and despise. I scora to return saphistry for sophistry, or waste the reader's time and my own, in detecting the specious and flimsy covering with which these literary resurrection-men have vamped up many of their skeleton arguments, which are indeed but the rotten relicks of those forces with which the Bradys, the Humes, and the Paleys of former days attacked in vain the citadel of British freedom: my wish, Sir, is not to confound the subject by subtle disputation, but to illustrate it by matters of fact; the plan therefore according to which I shall proceed is, to ascertain, first of all, the elementary principles of our constitution, which will furnish such of your readers as have not the leisure, or the means of engaging in these studies, with a true standard, and an infalible criterion, by which they themselves will be enabled to detect the visionary flights, and extravagant aberrations of these northern critics, and measure to a nicety how far they have deviated from the straight line of the constitution. It is an observation made and applied to this very subject by the author I have already quoted, that "the essence of a thing is best known "and discovered by the properties of "that thing." This is the point of view in which it is proposed to consider the English constitution. What purpose was it intended to answer? The purpose, Mr. Editor, that it was intended to answer, and for which we shall find it admirably adapted, was to secure the property of the people: and, says the just quoted writer," it is impossible not to see, and conclude, and acknowledge, that every part of the prople had a great share in the first "formation of it, and that they were rational and thinking men.' Let us see, then, what means these "rational and thinking men" took, to insure a point of such vast Now, Sir, as these points comprise the freedom of an Englishman, [ beg leave to ask, if more efficacious means could be devised even by modern wisdom, for insuring them, than the following institutions, which will constitute the subject of this enquiry:-That no money should be taken from an Englishman in the way of taxes or otherwise, but by his own free consent;-that no law should be imposed upon him as a rule of conduct to which he had not given, by himself or his delegate, a solemn approbation; and that no judicial proceedings should be put in force against his person or property, to which twelve men, impartially chosen from among his peers, or equals, had not given, upon oath, a conscientious and awful sanction! Permit me, Sir, to repeat in this place a remark made in my former letter. "That is not mine which I "hold only so long as another per son shall forbear to take it from me."-Now, the fact is, that 154 borough-mongers do exercise that taxative control over the property of the people of England, which they themselves ought alone to exercise, according to the principles of the constitution; and therefore that ownership which was the main object intended to be secured by our forefathers in the government that they established, is subverted, violated, * Discourse of the Laws and Govern ment of England, folic, p. 84. and destroyed; and therewith the constitution itself must be, by a natural consequence, subverted, viola ted, and destroyed also: this I maintain; but the Edinburgh Reviewers do, on the contrary maintain, that the present system of parliamentary representation is consistent with the principles of the constitution; and that a reform, in which the people would be truly represented, would be much more likely to prove a viola tion of the constitution, than the continuance of corruption and bo rough-traffick: on this point we are at issue, and the decision must depend upon authority, not upon the, reasonings or assertions of either the one or the other of us; and there fore, if I can establish the points already adverted to, as the elementary principles of our constitution, I shall expect, from the candour of the Reviewers, an acknowledgement of their error; but should they not possess sufficient liberality to induce them to make such acknowledgment, I shall at least accomplish among your readers the purpose for which I have taken up the pen. I need not tell the informed reader, that our fundamental laws are the Leges non scripta, or unwritten laws to which our law books often refer. For instance, if any man should ask where is the law by which the trial by jury was first instituted; the answer would be, that we know of no law enacting such a mode of trial; that it is a custom primeval with the institution of our government, ard referred to by many laws as a thing already known and established, but originating in none, and for that reason it is properly called an "unwritten law." What is here said of this institution, which is the third in the list just enumerated, also be said of the first," that no may money shall be taken from an Englishman without his own free consent." We find no law in which this punciple may be said to originate, but 66 we find it from the most antient times, to have been a popular right recognised and asserted by the com mon law, and confirmed by various charters. The most antient book that we can refer to, for the purpose of informing ourselves respecting the laws and cus toms of our ancestors, is THE MIRROUR; it was written, as its title-page expresses, before the conquest, and some of the customs detailed in it have even a strong tincture of Pa ganism.