shadow. Without a law, a struggle, or even a word, convocations have died away. The clergy, on submitting to taxation by a temporal assembly, have acquired in return the humble privilege of voting for the members of a house in which they cannot sit. A few bishops in the upper house are all that re-
mains in the English institutions, of that third estate which was so necessary a part of the diets and states-general of the continent, and which made so great a figure in our own original constitution. The suspension of the royal negative, and of ecclesiastical convocations, has, almost unobserved, become part of the modern English system. Yet the change which has been thus operated is far more important, though it is short of what it is sometimes represented, than many which have been the subject of fierce contentions, and introduced by the most deliberate enactments.
The transitions which we have hitherto been considering, are independent of, and paramount to, legislation. They follow slowly but necessarily the variations in the condition of society and in public opinion, which must decide nine tenths of the materials and spirit of every government. We proceed, therefore, to consider the principal alterations which positive legislation has successively effected in the three great divisions of political power. The main objects of a government have been mentioned as being the making, interpreting, and executing the law; the first being the office of the legislature, the second that of the courts of justice, the third that of the executive administration. It will be proper to examine each shortly in detail, both as to its duties and its form. The English legislature, acting together as king, lords, and commons, is vastly too cumbersome to take upon itself the detail of the executive. This union, therefore, has never been thought of. Its incompetency either as a whole or in its parts to discharge judicial duties is not so soon perceived; consequently bills of attainder, of pains and penalties, and impeachments, are part of the legal history of the most recent times. In the infancy of courts of justice, and when the traditional supremacy of the aula regis, out of which both they and the legislature had emanated, was yet an active historical recollection, parliament in all extraordinary cases continued to claim an original judicial authority. But this pretension gradually dropped, and the appellate jurisdiction is now evidently near its close. Regarding the legislature in its legislative capacity only, it will be seen that its form has remained the same as a whole since the first admission of representatives from the commons. The changes which have taken place have been confined to the construction of its constituent parts, and to the view taken of the characteristic rights peculiar to each.
In considering the several members of the legislature, the king takes constitutionally the precedence. Nothing can be more superficial and incorrect than the view presented by Blackstone of early English history upon this part of the subject. It was not until the accession of Edward I. that the several titles of election, descent, and testament, on which the claims to the crown were before rested, as best served the occasion, became consolidated in that of hereditary descent. This appears to have taken place in analogy to the descent of land. The rival pretensions of the houses of York and Lancaster tended to throw the law once more into confusion. Being principally tried and determined upon the field of battle, the law had too much the appearance of giving way to force, or to its hollow consequence, a mere ostensible election. Yet, even in those times, there was no notion that the crown was left at the personal disposal of the monarch. William the Conqueror, it is true, had set up a donation from Edward the Confessor. But Richard II. on giving his signet to the Duke of Lancaster, as testifying his wish that the latter might succeed him, added, "but that did not depend upon his pleasure." The lords, in a remarkable lecture to the protector, the Duke of Gloucester, whose powers under the will of Henry V. had been limited by
the parliament (for lords and commons are mentioned in the act), say his desire was grounded neither in precedent nor law: "the which the king that dead is, in his life, nor might by his last will, nor otherwise, alter without assent of the three estates, nor commit or grant to any person government or rule of this land longer than his life." The extraordinary provision of 28 Henry VIII. c. 7, is the first and only instance of putting the crown into settlement, with a remainder "to such persons as the king by letters patent, or last will and testament, should limit and appoint." It is plain that the testamentary power so granted to her father had puzzled men's minds in the time of Elizabeth; and that temporary authority to bequeath the crown has to answer for the strange and almost oriental scene by which the death-bed of that princess was disturbed. Since the Revolution, however, the parliamentary title is the one established in fact. Since the reign of Elizabeth it had been the only one recognised in law. The king never had a legislative initiative, but only a simple concurrence. The change of the form from petitions to bills, took away no right, but only an abusive advantage. The real legislative authority of the crown still continues in point of law the same that it has ever been. It was at no time more than at present, at no time less. The right to make law by proclamations, and the right to unmake it, whether by repealing dissimulatum of Edward III., or by a dispensing and suspending power, were always arbitrary usurpations. For these are utterly inconsistent with the principle, and almost with the letter, of the statute of Edward II., which had declared the assent of the lords and commons to be as necessary as that of the king; since the maxim that the same solemnity which bound is required also to unbind, is a rule of English law. The disuse of the royal negative since the reign of William III. is purely matter of discretion; however paramount the political necessity by which that discretion is determined.
The peerage was formed, under the feudal system, upon the principle of tenure, that is, of land held directly of the king; the mitigated sense in which the soil of the western world was understood to belong to the sovereign having been always very different from the absolute ownership of the sovereigns of the East. At the first, all tenants in chief had a right of summons to parliament, not yet known, however, by that name. During the period which elapsed between the demise of John, the last year of whose reign is remarkable for the division of the greater and lesser barons, and the middle of the reign of Richard II., when peers were first created by letters patent, tenure began to be disregarded. The political principle had so far got the better of the feudal, that in the 49th Edward III. the ancient writ of summons was changed from homage to livery. The further difference in the form of this appointment, as whether it was to be made by writ or patent, was of little consequence. But the dispensation from the necessity of holding land in chief was an important innovation. On the one hand, mere territorial possessions, distinct from descent, ceased to confer a title to a writ of summons; on the other, the writ in its general form might easily in time, by multiplying cases of dependent poverty, have turned this august assembly into the laqueys of a court. It was well that a sense of dignity took the other course; though disfranchisements on account of poverty, as the act degrading the Duke of Bedford in the reign of Edward IV., and the resolution against Lord Ogle in the reign of Edward VI., were precedents liable to be abused. The questions, where the power of creating peers should be lodged, and the terms on which it should be exercised, were likely in early times to be determined by other circumstances than reason.
The mode finally adopted, by which the power is intrusted to the sole discretion of the crown, appears to be, upon the whole, the most desirable. Yet the prerogative was so unsettled in practice, and probably also in law, that down to the reign of Henry VII. the assent of parliament was generally expressed in patents of personal creation. Upon this usage West founded his theory, in opposition to Prynne, that such assent was a necessary condition. Whatever may have been understood to be the law, the practice was liable to all the objections so triumphantly urged against the bill twice proposed by Lord Sunderland in the beginning of the last century, for limiting the number of the peerage. Whilst a restraint upon the royal prerogative of creating additional peers would occasion more evils than it could cure, no similar risk accompanies the withholding from the crown a power of punishing by exclusions or of privileging by exemptions the actual members of that body. Accordingly, Lord Coke holds that even dispensations, answering to the excuses formerly besought by poor boroughs, granted by the king in relief of lords petitioning to be spared the burdensome service of attendance, were contrary to law. The mode in which the prerogative of creation was exercised varied with the times, but never seems to have been felt to be a grievance. The jealousy of the Stuart creations before the breaking out of the civil wars, and the remonstrance against the Scotch and Irish honours, was only a temporary ebullition. The degradation which the decay of families might have brought upon so much of the peerage as was called by a general writ of summons, came to a certain degree within the control of two principles: the one, that a patent without words of inheritance is simply a dignity for life; and the other, that peers might be summoned only to a single parliament. There are instances of ninety-eight laymen who were summoned only once, of fifty others who were summoned two, three, or four times. The present course, however, of descendible nobility, is as old as the reign of Elizabeth. The uniformity of our modern usage would be corroborated, amongst other causes, by the contemporary extinction of a corresponding variation which had previously subsisted in the summons of the ecclesiastical members of the House of Lords. The bishops are said to sit by a usage compounded of a triple title. They are supposed to be the representatives of the church, to have been more learned counsellors than the lay nobility, and to be the life-proprietary of the baronies attached to their sees. The last condition, however, is wanting in the sees erected by Henry VIII. But parliamentary bishops formed a small portion of the spirituality in the upper house. Out of one hundred and twenty-two abbots and forty-one priors, who occasionally sat previously to the dissolution of the monasteries, it appears that only twenty-five abbots and two priors were constantly summoned. There are numerous instances of the allowance of exemptions to abbots and priors after summons, by reason of their holding nothing of the king. This ground of exemption, as insisted on and admitted, shows whence the duty was derived. It does not follow but that the grounds of right on their part might be more extensive. It is according to this distinction that the writ requiring the attendance of the temporal nobility by summons, belongs to a period and style when its duties were an obligation, and were recognised as such; the patent to a period when they had become an honour. The most important parliamentary change, however, which collaterally resulted from the dissolution of the monasteries, was the subordinate condition to which it reduced the church numerically in the House of Lords. This alteration was likely to diminish the general political influence of the church much more than the subsequent cesser of the convocation in 1663.
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Laws. The authority of the convocation being confined to the clergy, the public at large had little immediate interest in its operations beyond the share which they might therein please to assess themselves by way of ecclesiastical contribution towards the public burdens. In point of fact, the temporalities even of the church seem to have lost nothing from either cause; much less its substantial influence. Few will think, whilst the clergy have been shut out from the commons, and lowered down to the compliment of a single bench amongst the lords, that their friends have not done for them behind their backs quite as much as they could have done for themselves if present. The influence of the church of England in its apparently almost unrepresented and unprotected state, is a great proof how little comparatively depends on the means by which an end is to be produced, when a power, composed of a wealth, an intelligence, and an opinion competent to produce the end, is really in existence out of doors. Although the dignitaries of the Roman Catholic church varied in numbers from time to time, yet they always formed the actual majority of the House of Lords up to the Reformation, which, nevertheless, they could not stop. Here, again, with what prudent reserve did the Roman Catholic clergy husband for ages the political power which mere numbers vested in their hands; and how evident is it that, whatever form, even of superstitious incarnation, the dominant spirit of a government may assume, it is only by compromises that it can subsist. The Stuarts, the great examples of every species of political misrule, would have been ruined by this alone; they were bent on acting up to the very extent and margin of their powers. Nobody reading English history previously to the Reformation would have an idea that during all that time the temporal nobility were in a minority; that therefore their legislative importance existed only by permission; and that every act of the House of Lords might be said to be in strictness the will and pleasure of the church.
The number of the lay nobility has fluctuated considerably. It had advanced from fifty-five in the reign of Henry VIII. to one hundred and six in that of James I. It is at present three hundred and ninety-one. The aristocratical complaint made by Lord Delamere under James II. that, ever since the time of Henry VII., a systematic project had been pursued to humble the peerage, by means of multiplying its numbers, and by introducing into it persons of mean extraction, was particularly injudicious. Unless something of this kind had taken place, the extreme disproportion between the two houses, in their external as well as in their personal titles to consideration, would have deprived the peerage of a great part of its present strength. If the order was to be more than a pageant, it became most desirable to increase its numbers to the extent of giving them a better chance of bearing some comparison in ability and character with the select representatives of the rest of the nation. It was scarcely less so to recruit into their ranks those members of the commonalty who, whatever might be the obscurity of their pedigree, were most distinguished for their wealth or services. Thus alone could the body have been protected against the narrow sense of corporate pretension which must otherwise have infected it. The long recollections which feudalism has left, and the recent jealousy which has collected around corporations, notwithstanding their former usefulness, demonstrate the depth of the national reaction, which all invidious exclusiveness unavoidably provokes. In fact, no amount of popular opinions has been sufficient to save the combination of the great Whig families from a suspicion of aristocratical tendencies of this description. The popular criticisms on the corn-law legislation of landed proprietors are a proof of the keenness which watches
every supposed connection between public policy and partial interests. An evil not quite similar, but equally, indeed in all probability more, destructive in its consequences to the object and safety of the peerage as a branch of the legislature, must follow, whenever its vacancies are too long filled up from a particular party in the state. It is self-evident that the chances of a difference of opinion between a House of Lords partially constructed, and a popular House of Commons, cannot be raised with impunity beyond a certain point. Under the most accurately-balanced government, the question, whether the Lords shall at any time interpose their legislative negative, must of course, as in the case of the king, depend at last on their own discretion. The difference in practice is found in their respective positions. There can scarcely remain a possible presumption in favour of the single opinion of a chief hereditary magistrate, when a majority of the nation, aware of that opinion, is found constitutionally ranged against him. On the other hand, abuse in their original appointments, and ignorance of the duties and necessities of their station, must have gone to an extravagant length indeed before a body of the nature of the House of Lords is put in equal peril by the rejection of whatever measures may be sent up to it by a majority of the House of Commons. Take either extreme; a House of Lords in constant collision with the Commons, or a House of Lords only occupied in registering its edicts. In the former case, it cannot exist long; in the latter, it is already existing only in name.
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Laws. The popular part of the English constitution is lodged in the House of Commons, which originated in the year 1295; and, in its present extension, consists of the representatives of different interests or sections of the community, by individuals of their choice. It is very singular that the simple expedient of popular representation, an indispensable condition to every form of a free government in a great kingdom, never occurred to the legislators of antiquity. By this device, the experiment of a free government is entirely changed, and becomes, under all circumstances, infinitely more practicable, safe, and beneficial. According to the ordinary theory of the English constitution, the House of Commons is said to represent the whole population, as far as it is supposed to be by its circumstances independent. Of these, the knights, or the members returned by the freeholders of the county, are alleged to represent the interest concerned in agriculture; whilst the citizens and burgesses, or the members returned by certain towns, have been described as representing the interest concerned in trade. The basis of English representation, at first very limited, and long extremely fluctuating, was never so extensive as to answer to the first part of this theory; and time rendered it, by the rise of some places and the fall of others, still less so. The reform bill has probably more nearly approximated towards realizing the theory of a representation as universal as the independence and intelligence of the people, at the present than at any former period. The most that can be said of the latter proposition is, that some such division as it assumes between real and personal property, agriculture and trade, probably appeared originally between the two classes of members. This was the natural course as long as the duty of the House of Commons was confined to taxation. The original demarcation would probably continue visible as long as parliamentary attendance was considered as a burden rather than an honour. Historically, this and any similar distinction gradually fell into disuse soon after the 23d Henry VI. That statute required the knights of the shire to be actual knights, or such notable esquires and gentlemen (generosi a natiuitate) as had estates sufficient to be
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knight, and by no means of the degree of yeomen. We find that a county member who had been actually elected, was set aside because he was not of gentle birth. A great change must be commencing before the possibility of the want of such a precaution could be suggested; and still more before the precaution, when taken, should not immediately succeed. The change may be assumed to have begun as far back as the 19th Edward II. when there were twenty-eight county members who appear not to have been knights. Of course the arrangements and very elements of society must have been still further broken up, before a manufacturer could have a chance of a successful nomination with the freeholders of a county court. It is but little that positive legislation upon these points either accelerates or retards. It can recall nothing; and, to be effectual, must continue to be in harmony with the wants and character of the times. This was abundantly proved in the failure of the statute of Henry V. the object of which was to compel members to be inhabitants of the places for which they served. The attempt fixes the era when the deviation from the old connection was attracting general attention. Its pertinacious vitality in the statute-book is a striking instance also of the extreme reluctance with which the English people, so far from anticipating needless innovations, have consented to affirm the innovations made by time itself. Prynne shows that Cornish names were formerly returned in the elections for Cornwall, and northern from the north. Clarendon opens his memoirs by stating the little communication which passed between different parts of the country, even with the metropolis, almost to his own time, except in the circuits of the lawyers. The names of the members for the counties were aristocratical, those for the boroughs plebeian. A few burgesses begin to be called esquires in the returns of Edward IV. By this time the House of Commons was becoming of sufficient importance to render parliamentary influence with a borough an object of ambition to the nobility and gentry of its neighbourhood. The character of the borough representation opened and extended itself accordingly. It soon embraced every description of person who had a claim to enter into public life. The lawyers, to whom attendance was probably less personally inconvenient than to others, appear to have come in earlier for more than their reasonable share. But this expansion and adaptation beyond its original purpose could alone have made the inequalities and anomalies of the borough representation tolerated so long. The citizens and burgesses, though always more numerous, seem to have felt their social inferiority, and for a long time to have continued more humble minded than the knights. Of the three hundred members, the average number from the 23d Edward I. to Henry VIII., a third or more were returned by the boroughs. During this long interval the sheriff exercised a discretion, to the use or frequently to the abuse of which the parliamentary existence, by prescription, of many unincorporated boroughs is to be ascribed. Boroughs by charter, even from mesne lords, and towns, whether the ancient or the actual demesne of the crown, made up the list. Many boroughs were originally inconsiderable places; and others imperceptibly decayed. This latter cause would take effect from the reign of Henry VIII., the date at which the elective franchise became constitutionally too valuable to be left, when it had been once enjoyed, to the mercy of the sheriff, or to be allowed by its possessors to drop into disuse. The royal prerogative of new creations which existed in the House of Lords, existed also over the borough compartment of the House of Commons. Elizabeth indulged herself in the plenary exercise of it in England, as freely as her successor did in Ireland; but, supposing that her sub-
jects had ventured to remonstrate, she was too wise to have ventured, in return, on his indecent answer: "The more the merrier, the fewer the better cheer." The prerogative of adding to the boroughs, however, is one which could not last in an enlightened age. The same reasoning which pleads against a parliamentary or popular appointment of the peerage, presumes a parliamentary or popular appointment of the commons. It is not so surprising, that after the shaking up of the political opinions of the nation during the civil wars, one instance only of borough creation (that of Newark) should have occurred, as that Charles II. should have made the experiment even of one. Borough creations were the great reservoir whence the successive accessions to the numbers of the House of Commons had been supplied. Nevertheless, owing to the course pursued previously to the passing of the reform bill, the interests engaged in commerce and manufactures appear, notwithstanding the vast contemporary augmentation of their wealth, to have had less power in parliament, or at least less influence on legislation, than in an earlier age. The House of Commons in the first parliament of James I. consisted of 470 members. The last unreformed and the present reformed representation, reckoning the additions derived from the Scotch and Irish unions, are not much more numerous. They both given total of 658. The difference between the two lies in the proportions in which these numbers are divided amongst the several classes of the people. It has been calculated that a hundred and fifty-four persons returned a majority of the former house. Counties formed the only large constituencies, whilst scarcely a single large town was represented. At present the franchise is compounded of a ratio of property and numbers. Mere nomination is destroyed; and, on analysing the numbers, it will be seen that the members for counties are 252, the members for towns and the universities 406. This question of proportion, though it has been assumed by critical writers, was evidently never before seriously thought of. The necessity of entering on such comparisons had not yet arrived. The means of securing the impartiality of the sheriff, and the independence of the electors, was formerly a more immediate and important point. It is impossible, from the gross partiality of the sheriffs (officers annually appointed by the crown), to reason upon the old returns. The freeholders of a county court were of course placed comparatively beyond their reach; yet sheriffs contrived to aid in the virtual disfranchisement even of counties. According to Prynne, it appears by the indentures that, as late as the 8th of Henry VI. the attorneys of a few great people could dictate or manage on occasion the representation of Yorkshire itself. In the meanwhile political information was spreading. Reformers of all kinds sallied forth. The decayed boroughs, and the consequent flagrant inequality of representation, became the subject of a criticism, founded on theories more or less correctly derived from the practice of earlier times. The very word representation provoked observation, and was in many instances in ridiculous contradiction with the fact. It appeared impossible that this could be what the constitution intended by the name. Even James I. was struck by it on his accession. The charge given by him to the sheriffs, on calling his first parliament, not to direct a writ to any ancient town, being so ruined that there were not such sufficient residents as to make a proper choice, comprehended a most desirable reform. The fault was in the mode which he proposed for carrying it into effect. The supposed prerogative was more than could be safely entrusted to a sheriff of James I. The system grew more unreasonable every day, both in reality and in appearance; and, to complete its indefensibility, the stain of corruption gradually crept in, and
deepened the offensive spectacle into a scandal and a nuisance. The reform bill has at last brought this long outstanding grievance to a satisfactory conclusion. The elective basis is so enlarged as to comprehend all the elements of sound national self-government, and the independence of the electors is amply secured against all danger but from themselves. The interference of the executive in elections may be more immediately dangerous to freedom; but a constitution undermined by corruption is infinitely more disgraceful to the parties who are guilty of it, and to their fellow-countrymen, who sit still in stupid connivance at their baseness. Lord Coke, mentioning the first case of bribery on record (in the 13th Elizabeth), denounces it "as poisoning the very fountain itself." The disease was communicated slowly. It is not yet a hundred years since it had reached the height and notoriety of being a public evil and a national dishonour. Clarendon, in his disdainful notice of the first ministerial intrigue in order to buy over a majority by bargaining and not by reasoning, leads us back to the origin and cause of all. He fastens on the government the first link of the chain, the length and burden of which naturally increased at every remove. Bolingbroke, the distinguished father of the modern Tories, lays the principal blame of it on Clifford. Members who could make money of their own votes, found it was worth while to pay for the votes of their constituents. Evelyn's Memoirs contain frequent ejaculations on the increasing expense and debauchery of elections, before and after the Revolution. In works of the date of Brown's Estimate and Chesterfield's Letters, it is noticed, for the first time, that the franchise of making laws for the English people was disposed of by boroughmongers under private pecuniary contract, or brought openly to market by burgesses and freemen, for the competition of public sale. The expense of elections, to say nothing of bribery, had become so ruinous, even in the earlier days of Burke, that in a speech on one of Mr. Sawbridge's motions, he says, "the expense of the last election has been computed (and I am persuaded that it has not been over-rated) at £1,500,000—three shillings in the pound more than the land tax."
