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William Paley.

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of men of great estates will be returned to par-
liament ; and are also so modified, that men the
most eminent and successful in their respective
professions, are the most likely, by their riches, or
the weight of their stations, to prevail in these
competitions.

The number, fortune, and quality, of the mem-
bers ; the variety of interests and characters
amongst them; above all, the temporary dura-
tion of their power, and the change of men which
every new election produces ; are so many secu-
rities to the public, as well against the sulijection
of their judgments to any external dictation, as
against the formation of a junto in their own
body, sufficiently powerful to govern their de-
cisions.

The representatives are so intermixed with the
constituents, and the constituents with the rest
of the people, that they cannot, without a par-
tiality too flagrant to "be endured, impose any
burthen upon the subject, in which they do
not share themselves; nor scarcely can they
adopt an advantageous regulation, in which
their own interests will not participate of the
advantage.

The proceedings and debates of parliament, and
the parliamentary conduct of each representative,
are known by the people at large.

The representative is so far dependent upon
the constituent, and political importance upon
public favour, that a member of parliament cannot
more effectually recommend himself to eminence
and advancement in the state, than by contriving
and patronizing laws of public utility.

When intelligence of the condition, wants, and
occasions, of the people, is thus collected from
every quarter; when such a variety of invention,
and so many understandings, are set at work upon
the subject ; it may be presumed, that the most
eligible expedient, remedy, or improvement, will
occur to some one or other : and when a wise
counsel, or beneficial regulation, is once suggested,
it may be expected, from the disposition of an
assembly so constituted as the British House of
Commons is, that it cannot fail of receiving the
approbation of a majority.

To prevent those destructive contentions for
the supreme power, which are sure to take place
where the members of the state do not live under
an acknowledged head, and a known rule of suc-
cession ; to preserve the people in tranquillity at
home, by a speedy and vigorous execution of the
laws ; to protect their interest abioad, by strength



and energy in military operations, by those advar^
tages of decision, secrecy, and despatch, which
belong to the resolutions of monarchical coun-
cils; — for these purjxises, the constitution has
committed the executive government to the ad-«
ministration and limited authority of an hereditary
king.

In the defence of the empire; in the main-
tenance of its power, dignity, and privileges with
foreign nations ; in the advancement of its trade
by treaties and conventions ; and in the providing
for the general administration of municipal jus-
tice, by a proper choice and appointment of ma-
gistrates ; the inchnation of the king and of the
people usually coincides ; in this part, therefore,
of the regal oflice, the constitution entrusts the
prerogative with ample powers.

The dangers principally to be apprehended
from regal government, relate to the two articles
taxation and j->unishmcnt. In every form of go-
vernment, from which the people are excluded, it
is the interest of the governors to get as much,
and of the governed to give as little, as they can :
the power also of punishment, in the hands of an
arbitrary prince, oftentimes becomes an engine of
extortion, jealousy, and revenge. Wisely, there-
fore, hath the British constitution guarded the
safety of the people, in these two points, by the
most studious precautions.

Upon that of taxation, every law which,
by the remotest construction, may be deemed
to levy money upon the property of the sub-
ject, must originate, that is, must first be pro-
posed and assented to, in the House of Com-
mons : by which regulation, accompanying the
weight which that assembly possesses in all
its functions, the levying of taxes is almost ex-
clusivelj' reserved to the pojjular part of the con-
stitution, who, it is presumed, will not tax them-
selves, nor their fellow-subjects, without being
first convinced of the necessity of the aids wlrieh
they grant.

The application also of the public supplies, is
watched with the same circumspection as the as-
sessment. Many taxes are annual ; the produce
of others is mortgaged, or appropriated to specific
services : the expenditure of all of them is ac-
counted for in the House of Commons ; as com-
putations of the charge of the purpose for which
they are wanted, are jjreviously submitted to the
same tribunal.

In the infliction of ■punishment, the power of
the crown, and of the magistrate appointed by the
crown, is confined by the most precise limitations :
the guilt of the offender must be pronounced by
twelve men of his own order, indifi'erently chosen
out of the county where the oflence was com-
mitted : the punishment, or the limits to which
the punishment maybe extended, are ascertained,
and affixed to the crime, by laws which know not
the person of the criminal.

