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for a salutary change of opinion on the subject of executive government. Nor have they been less instructed as to the necessity of such an improvement, from the actual disposal of thrones which those convulsions have already produced, and the means employed. We may therefore hope the time is drawing nigh, when, notwithstanding the efforts of even a Napoleon to keep alive an impious imposture, we shall hear no more of any thing mysterious about the office, or sacred about the person, of any chief magistrate of whatever denomination; but that their commissions and their duties will everywhere become subjects of sober reasoning, and hosest regulation, in like manner as those of all inferior officers, and thereby rendered subservient to the welfare of nations. It may contribute to this end if we establish correct ideas on the nature of sovereignty, the different species of which, although perpetually presenting themselves to minds, we are not in the habit of distinguishing.

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The word sovereignty has three separate significations; and although, for reasons sufficiently obvious, sovereignty is for the most part ascribed solely to the executive magistrate, yet, by a little attention to the nature of things, it will soon appear, that the sovereignty of the chief magistrate, is the most inferior of the three species we designate by that term. It is observed by Locke that "there can be but one supreme power, to which all the rest are, and must be subservient; yet the legislative being only a fiduciary power, to act for certain ends, there remains still in the people a supreme power to remove or alter tue legislative, when they find the legislative act contrary to the trust reposed in them "+ Here, then, we see two of the three species of sovereignty; one active, the other, except in elections and on extraordinary occasions, quiescent; the one derivative, the other original; the one limited, the other by nature boundless; a fiduciary or vicarious sovereignty being conferted upon, and entrusted to, that legislative which the will and pleasure of the nation have created for its own service and

benefit; while the only underived, absolute, or proper sovereignty is that which is, and must be, inherent in the people.

*This word is objected to only when superstitiously or absurdly or servilely applied. From wrong or violence of every kind, every man's person is as sacred as that

of

mere

any other. Inviolability of person, is a political invention, unconnected with any superstitious fancy.

↑ On Government, B. 2, C. 13.

Had

I say proper sovereignty, because it is in fact the only one which in strict propriety is entitled to that appellation; for in the nature of things there cannot be two supremes; the cause and the effect, the parent and the offspring, the fountain and the stream, cannot be one and the same, nor can we but understand which of these respectively is first. It is only through the poverty of human language that in our speech the three species of sovereignty have been confounded; as in practice it has also, to the misfortune of mankind, been generally found, that even the third, last, and inferior of the three, has monopolized all power. In this, I say, there is something radically unnatural: and when the order of political nature is subverted, we must not be surprised at the despotism and calamity with which human society is but too generally deluged. the science of government been as open to discussion as physic, astronomy, or chemistry, and had such rewards and honours awaited those who had therein enlarged the sphere of human knowledge by their discoveries, as the suffrages of mankind have conferred on a Harvey, a Newton; and a Davy, the condition of nations would ere now have been infinitely more happy than it is; and the activity and energies of mankind would have had a better direction than in mutual slaughter, for seating on thrones the pests of the hu man race. In the science of government the generality of nations are in the darkest ignorance, and even the generality of states. men in mere infancy. Indeed, considering the comparatively small progress made in this science, which, by the way, is to mankind more important than any other (for religion, as a revelation from the Deity, I do not call a science) it would be presumptuous in any man to pretend to be a complete master; but still there are probably some few in different nations who have studied it abstractedly, and who might be able, if opportunities invited, to introduce valuable improvements.