The antiquarian question of the origin and progress of the House of Commons is interesting, not merely as the title-deeds to English freedom, but as constituting an important chapter in the history of man and of society. It describes the germand development of an institution which, in its extensive and permanent application, is an invention of modern times, and the most likely of all, not even excepting the steam-engine and the press, to influence the fortunes of the human race. In this view, the great consideration is not so much the steps by which its component parts were formed, as those by which its authority was obtained. There can be no doubt that the early summons to the commons was not honorary, but onerous. Long after the general right was perceived to be a national advantage, the particular exercise of it was felt to be an individual hardship. The real history of almost every people is in its exchequer. This is emphatically the case with England. Fiscal considerations lie at the bottom of its most celebrated institutions and enactments. Every body worth taxing was to be got at in some form or other. The right of arbitrary tollage upon towns was limited and invincible. It was abolished in the 25th Edward I. by the time that the new experiment was coming fairly into play. In the facilities which representation afforded to taxation, government soon found a compensation for the slight additional control and inconvenience which the co-optation of the commons into the legislature might by degrees and at times occasion. The yeomen owners of freehold lands were to give an account of their pecuniary capabilities in
that character. Wherever property had grown up in other shapes, as in towns, it was also to be made amenable. Apparently when this was done by way of deputies, which was the ordinary mode in the estates and diets of the middle ages, no particular directions issued. There is not a word said in the writs concerning the qualifications of the electors, or the numbers to be elected, or the forms to be observed, either in counties or in boroughs. Two was the number fixed upon, probably to prevent subsequent confusion, either by prevarication, mistake, or sickness; and usage would soon turn the practice into law. Whilst taxation was the great object at stake, it was one in which all might equally be trusted for labouring to reduce the subsidy to the lowest point. The franchise in boroughs would easily devolve from the towns' people at large to a select council, when all that the voter got by insisting on the privilege, was a liability to pay his share towards the parliamentary wages of the member. The election struggles of a later age, indeed ever since the committee of which Sergeant Glanville was the chairman, have been vain efforts to undo the effect of these irregularities and encroachments. But the great objects of a national legislation and the spirit of freedom were of older date. Long before the actual existence of the commons as a third estate in parliament, the barons had extorted from their monarch, and had transcribed into the rude articles of Magna Charta, a principle and a feeling, before which the traditional longings after the laws of Edward the Confessor speedily expired. There was little left for the patriots of after times to add, but the necessary machinery of more adequate forms and institutions. Magna Charta seems to have been looked upon almost as a personal contract, which it was necessary to renew at the commencement of every reign, in order to make it binding upon successive sovereigns. The terms of its successive confirmations (Lord Coke reckons no less than thirty-two) fixed in the minds of men an inseparable connection between the grant of supplies and the redress of grievances. The House of Commons put forth at different periods the claim to its peculiar privileges and its general powers. As early as the reigns of Richard II. and Henry VI., we find it refusing to proceed in the public business without a sufficient answer. For a time the two houses voted separate and unequal aids. The first notice of the maxim that parliamentary aids must be granted by the commons and agreed to by the lords, appears in the 9th Henry IV. As the report expresses it, when both are of accord, the grant is to be signified to the king by the mouth of the speaker of the House of Commons. This is said to be "in manner and form accustomed, to the end that the lords and commons may have what they desire of the king." The strictness of this privilege can never have stood on any sufficient reason. It was unimportant whilst the two houses voted their subsidies singly, and bound each other to different amounts, which continued to be the course with the clergy in convocation to the last. It was still more indifferent which of the two began from the time that supplies were voted by them in concurrence, since either house, by the use of its negative, could protect itself. Restraints on the initiative are not worth contending for. The exclusive right of determining all questions connected with the elective franchise would have been a more equitable distinction. Upwards of a quarter of a century before the third estate was called to parliament, the barons had paid the subsidy demanded of them into the hands of four of their own order, with directions to expend it at their discretion for the benefit of the king and kingdom. It was not until after the Restoration that the House of Commons was provoked by the scandals of the court of Charles II. to adopt the much more respectful form in use at present, for the control and appropri-
tion of the national expenditure, although Clarendon de-
claims against it as an unheard of innovation. Of all their
civil rights, immunity from taxation, except through par-
liament, has been that of which the English people were
most tender, and which they first succeeded in thoroughly
and irrevocably establishing. After the reign of Ed-
ward III. a few attempts, ill concealed under the soft
words of loans and benevolences, are slight exceptions to
the universal current of precedents. On this, admitted
by Clarendon to be the clearest of all points, the Stuarts
dragged the judges with them into the abyss. The pa-
tience and perseverance of the English people are equally
signalized in the steady parliamentary resistance by which
the account of ages was closed with the act of the 16th
Charles I. c. 8, against the imposition of tonnage and
poundage, without consent of parliament. It is the last
act in the statute-book against arbitrary exactions of re-
venue. The right to participate equally in general legisla-
tion was obtained early, but slowly enforced. The 10th
Edward II. had recognised the necessity of the concur-
rence of the commons to all measures whatever in the
most positive terms. It is probable, however, that for some
time afterwards, its assent for all purposes except taxation
was little more than constructive. The commons, it is
true, after the next reign, figure, by name at least, almost
always in the enacting clauses; the laws being generally
said to be made by the king, with the assent of the lords,
at their request. At this period, however, the king, by
diminutions and additions to a petition, often so complete-
ly changed its nature, as to become himself the real legisla-
tor on its contents. They consequently insisted, in the
2d Henry V. "considering they had ever been as well as-
senters as petitioners," that without their assent it should
be no statute. The abuse was only put an end to in the
reign of Henry VI. by the slight variation of drawing up
the bills in their present form. There is only one instance
mentioned during the tyranny of Henry VIII. of the re-
jection of a bill supported by the crown. The commons
found courage on several occasions to resist the measures
of his children. The year 9 Henry IV. above referred to,
is also remarkable for the first assertion in behalf of free-
dom of speech in parliament, by declaring that the king
is to take no notice of what passes there. This impunity
is confined, however, to the locality of the speech so spoken.
A publication of it by the press or otherwise is responsible
to the ordinary law. The earliest definition of privilege
on arrest is in Larke's case, in 8 Henry VI. The case of
Storie in the 4th Edward VI. is the first commitment which
has been recorded of one of their own body for contempt.
In proportion as the House of Commons became gradually
more and more mixed up with the general affairs of state,
the possession of these powers and privileges rose in im-
portance, as being essential to its independence. Mere as-
surances of this or that immunity are of no avail, unless
the means of realizing them also exist. The necessity to
which Sir Thomas More was obliged to yield, of retiring
into private life, in order to escape the displeasure of
Henry VII., on account of a speech in the House of Com-
mons, shows that the season for a valid parliamentary oppo-
sition had not yet arrived. In the attack upon the five mem-
bers in the house itself, Charles I. overrode himself.
On other occasions, he had lain in wait for the dissolution
of parliament, which was his usual signal for resuming
more open hostilities against the liberties of his people.
As soon as the speaker's mace had been disenchanted of
its protecting power, the royal warrant was wont to go
forth against the most popular of the late members by
whom his illegal designs had been principally thwarted.
The law and the fact, however, improved together. Both
houses have long been in possession of whatever powers
can be necessary for the performance of their public du-
ties. Popular members are as safe after as during sessions.
Nobody dreams of intimidation. Parliamentary corruption
has not merely declined; it has almost disappeared. If a
comparison between the pensioners and placemen of an-
cient parliaments, with the modest list of officers of the
crown sitting there at present, be satisfactory, what ought
to be felt at the contrast between the unblushing bribery of
Walpole's administration and the purity of modern govern-
ments? The compulsory economy introduced into the
treasury has co-operated, with other causes, of which the
chief is public opinion raised under the sanction of the
middle classes, to elevate the standard of public morals
amongst public men. The boundary which separates legi-
timate and undue influence, is that at which practical po-
liticians no less than theoretical reasoners have arrived at
last. As corruption began at the top, it has first ceased
there. Whatever remained to be done in improving the
public spirit of the elected, as well as of the electors, it is
the direct tendency of the reform bill to accomplish. The
elective franchise is now thoroughly identified with the
nation, and is made, in the eyes both of those who choose
and those who are chosen, more visibly and entirely a
public trust. The destruction of the nomination boroughs
leaves no pretence for the open constituencies which per-
severe in converting the trust into a sordid personal advan-
tage. The parts which unfortunately appear to continue
tainted are as yet inconsiderable. Unless they yield to
the alternatives by which the whole body politic has been
renewed and strengthened, they must be cut out. His-
tory holds out no hope that the inconsistency of incorrupt
representatives and of corrupt electors can continue long.
The supposition of a legislature consisting of three co-
ordinate authorities, does not imply a defined line or log-
ical division to which they must each conform, and which
every body can distinguish; on one side of which, the con-
currence of the several parts must degenerate into mere de-
pendence; whilst, on the other, their separation must form
into impracticable opposition. The experience, however,
of all mixed governments, more especially a comparison
of the case of England with that of countries subject to
the simple forms, establishes the fact that it is not a
mere fiction, concealing under nominal distinctions the
real servility of the inferior in their subjection to the su-
perior members of the supposed partnership. It is evident
that a sort of adjustment does practically take place, suffi-
cient to produce a palpable effect. The nature and tem-
per of a particular society may easily make such a consti-
tution impracticable. But, under fortunate circumstances,
it in a great measure accomplishes the ends which it is its
professed object to perform. The problem assumes the
natural inclination of its respective parts to press unduly
on each other. In tracing a constitution which has been
formed by time, and has endured through ages, the tendency
of the several biases must be expected to be more appar-
ent, now one way, now another, than in a government of
entirely new construction. Encroachments at different pe-
riods are more likely to take place, from a recurrence to
former usages on one side, or from a spirit of re-action to
them on the other, in constitutions which have grown up,
like those of England and ancient Rome, by the amend-
ments of centuries, than in mechanical contrivances, like the
government of Lycurgus and that of America, modelled
from the beginning and at once, on an express design. Ac-
cordingly, English history presents examples of each branch
of the legislature in its turn assuming a legislative power.
The king has issued his proclamations to create, not to
promulgate law, under the pretence of state expediency.
An irregular exercise of the equivalent power of suspend-
ing or dispensing with the law, in other words, a claim to
Government and Laws. untie by himself the knot which the entire legislature had tied, had prevailed so long, that even at the Revolution it was only partially denounced. Ordinances authorized by both houses, whether for the militia or otherwise, are equally indefensible. The same is the case a fortiori with resolutions by either house singly against putting in execution such laws as happen to be unacceptable to it, but which the other branches of the legislature are not willing to repeal. Notwithstanding a most unguarded admission by Mr Justice Gould to the contrary, in the conflicting decisions which arose out of Wilkes's case, there can be no doubt but that the doctrine of Lord Mansfield is correct. Speaking of declarations of law made by either house of parliament, he observed, that he never thought himself bound in his judicial capacity to honour them with the least regard. The vote of the commons in 1648, that their single enactment was law, called forth on the Restoration the statute of 13 Charles II. It subjects to the penalties of præmunire, the advised affirmation that both or either of the houses of parliament have any legislative authority without the king. The unconstitutional attempts of both houses, especially of the lords, to extend their jurisdiction as courts of justice, brings us properly to the next consideration.
Judicial power. The necessity of separating the judicial from both the legislative and the executive power, and of vesting it in independent tribunals, is now universally admitted. But it is a necessity which antiquity never perceived; and it was in direct opposition to the letter and the spirit of the feudal system. Therefore the successive generations which moulded the English constitution into shape, may be excused for having learned it but slowly and by experience. English history providentially is stained with fewer judicial iniquities, which are the greatest of all crimes, than that of almost any other country. But a failure of justice is the worst feature of the long period comprehended in the lines of Plantagenet and Tudor. Perhaps the greater part of the deficiency is to be attributed to the imperfect division of these powers, especially of the executive and judicial. Lord Clarendon has left a picture, sketched as late as the middle of the reign of Charles I., of what may be expected from a legislature, a court of justice, and a board of administration, all in one. Officers of the crown became "a court of law to determine civil right, and a court of revenue to enrich the treasury; the council table by proclamations enjoining to the people that which was not enjoined by the laws, and prohibiting that which was not prohibited; and the star-chamber, which consisted of the same persons in different rooms, censuring the breach and disobedience of those proclamations by very great fines, imprisonments, and corporal severities; so that any disrespect to any acts of state, or to the persons of statesmen, was in no time more penal, and the foundations of right never more in danger to be destroyed." The supreme courts at Westminster were originally derived out of the royal court or aula regis, which consisted of the great household or personal officers and the barons. They were intended to dispatch the ordinary judicial business, especially during the absence of the household and personal officers in attendance on the king, or when the barony might not be assembled. The authority of these derivative courts, whatever might be the case with the aula regis as far as concerned the barons, was not in the eye of the law inherent. It was supposed to be delegated to them by the king, as the fountain of justice to his subjects. The judicial power of parliament, however, was not displaced, nor meant to be so, by these auxiliary institutions. Fleeta, writing in the reign of Edward I. treats it as still the high court of justice, "where doubtful cases of judgments are resolved." There can be no
Government and Laws. doubt but that annual parliaments were first demanded, and their intermission felt to be a much more serious grievance on account of their judicial than of their legislative capacity. It is evident, from the state of the early statute-book, that the meeting of many a parliament might have been saved had they met only for the purpose of legislation. There is a memorable order of 18 Edward I., by which petitioners to parliament are apportioned to the several subordinate courts of justice, both for their own dispatch, and to enable parliament to attend to public business. If the matter happened to be so great or of such grace that these courts could not end it, the chancellor and chief ministers were with their own hands to bring it before the king and his council. Coke observes, that wherever the king and council are mentioned judicially, it is to be interpreted to mean the House of Lords. The celebrated treason statute, 25 Edward III. closes its enumeration of the treasons specified therein with the express reservation of "other like cases of treason which may happen in time to come." In which case "the judge shall tarry without going to judgment of the treason till the cause be showed and declared before the king and his parliament, whether it ought to be judged treason or other felony." The reservation, however inconsistent with the right of a people that the law shall be defined beforehand, so that they may know what to avoid, and under what penalties, is plainly a reservation of judicial and not of legislative power. In fact, this parliamentary superintendence is recorded, on the authority of Chief Justice Thorpe, to have been at that time the common course in other cases as well as treason. He stated, in the 40th Edward III. "that he and Sir Hugh Green went together to the parliament, when there were present at least twenty-four bishops and earls, and asked the opinion of those who had been the makers of the late statute of treason, concerning the alteration of a record." "At another time," the same judge says, "we were commanded by the council, that when any case of doubt should happen, we should not go to judgment without good advice; therefore," adds he, in the case then before the court, "go to the parliament, and as they will have us do we will, otherwise not." The danger from this anomalous tribunal would have been increased a thousand fold, if the lords had succeeded in the unwarrantable claim which they set up in 11 Richard II. to a law of parliament differing from the civil and the common law. The extension of this irregular claim by Coke to the privileges of the lower house was more, certainly, than the imperious barons of Richard II. ever contemplated by their mutinous declaration. But it is still more unwarrantable, and more surprising, that Burke should have renewed the doctrine of a parliamentary supremacy, in judicial proceedings before parliament, over the rules of ordinary law. As the penalty of this grievous error, his admirable Report on the proceedings against Warren Hastings remains comparatively unknown.
The share which the House of Commons took in this judicial jurisdiction was, if any, very inconsiderable. Thorpe in the above passage uses the word parliament, but mentions only earls and barons. The ordinance 6 Henry IV., which has provoked so much legal spleen, from its directing that no apprentice or other man of the law should be elected a knight of the shire, took its hint from a previous one in the reign of Edward III. against lawyers practising in the king's court. They were accused of putting forward, as public petitions of the commons, matters which concerned only their own clients. Notwithstanding the expression client, the ground of disqualification here assigned relates probably to what was formally legislative, and not judicial business, something like the private bills of the present day. From the course of the constitution,
as well as on their own disclaimer, Mr Hallam considers that the intermeddling at all in judicature by the commons upon the petitions addressed to them, was pure usurpation. He suggests that their intrusion may probably account for the disuse into which, from the time of Henry IV. the lords allowed their appellate authority to fall. It is very difficult to make out the steps by which they could have claimed the right in question. But there is some difficulty in conceiving that the influence of the House of Commons was so commanding at the period in question as the alternative supposition would imply. Could they be strong enough to make good a mere encroachment of this sort, and leave a competitor like the House of Lords no other method of resisting their invasion of its ancient right than by also abandoning it altogether? Writs of error were resumed by the lords about the accession of James I., renouncing all claim to any original jurisdiction in judicial causes. This is surely anomaly enough. All pretence for the other had disappeared in the equality of persons, in the uniform supremacy of the law, and in the acknowledged excellence of the ordinary tribunals. Notwithstanding this disclaimer, the extent to which the English legislature, under circumstances more or less excusable, perplexes itself with questions properly belonging to courts of justice, is subject to serious objections. It nowhere appears to such disadvantage as in bills of attainder, of pains and penalties, and divorce bills, which are all proceedings of a judicial nature applied to a case of ex post facto law. In judicial inquiries, carried on as such by either house, its numbers, partialities, habits, and the intrinsic difference between legislative and judicial considerations, make it impossible to convert a legislative assembly into a satisfactory court of justice. This truth has been frequently, and is still, occasionally verified. In its character of a court of ultimate appeal, the House of Lords escapes the disgrace which must otherwise have been heaped upon it long ago, by retaining the jurisdiction only in name, whilst the jurisdiction is in fact abandoned to its legal members. There is more to be said for so peculiar an exception as that of an impeachment. But later precedents, as in the instance of Warren Hastings and Lord Melville, do not warrant the expectation that an impeachment, even before such a body, can easily become an efficient instrument of justice. The only judicial matters which can be brought before the House of Commons are proceedings for contempts. Hurried on under great excitement before the whole house, they are exposed in an aggravated shape to whatever risk proverbially disqualifies an individual from being a judge in his own cause. It is only in comparison with what is recorded of the trial of disputed elections by the house itself, that election committees have acquired a conditional reputation. Committees on private bills are frequently legislative only in form, whilst they are in reality judicial inquests. They consider themselves above even the forms of justice. Nothing is more common than for members to oblige their friends, by stepping in to divide upon the merits of a case, where they have never heard a syllable of either the evidence or the discussion. It is a singular instance of the force of habit, and of the barrier raised by technical distinctions, that this is done by persons who would act nevertheless with perfect honour upon a jury.
In a simple state of society the judicial and executive authorities are always found united. Eastern kings administered justice at the gate; St Louis under the oak. A confusion between these authorities is therefore, under all governments, in the natural course of things a more probable event. The original theory of the English constitution, as far as theory can be predicated of its rude provisions, saw no incongruity between the duties. The
traces of an entirely opposite presumption are still amongst the minor embarrassments of at least the language of the law. The administration of justice in the name of the king was formerly more than an honorary prerogative. It was a feudal truth and necessity. It is now a fiction which can only mislead both kings and people. Blackstone says, that when the law calls the king the fountain of justice, it does not mean that he is the author of it, but the distributor. Yet there are many things contrary to this distinction, and the contradictions show most strongly the mischief of these metaphorical compliments. The payment of fees on original writs, the unjust rules in the exchequer in behalf of the prerogative, the flagrant fines in the olden time as the only means of obtaining common justice, presuppose that the king was so far its author that he could only be asked to grant it upon his own terms. Judicial extortions became less frequent after Magna Charta; but they prove the grievous necessity which existed for its assurance that the subject should have remedial justice, "freely without sale, fully without any denial, and speedily without delay." A tax on justice is one of the worst sources of royal revenue, under whatever title it be imposed. At the present day the propriety of completely separating executive and judicial duties is the tritest truism. It is next to impossible that a sovereign should have the leisure, the attainment, or, in the most important cases, the impartiality, to administer justice in his own person. The guilt of tampering or of intimidation addressed to the judges, to whom the king has on the part of society committed his judicial trust, is a heinous offence in the meanest subject. When it proceeds from the king it is aggravated a thousand fold. But it is not enough that the hands of justice should be pure. Their purity should be beyond suspicion. For this purpose the independence of the bench ought to be maintained above all possibility of fear or favour. Perhaps there is no better evidence of what had long been only tradition concerning the personal attendance of the king in his courts of justice, and on the limits within which he was confined, than is contained in the case of jurisdiction of the House of Peers in the year 1666. It is there said, that "when the king attends in the House of Lords in his judicial capacity, he sits but as chief justice, doing nothing singly, but by plurality of opinions, as when the kings would in person sit in the king's bench, which they have in former time done, where all is said to be coram rege, though now he never come there; and in our memory King James hath sate in the star-chamber." It is natural that the king's presence should be last seen in the courts, which were not made unintelligible to common understandings by the forms of the common law, and which, by retaining the longest the name and the character of his council, seemed to keep the nearest to his person. Serjeant, when elected speaker in 1640, tells Charles I. "My disabilities are best known to myself; and to your majesty, I suppose, not altogether unknown; before whom, in the course of my practice and profession, it hath been your goodness towards the meanest of your subjects divers times to do me the honour and favour to appear and bear a part as an ordinary pleader." So little did the Plantagenet generation know what they ought to have prayed for on this subject, that in a list of very bold articles presented by parliament, to which Henry IV. consented in the eighth year of his reign, there is found the following request. It was prayed his majesty, that, "considering the wise government of other Christian princes, and conforming himself thereto, he would assign two days in the week for petitions, it being an honourable and necessary thing that his lieges who desired to petition him should be heard." James I. had a great longing to exhibit every phasis of his learning to his subjects. After having been told in Wraynham's case by
the judges, cessat regnare qui cessat judicare, it is not surprising that he should think the opinion of Lord Coke, that kings of England were incapacitated from the exercise of any judicial functions, little short of treason. Nothing, however, is more fully settled than that, as on one hand, the House of Lords, the Privy Council, and the ordinary tribunals of the common law, derive all their judicial authority in the first instance from the crown; so, on the other, whatever judicial authority the king originally possessed, it was possessed as in a reservoir, and has since all passed out of him into the appointed channels of his courts.
