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when they consider the circumstances in which the executive power, or the crown, is placed in relation to the two bodies that concur with it to form the legislature, the circumstances in which those two assemblies are placed in relation to the crown, and to each other, and the situation in which all the three find themselves with respect to the whole body of the people.*

*The assertion above made, with respect to the impartiality with which justice is, in all cases, administered in England, not being of a nature to be proved by alleging single facts, I have entered into no particulars on that account. However, I will subjoin two cases, which, I think, cannot but appear remarkable to the reader.

The first is the case of the prosecution commenced in the year 1763, by some journeymen printers, against the king's messengers, for apprehending and imprisoning them for a short time, by virtue of a general warrant from the Secretary of State; and that which was afterwards carried on by another private individual against one of the Secretaries themselves. In these actions, all the ordinary forms of proceedings used in cases of actions between private subjects were strictly adhered to; and both the Secretary of State and the messengers were, in the end, condemned. Yet, which it is proper the reader should observe, from all the circumstances that accompanied this affair, it is difficult to propose a case in which ministers could, of themselves, be under greater temptations to exert an undue influence to hinder the ordinary course of justice. Nor were the acts for which those ministers were condemned acts of evident oppression, which nobody could be found to justify. They had done nothing but follow a practice, of which they found several precedents, established in their offices; and their case, if I am well informed, was such that most individuals, under similar circumstances, would have thought themselves authorised to have acted as they had done.

The second case I propose to relate affords a singular instance of the confidence with which all subjects in England claim what they think their just rights, and of the certainty with which the remedies of the law are in all cases open to them. The fact I mean, is the arrest executed in the reign of Queen Anne, in the year 1708, on the person of the Russian Ambassador, by taking him out of his coach for the sum of fifty pounds. And the consequences that followed this fact are still more remarkable. The Czar highly resented the affront, and demanded that the Sheriff of Middlesex, and all others concerned in the arrest, should be punished with instant death. "But the Queen," to the amazement of that despotic court, says Judge Blackstone, from whom I borrowed this fact, "directed the Secretary of State to inform him that she could inflict no punishment upon any, the meanest of her subjects, unless warranted by the law of the land." An act was afterwards passed to free from arrests the persons of foreign ministers, and such of their servants as they have delivered a list of to the Secretary of State.

MILDNESS OF CRIMINAL LAWS.

249

In fine, a very remarkable circumstance in the English government (and which alone evinces something peculiar and excellent in its nature), is that spirit of extreme mildness with which justice, in criminal cases, is administered in England: a point with regard to which England differs frou all other countries in the world.

When we consider the punishments in use in the other states of Europe, we wonder how men can be brought to treat their fellow-creatures with so much cruelty; and the bare consideration of those punishments would sufficiently convince us (if we did not know the fact from other circumstances) that the men in those states who frame the laws, and preside over their execution, have little apprehension that either they, or their friends, will ever fall victims to those laws which they thus rashly establish.

In the Roman republic, circumstances of the same nature with those just mentioned were also productive of the greatest defects in the kind of criminal justice which took place in it. That class of citizens who were at the head of the republic, and who knew how mutually to exempt each other from the operation of any too severe laws or practice, not only allowed themselves great liberties, as we have seen, in disposing of the lives of the inferior citizens, but had also introduced, into the exercise of the illegal powers they assumed to themselves in that respect, a great degree of cruelty.*

Nor were things more happily conducted in the Grecian republics. From their democratical nature, and the frequent revolutions to which they were subject, we naturally expect to find that authority used with mildness which those who enjoyed it must have known to have been precarious; yet such were the effects of the violence attending those very

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"A copy of this act, elegantly engrossed and illuminated," continues Judge Blackstone, was sent to Moscow, and an ambassador extraordinary commissioned to deliver it."

*The common manner in which the Senate ordered citizens to be put to death, was by throwing them headlong from the top of the Tarpeian rock. The consuls, or other particular magistrates, sometimes caused citizens to expire upon a cross; or, which was a much more common case, ordered them to be beaten to death, with their heads fastened between the branches of a fork; which they called cervicem furca inserere.

revolutions, that a spirit both of great irregularity and cruelty had taken place among the Greeks in the exercise of the power of inflicting punishments. The very harsh laws of Draco are well known, of which it was said they were not written with ink but with blood. The severe laws of the Twelve Tables among the Romans were in great part brought over from Greece. And it was an opinion commonly received in Rome, that the cruelties practised by the magistrates on the citizens were only imitations of the examples which the Greeks had given them.*

In fine, the use of torture, that method of administering justice in which folly may be said to be added to cruelty, had been adopted by the Greeks in consequence of the same causes which had occurred to produce the irregularity of their criminal justice. And the same practice continues, in these days, to prevail on the continent of Europe, in consequence of that general arrangement of things which creates there such a carelessness about remedying the abuses of public authority.

