« PreviousContinue »
The elections, at the same time, are so connected with the influence of landed property, as to afford a certainty that a considerable number of men of great estates will be returned to parliament; and are also so modified, that men the most eminent and successful in their respective professions, are the most likely, by their riches, or the weight of their stations, to prevail in these competitions.
The number, fortune, and quality, of the members; the variety of interests and characters amongst them; above all, the temporary duration of their power, and the change of men which every new election produces; are so many securities to the public, as well against the subjection of their judgments to any external dictation, as against the formation of a junto in their own body, sufficiently powerful to govern their decisions.
The representatives are so intermixed with the constituents, and the constituents with the rest of the people, that they cannot, without a partiality too flagrant to be endured, impose any burden upon the subject, in which they do not share themselves; nor scarcely can they adopt an advantageous regulation, in which their own interests will not participate of the advantage.
The proceedings and debates of parliament, and the parliamentary conduct of each representative, are known by the people at large.
The representative is so far dependant upon the constituent, and political importance upon public favour, that a member of parliament cannot more effectually recommend himself to eminence and advancement in the state, than by contriving and patronising laws of public utility.
When intelligence of the condition, wants, and occasions, of the people, is thus collected from every quarter; when such a variety of invention, and so many understandings, are set at work upon the subject: it may be presumed, that the most eligible expedient, remedy, or improvement, will occur to some one or other: and when a wise counsel, or beneficial regulation, is once suggested, it may be expected, from the disposition of an assembly so constituted as the British House of Commons is,
that it cannot fail of receiving the approbation of a majority.
To prevent those destructive contentions for the supreme power, which are sure to take place where the members of the state do not live under an acknowledged head, and a known rule of succession; to preserve the people in tranquillity at home, by a speedy and vigorous execution of the laws; to protect their interest abroad, by strength and energy in military operations, by those advantages of decision, secrecy, and despatch, which belong to the resolutions of monarchical councils;-for these pur poses, the constitution has committed the executive government to the administration and limited authority of an hereditary king.
In the defence of the empire; in the maintenance of its power, dignity, and privileges, with foreign nations; in the advancement of its trade by treaties and conventions; and in the providing for the general administration of municipal justice, by a proper choice and appointment of magistrates; the inclination of the king and of the people usually coincides in this part, therefore, of the regal office, the constitution intrusts the prerogative with ample powers.
The dangers principally to be apprehended from regal government, relate to the two articles taxation and punishment. In every form of government, from which the people are excluded, it is the interest of the governors to get as much, and of the governed to give as little, as they can: the power also of punishment, in the hands of an arbitrary prince, oftentimes becomes an engine of extortion, jealousy, and revenge. Wisely, therefore, hath the British constitution guarded the safety of the people, in these two points, by the most studious precautions.
Upon that of taxation, every law which, by the remotest construction may be deemed to levy money upon the property of the subject, must origi nate, that is, must first be proposed and assented to, in the House of Commons: by which regulation, accompanying the weight which that assembly possesses in all its functions, the levying of taxes is almost exclusively reserved to the popular part of
the constitution, who, it is presumed, will not tas themselves, nor their fellow-subjects, without being first convinced of the necessity of the aids which they grant.
The application also of the public supplies, is watched with the same circumspection as the assessment. Many taxes are annual; the produce of others is mortgaged, or appropriated to specific services: the expenditure of all of them is accounted for in the House of Commons; as computations of the charge of the purpose, for which they are wanted, are previously submitted to the same tribunal.
In the infliction of punishment, the power of the crown, and of the magistrate appointed by the crown, is confined by the most precise limitations: the guilt of the offender must be pronounced by twelve men of his own order, indifferently chosen out of the county where the offence was committed: the punishment, or the limits to which the punishment may be extended, are ascertained, and affixed to the crime, by laws which know not the person of the criminal.