Direct interference on the part of the crown with the integrity of the judges was unfortunately not peculiar to the Stuarts; but it ended with them. It was carried by them also to such extravagant and unheard of lengths, as to throw all previous outrages of this description into the shade. The ignominy of the imputation has rested therefore principally on their name. Elizabeth had the sense to respect the honour of the interpreters of her laws; so that Coke felt what he called the taking of auricular confessions by James to be a novelty and a disgrace. The course, however, of the whole judicial history of England teaches a great lesson: the extreme difficulty of maintaining freedom with dependent judges. The struggle began at Nottingham, with the treasonable surrender of the infant constitution of their country by Tresilian and Belknap, in their discretionary expositions of law to Richard II. The impunity of intervening centuries tempted the colleagues of Finch and Crawley to believe that, supported by a sovereign at least as arbitrary, they might in their day set parliament at defiance. Although their virtue often failed, yet, in the main, the judges of the supreme courts of Westminster did their duty beyond what could have been expected. Fortunately for their characters, special commissions, composed chiefly of courtiers, were issued on most occasions of jealousy and alarm. In consequence, they seem to have kept their ground in the confidence of the public much better than the subordinate magistrates, who were subject, but in a less degree, to the same influence. These latter never gave much satisfaction. The ancient conservators of the peace, instead of continuing to be elected by the freeholders, were turned, in the first year of Edward III. into nominees of the crown. The necessity of suppressing the malefactors, who appear in those days to have been at times encouraged by members of the nobility, could not prevent the justices so appointed, on the extension of their jurisdiction, from becoming speedily unpopular. A petition from the House of Commons, in the 11th Richard II., declares that "every freeman in the land would be in bondage to these justices." Even in the retrograde years between Henry VI. and VIII., the difference between the independent tribunal of a jury, and that of perpetual officers connected with the executive, was well established. The right that criminal proceedings should follow the course of indictment and of the common law, is repeatedly and earnestly urged. Juries had so far begun to do their duty, that the fiscal purposes of Henry VII. could only be carried into effect by enabling these creatures of his power, removable at his pleasure, to try all offences except treason and felony by themselves. The restoration of a jury to its pristine rights was one of the measures by which Henry VIII. won, on his accession, the popularity which he afterwards so cruelly abused. This affection of a return to the old constitutional character of the English courts of justice, was soon overthrown by terrible innovations, like the creation of the president and council of the north, and of the Welsh marches. The worst part of these novelties consisted in their in reality placing the judicial and executive authority in the same
hands. What could the subject expect from a tribunal of which Wentworth was the president? Mr Hallam says that these and other irregular tribunals, when abolished by 16 Charles I., had usurped so extensive a cognizance as to deprive one third of England of the privileges of the common law. It was nevertheless reserved for the high churchmen of Charles II. in the year 1664, to return to the charge. Legislating against what they unjustly called seditionary conventicles, they ventured to arm a single justice (it is necessary to remember only what were the dependent justices of those days) with the power of inflicting seven years transportation on a third conviction of the offence of worshipping God contrary to act of parliament.
The objection applies still more strongly to the original authority of the sheriff. The shrievalty was generally sold by the Norman kings, and was an office of great emolument, and still greater influence. The coroner, with his limited inquest of criminal police, was left to popular election. But the sheriff, from the conquest downwards, except during the sixteen years which intervened from the 28th Edward I. to the 9th Edward II., was nothing but the annually nominated servant of the crown. Great judicial authority was intertwined with his civil superintendence over his county; the more so, because the law has never sufficiently distinguished between acts which are judicial, and acts which are ministerial only. Although in the hundred and the county, as well as in the baronial court (not being courts of record), the freeholders were the real judges, both of law and of fact, the sheriff's authority was the subject of great alarm. The principal sources of this jurisdiction were by degrees turned into other channels. Criminal pleas were taken from him entirely as far back as Magna Charta. The complaint upon which that clause was founded had only sought that he should be restrained from hearing them except when assisted by the coroner. The confidence felt in the popular presence of that officer for decompounding and breaking up this dangerous identity of powers, appears by several other writs in Rymer. The justices-in-cyre, not being the same always as the judges of Westminster, were probably often but partial improvements on the local administration of the sheriff. Their circuits, however, facilitated the transfer of most of the civil as well as the whole criminal business into a more strictly and purely judicial court. The civil cases still cognizable in the county court, in which the sheriff is both presiding officer and executioner of justice, are the inconsiderable and almost obsolete remains of former usage.
From this brief review, it appears that formerly the judicial power was often placed in the same hands with the legislative and the executive. This probably never took place without the people suffering severely from it. The small territorial jurisdictions, civil or criminal, must have been the worst of all. The existence of other checks at present, and the vigilant rapidity with which public opinion keeps hovering over and bearing down upon all official misconduct, may blind us as to the importance of the principle itself. A hazard, of which the only actual mischief is in the precedent, may seem not too much to incur for the convenience of this or that exception. At the same time, no nation is wise which in such a case presumes too far upon its security. A judge, when member of the legislature or of the cabinet, is in a position which ought to create, both with himself and with the people, a degree of watchfulness, not to say jealousy, far beyond the case of other men. It is to be remarked, that the greatest of all exceptions which occurs in this respect in English practice, that of the Lord Chancellor, occurs in the very instance where the existence of the judge depends on the casualties of the ministry of
which he is a leading member. An examination of the judicial removals during the Stuarts shows the extent to which the hopes and fears of the bench were constantly played with. It was a system, and not an accident. Nothing short of the 13th William III. could have put it down. That statute altered the patents of the common law judges, from patents during the king's pleasure, to patents during their own good behaviour. The little that was left to be done, was done at the accession of George III. This last amendment consisted in excepting their commissions from the fate of all other crown appointments, that of being vacated on its demise. It was a very prudent waiver of the little remnant of arbitrary power which, strange to say, had in the interval been misused. But the waiver could of necessity be made by any actual sovereign, solely at the expense of his successor. If a stop had been put to the analogous suspicions connected with the promotions of judges and the translations of bishops, it would have obviated an evil of more frequent recurrence. On considering the elements of the character and of the happiness of the nation, the English people are perhaps not more indebted to their participation in legislation by means of the House of Commons, than to their share in the administration of justice in the capacity of jurors. Not only has the executive been kept at bay by their interposition, for the legal verification of the fact at issue, but the legislature has received more than one useful warning from their collateral influence on the law itself. For both these purposes it was indispensable that intimidation should be removed from a juror as thoroughly as corruption; and that offences imputed to him in the discharge of his duty should be investigated and punished as cautiously, as reverently, and before as impartial, if not as solemn a tribunal, as similar offences imputed to a judge. The day when, in Bushell's case, the court relinquished the pretension of fining or imprisoning a jury for its verdict, ought to be as memorable as any in the annals of the victories of justice. It heralded in, and was in no degree less important than, the day which made it impossible that any successor of Pemberton (for even the chief-justice who tried Russell had paid too much respect to freedom) should be arbitrarily displaced. In this point of view the dissatisfaction expressed by Jefferson with the corresponding rule in the constitution of the United States, that the judges are irremovable, except by a resolution of two thirds of congress, is very surprising. The exception would seem amply sufficient to secure the legislature the necessary discretionary control. Considering the position occupied by the ordinary courts of justice in the United States and in England, it is impossible that they can make any serious encroachment on the other departments of the state, without a degree of negligence or connivance on the part of the legislature utterly inconceivable. The cry against judge-made law, on the ground of its being an unwarranted encroachment, appears also, to the extent to which the common law courts have carried their incidental legislation, to be quite unfounded; and most of all in England, where the common law judges are much more justly liable to the inconsistent accusation of standing too stoutly upon the letter and strictness of the law, and of having brought on the necessity of an equitable jurisdiction and of irregular tribunals, from their narrow adherence to precedents and forms. They are not answerable for the main defects of the English system, whether in the body of the law itself, in the centralization of the metropolitan courts, or in the inadequacy of the local jurisdictions.
A government, where in point of form the legislative and judicial authority appears to emanate from the crown, is certain to have placed its executive power solely in the
king. Long after the two former authorities have succeeded in gradually emancipating themselves from every thing but the antiquarian recollection of their original subordination, the latter arrangement will in all probability retain its pristine vigour. This is the consequence of the substantial advantages which belong to a single and permanent executive. Such, at least, has been the course pursued in England. The founders of the republic of the United States, from their near observations upon the French Directory, and from their personal experience of the disunion of executive committees during the war of independence, admitted the propriety of placing the necessary powers of the general administration in the hands of a single individual. The name, whether king or president, is hardly worth discussing. The great questions are, the mode by which this supreme magistrate shall be appointed, and the powers with which he shall be invested. In comparing with this view the English and the American systems, the principal difference between them is in the mode by which the executive is appointed, and not in the amount or nature of its powers. In their jealousy of the concentrating effect of power, the Americans have subjected all the members of congress, the senate as well as the house of representatives, and the office of president equally with the senate, to the principle of rotation; only differing in the degree of rapidity with which the elective wheel in the several cases performs its circle. By this specific the evil tendencies of political power are supposed to be reduced within manageable limits. Impartial spectators, on comparing the risks of hereditary descent as experienced in England, with the risks already manifested in the quadriennial presidential elections of America, may perhaps be disposed to decide in favour of an hereditary parliamentary title, with reference to the actual passions and prospects of society. A four years' lease of the president's chair may be too exciting a prize to be safely left to popular competition. Besides, the very character and abilities most likely to be admired, are those on which the temptations of such an elevation must act with the greatest force. It is one of the advantages of the English system, that whilst the doctrine of descent greatly limits the probability of dangerous talents in a sovereign, the mechanism of the constitution is so well arranged and understood as to do its work without them. The powers vested in the royal executive are not extreme; for they are nearly the same as those which it has been found necessary to maintain in the United States, notwithstanding all the advantages of a new country.
Under an ancient but progressive government, the executive authorities of the chief magistrate, like all the other authorities of the state, must be capable of being considered in three different points of view. These are, the historical, the actual, and the philosophical. Its constitutional history will vary, both in the facts which it exemplifies, and in the reasoning by which it is explained, at different periods. The correct legal description of it at any given moment, for instance the present, can represent at most only the law and practice of the age. The philosophical conclusion, how far it ought to extend in reason, may be, and probably will be, only obscurely signified in either of those inquiries. Mr Allen, in his inquiry into the rise and growth of the royal prerogative in England, and Mr Hallam, in different parts of his constitutional history, have left little to be added upon the first division. Mr Bentham, in his treatise upon legislation, has generalized upon the last. The legal exposition of the second is all that Blackstone properly undertook. Nothing certainly can be more absurd than the language which he has copied, in order to express the paradoxical fictions of the supposed attributes of sovereignty, perfection and perpe-
Govern-
ment and
Laws. The parliament which consented to describe the forfeiture of the crown by James II., under the euphemism of an abdication, proceeded in the selection of the word on many precedents. Their ancestors, at every compromise with royalty, had demonstrated much indifference to words, provided that the end and consummation were substantially achieved. In English constitutional law, an unlimited and almost oriental deification of expression is found alongside of rights strictly limited and specifically defined. The Plantagenets, however, were much more cautious than the Tudors in bringing this inconsistency to the test of a collision. Unluckily for the Stuarts, they were mystified by the welcome homage of servile civilians and meddling churchmen. By forcing on the solution of the problem, they learned too late, that from the fact of the prerogative being incorporated with the law, whatever was not found there could not possibly be within it. Even Locke's definition of prerogative, which Blackstone has thought fit to praise, is too liberal, not only for the rights of reason, but for the rule of law. "The discretionary power of acting for the public good" does not extend to all cases "where the positive laws are silent;" but to such points only as the constitution has expressly reserved for this discretion. Otherwise we come to the intermediate inherent power on which James I., in his Flowers of Grace, claimed for royal proclamations the force of temporary laws. The proper course on such extraordinary occasions is for ministers to act on their responsibility, and trust to parliament for an indemnity. The Stuarts were doomed to make the additional discovery that, among prerogatives strictly legal, there were some, both prerogatives of authority and prerogatives of revenue, which, being false in principle and mischievous in effect, the public had become sufficiently intelligent and powerful to recall. Our early kings, in the insidious reservations (saepe jure corona nostra) by which they narrowed many of their most popular concessions, had succeeded in a great measure in rendering that part of the constitution unimprovable and fixed. This was the course, before notions of an abstract jus regium by consent of nations, or the doctrine of a native immortality in the prerogative, which acts of parliament even could not reach, had been yet imported into courts of law. A struggle which could only be kept up by these new and desperate assertions, was evidently near its close. These novelties were in part the penalties of the Reformation, at least as applied to England. Henry VIII. obtained for the crown a new prerogative on that occasion. It was a more dangerous one than perhaps all before it, in consequence of the greatness of the subject which it concerned. The act of supremacy was the corner stone of the high commission court. Mr Hallam truly observes, that "the real aim of the clergy, in enormously enhancing the pretensions of the crown, was to gain its sanction for their own." They played into each other's hands. If, as Mr Hallam affirms, the nation might be considered, up to 1640, as having been, "in regard to spiritual dominion, a great loser by the Reformation," it would have lost every thing in regard to the crown, had civil liberty depended on the loyal sophistries of the church. The apparent strength of the executive on the breaking out of the civil wars, presented so formidable an aspect, as to deceive even Strafford not only into a desertion of the cause of the people, but into the adoption of the language and sentiments of Laud. From the example of former times, and from the external superiority which necessarily surrounds the throne, he egregiously miscalculated the means of the two parties who were then about to decide this battle by an appeal to arms. It is scarcely less surprising, after its results, to find political judges like Jeffries so intoxicated
by the saturnalia of the Restoration, as to continue to hazard these and similar insane dicta, down to the very eve of the Revolution. On that event the nation carried the principle of the exclusion bill by acclamation. The exclusion bill was looked upon, from the time that it was first mooted, as the extreme case. It was among the principal argumentative advantages of the Revolution, that it put an end to all discussions founded upon the supposition of inviolable prerogatives, then and for ever.
Govern-
ment and
Laws. It is perhaps not too much to say that the direct prerogatives, in respect of authority, which were objectionable, are all either abolished, or, in case the law of England allowed of desuetude, are obsolete. Some few incidental ones remain, which appear to be in the course of removal; since recent legislation has happily shown a desire to look towards a reformation of the law. It is unfortunate that the direct prerogative, which is on the face of it the most revolting, nevertheless, from its having so long principally supplied the king's service with seamen, demands, in the immediate modification of it, considerable caution. Marine impressment, it must be remembered, came in, however, upon no supposed necessity of this nature. It is the remnant only of a doctrine and a practice which at one time included soldiers, and many classes of civilians. Like most other prerogatives, it was abused under Charles I. for the purpose of extortion. Several of the common people who refused loans are said to have been pressed into the navy. There has fortunately been such little demand for prerogative learning since the great argument of ship-money, that the judgment of Sir M. Foster in Broadfoot's case, in the year 1743, in support of the legality of impressment, was wanted to recall the attention of English lawyers to the several conditions which the law requires as evidence of a subsisting prerogative. The debates on the alien act revived these discussions for a season. The lawyer and the statesman look at questions of this kind from different points of view. The first regards what is; the second, what ought to be. For whether the particular powers are wanted, and where they should be placed, are further questions. In case these questions are settled in the affirmative, it is unwise, by division, rotation, or a multiplicity of checks, to reduce their efficiency below a certain point. Society loses more than it gains by such expedients, as often as necessary powers are thus incapacitated for the due performance of their functions. This was frequently attempted in ancient times. On the other hand, governments cannot be too cautious against the abuses which constitute the provocations to such restraints. Unjust interpositions of the nolle prosequi, and of pardon by the crown, gave popularity to the appeal of murder. Lord Holt, looking back rather than around him, called the anomaly "a noble remedy." Several petitions were vehemently urged by the commons of former days against the generous prerogative of mercy. The degradation by James I. of the prerogative of honours, by bartering them, for the first time in English history, for money, and the subjecting the peerage by Queen Anne to the personal ambition of a minister, have the same tendency. They bring the prerogative itself, as well as the subjects of it, into disrepute. The prerogative of making peace and war was tarnished by the base negotiations of Charles II. It was damaged later still, when Chatham himself was not able to withstand the electoral prejudices of his sovereign in behalf of a campaign in Germany. The observation may be extended through every department of administration. It applies especially to the formation and the government of so jealous and delicate an engine as that of a standing army. The moderation which the executive had displayed in the exercise of more qualified powers, could alone have introduced into and kept in the mu-
tiny act the clause by which courts-martial are enabled to punish mutiny and desertion with death. It was inserted for the first time in 1718; and it was only carried at the time by small majorities. Of the impolicy of creating an atom of waste power there can be no dispute. But if the power is really wanted, they are sorry horsemen who are obliged to keep the strength and courage of their horse permanently below his work, as their only means of riding him. On the supposition that the powers are fitting powers for the executive magistrate to possess, the appropriate remedy is to apply ministerial responsibility to such cases, and to take care that the responsibility shall be a reality and not a name. The healthiness and vis medicatrix of the general system must do the rest.
The prerogatives of revenue depend on a different class of considerations. The financial purchase of tenure by chivalry from Charles II. and the subsequent arrangements entered into on granting successive civil lists, have not gone so far towards completely sweeping out the holes and corners of the exchequer as might have been wished. The last fibres of the barbarous fiscal pretensions which flourished there in former days have still to be rooted up. The national revenue, properly considered, consists of the portion of his property which each subject contributes to the state, in order to secure the remainder. That being the just principle, its demands should be limited in amount to what is necessary for the proposed object, instead of setting a fiscal net to catch an irregular and indefinite number of certain matters. Further, by an accurate calculation and repartition, the necessary taxation ought to be equally borne, in respect of their means, by all the king's subjects, instead of falling upon particular individuals on the happening of particular contingencies. In its original state most of the ordinary or prerogative revenue raised the least possible sum with the greatest possible inequality and inconvenience. The greater part of what remains is only remarkable for its picturesque absurdity. There is, however, one terrible exception, far too monstrous to be left for mitigation to the humanity of the treasury. Nothing can be worse than the wholesale forfeitures and confiscations which still sweep in the train of our criminal proceedings. In spite of the praises bestowed by Blackstone on Mr Yorke's essay in defence of the law of forfeiture, and although the people owe the 25th Edward III., which has been called the magna charta of treason, almost solely to a squabble between the king and his grantees the barons, for their several portions of the spoil, according as the late owner had been found guilty of treason or of felony, it is impossible that the reason and humanity of a great country can much longer permit cruel iniquity, abandoned by the most civilized part of Europe, to be justified upon antiquarian learning or by metaphysical refinements.
Blackstone's declaration at the commencement of his chapter on prerogative, that the powers which are vested in the crown by the laws, are necessary for the purpose of society, may be thought even now, if their whole detail is minutely examined into, to go something beyond the truth. The exceptions, however, can be in practice of no great consequence. The most obscure member of parliament would have nothing to do at the present day but to attack any indefensible exception, by a motion for its repeal. From the era that a general control over the government passed into the House of Commons, influence has so much superseded force, that questions of pure prerogative have lost much of their importance. According to present usage, any transaction arising out of its exercise, if it is at all interesting or doubtful, must be brought sooner or later before the House of Commons. The difference in the three modes of proceeding, between which alone a minister
has to choose, comes to little more than the option at which of its stages the transaction shall be brought there. This will depend on circumstances. It may be a case in which there is no pretence of a prerogative, as on a suspension of the habeas corpus act. Or the principle of a prerogative may be pretended; but it may be suggested that the means for carrying it into effect are defective, as was suggested in the alien act. If there be time to apply to parliament to strengthen the executive, a prudent adviser would recommend, especially wherever a continuous measure is required, of necessity, on the first of these supposed occasions, but on both of them would be equally recommend, that the authority of parliament should be called in. In case a temporary emergency arises, more especially one which will not wait for parliament, as in the instance of the embargo laid by proclamation upon vessels laden with wheat in the scarcity of 1766, every administration is bound to take the responsibility of the measures demanded by the emergency; and parliament is bound to indemnify the authors of them for venturing upon a discretionary rigour beyond the letter of every day's law. The third supposition yet remains to be mentioned. When a minister is confident of the existence of the prerogative, and that the necessity for exercising it has arrived, there can be no occasion that the immediate representative of the executive should advertise for a parliamentary discussion. Let him use the instrument in the manner in which it was left by the constitution to be used. The opposition for the time being have it always in their power (and may be usually trusted for the inclination, as in the late Dutch embargo) to press the question to issue, and obtain the opinion of parliament upon both the point of right and the point of policy. For, on state-questions of this description, the members of a government are as answerable to the community which they serve, for mistakes in policy, as for mistakes in right. The distinctions were only of use before the House of Commons ventured upon the general superintendence which it exerts at present. Blackstone observes, that "the king, in the exertion of lawful prerogative, is and ought to be absolute," subject to the responsibility of ministers. Yet, from the nature of the case, as it is now understood, the king cannot be more or less absolute, nor his ministers more or less responsible, within than without these bounds. An unlawful prerogative may be assumed, a lawful one may be abused. As long as the constitution lasts, the king is in both cases alike personally secure. The unconstitutional adviser is in both cases equally answerable upon impeachment, and to the same degree. The decision against general warrants, when the official practice of three quarters of a century was at last brought into a court of justice, exemplifies the jealousy of the law in its own defence. The truth is, that the most satisfactory account of the mysterious maxim, that the king can do no wrong, since for every act done by him there must be responsibility somewhere, is an innovation which even the Revolution itself did not immediately introduce. The earliest strong assertion of it which Mr Hallam has perceived, is in a speech by the Duke of Argyll in the year 1739. Public opinion must have stopped short indeed, when a Whig, like Burnet, thought ministers were liable for advice given at the council, but not for the resolutions taken there; that is, they were to be liable for their own words, but not for the act, which might be the act of the sovereign himself. Whilst this distinction remained in force, it was possible that the whole question in these cases might turn on the limits of prerogative, and on the fact, whether the necessity of coming to parliament for fresh power could be evaded. This distinction, or something not distinguishable from it, was the shield behind which, strange as it now appears, both Whig and
Government and Laws. Tory ministers, Somers as well as Harley, alike retreated, since the Revolution.
