Abbildungen der Seite
PDF
EPUB

As to what he says with regard to there hardly existing such a thing as regular law, he speaks in the abstract of the complexity of our system; he does not arraign the administration of justice in its practice.-But with selves to be worse used in England, than they had been in their own country. That prince therefore (who was not likely to abate any thing of his just prerogative), never pretended to any thing from his followers that was not founded upon the known principles of the feudal law, as appears by the laws which he enacted; Volumus etiam ac firmiter præci'pimus, ut omnes liberi homines totius monarchiæ regni nostri prædicti habeant et teneant terras suas et possessiones suas benè et in pace liberè ab omni exactione injustâ et ab omni tallagio, ita quòd nihil ab eis exigatur vel capiatur nisi servitium suum liberum quod de jure nobis facere debent et 'facere tenentur, et prout statutum est eis et illis a nobis datum et concessum, jure hereditario in perpetuum per commune concilium totius regni nostri.' Enquiry, &c. p. 7, Edit. of 1782.

[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]

regard to criticisms and strictures on the ge neral system of our government, it has been echoed over and over again by various authors; and even from the pulpits of our country.-I have in court a sermon written which was not universal, but affected only particular persons, it was common for them only to be summoned. Hence is it, that we see among the rolls several writs to this purpose, as, e. g. Summonitiones ad colloquium, de veniendo ad consilium, &c. Which, though they have sometimes been mistaken for parliamentary writs, are yet nothing but summons of particular persons to consult, and to contribute towards the expense of an affair, in which they only (or at least chiefly) were concerned. As in 35 Ed. 3, there is a writ directed to Humphrey earl of Northampton (which Dugdale however has printed in his collection of writs of summons to parliament), wherein, after reciting the confusion the affairs of Ireland were in, and that he and several other English lords had large posses sions in that kingdom, and were therefore more particularly obliged to the defence of it, "When no prince in Europe had as yet it follows Volumus vobiscum et cum aliis de imagined that he had a right to rule in all 'codem regno (Anglia scilicet) terras in dictâ things without a parliament or assembly of terrâ habentibus colloqium habere et tracestates; provided the consent of the persons, tatum vobis in fide et ligeanciâ, &c. Manwho were either to pay or perform any thing damus, &c.' But that the reader may fully extra-feudal was bona fide applied for and ob- see, how strictly the principle of no persons tained, they were not over solicitous concern-being to be taxed without their own consent ing the manner in which it was applied for and obtained. But as the people grew jealous of the crown's designing to impose contributions, &c. without their consent, these (otherwise) formalities were thought necessary to be regulated and fixed. For certainly such things have been formerly done by each House in parliament, and that without any complaint, which if they were now to happen, would be universally condemned as unparliamentary and illegal. Both Lords and Commons have separately and by themselves given aids and subsidies unto the crown; asciendum et consentiendum nomine vestro, for instance, in 13 Ed. 3, the Lords granted super hoc quod ibidem contigerit ordinari.' to the king the tythe of all the corn, &c. If this equity was therefore observed with growing upon their demesnes; the Commons respect to particular persons, it is no wonder at the same time granting nothing, nor any- that it was always thought necessary, as well wise concerning themselves, with what the as reasonable, to consult the whole kingdom Lords thought fit to grant out of their own in parliament, upon all affairs and demands, estates. At other times the knights of shires which were extra-feudal, and of a general conseparating themselves, as it were, from the cern. And therefore that great king, Ed. 1st, rest of the Commons, and uniting themselves was so sensible of the justice of this way of to the Lords, have granted a subsidy, and the proceeding, that he inserted in his writs of representatives of cities and boroughs have summons to parliament, as a first principle of likewise, separately by themselves, granted law, and as his reason for summoning parliathe subsidies to the crown, as appears by a ments, That in every affair which related to the writ for the collection of a subsidy in 24 Ed. whole kingdom, the consent of the whole king1, Rex. &c. Cum Comites, Barones, Milites, dom ought to be required. The words are so &c. nobis, &c. fecerunt undecimam de om- noble, that I may be forgiven if I transcribe 'nibus bonis suis mobilibus. Et cives et them. Rex, &c. Sicut lex justissima, pro'Burgenses, &c. septimam de omnibus bonis vidâ circumspectione sacrorum principum suis mobilibus, &c. nobis curialiter conces-stabilita, hortatur, ut quod omnes tangit ab 'serint, &c.' 'omnibus approbetur, sic et innuit evidentèr

was observed, he must know, that upon the same occasion writs were likewise directed even to the ladies, who were proprietors of land in Ireland, commanding them to send their proper attorneys, to consult and consent to what should be judged necessary to be done, in relation to that affair, Rex, &c. Mariæ comitissæ Norfolc. salutem, &c. 'Vobis in fide et ligeanciâ, &c. mandamus quod-aliquem vel aliquos de quibus confidatis apud Westmon. mittatis-ad loquendum nobiscum-super dictis negotiis-et ad fa