And whereas arbitrary or clandestine confinement is the injury most to be dreaded from the strong hand of the executive government, because it deprives the prisoner at once of protection and defence, and delivers him into the power, and to the malicious or interested designs, of his enemies; the constitution has provided against this danger with double solicitude. The ancient writ of Habeas Corpus, the Habeas Corpus act of Charles the Second, and the practice and determinations of our sovereign courts of justice founded upon these laws, afford a complete remedy for every conceivable case of illegal imprisonment.*
*Upon complaint in writing by, or on behalf of, any person in confinement, to any of the four courts of Westminster-Hall, in termtime, or to the lord chancellor, or one of the judges, in the vacation; and upon a probable reason being suggested to question the legality of the detention; a writ is issued to the person in whose custody the complainant is alleged to be, commanding him within a certain limited and short time to produce the body of the prisoner, and the authority under which he is detained. Upon the return of the writ, strict and instantaneous obedience to which is enforced by very aevere penalties, if no lawful cause of imprisonment appear, the
Treason being that charge, under colour of which the destruction of an obnoxious individual is often sought; and government being at all times more immediately a party in the prosecution; the law, beside the general care with which it watches over the safety of the accused, in this case, sensible of the unequal contest in which the subject is engaged, has assisted his defence with extraordinary indulgences. By two statutes, enacted since the RevoTution, every person indicted for high-treason shall have a copy of his indictment, a list of the witnesses to be produced, and of the jury impanneled, delivered to him ten days before the trial; he is also permitted to make his defence by counsel;privileges which are not allowed to the prisoner, in a trial for any other crime and, what is of more importance to the party than all the rest, the testimony of two witnesses, at the least, is required to convict a person of treason; whereas, one positive witness is sufficient in almost every other species of accusation.
We proceed, in the second place, to inquire in what manner the constitution has provided for its own preservation; that is, in what manner each part of the legislature is secured in the exercise of the powers assigned to it, from the encroachments of the other parts. This security is sometimes called the balance of the constitution: and the political equilibrium, which this phrase denotes, consists in two contrivances;-a balance of power, and a balance of interest. By a balance of power is meant, that there is no power possessed by one part of the legislature, the abuse or excess of which
court or judge, before whom the prisoner is brought, is authorized and bound to discharge him: even though he may have been committed by a secretary, or other high officer, of state, by the privv-council, or by the king in person: so that no subject of this realm can be held in confinement by any power, or under any pretence whatever, provided he can find means to convey his complaint to one of the four courts of Westminster-Hall, or, during their recess, to any of the judges of the same, unless all these several tribunals agree in determining his imprisonment to be legal. He may make application to them, in succession; and if one out of the number be found, who thinks the prisoner entitled to his liberty, that one possesses authority to restore it to him
is not checked by some antagonist power, residing in another part. Thus the power of the two houses of parliament to frame laws, is checked by the king's negative that, if laws subversive of regal government should obtain the consent of parliament, the reigning prince, by interposing his prerogative, may save the necessary rights and authority of his station. On the other hand, the arbitrary application of this negative is checked by the privilege which parliament possesses, of refusing supplies of money to the exigencies of the king's administration. The constitutional maxim, "that the king can do no wrong," is balanced by another maxim, not less constitutional, "that the illegal commands of the king do not justify those who assist, or concur, in carrying them into execu tion;" and by a second rule, subsidiary to this, "that the acts of the crown acquire not a legal force, until authenticated by the subscription of some of its great officers." The wisdom of this contrivance is worthy of observation. As the king could not be punished, without a civil war, the constitution exempts his person from trial or account; but, lest this impunity should encourage a licen← tious exercise of dominion, various obstacles are op posed to the private will of the sovereign, when directed to illegal objects. The pleasure of the crowa must be announced with certain solemnities, and attested by certain officers of state. In some cases, the royal order must be signified by a secretary of state in others it must pass under the privy seal; and, in many, under the great seal. And when the king's command is regularly published, no mischief can be achieved by it, without the ministry and compliance of those to whom it is directed. Now all who either concur in an illegal order, by authenticating its publication with their seal or subscription, or who in any manner assist in carry. ing it into execution, subject themselves to prosecution and punishment, for the part they have taken; and are not permitted to plead or produce the command of the king in justification of their obedience. But farther: the power of the crown
*Amongst the chec. which par.iament holds over the admini ation of public affairs, I forbear to mention the practice of ad