Prerogative, as above treated of, regards solely the remnant of those powers and privileges which had been vested in the crown from time immemorial by the common law. What is left is a small portion of a heterogeneous sovereignty, which had been originally wrested from a weak community by mere force, or which pertains to principles and circumstances long since decayed. From a sort of obscure traditional feeling, the word prerogative is more associated in men's minds with the personal will and pleasure of the sovereign, than with his political and strictly legal duties. The thing itself has, however, gradually fallen into the general mass of executive authority. Considered in this point of view, great additions have in later times been made to it. These additions consist of powers derived directly from parliament, and transferred to the supreme magistrate on the simple supposition that they are necessary for the public welfare. The preliminary question, Are they indeed necessary? occurs still more naturally on a demand that new powers should be granted, than on the suggestion that ancient powers might properly be retained. It is only when that point has been made out, that a prudent legislature will enter on the consideration of the precautions by which their abuse may be prevented, whilst their efficiency is maintained. To mention only one or two examples: The patronage of office has its risks in a free government. Yet it must be remembered that Polybius saw, in the influence which the contracts and public works gave to the Roman senate, the necessary link by which its connection with the Roman people was held together. At all events, the disadvantages of the actual extent of ministerial patronage belongs to the greatness of the British empire, and to the nature of its colonial possessions. The most rigid economy can alone reduce it within certain limits. An enormous national debt must still leave the public burdened with the additional evil of a proportionately enormous fiscal law; more equal in its assessment than, but perhaps almost as harassing as, the ruder aids and incidents of feudal jurisprudence. It is made both more costly and more pernicious, from the childish weakness of insisting that the bitter pill, if it must be taken, shall be concealed under the form of indirect taxation. The difference in the powers, as given by the common law and by the riot act, to public officers over unlawful assemblies, is scarcely so great as to be considered a dangerous augmentation to the force of any government. At the same time, whatever it may be, the same authority, or something very like it, may have become necessary for the preservation of the peace, when a vast manufacturing population is collected together on one spot; liable to be thrown out of employment at every moment by the oscillations of trade; accessible, besides, and accustomed almost daily to the most inflammatory appeals. This is the case also with regard to the extension of a regular police, and to the employment of the military in subordination to a civil magistrate. The change, however, which would most surprise Whitelocke and the patriotic parliamentmen who argued the militia question under Charles I., would be the mutiny act and the army list of the present day. They would think that the king might well consent to the concession of coming to parliament for its sanction, as his portion of the compromise. The balance of power in Europe was the only cause at first assigned in justification of a standing army; and it is still the burden of the mutiny act preamble. Our immense provincial dependencies have also to answer for it in part. However, another and a domestic necessity must have been silently making prodigious way, when so cautious a statesman as the late
Lord Liverpool defended in parliament the numerical increase of the army, not by a reference to the state of Europe or the colonies, but by a comparison between the amount of the population now and in former times. It would be impossible to govern with so slight a pressure as society is at present used to, without a strong executive. It is fortunate, therefore, that, from the systematic regularity which prosperous civilization has favoured, the actual powers of the executive government have become more consolidated, and their operation more uniform. The effect of the whole is, that in Mr Hallam's opinion at the time of writing his invaluable work on the constitutional history of England, the English executive, "though shorn of its lustre, has not lost so much of its real efficacy, by the consequences of the Revolution, as is often supposed; at least, that with a regular army to put down insurrection, and an influence sufficient to obtain fresh statutes of restriction, if such should ever be deemed necessary, it is not exposed, in the ordinary course of affairs, to any serious hazard."
On the supposition that this opinion was correct at the recent period when it was delivered, experience alone can determine how far the supposed influence alluded to in it has been affected by the subsequent change in the constituency of the House of Commons. The supposed enthusiasm of the English constitution, namely, the establishment of that simple monarchy which Hume and other writers have predicted as its natural fate, has been thrown back to an indefinite distance by parliamentary reform. If any thing like the same good sense and good fortune which have hitherto prevailed in the history of the people and their government shall be continued, there seems little reason why they should be thought to be hurried, by a measure of that principle and extent, within the perils of the opposite extreme.
Neither the principle nor mechanism of the reform bill has so changed the nature of the account. The difference of opinion entertained by different persons on a general comparison of the forces at work in the English constitution, seems of itself positive proof that the variance, whether before or since, has been only in the inclination, but that the constitution is on its balance still. At the same time it must be admitted, that the interest which was strong enough to carry the reform bill, is tolerably secure. It is not difficult to prognosticate what would have been the issue of open resistance to the new political adjustment which has been settled upon its terms. It was impossible, also, from the causes which urged it forward, that the adjustment could have been much longer peaceably delayed. The impoverishment of the crown by the alienation of the royal demesnes; its abandonment of claims and maxims become odious or ridiculous; its political incapacity to act on the House of Commons by the disfranchisement of old or by the creation of new boroughs; the scandal of private nominations, the still greater scandal of corrupt corporators and bribed freemen; the doors of parliament thrown open to the people through the publication of the debates by means of a daily, almost an hourly press; the increase of dissenters, displacing the monopoly of the clergy; a liberty, nay license, of discussion, popularising crude analogies to a new and kindred democracy in the United States; and reaching over every question and up to every individual in the land; public opinion circulating from one end of the kingdom to the other, and brought concentrated with electrical rapidity at any moment to any point; the rights of conscience, of free opinion, and of political equality, so proudly recognised that they overcame at last even all the recollections arrayed against the Roman Catholic persecution of Protestant reformers; the universal responsibility of ministers
for every act of government now as universally acknowledged; the rise of immense towns, swarming with active artisans easily excited and easily combining; the constant accumulation of numbers, competence, and intelligence in the great and powerful body of the middle classes; the disappearance of the last relics of feudal castes and prejudices; the swamping of the ancient historical nobility by a modern aristocracy of wealth, favouritism, and corruption; the final breaking up even of the court and country party, whilst in their stead had risen up and found themselves face to face, those two parties which must always exist in open commonwealths—on one hand, the honest and also the servile partisans of power—on the other, the seditious and also the constitutional friends of the people:—these are but a part of the alterations which had changed not only the face but the core of England. A new soil, so to speak, had been turned up. A revolution in society had outstripped the Revolution of 1688. The rights of Englishmen, as Blackstone calls them (but what are in truth the rights of man, wherever man is civilized enough to understand and to preserve them) had grown into fuller consistency and bulk. The national system, now in its manhood, made, as it were, more blood, and required that the arteries should be enlarged which were to carry it to the heart.
A political student, after looking at the points to which all governments should strive, at the imaginary commonwealths of theory, and at the degree of approximation which, from amongst their thousand experiments, mankind appears to have ever realized, may think that there is good reason to be content both with the end and with the means which the English constitution recognises and secures. He will perceive that English liberty was long heavily mortgaged, but that the mortgage was never foreclosed. Its standard-bearers were sometimes down, but the pennon itself was always flying. Nations who regard England as a model, whether to be copied or to be surpassed, should remember that no nation can hope to buy a suitable constitution ready made. The end ought to be one all the world over, namely, the happiness of the people. But the condition of the people may be so different, as necessarily to demand the greatest difference in the means. The quantities with which moral and political problems have to deal, so far from being fixed, are in constant fluctuation; and the truths which they have to establish can never be tried by taking extreme cases. An assimilation and correspondence between that which acts and that which is acted upon, are conditions grounded on the nature of the human mind. In no case is strict attention to them more indispensable than in the relation between a people and its institutions. The best security for this is gradual adaptation. The Americans take English experience and English character into new circumstances, with the woods to back them. They may ride with a looser rein, and may try bolder tricks in legislation, than, in an old, densely-peopled, and overwrought community, any person, at least any reasonable person, acquainted with human nature and the difficulties of the case, could venture to recommend. They will not undervalue the necessity of such compromises with the nature of things and of events; since, in truth, no country ever made a greater sacrifice to the predominance of circumstances over principles than America has made, and is still making, over half her empire, in the most fatal of all exceptions. It is a worse one than the barbarism of the barbarous age of Magna Charta; an exception limited not even by the test of freedom, but that of the colour of the skin. It may be doubted whether the English experiment would not have failed, as the same experiment failed elsewhere, if its authors had rushed in the first instance to the point
where their posterity at present stand. Light things may hurry forward, but the elephant must make sure of every step he takes.
A free government must be complicated in its parts. The checks introduced by circumstances, habits, and opinions, and which have been subjected to gradual amendments, remain a hundred times more effectual than any mere appeal to reason, which is all indeed that a totally new system has to make. The latter, however theoretically superior, must trust to its argumentative merits for its hold on the minds and affections of mankind. Montaigne expresses great contempt for long philosophical discussions concerning the comparative advantages of different forms of government. When he refers not only in opinion, but in reality, to usage as the sole criterion in every case, he is guilty of a gross exaggeration. This however ought not to prevent due respect being paid to the truth on which the very exaggeration is grounded. The whole history of England is the narrative of a long preparatory schooling to fit its people for their actual institutions. Institutions certainly are faulty which cannot stand the more summary test of Pope, when he disposes of these questions by a single line, "whatsoever is best administered is best." For this in sensible prose must be understood to mean that the government is best which contains the best provisions for securing a good administration of all public affairs which depend on the relation of the governors and the governed. This security, it will appear by the description which has been given, is the great object of the English constitution to establish by the proper formation and distribution of the legislative, judicial, and executive power.
II.—LAW.
The civil law approached to the character of a universal language. The breaking it into fragments on the fall of the Roman empire, and the substitution in its stead of the coarse and mixed materials of the barbarian and feudal codes, had the effect of the confusion of tongues. Each code was nothing more than a partial dialect. Whilst the rest of Europe fell back more or less under the legal dominion of its ancient master, England alone stood out. It was impossible, however, that it could altogether resist an influence so universal; and it is probable that a greater impression was incidentally received than contemporaries were aware of, or than antiquarians have since been at the trouble to retrace. Mr Hallam observes that a good work, pointing out the extent to which the Roman law affected Bracton and his successors, is a desideratum in our legal literature. Nobody has yet felt a sufficient interest in, or been sufficiently conversant with, both systems to supply it. The distance to which England was thrown from the common orbit of classical jurisprudence, appears to have been even something more than the difference which separated the northern and southern divisions of France, where the one was subject to a customary, and the other to the Roman law.
English civilians and foreign scholars always treated the vernacular common law with the greatest possible contempt. John of Salisbury, in the reign of Henry II. calls it aucepatio verborum. Whitgift derides the learning which is learning nowhere but in England. Erasmus must have seen it to great advantage in the person of Sir Thomas More; nevertheless he mentions its professors in terms scarcely more respectful than the scurrilities of the college-play of Ignoramus, got up in its ridicule for the entertainment of James I. Evelyn is content so that he escaped from it with no harder word than "that impolished study." The provocation given by Law-Latin and
Law-French has since been got rid of; that of tenures and their commentators still remains. Any insular jurisprudence, growing up during the middle ages, must have certainly suffered in its philosophy and its symmetry by excluding the written wisdom of the Pandects. By way of compensation, it is suggested that the alienation was of great advantage to English freedom. Whatever was gained in this direction is probably to be attributed more to the class to which the professors of the two systems respectively belonged, than to the supposed exemption of black-letter precedents from the arbitrary spirit of the imperial constitutions. The Inns of Court were long the principal seminaries in which the gentry of England completed their education; whilst, in the universities, the foundations for the study of civil law rivalled those for the study of divinity. The civilians and canonists, cousins-german by descent, thus became twin-brothers in feeling. In fact, civilians were formerly almost always churchmen. The difference of pedigree between them and the common lawyers was visible down to the time of Laud. The civil law, in any comprehensive sense of it, may be said to be extinct in England. To the degree, however, in which it exists, the English constitution is likely to find as warm supporters at present in Doctors Commons as in Westminster Hall.
The first point, on inquiring into the laws of a country, is to ascertain where the power of making them is lodged. It is very desirable that, as far as possible, the power should rest exclusively with the distinct and supreme authority of a recognised legislature. In this manner, laws adequately and publicly discussed will receive perhaps as general and as efficient a promulgation as the subject admits of. Certainly no better security can be devised against the possibility of constructive and ex post facto liabilities, than the practice of open debates, and the rule that legislative measures shall be strictly prospective. The connection between legislation and legislature is the doctrine of the English law. It can nowhere be expressed more strongly. But the history of what is called the common law shows the difficulty of acting upon it throughout. Popular customs will have already taken root before a steady government is formed, or, at least, before it is so far universally established, as to take under its cognizance the whole field of legislation. With regard, therefore, to this class of self-sown customs, the best thing probably that the legislature can do, when it becomes adult, is to acquiesce in them. Certain divisions of the law, and those not the least intricate and important, will from time to time be elaborately commented upon in text-books. Particular rules will also be adopted by the profession; and these soon become the grounds on which properties and expectations rest. For instance, "the practice of conveyancers" easily goes the length of making by necessity the law in that department. Much more is this the case with the opinions and the practice of the regular tribunals. For this purpose it is by no means necessary that the statute-book should contain an intimation corresponding to the threat of the Code Napoleon. "Le juge qui refusera de juger sous prétexte du silence, de l'obscurité, ou de l'insuffisance de la loi, pourra être poursuivi comme coupable de déni de justice." Direct legislation must be infinitely more active, and must complete its work in a far more workmanlike way, than the parliaments of the Plantagenets, and even than the parliaments of to-day, not to leave vast chasms for judicial construction to fill up. The English law at different periods has been indebted to all these collateral sources in different degrees for accessions to its wealth. Nobody can now determine how far Alfred and our other supposed lawgivers collected or composed the documents transmitted in their names.
It is not the less unreasonable to assume on that account, with Chief-Justice Wilmot and others, that the "common law is nothing else but statutes worn out by time." Madox has observed that the laws of the Anglo-Saxon kings are as different from the writings of Glanville as the laws of two different nations. Some of the points are brought out in contrast in the second volume of Mr Hallam's Middle Ages, p. 466. Yet, if we are driven to any particular date for the origin of the present common law, it must be a moment not much anterior to the age of Glanville. He wrote as early as the year 1180; and the laws called by the name of Henry I., which are in their spirit thoroughly Anglo-Saxon, must, by their mention of Gratian's decree, be as late as the very end of the reign of Stephen. Mr Hallam makes a very judicious suggestion. He supposes that these laws, like the water ordeal for the common people, contain the ancient usages of inferior jurisdictions, whilst the treatise of Glanville, he conjectures, comprehends only the rules of the Norman lawyers, by which, through the influence of the circuits, and by other means, the former were gradually superseded. The unwritten usages become completely fixed by the time of Bracton's compilation, towards the end of the reign of Henry III. There are no grounds whatever for conjecturing that these fluctuations were preceded or ratified by any direct legislative notice.
At a later period, namely, in the year 1322, it was explicitly enacted that all matters to be established for the estate and welfare of the realm should be treated in parliament. After so solemn and public a declaration, it might much more plausibly have been supposed that every subsequent alteration, whether in the civil or in the criminal law, would be accompanied by a parliamentary sanction in evidence of its title. What a change, however, took place both in one and the other; yet no "statutes worn out by time" can here be pretended. It is indeed remarkable that the statutory changes long bear but a small proportion to those which were obtained from other quarters. Although usage after this period can have crept in only now and then imperceptibly, undoubtedly the sages of the law kept insinuating their opinions, even extrajudicially, from time to time into the system. But by far the greater part of the innovations, real and apparent, were derived through the means of judicial decisions preserved in reported cases, and argued out by help of what has been quaintly called the "logical deduceableness" of the principles of the common law. The grounds of every judgment were set out on the record till the reign of Edward III.; afterwards they were taken down by certain grave and sad men in the year-books; and latterly, they have been left to reporters of a less accredited description. These precedents constitute an immense repertory of case law. If regard is paid to the smallness of the basis compared with the vastness of the superstructure, the ordinary course will appear to have been the synthetical formation of general rules out of the application and extension of individual instances. The portion, however, is far from being inconsiderable, in which the judicial classification of particular facts has proceeded according to the allegata et probata, under certain established principles. Looking at the history of the science, Burke was justified in saying, in the report of the committee upon the impeachment of Warren Hastings, that "to give judgment privately, is to put an end to reports; to put an end to reports, is to put an end to the law of England." Reports of the leading cases are especially valuable where society and the law are in a state of transition. Without them, the law in such periods soon becomes what Lord Bacon says the law of his time would have become without the reports of Lord Coke, a ship without bal-
last. The whole equitable law of the court of chancery, now tied up as strictly as the common law itself, has been spun, with but very slight exceptions, out of maxima of conscience and limits upon discretion, laid down judicially at as late a day as that of Lord Nottingham and the Restoration. That part of the English system where at present the lucubrations of twenty years are more wanted than in any other, was still in its infancy little more than a hundred years ago. Sir Matthew Hale said, in 1672, "a little law, a good tongue, and a good memory, would fit a man for the chancery." Evelyn, noticing the death of Chief Justice Treby, in the year 1700, adds, "The chancery requires so little skill in deep law learning, if the practitioner can talk eloquently in that court, that probably few care to study the law to any purpose." Lord Nottingham could not have desired a successor more admirably qualified than Lord Eldon, to remove from his court the last traces of this reproach. His ingenuity and erudition, however, only added still further to "the mass of learning which no industry can require, nor any intellect digest." Vesey junior, and his voluminous successors, have accelerated the predicted "crisis of a necessary Reformation, when our laws, like those of Rome, must be cast into the crucible. It would be a disgrace to the nineteenth century, if England could not find her Tribonian." (Hallam.) Mr Bentham admits that this legislative crisis will find, in the store-houses of our reports, materials of a higher and more authentic character than were ever in the possession of any other country. Although the amendments of the law in the last session of parliament were more extensive than those of any single reign since Edward I., they nevertheless do not affect to have been of a nature to ascertain the existence or non-existence of a present Tribonian amongst our reformers. The extent of the alterations which have been begun or are anticipated, may be understood by the complaint of a member of the profession, who has particular means of information. "I regret to find (says Mr Chitty, in his Concise View, 1834) that students, whether for the bar, or as special pleaders, or as attorneys, have of late nearly suspended all study, upon the supposition that, whilst innovations in the law are so frequent, it would be useless one day to learn what must perhaps the next day be forgotten or effaced." A wise legislature will establish municipal rights in all cases, when by so doing it increases the sum of human happiness. These rights must be derived from the several sources of human pleasure. They therefore necessarily regard property, person, station, character, or opinions. Rights are public or private. Out of the first arise questions between the governors and the governed; to the second belong the disputes of individuals. The classification of these two descriptions of rights, and the specification of the circumstances which are the occasions upon which they vest, constitute the constitutional and the civil code. But rights are delusive unless protected by adequate guarantees. It is the first object of the remedial law, therefore, to define the circumstances which amount to a legal violation of whatever rights the substantive law has conferred. If the injury is considered to affect the public, its recurrence is sought to be prevented by subjecting the wrong-doer to the penalties of the criminal code provided on behalf of society at large. If the injury is of a private nature, the party injured is entitled to recover damages in the civil court for his own personal satisfaction. The mode by which the appropriate legal remedies for an alleged injury are ascertained, is called the trial. Since every case may involve disputed points of law and fact, it is requisite to make complete arrangements for deciding both. The efficiency of a trial will depend upon the constitution of the several courts,
and the rules for regulating their proceedings. The first part of this problem concerns the number and locality of the tribunals, the principle upon which each of them shall be formed (as whether of a single judge or more, and with or without a jury), and lastly, the scale of appellate jurisdictions. The chief considerations relating to the proceedings concern the rules of pleading and of evidence, or the method by which a party is required first to make his statement, and afterwards to prove it. When the trial has established the merits of the case, and fixed the nature of the remedy, nothing remains but that proper means should be provided for carrying the judgment of the court into effect. This can be only done by making the property, and, on just occasion, the person, of the defendant duly available to the requisition of the law.
1. Constitutional Law.—This has been treated of in the former section. The shape in which the Roman civil law has come down to us, as recast at Constantinople by the imperial jurists, contains not a syllable which can be referred to the supposed resemblance between the mixed forms of government of ancient Rome and modern England. Excepting a few slight privileges belonging to the peerage as members of a second legislative assembly, English equality recognises no distinction but that of aliens and natives. Our doctrine of the unalienability of birth, allegiance, and our restraints on naturalization, are pushed to an illiberal extreme. But it is a great blessing to have escaped the useless and onerous diversity of castes by which Roman policy was embarrassed, and American freedom disgraced. England is safe from the interminable questions of political rights and civil condition arising among the ingenii, liberti, servii; and under the discrepencies of the various kinds of citizenship and the Jus Gallicum and Jus Latinum. Shades of colour have introduced the risk of even still more dangerous collisions into the United States.
2. The Relations of Private Life.—Under the English law these relations were for the most part either settled upon, or have been since gradually brought within, the true principle, namely, that of deriving from the connection the greatest advantage to both parties, which, on a comprehensive view of their interests, the particular relation seems qualified to produce. On legislating upon this subject, our law-makers have not overlooked the painful fact, that there is no occasion where it is more necessary to keep constantly present to the mind the line which separates morals from law. The poor-laws and the factory bill are doubtful exceptions, in which the feelings of society may be suspected of having got the better of its judgment. Otherwise, the law has generally forbore from becoming responsible for those private virtues which no law can possibly secure, and has shrunk from an interference far too powerful not to tend to defeat the end it is desirous of accomplishing. In the service of adults, the contract between master and servant is the only criterion both of their claims and of their liabilities. The maxim that slaves cannot breathe the air of England, has at length comprehended our distant colonies within its blessing. The extension of a haughty local privilege into a national truth is the proudest triumph of the humanity and justice of modern times. The relation of parent and child is placed upon proper grounds. Parental authority is reasonably limited to the degree of power necessary for the adequate performance of the duties which every parent is understood to undertake. The most faulty part of the legal distinction between legitimate and illegitimate children is not in the degree by which the parental obligation towards them is distinguished. The feelings of society must first alter, and the policy of our rules, and the most effectual method of attaining our object, must be carefully reviewed, or very
little practical benefit will follow from a nominal amendment of the letter of the law.
The difference by nature and education between the sexes placed the female sex in the East, in Greece, and in Rome, in a permanent tutelar condition. Their disabilities were doubtless represented, as in the case of minors amongst ourselves, to be in reality privileges of protection. Modern civilization has transferred this state of imbecility from women generally, to women who consent to assume the character and status of wives. The marriage contract cannot be regarded as an ordinary partnership. Women are certainly the half of the species much the most interested in the rule, that a contract, more or less resembling the marriage contract as it is actually established, should subsist. The only question which their advocates can raise must be upon its terms. It is admitted that the terms are partial. The question still remains, Can they be improved? Nothing is more imprudent than to volunteer speculative changes in an engagement of this domestic nature, without infinite caution in examining into the capabilities of the case. It is impossible to equalize its effects and condition to the two parties. There is an extreme risk of injuring the female by the very precautions and facilities which it has been proposed to interpose in her favour. The interest which other parties (the children and society) have to keep families together, the first of those concentric circles by which a well-ordered community is formed, introduces a new and paramount consideration. The more the subject is reflected upon, the more will it appear that the English law of husband and wife requires only very incidental modifications. By the late amended marriage act (3 George IV.), the reluctant successors of Lord Hardwicke were compelled to retrace his steps, and to submit, on the marriage of minors, to the compromise of factum valet, quod fieri non debet. The debates on that occasion affirmed in the most striking manner the necessity of recognising the least of two evils in this delicate chapter of jurisprudence. No necessity, however, exists at all for making parliament the sole tribunal where a marriage can be dissolved. It is a singular anomaly, that this particular contract should become the subject of individual and ex post facto legislation in every case where parliamentary divorces for adultery are allowed to break in upon the ordinary law. Our practice does not leave a doubt that the contract should be legally voidable for adultery. But it is very questionable whether, on transferring this jurisdiction to courts of justice, the interests of society in general, and of females in particular, would be promoted by the admission of any other grounds of divorce whatsoever. Nevertheless Cranmer, in the proposed reformation of the ecclesiastical law at the Reformation, was prepared to give to many of the causes on which a separation takes place at present, the effect of a complete dissolution of the marriage. The rule which, subject to a few exceptions, prevents a husband and wife from giving evidence either for or against each other, seems very unreasonable. The legal consequences of marriage do not depend, as Blackstone states, upon any canonical union of persons, which can be supposed to suspend or merge, during coverture, the legal existence of the wife. These consequences are much better accounted for by the rustic simplicity of ancient times, which regarded the wife as only a servant of a better fashion. It is evident that a family partnership, which, when it has once been formed, can be determined only by death or by criminal conduct of a serious nature, requires a conjugal superiority on one side or the other. In this view the law is censurable rather from the discourtesy of the occasional language of some of its authors, than the substance of its provisions. The superiority is certainly evident enough.