And whereas arbitrary or clandestine confine-
ment is the injury most to be dreaded from the
strong hand of the executive government, because
it deprives the prisoner at once of protection and
defence, and delivers him into the power, and to
the malicious or interested designs, of his enemies ;
the constitution has provided against this danger
with double solicitude. The ancient writ of ha-
beas corpus, the last habeas-corpus act of Charles
the Second, and the practice and determinations
of our sovereign courts of justice founded uj)on



OF THE BRITISH CONSTITUTION.



125



these laws, afford a complete remedy for every
conceivable case of illegal imprisonment.*

Treason being that charge, under colour of
which the destruction of an obnoxious indi\idual
is often sought ; and government being at all
times more immediately a party in the prosecu-
tion ; the law, beside the general care with wliich
it watches over the safety of the accused, in this
case, sensible of the unequal contest in which the
subject is engaged, has assisted liis defence with
extraordinary indulgences. By two statutes,
enacted since the Revolution, every person in-
dicted for high treason shall have a copy of liis
indictment, a list of the witnesses to be produced,
and of the jury impannelled, delivered to him ten
days before the trial ; he is also permitted to make
his defence by counsel : — privileges which are not
allowed to the prisoner, in a trial for any other
crime : and, what is of more importance to the
party than all the rest, the testimony of two wit-
nesses, at the least, is required to convict a person
of treason ; whereas, one positive witness is suf-
ficient in almost every other species of accusation.

W e proceed, in the second place, to inquire in
what manner the constitution has provided for its
own preservation ; that is, in what manner each
part of the legislature is secured in the exercise
of the powers assigned to it, from the encroach-
ment? of the other parts. This security is some-
times called the balance of the constitution : and
the political equilibrium, which this phrase de-
notes, consists in two contrivances ; — a balance of
power, and a balance of interest. By a balance of
power is meant, that there is no power possessed
by one part of the legislature, the abuse or excess
of which is not checked by some antagonist power,
residing in another part. Thus the power of the
two houses of parliament to frame laws, is checked
by the king's negative : that, if laws subversive of
regal government should obtain the consent of
parliament, the reigning prince, by interposing his
prerogative, may save the necessary rights and
authority of his station. On the other hand, the
arbitrary apphcation of this negative is checked
by the privilege which parliament possesses, of re-
fusing supplies of money to the exigencies of the
king's administration. The constitutional maxim,
"tliat the king can do no wrong," is balanced by



* tlpon complaint in writing by, or on behalf of, any
person in confinement, to any of the four courts of
Westrainster-Hall, in term-time, or to the Lord Chan-
cellor, or one of the Judges, in the vacation ; and upon
a probable reason being suggested to question the le-
gality of the detention ; a writ is issued to the person
in whose custody the complainant is alleged to be,
commanding him, within a certain limited "and short
time, to produce the body of the prisoner, and the au-
thority under which he is detained. Upon the return of
the writ, strict and instantaneous obedience to which is
enforced by very severe penalties, if no lawful cause of
imprisonment appear, the court or judge, before whom
the prisoner is brought, is authorized and bound to
discharge him ; even though he may have been com-
mitted by a secretary, or other high officer of state, by
the privy-council, or by the king in person : so that no
subject of this realm can be held in confinement by any
power, or under any pretence whatever, provided he can
tind means to convey his complaint to one of the four
courts of Westminiter-Hall, or, during their recess, to
any of the Judges of the same, unless all these several
tribunals agree in determining his imprisonment to be
legal. He may make application to them in succession ;
and if one out of the number be found, who thinks the
prisoner entitled to his liberty, that one possesses au-
thority to restore it to him.



