ART. VI. Thoughts on the English Government. Addreffed to the quiet god Senfe of the People of England. In a Series of 1. Letters. Letter the Second. The Defign of the firft Letter vindicated Authorities from Records, Law Writers, and others, to support its Doctrines-Hale, Coke, Clarendon, Whitlock, Hooker, Mr. Burke, Mr. Pitt, Lord Thurlow, the prefent Attorney-General-The Expreffion of Three Estates, Three Branches of the Legislature, and King, Lords, and Caminans, confidered Cenfure of Opinions fram Montefquieu, Locke, and other Philofophifing Politicians-Criticism on Blackstone and Woodefon-Defence of the Paragraph profecuted as libellousThe Author's Accufers proved guilty of Præmunire-The Author's Political Creed delivered in Nineteen Propofitions-Expoftulations on the Profecution of Mr. Reeves. 8vo. 196 pp. 3s. Wright. 1799.

THE

HE event following the first of thefe Letters, the profecution of its fuppofed author, J. Reeves, Efq. by the order of the Houfe of Commons, is well-known. The fecond is profeffedly by the fame writer as the firft; and contains a defence of that part of the first, against which the proceeding above-mentioned was inftituted, and a comment at large on the principles it contained.

The crime of making a libellous attack on the constitution of government in a state, ought to have all the clearness of defcription, of which, in its nature, it is capable. What is the conftitution in general, or on the particular points alledged to be attacked, must be laid down with technical definitivenefs; this must be compared with the matter faid to be hostile to it; and nothing can be called a conftitution, or part thereof, but what is by law actually conftituted.

From the direction into which the general attention has been strongly drawn by the impulfe of events, it feems to us, that a full revifion of what has been written or said in the last, and part of the prefent century, on the principles of government, cannot be far diftant. To extend what is above advanced a little further, is to lay down the rules of judgment we thall then be called upon to apply; to guard against a grofs abuse of terms, which will be reforted to, and which has already almost obtained eftablishment; this we shall briefly do here, and particularly as thefe rules are immediately applicable to the work before us.

Having defined what a conftitution is, we therefore go on to confider what are conftitutional principles; this is best done negatively,

negatively, by defcribing what are not fuch. All abstract principles which are directly contrary to the whole, or the greater parts of the conftitution; or the confequences of which, legitimately deduced, are in like manner repugnant to it, are anticonftitutional principles; and all fuch as are not contained in the whole, or fome greater fection of the conftitution directly, or the legitimate confequences of which are not fo contained, are non-conftitutional principles. The term unconflitutional feems most applicable to the latter fet, or principles yet unconftituted; it is, however, generally applied to fuch as are averred to be contrary to the conftitution. Thefe distinctions feem to us, to remove by far the greater part of the ambiguities. on the fubject; we might proceed to the confideration of the remainder, but that we fhall referve until a more immediate neceffity fhall call it forward.

They who maintain principles, either hoftile or foreign to the conftitution, pretend to have made great difcoveries in the true theory of all government; whence the title of theorists, as derived from a circumftance which they hold out as highly honourable to themfelves, and which they have already obtained, may be very properly continued to them. The opponents of this party, as holding no principles but what are contained in terms, or immediately deducible from the conftitution and the laws of the realm, are properly denominated conftitutionalifts.

The author of the Letter before us, falls under the latter defcription; and the vindication of his preceding work, leads -him to confider the power of a king in the Britith conftitution of government. In this he appeals to legal and other autho rities, which have always been held in the highest veneration, fuch as the writings of Coke, Hale, Comyns, and Hooker.

