state centres in him alone. But let us now seriously attend to the manner in which these powers and prerogatives of the crown are limited; and here we shall discern the wisdom, the beauty,. and singular excellence of the British constitution.

1. The king is entirely dependent on parliament for all subsidies; the revenues of the crown are a mere trifle. The king can levy armies and equip fleets, but without the aid of parliament he cannot maintain them. He bestows offices, but without parliament he cannot pay salaries. He declares war, but without parliament he cannot carry it on. De Lolme has well compared the powers of the king of England to a ship completely equipped, but from which the parliament can at pleasure drain off the water and leave it aground.

Such is the weight in the scale of parliament against the powers of the crown; a weight so entirely preponderating, that parliament itself has moderated the exercise of its prerogatives, by an established usage of granting at the commencement of every reign a settled revenue upon the prince for life, a provision sufficient to support the dignity of the crown without putting it in his power greatly to abridge the liberties of the people; and a provision which being at an end with the life of the sovereign, and requiring a new grant for every successor, puts it in the power of parliament to remedy all abuses and encroachments at the beginning of every reign, and thus bring the constitution back to its first principles. In short, there is in the British constitution a power of periodical reformation, which is an effectual check to its ever being corrupted by encroachments from the crown. The sovereigns of Britain do not now succeed to the powers and prerogatives of their predecessors. The constitution is, or may be, fixed at the beginning of every reign: because, except the name of king, the sovereign has neither power nor dignity, till the parliament vote his revenue and subsidies; which they can withhold till every abuse is remedied, and all former encroachinents retrenched and put a stop to.

But still further is the power of the sovereign subject to continual limitation. The king can never reign without a parliament. By an act of Charles II. he must assemble a parliament at least once in three years, and, in order that the election of members may be made with due deliberation, the writs must be issued forty days before the meeting of parliament.

The king is the head of the church; but he cannot alter the established religion, nor call individuals to account for their religious opinions; and ecclesiastical regulations must be made by the assembly of the clergy.

The king is the first magistrate: but he cannot interfere with the courts of judicature in the administration of justice he can assist at no trials, civil or criminal, and any person may demand the king's name and authority to prosecute crimes.

CH. XXXI.]

ENGLISH CONSTITUTION.

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He has the privilege of coining money; but he cannot alter the standard either in weight or alloy.

He has the power of pardoning offences, but he cannot exempt the offenders from making a compensation to the parties injured, if it is demanded.

The king has the military power. The sea-forces he can raise, disband, and regulate at pleasure, because they cannot be turned against the liberties of the people; but the land forces he cannot raise without the consent of parliament. A standing body of troops is, indeed, established by parliament; but the funds for their payment are never granted for more than a year. The Mutiny Act, by which alone they are regulated, must be renewed from year to year.

The king, in the last place, is above the reach of all courts of law; but his ministers, his indispensable instruments, are answerable for all the measures of government. All misapplications of the public money, all ruinous and improper expeditions, all abuses of power are chargeable to their account; and the Commons, the guardians of the constitution, have a right to impeach them at the bar of the House of Lords. A minister impeached for misconduct cannot plead in excuse the commands of the sovereign, nor will it avail him, pleading guilty to the charge, to produce the royal pardon. He must suffer as the author of those measures of which he was the instrument a noble and most effectual antidote against the evils of misgovernment!

The laws, which thus effectually limit the power of the crown, secure likewise the freedom of parliament. The freedom of debate cannot be questioned, or any member called to account on that score, in any court or place out of parliament.

To these observations I shall add a few remarks on three striking peculiarities of the English constitution in favor of the liberties of the subject the Habeas Corpus Act, Trial by Jury, and the Liberty of the Press.

The methods which the laws of England formerly established to remedy unjust imprisonment, were what are termed writs of main-prize, de odio et atia, and de homine replegiando, which were orders to the sheriffs of the counties, to inquire into the causes of the prisoner's confinement, and, according to the circumstances of his case, either simply to discharge him or admit him to bail. But these methods are now tacitly abolished by the habeas corpus, which is a writ issuing from the court of King's Bench, whose effects extend over all England, by which the king requires the person who holds any of his subjects in custody, immediately to carry him before the judge, to certify the date of his confinement and the cause of it, and to abide the judge's decree whether he shall detain him or set him at liberty Of this beneficial statute there were frequent evasions which from time to time called forth various amendments. The last

and most effectual of all was by the act of Habeas, which, as we have observed, passed in the thirtieth year of Charles II., and which has cut off every source of oppression and every handle of

evasion.

The principal articles of this act are, in the first place, to fix the different terms for bringing a prisoner, in proportion to the distance of the place of his confinement: the longest term is twenty days. In the second place, the officer or keeper must, within six hours, deliver to the prisoner, on his demand, a copy of the warrant of his commitment, under the penalty of one hundred pounds, and being disabled to hold his office. In the third place, no person once delivered by a writ of habeas corpus shall be recommitted for the same offence, under the penalty of £500 sterling. Fourthly, every person committed for treason or felony shall, if he require it, in the first week of the next term, or the first day of the next session, be indicted in that term or session, or else admitted to bail. If acquitted, or not indicted, he shall be discharged. Fifthly, any of the twelve judges, or the lord chancellor, refusing a writ of habeas, shall forfeit £500. In the last place, no subject of England shall be sent prisoner to Scotland, Ireland, Jersey, Guernsey, or any place beyond the seas, under penalty to the party committing, and to all who assist or advise, of forfeiting £500, to be recovered with treble costs, being disabled from holding any office, being imprisoned for life, forfeiting his whole estate for life, and being incapable of the king's pardon. Such is the nature of the habeas corpus, a most invaluable security for the personal liberty of the subject, a security which is enjoyed under no government on the face of the earth but

our own.