It is not my intention to undervalue, but to make a right estimate of, the political knowledge of statesmen; and when we consider the general motives of action, and how little hope a real political reformer can entertain of ever being admitted into a political party, much less of arriving at state advancement, it will not perhaps be uncharitable to remark of statesmen, as Mr. Tooke, upon his trial in 1794, observed of the lawyers. As these, according to that gentleman, studied only those parts of the law, by which they were to shine in Westminster Hall and get their wealth; so the

others may, too generally, be thought to study only those parts of government and state policy, by which they are to make a figure in courts, camps, or senates, and work their way to high offices in the state. Under a government in a state of such purity and vigour, as to make patriotism of intrinsic value to the individual, by raising him to distinction, the science of government will be properly studied, for preserving the laws and liberties of the people, and advancing the true glory of the state; but when corruption has found its way into the legislature, and faction and favouritism are the high roads to power or to honour, to seats in a cabinet or the command of armies, all knowledge of the true principles and ends of government will go to decay, and statesmen become subtle and expert only in those parts of knowledge by which they can come in for a share of the power and spoil of their country; and a resistance of all reformation will become a conspicuous part of their policy.

But let us return to the affairs of Spain. Considering the condition of her government for nearly three centuries past, it would be miraculous, indeed, were her supreme junta composed of none but men, who by their previous stadies, had completely qualified themselves for state reformers: but we may hope, that, in the present exigency, men in general of talents and integrity have been chosen; and we have grounds for believing that some among them are highly enlighteneland of the most patriotic sentiments. It is to the influence of these eminent individuals, Spain must chiefly look for salvation. The Junta are to Spain, what the original Congress was to America, and the first National Assembly to France. To both, they may look back with advantage, and in the present temper of the Spanish mind we may safely conclude, they will have no great predeliction for improperly following French examples. Perhaps they may see a closer parallel to their own case, in the Convention Parliament of England, which had at once to supply a vacancy in the throne, occasioned by the abdication of James, and to restore the government by a substantial reformation, from despotism to constitutional freedom. But if that way they should cast their eyes, I trust they will not only review that boasted era in our annals, but likewise our subsequent history, and therein see what they have to avoid.

Although the junta has not in it the proper character, either of a legislature, or an executive power, yet, from the necessities of the case, and on the authority of the general

voice in its favour, it must, pro tempore, assume the functions of both; and there should, seem to be nothing in the way of its proposing to the Spanish nation a constitution of great perfection. In proportion as, in that particular, it should aim at simplicity, it would probably succeed. Perhaps it would be advisable to confine its interfe rence to that end, to three objects, namely, the militia, the legislature, and the execu tive power; leaving all else to be the work of subsequent legislation. As the immediate end of a constitution is to preserve the liberties of a nation, should those three powers be clearly defined in writing, adopted, and introduced in practice according to the written model, all that would be actual. ly necessary as the fundamentals of a constitution should seem to be provided. It might still be highly expedient, as soon as the legislature should commence its functions, that a declaration of rights, after the manner of our Magna Charta and Bill of Rights, should, as the very first of its acts, and with peculiar solemnity, be passed as a fundamestal law. Every means ought then to be adopted, by periodical readings in all counts of justice, places of worship, and seminaries of education; by the annual oaths of all legislators and niagistrates; and other leinnities; that such fundamental law shoul! be impressed upon the mind of the whole nation, that they might understand their par litical rights: nor ought such a fundamental law to be capable of the smallest alteration, by a decision of any less Dumber than threefourths of the legislature..

Possibly, Sir, many of your English readers may not at once perceive the sufficiency of such a constitution, as above-mentioned, for the security of a nation's liberties. Before they can accede to such an opinion, it will perhaps be necessary they should acquire correct ideas of what the militia, and the legislature of their own country, according to its genuine constitution, ought to be as well as more constitutional notions of the proper office and powers of an English king, than are to be derived from the slavish doctrines introduced with the Bastard of Nur mandy, who, with no better title to the throne of England than Joseph Napoleon has to that of Spain, unhappily succeeded in establishing his dynasty, as well as in administering poisons to both our constitution and our law, from the effects of which they have not to this day wholly recovered. In addition to what I have already said in my letters which appeared in your Register of the 17th of Sept. and 1st of this month, o the subject of a militia, and have laid dow

