1 Hume, History of England History of England (Caesar to (Caesar to Henry VII), vol. ii. p. 88. Henry VII], vol. ii. pp. 361, 362.
2 ' Forty thousand ' is probably 3 Andrew Fletcher, Political a mistake for the thirty thousand Works, 1737, pp. 11-16; Hume, mentioned in W, of N. bk. iii. History of England under the ch. iv. vol. i. p. 411. See Hume, House of Tudor, 1759, vol. i. p. 63.
PUBLIC JURISPRUDENCE 43 can spend above a hundred, cannot be affected by the increase of luxury. This is precisely the case of the king. He is possessed of a million, while none of his subjects can spend above thirty or forty thousand pounds, and therefore he can spend it in no other way, but by main taining a great number of people1. Luxury must therefore sink the authority of the nobility, whose estates are small in proportion to that of the king; and as his continues unaffected, his power must become absolute. Though this was the case in most nations of Europe, yet in Germany it was quite otherways. The monarchy there was elective, and consequently never could have so much authority. The country is much larger than any other in Europe, and at the dissolution of the feudal government the nobility, who were possessed of considerable fortunes already, got more in proportion than the rest; thus their estates rose so high above those that were immediately below them, that it was impossible for them to spend them in luxury, and therefore they were able to keep a considerable number of retainers. Thus in Germany the power of the nobility was preserved, while in England it was utterly destroyed, and the king rendered absolute.
[§ ii. How Liberty was restored..]
We have now shown how the government of England turned absolute: we shall next consider how liberty was restored, and what security the British have for the possession of it.
The act of Henry VII allowing the nobility to dispose of their estates2 had already placed them entirely on a level with the commons. Elizabeth, who always affected 1 In W. of N. bk. v. ch. iii. 2 4 Hen. VII. c. 24; Dalrymple, vol. ii. p. 508, the whole of this Feudal Property, p. 166; Hume, argument is rather contemp- History of England under the tuously rejected. House of Tudor, vol. i. p. 63.
44 PART I: JUSTICE popularity, was continually unwilling to impose taxes on her subjects. In order to supply her exigencies she sold the royal demesnes, as she knew that none of her offspring was to succeed her1. Her successors therefore, standing in need of frequent supplies, were obliged to make application to parliaments. The Com mons were now become very considerable, as they represented the whole body of the people; and as they knew the king could not want, they never granted him anything without in some degree infringing his privileges. At one time they obtained freedom of speech, at another they got it enacted that their concurrence should be necessary to every law. The king, on account of his urgent necessities, was forced to grant whatever they asked, and thus the authority of the parliament established itself. A peculiar advantage which Britain enjoyed after the accession of James I was that as the dominions of Britain were every way bounded by the sea, there was no need for a standing army, and consequently the king had no power by which he could overawe either people or parliament. The i,20o,ooo2 pounds a year which was settled upon the king at that time3 might have secured his independency, had not the bad economy of Charles II rendered him as indigent as any of his predecessors. His successor was still more dependent, and was forced to quit the throne and the kingdom altogether. This brought in a new family, which, as the royal demesnes were entirely alienated, depended wholly upon taxes, and were obliged to court the people for them. Ever since, the king's revenue, though much greater than it was then, depends so much on the concurrence of the parliament that it never can endanger the liberty of the nation.
1 Dalrymple, Feudal Property, 2 MS. reads ' 120,000.'
p. 168; Hume, History of Eng- 3 At the Restoration, Rapin, land tinder the House of Tudor, History of England, translated vol. ii. p. 729. by Tindal, 1743, vol. ii. p. 621.
