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for a salutary change of opinion on the sub- I say proper sovereignty, because it is in ject of executive government. Nor have fact the only one which in strict propriety is they icen less instructed as to the necessity entitled to that appellation ; for in the nature of such an improvement, from the actual of things there cannot be two supremes ; disposal of thrones which those convulsions the cause and the effect, the parent and the have already p:oduced, and the means em- offspring, the fountain and the stream, cauployed. W'a inay therefore hope the time is not be one and the same, nor can we but drawing nigh, when, notwithstanding the understand which of these respectively is efforts of even a Nipoleon to keep alive an first. It is only through the poverty of impious imposture, we shall hear no more human language that in our speech the three of any thing mysterious about the office, or species of sovereignty have been confounded; sacred * about the person, of any chief ma- as in practice it has also, to the misfortune gistrate of whatever denomiution ; but that of mankind, been generally found, that their commissions and their duties will every- even the third, last, and inferior of the where become subjects of sober reasoning, three, has monopolized all power. In this, and ho est regulation, in like maquer as I say, there is something radically unnatural: those of all interior officers, and thereby and when the order of poliuical nature is rendered subservient to the welfare of nations. ! subverted, we must not be surprised at the It may contribute to this end if we establish | despotism and calamity with which human correct ideas on the nature of sovereignty, society is but too generally deluged. Had the different species of which, although the science of government been as open to perpetually presenting themselves to discussion as physc, astronomy, or cheminds, we are not in the habit of distin- mistry, and had such rewards and honours guishing.
awaited those who had therein enlarged the The word sovereignty has three separate sphere of human knowledge by their significations; and although, for reasons discoveries, as the suffrages of maukind sufficiently obvious, sovereignty is for the have conferred on
a Harvey, a Newmost part ascribed solely to the executive ton; and a Davy, the condition of nation's magistrate, yet, by a little attention to the would ere now have been infinitely more nature of things, it will soon appear, that happy than it is; and the activity and the sovereignty of the chief magistrate, is energies of mankind would have had a the most interior of the three species we better direction than in mutual slaughter, designate by that term. It is observed by for seating on thrones the pests of the huLocke that “ there can be but one supreme 17 race. In the science of government power, to which all the rest are, and must the generality of nations are in the darkest be subservient; yet the legislative being only ignorance, and even the generality of states. a fiduciary power, to act for certain ends, men in mere tincy. Indeed, considering there remains still in the people a supreme the comparatively small progress made in power to remove or alter tue legislative, this science, which, by the way, is to manwhen they find the legislative act contrary to kind more important
than any other (for rethe trust reposed in them "+ Here, then, I ligion, as a revelation from the Deity, I do we see two of the three species of sovereign- not call a science) it would be presumptuous ty; one active, the other, except in elec- in any man to pretend to be a complete tions and on extraordinary occasions, qui- master; but still there are probably some escent ; the one derivative, the other original; few in different nations who have studied it the one limited, the other by nature bound-abstractedly, and who might be able, if opless; a fiduciary or vicarious sovereignty purtunities invited, to introduce valuable inbeing conferied opon, and entrusted to, ihat
provements. legislative which the will and pleasure of the li is not my intention to undervalue, but nation have created for its own service and to make a righe estimate of, the political benefit; while the only underived, absolute, knowledge of statesmen ; and when we or proper sovereignty is that which is, and consider the general motives of action, and must be, inherent in the people.
how little hope a real political reformer can
entertain of ever being admitted into a poli* This word is objected to only when superstitiously or absurdly or servilely ap.
tical party, innch less of arriving at state
advancement, it will not perbaps be un. plied. From wrong or violence of every charitable to remark of statesinen, as Mr. kind, every man's person is as sacred as that Troke, upon his trial in 1794, observed of
other. Inviolability of person, is a the lawyers. As these, according to that mere political invention, unconnected with
gentleman, studied only those parts of the any superstitious fancy.
law, by which they were to shine in WestOn Government, B. 2. C. 13.
