« PreviousContinue »
in the Egis, let it be observed that were it possible in Spain to arm even a greater proportion of men than would be armed in England on 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 government, 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. It Spain is to be with a high band 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 organized 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 tys ranny 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 proyed that, in strictness of speech,
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 personal; that is to say, in legislation and all other parliamentary proceedings the people act by their representatives, as an individual acts through his attorney or his steward; but in the election of those representatives their sovereignty is personally exercised. And as a nation's sovereignty and liberty are inseparable, even in idea, it is evident that, whether we contemplate an attempt to de stroy 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 ho junta of Spain, in their struggle again Charles V, near three centuries ago, vi they made it an article in their celebr Remonstrance, quoted in my last letter (Re gister Oct. 1) " that no member of the Cortes shall receive an office or pension frot the king, either for himself or for any el his family, under pain of death, and confiscation of his goods; " for such conduc in a representative of the people they plainly considered as rank treason. And this in
the only proper sovereignty of a state is innifested their wisdom as well as their virtue, 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 strength ened 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 ex ception, 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
principle is closely allied to the law of Athens
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 li berty 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 Jing in with the ignorant prejudices of the multitude, who are not enlightened on the subject of civil liberty or in the science of government.
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 ministers 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 necessary that he should have any share in legislation; 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
"the same person, or in the same body of
magistrates, there can be no liberty." * But he afterwards maintains, not altogether consistently with this aphorism, "that the executive power ought to have a "share in the legislature by the power of "rejecting." But as he wrete under an ab-olute 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 parent 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 accompanied with all the advantages of a true responsibility in the ministers of such magistrate, the people do not receive their equivalent 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 innocence, 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 accomplished, 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 candition 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 correspondent to such a theory can be rendered 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 he placed at
* Spirit of Laws, P. 11. c. 6.
their head, for having a leading direction in affairs of state, and with authority of appointment and dismission, for keeping such council to their duty.
If, in the present state of things, the supreme junta should, in the first instance, ap point such a council, to consist of as many members as there are departments of state, and elect a regent, to hold his office until he might be confirmed or superseded by a national legislature; and should themselves exercise in the interim all the functions of such legislature, the happiest results might be expected. But ought a regent himself, who is to represent an absent king, to be in his person, like the king he represents, inviolable and unresponsible? Here is another delicate and perhaps difficult question. For overcoming this and all such difficulties, it is to be hoped the junta will begin their great work at the right end, and proceed according to the order of nature, doing completely what they do at all. Let them in the first instance organize a perfect militia. Then let them constitute a legislature on a model dictated by the principles of liberty. In ordering the elections of the people, they will then find the previous organization of the militia and the enrolments of the people to that end, if well contrived, of incalculable use towards a free choice of representatives, and attended with such dispatch and perfection, that the elections throughout all Spain may be completed at any time in six hours or less. Let them but carry into execution these fundamentals, and with the necessary foresight for the permanence of their work; then all difficulties touching an executive power will vanish, and they may easily make their kings inoffensive while they make inviolable, conditions which doubtless ought to go hand in hand.
have at all times an able deputy to an hetedi
But it may be worth their while to consi-
I am Sir, your obedient servant,
EXPOSITION OF THE PRACTICES AND MA
PATION OF THE CROWN OF SPAIN, AND
FERDINAND VII. (Continued from p. 672.) Will your majesty permit me to remind you, that no alarm need have been given by troops entering as friends and allies, but on the contrary, that it ought to inspire additional confidence? Your majesty will likewise permit me to observe, that the orders given by your majesty, were for a journey with the royal family to Seville, and the troops were to keep open that road. There was no person who was not persuaded that this was for the transport of your majesty and the royal family to America. Your majesty also published a decree to quiet the minds of your subjects in this particular; but as all preparations were made, and it was manifestly seen, that the coast of Andalusia was to see the royal family assembled, despair took possession of the public mind, and the movement of Aranjuez was the consequence. The part I took in it your majesty knows, which was no other than by your command, to go to protect from the fury of the people the object of their hatred, because he was believed to be the proposer of the journey. -Let your majesty ask the emperor of the French, and his imperial majesty will no doubt tell you what he said to me in a letter that he wrote to me at Vittoria, viz. that the motive of his imperial and royal majesty was, to induce your majesty to make some reforms, and to separate from your person the prince of Peace, whose influence was the cause of every calamity.-The universal satisfaction that his arrest produced throughout the whole nation, is an evident proof of the truth of what the emperor declared. As to the rest, your majesty is the best witness that in the midst of the commotion at Aranjuez, not a word was whispered against your majesty, nor against the person one of the royal family; on the contrary, they applauded your majesty with the greatest demonstrations of joy, and prefessions of fidelity to your august person. On this account, the abdication of the throne which you made in my favour, surprized every body, and myself among the rest; for nobody expected it, or would have solicited it. Your majesty yourself communicated your abdication to all your ministers, enjoining them to acknowledge me as their natural lord and sovereign. You communicated it verbally to the diplomatic body, professing that your determination proceeded from your
spontaneous will, and that you had before determined upon it. You yourself told it to your beloved brother, adding, at the same time, that the signature which your majesty had put to the decree of abdication, was the happiest transaction of your life; and finally, your majesty told me personally three days afterwards, that I should pay no atten tion to any assertion of the abdication being involuntary, inasmuch as it was, in every respect, free and spontaneous.-My supposed hatred to France in no respect appeared by my conduct: the contrary will appear by my actions, of which I will give a rapid narrative.-Your majesty had scarcely abdicated the crown in my favour, before . I addressed various letters from Aranjuez to the emperor of the French, which are so many proofs that my principles, with respect to the relations of friendship and strict alliance happily subsisting between the two states, were the same that your majesty had inspired me with, and had yourself inviolably observed. My journey to Madrid was one of the strongest proofs that I could give to his imperial and royal majesty of the unlimited confidence I placed in him, since Prince Murat had entered Madrid the day before with a great part of his army, and the city being garrisoned, it was the same as if I had delivered myself into his hands. During two days of my residence in the capital, I was informed of the particular correspondence of your majesty with the emperor of the French, and I found that your majesty had recently solicited a princess of his family to connect me with it, and to insure more effectually in this way the near union and alliance which was to subsist between the two states. Accommodating myself entirely to these principles, and to the wish of your majesty, I wrote a letter to your majesty, requesting the princess in marriage.-I sent a-deputation to Bayonne to compliment, in my name, his imperial: and royal majesty. A short time afterwards, I induced my beloved brother, the Infant Don Carlos, to set off, that he might pay his respects to the emperor on the frontiers. Not content with this, I myself left Madrid, on the faith of the assurances given me by the ambassador of his imperial majesty, the grand duke of Berg, and general Savary, who had just arrived from Paris, and who intreated an audience to tell me on the part of the emperor, that his imperial majesty only expected of me to follow the system. with regard to France which your majesty adopted; in which case, the emperor would acknowledge me as king of Spain and all the rest would be forgotten. Full of re