in the Ægis, let it be observed that were it possible in Spain to arm even a greater proportion of men than would be armed in England oa restoring the proper English militia, or posse comitatus, it ought to be done. Some, and especially those who desire to see the arms of a state monopolized by a govern ment, affect to see danger to the public peace in a nation's being armed in tranquil times. Now these sagacious persons should be called upon to say, what ought to be done for securing the public peace, provided no weapons of any kind had ever been invented. If, in consequence of weapons being known to mankind, a monopoly of them in the hands of a government ought to be established, and it were fit that 49 men of every 50, or 99 of every 100 should be disarmed; then it must follow, that if no kind of weapon had ever been invented, a like proportion, that is, 49 in every 50, or 99 in every 100, ought, in some way or other, to be crippled, or, at least, denied the use of a limb, by amputating a leg or an arm, to render them harmless. If Spain is to be with a high hand defended, and Europe delivered, such absurdities ought to be treated with scorn, and liberty and arms every where preached. Rightly understood, they are the political christianity by which alone nations can be politically saved.

We have only to go back to the times when the Saxons, Goths, and Vandals, established themselves in England and in Spain, to understand the simplicity of their system, and the perfect freedom of their government. "They followed the chieftain who led them forth in quest of new settlements, not by constraint, but from choice; not as soldiers whom he could order to march, but as volunteers who offered to accompany him. They considered their conquests as a common property, in which all had a title to share, as all had contributed to acquire them.” * A whole nation, in its emigration, was an army; in its settlement, a militia. It originally elected all its magistrates, not excepting the king. I cite not these things to prove a right to liberty, for that right is inherent in man; but to shew the simple means of its preservation.

In a

nation which is at the same time a rightly or ganized militia, there can be no tyranny. It is only as a people depart from the simplicity of nature, as they relax in attention to essentials, as they allow the eloquence of the ambitious to lay asleep their own common sense, and as false brethren, availing themselves of circumstances, first steal into

Rob. Hist. Ch. V. I. 12.

permanent, then hereditary power, that tyranny by degrees gets established.

The warlike ancestors of the modern Europeans, not scientifically understanding the value of their own customs and institutions, were gradually robbed of them, one by one, by men who, instead of the thrones they ascended, ought, for the most part, to have been elevated on gibbets. The martial genius of the governments spoken of, very early degenerated in all parts of the continent into a feudal system; while for a few ages this curse was warded off from England by the unrivalled institutions of Alfred. His intuitive genius fully comprehending the excellence of the simple constitution of the Saxons, and his exalted virtue disposing him to perpetuate it, he was to the end of his life indefatigable in his endeavours thereto. His organization, for police and defence, of all men from 15 to 60 years of age, as a militia (afterwards called posse comitatus), as well as his exertions for perfecting the administration of justice, and preserving in full purity the trial by jury, would alone have immortalized his memory; which, however, is endeared to us by every other excellence that could enter into the composition of a man or a king. As the almost miraculous change, from ruin, anarchy and horrors, of every kind, to prosperity, order and happiness, which he effected, has placed him above all other legislators; and as the liberties he aimed to preserve were common to the Goths and Vandals who settled in Spain, as well as to our Saxon ancestors, the Spanish junta cannot do better than to follow such an example, while endeavouring to restore the prosperity of their country.

With respect to her future legislature, in which Spain, independent of the inherent right to freedom which is common to all men, inherits constitutional principles similar to our own, the same simplicity, if she would preserve her future government from corruption, and perpetuate as well her liberties as her martial renown, as respects a proper militia, ought to be strictly observed, in the constitution of her legislature. Justice requires that representation shall have all practical equality. The independence of representatives depends upon the freedom and purity of elections. To these ends, each elective body ought to be numerous, and the delegated power of short duration. To these securities, in my own judgment, it would be advantageous to add the ballot. I am aware of the common objections, which I allow to be weighty; but I think they are outweighed by the arguments on the other side.