another maxim, not less constitutional, '' that the
illegal conmiands of the king do not justify those
who assist, or concur, in carrying them into exe-
cution;" and b}^ a secojid rule, subsidiary to this,
" that the acts of the crown acquire not a legal
force, until authenticated by the subscription of
some of its great officers.'" The wisdom of this
contrivance is worthy of observation. As tlie
king could not be punished, without a civil war,
the constitution exempts his person from trial or
account ; but, lest this impunity should encourage
a licentious exercise of dominion, various obsta-
cles are opposed to the private will of the so^■e-
reign, when directed to illegal objects. The
pleasure of the crown must be announced with
certain solemnities, and attested by certain officers
of state. In some cases, the royal order must be
signified by a secretary of state ; in others it must
pass mider the privy seal : and, in many, under
the great seal. And when the king's command
is regularly published, no mischief can be achieved
by it, without the ministry and compliance of
those to whom it is directed. Now all who either
concur in an illegal order by authenticating its
publication with their seal or subsciiption, or who
in any manner assist in carrying it into execution,
subject themselves to prosecution and punishment,
for the part they have taken ; and are not per-
mitted to plead or produce the command of the
king in justification of their obedience.* But
farther: the power of the crown to direct tlie
military force of the kingdom, is balanced by the
annual necessity of resorting to parliament for the
maintenance and government of that force. The
power of the king to declare war, is checked by
the privilege of the House of Commons, to grant
or withhold the supplies by which tht. war must
be carried on. The king's choice of his ministers
is controlled by the obligation he is under of ap-
pointing those men to offices in the state, who are
found capable of managing the affairs of his go-
verninent, with the two houses of parliament.
Wliich consideration imposes such a necessity
upon the crown, as hath in a great measure sub-
dued the influence of favouritism ; insomuch that
it is become no uncommon spectacle in this coun-
try, to see men promoted by the king to the high-
est offices and richest preferments which he has
in his power to bestow, who have been distin-
guished by their opposition to his personal in-
clinations.

By the balance of interest, which accompanies
and gives efficacy to the balance of ■power, is
meant this ; — that the respective uiterests of the
three estates of the empire are so disposed and
adjusted, that whichever of the three shall attempt
any encroachment, the other two will unite in re-
sistinjT it. If the kins should endeavour to extend



* Amongst the checks which Parliament holds over
the administration of public affairs, I forbear to men-
tion the practice of addressing the king, to know by
whose advice he resolved upon a particular measure :
and of punishing the authors of that advice, for the
counsel they had given. Not because I think this me-
thod either unconstitutional or improper ; but for this
reason, — that it does not so much subject the king to
the control of Parliameiu, as it supposes him to be
already in subjection. For if the king were so far out
of the reach of the resentment of the House of Com-
mons, as to be able with safety to refuse the informa-
tion requested, or to take upon himself the respon-
sibility inquired after, there must be an end of all pro-
ceedings founded in this mode of application.
11*



126



MORAL AND POLITICAL PHILOSOPHY.



his authority, by contracting the power and pri-
vileges of the Commons, the House of Lords
would see their own dignity endangered by every
advance wliieli the crown made to independency
upon the resolutions of parliament. The admis-
sion of arbitrary power is no less formidable to the
grandeur of the aristocracy, than it is fatal to the
hberty of the republic ; that is, it would reduce the
nobility from the hereditary share they possess in
the national councils, in which their real great-
ness consists, to the being made a part of the
empty pageantry of a despotic court. On the
other hand, if the House of Commons should in-
trench upon the distinct province, or usurp the
established prerogative of the crown, the House
of Loi'ds would receive an instant alarm from
every new stretch of popular povv'er. In every
contest in which the king may be engaged with
the representative body, in defence of his esta-
blished share of authority, he will find a sure ally
in the collective power of' the nobility. An attach-
ment to the monarchy, from which they derive
their own distinction ; the allurements of a court,
in the habits and with the sentiments of which
they have been brought up; their hatred of equa-
lity and of all levelling pretensions, which may
ultimately aflect the i^rivileges, or even the ex-
istence, of their order ; in short, every principle
and every prejudice which are wont to actuate
human conduct, will determine their choice to the
side and support of the crown. Lastly, if the
nobles themselves should attempt to revive the
superiorities which their ancestors exercised under
the feudal constitution, the king and the people
would alike remember, how the one had been in-
sulted, and the other enslaved, by that barbarous
tyranny. They would forget the natural opposi-
tion of their views and inclinations, when they
saw themselves threatened with the return of a
domination which was odious and intolerable to
both.