minster Hall and get their wealth ; so the
others may, too generally, be thought to voice in its favour, it must, pro tempore, study only those parts of government and assume the functions of both; and there state policy, by which they are to make a should, seem to be nothing in the way of its figure in courts, camps, or senates, and work proposing to the Spanish nation a constitutheir way to high offices in the state. Uo- tion of great perfection. In proportion as, der a government in a state of such purity in that particular, it should aim at simplicity, and vigour, as to make patriotism of in- it would probably succeed. Perhaps it trinsic value to the individual, by raising him would be advisable to confine its inierfe. to distinction, the science of government rence to that end, to three objects, namely, will be properly studied, for preserving the the militia, the legislature, and the execu·
laws and liberties of the people, and ad- tive power; leaving all else to be the work vancing the true glory of the state; but of subsequent legislation. As the imme. when corruption has found its way into the diate end of a constitution is to preserve the legislature, and faction and favouritism are liberties of a nation, should those three the bigh roads to power or to honour, to powers be clearly defined in writing, adopt. seats in a cabinet or the command of armies, ed, and introduced in practice according to all knowledge of the true principles and the written model, all that would be actual. ends of government will go to decay, and ly necessary as the fundamentals of a constatesmen become subtle and expert only in siitution should seem to be provided. I those parts of knowledge by which they can might still be highly expedient, as soon as the come in for a share of the power and spoil legislature should commence its functions, of their country; and a resistance of all that a declaration of rights, after the malireformation will become a conspicuous part ner of our Magna Chaita and Bill of Rights, of their policy.
should, as the very first of its acts, and with But let us return to the affairs of Spain. peculiar solemnity, be passed as a fundane". Considering the condition of her government tal law. Every means ought then to je for nearly three centuries past, it would be adopted, by periodical readings in all couis miraculous, indeed, were her supreme junt: of justice, places of Worship, and seminties composed of none but men, who by their of education ; by the annual oaths of any previous stadies, kad completely qualified legislators and magistrates; and others themselves for state reformers: but we may leinnities; that such fundamental law shou! hope, that, in the present exigency, men in be impressed upon the mind of ine ubit general of talents and integrity hare been nation, that they might understand their pi chosen ; and we have grounds for believing litical rights: nor ought such a fundamenti that some among them are highly enligiitea- law to be capable of the smallest alteratie, eland of the most patriotic sentiments. It by a decision of any less number than thite is to the influence of these eminent indivi- fourths of the legislature.. duals, Spain must chiefly look for salvation. Possibly, Sir, many of your Engli-hi rest'. The Junta are to Spain, what the original ers may not at once perceive the sufficiency Congress was to America, and the first Na- of such a constitution, as above-mentioned, tional Assembly to France. To botii, they for the security of a nation's liberties. Beica may look back with advantage, and in the they can accede to such an opinion, it will present temper of the Spanish inind we perlaps be necessary they should acquire may safely conclude, they will have no great correct ideas of what the militia, and the predeliction for improperly following French legislature of their own country, according examples. Perhaps they may see a closer to its genuine constitution, ought to be : 25 parallel to their own case, in the Conven- well as more constitutional notions of the tion Parliament of England, wbich had at proper office and powers of an English king, once to supply a vacancy in the throne, oc- than are to be derived fiom the slavisb doc. casioned by the abdicarion of James, and to trines introduced with the Bastard of Nuro restore the government by a substantial re- mandy, who, with no better title to the formation, from despotism to constitutional throne of England thou Joseph Mapoleon freedom. But if that way they should cast has to that of Spain, unhappily succeeded their eyes, I trust they will not only review in establishing his dynasty, as well as in althat boasted era in our annals, butlikewise ministering poisons to both our constitutida our subsequent history, and therein see wiat and our law, from the effects of which they they have to avoid.