[ocr errors]

"But further, when any affair happenedut communibus periculis per remedia pro

[ocr errors]

during the American war, by a person of great “ It may be in the purposes of Providence, eloquence and piety, in which he looks for- on yon western shores, to raise the bulwark ward to an exemption from the intolerable of a purer reformation than ever Britain grievances of our old legal system in the patronized; to found a less burthensome, infant establishment of the new world. more auspicious, stable, and incorruptible

visa communiter obvietur." West's Enquiry, “ The manner of obtaining these charters, &c. pp. 8, et seq.: See also pp. 20 et seq. of (Magna Charta and the Charta de Foresti), the same treatise.

and the right the people have to the libera “ Bracton and Fortescue, the two most ties contained in them, have been the subject learned, and almost the only learned of the of much controversy between the favourers of ancient lawyers, are both express, not only arbitrary power and the assertors of freedom : to our free and limited government, but they the one contending that they were the fruits deduce the original of civil power from the of rebellion, extorted by force and fraud, from people." Doctor Warburton to Mr. Hurd, a prince unable to resist, and therefore revoAugust 31st, 1755. Letters from a late emi- cable by him or his successors; and the others, nent Prelate to one of his Friends, p. 193, and that they were the ancient privileges of the edition.

nation, which John had, contrary to his coro“ Hume has outdone himself in this new nation oath, invaded, and which they therehistory, in showing his contempt of religion. fore, had a right to reclaim by arms. That This is one of those proof charges which Ar- they were obtained by force is undoubted, and buthnot speaks of in his treatise of political that John and many of his successors looked lying, to try how much the public will bear. upon them, therefore, as of no validity, is as If his history be well received, I shall con- clear, even from the argument lord Coke clude that there is even an end of all pretence brings for their great weight, their being conto religion. But I should think it will not: firmed above twenty times by act of parliabecause I fancy the good reception of Ro- ment. To what purpose so many contirmabertson's proceeded from the decency of it.- tions, if the kings had not thought them inHume carries on his system here, to prove valid, and had not, on occasions, broken we had no constitution till the struggles with through them? and were it as clear that they James and Charles procured us one. And he were not the ancient rights of the people, it has contrived an effectual way to support his must be owned they were extorted by rebelsystem, by beginning the History of England lion. But that they were no other than conwith Henry 7th, and shutting out all that pre-firmations, appears very plainly from the short ceded, by assuring his reader that the earlier detail I have heretofore given of the constihistory is worth no one's while to inquire tution and spirit of the monarchy of the Saxons after.” Warburton to Hurd, Letter cxxvii, and all other northern nations.” Sullivan's March 3d, 1759.

Lectures, p. 340, 4to. 1776. « They that found absolute monarchy upon I do not find in the recent editions of the title of the sword, make their heroes, who Hume's Essays, the passage cited in the text are the founders of such monarchies, arrant by Mr. Erskine. In the Essay, however, drawcansirs, and forget they had any officers called Politics a Science p. 29, 12mo edit. of and soldiers that fought on their side in the 1741, will be found a sentence expressing battles they won, or assisted them in the sub- the same sentiment in nearly the same words. duing, or shared in possessing, the countries The opinions promulgated by Mr. Hume, they mastered. We are told by some, that in his History of England, respecting the nathe English monarchy is founded in the Nor- ture of our constitution antecedent to the man conquest, and that our princes have seventeenth century, have been examined thereby a litle to absolute dominion: which and criticized with much learning, acuteness, if it were true (as by the history it appears and ability by professor Millar in the conetherwise), and that William had a right to cluding chapter of his “ Historical View of make war on this island; yet his dominion the English Government from the Settlement by conquest could reach no farther than to of the Saxons in Britain to the Accession of the Saxons and Britons that were then inha- | the House of Stewart." bitants of this country. The Normans that came with him, and helped to conquer, and To the authorities already cited, it may not all descended from them, are freemen, and be amiss to add the sentiments of Edinund no subjects by conquest, let that give what Burke : dominion it will. And if I, or any body else, “Our oldest reformation,” says he, “ is that shall claim freedom, as derived from them, it of Magna Charta. You will see that sir Edwill be very hard to prove the contrary: and ward Coke, that great oracle of our law, and it is plain, the law, that has made no distinc- indeed all the great men who follow him, to tion between the one and the other, intends Blackstone [See Blackstone's Magna Charta, not there should be any difference in their printed at Oxford 1759], are industrious to freedom or privileges.” Locke on Civil Go- prove the pedigree of our liberties. They envernment, 'ch. 16, s. 177. Works, vol. 5, deavour to prove, that the ancient charterp. 445, 8vo. ed. of 1801.