Having proved that, in strictness of speech

the only proper sovereignty of a state is in the people, although, except in elections. and on extraordinary occasions, it is quiescent, we are here more particularly called upon to support this doctrine, as well as to shew a most important principle thence resulting. Feeling, as I have elsewhere remarked, that a people free and not sovereign is a contradiction in terms, let it be asked, how it has happened that any free nation could ever lose sight of a principle so clear, as that of its own sovereignty?—In the pure democracies, as Athens for instance, where the people in their own persons made the laws, the principle never could for a moment be doubted. Are the English, then, (supposing them in the full enjoyment of their constitution) less free than the Athenians, merely because, by reason of the extent of their country, they make laws, not in person, but by deputation? This, however, has been the principal circumstance which has brought the people's sovereignty into doubt. That doubt was of course strengthened by the powers of the first magistrate for carrying all law into execution being visible to the vulgar eye, and, in our own country, the false notion of a proper sovereignty residing in the person of the chief magistrate, was but too prevalent, in consequence of the Successful usurpations and the tyrannical pretensions of our Norman kings, and the servile gabble of lawyers who affected to derive not only all property, but human rights of every kind from the throne as the sole fountain; a conceit as absurd as it is detestable. I am aware, Sir, of the cavils which special pleading adversaries of our liberties may start against the doctrine of a proper sovereignty being inherent in the people, because of the share in making of our laws, which is enjoyed by the peers and the king; and shall not stop to say more than a few words in answer to this supposed objection. The peers, I presume, are a part of the nation, subject to the same general laws, and partaking of the same common liberties; the king himself is likewise subject to the law; and the share he holds in the government is the creature of the law. The exception, therefore, if there be one, is too insignificant to affect the great principle laid down. As to precedents; all precedents against the principles of justice and reason, or the rights of nature, are to be held in abhorrence or contempt, as their wickedness or their folly shall most predominate.

If, then, the proper sovereignty of every free state be necessarily inherent in the people, it will follow that the Spanish junta have been perfectly correct, and have ma

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nifested their wisdom as well as their virtue, in having in effect sworn, as I remarked, allegiance to the liberties of their country. It will also follow that here also ought preeminently to attach the pains and penalties against HIGH TREASON. "Treason." says Selden," at first concerned matters "acted against the NATION; afterwards "it reached to matters acted against the king; now it reacheth even to the very thoughts and imaginations of the heart." Now, the people's sovereignty has two kinds of ordinary exercise, representative and pat sonal; that is to say, in legislation and all other parliamentary proceedings the act by their representatives, as an indir acts through his attorney or his stew., but in the election of those representary 3 their sovereignty is personally exercised. And as a nation's sovereigi ty and liberty are inseparable, even in idea, it is evident that, whether we contemplate an attempt to destroy one or the other, we must pronounce it, in the words of Lord Chief Justice Eyre, in 1794, "the greatest of all treasons." This sentiment was strongly felt by the holy junta of Spain, in their struggle against Charles V, near three centuries ago, when they made it an article in their celebrated Remonstrance, quoted in my last letter (Register Oct. 1)" that no member of the Cortes shall receive an office or pension from the king, either for himself or for any of his family, under pain of death, and confiscation of his goods; " for such conduct in a representative of the people they plainly considered as rank treason. And this in principle is closely allied to the law of Athens mentioned by Blackstone (I. 171) who says: "In a democracy there can be no exercise of sovereignty but by suffrage, which is the declaration of the people's will. In all democracies therefore it is of the utmost im portance to regulate by whom, and in what manner, the suffrages are to be given. And the Athenians were so justly jealous of this prerogative, that a stranger, who interfered in the assemblies of the people, was punished by their laws with death; because such a man was esteemed guilty of HIGH TREASON, by usurping those rights of sovereignty, to which he had no title. In England, where the people do not debate in a collective body but by representation, the exercise of this sovereignty consists in the choice of representatives." The learned commentator is not here so correct as usual; for the people, who, he grants, debate by representation, and who of course make laws by representation, which is indisputably an act of sovereignty, are not in this passe

therein considered as exercising their sovereignty; which he seems to confine to mere election; whereas the exercise of that sovereignty is of two kinds, as already noticed.

