THAT THE EXCELLENCE OF THE ENGLISH GOVERNMENT DOES NOT CONSIST IN THE LAWS ONLY, BUT IN THE SPIRIT AND GOOD SENSE OF THE NATION. Virtue! without thee There is no ruling eye, no nerve in states; Ev'n justice warps to party, laws oppress, Wide through the land their weak protection fails, 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 has been provided in Spain for the government of the Indians of Mexico and Peru; but unfortunately the legislators are 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 is 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. But 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 much contributed to spread this opinion. All that was established had, in his eye, a peculiar sanctity. 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 unprincipled statesmen find to be the greatest (would it were an efficient!) 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 law 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 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 civilized 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. Of the other offences made treason by the bill it is not necessary to take notice here. 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 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 when they had already included a conspiracy to commit that crime, under the head of compassing the king's death. Had they wished to include this offence, 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 high treason had been enacted, and afterwards repealed with other new treasons at the begin ning 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, 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 the First. In those times of mild government, however, the engine was little wanted, and it was reserved for Mr. Pitt, to direct it against the lives of his old supporters the reformers, during the French revolutionary But juries refused to carry the construction as far as the court desired. It was proved, indeed, to their satisfaction, that Hardy and war. |