« AnteriorContinuar »
which the punishment may be extended, are ascertained and affixed to the crime, by laws which knew 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 govern.' ment, 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 extreme 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 casé of illegal imprisonment.
Treason being that charge, under colour of which the destruction of ani 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 indul. gencies. By two statútes, enacted since the Revolution, 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 impannelled, 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 à 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 encroachment of the other parts. The 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 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 execution ;' and by a second rule, subsidiary to this, that the acts of the Crown acquire not a legal VOL. 1.
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 licentious exercise of dominion, various obstacles are opposed to the private will of the sovereign, when directed to illegal objects. The pleasure of the Crown 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 publicam tion with their seal or subscription, or who in any manner assist in carrying 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 to direct the military force of the kingdom, is balanced by the annual necessity of resorting to parliament for the maintenance and government of that force. The power of the King to declare war is checked by the privilege of the House of Coinmons, to grant or withhold the supplies by which the war must be carried on.. The King's choice of his ministers is controlled by the obligation he is under of appointing those men to offices in the state, who are found capable of mariaging the affairs of his government with the two houses of parliajnent: which consideration imposes such a necessity upon the Crown, as bath in a great measure subdued the influence of favouritisin ; insomuch that it is become no uncommon spectacle in this country, to see men promoted by the King to the highest offices and richest preferments which he has in his power to bestow, who have been distinguished by their opposition to his personal inclinations.
By the balunce of interest, which accompanies and gives efficacy to the balance of power, is meant this--that the respective interests of the three estates of the empire are so disposed and adjusted, that whichever of the three shall attempt any encroachment, the other two will unite in resisting it. If the King should endeavour to extend luis authority, by contracting the power and privileges of the Commons, the House of Lords would see their own dignity endangered by every advance which the Crown made to independency upon the resolutions of Parliament. The admission of arbitrary power is no less formidable to the grandeur of the aristocracy, than it is fatal to the liberty of the republic; that is, it would reduce the nobility from the hereditary share they possess in the national councils, in which their real greatness consists, to the being made a part of the empty pageantry of a despotic court. On the other hand, if the House of Commons should intrench upon the distinct province, or usurp the established prerogative of the Crown, the House of Lords would receive an instant aları
from every new.stretch of popular power. In every contest in which the King may be engaged with the representative body in defence of his established share of authority, he will find a sure ally in the collective power of the nobility. An attachment to the monarchy, from which they derive their own distinction; the allurements of a court, in the habits and with the sentiments of which they bave been brought up; their hatred of equality, and of all levelling pretensions, which may ultimately affect the privileges, or even the existence of their order; in short, every principle and every prejudice which are wont to actuate human conduct, will determine their choice to the side and support of the Crown. Lastly, if the nobles themselves should attempt to revive the superiorities which their ancestors exercised under the feudal constitution, the King and the people would alike remember, how the one had been insulted, and the other enslaved, by that barbarous tyranny. They would forget the natural opposition of their views and inclinations, when they saw themselves threatened with the return of a domination which was odious and intolerable to both.
ON THE EXPRESSION OF-PUBLIC OPINION, IN GREAT BRITAIN.
The Legislature has lately passed an Act, which the Abuses of the Constitutional Right of Petition loudly called for. It is entitled * An Act to prevent Seditious Meetings.'. It is specially directed against that mischievous innovation of our own day, the assemblage of immense multitudes in the open air, under pretence of deliberating on political grievances, but in reality for the purpose of promoting discontent and disaffection, and of ultimately overthrowing the Constitution, and annihilating the existing rights of property. It leaves wholly untouched, indeed it authorises, all county meetings called by the Lord Lieutenant, or Custos, or Sheriff ; all meetings called by tive Justices of the Peace, or by the major part of the Grand Jury; or in towns, by the Mayor or other head officer; all meetings of wands called by the Alderman, &c.; and all meetings in houses or buildings. With these large exceptions, it prohibits the holding of public meetings in larger numbers than fifty, on the pretext of deliberating on any grievance ar matter in Church or State, or trade, unless in the parish or township in which the persons meeting shall usually reside; and unless notice in a prescribed form be previously given of it to some neighbouring Justice of the Peace, who may alter
the time of holding it (within a certain number of days), so as to - prevent various meetings. being held at one time. It prohibits also
the adjournment of such meetings. It further prohibits the attendance · either at county,or town, or parish meetings, of any but persons usually resident there, with the exception of Justices of the Peace, Sheriffs, Constables, and persons appointed to assist them, and the Members of
Parliament for the place. Persons attending contrary to this provi. ésion (itinerant orators are here chiefly aimed at) may be seized by any
one lawfully attending, and are liable to fine and imprisonment, Justices are authorized to command, by proclamation in the King's name, such persons immediately to quit the meeti g; and in case of refusal, persisted in for a quarter of an hour after such proclamation, the meeting shall become an unlawful assembly, and persons not quitting, within half an hour after another proclamation shall have been made, shall, on being lawfully convicted, be adjudged guilty of felony. Persons proposing to alter. laws, except by King, Lords, and Commons, or inciting to hatred and contempt of his Majesty's Government, may be taken into custody; and if the doing so shall be resisted, the meeting may, after proclamation made, be dispersed ; persons obstructing being adjudged felons. All persons are prohibited from attending such meetings armed, or with flags, banners, or ensigns, displaying any device, badge, or emblem, or with military or other music, or in military array or order, on pain of being punished as misdemeanants. The Act is to remain in force for five years.
