CHAPTER XIV.

POLITICAL LIBERTY.

'I believe the love of political liberty is not an error; but, if it is one, I am sure I shall never be converted from it, and I hope you never will. If it be an illusion, it is one that has brought forth more of the best qualities and exertions of the human mind than all other causes put together; and it serves to give an interest in the affairs of the world, which without it would be insipid.'-Fox, Letter to Lord Holland.

THE two kinds of liberty of which we have spoken, viz. civil and personal liberty, have existed to a certain degree in States which we usually term despotic. The monarchies of modern Europe have all been more or less governed by fixed laws, deriving their sanction from prescription. The monarchy of Prussia, which is altogether unlimited, allowed, from the time of Frederick II., great latitude of religious and political discussion.

It is clear, however, that the definition of liberty, which describes a man as free who is governed by laws, is incomplete. So long as the supreme power of the State is placed in hands over which the people have no control, the tenure of civil and personal liberty must be frail and uncertain. The only efficient remedy against oppression is for the people to retain a share of that supreme power in their own possession. This is called political liberty. And what is called a love of liberty, means the wish that a man feels to have a voice in the disposal of his own property, and in the formation of the laws by which his natural freedom is to be restrained. It is a passion inspired, as Algernon Sidney truly says, by Nature herself. In the manner of exercising this

power, and satisfying this desire of the people, and in the portion of control retained by them, free States have differed; and in these forms consist their respective constitutions.

Authors who have written upon these subjects have distinguished three powers, viz. the Judicial, the Legislative, and the Executive. These powers, they maintain, ought to be separated. But the Legislative and the Executive never have been, and never can be so, thoroughly. The Judicial, indeed, which, properly exercised, means nothing more than applying general rules or laws to particular cases, with a careful exercise of discrimination, may be so separated; and we have already seen that, in the English Constitution, this division has been very wisely made.

The Judicial Power in England is, as we have seen, placed in the hands of persons rendered independent of the Crown by the law of William III., which makes them removable only upon an address by the two Houses of Parliament. Since this time. the character of English judges has been held in deserved estimation:-of their personal integrity, and their conscientious attachment to the law, no doubts or suspicions have been entertained. The corruption of Tressilian and the unprincipled violence of Jeffreys, have never been repeated. The utmost that can be said is, that, historically speaking, the judicial bias in political causes has been naturally and inevitably in favour of the Crown. Anyone who follows the State trials, will perceive that the judges, in their interpretations of law, and still more in their sentences, reflect too lively an image of the inclination of the Government of the day; mild when the minister is moderate, severe when he is intemperate. Such has been the fault of the judges of England; but one which, seldom pushed to any great extent, even in language,

and never to any violent or palpable misconstruction of law, is perhaps as slight a stain upon the ermine of justice as human nature will permit. Happily, too, precedents are now so numerous, and so carefully recorded, that a judge cannot, in the face of the Bar and of the country, very greatly deviate from the line of duty. Hence, the confidence of the people in the impartial distribution of justice still remains entire; so much so, indeed, that he who takes a view of our imperfect code, together with the attachment borne to it by the people, will see that the honest administration of the law reconciles the country to many defects in the law itself.

The two other Powers may be properly called the Executive and the Deliberative. The term Legislative implies merely making laws, which, in no State that I remember, has been totally disjoined from the Executive. These two powers are, in fact, in every constitution, continually influencing and acting upon each other. In Parliament composed of King, Lords, and Commons, resides the supreme government of this nation: the two Houses of Parliament constitute the great council of the King; and upon whatever subject it is his prerogative to act, it is their privilege to advise. Acts of executive government, however, belong to the King; and should Parliament not interfere, his orders are sufficient. In legislation, nothing is valid, unless by the concurrence of all three.

The three branches of the legislature form what has been called the balance of the constitution: it would have been more just to have compared them to what is called in mechanics, a combination of forces; for the combined impression, the vis impressa received from the three powers, decides the direction of the whole.

The House of Commons, as it has before been

observed, was intended to represent the people at large; and up to the time of the Revolution, it had been found to do so sufficiently well. Even the pensioner Parliament of Charles II. had, in its last days, spoken fairly the sense of the people. In the beginning of William's reign, therefore, the House of Commons may be considered as a just representative of the nation.

The next element of the legislature was the House of Lords.

The Peerage serves two great purposes in our constitution.

First, it is a great and splendid reward for national services, whether by sea or land, in the navy or the army, in the king's council or on the judge's bench: it places a stamp upon eminent merit, and constitutes the posterity of the ennobled person a perpetual image of his achievements, and a memorial of their recompense. Secondly, the House of Peers collectively form a council for weighing, with caution and deliberation, the resolutions of the House of Commons. If the more popular assembly is sometimes led away, as it is natural it should be, by sudden impulses or temporary clamour, this hereditary senate may interpose its grave and thoughtful opinions, to suspend the effect of an intemperate vote. In the possession of such an assembly, indeed, consists the difference between a constitution of pure democracy and one of mutual control. The United States of North America, therefore, which is strictly a government of mutual control, is not without its Senate, as well as its House of Representatives.

Such is the Parliament or deliberative power of England.

The next object of importance to a State is, to place, in hands worthy to hold it, the power of negotiating treaties; of deciding upon foreign relations;

of directing, in time of war, the operations of fleets and armies; and, in short, all that is called the Executive Power. This power has been generally disposed of in one of two ways.

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The first is, that of putting it into the hands of one person, called an Emperor, Sultan, or King, without any control. The obvious disadvantage of this mode is, that talent is not hereditary; and, as it was well put by Lord Halifax, 'no man chooses a coachman because his father was a coachman before him.' It is a necessary consequence of this form of government, that the peace and security of the State entirely depend upon one ill-educated man; for it is extremely difficult, if not impossible, that, in an absolute monarchy, a king should receive a good education. All his passions and all his follies are indulged; his ignorance is called genius, and his imbecility wisdom.* But, above all, no object can be offered to him that can excite labour or emulation. Other men, whether nobles or artisans, can only be distinguished from amongst their equals by the excellence of their moral character, the superiority of their talents, the wealth they have inherited or acquired, or the advantages they have derived from industry. But a king, without any exertion, moral or intellectual, is placed above every one. Hence, in utter dearth of all useful ambition, he tries to be celebrated by driving,† or fiddling, or some other art of easy attainment; or else, which is much worse, he aims at fame by commanding armies, and destroying provinces. The State, in the meanwhile, totally under his guidance, becomes weak with his weakness, vicious with his vice, poor with his extravagance,

* Bred up in ignorance and sloth,

And ev'ry vice that nurses both.'-Swift.

† 'Il excelle à conduire un char dans la carrière.'-Racine. See also Bacon's Essays.