The reader will have observed, that in describing
the British constitution, little notice has been taken
of the House of Lords. The proper use and de-
sign of this part of the constitution, are the follow-
ing : First, to enable the king, by his right of be-
stowing the peerage, to reward the servants of the
public, in a manner most grateful to them, at a
small expense to the nation : secondly, to fortify
the power and to secure the stability of regal go-
vernment, by an order of men naturally allied to
its interests: and, thirdly, to answer a purpose,
which, though of superior importance to the other
two, does not occur so readily to our observation ;
namely, to stem the progress of popular fury.
Large bodies of men are subject to sudden phren-
sies. Opinions are sometimes circulated amongst
a multitude without proof or examination, ac-
quiring confidence and reputation merely by be-
ing repeated from one to another ; and passions
founded upon these opinions, diffusing themselves
with a rapidity which can neither be accounted
for nor resisted, may agitate a country witli the
most violent commotions. Now the only waj' to
stop the fermentation, is to divide the mass; that
is, to erect dlfterent orders in the community, with
separate prejudices and interests. And this may
occasionally become the use of an hereditary no-
bility, invested with a share of legislation. Averse
to those prejudices which actuate the minds of



the vulgar; accustomed to condemn the clamour
of the populace ; disdaining to receive laws and
opinions from their inferiors in rank; they will
oppose resolutions which are founded in the lolly
and violence of the lower part of the conununity.
Were the voice of the people always dictated by
rellection ; did every man, or even one man, in a
hundred, think for liimsclf, or actually consider
the measure he was about to approve or censure ;
or even were the common people tolerably stead-
fast in the judgment which they formed, I should
hold the interferences of a superior order not only
superfluous, but wrong : for when every thing
is allowed to difference of rank and education,
which the actual state of these advantages de-
serves, that, aiter all, is most likely to be right and
expedient, which a})pears to be so to the separate
judgment and decision of a great majority of the
nation ; at least, that, in general, is right ybr them,
which is agreeable to their fixed oi)inions and de-
sires. But when we observe what is urged as the
public opinion, to be, in truth, the opinion only,
or perhaps the feigned profession, of a few crafty
leaders ; that the numbers who join in the cry,
serve only to swell and multiply the sound, with-
out any accession of judgment, or exercise of un-
derstanding ; and that oftentimes the wisest coun-
sels have been thus overborne by tumult and
uproar ; — we may conceive occasions to arise, in
which the commonwealth may be saved by the
reluctance of the nobility to adopt the caprices, or
to yield to the vehemence, of the common people.
In expecting this advantage from an order of no-
bles, we do not suppose the nobility to be more
unprejudiced than others ; we only suppose that
their prejudices will be different from, and may
occasionally counteract, those of others.

If the personal privileges of the peerage, which
are usually so many injuries to the rest of the
community, be restrained, I see little inconve-
niency in the increase of its number ; for it is only
dividing the same quantity of power amongst
more hands, which is rather favourable to public
freedom than otherwise.

The admission of a small number of ecclesias-
tics into the House of Lords, is but an equitable
compensation to the clergy for the exclusion of
their order from the House of Commons. I'hey
are a set of men considerable by their number and
property, as well as by their influence, and the
duties of their station ; yet, whilst every other pro-
fession has those amongst the national represen-
tatives, who, being conversant in the same occu-
pation, are able to state, and naturally disposed to
support, the rights and interests of the class and
calling to which they belong, the clergy alone are
deprived of this advantage: which hardship is
made up to them by introducing the prelacy into
parliament ; and if bishops, from gratitude or ex-
pectation, be more obsequious to the will of the
crown than those who possess great temporal in-
heritances, they are properly inserted into that
part of tlie constitution, from which much or fre-
quent resistance to the measures of government is
not expected.