PUBLIC JURISPRUDENCE 45 The revenues at present consist chiefly of three branches, to wit, first, the civil list, which is entirely consumed in the maintenance of the royal family, and can give the king no influence, nor hurt the liberty of the subject; secondly, the annual land and malt taxes, which depend entirely on the parliament; thirdly, the funds mortgaged for paying off the public debts, such as the taxes on salt, beer, malt1, &c., levied by the officers of custom and excise. These the king can by no means touch: they are paid to the court of exchequer, which is generally managed by people of interest and integrity, who possess their offices for life and are quite independent of the king. Even they can pay nothing but to those appointed by parliament, and must have the discharge of the public creditor. The surplus of the mortgages 2 goes into what is called the sinking fund for paying the public debt, [which] secures the government in the present family, because if a revolu tion were to happen, the public creditors, who are men of interest, would lose both principal and interest. Thus the nation is quite secure in the management of the public revenue, and in this manner a rational system of liberty has been introduced into Britain. The parliament consists of about 200 peers and 500 commoners. The Commons in a great measure manage all public affairs, as no money bill can take its rise except in that House. Here is a happy mixture of all the different forms of government properly restrained, and a perfect security to liberty and property.
There are still some other securities to liberty. The judges appointed for the administration of justice are fixed for life, and quite independent of the king. Again, 1 In addition to the annual been paid out of the produce of malt-tax mentioned under the the mortgaged taxes. See Thos. second head, there was a per- Mortimer, Every Man his own petual malt-tax. Broker, fifth edition, 1762, pp.
2 I.e. the surplus remaining 205-207. after the interest on the debt has 46 PART I: JUSTICE the king's ministers are liable to impeachment by the House of Commons for maladministration, and the king cannot pardon them1. The Habeas Corpus Act, by which the arbitrary measures of the king to detain a person in prison as long as he pleased is restrained, and by which the judge who refuses to bring a prisoner to his trial if desired within forty2 days is rendered incapable of any office, is another security to the liberty of the subject. The method of election, and placing the power of judging concerning all elections into the hands of the Commons, are also securities to liberty. All these established cus toms render it impossible for the king to attempt anything absolute.
Besides all these, the establishment of the courts of justice is another security to liberty. We shall therefore consider the origin of these courts, the history of them, and their present state.
[} 12. Of the English Courts of Justice^ In England, and indeed in all Europe, after the feudal law was introduced, the kingdom was governed and justice administered in the same manner as by a baron in his jurisdiction; as a steward managed all affairs in the county belonging to the lord, so the grand justiciary had the management of all in the kingdom. He appointed sheriffs and other inferior officers. He was himself a great lord, and, by the authority of his office, in every country but England he became as powerful as the king. But Edward I saw the danger and got it prevented. All kinds of law, criminal or civil, were determined by the justiciary or king's court which always attended the king: those delays and adjournments in civil suits to which this court 1 This should read, 'cannot 2 Twenty days is the outside stay the proceedings by pardon- limit. The same mistake occurs ing them.' again below, Div. iii. § n.
PUBLIC JURISPRUDENCE 47 always attending the king must have been liable, gave occasion for separating common causes from the king's court, and fixing for them at Westminster a court of common pleas. Criminal causes have always a more speedy determination ]. One would indeed think that when a person's life is at stake, the debate should be longer than in any other case: but resentment is roused in these cases and precipitates to punish. It is a matter of no moment to the spectator how a trifling matter of cash be determined, but it is by no means so in criminal cases. When common pleas were taken away the criminal and fiscal powers were connected, and the power and authority of the great justiciary little diminished. After wards Edward I divided the business of the justiciary into three different courts, viz: — The court of king's bench.
The court of exchequer.
The court of common pleas.
In the last all civil suits were tried. In the first all criminal ones, and to it lay the appeal from the court of common pleas. It was called king's bench, because the king then frequently sat upon it, though this cannot now be done, as it is improper that the king should judge of breaches of the king's peace. The court of exchequer judged in all affairs between the king and his subjects, the debts due by either of them to the other, and whatever regarded the revenue. The court of chancery was origin ally no court at all. The chancellor was no more than a keeper of briefs or writs according to which justice was done. What gave occasion to the keeping of these briefs shall now be considered.
Edward I abolished the power of the grand justiciary2. He employed mean persons to be judges, generally clergy- 1 It was the rule to finish of England, vol. vi. 1887, p. 252. every criminal trial on the day 2 Hume, History of England on which it began; Lecky, History (Caesarto Henry F//),vol. ii. p. 122.