have not to this day wholly recovered. Although the junta has not in it the pro- In addition to what I have already said in my per character, either of a legislature, or an letters which appeared in your Register ul executive power, yet, from the necessities of the 17th of Sept. and 1st of this month, Cha the case, and on the authority of the general the subject of a militia, and have laid dowa
in the Ægis, let it be observed that were it permanent, then hereditary power, that tyr possible in Spain to arm even a greater pro- ranny by degrees gets established. portion of men than would be armed in Eng- The warlike ancestors of the modern Euhud on restoring the proper English militia, ropeans, not scientifically understanding the or posse comitatus, it ought to be done. viine of their own customs and institutions, Some, and especially those who desire to see were gradually robbed of them, one by one, the arms of a state monopolized by a govern. by men who, instead of the thrones they ment, affect to see danger to the public | ascended, ought, for the most part, to have peace in a nation's being armedi in tranquil been elevated on gibbets. The martial getimes. Now these sagacious persons should nius of the governments spoken of, very earbe called upon to say, what ought to be done ly degenerated in all parts of the continent for securing the public peace, provided no into a feudal system ; while for a few ages weapons of any kind had ever been invented. this curse was warded off from England by If, in consequence of weapons being known the unrivalled institutions of Altred. His to mankind, a monopoly of them in the intuitive genius fully comprehending the exhands ot a government ought to be establish- cellence of the simple constitution of the ed, and it were fit that 49 men of every 50, Saxons, and his exabied virtue disposing hiin or 09 of every 100 should be disarmed; then to perpetuate it, he was to the end of his it must follow, that if no kind of weapon life indefatigable in his endeavours thereto. had ever been inrented, a like proportion, His organization, for police and defence, of that is, 49 in every 50, or 99 in every 100, all men from 15 to 60 years of age, as a ong!t, in some way or other, to be crippied, militia (afterwards called posse comitatus), or, at least, denied the use of a limb, by as well as his exertions for perfecting the adamputing a leg or an arm, to render them ministration of justice, and preserving in harmless. If Spain is to be with a high full purity the trial by jury, would alone hand defended, and Europe delivered, such have' immortalized his memory; which, absurdities onght to be treated with scorn, however, is endeared to us by every other and liberty and arms every where preached. excellence that could enter into the compoRightly understood, they are the political | șition of a man or a king. As the almost christianity by wbich alone nations can be miraculous change, from ruin, anarchy and politically saved.
horrors, of every kind, to prosperity, order We have only to go back to the times and happiness, which he effected, has placed when the sixons, Goihi, and Vandals, es him above all other legislators; and as the tablished themselves in England and in liberties he aimed to preserve were conimnon Spain, to understand the simplicity of their to the Goths and Vandals who settled in system, and the perfect freedom of their Spain, as well as to our Saxon ancestors, the gorernment. “ They followed the chief- Spanish junta cannot do better than to follow tain who led them forth in quest of new such an example, while endeavouring to resettlements, not by constraint, but from store the prosperity of their country. choice; not as soldiers whom he could order With respect to her future legislature, in to march, but as volunteers who offered to which Spain, independent of the inherent - accompany him. They considered their right to freedom which is common to all conquests as a common property, in which mer, inherits constitutional principles simiall had a title to share, as all had contributed lar to our owi), the same simplicity, if she to acquire them." * A whole nation, in its would preserve her future government from emigration, was an army ; in its settlement, corruption, and perpetuate as well her lia militia. It originally elected all its magis- berties as her martial renown, as respects a trales, not excepting the king. I cite not proper militia, ought to be strictly observed, these things to prove a right to liberty', for in the co:istitution of her legislature. Justhat right is inherent in man; but to shew tice requires that representation shall have the simple means of its preservation. In a all practical equality. The independence of nation which is at the same time a rightly or. representatives depends upon the freedom ganized militia, there can be no tyranny. and purity of elections. To these ends, each It is only as a people depart from the simpli- elective body ought to be nunerous, and the city of nature, as they relax in attention delegated power of short duration. To these to essentials, as they allow the eloquence securities, in my own judgment, it would be of the ambitious to lay asleep their own com- advantageous to add the ballot. I am aware mon sense, and as false brethren, avajling of the common objections, which I allow to themselves of circumstances, first steal into be weighty; but I think they are outweigh.
ed by the arguments on the other side. * Rob, Hist, Ch. V. I. 12,
Having proved that, in strictness of speecha
the only proper sovereignty of a state is in nifested their wisdom as well as their virtue, the people, although, except in elections in baving in effect sworn, as I remarked, and on extraordinary occasions, it is quies- allegiance to the liberties of their country. cent, we are here more particularly called It will also follow that here also ought preupon to support this doctrine, as well as 10 eminently to attach the pains and penalties shew a most important principle thence re- against HIGH TREASON.
