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.

CHAPTER 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 an 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, afterwards 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 expressions of Sir William Temple "on the subject) but like so many antique, "broken, or defaced pictures, which may still

represent something of the customs and fa"shions of those ages, though little of the true lines, proportions, or resemblance*."

* See his Introduction to the History of England.

It is at the æra 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*. William or Normandy, having defeated Harold, and made

of

* 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 engagements 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 a 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 Jan

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

guage of the law moreover altered, 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 channel where the 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,