48 PART I: JUSTICE men. As the decision depended on such persons, their jurisdictions would be exercised very precariously, and accordingly we find that both in criminal and civil cases they interposed with hesitation, in the former as mediators, and in the latter as arbitrators, and accordingly they would be unwilling to give justice in those cases where they had no precedent from the court of justiciary. On this account all the briefs by which the court of justiciary determined were kept. To keep these seems to have been originally the office of chancellor. If a person had a law-suit he went to the clerk of the court of chancery, who examined the briefs, and if he found one that compre hended your case, justice was done accordingly; but if one could not be found, you could not have justice. Thus we find that the chancellor was not a judge originally. In Scotland the office of the English chancellor is lodged in the court of session. In England a brief was sent from the chancellor to the sheriff by which he was obliged to appear before the king's judges. Judges then, from the irregularity and inaccuracy of their proceedings, gave great jealousy to the king, and on this account many severe sentences went out against them; £10,000 has at one time been levied from the judges on account of corruption1. They were therefore tied down strictly to the chancery briefs, and always bound by their records in such a manner that they could not be in the least amended, not so much as a word wrong spelled rectified. This precision still remains in some cases where not taken away by the statutes of amendment; a mere orthographical blunder, though evidently so, has in many cases made the whole of no effect. The judges were therefore tied down to the precise words of the brief, or if there was a statute, to the words of it. This was the origin and jurisdiction of the court of chancery.
1 Hume, History of England (Caesar to Henry VII), vol. ii. p. 68; but the amount should be 100,000 marks.
PUBLIC JURISPRUDENCE 49 During the improvement of the law of England there arose rivalships among the several courts. We shall therefore show how each of them began to extend its power and encroach [on] the privileges of another, and how the court of chancery increased its influence. The court of king's bench, which judged criminal causes and every breach of the king's peace, was the first that assumed immediately, and previously to an appeal, to judge in civil causes, and to encroach on the jurisdiction of the court of common pleas, by what is called a writ of error, that is, they supposed the person to be guilty of a trespass. For example, when a man owed,£10, and did not come to pay it at the time appointed, an order went out from the king's bench to examine and find him out, supposing that he intended to conceal himself, and they punished him for this trespass1. At present an action on contract can come immediately before the king's bench. In this manner it was that this court extended its power, and, being supreme over all, none could encroach upon it.
The court of exchequer brought in civil causes to be tried immediately by them in the following manner: suppose a man owed a sum of money to the king, which it is the business of the court to take care of, and the man cannot pay unless his debtors first pay him, the court took upon them to sue this other man by what is called the quo minus, that is, by what he is rendered less able to pay the king. As the debts of the king were many, and as the profits of the judges arose from sentence money, which was more or less according to the business of the court, they eagerly grasped at this extension of their power. All the courts endeavoured, by the speediness of their deter minations and accuracy of their proceedings, to encourage prosecutors to come before them2.
1 There is some confusion or Middlesex,' not a ' writ of error.' omission, as the process described 2 W. of N. bk. v. ch. i. pt. 2, is that followed under a ' bill of vol. ii. pp. 302, 303.
E 50 PART I: JUSTICE In what manner the chancellor came to attain his equitable jurisdiction shall be taken notice of in the next place. After the improvement of arts and commerce, which gave occasion to many law-suits unheard of before, people suffered a great deal by the imperfections of law. Edward III1 found that there were a great many injuries to which no brief nor court statute extended; and therefore the parliament allowed that if a person applied to the clerk of chancery and found there was no brief that could give him any remedy, the clerk should look for some briefs of a similar nature and out of them compose a new one by which the complainer might have redress2. In this manner the chancery prescribed rules to the other courts; but as they appointed the briefs and manner of proceeding, this was putting an end to the affair, for there was no occasion to go to any other court, and the chancery got these affairs into its own hands. There could be no appeal brought from the courts of king's bench or of common pleas to that of chancery, but they applied to it for what the common law could not redress. The chancellor in this manner obtained the power of judging in all cases of equity, and is applied to in the greater part of civil cases, the chief of which are, first, the specific performance of contracts. By the common law if a person was bound by contract to deliver a piece of ground, and afterwards refused to do it, he was only obliged to pay damages, but not to perform it specifically. The chancery, which was now considered as a court of conscience, enjoined the specific performance of it. Secondly, the chancery gave redress for all incests 3 and frauds in trust when the common law could not. As the leaving lands to the church deprived the king of the emoluments arising from 1 This should be ' Edward I.' 3 The reporter's or copyist's 2 Stat. Westm. II, 13 Ed. I. cap. mistake for some other word, 24; Dalrymple, Feudal Property, possibly ' deceits.'
