1824.]

Declamation on the English Constitution.

this enlightened age) happily need not be defended; the rights of mankind can never be made to depend on the times of their being vindicated with success; they are sacred and immutable,—the gift of Heaven; and whether appropriated for the first time today, or enjoyed beyond the reach of annals, the title to them is equally incontrovertible. One individual may forfeit his property to another from supineness, and usurpation may strengthen into right by prescription; but human privileges in the gross cannot be so snatched away; there is no statute of limitation to bar the claims of Nature. Let us not therefore, from a patriot zeal, involve our selves in the faint evidences of probability, but be contented to trace our political constitution from a source within the reach of moral demonstration. There is more honour in having freed ourselves from tyranny, than in always having been free.

We know with certainty that the Saxons had Parliaments, but we know with equal certainty that the people at large had no representative share in them; the bulk of the nation were either vassals under the feudal lords, or allodiit under the King's Government. The first being absolute slaves to their masters, could not pretend to become political rulers; and the last being not even united by the feudal bond to the community, could have no suffrages in the feudal councils.

The Saxon lords were free, but for that very reason there was no public liberty; the Government was highly aristocratical; there was no shadow of that equal communion of privileges, founded on legislative institutions, which constitutes freedom upon English principles; by which all who are the objects of the laws, must personally or by representation be the makers of the laws. This principle, which may be justly denominated the very essence of our present Government, neither did nor could possibly exist till the proud feudal chieftains,

23

bending under an accidental pressure, were obliged to sacrifice their pride to necessity, and their tyranny to selfpreservation.

But before our enquiries can be properly begun at the period I have fixed, before I can exhibit the elastic force of freedom rebounding under the pressure of the most absolute government, I must call your attention to the genealogy of our feudal ancestors. They issued from that Northern hive of fierce warriors who overran all Europe at the declension of the Roman empire;— a race of men the most extraordinary that ever marked and distinguished the state of nature;—a people who in the absence of every art and science, carried the seeds of future perfection in their national genius and characteristic, visible even then, in an unconquerable fortitude of mind, in an inherent idea of human equality, tempered with a voluntary submission to the most rigid subordination.

The trial by jury too, was understood and revered by all the Northern inhabitants of Europe, when they first appeared among the degenerate nations that had lost it. Liberty, driven from the haunts of science and civilization, seems to have fled with this talisman to the deserts, and to have given it to barbarians to revenge her injuries, and to redeem her empire. In marking the process of the constitution through the furnace of slavery, it must never be forgotten that such were our ancestors.

When William had gained the victory of Hastings, he marched towards London with his victorious Normans, and found (like other conquerors) an easy passage to the throne, when the prince is slain and his army defeated. The English proffered him the peaceable possession of a kingdom which he was in a condition to have seized by force, rather choosing to see the brows of a victor encircled with a crown than with a helmet, and wishing rather to be governed by the sceptre than the sword.

There are certain limitations of time fixed by statute, in the reigns of Henry VIII. and James I. beyond which the subject (and the King, by a later Act,) cannot apply to the Courts of Justice to regain the possession of landed property, to recover personal debts and damages, or to redress private wrongs. These Acts are called, in law pleadings, the

Statute of Limitation.

+ Allodii were such as held of no feudal superieur celles qui ne recognissent superieur en feodalité. These allodial lands were all surrendered up at the Norman Conquest, and received back to be held by feudal tenure, as appears by Domesday Book.

He

24

Declamation on the English Constitution.