But the nature of that same government which has procured to the people of England all the advantages we have before described, has, with still more reason, freed them from the most oppressive abuses which prevail in other countries.

That wantonness in disposing of the dearest rights of mankind, those insults upon human nature, of which the frame of the governments established in other states unavoidably becomes more or less productive, are entirely banished from a nation which has the happiness of having its interest guarded by men who continue to be themselves exposed to the pressure of those laws which they concur in making, and of every tyrannic practice which they suffer to be introduced, by men whom the advantages which they possess above the rest of the people render only more exposed to the abuses they are appointed to prevent, only

*Cæsar expressly reproaches the Greeks with this fact in his speech in favour of the accomplices of Catiline, which Sallust has transmitted to us :-"Eodem illo tempore, Græciæ morem imitati (majores nostri), verberibus animadvertebant in cives; de condemnatis summum suppli cium sumebant.'

MERCIFUL SPIRIT OF THE LAWS.

251

more alive to the dangers agaiust which it is their duty to defend the community.*

Hence we see that the use of the torture has, from the earliest times, been utterly unknown in England. And all attempts to introduce it, whatever might be the power of those who made them, or the circumstances in which they renewed their endeavours, have been strenuously opposed and defeated.t

From the same cause also arose that remarkable forbearance of the English laws to use any cruel severity in the punishments which experience showed it was necessary for the preservation of society to establish; and the utmost vengeance of those laws, even against the most enormous offenders, never extends beyond the simple deprivation of life.

Nay, so anxious has the English legislature been to establish mercy, even to convicted offenders, as a fundamental

* Historians take notice that the Commons, in the reign of Charles II., made haste to procure the abolition of the old statute, De Hæretico comburendo (for burning heretics), as soon as it became publicly known that the presumptive heir to the crown was a Roman Catholic. Perhaps they would not have been so diligent and earnest, if they had not been fully convinced that a member of the House of Commons, or his friends, might be brought to trial as easily as any other individuals among the people, so long as an express and written law could be produced against them.

+ This assertion is incorrect. The torture has frequently been used in England. The rack, scavenger's daughter, iron screw, gauntlets, and cell of little ease, were instruments to inflict the most excruciating torture upon Papists. The Puritans did not always escape the engines of Elizabeth's High Court of Commission. At present the remarks of De Lolme with regard to punishments are perfectly applicable; but when he wrote, the number of capital offences were disgraceful to our laws; for stealing to the value of one shilling, and the crime of murder, were equally visited with the punishment of death; and women for petite treason might, by law, be sentenced to be burnt alive.-Ed.

A very singular instance occurs in the history of the year 1605, of the care of the English legislature not to suffer precedents of cruel practices to be introduced. During the time that those concerned in the gunpowder-plot were under sentence of death, a motion was made in the House of Commons to petition the King that the execution might be stayed, in order to consider of some extraordinary punishment to be inflicted upon them; but this motion was rejected. A proposal of the same kind was also made in the House of Lords, where it was dropped. -See the Parliamentary History of England, vol. v. anno 1605.

principle of the government of England, that they made it an express article of that great public compact which was framed at the important æra of the Revolution, that “no cruel and unusual punishments" should be enforced.* They even endeavoured, by adding a clause for that purpose to the oath which kings were thenceforward to take at their coronation, as it were to render it an everlasting obligation of English kings, to make justice to be "executed with mercy."+

CHAPTER XVII.

A MORE INWARD VIEW OF THE ENGLISH GOVERNMENT THAN HAS HITHERTO BEEN OFFERED TO THE READER IN THE COURSE OF THIS WORK.-VERY ESSENTIAL DIFFERENCES BETWEEN THE ENGLISH MONARCHY, AS A MONARCHY, AND ALL THOSE WITH WHICH WE ARE ACQUAINTED.

THE doctrine constantly maintained in this work, and which has, I think, been sufficiently supported by facts and comparisons drawn from the history of other countries, is, that the remarkable liberty enjoyed by the English nation is essentially owing to the impossibility under which their leaders, or in general all men of power among them, are placed, of invading and transferring to themselves any branch of the governing executive authority; which authority is exclusively vested, and firmly secured, in the crown.

* See the Bill of Rights, art. x.-"Excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted."

+ Those same dispositions of the English legislature which have led them to take such precautions in favour even of convicted offenders, have still more engaged them to make provisions in favour of such persons as are only suspected and accused of having committed offences of any kind. Hence the zeal with which they have availed themselves of every important occasion-such, for instance, as that of the Revolutionto procure new confirmations to be given to the institution of the trial by jury, to the laws on imprisonments, and in general to that system of criminal jurisprudence of which a description has been given in the first part of this work.

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