" Treason," sulung feeling, as I have elsewhere re- says Selden, “ at first concerned matters marked, that a people free and not sovereign " acted against the NATION; afterwards is a contradiction in terms, let it be asked, " it reached to matters ucled agains! the how it has happened that any free nation king ; now it reacheth even to the very could ever lose sight of a principle so clear, thoughts and imaginations of the heart." as that of its own sovereignty ? - In the pure Now, the people's sovereignty has two kids democracies, as Athens for instance, where of ordinary exercise, representative aind para the people in their own persons made the sonal ; that is to say, in legislation a!' ali laws, the principle never could for a mo- other parliamentary proceedings the ;;*; ment be duubied. Are the English, then, act by their representatives, as an indir (supposing them in the full enjoyment of acts through his attorney or bis steun their constitution) less free than the Atheni- but in the election of those represental: 53 ans, merely because, by reason of the extent their sovereignty is personally exercises of their country, they make laws, not in And as a nation's sovereigi ty and liberty are person, but by deplitution. Thin, howe. inseparable, even in idea, it is evident that, ver, has been the principal circumstance whether we contemplate an attempt to de. which has brought the people's sovereignty stroy one or the other, we must pronounce into doubt. That doubt was of course strength it, in the words of Lord Chief Justice Eyre, ened by the powers of the first magistrate in 1794, “ the greatest of all treasons. for carrying all law into execution being visi- This sentiment was strongly telt by the boly ble to the vulgar eye, and, in our own country, junta of Spain, in their struggle against the false notion of a proper sovereignty re- Charles V, near three centuries ago, when siding in the person of the chief magistrate, they made it an article in their celebrated was but too prevalent, in consequence of the Remonstrance, quoted in my last letter (Resuccessful usurpations and the tyrannical pre. gister Oct. 1)“ that no member of the tensions of our Norman kings, and the servile Cortes shall receive an office or pension from gabble of lawyers who affected to derive not the king, either for himself or for any of only all property, but human riglits of every his fainily, under pain of death, and conkind from the throne as the sole fountain; a fiscation of his goods;" for such conduct conceit as absurd as it is detestable. I am in a representative of the people they plainly aware, Sir, of the cavils which special considered as rank treason. And this in pleading adversaries of our liberties may principle is closely allied to the law of Athens start against the doctrine of a proper sove- mentioned by Blackstone (I. 171) who says: reignty being inherent in the people, be- “ In a democracy there can be no exercise cause of the share in making of our laws, of sovereignty but by suffrage, which is the which is enjoyed by the peers and the king; declaration of the people's will
. In all deand shall not stop to say more than a few nocracies therefore it is of the utmost imwords in answer to this supposed objection. portance to regulate by whom, and in what The peers, I presume, are a part of the na- manner, the suffrages are to be given. And tion, subject to the same general laws, and the Athenians were so justly jealous of ibis partaking of the same common liberties; prerogative, that a stranger, who interfered the king himself is likewise subject to the in the assemblies of the people, was punisb. law; and the share he holds in the govern- ed by their laws with death ; because such ment is the creature of the law. The ex
was esteemed guilty of HIGH ception, therefore, if there be one, is too TREASON, by usurping those rights of soinsignificant to affect the great principle vereignty, to which he had no title. In Eng. laid down. As to precedents; all precedents land, where the people do not debate in a colagainst the principles of justice and reason, lective body but by representation, the or the rights of nature, are to be held in exercise of this sovereignty consists in the abhorrence or contempt, as their wickedness choice of representatives." The learned or their folly shall most predominate.
commentator is not here so correct as usual ; If, then, the proper sovereignty of every for the people, who, he grants, delale by reprefree state be necessarily inherent in the peo- sentation, and who of course make laws ly ple, it will follow that the Spanish junta representation, which is indisputably an act have been perfectly correct, and have ma- of sovereignty, are not in this passa a
therein considered as exercising their sove- " the same person, or in the same body of reignty ; which he seems 10 confine to mere magistrates, there can be no liberty." * election; whereas the exercise of that so. But he afterwards maintains, not alto, vereignty is of two kinds, as already no- gether consistently with this aphorism, ticed.