the Magna Charta of king John, was congovernment than ever Britain has enjoyed ;, think more severe than those which are the and to establish there a system of law more subject of the attorney-general's animadverjust and simple in its principles, less intri-sion. The passage in Mr. Paine runs thus : cate, dubious, and dilatory in its proceedings, “With respect to the two Houses, of which more mild and equitable in its sanctions, the English parliament is composed, they more easy and more certain in its execution; appear to be effectually influenced into one, wherein no man can err through ignorance of and, as a legislature, to have no temper of its what concerns him, or want justice through own. The minister, whoever he at any time poverty or weakness, or escape it by legal may be, touches it as with an opium wand, artifice, or civil privileges, or interposing and it sleeps obedience. power; wherein the rule

of conduct shall not “ But if we look at the distinct abilities of be hidden or disguised in the language of the two Houses, the difference will appear so principles and customs that died with the great, as to show the inconsistency of placing barbarism which gave them birth; wherein power where there can be no certainty of the hasty formulas shall not dissipate the reve- judgment to use it. Wretched as the state rence that is due to the tribunals and trans- of representation is in England, it is manhood actions of justice; wherein obsolete prescripts compared with what is called the House of shall not pervert, nor entangle, nor impede Lords; and so little is this nicknamed House the administration of it, nor in any instance regarded, that the people scarcely inquire at expose it to derision or to disregard; wherein any time what it is doing. It appears also to misrepresentation shall have no share in be most under influence, and the furthest deciding upon right and truth; and under removed from the general interest of the which no man shall grow great by the wages nation." of chicanery, or thrive by the quarrels that are The conclusion of the sentence, and which ruinous to his employers.”

was meant by Paine as evidence of the preThis is ten times stronger than Mr. Paine; vious assertion, the attorney-general has but who ever thought of prosecuting Mr. ommitted in the information, and in his Cappe?*

speech; it is this : “ In the debate on engage In various other instances you will find ing in the Russian and Turkish war, the madefects in our jurisprudence pointed out and jority in the House of Peers in favour of it lamented, and not seldom by persons called was upwards of ninety, when in the other upon by their situations to deliver the law in House, which is more than double its numthe seat of magistracy: therefore, the author's bers, the majority was sixty-three." general observation does not appear to be The terms, however, in which Mr. Burke that species of attack upon the magistracy of speaks of the House of Lords, are still more, the country, as to fall within the description expressive. “ It is something more than a of a libel.

century ago, since we voted that body useless. With respect to the two Houses of Parlia- They have now voted themselves so, and ment, I believe I shall be able to show you the whole hope of reformation is cast upon that the very person who introduced this us,” * (speaking of the House of Commons). controversy, and who certainly is considered This sentiment Mr. Burke not only expressed by those who now administer the govern- in his place in parliament, where no man can ment, as a man usefully devoted to maintain call him to an account; but it has been since the constitution of the country in the present repeatedly printed amongst his works.--Incrisis, has himself made remarks upon these deed his opinion of BOTIL THE HOUSES OF assemblies, that upon comparison you will PARLIAMENT, which I am about to read to

you, was originally published as a separate nected with another positive charter from pamphlet, and applied to the settled habitual Henry 1st, and that both the one and the other abuses of these high assemblies. Remember, were nothing more than a reaffirmance of the I do not use them as argumenta ad hominem, still more ancient standing law of the king- or ad invidiam against the author; for if I dom. In the matter of fact, for the greater did, it could be no defence of Mr. Paine.-I part, these authors appear to be in the right; use them as high authority; the work+ hav, perhaps not always: but if the lawyers mis- ing been the just foundation of substantial take in some particulars, it proves my posi- and lasting reputation.-Would to God that tion still the more strongly; because it de- any part of it were capable of being denied or monstrates the powerful prepossession to doubted ! wards antiquity, with which the minds of all Against the being of parliament I am our lawyers and legislators, and of all the satisfied no designs have ever been enterpeople whom they wish to influence, have tained since the Revolution. Every one must been always filled; and the stationary po- perceive that it is strongly the interest of the licy of this kingdom in considering their court to have some second cause interposed most sacred rights and franchises as an in-between the ministers and the people.The heritance." Retlections on the French Revolution.