I acknowledge, that I perceive no sufficient
reason for exempting the persons of members of
either house of parliament from arrest for debt.
The counsels or suffrage of a single senator,
especially of one who in the management of his
own affairs may justly be suspected of a want of
prudence or honesty, can seldom be so necessary



OF THE BRITISH CONSTITUTION.



127



to those of the public, as to justify a departure
from that wholesome policy, by which the laws of
a commercial state punish and stigmatize insol-
vency. But, whatever reason may be pleaded for
tlieir persoml immunity, when this privilege of
parliament is extended to domestics and retainers,
or when it is permitted to impede or delay the
course of judicial proceedings, it becomes an ab-
surd sacrilice of equal justice to imaginary dignity.

There is nothing in the British constitution so
remarkable, as the irregularity of the popular re-
presentation. The House of Commons consists
of tive hundred and tifty-eight members, of whom
two hundred are elected by seven thousand con-
stituents; so that a majority of these seven thou-
sand, without any reasonable title to superior
Wi'ight or influence in the state, may, under cer-
tain circumstances, decide a question against the
ojiinion of as many millions. Or, to place the
same object in another point of view: If my estate
be situated in one county of the kingdom, I pos-
sess the ten-thousandth part of a single represen-
tative; if in another, the thousandth ; ifin a par-
ticular district, I maybe one in twenty who choose
tw'i representatives; if in a still more favoured
spot, I may enjoy the right of ajjpointing two
myself If I have been born, or dwell, or have
served an apprenticesliip, in one town, I am re-
presented in the national assembly by two depu-
ties, in the choice of whom I exercise an actual
and sensible share of power; if accident has
thrown my birth, or habitation, or service, into
another town, I have no representative at all, nor
more power or concern m the election of those
who make the laws by wliich I am governed, than
if I was a subject of the Grand Signior : and this
partiality subsists without any pretence whatever
of merit or of propriety, to justify the preference
of one place to another. Or, thirdly, to describe
the state of national representation as it exists in
reality, it may be atRrmed, I believe, with truth,
that about one half of the House of Commons
obtain their seats in that assembly by the election
of the people, the other half by purchase, or by the
nomination of single proprietors of great estates.

This is a flagrant incongruity in the constitu-
tion ; but it is one of those objections which strike
most forcibly at first sight. The elfect of all rea-
soning upon the subject is, to diminish the first
impression; on which account it deserves the
more attentive examination, that we may be as-
sured, before we adventure upon a reformation,
that the magnitude of the evil justifies the danger
of the experiment. In a few remarks that follow,
we would be understood, in the first place, to
decline all conference with those who wish to al-
ter the form of government of these kingdoms.
The reformers with whom we have to do, are
they who. whilst they change this part of the sys-
tem, would retain the rest. If any Englishman
expect more happiness to his country under a re-
public, he may very consistently recommend a
new-modelling of elections to parliament; because,
if the King and House of Lords were laid aside,
the present disproportionate representation would
produce nothing but a confused and ill-digested
oligarchy. In like manner we have a controversy
with those writers who insist upon representation
as a natural right ;* we consider it so far only as



* If this rijht be natural, no doubt it must be equal ;
and the right, we may add, of one sex, as well as of the



a right at all, as it conduces to public utility; that
is, as it contributes to the establishment of good
laws, or <as it secures to the people the just ad-
ministration of these laws. These effects depend
upon the disposition and abilities of tlie national
counsellors. Wherefore, if men the most likely
by their qualifications to know and to promote the
public interest, be actually returned to parliament,
it signifies Httle who return them. If the proper-
est persons be elected, what matters it by whom
the}- are elected ? At least, no prudent statesman
would subvert long-established or even settled
rules of representation, without a prospect of pro-
curing wiser or better representatives. This then
being well observed, let us, before we seek to ob-
tain any thing more, consider duly what we al-



Online LibraryWilliam PaleyThe works of William Paley ... : containing his life, moral and political philosophy, evidences of christianity, natural theology, tracts, Horae Paulinae, clergyman's companion, and sermons, printed verbatim from the original editions, complete in one volume → online text (page 31 of 161)