The necessity for such a measure was so strongly felt, that since its enactment, and that of other similar laws, it has been a common remark, that now the restricting measures are passed we begin to feel at liberty again. We are relieved from our terrors of mob-govern, ment, which, of all tyrannies, is the most hateful. But if any person really thinks that, in the suppression of such tumultuous meet ings, we have lost any portion of our proper Freedom, let him read the following description, written in 1819, of the legal methods afforded by the British Constitution, for the expression of Public Opinion. And by whom written? Not by any apologist for corruption, or any interested flatterer of those in authority, but by a Frenchman, (Mons. Cottu,) sent expressly by his Government, to observe and describe the institutions of this country, for the guide and example:of his own nation. It will hence be seen that this intelligent observer did not once consider mob-meetings as any portion of our constitutional system. : The privileges which he describes with so much justice we still retain (and long may we retain them) in all their perfection: it
in .., It is on striking political questions which happen to interést the feelings of the great' body of the people, that England displays all the force, or, I might say, all-the copious powers of the political machine. Meetings are held on all sides; the corporations, the grand juries, the magistrates, the freeholders, all discuss the charges against the ministers, and in their addresses they encourage the House of Commons to proceed against the offender, or suggest their opinions of the innocence and merit of the accused.
,. This facility, with which all the classes of the people may convey to their government through legal modes, and without riots, disturbances, or insurrections, their sentiments upon public affairs, is the highest perfection of the British constitution.
The first care of the British parliaments was to secure the individual citizens from the unjust power of the Crown, and the aristocracy-this is accomplished by the trial by jury, the habeas corpuş act, and the freedom of the press. The next object was to assure the nation at large a due superintendance and controul over its Government; but aware of the impossibility of assembling the people in a mass for any deliberative purpose, and convinced of the danger of assembling large bodies of men for such purposes, were it even practicable, they wisely divided the great body of the people into a number of smaller bodies and distinct classes, which have a right, each within itself, to assemble, for the purposes of discussing the conduct of the Government and the acts of its agents. Thus the freeholders of each county assembled for any public election, as of a Coroner for instance, the inhabitants of towns when called together by their mayors or aldermen-the grand juries or magistrates at the assizes and sessions--all have a power of addressing their petitions or remonstrances to the Throne or to Parliament, and it is a power which they exert very frequently and with unbounded freedom.
" This admirable expression of the public opinion, so powerful, so vigilant, is principally maintained, supported, and put into activity by the manner in which justice is administered, and by the entire liberty of the press. With the exception of the twelve Judges of England, all the civil and criminal justice of the kingdom is administered gratuitously by the intervention of the citizens themselves, and at their own expense.
The Justices of the Peace and the Sheriffs perform their offices without any remuneration, and it is extremely rare to find them accused of the least negligence.
All these and similar circumstances keep up a salutary agitation and balance in the opinions of all classes of people. They bring together the higher and the lower orders of society, and maintain a combined spirit of equality of rights and mutual independence of persons, which renders palatable the inequality of riches and of rank.'
OF PEACE--FROM LORD CLARENDON.
[Edward Hyde, Earl of Clarendon, was one of the greatest men that England has produced. He was born at Dinton, in Wiltshire, 1608. He served the unfortunate King Charles I. with strict honour until the total ruin of his affairs, when he retired into France, and became the faithful adviser of his son Charles 11. then in exile ; who, on being restored to the Throne, made him Lord High Chancellor of England.
During his long and arduous services, he steadily maintained the cause of Reli. gion and Loyalty ; and for many years withstood the intrigues of evil Counsellors, until at length they prevailed on the King and Parliament to banish this faithful servant into France, where he died, 1673.
The History of the Great Rebellion is his principal work, and has raised him to the highest reputation as a Statesman and Historian. He wrote also a palaable Account of his own Life, and some smaller pieces, during his exile, from which the following is extracted. ]
It was a very proper answer to him who asked, why any man should be delighted with beauty ? that it was a question that none but a blind man could ask ; since any beautiful object doth so much