* See New Parl. Hist. Vol. XXI. p. 70. * A late eminent and pious minister at † Burke's Thoughts on the Cause of the York. Erskine's Speeches.

present Discontents, published in 1775.

[ocr errors]

FORMS

OF

A

DISCOVERED THAT THE
AND THE ENDS OF AN

gentlemen of the House of Commons have an selves have been ACCOMPLICES. Thus the
interest equally strong, in sustaining the part control of parliament upon the executory
of that intermediate cause. However they power is lost; because parliament is made to
may bire out the usufruct of their voices, they partake in every considerable act of govern-
never will part with the fee and inheritance. ment. Impeachment, that great guardian of
Accordingly those who have been of the most the purity of the constitution, is in danger of
known devotion to the will and pleasure of a being lost even to the idea of it."
court, have at the same time heen most for- “Until this time, the opinion of the people,
ward' in asserting a high authority in the through the power of an assembly, still in
House of Commons. When they knew who some sort popular, led to the greatest honours
were to use that authority, and how it was to be and emoluments in the gift of the crown.
employed, they thought it never could be carried Now the principle is reversed; and the favour
too far. It must be always the wish of an of the court is the only sure way of obtaining
unconstitutional statesman, that a House of and holding those honours which ought to
Commons, who are entirely dependent upon be IN THE DISPOSAL OF THE PEOPLE.”ť
him, should hare every right of the people de- Mr. Burke, in page 100, observes with
pendent upon their pleasure. It was soon great truth, that the mischiefs he complained

FREE of, did not at all arise from the monarchy,

ARBITRARY GOVERN- but from the parliament, and that it was the MENT, WERE THINGS NOT ALTOGETHER IN- duty of the people to look to it. He says, COMPATIBLE.

“ The distempers of monarchy were the great
“ The power of the crown, almost dead subjects of apprehension and redress, in the
and rotten as prerogative, has grown up anew, last century; in this, the distempers of parlia-
with much more strength and far less odium, ment."
under the name of influence. An influence, Not the distemipers of parliament in this
which operated without noise and without year or the last, but in this century, i. e. its
violence, -an influence which converted the settled habitual distemper. " It is not in par-
very antagonist into the instrument of liament alone that the remedy for parliamen-
power,—which contained in itself a perpe- tary disorders can he completed: hardly in-
tual principle of growth and renovation; deed can it begin there. Until a confidence
, and which the distresses and the prosperity in government is re-established, the people

of the country equally tended to augment, ought to be ercited to a more strict and de-
was an admirable substitute for a prerogative, tailed attention to the conduct of their repre-
that, being only the offspring of antiquated sentatives. Standards for judging more sys-
prejudices, had moulded into its original tematically upon their conduct ought to be
stamina irresistible principles of decay and settled in the meetings of counties and corpo-
dissolution. The ignorance of the people is a rations. Frequent and correct lists of the
bottom but for a temporary system; the in- voters in all important questions ought to be
terest of active men in the state is a founda- procured.
tion perpetual and infallible.” *

“By such means something may be done. Mr. Burke, therefore, in page 66, speaking By such means it may appear who those are, of the same court party, says:

that, by an indiscriminate support of all ad“ Parliament was indeed the great object ministrations, have totally banished all integof all these politics, the end at which they rity and confidence out of public proceedings; aimed, as well as the INSTRUMENT by which have confounded the best men with the they were to operate.”+

worst; and weakened and dissolved, instead And pursuing the subject in page 70, pro- of strengthening and compacting, the general ceeds as follows:

frame of governinent." I “ They who will not conform their conduct I wish it were possible to read the whole of to the public good, and cannot support it by this most important volume--but the consethe prerogative of the crown, have adopted a quences of these truths contained in it were new plan. They have totally abandoned the all eloquently summed up by the author in shattered and old-fashioned fortress of prero- his speech upon the reform of the household. gative, and made a lodgment in the strong- “ But what I confess was uppermost with hold of parliament itself. If they have any me, what I bent the whole force of my mind evil design to which there is no ordinary legal | to, was the reduction of that corrupt intluence power commensurate, they bring it into par- which is itselt the perennial spring of all proliament. In parliament the whole is erecuted digality, and of all disorder; which loads us, from the beginning to the end. In parliument more than millions of debt; which takes the power of obtaining their object is absolute ; away vigour from our arms, wisdom from our and the safety in the proceeding perfect ; no councils, and every shadow of authority and rules to confine, no after reckonings to terrify. credit from the most venerable parts of our Parliament cannot with any great propriety constitution." punish others for things in which they them

* Burke's Works, vol. 2. p. 291, 8vo. 1808. * Burke's Works, vol.2. p. 229, ed. of 1808. + Ibid. p. 296. † Burke, ut sup. p. 325. Ibid. p. 286.

