A standing army being thus, as it were, engrafted upon the constitution of England, it remains to be seen what are its effects upon the government, and whether any real danger is to be apprehended from it. From the Revolution to the present day, there have never been wanting a certain number of persons, whether moved by patriotism or by faction, who have warned the country of the evils to be apprehended from a military establishment, and pointed out the subversion of the freedom of Rome and other popular States by a standing army, as an example. for us to avoid. I am inclined to doubt, however, whether the parallel be a just one. Republics have been destroyed by standing armies, because armies have assisted their chiefs in establishing a perpetual dictatorship, and in overthrowing the senates and the laws in behalf of a military despotism: but in England, neither experience nor the present state of the country can excite any reasonable dread of the usurpation of a successful general. The monarchical form of our government seems to be a preventive of this evil. Neither is it much to be apprehended that the sovereign himself will make use of the standing army to cashier the Parliament, and subvert the constitution by force. Opinion is too much settled, and the institutions of the country are too vigorous, to admit of so desperate a project: the army itself likewise is too deeply connected with the other classes of the country, to concur in a scheme for putting down the established authorities of the realm. It is true, indeed, that the virtue of the army is, as Lord Chatham said, our chief protection against this danger; but seeing how the army is constructed, it is a sufficient security. The open subversion of our liberties by the force of the standing army is then not impossible certainly, but extremely improbable. Yet we are not to conclude that because there is little danger of the army destroying our freedom, like the troops of Marius or Cæsar, or of its becoming the servile instrument of a king in a design of making himself absolute, that therefore a large standing army may not be a reasonable object, if not of alarm, yet of some suspicion and jealousy. CHAPTER XXXIII. OF THE INFLUENCE OF JURIES IN INTERPRETING AND MODIFYING THE LAWS. Virtue without thee There is no ruling eye, no nerve in States; Wide through the land their weak protection fails, Thomson. THE proposition, that good laws without virtue in the society where they are established are of little or no avail, is one so generally admitted, that it seems useless to waste a word respecting it. Perhaps there is not a more comprehensive or a more humane code of laws, than that which was provided in Spain for the government of the Indians of Mexico and Peru; but, unfortunately, the legislators were at Madrid, and the people to be protected working for their masters in America, without the power of enforcing their legal rights; so that the code was of no force or value whatsoever. The converse of the proposition I have selected, however, although perhaps not formally contradicted, is not so generally impressed upon our minds. Men are easily led to believe, that where liberty and wealth have flourished, there must be some very singular excellence, some unfailing virtue, inherent in the laws by which the State has been governed. It would be an easy task to prove, that neither at Athens, nor at Rome, nor at Florence, nor in Holland, has the form of laws reached to any great perfection. This would probably be admitted; and yet many would persevere in thinking that in England our ancestors had discovered some secret for making faultless laws. Blackstone has contributed much to spread this opinion. All that was established had, in his eye, a peculiar sanctity, and he praises the English Constitution with the enthusiasm of a scholar who is admitted to view the picture of a great master. The fault, indeed, was on the right side. If he refrained from pointing out many obvious improvements, he also kept alive that respect for our ancient liberties, which speculative statesmen find to be the greatest obstacle to their arbitrary innovations. It is impossible, however, to attempt any general view of the history of our government, and not to be struck with the modifications and forced interpretations which have been accepted, in order to make the law of the land agree with the security of the State and the safety of the subject. The first instance I shall mention is the treason law. For three centuries, we have been accustomed to appeal to the Act of the 25 Edward III. as the perfection of wisdom and liberty on the subject of treason. Yet what is this law, when we come to examine it? The bold and spirited compact of a turbulent nobility with a feudal king, totally unfitted for a commercial and civilised society. It provides, that the penalties of treason shall apply to those only who conspire against the life of the King, or actually levy war against him.* Such a law as this, it is evident, was well calculated to protect the barons from being arrested for disaffection, and to give them the power of holding their private councils. for rebellion undisturbed. In the progress of society, however, it was discovered, that a conspiracy to levy war, far from being an ordinary or light offence, was a crime of the utmost magnitude, dangerous alike to the safety of the King and the tranquillity of the * Of the other offences made treason by the bill it is not necessary to take notice here. country. What was to be done? It was obvious, that a conspiracy to levy war was not treason by the Act, for no men could have been so absurd as to have specified the actual levying of war as treason, when they had already included a conspiracy to levy war under the head of compassing the King's death. If a conspiracy to levy war amounted to compassing the King's death, à fortiori the actual war must have borne that meaning. Had they wished to include this offence of conspiracy to levy war in their statute, they would undoubtedly have said, levying war against the King, or conspiring to levy war. Indeed, so certain was the meaning of the law of Edward, that a new law making a conspiracy to levy war amount to high treason was enacted, and afterwards repealed with other new treasons at the beginning of the reign of Mary. In this dilemma, the lawyers cut the Gordian knot. They decided, that compassing or imagining the death of the King,' meant conspiring to depose him, or to imprison him, or to use force for the purpose of making him change his counsellors or his measures; for any of these acts might lead to his death. They interpreted the offence of levying war against the King to mean a riot for any general purpose, as to pull down inclosures or meeting-houses. These violent constructions. of law, first imagined under the reign of the Tudors, and put in force to shed the blood of good men under the Stuarts, crept in and flourished till they received the sanction of the upright and venerable Judge Foster in the reign of George I. In those times of mild government, however, the engine was little wanted, and it was reserved for Mr. Pitt to Foster, the great authority on these subjects, says, that conspiring to imprison the King, is compassing his death; because the graves of princes are near their prisons. To stretch this trite moral observation into a snare for taking away a man's life, under pretence of explaining a law of the fourteenth century, is a refinement as absurd as it is cruel. |