There is the spiritual promise at the altar to obey, and the legal solemnity which makes it petty treason to kill her lord and husband. Marital restraint and correction carry the power of domestic discipline, in the case of a wife, a greater length than in that of any other servant, except an apprentice. The principle of considering the wife incapable of committing certain crimes in the presence of her husband, owing to her supposed submission to his orders, is made additionally absurd by the inconsistency with which the supposition is applied. It is time that on one or two of these points the law should be put into harmony with the fact. There might also be a wholesome relaxation of the rule by which a married woman is prevented, under all circumstances except the civil death of her husband, from being sued as a single woman. The landed property of a wife could formerly be alienated only by a fine. It was imperfectly protected against the exercise of undue influence, on the part of a grasping husband, by her separate examination. Her real and also personal estate may be made safe enough at present. As far as property is concerned, the devices of a marriage settlement, and the interposition of trustees, seem to accomplish every thing which can possibly be accomplished by law.
3. Real Property.—The lawyers of Greece and Rome had no idea of the necessity of two systems; one for land, and the other for goods. In England the systems are entirely distinct. The civil law of England during a very considerable period seems to have had little else but land to treat of. It characterized land by the expressive denomination of realty; and distinguished it still further by establishing its legal title and qualities on exclusively feudal principles. Hypothesis and research will be equally at a loss to make out any analogy between the Roman Institutes and Littleton's Tenures. The language of Craig would have been unintelligible to Papinian. Where the same word happens to be used, it only deepens the contradiction by the difference in its meaning. Dower, for example, by which the Romans described the property which a woman brought with her on her marriage, signifies, in our modern application of it, the life-interest which, on the death of her husband, the widow acquires to a third of his land. The changes in society gradually made it impossible to retain the strictness and also the peculiarities of feudal learning. The "old books" were already antiquated, and several of their cases seldom came into practice in the time of Sir Mathew Hale. The new reports, such as those of Coke, Plowden, and Dyer, the exact perusal of which he pressed upon his student, are now become "old books" themselves, and are approaching towards a similar fate, partly by statutory repeals, partly from desuetude or ignorance, under a still greater revolution in the law. The wave from the commonwealth which, during the reign of Charles the Second, carried off part of the rubbish of former times, did little in comparison with what has been done in the first session of a reformed parliament. The abolition of fines and recoveries; the amendments in the law of inheritance and dower; the limitation of actions, by which writs and formulas of complicated absurdity, hazard, and expense, are gone for ever; hold out substantial encouragement to expect that the labours of the different law-commissions will in course of time be brought to a satisfactory legislative conclusion. In a practical point of view, the registry bill is by far the most important of their present recommendations. An undertaking of much greater difficulty, but fortunately much less urgent, remains behind. The principles, the reasonings, and the language of the law of real property, will not fear an enlightened examination at the present day. Nothing indeed can be more indefensible in the
nineteenth century than a legal system, of which such a book as Coke upon Littleton is the classic. It is a very imperfect answer to say that the opinion which Lord Mansfield once gave to a West India governor upon the law generally, applies especially to this part of it. "Decide according to your judgment, but give no reasons. Your decision generally will be right; your reasons always will be wrong." A code itself would be only a partial remedy, unless it superseded the necessity of looking back into the volumes which preceded it. Feudal doctrines are too completely woven into them ever to be worked out of their text. During centuries when the legislature either could not or would not act, judge-made law was by far the least of the two evils to which the country was reduced. The judges certainly did their best towards accommodating the law to the altered condition of society, by means of the only instrument in their power. But the course taken led naturally into a labyrinth of fictions and refinements, which it will now require pretty much the same astuteness to unmake, as was originally employed in the making of them. The complaint is not that the law is difficult to be understood. That might be expected. What shocks a reasonable person at the present day, is the finding that so many of its rules, when they come to be understood, are irreconcilable with either common sense or with the usages of the community which they govern. Thus, in descent, instead of regarding the just expectations of near relations, the law is occupied in tracing the blood of the first purchaser. In forfeiture, instead of balancing the claims of the family on one side, and the claims of injured society on the other, the law can see nobody but the original feudal donor. In questions of the lawfulness of a distress, the difficulties do not turn on the point, whether the goods which have been seized represent under the circumstances the fair and natural security for the benefit which the owner of the goods has derived from the premises where they were found, but whether the landlord, on putting an occupier in possession of the premises, had taken care that the terms of the occupation were so expressed as to be sufficient technically to raise a tenure. Independently of judicial construction, successive innovations have materially broken in upon the feudalism of the common law. This is the case, particularly in the restraints imposed upon entails and remainders, in the free exercise of the testamentary power, and in the frequency of terms of years which are regarded by the lawyers as personality. The most important of all innovations is, however, the extent to which the doctrine of trusts and uses has brought the principal questions concerning land into a court, where forms and principles in many respects essentially differing from those of the old common law prevail. The intermediate legislation respecting uses, from 50 Edward III. c. 6, to 27 Henry VIII. c. 10, is a characteristic specimen of the English method of creeping on step by step, after the mischief has run, like the city rat, into the frame of society, instead of taking a comprehensive view of the necessary consequences of the new system, and anticipating the confusion by such a conclusive statute as, after all its previous minute enactments, it was ultimately obliged to pass. It answers in civil to the cautious manner with which in criminal jurisprudence the law of mayhem advanced, taking successively the different parts of the human body under its protection, one after another, until at last came a general measure known by the name of Lord Ellenborough's act. Blackstone, writing in 1765, observes that the Chancellors, "by a long series of uniform determinations for now near a century past, with some assistance from the legislature, have raised a new system of rational jurisprudence, by which trusts are
made to answer all the beneficial ends of uses, without their inconveniences or frauds." Considering the strictness of the doctrinal division between legislative and judicial authority, and the traditional attachment to juries, the national submission to this legal revolution, consummated by the great seal, is a remarkable proof of the impossibility of working the system of the common law in the present state of society. It may be questioned whether any country ever adopted, at so comparatively an advanced stage of civilization, so complete a change; with little notice beyond an occasional murmur in some quarters at what was going forward, and that general ratification on the part of the public in the consent that comes from silence. The nature of a jurisdiction like that of Chancery, must be to enlarge, and not contract, its circle. It is now some time since Mr Butler was of opinion that half the estates in the kingdom were held in trust. But there are further changes than those of form. The very substance of certain titles which make a great figure in the law-books is wearing out. Two species of incorporeal hereditaments, common and tithe, to which an extravagant and superstitious importance was formerly attached, seem shortly destined to disappear; and they will carry with them into oblivion a mass of favoured learning. Common of pasture and of estovers was supposed to be so necessary to the advancement of agriculture, and to the maintenance of tenantry and yeomen, that a case connected with it drew forth from Lord Coke the passionate exclamation, "God forbid that the law should not be so, for otherwise many commons in England would be avoided and lost." Long after the Reformation, a still deeper horror continued to be expressed by Spelman and the clergy, at the sacrilegious spectacle of tithe in lay hands, or of land discharged from the payment of tithe. When the necessity of statutes of limitation has been recognised in all other cases, and when even the crown has submitted to be barred by prescriptions of a reasonable extent, the ecclesiastical rule which sent back the proof of a modus to a time beyond legal memory, was no less impolitic than absurd. The tithe owner has to contend at present against passion and prejudice, as well as against reason. A violent re-action has taken place. The discouragement to agricultural improvements, from a surrender of a fixed portion of the gross produce, is a ground of objection in which the public at large are interested. The result is, a demand for a general commutation of tithe, which cannot be much longer delayed.
4. Personality.—It is agreed that Bracton borrowed the chief part of what he has said concerning personal property from the civilians. But the reader of the year-books finds himself at the reign of Henry VI. before goods and chattels have become of sufficient importance to make their way as the grounds of litigation into their records. The laws upon property of this description, and on personal contracts generally, are very much the same all the world over. This is probably to be accounted for, not by the supposition that similar laws must have had some common origin; but because these things are too perishable in their nature, and too much the subject of daily wants and traffic, to admit conveniently, under any circumstances, of any great deviation from a common line. The consequence is, that on this point, beyond some occasional quaint distinctions between what is really and what is personality, and a little absurdity concerning things which are merely the subject of base property and nullius in bonis, there is very little which can be noticed as peculiar in the English law. Where goods have been lost or stolen, the effect which, according to circumstances, prescription and sale ought to have in discussions between the original and the derivative owner, has been settled upon no disci-
Government and Laws
minating principle. The rights belonging to an owner when he is out of possession have been slowly recognised in most countries. Blackstone hastily states, that unless a right of property were to be transferred by the sale even of stolen goods, in market overt, "all commerce between man and man must soon be at an end." He should have recollected that England offers the only exception in civilized Europe to the rule, "nemo plus juris in alium transferre potest quam quod ipse habet." In the new questions which have arisen out of the extended intercourse and complicated interests of recent times, it is fortunate for the legal reputation of the country, that the demand for the development and application of the great principles of commercial and maritime law should have taken place at a time when Lord Mansfield and Lord Stowell presided in their respective courts.
5. Private Wrongs.—Every right must have its remedy, otherwise it is a right only in name. Verdicts with a farthing damages are sufficient evidence that the expressions damnum absque injuria, and de minimis non curat lex, are confined in practice within narrow bounds. The forms of actions are, in other words, a list of the cases which the law recognises as civil injuries, and which it accordingly promises to redress in that character. One of the great boasts of the English law is the means which it has taken to render illegal imprisonment almost impossible. This was at last obtained, but with infinite difficulty, under the final guarantee of the habeas corpus act. There is nothing otherwise remarkable in its estimate of the wrongs either to the persons or to the personal property of individuals, or in the general quality of the remedies provided by it. The injuries to real property, and the peculiar remedies applicable in the several cases, partake strongly, at least, in shape and in language, of the characteristic subtlety and jargon in which the law of real property itself is framed. There are instances, however, with respect to personal property as well as real, where the strictness of the rules at common law had the effect of a denial of right, and drove the parties into a court which undertook to adjust the remedy to the wants and feelings of society. Chancery would never have obtained a tenth part of its present jurisdiction, but that the common-law judges contented themselves with damages, instead of insisting that a contract should be specifically performed and goods specifically restored; and unless they had obstinately refused, since the introduction of uses, to notice the existence of a trust. The bankrupt law has lately been put upon a footing which appears likely to give, in its text and its administration, as much satisfaction as can be imparted to so untoward a subject. Nor does it follow that tradesmen who complain of the million that is discharged by a penny in the pound, are entitled to lay the blame upon either the policy or the execution of insolvent acts. The only effectual protection, that of more cautious credit, is in their own hands. The Roman system placed the debtor at the mercy of the creditor. The American system, according to Chancellor Kent, throws the creditor at the feet of the debtor. The experience of all countries seems to show, that in legislating upon insolvency, it is impossible to reconcile the claims of humanity and of justice by the positive declarations of a universal rule.
6. Criminal Law.—Whenever the circumstances and motive under which a legal right is violated imply an injury to the public, it is reasonable that the remedy should cease to be solely of a private nature. The English law is defective in not endeavouring to combine reparation to the party directly injured, as a subordinate object. But it properly considers the mischief to the public, and the remedy for the public, as the paramount concern of criminal justice. The comparative alarm spread throughout society
by different offences is the test of their several degrees of responsibility; nor is society entitled to take a criminal cognizance of them at all, save with the single aim of preventing their recurrence. The original point in this respect, from which the common law started, and the mode in which its circle widened, were too coarse and vague to admit of much discretion in the selection of the principle adopted, or of any very uniform correctness in its application. Civilization has tended gradually to exclude from the purview of human punishment the spiritual doctrine of expiation and the savage instinct of resentment. Proceedings pro salute animae are left to the ecclesiastical courts; and the abolition, by 59 George III. c. 46, of appeals at the suit of the party in all offences, has removed from criminal proceedings the last symptom of private vengeance. Up to a very recent period felony was heaped upon felony as a matter of course, whenever a new or temporary provocation happened to arise. No wonder, where it was impossible that due attention could have been paid to the nature even of the specific evil and the proposed remedy, that the just proportion between the new offences and the great body of the criminal law should have also been neglected. In fact, they often seem to have taken their place by chance upon the penal scale. During the last few years the consolidation of great part of the criminal statute-law has been performed in a very workmanlike manner. The repeal of a multitude of obscure and almost conflicting enactments has been of great service to the public, and still more to practitioners. It has simplified the labours of future reformers. But a comprehensive view, a consistent direction, and a rational arrangement of the whole subject, is a task reserved for the commission now engaged upon it. The interests of society, as protected by the criminal law, are technically called the king's peace; and all offences against these interests are prosecuted in the king's name. But it is singular that, nevertheless, the burden and the management of criminal prosecutions, and, in popular language, the name even of prosecutor, should, contrary to the practice of many countries, be thrown upon the party injured. The principal legal consequence which has followed from taking the prosecution formally into the hands of the state is, that society obtains the evidence of the party injured, who would otherwise be excluded as being a party to the suit. The original object of using the king's name in this formal manner was probably to entitle the king, as a matter of course, to the penalties and compensations. A barbarous and fiscal rapacity was thus tempted to scatter wholesale forfeiture with indiscriminate profusion over the field of crime. The 25th Edward III. called the magna charta of treason, had no nobler origin than a contest between the king and the barons, which of the two should appropriate the confiscations upon conviction. They belonged to one or the other, according as the offence was treason or ordinary felony. It may easily be understood, therefore, what little principle exists in the rude classification of offences into felonies and misdemeanors, distinguished only by the nature of the punishment; the one being subjected to general forfeiture, and the other to special fine. Under these circumstances, a strict revision of the entire department of the criminal law, keeping steadily in view the one principle of the good of society, must bring to light anomalies and divergencies which it will be no less desirable than practicable to remove. This is likely to be the case much more in some questions than in others. For instance, the purely religious sentiment was formerly mixed up with the only consideration which can justify human laws in inquiring into offences against God; and it still partially remains so. Judicial perjury is punishable simply
under the general description of being the violation of an oath. If the religious obligation is alone regarded, it may be contended with some plausibility that the breach and the offence must in all cases be the same. But if the danger to society be the point in question, it is clear that the danger must be materially affected by the nature of the case in which the perjury takes place. In some instances zeal without knowledge has been induced to pass the line by which morals ought to be always kept separate from law. The political economy of modern days has overturned many of the most sacred rules of policy and trade invented by the common-law wisdom of our ancestors. It is in vain that the corresponding statutes have been repealed, whilst narrow-minded judges feel a pride in proclaiming that unitarianism, forestalling, and engrossing, are still indictable misdemeanors. The same reasoning which annulled the statutory policy of the intermediate generations, ought to avail for abrogating equivalent absurdities, supposed to have been embodied at an earlier period in the original structure of the common law. In many cases legal definitions, as formerly in larceny, or the specific enumerations contained in an act of parliament, or the purview of a preamble, or the recognised jurisdiction of our actual courts, may be found to fall short of their proper object. It is plain to the understanding of the present day, that the terms of the statutes of treason, which left even Strafford's case to forced constructions, were too monarchical. The decay of the ecclesiastical courts, of the court of honour, and the abolition of the star-chamber, threw loose many offences which have never been examined and arranged on system. It may be doubtful whether seduction and adultery are properly left to a civil remedy only. A doubt however can scarcely be entertained but that the indictable character of words spoken, as distinguished from words written, ought not to be derived solely from their containing a consequent breach of the peace in their tendency to lead to a challenge. There is little foundation in reason for the general rule, which, in slander or libel, admits the truth to be pleaded as a justification always in an action, but never in a prosecution. A careful investigation of the true principles, which, in a compromise of difficulties, may be the best guides on many subjects, will lead to another very important consideration. A great deal of needless, and, what is worse, pernicious pains, appears to have been employed in turning into fixed rules of law what it would be much more satisfactory to the ends of justice to have left as questions of fact. This must happen in all subjects and occasions where the nature and tendency of the act depends on circumstances which it is almost impossible to define beforehand. Supposing, what we see no reason to suppose, that a common jury is incompetent to decide questions of fact of this description, it becomes the duty of society to create a competent tribunal. All offences of opinion are of this nature. But there are numerous others. Notwithstanding the complaint of Sir Thomas More against the judges of his day, that, in order to escape personal responsibility, they threw every thing on the jury, it is evident that, honestly and dishonestly, English judges have brought many points, as legal conclusions of the science, under their own judicial authority, which, as questions of fact, would have fallen, and much more properly belonged, to the province of a jury. National character is involved in the history of the public institutions and policy of a country. England, both at home and abroad, labours under the imputation that the latter, and even the execution of its criminal law, are severe beyond the example of other states scarcely its equals in general civilization. The difference would appear by comparing a scale of offences and punishments under the
English law with a similar table drawn up according to the progressive mitigations which have been attempted by America and France. It need not be feared but that the experience of opposite systems, and a patient discussion of the peculiarities of England, of the nature and circumstances of its population, the distribution of its wealth, and the free character of its legislation, are sufficient securities against vague and theoretical innovation. The result would ascertain what degree of success has attended the humane endeavours of the enlightened statesmen of other countries towards the amendment of their penal codes, and whether any just cause can be assigned why England may not safely venture upon imitating their example. The comparison of the nature of comparative anatomy between the laws of different nations may be very useful. In this instance it would be most satisfactory, were it to terminate, as some confidently insist, in proving that England has already redeemed its right to the distinction which it lost in and after the reign of Henry VII.—Nulli gentium iniures placuisse penas. The executions during the reign of Henry VIII. are reckoned by Hollinshead to have averaged two thousand a year. Towards the close of the reign of Elizabeth they averaged annually about four hundred. Notwithstanding the vast increase of our population, and the supposed increase of crime, the criminal return for 1830 gives, on 12,805 convictions, the sentences to death 1397, and actual executions only forty-six. In France the criminal return for the same year (1830) gives, on 4130 convictions, the sentences to death ninety-two, and actual executions thirty-eight.
