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THE

CONSTITUTION OF ENGLAND.

INTRODUCTION.

The spirit of philosophy which peculiarly distinguishes the present age, after having corrected a number of errors fatal to society, seems now to be directed towards the principles of society itself; and we see prejudices vanish which are difficult to overcome, in proportion as it is dangerous to attack them.* This rising freedom of sentiment, the necessary forerunner of political freedom, led me to imagine that it would not be unacceptable to the public to be made acquainted with the principles of a constitution on which the eye of curiosity seems now to be universally turned,

* As every popular notion which may contribute to the support of an arbitrary government is at all times vigilantly protected by the whole strength of it, political prejudices are last of all, if ever, shaken off by a nation subjected to such a government. A great change in this respect, however, has of late taken place in France, where this book was first published ; and opinions are now discussed there, and tenets avowed, which, in the time of Louis the Fourteenth, would have appeared downright blasphemy; it is to this an allusion is made above.

[This observation is memorable as made with respect to France in 1775, now seventy-eight years ago. Since that time, there have occurred in that country, first a terrible and bloody revolution,- then the abolition of monarchy, the execution of the King and Queen and others of the royal family,—then a republic,—then an imperial and military despotism,—then a restoration of the old dynasty,—then in 1830 another bloody revolution,-a new royal dynasty-bloody attempts to overthrow that dynasty,--a successful revolution in 1848,-much bloodshed then a revolution and a republic,—then a coup d'état,- the abolition of all civil, political, and religious liberty,—and the re-establishment of the Empire by the nephew of Napoleon. -Ed.

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much familiarised with its enjoyment to inquire with real concern into its causes. Having acquired practical notions of their government long before they have meditated on it, and these notions being slowly and gradually imbibed, they at length behold it without any high degree of sensibility; and they seem to me, in this respect, to be like the recluse inhabitant of a palace, who is perhaps in the worst situation for attaining a complete idea of the whole, and never experienced the striking effect of its external structure and elevation; or, if you please, like a man who, having always had a beautiful and extensive scene before his eyes, continues for ever to view it with indifference.

But a stranger,—beholding at once the various parts of a constitution displayed before him, which, at the same time that it carries liberty to its height, has guarded against inconveniences seemingly inevitable; beholding, in short, those things carried into execution which he had ever regarded as more desirable than possible,-is struck with a kind of admiration; and it is necessary to be thus strongly affected by objects, to be enabled to reach the general principle which governs them.

Not that I mean to insinuate that I have penetrated with more acuteness into the constitution of England than others; my only design in the above observations was to obviate an unfavourable, though natural prepossession; and if, either in treating of the causes which originally produced the English liberty, or of those by which it continues to be maintained, my observations should be found new or singular, I hope the English reader will not condemn them, but where they shall be found inconsistent with history, or with daily experience. Of readers in general I also request that they will not judge of the principles I shall lay down, but from their relation to those of human nature; a consideration which is almost the only one essential, and has been hitherto too much neglected by the writers on the subject of government.

BOOK I.

A SURVEY OF THE VARIOUS POWERS INCLUDED IN THE ENGLISH CONSTITUTION, AND OF THE LAWS

BOTH IN CIVIL AND CRIMINAL CASES.

CHAPTER I.

CAUSES OF THE LIBERTY OF THE ENGLISH NATION. REASONS OF THE

DIFFERENCE BETWEEN THE GOVERNMENT OF ENGLAND AND THAT OF FRANCE. IN ENGLAND, THE GREAT POWER OF THE CROWN, UNDER THE NORMAN KINGS, CREATED AN UNION BETWEEN THE NOBILITY AND THE PEOPLE.

WHEN the Romans, attacked on all sides by the barbarians, were reduced to the necessity of defending the centre of their empire, they abandoned Great Britain, as well as several other of their distant provinces. The island, thus left to itself, became a prey to the nations inhabiting the shores of the Baltic; who, having first destroyed the ancient inhabitants, and for a long time reciprocally annoyed each other, established several sovereignties in the southern part of the island, afterwards called England, which at length were united under Egbert into one kingdom.*

The successors of this prince, denominated the AngloSaxon princes, among whom Alfred the Great and Edward the Confessor are particularly celebrated, reigned for about two hundred years: but though our knowledge of the principal events of this early period of the English history is in some degree exact, yet we have but vague and uncertain accounts of the nature of the government which those nations introduced.

* This union was far from being complete under any of the AngloSaxon Kings, until the reign of Alfred. -Ed.

FOUNDATION OF THE CONSTITUTION OF ENGLAND. 13

It appears to have had little more affinity with the present constitution, than the general relation, common indeed to all the governments established by the northern nations, that of having a king and a body of vobility; and the ancient Saxon government is “left us in story (to use the expressions of Sir William Temple on the subject) but like so many antique, broken, or defaced pictures, which may still represent something of the customs and fashions of those ages, though little of the true lines, proportions, or resemblance."'*

It is at the æra of the conquest that we are to look for the real foundation of the English Constitution. From that period, says Spelman, novus seclorum nascitur ordo.t

* See his Introduction to the History of England.

+ See Spelman, Of Parliaments. It has been a favourite thesis with many writers, to pretend that the Saxon government was, at the time of the conquest, by no means subverted ;-that William of Normandy legally acceded to the throne, and consequently to the engagements of the Saxon Kings: and much argument has in particular been employed with regard to the word conquest, which, it has been said, in the feudal sense, only meant acquisition. These opinions have been particularly insisted upon in times of popular opposition: and, indeed, there was a far greater probability of success, in raising among the people the notions (familiar to them) of legal claims and long-established customs, than in arguing with them from the no less rational, but less determinate, and somewhat dangerous doctrines, concerning the original rights of mankind, and the lawfulness of at all times opposing force to an oppressive government.

But if we consider that the manner in which the public power is formed in a state is so very essential a part of its government, and that a thorough change in this respect was introduced into England by the conquest, we shall not scruple to allow that a new government was established. Nay, as almost the whole landed property in the kingdom was at that time transferred to other hands, a new system of criminal justice introduced, and the language of the law moreover altered, the revolution may be said to have been such as is not perhaps to be paralleled in the history of any other country * Some Saxon laws, favourable to the liberty of the people, were indeed again established under the successors of William ; but the introduction of some new modes of proceeding in the courts of justice, and of a few particular laws, cannot, so long as the ruling power in the state remains the same, be said to be the introduction of a new government; and as, when the laws in question were again established, the public power in England continued in the same channel where the conquest had placed it, they were more properly new modifications of

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