PUBLIC JURISPRUDENCE 51 them, an act was passed against it. The clergy ordered that they should be left to certain persons who would dispose of them for the benefit of the church, and if they did not perform it, then, as it was a fraud in trust, the chancellor allowed the bishop to see it done. In like manner, when persons in the state of affairs at that time were obliged to alienate their estates to persons that had no concern in them, the chancellor caused them to be restored. Wills, legacies, and things of this sort also fell under the equitable decision of the chancellor.
It will be proper when we are treating of courts to inquire into the origin of juries. In the beginning of the allodial government when the several courts had arrived at a very small degree of improvement, and before they had experience to examine thoroughly into matters, when any person was brought before them on an action depending on his oath, he was obliged to bring twelve compurgators to swear that the oath was just. There are remains of this at present in actions of debt, where, if the person can bring in a certain number of persons to swear that his oath is just, he gains the suit. It is to be observed that the im perfection of this way of trying was one of the great causes that gave origin to the judicial combat. A nobleman, or indeed any man of spirit, who was eluded of his right by a set of perjured fellows, would rather choose to combat it in the field and appeal to the judgement of God than leave his cause to them. Henry II first instituted that the sheriff and a certain number of persons who had oppor tunity to be best acquainted with the crime should have the whole affair laid before them, and that the person should be judged by their sentence. The law of England, always the friend of liberty, deserves praise in no instance more than in the careful provision of impartial juries. They who are chosen must be near the place where the crime was committed that they may have an opportunity of being acquainted with it. A great part of the jury may 52 PART I! JUSTICE be laid aside by the panel1. He can lay aside thirty of their number, and he can challenge them either per capita, that is, any single juryman, or any number of them, if he suspect the sheriff of partiality. There may be many small causes for suspicion of partiality, and of the relevancy of these the court is judge. Nothing can be a greater security for life, liberty, and property than this institution; the judges are men of integrity, quite independent, holding their offices for life but are tied down by the law. The jurymen are your neighbours who are to judge of a fact upon which your life depends. They too can be laid aside for several reasons.
The laws of England with regard to juries are only defective in one point, in which they differ from the laws of Scotland. In England the whole jury must be unanimous, which renders the office of a juryman a very disagreeable service. A case may appear to you more clear than it does to me, and may really be different from what it appears to either of us, and yet there is a necessity for our agreement, and of consequence a necessity that one of us should swear contrary to our conscience. In criminal causes there is little danger, people are generally disposed to favour innocence and to preserve life. But in civil cases people are not so much troubled, they are not so much disposed to favour, and many of them are exceedingly doubtful. People of fashion are not fond of meddling in a jury attended with such inconveniences, and therefore only the meaner sort of people attend the judge. A great man would not choose to be so often called and returned, and perhaps treated in such a manner as no gentleman would choose to be. In this case the law providing for security has done too much. In this country, where unanimity is not required, the service is not so disagree able. Though a person differ from the majority he may stand by his opinion and is not forced to comply, and the 1 Scotch term for the accused.
PUBLIC JURISPRUDENCE 53 people of the highest rank are willing to be jurors. In the actions which come before the court of chancery no jury is required, and the court of session in Scotland has taken them away in civil causes.