7. Courts of Justice.—The occasions are few and strictly limited, in which the English law allows the party injured, or his immediate relations, to right themselves. A third person cannot justify interfering on behalf of the private interest of even his dearest friend. It is only as a member of society that he can step forward on the public grounds of preserving the public peace. The great singularity of the chapter on preventive justice in the English system, is not, as Blackstone states, that there should be one at all, but that it is so short. There is nothing, however, which a stranger is not privileged in doing, in order to prevent the commission of a felony. In other respects, every one is understood to have transferred the redress of whatever wrongs he may sustain, as well of a private as of a public nature, to the collective justice of the community. Under these circumstances, it is the duty of the community to establish tribunals for a prompt, cheap, and efficient adjudication of the differences which must necessarily occur. The necessity of reconsidering the constitution and distribution of courts, both of original and of appellate jurisdiction, has been at last forced upon the English legislature. Original tribunals may be separated or combined upon four principles: First, by the nature of the causes, whether civil, criminal, or ecclesiastical; Secondly, by the importance of the proceedings; that is, according to the value of the matter in dispute, or according to the amount of punishment to be inflicted; Thirdly, by territorial extent; Lastly, by the number and description of the judges, and by the different forms in which justice may be administered in each. The English system admits all these principles. The supreme courts are classed on the first principle. They were originally founded upon a positive metaphysical division, which went so far as to parcel out particular classes of civil causes to particular courts. Thus all controversies between subject and subject were to be taken into the Common Pleas; all civil questions which might affect the revenue were to be decided in the Exchequer; whilst the King's Bench had the proper cognizance of all
trespasses which savoured of a criminal nature, in right of its transcendent authority for the correction of crimes and misdemeanors. By means of rival measures of ludicrous trickery, hardly worthy to be called nastiness, these courts gradually obtained in most civil actions a concurrent jurisdiction. But this jurisdiction unfortunately remained stationary while society advanced. In course of time Chancery took under its charge the vast civil interests with which the common law refused to interfere. Common lawyers were for a time indignant; but they soon, after the first unsuccessful struggle, have shrunk from entering into competition with the political ascendancy of the Chancellors. Consequently, the greater part of this equitable jurisdiction is what no fiction or rule of court has since been ingenious or venturesome enough to reach. Soon after the Norman conquest, it was the policy, perhaps, of the government, but still more of the church, to separate judicially the civil from the ecclesiastical authority. The King's Bench has revenged itself on Doctors' Commons for the encroachments of Chancery, and has always taken jealous care, by its prohibitions, to keep the ecclesiastical courts within their peculiar province. The province is still however considerably larger than present opinion would have made it; for it would be difficult to make out how matrimonial and testamentary questions are properly matters of spiritual concern. The suspicion entertained by Mr Bentham, that the metaphysical classification of courts must have been the result of a scramble between competitors, is not confirmed by our legal history. The scramble began with and brought about the consolidation. Nevertheless, although at first a deliberate arrangement, it seems to have been an injudicious one; and as such, it has been in a great degree abandoned. Every classification of the kind multiplies the chances of clashing jurisdictions. It creates also an additional risk of a failure of justice; since there is a chance the more of a formal error, by mistaking the appropriate tribunal. Each court, having less to do as the business is more minutely subdivided, can supply the judicial demands of a wider area. Thus is superinduced the further disadvantage of extreme centralization. Circuits by the supreme judges at stated periods only partially mitigate a portion of these evils. They have been in use for many ages, and have the very desirable effect of bringing the metropolitan courts nearer to the great majority of the suitors of the kingdom; but it is difficult beforehand to make the calculation of the probable business at the several places of a circuit, with so much accuracy as not to become the occasion of one or other of opposite inconveniences. Causes are often hurried through with indecent haste, or are got rid of by an almost compulsory arbitration; or great vexation and expense are incurred in waiting for a trial, which, after all, is obliged to be put off until the next session. The expense of our actual courts is a fatal objection to the exclusive authority which they practically at least enjoy. When it is at once universally admitted that it is cheaper to lose a debt of £120, rather than to recover it by law, nothing further need be said. In the main examples under the English system for distinguishing courts, either according to the importance of the question, whether civil or criminal, or according to the extent of territory subject to their jurisdiction, both principles are generally combined. Thus is the case with the baronial, the hundred, and the county courts of the common law. The same combination was observed in the County Court for Middlesex, as settled by the 23d George II. c. 33. It applies also to the Courts of Requests or Conscience, and to the judicial authority given to corporations and to justices of the peace. The subjects which exceed the scale set to these limited jurisdictions, of course lose the bene-
fit of being decided by a local court. By the supposition, a better court is understood to be provided elsewhere. The excluded cases are remitted to it, because either the difficulty of a cause, or the mischief of an erroneous judgment, rises with the amount of the property, and of the penalty which it involves. This is true to a certain degree, but to nothing like the degree necessary to warrant the universality of the rule; and least of all does it justify the distinction at the peremptory point where it is at present taken. Local courts of every description are now scattered up and down the country most irregularly. There are as many as sixty courts of conscience for the recovery of small debts, established among very unequal populations and at uncertain distances. They easily admit of being parcelled out on an improved system. On any reformation of them, the standard of value in civil questions ought to be materially raised. The judicial talent and legal knowledge of the profession, if properly selected, are fully capable of supplying the demand which the alteration would create. The necessity of local courts is a matter of contemporary fact and reason rather than of authority; but if great names are wanted, the plan drawn by Sir Mathew Hale is ample authority for the propositions of Lord Brougham. There can be no doubt but that the confidence of the public would soon be attracted to tribunals which, by their comparative accessibility, would reduce the delay, the vexation, and the expense, within very moderate compass. In this manner the most crying grievance might be removed; and the administration of justice universally facilitated, without giving to our permanent local courts an exclusive original jurisdiction of all cases whatsoever arising within their limits. The circuit system, though open to serious objections, might probably, in a balance of advantages and disadvantages, be the best practical compromise for the remaining difficulties. The periodical visits of the supreme judges, and the presence and example of the powerful metropolitan bar, have doubtless a very wholesome influence in the provinces. They constitute moveable local courts for the time being. In the great majority of cases, trials at bar must have been always out of the question; and much more so, while the metropolis was a place talked of rather than known in remote counties, than at present. From the earliest times, therefore, the courts at Westminster could not dispense with justices in eyre travelling to the spot. These deputations of the supreme judicial power are necessary consequences of the strict doctrine of venter, and of the most latitudinarian extension which has yet been given to the original necessity of summoning a jury from the scene of action. The size of France more naturally led to great provincial institutions, like the old French parliaments, or the actual Courts Royales, with their diverse subordinate jurisdictions. The different courts existing in England for different purposes, vary considerably in the number of their judges, and in the forms by which justice is administered. Mr Bentham praises single-seated judicature. Aristotle, on the contrary, insists that one or more colleagues are wise precautions against the moral or intellectual obligations of a single individual. The practice of England offers a choice of every kind. The varieties are varieties of accident apparently, not of principle. Courts of equity, and most of the courts which do not proceed according to the common law, have always afforded, and still afford, only a single judge. But the number in the supreme common-law courts fluctuated considerably in former times. That of the Common Pleas, for instance, has been nine, seven, six, four, and five; of which latter number the three principal courts of common law consist at present. On the circuit the number drops down to one, both in civil and criminal cases. The trial of a peer for
felony takes place before the whole body of the nobility. The inferior courts vary equally. There are the manor and sheriff's court, with the crowd owing suit and service; the mayor and aldermen of corporations, assisted, or not, by their recorder; magistrates with summary jurisdiction, one or two in certain cases, up to the indefinite scramble of the bench at quarter sessions. When members of a corporate body, and justices of the peace, render their judicial services gratuitously, the financial objection of a numerous judicature is removed. But it is only the financial objection; and a remuneration, more than adequate to the services performed, is likely to be often got in local influence, or some more objectionable shape. When the aggregate numbers stop short of letting in the passions which seize upon all large assemblies, even the majority may be yet likely enough to want the requisite character and knowledge. It is absolutely necessary to keep down this risk within certain limits. But the importance of interesting the higher and middle classes in the administration of justice may counterbalance in this instance, as in that of a jury, a small per-centage of errors.
If no very good cause can be assigned for the numerical varieties which appear upon the English bench on different occasions, it is perhaps still more difficult to give a rational account and justification of the distinctions by which the presence or absence of a jury is determined. The precise history of the institution, of its original object, and of the transitions through which it has passed to its present state, appears to be irrecoverably lost. But enough is left to show that it was a trial by neighbours, acting in the mixed capacity of witnesses, sometimes to facts, sometimes to character, as well as in that of judges ultimately determining the truth of the fact upon the result of the evidence. They were always the patria, but only in certain cases the partes, of the parties. As the law advanced to the dignity of a cultivated science, the line of demarcation between the facts which were to be proved, and the law which was to be applied to them, became strongly (occasionally too strongly) marked. If the temporary and casual inquest returned by the sheriff was recognised as the proper judicature for solving the question of fact, the permanent professional representative of the sovereign was alone competent to answer the question of law. The jury, growing up with, and itself a part of, the common law, was thus made the constant adjunct to its courts. It insured at all events publicity, without which every other excellence can give little security for real, and none for apparent, justice. Yet apparent justice is the source of the general confidence and satisfaction which forms one of the principal objects of government in all its branches. In their own limited departments, courts of equity, admiralty, and chivalry, arose under the civil law, and ecclesiastical courts under the canon law. Knowing nothing of a jury, they knew nothing of the above distinction; and the professional judge was of course entrusted with the decision both of fact and law. Cases in Chancery, where an issue is directed, are the mere exceptions of practice. There is nothing in the great majority of the questions which come before any of these courts, as compared with the civil questions which are tried at the assizes, to warrant a difference of this description. The interposition of a jury is matter of command in the one case, and of prohibition in the other; yet the rule rests only upon prescriptive usage, and not on reason. The legislature has often dispensed with juries, for obvious reasons. It is easy to understand how a jury is too popular an institution to be trusted with the administration of unpopular laws; such as laws enforcing rates, excise, and customs, must unfortunately always be. A more agreeable reason will justify the absence of a jury in some, but in some only, of the
questions left to justices of the peace. Many causes are too free from difficulties, and at the same time too frequently recurring, to render it necessary or prudent to fill a jury box by means of a legal conscription on their account. Twelve citizens need not be summoned from the fair-yard or the counter to superintend the prosecution of all minor offences, and on every affair of correctional police. Whilst accidental circumstances have had the greatest share in establishing the distinctions by which in the higher courts juries are admitted or excluded, it would be as well to see in what cases some better criterion can be found. This would be wiser than the opposite courses which have been recommended by the extreme advocates of reform; an indiscriminate reception, or an almost indiscriminate refusal. A jury is an excellent tribunal for solving and appreciating ninety-nine out of one hundred of the combination of facts with which criminal justice has to deal. It is thoroughly qualified to determine all cases of intention, and assess almost all questions of uncertain damage, as in actions of libel and of trespass. Whatever abuses may stain certain periods of our history, the institution has well earned the traditional reverence with which it is regarded. It is entitled, on collateral accounts, to the respect of the lawyer and to the gratitude of the people. The distinction by which a question belonged to the judge or to the jury, according as it was a question of law or of fact, impressed a peculiar character upon our legal proceedings. It was the occasion of the remarkable simplicity and precision with which these separate questions were early discriminated in the English law. The national character of Englishmen has become remarkable for its almost judicial sobriety, and for the degree in which a deep sense of justice and an invincible respect for property are singularly combined with popular public spirit. How much of these, one or all, may be owing to the immemorial co-operation of the people in the administration of the law, is more than any one can presume to say. The impression left by English history on Jefferson is recorded in his declaration, that he would rather live without parliaments than without juries.
It is for the interest of the parties as well as of the public that a suit should be brought to a final termination as soon as a reasonable certainty for a correct decision has been secured. A government is bound to make its courts of original jurisdiction as good as, with reference to the circumstances of the case, it has the means of making them. That is the first and indispensable security. Supposing, nevertheless, that there are grounds for suspecting a failure of justice in any instance, on account of misdecision either upon the fact or the law, the course to be pursued depends on the stage which the proceedings have reached. There can be no reason for withholding from the original court, if it has still charge of the proceedings, the power of doing justice. This is done in civil cases, in a court of common law, by means of a new trial. On the return of the record by the judges who were commissioned to take the trial at Nisi Prius, the court from which the record was sent can revise the law laid down at the trial by the presiding judge, and can also exercise a discretionary criticism on the verdict of the jury. In the event of the question being transmitted to a second jury, the judge commissioned to superintend, and the jurors summoned to rehear the facts, may be different individuals from those concerned in the former investigation; but the class which the inquest represents continues the same. It is not a superior court, but only another edition of the former. The judges on this occasion have frequently an opportunity of putting the parties to such terms as may appear to be advantageous to the ends of justice, especially with regard to the new evidence to be
produced. It is a peculiarity belonging to the form of the action of ejectment, that a party may give himself the benefit of a new trial without the assistance of the court. In Lord Bath's case there had been five successive verdicts for Lord Bath before the House of Lords decreed a perpetual injunction. Justice Powell, in the year 1712 (1 Peere Williams, p. 212), observes that new trials from Nisi Prius are things of which he did not well know the foundation, but of which he had found the courts in possession. Judges of equity, possessing the whole case in their own hands, have allowed themselves a somewhat greater latitude of reconsidering and recalling their decrees, under the analogous forms of a rehearing and a bill of review. When an original court has once pronounced its final judgment, such a judgment is rightly made conclusive ever after, unless reversed by a higher court. There is sometimes the reality, and always the appearance, of hardship in binding the losing party to the possibly hasty or prejudiced opinion of a single tribunal. He will often be desirous of appealing elsewhere for the chance of its reversal. One chance of this kind, if the superior tribunal to which it is carried up is at all properly constituted, will be enough. This part of any possible judicial arrangement contains a choice of evils. Unless a power of removal or of appeal be given, one act of ignorance or of injustice will be fatal to the unlucky suitor. The other side of the risk is exemplified in the skeletons presented by the inferior courts for counties, hundreds, and baronies; or in a still more mischievous vitality. If the power is given, either both courts are really kept alive, in which case the temptation to run the gauntlet of both will often take a party through two proceedings, where he had much better have rested satisfied with one; or society and the law-books will be taxed with keeping up the cumbersome representation of a first court long after it has fallen into disuse. The differences between a writ of error from a court of common law and an appeal from the Court of Chancery are unimportant. They are the respective names by which the two systems mean the same thing. It is only upon appeals, in the spiritual court, that new evidence is received. The absurdity of the English practice, in marshalling appeals, consists not so much in its usually allowing an intermediate stage, as in its converting the whole nobility of the empire into the supreme appellate court. The barbarous incompetency of a tribunal of this nature is flagrant enough to satisfy the condition of raising an exclamation whenever it is mentioned; and it is neither removed nor concealed by the additional absurdity which, by way of a great constitutional improvement, imperatively requires at present, besides the one law lord who is to do the work, the ceremonial attendance of two suffragan peers in rotation for the purpose of looking on. A well considered reform has given the colonies and the spiritual courts an excellent court of appeal in the late judicial modification of the privy council. It is out of the question to suppose that suitors from the ordinary courts of the three kingdoms will rest contented without the benefit of some similar amendment in the character of the House of Lords as a court of justice. The scale of original and of appellate courts must be so constructed as to raise the presumption in favour of the latter. At present the appeal is carried from the most learned judicatories in the kingdom to one which necessarily knows nothing at all about the matter.
Criminal proceedings are carried on with or without a jury. The latter are called summary convictions. They were unknown to the common law. At present they take place in frauds on the revenue, and in many minor offences, before the particular persons appointed by the several statutes which have created these extraordinary jurisdictions. When the commissioner or magistrate has once
pronounced his decision on the case as brought before Government, he is functus officio. The privilege of appeal from his decision, in order to obtain a second inquiry into the merits, is not of common right; it only lies where it has been expressly given by act of parliament. The word is connected with the comparative novelty of the proceeding. For the word appeals had not passed beyond the spiritual courts until the time of James I. The earliest mention of appeals to the quarter-sessions is in the beginning of the reign of Charles II.; and towards the latter part of his reign they had come into general use. On the other hand, the writ of certiorari, by which the King's Bench removes before itself the proceedings of all inferior criminal jurisdictions, existed at common law. A certiorari has the object and effect of a writ of error, in an instance where, from want of learning, error was most likely to occur. For this purpose, whenever it is granted, the determination of the justices, like that of a jury in the case of jury-trial, is final as to the matter of fact; and the superior court, in reviewing their judgment, notices nothing but what appears upon the face of the conviction. The power of granting certiorari has been taken away by express statutory prohibition upon many occasions since the Revolution. Nevertheless the power is considered by the King's Bench as so beneficial to the subject, that the extent of these prohibitions is as much as possible restrained by the utmost jealousy of construction. A knowledge of law travels down to the quarter-sessions in the shape of opinions obtained from the metropolis, and in the persons of an attendant bar. If one or other must be dispensed with, it may perhaps therefore be fairly questioned whether the limited argument on a certiorari is not both more expensive, and at the same time less beneficial to the subject, than the more comprehensive re-investigation admitted upon an appeal. The conclusive nature of criminal proceedings before a jury depends on an absolute rule which the common law introduced, and which it has been able to preserve up to the present day in its own favourite tribunal. No man can be put in jeopardy twice for the same offence. As long as appeals for felony were in practice, this maxim might have been easily evaded. One precedent in direct contradiction to it is reported by Foster in the trials of the Jacobites. But when the jury has once been sworn on a charge within its jurisdiction, and upon a sufficient indictment, it is undisputed law that the prosecutor cannot elect to be non-suited, and that there can be no second trial. The points on which a criminal judgment may be falsified or reversed by the King's Bench, or by the House of Lords, either with or without a writ of error, are all independent of the merits. Wherever the proceedings below are annulled on the supposition that the party prosecuted has never been tried at all, of course he still continues liable to prosecution in the same manner as if the former nominal trial had never taken place. The doctrine of attaints in criminal cases was at no time held in terror over a jury. At moments of violence, arbitrary judges, dissatisfied with a criminal verdict, formerly imposed fine and imprisonment instead. This was equally unjust, and was illegal into the bargain. In the nature of things, however, there can be no reason why the presumption in favour of the correctness of a verdict should be placed higher in criminal cases than in civil. Yet the one is left carefully open to revision, while the other is as carefully closed. The distinction is partly the result of accident, partly of indifference. But it is probably in some degree to be attributed to the fact that it was an object to bring litigation sooner to a close, where, owing to the poverty of the parties, and to the rules concerning the costs of an indictment, the litigation would be prolonged at the expense of the public.
The present popularity of the distinction is undoubtedly for the most part matter of tradition. The cause of it is to be found in the despotic practices of former times. The people gladly acquiesced in any rule which lessened the number of criminal prosecutions, and secured to a defendant the whole advantage which had been hardly earned for him by the rare contingency of a courageous jury. It is impossible that even the violent condition of unanimity can make the first impression of any court, especially of a court constituted like a jury, so completely satisfactory that the conclusiveness of a single verdict can be consistent in all criminal trials with the ends of justice. The rule in the present state of society operates entirely in favour of the prisoner. It must do so as soon as the crown has learned to exercise the prerogative of pardon on purely public considerations. Amongst these, and in the first rank, stands the necessity of protecting the conscience of mankind against the possible suspicion of punishing the innocent. If there has been any mistake in fact or in law, or if any fresh evidence has come to light, the prisoner is certain of receiving from the executive the full benefit of the discovery, in mitigation or pardon. On the other hand, unfounded acquittals are very injurious to the best interests of a community. They turn back on society offenders whom impunity has hardened. They embolden all who are tempted by vicious propensities to prey upon the public. They bear down the innocent man's appeal to a verdict in vindication of his character, by the cry of acquitted felons. They destroy the confidence of the people in the truth and efficiency of the law. The ancient scruples, by which the statutes of jeofails were not allowed to amend errors in indictments, had no connection with truth, justice, or sound humanity. As little can be said in behalf of any scruple which refuses society, for the punishment of a wrong-doer, the same assistance as it affords a private individual in satisfaction of his private injury. It will not be to the credit of the reason and the temper of the English public of the present day, if they are not able to remove this inconsistency between the two systems, by the interposition of checks and precautions, which, whilst they give a proper chance of justice to the public, shall secure a prisoner against any further hardship than that of having his case properly decided.
8. Judicial Proceedings.—On these points the English practice bears a remarkable resemblance to the Roman in some particulars, which have been comparatively abandoned in countries where otherwise the civil law is the principal authority. It is the more curious to find these coincidences between two systems, which are otherwise so different, that Selden observes they have not a term in common. The original writs of the common law, by being the tests whether a party has or has not a right, are rude approximations to a code. Their analogy to the set forms for actions adopted by the Romans is so striking, that Duck and Noy agreed that the writs in the registrum brevium must have been settled by great civil lawyers. Blackstone (vol. iii. p. 117) speaks as if some similar standard was in itself undoubtedly necessary to fix the true state of a question of right; and he even subjoins, that an equivalent method is recognised by all the modern legislatures of Europe. This is surely a proposition very difficult to be maintained in the presence of the contrary experience, both of Scotland, and of the English courts of equity and of Doctors' Commons. In the subsequent proceedings, most judicatures leave the parties to tell their story in their own fashion. But Mr Stephen, in his excellent work on pleading, shows, by reference to Quintilian's account of the method of oratorical analysis, which he himself used in forensic controversies (B. vii. c. 1), how artificially the
logic of a Roman advocate was directed to the object of bringing out the point in issue. Looking at the different ways in which the testimony of witnesses may be extracted, Mr Bentham says that cross-examination is, both in the thing and in the name, peculiarly English; for every thing of the sort is excluded by the interchange of written interrogatories from the present usage and vocabulary of the civil law. However, in the seventh chapter of the fifth book of his Institutes, Quintilian has again sketched as accurate a picture of examination and cross-examination as a Nisi Prius leader could desire. Every rule of positive law is necessarily founded on a balance of advantages and disadvantages. In many cases the line of prudent compromise between opposite mischiefs is extremely difficult to draw and to preserve. Wherever the line is taken, nothing is so easy or so unreasonable as to caricature it, by representing only the inconveniences which every compromise assumes. This is particularly true with regard to judicial pleadings. They are merely the statement made by both sides of their case; nevertheless they are a subject which, on account of the opposite mischiefs of the Scottish and English systems, has lately been the occasion in both countries of elaborate debate and judicious propositions for their reform. The nature of the mischiefs in these two instances is just the reverse of what might have been expected. Scotch pleadings, which were carried on under the superintendence of the judge, erred by extreme looseness: whilst English pleadings, which, except in extreme cases, had been for ages left to the discretion of counsel, became celebrated for the characteristic error of an extreme strictness and technicality. The intermediate course taken by the Court of Chancery appears upon the whole to be the most rational; though equity drawing has quite reproach enough in its verbosity and repetitions, where every word has a pecuniary value. As soon as the new rules relating to pleadings, which have been lately framed by the judges of the superior courts of common law, shall have come into practice, it may be confidently trusted that the common law will no longer labour under the evil of voluminousness, in addition to that of technicality. Originally, parties made their statements to the judge by word of mouth, with as little form as a complainant tells his story to a magistrate, or as counsel at present open the case orally at the bar. During this period a great deal would depend on the talents of the judge for abridging irrelevant details, and clearing up ambiguous expressions. Afterwards, towards the middle of the reign of Edward III. when writing became common, the substance of the altercation, to which the evidence and the argument were to be applied, was required (and very properly) to be put down in writing in the first instance. The moment of this transition was the golden age of English pleadings. Serjeants drew them, and judges settled them. The judges ceased by degrees to interpose at this early stage of the suit. But, according to the scholastic subtleties of that age, the science of special pleading was encouraged to become more minute and complicated. A proportionate degree of technical knowledge was rendered necessary for the judge, since he had ultimately to award the prize to the professional combatant who had manoeuvred on behalf of his client with most success on this preliminary arena. Fitzherbert, Littleton, and Coke expatiate on the learning, the lucrativeness, the honour, and the delights of pleading. The reports of Chief-Justice Saunders are the glory of this art; and his mind is a model of the sort of astuteness which it cultivates. The department calls for but a small, and that far from the highest, portion of real judicial ability. It becomes only prejudicial craftiness the moment that it passes the boundaries within which a strong and logical understanding would confine
Government and Laws. the speeches of advocates at the bar. The degree at which an intimate acquaintance with special pleading still ranks in the list of qualifications for the bench, is a proof how much that boundary has been overpassed.