It must be observed that the habeas corpus being an English law, and prior to the treaty of union, does not extend to Scotland. The liberty of the subject, however, is almost as effectually guarded in that country as in England; though there the term of imprisonment before trial may, indeed, be of longer duration. By the Scottish statute 1701, cap. 6, no person can be imprisoned in order to trial for any crime without a warrant in writing expressing the cause, and proceeding on a signed information, unless in the case of indignities done to judges, riots, and some other offences mentioned in the statute. Every prisoner committed to gaol for crimes not capital, is entitled to a release on finding bail, according to his circumstances; and for the relief of those who are unable to find bail, any prisoner may apply to the criminal judge requiring that his trial may be brought on without unnecessary delays. The judge, within twenty-four hours of such application, must issue letters directed to messengers for intimating to the prosecutor that he may fix a diet for the prisoner's trial within sixty days after the intimation, under the pains of wrongous imprisonment. Still further, and that there may be no unnecessary or oppressive

protraction of a trial after it is once begun, the prisoner is entitled to insist for his liberty, if his trial is not concluded within forty days, if before the supreme criminal court, and within thirty if before any other. This privilege is competent to be pleaded in all cases, except in the crime of forgery. Thus the natives of Scotland seem to be nearly on a par with those of England, in that most inestimable of all blessings, personal liberty.

The only exception to the general liberty of the subject, under the British government, is the power of impressing seamen by the king's commission for the supply of the navy. This power has at all times been reluctantly submitted to, and much complained against as an infringement of the rights of the subject. But salus populi est suprema lex. If it is absolutely necessary for the preservation of the state, on occasion of sudden danger from an enemy, that the navy should be instantly and effectually armed, that circumstance at once demonstrates the legality of the practice. Moreover, as the subjection to this hazard is known by all who engage in the profession of a seaman, their entry into the profession is a tacit consent to whatever is necessarily attendant upon it. It has been very clearly shown by Sir Michael Foster, that this practice, and the granting of powers to the admiralty for that purpose, is of very ancient date, and has been uniformly continued to the present time, so as now to be understood as a part of the common law of the land.

The

Another of the highest privileges of a British subject is the trial of all crimes by jury. The preliminaries to trial are different in England and in Scotland. The number of jurors are different; twelve in England and fifteen in Scotland. Unanimity of opinion is required in the former, a majority of voices is decisive in the latter. In both modes of trial it is the privilege of the criminal to be judged by the impartial verdict of his peers. prisoner has even a share in the choice of his jury, for the law has allowed him the right of challenging or objecting to such as he may think exceptionable. In England the prisoner may challenge peremptorily, that is, without showing any cause, twenty jurors successively. The witnesses upon the trial deliver their evidence in presence of the prisoner, who is allowed to question them, and to produce witnesses in his own behalf. In cases of treason, the accused person may challenge successively thirty-five jurors; he may have two counsel to assist him on his trial; and no treason, unless actual attempt upon the life of the king, can be prosecuted after three years from the offence. The opinions of the judges in summing up the evidence have no weight but such as the jury choose to give to them, and their verdict ought to proceed entirely on their own belief and conviction. Lord chiefjustice Hale has, in his History of the Common Law of England, summed up, in a very few words, the duty and powers of a jury. "The jury, in their recess, are to consider their evidence; to

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weigh the credibility of the witnesses, and force and efficacy of their testimonies: they are not bound to the rules of civil law, to have two witnesses to prove every fact, unless it be in cases of treason; nor to reject one witness because he is single, or always to believe two witnesses, if the probability of the fact does upon other circumstances reasonably encounter them. It may fall out that a jury, upon their own knowledge, may know a thing to be false which a witness has sworn to be true; or may know a witness to be incompetent or incredible though nothing be objected against him, and may give their verdict accordingly."

The effect of the verdict of a jury is final and positive. If the prisoner is acquitted, he is instantly set at liberty, and cannot on any pretence be tried again for the same crime. If found guilty, the judge must pronounce sentence according to the law. But this law must contain a positive enactment with regard to the special crime which was brought before the jury; for, in crimes, no constructive extension of laws can be admitted. The spirit of our laws considers the impunity of an offender as a very small matter in comparison with the dangers that would result from such

extension.

The last particular I shall take notice of, and what is in fact the guardian of the British constitution, is the liberty of the press.

To supply the unavoidable deficiency of all legislative provisions, to prevent the silent deviations of magistrates from their duty (transgressions the more dangerous that no punishment can reach them); and to be a constant check upon the minutest departments of the constitution, as a pendulum regulates the equable motion of all the wheels of a clock,-there is one power in the British government whose exertions are constant and unremitting, a just regulator of the whole parts of that nice and complicated machine. This is the power which every individual has of expressing his opinion of the whole conduct of government, without reserve, by word or writing-a power which is so regulated, however, as to insure all the benefit of the ancient censorship without its mischiefs. The censorial tribunal at Rome was entirely arbitrary, which repressed all freedom of judgment in the public; or, at least, rendered it of no consequence, since the regulation of government was supremely lodged in the breasts of a few men, with whom that judgment could have no effect. But a British subject has the right of free judgment on all public measures, of remonstrating to his governors, of carrying his complaint and his appeal to the public by means of the press, of submitting to the general opinion the views and principles of these governors expressed in parliament; and thus, by openly examining and scrutinizing their whole conduct, to furnish the most powerful restraint against every species of malversation. It is peculiar to the British government, that there is no person so high in administration, as not to feel the weight of public opinion. The loss of popular favor to a states