Besides the courts that have been mentioned there were several others erected by the king's patent. Henry VIII erected three. The court of high commission which sat upon ecclesiastics, the court of star chamber which takes in anything less than death, and the court of wardship which took care of the king's interest in these emoluments. This last was taken away by Charles II, who accepted a sum for the whole. It is now understood that the king cannot erect a court without consent of parliament. In no other country of Europe is the law so accurate as in Eng land, because it has not been of so long standing. The parliament of Paris was only erected about the time of Henry VIII of England. The British parliament consists of a great number of men, and these of great dignity \ All new courts disdain to follow the rules that were formerly established. All new courts are a great evil, because their power at first is not precisely determined, and therefore their decisions must be loose and inaccurate.
Thus we have considered the origin of government 1. Among a nation of savages; 2. Among a nation of shepherds; 3. The government of small clans with chieftains; the manner in which aristocracies arose; the fall of little re publics, conquering or defensive, and, lastly, the different forms of government that arose in Europe after the dis solution of arbitrary government.
[$ 13. Of the little Republics in Europe^ We shall next consider the origin of the little republics in Europe, and consider the rights of sovereign and subject.
1 This and the preceding sentence appear hopelessly corrupt.
54 PART I: JUSTICE First, of the origin of these republics. In some countries the provinces which were far from the seat of government sometimes became independent, as was the case in a good part of Germany and France during the time of Charle magne. Hugh Capet, who was chief justiciary1, got the government into his hands, but took only the title of the King of France. The Pope, by raising disturbances in Germany, for a long time hindered the Emperor Otho from taking possession of Italy. But when he got posses sion of it, on account of its distance, he could not retain it. Every little town formed itself into a republic, with a council of its own choosing at its head. Some towns in Germany being well fortified, such as Hamburgh, assumed the same privileges, and still in some measure retain2 them. The Italian towns are governed by a hereditary nobility, though the ancient republics were perfectly democratical. In Venice the people freely gave up the government, as they also did in Holland, because they could not support the trouble which it gave them. The Dutch and Swiss republics are formed into a respublica foederaia, and on this depends their strength.
We shall make some remarks on the manner of voting in these republics. When there are 100 votes and three candidates, it is possible that the person who is most odious may be elected. If A, B and C be candidates, there may be 34 votes for A, and 33 for B, and as many for C. Thus though there are 66 votes against A, he carries it. This must be still more the case when a criminal is brought before this assembly, for 34 may think him guilty of murder, 33 of manslaughter, and 33 of chance medley, yet he must suffer for murder3. To prevent this, in some of these republics they always bring the question 1 Gilbert, Treatise on the Court Philosophy, vol. ii.p. 241; Grotius, of Exchequer, 1758, p. 8. DP. iure belli et pacts, lib. ii. cap. v.
2 MS. reads ' retains.' § 19; Pufendorf, De tun' naturae 3 Hutcheson, System of Moral et gentium, lib. vii. cap. ii. § 18.
PUBLIC JURISPRUDENCE 55 to a simple state. Is he guilty of murder or not? If there be three candidates, they put a previous vote, by which they exclude one of the candidates. In their senates the president never has a deliberative vote, but only a decisive one, because they will allow no member to have two votes. When there is an equality on both sides, nothing can be done, and therefore the business is not rejected, but referred to another meeting.
[§ 14. Of the Rights of Sovereigns] We shall now consider what duty is owing to the sovereign, and what is the proper punishment of dis obedience. Every attempt to overturn this power is in every nation considered as the greatest crime, and is called high treason. It is to be observed that there is a great difference between treason in monarchies and treason in republics. In the one it is an attempt on the king's person, and in the other on the liberties of the people, from whence we may see how the maxim of assassination came to be established in republics, and not in monarchies. It is the interest of monarchies that the person in authority be defended, whatever his title or conduct be, and that no person be allowed to enquire into them. The laws of monarchy are therefore unfavourable to the assassination of tyrants. In a republic the definition of a tyrant is quite clear. He is one who deprives the people of their liberty, levies armies and taxes, and puts the citizens to death as he pleases. This man cannot be brought to a court of justice, and therefore assassination is reckoned just and equitable. The present republican governments in Europe, indeed, do not encourage this maxim, because monarchies now set the fashion, and [other] governments] copy their pattern. According to our present notions Oliver Crom