" that the executive power ought to have a One of the main causes of confusion in “ share in the legislature by the power of our ideas of sovereignty has ariseu from an “ rejecting.” But as he wrote under an abso. English chief magistrate having a share in lute monarchy which he wished to amelio, legislation ; whereas it by no means follows, rate, and probably thought a panegyric on that he who is appointed to execute the the government of England was going as far laws shall have any share in the making of as was prudent; and as in this exception to them. According to my recollection, these bis own general rule the people of English functionis are kept perfectly separate in the America, when they separated from the paAmerican States, whether viewed separate- rent state, did uot think proper to follow ly or in union.
him, it remains for the Spanish patriots to This will probably be a serious question decide for themselves. with the Spanish junta. Although they It is also become a maxim, that the pers bave not, indeed, in their oath used the son of the executive magistrate shall be in. word liberty, yet the least enlightened of violable : but, unless it be accompathat assembly most know, that without li- nied with all the advantages of a true resberty the nati n cannot enjoy its “ rights," ponsibility in the ministers of such magis. the preservation of which they have sworn trate, the people do not receive their eqniva: to promote; neither without liberty, as lent for granting this extraordinary privilege, equally evident, can " the general welfare the contract is broken, and itisthen a maxim and happiness of the kingdom" be promot- of absurdity, and full of mischief. . When ed, and it makes part also of their oath to ministerial responsibility is not practically “ promote every thing conducive” to those experienced and certain, the inviolability of ends, Whatever modifications or limita- the magistrate becomes a spare to his innod tions, therefore, of the executive authority cepce, tempting him to all sorts of chicane they shall believe to be for the public good, and corruption for 'onduly influencing the they are indeed bound by their oath to legislature, and for making the pretended adopt; and when we consider the person responsibility of his minister a subject of and the family to whom they have pledged his and their derision. This cnce accom; themselves to adhere, and that, to say no- plished, then, under forms the most sacred thing of the despised Charles, Ferdinand to freedoin, a despotism the most absolute and the two next in succession are in a cap- may be rivetted on the necks of a people. tivity, from which they can never hope to It is to be hoped, therefore, the Spanish re. see them released, we must suppose their formers will exert their utmost vigilance to choice to have been influenced, not by any prevent so dreadtul an evil, and prove to the want they had of their abilities, their world thai they know how to encounter corvirtues ; not by any necessity for hastily fil- ropt influence as well as arbitrary prerogative, ling a vacant throne; but as in fact a matter An inviolab e personage and one who is inof no other importance than its merely fal. capable of a public act beyond the appointling in with the ignorant prejudices of the ment of his ministers who are to be the real multitude, who are not enlightened on the responsible parties, is in a mysterious consubject of civil liberty or in the science of dition which puts one in mind of the Grand govern:nent.
Lama of Thibet, and seems indeed border: They know that, for the preservation of ing upon the state of an imaginary being. liberty, it is necessary that even the most If the Spaniards shall act upon these ideas, limited king shall be incapable of acting by and if their securities for a practice corresa his own will, or otherwise than through mi- pondent to such a theory can be rendered nisiers · who are to be responsible for eifeclual, then indeed, whether a king of euch of his political acts, except merely Spain sill be on a throne at Madrid, or the choice of those agents ; for, as it has captive in a French casile, will, as to affairs been said before, it is not at all neces. in Spain, make no essential difference. A sary that he should have any share in legiala- | council or junta of men who are to be rera tion; and perhaps the beiter opinion is, that ponsible for their own advice and their own in his person the tivo powers of making the acts as executive ministers, may serve the law and executingilie law should never meet. turn; especiaily if a rezint be placed at Montesquien declares that “ when the legis. " lative and executive powers are united in
Spirit of Laws, F. 11. c. 6.