Besides mastering the merits of his case, formal difficulties of great magnitude are in this early stage of the inquiry thrown upon an English lawyer. In the first place, he has to select the appropriate form of action; and having done that, he must comply with the established principles on which the forensic argument is to be conducted, and which, mutatis mutandis, are equally applicable to all forms. Our historical sketch of the transactions of English pleadings shows what alone they ought to be when they are properly considered. If they are nothing but the statement made by the parties, of their respective cases, What is the only object of an intelligent and honest statement? It can be nothing else than to keep clear of extraneous topics, and to get to the point in dispute as soon as possible. As every legal question consists of the application of a supposed principle of law to some one or other supposed fact, the first thing to ascertain is, About what are the parties quarrelling? Do they differ in their view of the law or of the facts, or both? The alternative cases present no difficulty. When there is no dispute about the facts, there is a simple point of law for the opinion of the judges. It is at once raised upon what is called a demurrer. On the other hand, when the dispute turns entirely on the facts, what is wanted, is, that they be brought out to the jury in so precise and definite a shape, that it is impossible to mistake the point or points in issue. If the party is prepared to dispute the correctness of the law as applied to the supposed facts, and further, also the correctness of the facts as stated, questions of considerable difficulty and difference of opinion open on him. Must he enter upon both issues simultaneously? or may he take first one, and then the other? and, in the latter case, with which of the two issues, that of fact or that of law, ought he to begin? The English common law disposes of these considerations by summarily making an admission of the facts a condition of a demurrer. A legal proposition can seldom be put forward so manifestly erroneous that a defendant will not think it advisable to retain both chances in his hands. It is on the facts, namely, what he should prove, concede, deny, that he must be careful to watch over his own interests. Points of law will comparatively take care of themselves, and the benefit of these is also secured at all stages. Demurrers are freed in courts of equity from the above condition. The experience in equity by no means justifies the apprehension entertained by the common-law pleaders, that on the removal of the condition every cause at common law would be forthwith burdened with a tentative demurrer. The discretionary application of costs might easily be made a most effectual instrument for the suppression of such unwarrantable speculations as might at first arise upon a relaxation of the former rule. The abuses of special pleading have on many occasions induced the legislature to interpose. Particular defendants, as magistrates, for instance, have been favoured, by way of exception, with the privilege of pleading the general issue; that is, they are allowed to deny generally the wrongful act imputed to them, without being called upon to state whether they mean to deny the law or the fact, or to mention a single item of the hundred possible special grounds of their defence. The English system prides itself on its peculiar mechanism, every movement of which necessarily tends to a clear and single point. The plea of the general issue does much more than lose the advantage for which so much is sacrificed. It covers every thing with a cloud. It gives the defendant the privilege of evading the duty
of speaking out, by adopting a common form, which tells the opposite party absolutely nothing. The regulation which refuses a prisoner a copy of his indictment till he holds up his hand to take his trial, is scarcely in principle more unjust. Fraud lies in generalities. On the one hand, a defendant or a prisoner has a right to know the particulars of the demand or of the accusation brought against him; something more than the mere assertion, that he is liable to a demand or charge of some sort; what it is being left to appear on the day of trial. On the other hand, plaintiffs and prosecutors are equally entitled to know beforehand the particulars of the defence on which their claim is to be resisted; something beyond a direct negation. At all events, when the power of pleading the general issue is thrown over a party as a shield, the exception should rest on the nature of the case, and not on the authority of the person. A better distinction might be found than that of official station. Pleadings drawn up and communicated by the professional representative of the parties ought to contain a correct narrative of the transaction in writing. Thus prepared, they might be expected to be more complete, and at the same time more relevant and more concise, than any judge could have obtained from their own mouths if present. Yet what would be thought of parties in open court who were to ramble into the jargon and exaggeration of a declaration; or who should indulge themselves en route in the fiction of alleging the utmost preciseness of time and place, whilst every syllable of the allegations was perhaps notoriously and ridiculously untrue. It is difficult to account for the origin of such extravagant falsehoods. They are as indefensible in point of reason, coming from the pen of a pleader, as if they came from the principal himself, preferring his claim and conducting his cause in person.
9. Evidence.—What the pleadings have stated, it is the object of evidence to establish. One of the most difficult things to account for, is the absurdity of the rules of judicial evidence, which have prevailed in all ages and over all countries. Sir William Jones observes, in his preface to Isacus, that "we may triumph in our elegant and philosophical theory of evidence, which Aristotle and Plato must have admired, and by the strict rules of which all trials in the world ought to be directed." No panegyric was ever less deserved. It is perhaps true that the English theory on this subject is less objectionable than the theory of almost any other country, inasmuch as its exclusions appear upon the whole to be fewer and more strictly limited. But it is faulty enough even in this respect; whilst whatever other defects may be found incorporated in its principles, they are likely to be felt more severely in practice, in consequence of the unbending rigidity with which every rule is enforced by English lawyers. Our judicial system is too careless in requiring or preserving preconstituted written evidence, even in the case of recurring events and deliberate transactions. The registries of baptisms, deaths, and marriages, are still left as a part rather of ecclesiastical discipline than of civil obligation. They are exposed to great irregularities and losses, whilst a general registry of deeds remains yet to be established. In criminal proceedings the attendance of witnesses on both sides is secured by summary methods. The duty of appearing for a prisoner as well as against him is equally a debt due to society by its members; although it is one which the law was disgracefully slow in recognising. In civil cases witnesses are obliged also to attend; nor can they insist upon more favourable terms than the tender of their expenses. The English law admits of four heads of personal incompetency in a witness: one intellectual, as want of sufficient reason; and three moral. Of these, the first is a want of religious belief, extending as far as to disbe-
lieve the existence of a God and of a future state of rewards and punishments. The second is infamy of character, evidenced by a judgment of felony, or for some offence considered by the law as infamous. The last is, a direct legal interest in the cause at issue, or in the question asked. The objection that the witness might use the verdict upon some future occasion, has recently been removed. The only head of incompetency from family relationship, is the case of husband and wife. It applies to both, and to evidence offered either for or against each other. The only instance of incompetency from professional relationship, is the rule by which a lawyer is prohibited from giving evidence against his client concerning any facts with which he has become acquainted under the sanction of that relation.
The objections are equally fatal, whether the acts to which the testimony applies are sudden or deliberate. It would be as difficult to justify the want of distinguishing between these two classes, as to prove the propriety of the distinctions which, in some instances, prevail between the admissibility of the same evidence in criminal as in civil proceedings. The rejection of hearsay is also too extensive. It may be doubted whether the rejection should ever be carried further than to declarations made by a person whom it was possible to have produced as a witness, and who might have been compelled in the character of a witness to repeat his supposed statement under the sanction of an oath or other solemnity, and subject to cross-examination. It does not apply to declarations, themselves a part of the transaction. The tendency of the judges of latter days has strongly run in the direction of letting in evidence. But more extensive innovations upon the former exclusions than the judges feel at liberty to authorize are probably near at hand. Amongst these, the taking away the exclusion on the ground of interest in a civil suit, is the most important. There can be no doubt but that the examination of a prisoner, humanely conducted, would be very favourable to truth. But there is much doubt whether even an open court could be trusted with the authority, and still more whether the public would be satisfied with the charge. All the objections above enumerated go to the competency of a witness, and, where they apply, are fatal. All other objections are of minor consequence. They go only to the credit, and as such, they are questions, not of total exclusion, to be determined by the judge; but matter for observation, turning on degrees of credit, more or less, to be weighed by the jury. Two witnesses, or an equivalent, are universally required by the civil law. With us, one witness, if believed, was sufficient for all purposes, until parliament made two necessary in treason, and until a rough sort of comparative arithmetic established the demand for something more than a single witness upon a charge of perjury. Parliament has insisted upon the aid of three witnesses to a will devising an acre of land, though a million in the three per cents, may be bequeathed by an unwitnessed testamentary paper. Courts of equity have imposed a limit on their encroaching jurisdiction, by allowing the positive oath of a defendant to be conclusive against the unsupported testimony of a single witness. The limit has probably a reference to the double origin of Chancery; first as a court of conscience, and next as more closely connected with the civil law. There are but few instances, and those introduced by act of parliament, where written evidence is of absolute necessity. The policy of the celebrated statute of frauds was adopted from the French ordinance of Moulins; and it admits of no exceptions where it applies. But writing is often used by the parties in transactions which are without the statute. The common law is equally strict in both cases, in preventing
written instruments from being varied, added to, or explained by parole. The rule has been broken in upon to a certain extent, by a distinction between ambiguitas patens and latens, of which Lord Bacon has the credit. The best justification to be made for the exception which allows an ambiguity raised by external evidence to be also removed by external evidence, appears to stand on the following considerations. It restrains the fear of perjury within a much narrower circle. In the next place, the author of the writing had not equal means of protecting his intentions against an ambiguity of this description. The admissibility of copies is tried by the paramount rule, that the best evidence in existence must be produced. Mere declarations acquire no further validity by being committed to writing. They thus become only written hearsay. The mode of extracting oral testimony varies according to the courts in which it takes place. Very little can be added to the excellence of the system in the courts of common law. A witness there delivers his evidence ex auctoritate, in the presence of the public, of the parties, and of the deciding judge. There is scarcely a limit to the range of examination and cross-examination, but the discretion of the court. The practice in courts of equity is much more imperfect. The examination being conducted on written interrogatories, and by examiners out of court, loses all the advantages of ex auctoritate suggestions on the spot, of cross-examination, and of publicity. The very demeanour of the witness is removed from the observation of the judge who has finally to determine on their credit. The proof of writings depends on the nature of the instrument, or on the mode of its execution. The English law does not affect to create a scale by which the value of particular evidence may be determined. With the same forbearance, it has refrained from establishing any judicial standard concerning the amount of evidence which is or is not adequate grounds for a judicial determination in any cause. These are questions of fact, on which (beyond a few hints, more valuable to a committing magistrate than to the deciding judge) the less that is said in law-books the better. The only security for correct decisions is the founding competent tribunals, and binding them to no other criterion than that of their own personal conviction. Mr Bentham's work on evidence, and his criticism on this branch of the English law, are perhaps the most original, and at the same time most useful, of all his writings.
10. Judgment and Execution.—The object of a civil action is either the recovery of a right certain, for instance, particular lands, specific goods, a fixed sum as settled by the agreement of the parties; or the recovery of uncertain damages, more or less, according to the extent of the injury which the plaintiff shall be able to prove that he has sustained. The first class of cases, by the nature of the demand comprehended in it, relieves the tribunal from the vague and discretionary inquiries arising under the second. The amount of damage is a fact which a few impartial individuals taken from the body of society are in the great majority of cases peculiarly qualified to assess. This in civil actions is accordingly the province of the jury. They are likely to be far better acquainted than learned judges with the real elements on which the calculation ought to proceed. Damages evidently so excessive as to be explained only by the imputation of gross ignorance or corruption, are, however, one of the admitted grounds for sending back the case to a second inquest. The judgment against Titus Oates, for scandalum magnatum, at the suit of the Duke of York, where one of the juries of those days had assessed the damages at £100,000, was reversed after the Revolution. The costs of a trial were never given at common law. In most cases, however,
they have for a long time followed as the ordinary incident to judgment. Since the preliminary oaths and pledges of former days have fallen into oblivion, they constitute the only security of the defendant against frivolous and vexatious actions. Costs are too material an item in litigation to be properly bound in any court by one uniform rule. We are not disposed to recommend, for the sake of consistency, that courts of equity should be brought under the strictness. It would be a better approximation that the discretion of the courts of common law should be assimilated to the latitude which courts of equity have assumed. It is easy to enlarge the statutory power given in some instances to judges' certificates, or to grant an analogous authority to the jury. Certificates for costs might be made a sufficient restraint on fraudulent attempts against the credit of the law and the interests of society. There are occasions when personal vindictiveness combines unnecessarily an indictment and an action in misdemeanors, or when base practitioners multiply actions for the sake of costs against several parties who happen to be all legally liable. In ejectments, trespasses, libels, joint-stock companies, and all cases where many rights depend upon a single title, or the ends of justice may be satisfied by a single verdict, the law in its present state may be far too easily and too profitably abused.
In consequence of the feudal restraints on the alienation of land during a great period of English history, it continued to be only partially liable for its owner's debts of any description, and was not liable at all for ordinary debts by simple contract. The restraint went far beyond the policy of entails. To the extent that entails were permitted, a tenant for life might, as far as the principle was concerned, have bound the life estate, but nothing more; since that only is his own. This invidious protection of land, even when owned in fee against simple contract creditors, has been completely removed during the last session. Ever since the 29th Charles II., whenever land was at all liable, it was equally so although held in trust for the debtor, as when it was held in his own name. No feudal principle interfered to protect personality from a creditor. Nevertheless, the absurd expression, that money cannot be sold, and the maxim, so inconsistently evaded in many cases, that a debt or a right to sue another was not transferable, had an equally mischievous effect. No sensible reason can be assigned why the principle of foreign attachment should exist for the benefit of the citizens of London only, and not for the benefit of every creditor in England. There is even still less reason why funded property should be placed beyond the reach of the law, on the technical distinction arising from its subsisting in the form of an annuity payable by the nation to the holder of the stock. The bank, in the management of this property, is a parliamentary trustee for the owners of it. And the judgment of a court of law, duly certified on a recovery against a stockholder, ought to have the same effect as the signature of the accountant-general of the Court of Chancery for authorizing a transfer of the stock. There is a dangerous tendency in facilities for credit to run to too unlimited an extent. The power of imprisoning the person encourages this tendency; and, what is worse, it is frequently resorted to in the hopes of laying the innocent relations of a spendthrift under contribution. The humanity of modern times has thrown open the doors of the debtors' gaol, by discharges under the insolvent act. The security contingent on the person of a debtor was good for much at no time. In its
actual state, it is of far too little value to be worth contending for. It is likely to be soon reduced to nothing, since it is seriously proposed, on grounds of public policy, to prohibit altogether imprisonment for debt.
For the prevention of crimes, the law seeks to obtain a counteracting influence in all directions; in its command over property, character, liberty, and life. The jury find merely the fact of guilt. The legislature has to most of offences affixed a maximum of punishment, according to a rude calculation of the nature of the offence and the interests of society. In a very few a minimum also is enacted. The power of arbitrating between these extreme limits, and of mitigating the penalties where no limit has been prescribed at the bottom of the scale, rests entirely with the judge. The gradation of punishments seems to call for further revision, with the object of proportion, mitigation, and precision. The calculation of public damage proceeds on the principle of prevention, and is set apart from the judge; that of private damage looks only to the satisfaction of the party, and belongs to the jury. The distinction arose probably on totally different grounds. It may be justified, however, by the observation, that the calculation in the instance of crimes does not depend on the individual case, but on a more comprehensive and general view of the bearings of the whole criminal law than a jury can well be qualified to take; and that a greater chance is thus afforded of an approach to that uniformity or average which it is so desirable to obtain. Pardon is a prerogative properly left with the executive. This is so in America, notwithstanding the foolish denial of the possibility by theoretical writers against republics, equally as in England. The exercise of the prerogative is of course greatly influenced by the recommendation of either the judge or jury. The abuse of it in favour of particular criminals was one of the scandals of many reigns. This had reached so extravagant a pitch, that Sir Thomas More praises Henry VIII. on the ground that never king granted so few. Nevertheless, such was the complication and severity of the law, that to execute it according to its letter would have been not only unpopular, but impossible. At the very period when particular pardons were a national grievance, general pardons were looked forward to as public blessings. It is observed by Sir Bartholomew Shower, that there were never five years without a parliament pardon, and that eleven were published by Elizabeth. "These," he says, "it was which made parliaments and crowns the darlings and the desire of the people." The dispute whether the crown can pardon on impeachments, was one of the remains of the jealousies of former days. It was raging, as a great political question, as late as the Revolution; and it is still open to argument as a point of law. The dissolving parliaments to save his favourites from impeachment, is charged even by Clarendon upon Charles I. as a denial of justice to the nation. There is a vast variety of writs of execution in civil suits of the most trifling moment. By way of contrast, Blackstone notices the slightness of the form by which a marginal note put by the judge upon the calendar, is the sole authority for the sheriff, even in a capital conviction. It is one only of many instances of the comparative value set by our ancestors on the formal administration of civil and criminal jurisprudence. The execution of the law in all cases, of whatever description, is intrusted to the official representatives of the executive. Special jurisdictions have their special officers; but, by the common law, the sheriff is in all judicial matters the proper minister of the crown.
ENGLISH LANGUAGE. When the Romans invaded the south of Britain, they found the country possessed by a people of Celtic origin, and speaking a dialect of the Celtic tongue. This invasion took place about fifty-five years before the birth of Christ, and the invaders retained their ascendancy till the commencement of the fifth century. During this interval, the Romans imparted to the rude natives some tincture of their own intellectual refinement, but must have left the British language as they found it: the foreign settlers were not sufficiently numerous to produce any change in the speech of the original inhabitants. When the huge fabric of the Roman empire began to decay, the Britons, who had the advantage of a remote and insular situation, found means to assert their independence. They however divided themselves into many petty states, and exercised many petty animosities, which impaired the national strength, and rendered them an easy prey to foreign invaders. The pirates of Saxony had long been accustomed to make occasional depredations on their coasts. The Picts and Scots, that is, the Goths and Celts of North Britain, infested them on the frontier; and at length the sense of common danger produced some degree of union in their councils and exertions. In this condition of their affairs, the Saxons obtained a permanent footing in the country. In the year 449, Vortigern, king of the Britons, had recourse to the aid of Hengest and Horsa, who first appeared as allies, but were soon converted into the most formidable enemies.1
The Saxons, like other Gothic tribes, derive their origin from a mighty horde which wandered from the east, and gradually overran the best portions of Europe. So early as the time of Ptolemy the geographer, this particular tribe had proceeded as far to the westward as the banks of the Elbe, and their primitive seat was between that river and the Eyder. Although at first they were not very formidable for their numbers, they gradually obtained a powerful ascendancy in Germany. Towards the middle of the third century, they entered into a league with the Franks for the purpose of opposing the Roman arms; and they afterwards enlarged their connexions and increased their influence till it predominated in a territory of great extent, reaching from the Eyder to the Rhine. This wide tract of country was not entirely peopled by Saxons: it included various nations, united by the ties of a kindred origin, and actuated by a sense of common interest or danger; but such was the ascendancy of the Saxons that they communicated their name to the entire confederacy, which, among other nations, comprehended the Jutes, who inhabited the south of Jutland, and the Angles, who inhabited the adjacent district of Anglen. Hengest and Horsa, the leaders whom we have already mentioned, were not Saxons, but Jutes. The subsequent emigrants were for the most part Angles, and their descendants were long distinguished by the name of Anglo-Saxons. The first part of the name denotes the predominant tribe, the second denotes the original relation of that tribe to the Saxon confederacy. The new country which they acquired was denominated England-land, or the land of the Angles. These German invaders established themselves in the most fertile districts, and gradually displaced the Celtic inhabitants, till at length they were chiefly con-
fined to the fastnesses of Wales, where the prevalence of the ancient language still indicates the continuance of their race. Eight new states were formed by the Anglo-Saxons, who maintained their independence till the year 1016, when they were subjected to the yoke of a Danish conqueror. Canute, and his two sons, Harold and Hardicanute, reigned in England for the space of twenty-six years. A Danish court, and a Danish army, with other settlers, must have had some influence on the common speech, especially as the language of the conquerors was not very dissimilar to that of the conquered. But the laws and other public documents continued to be written in the Saxon tongue, and this new dynasty soon finished its course. The Saxon line of kings, which was restored in 1042, terminated in 1066, when Harold the Second was slain at the battle of Hastings, and William duke of Normandy ascended the throne of England. The Saxon dominion had thus continued for the best part of three centuries; and as the great body of the people was still of this race, it is obvious that their national language must have survived their political power. A writ in the Anglo-Saxon tongue was issued by Henry the Third, who began his reign in the year 1216.
In the language spoken by this ancient people, a great variety of literary relics has been preserved. "The Anglo-Saxon literature," says Professor Rask, "possesses in many respects, even for its own sake, no small degree of interest. The numerous ancient laws throw considerable light upon the laws of the old Germans and Scandinavians, as well as upon their customs and civil institutions. The old chronicles and genealogies are important sources for the ancient history of the Low German and the Scandinavian nations. The various documents illustrate much in English history. Even the theological remains, shewing the constitution and doctrine of the ancient church, are not devoid of value for ecclesiastical history, especially to the modern English and Scottish churches. The translation of several parts of Scripture may likewise be advantageously employed in biblical researches. But of all, the poetical pieces are the most interesting, especially the great Anglo-Saxon poem in forty-three cantos, published at Copenhagen in 1815, by the Royal Archivarius G. J. Thorkelin,2 which, from its commencement, he has aptly entitled Scyldeinga. This is perhaps the only Anglo-Saxon piece possessing value on account both of its matter and style, particularly for the nations of the north; the principal hero being Swedish or Gothic, though the action lies in Denmark.3 This ancient poem, more generally known by the name of Beowulf, has been translated into Danish verse by Dr Grundtvig, and ably illustrated by Mr Conybeare.4
The language of the conquerors became the language of the king's court and of all the courts of law. The pleadings of counsel and the decisions of judges were couched in a dialect which is commonly described as Norman French, but which in the mouths of English lawyers became utterly barbarous; and more curious specimens of composition are scarcely to be found than those which occur in the reports of cases written in a jargon half-French half-English. Lawyers have in all ages been conspicuous for their stiff adherence, with or without reason, to those forms and maxims in which they themselves have
1 Saxon Chronicle, p. 14. Ingram's edit. Lond. 1823, 4to.
2 A more recent edition may be found in an elegant little volume bearing the following title: "The Anglo-Saxon Poems of Beowulf, the Traveller's Song, and the Battle of Finnes-burh; edited, together with a glossary to the more difficult words, and an historical preface, by John M. Kemble, Esq. M. A. of Trinity College, Cambridge." Lond. 1833, 8vo.
3 Rask's Grammar of the Anglo-Saxon Tongue, translated from the Danish by B. Thorpe, p. vii. Copenhagen, 1830, 8vo.
4 Conybeare's Illustrations of Anglo-Saxon Poetry, p. 30. Lond. 1826, 8vo.
English language been duly trained. Long after French had ceased to be the language of legal proceedings, they adhered to the practice of reporting cases in the motley dialect used by their predecessors; for, as Blackstone remarks, "the practitioners being used to the Norman language, and therefore imagining that they could express their thoughts more aptly and more concisely in that than in any other, still continued to take their notes in law French; and of course, when those notes came to be published, under the denomination of reports, they were printed in that barbarous dialect; which, joined to the additional terrors of a Gothic black letter, has occasioned many a student to throw away his Plowden and Littleton, without venturing to attack a page of them." By the 36 Edw. III. c. 15, it was enacted that for the future all pleas should be pleaded, shewn, defended, answered, debated, and judged in the English tongue, but should be entered and enrolled in Latin. The statutes of the realm long continued to be promulgated in French; and it was only from the accession of Richard the Third that Englishmen were governed by laws written in their native tongue.