He was therefore installed with all the solemnities of the Saxon coronations, and immediately afterwards annihilated all those laws which these solemnities were instituted to perpetuate. He established his own feudal system, the only one he understood; he divided all the lands of England in to knights' fees, to be holden of himself by military service; and as few or none of the English had any share in this general distribution, their estates being forfeited from their adherence to Harold, and by subsequent * rebellions, it is plain they could have no political consequence, since none but the immediate vassals of the Crown had seats in the feudal Parliaments. Could William have been contented thus to have shared with his Norman Barons the spoils of the conquered English, and merely to have transferred his feudal empire from Normandy to Britain, the sacred Sun of freedom had probably then set upon this island never to have risen any more! The Norman lords would have established that aristocracy which then distinguished the whole feudal world; and when afterwards, by the natural progression of that singular system, when by the inevitable operation of escheats and forfeitures, the Crown must have attracted all that property originally issued from it; when the Barons themselves must have dropped like falling stars into the centre of power and aristocracy, and been swallowed up in monarchy; the people, already trained to subjection, without rights and without even similar grievances to unite them, would have been an easy prey to the Prince in the meridian of his authority and despotism. Encircled with a standing army, he would have scattered terror through a nation of slaves.

Happily for us, William's views extended with his dominion; he forgot that his Barons (who were not bound by their tenures to leave their own country) had followed him rather as companions in enterprize than as vassals: he confided in a standing army of mercenaries which he recruited on the continent, riveted even on his own Normans the worst feudal severities, and before the end of his reign the English saw the oppressors themselves among the number of the oppressed.

[Jan.

This plan, pursued and aggravated by his descendants, assimilated the heterogeneous bodies of which the kingdom was composed. Normans and English, Barons and Vassals, were obliged to unite in a common cause. Mr. de Lolme, citizen of Geneva (by comparing the rise of liberty in England with the fall of it in France) has so clearly and ingeniously proved that Magna Charta was obtained from the necessity which the Barons were under of forming an union with the people, that I shall venture to consider it as a fact demonstrated, and shall proceed to an enquiry no less curious and important, where he and other writers have left a greater field for originality: I mean the rise of the English House of Commons to its present distinct and representative state. The statute of Magna Charta, so often evaded and so often solemnly re-established, disseminated (it must be confessed) those great and leading maxims on which all the valuable privileges of civil government depend. Indeed the 29th chapter contains every absolute right for the security of which men enter into the relative obligations of society. But privileges thus gained, and only maintained by the sword, cannot be called a constitution; after bearing a summer's blossom, they may perish as they grew, in the field of battle. Of little consequence are even the most solemn charters confirmed by legislative ratifications, if they who are the objects of them do not compose part of that power without whose consent they cannot be repealed. If they have no peaceable way of preventing their infringement, nor any opportunity of vindicating their claims till they have lost the benefit of possession, liberty in this state is not an inheritance; it is little better than an alms from an indulgent or a cautious administration.

It remains, therefore, to shew by what steps the people of England, without being drawn forth into personal action, were enabled to act with more than personal force; in what manner they acquired a political scale in which they could deposit the privileges thus bravely and fortunately acquired, and into which every future accumulation of power, flowing from

It was not till the 19th year of the Conqueror's reign, that the feudal system was generally introduced into England.

the

Abp. Whitgift's Hospital at Croydon.

Stat. 18 Edw. I. chap. 1. commonly called Quia emptores terrarum. The great Barons were very pressing to have this law passed; that the lands they had sold before the Act might not be subinfued, but might return to themselves by escheat on failure of heirs, or by forfeiture in case of felony. But they did not foresee that the multiplication of their own order would in the end annihilate its consequences, and raise up a new order in the state. Indeed, the tenancies in capite were multiplying fast before this Act; for when a large barony escheated, or was forfeited to the Crown, it was generally divided and granted to more than one, and frequently these baronies descended to several females, who inherited as co-parteners. It was in consequence of this multiplication of tenure in capite, that the smaller Barons were summoned per vicecomites, and not sigillatim, like the greater ones, as early as the reign of John, their numbers being too great to address writs to them all. But this multiplication would probably never have produced a genuine House of Commons, without the operation of this Act, as will appear by and by, from the comparison between the English and Scotch parliaments.

Abp. Whitgift's Hospital clasps, bosses, &c. such as are seldom seen. It had been repaired (but indifferently) at the expence of John Lett, of Lambeth, in 1817.

