from coefficients, or such other quantities as only perplex without properly constituting it; so it may be advantageous to the inquirer after the causes that produce the equilibrium of a government, to have previously studied them, disengaged from the apparatus of fleets, armies, foreign trade, distant and extensive dominions; in a word, from all those brilliant circumstances which so greatly affect the external appearance of a powerful society, but have no essential connexion with the real principles of it.

It is upon the passions of mankind, that is, upon causes which are unalterable, that the action of the various parts of a state depends. The machine may vary as to its dimensions; but its movement and acting springs still remain intrinsically the same; and that time cannot be considered as lost which has been spent in seeing them act and move in a narrower circle.

One other consideration I will suggest, which is, that the very circumstance of being a foreigner may of itself be attended, in this case, with a degree of advantage. The English themselves (the observation cannot give them any offence), having their eyes open, as I may say, upon their liberty, from their first entrance into life, are perhaps too much familiarized 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.

CHAP. 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 a 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, afterward called England, which at length were united, under Egbert, into one kingdom.

The successors of this prince, denominated the Anglo

Saxon 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.

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 nobility; and the ancient Saxon government is 'left us in story (to use the ex pressions of sir William Temple on the subject), but like so i 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 era 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 engagement 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 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 al tered, 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 chaunel where the

William of Normandy, having defeated Harold, and made himself master of the crown, subverted the ancient fabric of the Saxon legislation: he exterminated, or expelled, the former occupiers of lands, in order to distribute their possessions among his followers; and established the feudal system of government, as better adapted to his situation, and indeed the only one of which he possessed a competent -idea.

This sort of government prevailed also in almost all the other parts of Europe. But, instead of being established by dint of arms, and all at once, as in England, it had only - been established on the continent, and particularly in France, through a long series of slow successive events: a difference of circumstances this, from which consequences were in time to arise as important as they were at first difficult to be foreseen.

The German nations who passed the Rhine to conquer Gaul were in a great degree independent; their princes had no other title to their power, but their own valour and the free election of the people; and as the latter had acquired in their forests but contracted notions of sovereign authority, they followed a chief less in quality of subjects, than as companions in conquest.

Besides, this conquest was not the irruption of a foreign army, which only takes possession of fortified towns;-it was the general invasion of a whole people in search of new habitations; and as the number of the conquerors bore a great proportion to that of the conquered, who were at the same time enervated by long peace, the expedition Conquest had placed it, they were more properly new modifications of the Anglo-Norman constitution than they were the abolition of it; or, since they were again adopted from the Saxon legislation, they were rather imitations of that legislation, than the restoration of the Saxon government.

Contented, however, with the two authorities I have above quoted, I shall dwell no longer on a discussion of the precise identity, or difference, of two governments; that is, of two ideal systems, which only exist in the conceptions of men. Nor do I wish to explode a doctrine which, in the opinion of some persons, giving an additional sanction and dignity to the English government, contributes to increase their love and respect for it. It will be sufficient for my purpose, if the reader shall be pleased to grant, that a material change was, at the time of the Conquest, effected in the government then existing, and is accordingly disposed to admit the proofs that will presently be laid before him, of such change having prepared the establishment of the present English constitution.

was no sooner completed than all danger was at an end, and of course their union also. After dividing among themselves what lands they thought proper to occupy, they separated; and though their tenure was at first only precarious, yet, in this particular, they depended not on the king, but on the general assembly of the nation.*

Under the kings of the first race, the fiefs, by the mutual connivance of the leaders, at first become annual; afterward held for life. Under the descendants of Charlemagne they became hereditary.+ And when at length Hugh Capet effected his own election, to the prejudice of Charles of Lorrain, intending to render the crown, which in fact was a fief, hereditary in his own family, he established the hereditaryship of fiefs as a general principle; and from this epoch authors date the complete establishment of the feudal system in France.

On the other hand, the lords who gave their suffrages to Hugh Capet forgot not the interest of their own ambition. They completed the breach of those feeble ties which subjected them to the royal authority, and became every where independent. They left the king no jurisdiction, either over themselves, or their vassals; they reserved the right of waging war with each other; they even assumed the same privilege, in certain cases, with regard to the king himself; so that if Hugh Capet, by rendering the crown hereditary, laid the foundation of the greatness of his family, and of the crown itself, yet he added little to his own authority, and acquired scarcely any thing more than a

The fiefs were originally called terræ jure beneficii concessa; and it was not till under Charles le Gros that the term fief began to be in use. See Beneficium, Gloss. du Cange.

Apud Francos vero, sensim pedetentimque jure hæreditario ad hæredes subinde transierunt feuda; quod labente seculo nono incepit.' See Feudum, Du Cange.

t Hotoman has proved beyond a doubt, in his Franco Gallia, that, under the two first races of kings, the crown of France was elective. The princes of the reigning family had nothing more in their favour than the custom of choosing one of that house.

5 The principal of these causes was, when the king refused to ap point judges to decide a difference between himself and one of his first barons, the latter had then a right to take up arms against the king; and the subordinate vassals were so dependent on their immediate lords, that they were obliged to follow them against the lord paramount. St. Louis, though the power of the crown was in his time much increased, was obliged to confirm both this privilege of the first barons and this obligation of their vassals.