to the crown, and to each other, and the situation in 379 which all the three find themselves with respect to the whole body of the people (n).

380

385

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.

Nay, so anxious has the English legislature been to establish mercy, even to convicted offenders, as a fundamental principle of the government of England, that 386 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

(n) The following case 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) "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 arrest the persons of foreign ministers, and such of their servants as they have delivered a list of to the secretary of state. A copy of this act, elegantly engrossed and illuminated, was sent to Moscow, and an ambassador extraordinary commissioned to deliver it.

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." (6)

(6) Human punishment may be considered with regard to its power, end, and measure.

With respect to the power or right of the legislature to enact punishment, any one must see the mischief that would arise, if men were allowed to redress their own grievances. But no man being a proper judge in his own case, the power of enacting punishment is, with the strictest justice, transferred from individuals to the sovereign authority, and thereby one of the evils which civil government was intended to remedy is prevented.

The justice of human punishment can originally be maintained on no other principles than those of the laws of nature, which authorise every man to secure himself against the assaults of others. But with regard to the particular mode of punishment which may be thought best calculated to defend every individual, in his civil capacity, from injury, that must be left to the wisdom and determination of the supreme legislative authority. And it is in vain for any criminal to say, that this or that penalty is too severe for his crime; for it is a maxim of the constitution, that every man is consenting expressly or impliedly to every act of the legislature. The criminal code, therefore, is a constituent part of that original contract into which every man enters when he first becomes a member of society; and was intended to contribute to his personal safety and happiness, till his own folly brought down its terrible vengeance upon his head.

As to the end of human punishment; it is not inflicted by way of revenge for that would be to usurp the prerogative of God, to whom only vengeance belongeth. Neither is it awarded to make an atonement. For every wilful violation of human laws that are not contrary to revelation, is a breach of the moral law; and no human suffering can remove the guilt of the offender, or make whole the law which he has broken. Suffering is the effect of transgression. Now it is utterly impossible that an effect should destroy the cause which produced it. No length of confinement of a debtor, for instance, will discharge the debt which he owes. In short, it is from the Scriptures alone that we learn how sin can be pardoned consistently with the Divine attributes and government. (Rom. ch. 3,

v. 20, 26; 1 Pet. ch. 3, v. 18). The sole design of the legislature in enacting punishments is to prevent the commission of the same crime in future, so as to secure the public safety; therefore these punishments should be merciful in proportion to the crime committed, and not savour of revenge. Crimes are more effectually prevented by the certainty than by the severity of punishment. Great severity of the law has always been found to defeat its own end; for its execution is hindered by public humanity, and the criminal escapes punishment. The certainty of suffering a mild punishment will deter men from breaking the laws much more effectually than (as was very recently the case) the uncertain penalty of death.-EDITOR.

CHAPTER XII.

A more inward View of the English Government.-Very essential Differences between the English Monarchy, (as a Monarchy,) and all those with which we are acquainted. The solidity of the executive authority of the English Crown.

THE doctrine constantly maintained in this work, and 387 which has 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. Hence the anxious care with which those men continue to watch the exercise of that authority. Hence their perseverance in observing every kind of engagement which themselves may have entered into with the rest of the people.

But here a consideration of a most important kind presents itself: How comes the crown in England thus 388 constantly to preserve to itself (as we see it does) the executive authority in the state, and moreover to preserve it so completely as to inspire the great men in the

nation with that conduct so advantageous to public liberty, which has just been mentioned? These are effects which we do not find, upon examination, that the power of crowns has hitherto been able to produce in other countries.

In all states of a monarchical form, we indeed see that those men whom their rank and wealth, or their personal power of any kind, have raised above the rest of the people, have formed combinations among themselves to oppose the power of the monarch. But their views, we must observe, in forming these combinations, were not by any means to set general and impartial limitations on the sovereign authority. They endeavoured to render themselves entirely independent of that authority; or even utterly to annihilate it, according to circumstances.

Thus we see that in all the states of ancient Greece, the kings were at last destroyed and exterminated. The same event happened in Italy, where, in remote times, there existed for a while several kingdoms, as we learn 389 both from the ancient historians and poets. And in Rome, we even know the manner and circumstances in which such a revolution was brought about.

In more modern times, we see the numerous monarchical sovereignties (which had been raised in Italy on the ruins of the Roman empire) successively destroyed by powerful factions; and events of much the same nature have at different times taken place in the kingdoms established in the other parts of Europe. And it has only been by means of standing armed forces that the 390 sovereigns of most of the European kingdoms have been able, in a course of time, to assert the prerogatives of the crown, and support their authority.