The Norman conquest proved fatal to the entire race of Anglo-Saxon nobility, many of whom lost their lives, and almost all of them their property. Not a few of the number sought refuge in different monasteries. Some of them became abbots, and others closed their career as monks. The lands of the Saxon earls were occupied by the Norman barons, who found it necessary to consult their personal safety by inhabiting fortified towns and castles. They must have had but little intercourse with their vassals, whom they probably did not respect, and whom they had much reason to fear. They retained their native tongue, and seldom acquired any other. For a long period of time, the peasantry continued unmixed with foreign settlers; they continued to cultivate the same soil; and when the written language of the kingdom had received many foreign accretions, the rustic dialect preserved its primitive elements with very few material changes. Much of the patois of different countries consists, not in adulterations of the modern, but in remnants of the ancient language. Many Anglo-Saxon words and idioms, unintelligible to persons of a refined education, are still current among the rural population of particular districts of England.
The English monarchs of the Norman race were liberal patrons of such literature as they themselves understood. French poetry seems to have been much relished at the court of England; and, according to a very competent judge, M. de la Rue, it was from England and Normandy that the French received the first works which deserve to be cited in their language. The works of many Anglo-Norman poets have been preserved, and they certainly form a curious subject of literary research. In this department, a learned lady, Marie de France, makes a prominent figure. Her poems have been recently edited by M. de Roquefort; and one of the historical poems of Wace still more recently by M. Pluquet. A history of the Anglo-Norman poets and poetry is speedily expected from M. de la Rue, who has already exhibited sufficient evidence of his being well qualified for such an undertaking.
Of the language spoken by the great body of the people about a century after the conquest, the reader may in some degree be enabled to judge from the following specimen of Lyamon's translation of Wace's Brut d'Angle-
terre. The translator describes himself as a priest of Ernlye upon Severn, and he is supposed to have completed his task about the year 1180. English language.
Tha the masse wes ivungen,
Of chirecken heo thrungen.
The king mid his folke
To his mete verde.
And mude his ducethe
Dreus wes on hirede.
Tha quene, an other halve,
Hire beceberwe ischte;
Heo falle of self-menne
Wunder ane moni en.2
"When the mass was sung, out of the church they thronged. The king amid his folk to his meat fared, and many of his nobility; joy was in the household. The quene, on the other side, sought her harbour (or lodging); she had wonderfully many women." Here, and in a much more ample specimen of the same work, we perceive no mixture of French words. The idiom is essentially Anglo-Saxon, but with some indications of its being already in a state of transition; the vestiges of the language, in its more modern form of English, may be distinctly traced. Of the language in a state more considerably advanced, we find a specimen in a facetious poem published by Dr. Hickee.
Far in sea, by West Spain,
Is a land thete Cockayne.
There n'is land under heaven-rich
Of wel of goodness it y-like.
Though Paradise be merry and bright,
Cockayne is of fiver night.
What is there in Paradise?
But grass, and flowers, and green kisse for us to winze.
Though there be joy and great dute,
There n'is meat but fruit;
There n'is hall, bare, no bench,
But water mannis thirst to quench.3
In this poem, which apparently belongs to the thirteenth century, we perceive a further deviation from the Anglo-Saxon idiom. In the preceding extract, the obsolete spelling is not retained, and the language is thus rendered more intelligible. The subsequent quotation is from a metrical history of England, written by Robert, a monk of Gloucester, who appears to have lived about the year 1278. This rhyming chronicle, as Mr. Warton has remarked, is totally destitute of art or imagination. The author thus describes the island of Ireland, nor does he fail to mention its exemption from venomous reptiles.
Yrlond ys aler yle best with outo Engolonde.
The sea goth al abouten hym eke as ich vnderstonde.
More he ys than Engolond, and in tho south half he ys
Bradder and more of ynow than in the north ende y wys.
Aeyn the lond of Spayne he stond in the north ende rytt.
Selde snowe ther inne lith, and nanelliche thur mytt.
So etene hot that lond ys, that myn dorre selde
Hero oft in howre awyter brynge out of the felde.
Lene lasteth ther al the wynter; bute hyt tho more wonder be,
Selde me schal in the lond eny foule wormes se;
For nedes my other wormes ne now ther be noyt;
And sef he beth thider hi cas from other londes y brott.
Heo dyoth thur smel of the lond, other thur towehyng y wys.
Eche grass that ther lene wexeth a seyn venyn yt ys.
For men that bon wyxmed, thur grasses of Yrlond.
Y dronke he beth y clased, sone, thoru Godes sonde.
Hety and mylk ther ys muche, mony folk and bolde.
This ys the stat of Yrlond, as iche habbe y tolde.4
Another chronicler, who however belongs to a period
1 Blackstone's Commentaries on the Laws of England, vol. iii. p. 318.
2 Ellis's Specimens of the Early English Poets, vol. i. p. 61.
3 Hickee's Anglicanus Vettii Septentrionalium Theasaurus, tom. i. p. 231.
4 Robert of Gloucester's Chronicle, vol. i. p. 43.
somewhat more recent, was Robert Manning, more commonly called Robert of Brunne. He has himself stated that he had resided fifteen years at Brunne, or Bourne, in the priory of black canons, when, in the year 1303, he began his translation of Grosteste's Manuel des Pechés. This version still continues in manuscript; but one portion of his historical work, his translation from Langtoft, has been edited by the indefatigable Hearne, who rendered a similar service to Robert of Gloucester. The inedited portion consists of a translation from Wace's Brut. Peter Langtoft was an Augustine canon of Bridlington in Yorkshire, and is supposed to have died in the reign of Edward the Second. The subsequent passage relates to Sir William Wallace.
Whan Sir Jon of Warene the soth vnderstode,
That the Waleis gane brenne, an oste he gadred gode,
And went to Struelyne agayne Waleis William,
Bot the erle with mykelle pyne disconfite away nam;
And that was his folie, so long in his bed gan ligge,
Untill the Waleis partie had vmbilaid the brigge;
With ganelokes and dartes sailk ore was non sene.
Myght no man tham departe, ne ride ne go bituene.
Ther first tham taucht how thei did Fawe kirke:
Alle gate the brigge he raucht, of nought our men were irke.
Whan the erle herd say, the brigge how William toke,
He doutel to die that day, that bataille he forsake.
The Inglis were alle slayn, the Scottis bare tham wele,
The Waleis had the wayn, als maistre of that eschele.
At that ilk stoure was slayn on our side
God men of honour, that wald to the bataille bide.1
A more curious specimen of composition is to be found in the Vision of Piers Plowman, which appears to have been written about the year 1362, and which is commonly ascribed to Robert Langland, a secular priest. The work, which comprehends a series of visions, is replete with satire on the different orders of men, especially on the clergy, both regular and secular; but it is likewise diversified by a succession of incidents, and furnishes abundant evidence of the author's talents for description. His mode of versification is not unworthy of particular notice. Alliteration supplies the place of rhyme: the corresponding sounds are at the commencement, not at the termination of words. Our extract from this remarkable work must necessarily be very brief.
And to the church gan ich go, God to honourre,
By for the crois on my knees knocked ich my breast,
Sykinge for my senne, segginge my pater noster,
Weping and walling tyll ich was a slepe:
Thenne mete me moche more than ich by for tolde
Of the mater that ich mete fyrst on Malverne hilles.
Ich sawe the feld ful of folk fram ende to the other,
And Reson reved ryght as a pope,
And Conscience his cocr by for the kynge stonde.
Reson reverentliche by for al the reame
Prechede and provede that these pestilences
Was for pure synne to punyshe the pappe,
And the south west wynd on Saturday at eve
Was pertliche for prude, and for no poynt elles.
Pires and plomtrees were polled to the erthe,
In ensample to syngen ous we sholde do the betere:
Beches and brode oke weren blowe to the grounde,
And turned upward here tayl, in tokenyng of drede
That dedlych synne or donys day shal for do us alle.2
After these specimens of verse, we shall exhibit a specimen of prose, selected from the seventh chapter of the Acts of the Apostles, as translated by John Wycliffe. The translator, who was born about the year 1324, and died in the year 1384, may be regarded as the father of
English prose. He was the author of various works in Latin as well as English; but the most important of his literary labours was a complete version of the Scriptures. He was the great precursor of Luther, who appeared after an interval of one hundred and fifty years; and it may perhaps be safely affirmed, that to him the cause of reformation was more deeply indebted than to Luther himself.
"This Moises ledde hem out, and dide woundris and signes in the lond of Egipte and in the Reed See, and in desert fourti gheeris. This is Moises that seide to the sones of Israel, God schal reise to ghoun a prophete of ghoure britheren; as me ghe schulen heere him. This it is that was in the chirche in wildirnesse with the aungel that spak to him in the mount Syna and with oure fadiris, which took wordis of lyf to ghyue to us: to whom oure fadiris wolden not obeie, but puttiden him awei, and weren turned awei in hertis into Egipte, seiyng to Aaron, Make thou to us goddis that schulen go before us: for to this Moises that ledde us out of the lond of Egipte, we wite not what is don to hym. And thei maden a calf in the daies, and offriden a sacrifice to the mawmet, and thei weren glad in the werkis of her hondis; and God turnyde and bi-took hem to serue to the knyghthood of heuene; as it is written in the book of prophetis, Whether ghe hous of Israel offriden to me slayn sacrifices, either sacrifices of oostis fourti gheer in desert? And ghe han take the tabernacle of Moloch, and the sterre of ghoure god Renfam, figuris that ghe han maad to worschipe hem: and I schal translate ghoun into Babiloyne. The tabernacle of witnessyng was with our fadiris in desert, as God dispose to hem, and spak to Moises, that he schulde make it aftir the fourme that he saigh: which also oure fadiris tooken with Ihesu, and broughten into the possession of hethene men, which God puttide awei fro the face of our fadiris til into the daies of Dauid, that found grace anentis God, and axide that he schulde fynde a tabernacle to God of Iacob. But Salamon bildide the hous to him. But the high God dwellith not in thingis maad bi hond, as he seith bi the prophete, Heuene is a seete to me, and the erthe is the stool of my feet; what hous schulen ghe bilde to me? seith the Lord; either what place is of my restyng? whether myn hond made not alle these thingis?"3
Contemporary with Wycliffe was Geoffrey Chaucer, who is commonly regarded as the father of English poetry, and who closed his life in the year 1400. Dr Johnson has remarked that "he may, perhaps, with justice, be styled the first of our versifiers who wrote poetically."4 He was a man of original genius, improved by a familiar acquaintance with writers in several languages. For the native poets who preceded him, he appears to have entertained but little respect: he sought for better models among the Latin, Italian, and French writers, and in all these languages he found works which he either translated or imitated. He possessed a lively fancy, and was a shrewd observer of life and manners. He improved the language, and refined the taste of his contemporaries. He taught them to write, if not with new harmony, at least with new terseness. The work by which he is best known are his Canterbury Tales; and in these he not only exhibits many characteristic delineations of manners, but likewise evinces a rich vein of native humour. They commence with the following verses, which we have selected on account of the elaborate analysis to which they have been subjected by Mr Tyrwhit.5
1 Peter Langtoft's Chronicle, as illustrated and improved by Robert of Brunne, vol. ii. p. 297.
2 Vision of Piers Plowman, p. 89. Whitaker's edit. Lond. 1813, 4to.
3 New Testament, translated by Wyclif, p. 196. Baber's edit. Lond. 1810, 4to.
4 Johnson's Hist. of the English Language, prefixed to his Dictionary.
5 Canterbury Tales of Chaucer, vol. iv. p. 106. Lond. 1775, 5 vols. 8vo.
Whanne that April with his shoures soote,
The drought of March hath pierced to the roote,
And bathed every reyne in swicke licour,
Of whiche vertue engendred is the floure.
Whan Zephirus eke with his soote brethe
Enspired bath in every holt and heath,
The tendre croppes, and the yonge summe,
Hath in the Ram his halfe cours yronne,
And smale fowles maken melodye,
That sleepen alle night with open eye.
So priketh hem nature in hir courages:
Then longet folk to goon on pilgrimages,
And palmers for to seken strange strondes,
To serve halfe a yeare in sondry londes:
And specially, from every shires ende
Of Englonde, to Causterbury they wende,
The holy blisful martyr for to seke,
That hem hath holpen whan that they were seke.
In the English language, as it thus appeared in the fourteenth century, the Anglo-Saxon vocabulary was still predominant, but the words had been greatly curtailed in their inflexions. This plan of simplifying the structure of speech is to be traced in other instances, where a rude or a strange race is mingled with a people who have cultivated a more complex language, bearing little or no resemblance to their own. The most essential part of the vocabulary may be acquired without difficulty; but it is not so easy to become acquainted with the inflexions of nouns and verbs, or with some other niceties which belong to language in its more complicated form. Many French words had now been incorporated with the English language; but the compositions of this period began to be marked by an affectation of words derived immediately from the Latin. If Chaucer did not set the example, he at least followed it; and when he aims at a more ornamented style, his use of such phraseology is sufficiently copious. In this respect, he was however exceeded by some of his successors, particularly Hoccleve, Lydgate, and Hawes, who inherited no portion of his strength and originality. Being deficient in taste as well as genius, they devised a verbose and languid style, interspersed with many sonorous and polysyllabic terms, with terms "aureate and mellifluous," which did not assimilate with their native tongue. The same false taste was at length communicated to the Scottish poets. Dr. Nott has remarked that Barbour had given his countrymen a fine example of the simple energetic style, which resembled Chaucer's best manner, and wanted little to make it the genuine language of poetry; and that other poets of the same nation, particularly James the First and Henryson, adhered to this model of a simple diction, and affected no other ornament than what the proper use of their language supplied. But ultimately the false taste, which had infected the English poets, was communicated to their brethren of the north.
Gower and Lydgate, whose names are very frequently mentioned with that of Chaucer, are well known to the readers of early English poetry. Thomas Hoccleve, whom his editor supposes to have been born about the year 1370, makes a more inconsiderable figure in the literary annals of that age, but seems nevertheless to claim a passing notice. He was deficient in the essential qualifications of a poet; and, in the opinion of Mr. Warton, "his chief merit seems to be, that his writings contributed to propagate and establish those improvements in our language which were now beginning to take place."
The greater part of the fifteenth century was highly
unfavourable to the progress of literature in England. The repeated contests for the crown, and the civil wars which they occasioned, were attended with a great waste of human blood, and with that uncertainty of possession and those reverses of fortune, which leave the mind but little relish for such pursuits as are chiefly calculated to gratify the taste. Some individuals, Sir John Fortescue, and a few other writers, have left favourable specimens of prose composition; and they were succeeded by others, who made further improvements in style. Among these we must include Sir Thomas More, Archbishop Cranmer, Sir Thomas Elyot, and Roger Ascham. But from the death of Chaucer, more than a century elapsed before another writer, deserving the name of a poet, appeared in England. This writer was Henry Howard, earl of Surrey, son and heir apparent to the duke of Norfolk, whom however he did not survive. He was beheaded in 1547, in the thirtieth year of his age. Although thus cut off before the full maturity of intellectual vigour, he lived long enough to effect some very material improvements in English poetry. The versification of preceding poets was more properly rhythmical than metrical. Although some improvements had been introduced by Chaucer, he left the number of syllables too indefinite, and did not reach the harmony and compression, of which this noble poet afterwards exhibited an example. One of the changes which he introduced was the use of the heroic blank verse. Langland and other poets had indeed dispensed with rhyme; but their alliterative lines were constructed in a very different manner. In the following sonnet, he bewails the death of another eminent poet, Sir Thomas Wyatt.
Divers thy death do diversly bemoan:
Some, that in presence of thy livelike
Lurked, whose breasts envy with hate had swoln;
Yield Caesar's tears upon Pompeius' head;
Some that watched with the murderer's knife,
With eager thirst to drink thy guiltless blood,
Whose practice brake by happy end of life,
Weep envious tears to hear thy name so good.
But I, that knew what harboured in that head,
What virtues rare were tempered in that breast,
Honour the place that such a jewel bred,
And koss the ground whereas thy corpse doth rest,
With vapoured eyes, from whence such streams avail
As Pyramus did on Thisbe's breast bewail.
Before the close of the sixteenth century, the English language had in a great measure attained that form and structure which it continues to exhibit. A great improvement of taste had been introduced by a more critical and more general study of the ancient classics. William Lilly, the famous grammarian, who had learned Greek at Rhodes, and who had afterwards acquired a polished Latinity at Rome, became the first teacher of Greek at any public school in England. This was at St Paul's school in London, of which he was appointed the first master about the year 1500.2 The language soon began to be more regularly taught in the universities. At Cambridge the study of it was zealously and successfully recommended by Smith, Cheke, and Ascham, who were themselves distinguished by their proficiency. The elegancies of Latin style began to be better understood, and monkish barbarism was gradually banished. Ascham and Haddon acquired distinction by the style of their Latin prose; and some of the verses of Leland discover a classical vein previously unknown to his countrymen. Before the close of the century, many of the Greek and Latin writers appeared in an English dress, and classical story, with classical
1 Nott's Dissertation on the State of English Poetry before the Sixteenth Century (p. ex. c.), prefixed to the Works of Surrey and Wyatt. Lond. 1815, 2 vols. 4to.
2 Warton's Hist. of English Poetry, vol. iii. p. 233.
VOL. IX.
mythology, was rendered familiar to the common reader. In addition to the French, the Italian and Spanish languages attracted a great degree of attention; and from all these languages, especially the two former, many works were likewise translated. New sources of knowledge, as well as of fancy, were thus opened, and the English tongue was enriched with a more copious and variegated phraseology. Surrey and Wyatt were succeeded by poets of great genius, by Shakspeare and Spenser, as well as by many others who, though of inferior powers, were yet possessed of a vigorous and brilliant imagination. The prose compositions of Bacon and Raleigh, partaking of the native energy of their authors, exhibited specimens of a condensed and forcible style, to which the preceding age had never attained. During the earlier part of the seventeenth century, ancient learning was assiduously cultivated; and men of great erudition, Selden, Gataker, and others, adorned the literary annals of their country. The prevailing taste of scholars had however a strong tendency to what was scholastic, if not pedantic; and even the poets, such as Donne and Cowley, substituted the subtleties of metaphysical conceits for flights of poetic fancy. Many words, derived immediately from the Latin, were introduced by the learned writers of the period to which we now refer. A considerable number of these has been subsequently rejected, while others are incorporated in the vocabulary. In the mean time, English poetry had nearly reached its highest limits. Milton's Paradise Lost, so eminently distinguished as a work of creative genius, affords the most remarkable illustration of the compass, power, and harmony of the language. Nor is Dryden unworthy of being mentioned with this mighty master of the English lyre. His powers of mind were no doubt different in kind and degree, but he was possessed of a genius truly poetical; and his prose, as well as his verse, exhibits a rich and copious vein of English phraseology.
The subsequent progress of the language our narrow limits will not permit us to trace. The history of the Scottish language is involved in more obscurity. The Celtic tongue is supposed to have been originally spoken in every district of this kingdom; nor has it been found an easy task to account for the introduction of a Gothic dialect, bearing a very close affinity to English. That the Scottish language is merely a dialect of the English, seems indeed to be the more prevalent opinion; and this foreign speech is supposed to have been gradually adopted by the Picts, who are at the same time described as a people of Celtic origin. The ancient history of every race of men which is possessed of no ancient records, and which has not attracted much attention from more enlightened nations, must ever be involved in doubt and uncertainty. In the present instance, we have little to guide our enquiries, besides a few scattered and contradictory notices, added to the ordinary and well-ascertained progress of human speech. When other records fail, the history of a nation may sometimes be traced in the history of its language; and a very moderate degree of reflection will enable us to determine the probability of a Celtic people thus unlearning their native tongue, and from deliberate choice adopting another speech completely and radically different.
Dr Geddes, in a Dissertation on the Scoto-Saxon Dialect, has strenuously maintained this extraordinary opinion, which has likewise been adopted by a more recent writer, possessing no portion of his acuteness or learning. "The names," it is stated, "of all the rivers, mountains, towns, villages, and castles, of any note or antiquity, from
Berwick-law to Buchanness, and from Buchanness to Arder-Sier, are all evidently Celtic. We must then either suppose that the language of the Picts was a dialect of the Celtic; or that they were not the original inhabitants of the country; or, in fine, that, after the extinction of the Pictish empire, or rather its union with the Irish-Scots, the language of these latter universally prevailed, and effaced the very remembrance of its Gothic predecessor. The second of these suppositions is contrary to history; the third is belied by experience; the first then is the only one that is founded in probability." This observation with respect to the prevalence of Celtic names, though too strongly stated, is not without foundation. We may therefore admit that the south of Scotland was at some remote period inhabited by a Celtic people; but it is not a necessary inference that this people must be identified with the Picts. Whatever hypothesis may be adopted, it is not denied that many Celtic names of places have been retained where the inhabitants have long ceased to speak any dialect of the Celtic language. It may very easily be conjectured that this primitive race of Celts was finally supplanted by new settlers; and that those settlers, whether Scandinavians or some other Gothic tribe, adopted many of the names which the original inhabitants had applied to mountains, rivers, and other conspicuous objects. That a similar process has been followed in innumerable instances, must be obvious to every person acquainted with the history of European settlements in other quarters of the globe: the native appellations are almost always retained to a certain extent, and are mingled with other names, borrowed from the language of the colonists.
If we should suppose the Picts to have been a Celtic people, a very hard problem will remain to be solved:—by what extraordinary means could a distinct race of men, placed in such circumstances, be induced to reject one language, and to adopt another? This radical and unprecedented change Dr Geddes is disposed to ascribe to the operation of such causes as the following: to the temporary subjection of the southern provinces of Scotland by the Northumbrians; to the immense number of captives seized during the ancient wars with the English; to the planting of English garrisons in several of the Scottish towns; to the amicable intercourse of the Picts with the English; and, finally, to the influence of Malcolm Canmore's courtiers, whom he supposes to have learned the English language from Queen Margaret and her retinue. But it may without temerity be affirmed that, in the entire annals of the human race, such an effect was never produced by such causes. In a more refined state of society, the love of knowledge, the hope of gain, or the influence of fashion, may induce many individuals to betake themselves to the acquisition of foreign languages; but the great body of the people will ever be disposed to rest perfectly satisfied with the speech, whether rude or cultivated, which they have derived from their parents. It is only by some great revolution, by a total conquest, or by an overwhelming extent of colonization, that the current language of a country can be materially changed. After the Norman conquest, when French became the language of the court and of the law, and when Norman barons were planted in almost every corner of England, did the combined operation of such causes eradicate the old, and establish a new language in its place? Many new words were unquestionably introduced, but these were merely engrained on the old stock of the Anglo-Saxon. "Had the Saxon," as Dr Jamieson well observes, "found