* In the Mirrour we have an account of all the judges hanged by Alfred: this account furnishes us with two very important facts; the one is, that no. money or goods (for payments were antiently made even to the exchequer in goods, and by the Saxons called cattle Live-money). could be taken for the King's use without the consent of the subject; and the other fact is the existence of Boroughs. Hale was the 17th judge that Alfred hanged, and his crime is thus expressed. "He hanged hath "Hale because he saved Tristram "the sheriff from death, who took "to the King's use from another's goods against his will, for as much; as any such taking from another against his will, and ROBBERY, no difference! Ile hanged the "suitors of Dorchester, because they "judged a man to death by jurors in "their liberty for a felony which he "did out of the liberty, and whereof In the right of appeal for murder, that is the right of prosecuting the mur derer, it is said, that this shali belong to the wife of the person murdered, but not to any of his wives, to her only who lay in his arms when he was murdered, for she had the seizin of his person. This right was of importance, because the ap pellant received part of the fine, and this regulation respecting it, shews that our ancestors had not yet quite forsaken their when that ancient book was written; a Pagan custom of polygamy,or repudiation fact which I believe has not been noticed by any of the modern writers who have consulted it. 39 they had not the conusance by reason of foreignty..... He hanged "the suitors of Cirencester because "they kept a man so long in prison "that he died in prison, who would "have acquitted himself by foreigners, "that he offended not feloniously.... "In his time the suitors of Don"caster lost their jurisdiction, because they held pleas forbidden by "the customs of the realm to judges, “ordinaries, and suitors to hold." Here we find proved, by the most unquestionable authority, the existence of free towns or boroughs, with courts, jurisdiction, and suitors, belonging to them, above 300 years before the time that the prerogative writers would fix for their commencement; and we find likewise, that an officer of the crown could not take any thing from an English freeman, even for the King's use, without his consent, framing of laws, freely gave their own money for the necessities of government, and without which consent it could not be taken from them, without the party who took it,though ministers of the crown, incurring the crime and suffering the punishment of felony. In my first letter some remarks were inserted respecting the form. now used in making laws, for the purpose of shewing, that though the commons of England are not really in parliament by representation as they ought to be, yet it is necessary to substitute fiction for reality, and to suppose they are, in order to render the acts of the legislature valid and legal. I shall now, Mr. Editor, give your readers, from Squires's Anglo-Saxon Government (p. 184) an account of the manner in which laws were antiently made among our Saxon ancestors, in order that they may see, that what at present with us is nothing better than fiction, was with them reality. "The Witanagemot or lesser se nate, as we may call it, that is "the King together with his Thanes, "Ealdermen, (Earls) Bishops, &c. "drew up the law, and set their 64 names to it, as to their act and "deed; but it was the voice of the people that gave this deed all its "force and authority. The Witan "consulted and contrived what was "most expedient for the public good; "but it was the multitude that con"firmed and ratified their councils; "the former proposed, the latter "commanded what should be done, "Thus when the payment of tithes "to the clergy was made general "all over England; we are told, "that there were present in the "council, Fidelium infinita multitu “do, an infinite multitude of Leuds Bishop Squires is of opinion, that representation to the Saxon gemot or parliament began about the time of Alfred. That such delegations were known among the Saxons, is as unquestionable as the existence of these boroughs or trading towns; nor is it a matter of any consequence whether those delegates were hike ours, or were composed of the civil magistrates, chosen by popular election, or that they were often attend, ed, on particular occasions, by such of their constitutents as chose likewise to be present at these national assemblies, by which means these meetings are sometimes described as composed of select persons, the witen or wise-men (sapientes,) and sometimes to consist of an immense crowd or an innumerable multitude of people; (Magna Turba infinito multitudo, &c.)-but the only point I shall insist upon is, that the people were there" or Frankpledges, who all approved either personally, or by their representatives; that they concurred in the *Mirrour, p. 241, 243, 245. † Anglo Saxon Government in England, p. 246, and sequel. "the decree which had been pre "viously drawn up by the King and "his wise men, whilst all those who "were distinguished by titles, as the governors of Counties, Bishops, " Abbots, Thanes, subscribed their names to it; dignitates vero sua "nomina subscripserunt. I would "observe one thing further," adds the learned bishop," respecting our "antient lawgivers; that upon << making of any new constitutions, "the King and all his subjects im"mediaetly swore to the observance "of them." เด 66 "17th. year a famous parliament was held in a meadow between "Staines and Windsor called Rune"mede, which signifies the Mead of "Counsel, or of the council, as it is έσ the thought, from the Saxon word "Radan, consulere.