One of the main causes of confusion in our ideas of sovereignty has arisen from an English chief magistrate having a share in legislation; whereas it by no means follows, that he who is appointed to execute the laws shall have any share in the making of them. According to my recollection, these functions are kept perfectly separate in the American States, whether viewed separately or in union.

This will probably be a serious question with the Spanish junta. Although they

have not, indeed, in their oath used the word liberty, yet the least enlightened of that assembly must know, that without liberty the nation cannot enjoy its " rights," the preservation of which they have sworn to promote; neither without liberty, as equally evident, can "the general welfare and happiness of the kingdom" be promoted, and it makes part also of their oath to "promote every thing conducive" to those ends. Whatever modifications or limitations, therefore, of the executive authority they shall believe to be for the public good, they are indeed bound by their oath to adopt; and when we consider the person and the family to whom they have pledged themselves to adhere, and that, to say nothing of the despised Charles, Ferdinand and the two next in succession are in a captivity, from which they can never hope to see them released, we must suppose their choice to have been influenced, not by any want they had of their abilities, or their virtues; not by any necessity for hastily filling a vacant throne; but as in fact a matter of no other importance than its merely fal ling in with the ignorant prejudices of the multitude, who are not enlightened on the subject of civil liberty or in the science of government.

"the same person, or in the same body of

magistrates, there can be no liberty." * But he afterwards maintains, not alto, gether consistently with this aphorism, "that the executive power ought to have a "share in the legislature by the power of "rejecting." But as he wrote under an abso. lute monarchy which he wished to ameliorate, and probably thought a panegyric on the government of England was going as far as was prudent; and as in this exception to his own general rule the people of English America, when they separated from the pa rent state, did not think proper to follow him, it remains for the Spanish patriots to decide for themselves.

It is also become a maxim, that the person of the executive magistrate shall be inviolable: but, unless it be accompa nied with all the advantages of a true responsibility in the ministers of such magistrate, the people do not receive their equivas lent for granting this extraordinary privilege, the contract is broken, and it is then a maxim of absurdity, and full of mischief. When ministerial responsibility is not practically experienced and certain, the inviolability of the magistrate becomes a snare to his inno cence, tempting him to all sorts of chicane and corruption for unduly influencing the legislature, and for making the pretended responsibility of his minister a subject of his and their derision. This once accom plished, then, under forms the most sacred to freedom, a despotism the most absolute may be rivetted on the necks of a people. It is to be hoped, therefore, the Spanish reformers will exert their utmost vigilance to prevent so dreadful an evil, and prove to the world that they know how to encounter corrupt influence as well as arbitrary prerogative, An inviolable personage and one who is incapable of a public act beyond the appointment of his ministers who are to be the real responsible parties, is in a mysterious condition which puts one in mind of the Grand Lama of Thibet, and seems indeed bordering upon the state of an imaginary being. If the Spaniards shall act upon these ideas, and if their securities for a practice corres

They know that, for the preservation of liberty, it is necessary that even the most limited king shall be incapable of acting by his own will, or otherwise than through mi-pondent to such a theory can be rendered nisters who are to be responsible for each of his political acts, except merely the choice of those agents; for, as it has been said before, it is not at all neces sary that he should have any share in legisla tion; and perhaps the better opinion is, that in his person the two powers of making the law and executing the law should never meet. Montesquien declares that "when the legis "lative and executive powers are united in

effectual, then indeed, whether a king of Spain shall be on a throne at Madrid, or captive in a French castle, will, as to affairs in Spain, make no essential difference. A council or junta of men who are to be res ponsible for their own advice and their own acts as executive ministers, may serve the turn; especially if a regent be placed at

* Spirit of Laws, F. 11. c. 6.

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