§ See New Parl. Hist. Vol. XXI. p. 2.

[ocr errors]

The same important truths were held out are suffered to vote for electing the memto the whole public, upon a still later occa- bers of the House of Communs, do not at this sion, by the person now at the head of his time amount to one-sixth part of the whole majesty's councils; and so high (as it ap- Commons of this realm, whereby far the pears) in the confidence of the nation.* He, greater part of the said Commons are deprived not in the abstract, like the author before of their right to elect their representatives; you, but upon

the spur of the occasion, and in and the consent of the majority of the whole the teeth of what had been just declared in community to the passing of laws, is given by the House of Commons, came to, and acted persons whom they have not delegated for upon resolutions which are contained in this such purposes; and to which the said majobookt-resolutions pointed to the purification rity have not in fact consented by themselves of a parliament, dangerously corrupted into or by their representatives: the very state described by Mr. Paine. Re- “And whereas the state of election of memmember here, too, that I impute no censur- bers of the House of Commons, hath in proable conduct to Mr. Pitt.--It was the most cess of time so grossly deviated from its simbrilliant passage in his life, and I should have ple and natural principle of representation thought his lite a better one, if he had con- and equality, that in several places the memtinued uniform in the support of opinions, bers are returned by the property of one man; which it is said he has not changed, and that the smallest boroughs send as many which certainly have had nothing to change members as the largest counties, and that a them.—But at all events, I have a right to majority of the representatives of the whole make use of the authority of his splendid nation are chosen by a number of votes not talents and high situation, not merely to pro- exceeding twelve thousand.” tect the defendant, but the public, by resisting These, with many others, were published, the precedent, that what one man may do in not as abstract, speculative writings, but within England with approbation and glory, shall a few days after the House of Commons had conduct another man to a pillory or a prison. declared that no such rights existed, and that

The abuses pointed out by the man before no alteration was necessary in the represenyou, led that right hon. gentleman to asso- tation.-It was then that they met at the ciate with many others of bigb rank, under Thatched House, and published their opinions the banners of the duke of Richmond, whose and resolutions to the country at large.-Were name stands at the head of the list, and to any of them prosecuted for these proceedings? pass various public resolutions, concerning) -Certainly not (for they were legal proceedthe absolute necessity of purifying the House ings). But I desire you, as men of honour of Commons; and we collect the plan from a and truth, to compare all this with Mr. Paine's preamble entered in the book :'" Whereas expression of the minister's touching parliathe life, liberty, and property of every man is ment with his opiate wand, and let equal or may be affected by the law of the land in justice be donethat is all I ask--let all be which he lives, and every man is bound to punished, or none-do not let Mr. Paine be pay obedience to the same:

held out to the contempt of the public upon And whereas, by the constitution of this the score of his observations on parliament, kingdom, the right of making laws is vested while others are enjoying all the sweets which in three estates, of King, Lords, and Com- attend a supposed attachment to their counmons, in parliament asseinbled, and the con- try, who have not only expressed the same sent of all the three said estates, comprehend sentiments, but have reduced their opinions ing the whole community is necessary to make to practice. laws to bind the whole community; and But now every man is to be cried down for whereas the House of Commons represents such opinions. I observed that my learned all the Commons of the realm, and the con- friend significantly raised his voice in naming sent of the House of Commons binds the con- Mr. Horne Tooke, as if to connect him with sent of all the Commons of the realm, and Paine, or Paine with him. This is exactly in all cases on which the legislature is com- the same course of justice;—for after all he petent to decide :

said nothing of Mr, Tooke.-What could be “ And whereas no man is, or can be actually have said, but that he was a man of prerepresented who hath not a vote in the elec- eminent talents, and a subscriber with tion of his representative:

great names I have read in proceedings which “ And whereas it is the right of every com- they have thought fit to desert ? moner of this realm (infants, persons of in- Gentlemen, let others hold their opinions, sane mind, and criminals incapacitated by and change them at their pleasure ; I shall law, only excepted) to have a vote in the ever maintain it to be the dearest privilege of election of the representative who is to give the people of Great Britain to watch over his consent to the making of laws by which every thing that affects their happiness, either he is to be bound :

in the system of their government, or in the “ And whereas the number of persons who practice; and that for this purpose THE PRESS

MUST BE FREE-It has always been so, and * Mr. Pitt.

much evil has been corrected by it.-It go+ Mr. Erskine took up a book,

verament finds itself annoyed by it, let it VOL. XXII.

2 FI

« ZurückWeiter »