The brethren, thirty in number, dine in this hall three times in the year.

The entrance to the Chapel is in the South-east corner of the quadrangle. The Chapel is small and very neat. The East window, from a tablet over it on the exterior, appears to have been put up by the Archbishop of York.

1824.] Importance of the West Indies-On Circumstantial Evidence. 27

sweets of slavery, by working on the plantations for seven or fourteen years, according to their rank or degree on board of the ships in which they have acted; by enforcing this in the most rigid manner, the importation of slaves into the islands would soon terminate. The present enactments have had the salutary effect of making the planters, at least, more alive to their own interests, by giving greater attention to the comforts and lives of their present stock of slaves; and I again repeat, that the hardships and privatious endured by these unfortunate beings, is not half so severe as that suffered by -nine-tenths of our fellow subjects-the peasantry of Ireland.

The planters in the West Indies might, however, by the interference of the Legislature, have a more orderly and valuable description of slaves, were the mode practised in the Spanish Islands to be adopted in ours. In the Spanish Islands a slave may claim his freedom at a fixed price, and which, in a series of years they are enabled to effect, by industry and hard work on the holidays which are allotted them generally throughout the West Indies; but which holidays in our West India islands are passed in dancing, whoredom, and dissipation of every kind. You may easily conceive what a very desirable change such an enactment would have on the habits and morals of this unfortunate race.

But whilst an Association send Missionaries to preach rebellion, and whilst proclamations are every where placardded, that tend to raise hopes that never can be realized-what can be engendered by such means, but mutiny and bloodshed among the slaves, and disaffection to Government in the bulk of their masters?-than whom a more loyal body cannot be produced. In every emergency they have proved themselves such; but when total destruction and beggary stare them in the face, is it surprising that they should falter in their allegiance,-that they should prove dissatisfied, and enter into meetings and associations to avert their impending ruin? Let it be recollected that the balance in trade betwixt the two countries leaves seven millions in favour of England; and that upwards of 20,000 of our sailors (the main strength of this country) find constant employment in the West India trade!

SICA.

Mr. URBAN,

Jan. 13.

YOUR Correspondent, P.W. (xciii.

ii. 485) has given a decided opinion on the impropriety of receiving Circumstantial Evidence in any case, even of murder. He is very strong in his objections, although these objections are not only very questionable, but, in my judgment, open to refutation by the merest Tyro in argument. In the first place, it is hardly possible to have any other evidence in cases of murder; men do not usually associate in herds to commit this crime, or perpetrate it in the face of day, in the market-place, or in the senate-house; sometimes, indeed, they have done so; but it is a rare occurrence, and the culprit who is so hardy in his act, is generally found to be some poor maniac, or some simple idiot.

That the laws should be guarded in execution by the most jealous care of the subject's interests, is a position which no Englishman will gainsay; but that because a law is not perfect, and may in a single instance be perverted to sanction or excuse an act of injustice, by the curious contrivances and ingenious sophistry of able and trick some advocates, it should therefore be abrogated, is to argue upon the possibility of the existence of such a system of ethics and jurisprudence combined, as never was, nor ever will be found but in the fancies of speculative philanthropists, or in the conjectural theories of Utopian philosophers.

As a Judge or a Juryman, although acquitted in conscience, it would grieve my heart to know that an innocent person may have been wrongfully convicted by my judgment, whether upon direct or circumstantial evidence. But such is the wisdom, and such the partiality both of the Judge and the Jury, which always incline to the side of mercy, that not only are the rights of the innocent, but the presumed rights of the guilty, held inviolably sacred; so that it is nearly impossible that in any great question of life or death, any individual injury can be sustained; the cause of public morals may be wronged; but, for one innocent person unjustly convicted, it is probable ten thousand criminals escape merited condemnation; and so perhaps it should be. I would not have it otherwise. But your Correspondent errs greatly in supposing that convictions on Circumstantial Evi

dence