kingdoms, from the same original, have acquired the same form of government; whence Diodorus Siculus, in his second book of Ancient History, concerning the Egyptians, says thus: "The kings of Egypt originally did not live in such a licentious manner as other kings, whose will was their law: but were subject to the same law, in common with the subject, and esteemed themselves happy in such a conformity to the laws." For, it was their opinion that many things were done by those who gave a loose to their own will, which exposed them to frequent and great dangers and disadvantages. The same author in his fourth book writes thus: "He who is chosen king of Ethiopia leads a life conformable to the laws, and behaves in every respect according to the customs of his country, neither rewarding, or punishing any one; but according to the laws handed down from his predecessors." In like manner he writes concerning the king of Saba in Arabia Felix: in the same manner concerning other kings in ancient history; who, pursuing the same methods of government, reigned prosperously and with reputation. a With the same sentiments, Voltaire writes to the king of Prussia. Ouvrons du monde entier les annales fideles, Les foudres qu'ils portaient dans leurs mains criminelles Sont retombés sur eux. Ils sont morts dans l'opprobe, ils sont morts dans la rage- Ont eu des jours sereins, sans nuit et sans orage, Purs comme leurs vcrtues. CHAP. XIV. Prince. You have, my good Chancellor, with the perspicuity of your discourse, dispelled that darkness with which my understanding was obscured, and I now perceive plainly, that no nation ever formed themselves into a kingdom by their own compact and consent, with any other view than this, that they might hereby enjoy what they had, against all dangers and violence, in a securer manner than before: and consequently, they would find themselves disappointed of their intention, if afterwards the king they had so set over them should despoil them of their properties, which was not lawful for any of the community to do before such appointment made. And the people would be in yet a more dismal state, in case they were to be governed by strange and foreign laws, such as they had not been used to, such as they could not approve of: more especially if those laws should affect them in their properties, for the preservation whereof, as well as of their persons, they freely submitted to kingly government; it is plain, that such a power as this, could never originally proceed from the people; and if not from them, the king could have no such power rightfully at all: on the other hand, I conceive it to be quite otherwise with that kingdom which becomes so by the sole authority and absolute power of the king. In this case, the people become subject to him upon no other terms, but to obey and be governed by his laws, that is, his mere will and pleasure. Neither, Sir, has it slipt my memory, what you have elsewhere, with solid reasons, demonstrated in your treatise, concerning the Law of Nature, that the power of both kings is in effect equal; seeing a possibility of doing amiss, which is the only privilege the one enjoys above the other, can be called an addition of power, no other than a possibility to decay or die; which, as it is only a possibility of being deprived of something valuable, such as life or health, is for this reason rather to be called a state of impotency, a real weakness. "For power (as Boetius observes) is always for some good end or purpose;" and therefore to be able to do mischief, which is the sole prerogative an absolute prince enjoys above the other, is so far from increasing his power, that it rather lessens and exposes it. The blessed spirits above, which are already fixed in their seats of happiness, and put beyond a possibility of sinning, are, in that respect, superior to us in power, who are always liable to do amiss, and to work iniquity with greediness. It only now remains to enquire, whether the law of England, to the study whereof you invite me, be as well adapted and effectual for the government of that kingdom, as the Civil Law (by which the holy Roman Empire is regulated) is generally thought to be, for the government of the rest of the world. Satisfy me but in this point by some clear and convincing proof; and I will immediately apply myself to the study you propose, without troubling you with any more of my scruples. a Fortescue, in the preceding Chapters, attempts to account for the characteristic principles of the English Constitution, by referring to the circumstances, which he supposes to have attended the first institution of civil government in the Island: so most authors, who have written upon the subject of political institutions, have founded their theories on an imaginary state of nature, out of which they suppose men to have passed into a state of civilized society. The descriptions which have been given of a state of nature, are as various as the systems of of which it has formed the basis. Hobbes, Locke and Rousseau, all differ from each other, in the manner in which they represent this condition of mankind; whilst other writers, apparently with more reason, have considered the idea of a state of nature, to be altogether negative. The confused and contradictory notions of Blackstone, respecting the institution of government, as arising out of the state of nature, have been ably animadverted upon by Mr. Bentham; and the