* In prato quod dicitur Runemed, quod interpretatum Pratum Consilii, eo quod ab antiquis temporibus ibi de pace regni sæpius consilia tractabantur. "In the meadow called Runemede, "which being interpreted means the "meadow of council, because in "that place from the most ancient "time the council of the nation were "wont to meet in order to treat of "the peace of the kingdom." I need not I think, inform any of your readers, that what was anciently called the peace of the kingdom, is now called the King's peace, and when our parliaments now meet to frame laws against offences they treat of the peace of the kingdom. I have, Sir, translated the word fidelis, a leod, leud, or frank pledge, and I beg leave to refer your readers to the remarks I made in a former number of your, Review on the word Leud, which was used, both by the Franks on the continent, and the Saxons in England, to signify a free man who had sworn fidelity to the state, as all the frank pledges in the country were obliged, at a certain age, to do: in this respect the Saxon law, which I shall probably have occasion hereafter to quote, and the report given by the French historian Boullanvilliers, perfectly accord. The clergy did not swear to defend the kingdom, because the church had not then become militant: they received the oaths of the laity as appears by the above mentioned laws, and hence arose the distinction between a leud and a clerk as used in Chaucer, and the manuscript poem of Robert of Gloucester quoted from Selden, in those remarks.* 3 The Edinburgh Reviewers in speaking of ancient times, have divided "the whole people of Europe into two great classes, the gentry or nobility, who engrossed the whole po"litical power, and the peasantry 66 66 or common people, who had no "share in that power," and have thereby considered the constitution of this country as on a par with those systems of despotism which, at a very early period, were established upon the continent: in fact, they have considered Britons as without any free government till a very re"cent period, the year 1688, when they boldly declare" the true principles of the constitution were first. recognized, and the reign of in"fluence and regular freedom began;" as if this conntry had never known what regular freedom was till it knew what influence was; and as if that reign of influence which has totally subverted the ownership that our an * Matt. Westm. ad. an. 1215-17th. John. testors exercised in what they had, and which it was the main drift of their political institutions to perpetuate, and deliver down to us their descendants, as if this reign of influence, instead of subverting the constitution, had formed its very essence and perfection.-These Edinburgh Reviewers, having had so little of the fear of offending truth before their eyes, or in their hearts, as to advance these monstrous fables, and having moreover had the consummate confidence to say, that these fables were and are “universally acknowledged," your readers will not, I hope, under such extraordinary circumstances, consider me as trespassing on their patience, if I record in this place, from unquestionable authority, some further instances of the absolute exercise of those rights in our ancestors, by which it will be clearly demonstrated, that they had, and enjoyed this ample ownership, instead of being, as these sagacious critics represent them, a set of wretched vassals, of whose property the sovereign" could levy what he pleased in a variety of ways, "without the consent of that assembly," meaning the house of commons, which" he could at any time AL easily overbear, them and their con“stituents, and compel them to yield *whatever was demanded." I admit, Mr. Editor, that there do occur in our history some few instances where the house of commons has been thus overborne ;-but, Sir, when I consider the inroads that were made about the same periods of time by the sovereign power on the continent upon the free establishments originally erected there after the same gothic model, I am not surprised that such attempts should have been made; I only wonder that (the complexion of those times considered) they should have been in so few instances successful: need I tell * Ed. Rev. p. 291, 301, 302. these Reviewers that an exception to a rule does not destroy that rule, any more than the violation of a law annuls its authority. As they seem to give such force to these breaches of the constitution under bad princes, I wonder they did not quote, as a precedent admirably adapted to their purpose, the manner in which Richard II. packed a parliament, by sending down, to the sheriffs of the different counties and the magistrates of the towns, directions to return particu lar persons: this I think would have been a much better expedient than the one they have hinted at, of the King and the nobility being allowed to smuggle ten members each into the house of commons, as a contraband necessary to the comfort of a country." But, Sir, how many instances might these Reviewers have selected, if they had been so inclined, where the commons did their duty, and refused supplies till their grie vances were redressed? We also find that their constituents were not al ways disposed to permit Richard II. to carry on this contraband trade so ingeniously recommended by out critics for the "comfort of a couutry," for on another occasion the she riffs replied to these parliamentary conge d'elires from the court, that they could not obey them, for the people would hold their ancient custom of free choice.* Now, although I will candidly acknowledge that these are not the times into which any man ought to look for the principles of our constitution nor is it my intention to look there for the proofs I shall further exhibit in this case, yet as these critics consider those times as affording an elucidation of their fine me taphysical theories, and refer to them with a sort of triumph, I cannot help bringing forward, in opposition, some instances, where the true prin *Sir Robert Howard's Life of Ri chard II. p. 97. |