subject has been discussed with much talent, in an interesting treatise by a foreign writer, upon the influence of political theories in modern Europe, (Heeren, ueber die Entstehung, die Ausbildung und den praktischen einfluss der politischen theorieen in dem neueren Europa.) It will perhaps be thought, that the political order which we contemplate in England, is not to be attributed to the circumstances that accompanied the transition of our ancestors from out of the state of nature, to one of social life and civil government; nor to any balance between the monarchical, aristocratical and democratical powers, which the sagacity of our forefathers may have framed; but that it has been the gradual result of time and experience; the passions and the wants of man combined. with the various emergencies of his situation. It is true, that the prudence and good sense of our countrymen, have always made them slow to adopt any alteration of institutions, which have been found not incompatible with national happiness, if not productive of it in themselves, during a succession of ages; that they have indignantly resisted every attempt at innovation in their government, by arbitrary means: and accordingly the paradox of Fielding, "that the Constitution of this Island is nothing fixed, but just as changeable as the weather," may be thought to have been deservedly reprobated by Sir W. Jones. Nevertheless, it will probably be considered, if we trace the progress of our Constitution, that its principal advantages have arisen from the frequent occasions upon which it has yielded to the changes prescribed by public opinion. We may, consequently, hesitate to adopt the account, which is given in the text, of the formation of the English Constitution: but no praise can be too ample for the explanation which Fortescue has left us, of the principles, which, in mixed monarchies, ought to influence the governors and governed, and which constitute the sole legitimate ground of the subject's obedience. The true "tenure of Kings and Magistrates," is not less explicitly and boldly asserted, in the preceding chapter, by the Chancellor of Henry the Sixth, than by the immortal advocate of the English people. The sentiments of Algernon Sidney were not more inimical to the power of tyrants, or more repugnant than those of Fortescue to the abject language of the Oxford decree, or that which disturbed the last moments of Russel. And when the Chancellor writes, "Ad tutelam legis subditorum, ac ac eorum corporum et bonorum Rex hujusmodi erectus est, et hanc potestatem a populo effluxam ipse habet, quo ei non licet potestate aliâ suo populo dominari," he maintains the same fundamental principle of government, which when it was developed and vindicated by Locke, ensured to that great philosopher the lasting gratitude of his country, and the admiration of Europe. It is important to observe the entire absence from the writings of Fortescue, of those obscure and mystical definitions of the prerogative, which, in after times, had such a fatal influence in preventing the King and the people from understanding, and thereby appreciating each others rights, as being, in fact, their own. The simple description of royal power given in the text, is incompatible with the metaphysical distinction of James, between a king in abstracto, and a king in concreto; nor does it more accord with the notions respecting the prerogative promulgated by Cowell, and for which he incurred the censure of the Parliament; and it is totally inconsistent with the doctrine, that the little finger of the King is heavier than the loins of the law, and that every political institution and regulation, must give place to the prerogative, as being endued in this respect with power, like that of the strong man Samson, who though he was bound by his own consent, could not be held under restraint when an emergency arose. (The Trew Law of Free Monarchies, and Speech at Whitehall A. D. 1609. K. James's Works. Cowell's Interpreter, Art. Prerogative, Parliament, King. Sir J. Davis on Impositions. Strafford's Impeachment. St. Tr. Strafford's Letters and Disp. Vol II. p. 388, Letter to Judge Hutton.) The King's prerogative is nothing more than the King's law: "for example," says Selden, "if you ask whether a patron may present to a living after six months by law, I answer no; if you ask whether the King may, I answer he may by his prerogative, that is, by the law that concerns himself in that case." (Selden's Table Talk Tit. Prerogative. Resolution of the Judges in the Case of Proclamations, 12 Rep. "Political Reflections," by Saville, Lord Halifax.) Locke has observed, that in the infancy of Commonwealths, the Government is almost all prerogative. The restrictions which are subsequently imposed upon the executive power, are to be regarded as improvements in the legislation of the country, tending to confine the authority of the chief magistrate, to such a measure and extent, as is indispensible for the proper execution of his trust; they cannot reasonably be deemed invasions upon his established rights. And therefore a Prince of the Stuart family, could have no just claim to the extensive prerogatives enjoyed by the Tudor line, when it became manifest, that the sentiments of the nation were averse to his possessing them. A wise people will foresee numberless evils, of a frightful character, that may arise from a rash diminution of the prerogative: a free nation, |