As none of them are fuperior to that of Lord Hale, by the admiffion of all parties, it is chiefly made ufe of here. Hence he fhows, that the king of England polleties monarchical power, with certain qualifications*," and very justly rejecting the term mixed, he calls our's a limited monarchy. This mo narchical power has, in every exere:fe of it, one modification, the king always acts by council or advice. These councils, with Judge Hale, he makes five in number; three ordinary and perpetual, the Privy Council, the King's Council at law, and the Military Council; and two extraordinary or occafional, the Secular, or HIST Parliament, and the Ecclefiaftical, or the

* Hale. + P. 16, "It is known to every pleader, that whenever it is neceffary to fpeak of the king coupled with the Parliament, it must be pleaded His parliament,”

Convocation; and if to these were added, what, for want of a better term offering itself, we fhall call Councils of Inqueft, as Juries, the enumeration feems complete; for juries are held on facts difputed at law; and frequently directed to inform the confcience of the king's reprefentatives, in the Courts of Equitv, and therein are councils to the king; and by parity of reafon, their function is the fame in the courts of common law.

Hence the monarchical power is modified by advice in all cafes, and in fome by advice and confent, as in enacting laws. But the enacting, or making any thing to be law, is a preroga tive of the king, and that power is fo modified, that it can only be excrcifed on a bill prefented to him; which always, in terms, declares itfelf to be a petition, containing the law prayed: to be enaced at full, and the teftification of the advice and confent of each houfe*. This guard to the well-being of the community, the previous advice and confent of both houfes to the matter to be made a law, and the terms in which it is to be enacted, is both abfolutely neceffary and adequate. But the fupreme or enacting power, is undividedly in the king; he does not enjoy it in copartnership with the houfes. It is thus then, in our conftitution of government, that the good effects of a divided legiflature, are fecured to us without the internal conflict and collifion, which muft arife from a feparation of enacting power, by which equal dignity would feem to be invefted in each part; and it poffeffes the fimplicity of undivided fovereignty, without the bad confequences always following it. We must add here, that the writer of this Letter produces, befides the opinion of a great and conftitutional lawyer, which may be called extrajudicial, an exprefs authority of law; from a fource ftill held in the higheft eftimation, "that the king makes the laws by the affent of the Peers and Commons, and not the Peers and the Commons."

* To advise a meafure, feems to imply a higher degree of approba tion than aflent, or confent; it may therefore be faid, that the king never acts without aflent or confent of one of his councils; the greater including the lefs: in the ad H. 5, the Commons claimed to be

enters as well as petitioners in their bills, p. 45; and a parliament is called by the advice and affent of the Privy Council. The pre-eminence of the great council over all others, therefore does not confist in what it poffefes in common with fome (at least) that the king cannot aft without their advice and confent; but that without their advice and confent, he cannot make any thing to be law, which was not law before; or that in their advice, they are not limited by antecedent law, but moral wisdom.

The application of the expreffion, the three eftates to the King, Lords, and Commons in Parliament affembled, now returning again into common ufe, after having been exploded a century ago, is here condemned, and defervedly, as fuggefting an idea of co-ordination between the two houses and the king, whom the conftitution avers to be their head and origin, (caput et principium) and is contrary to the exprefs authority of the laws. A pointed reprobation of this mode of expreffion, from Judge Hale, is here also given; affirming, the king to come in upon a higher denomination and tide, namely, the head of thefe eftates." The other form of expreffion, is obferved to be calculated to diminitla much of the idea of majesty, under which the law reprefents the king to us.

The author fhows, on the authorities of law and hiftory, that all the powers exercifed in the realm, are derived from the Crown. Thus juries are fummoned by theriffs appointed by the crown, or elected by charter granted by it; and that excellent part of our conftitution, the Commons' houfe, to whofe counfels and exertions we owe many of our best liberties and franchises, was conftituted at a period of no very remote antiquity, by the king, with the advice of the peers, holding their titles from the crown.

The letter-writer goes on to demonftrate from law and hiftory, that all the powers exercifed in the conftitution, are derived from the crown, and are fubfidiary; being tranfient or permanent, according to the neceffity of their nature.

cannot paufe to remark on what he fays on the nature of metaphors in general, but proceed to his defence of that which gave alarm in his first Letter. This, with as much of the context as is neceffary, he has reprinted with a commentary, fimply expreffing its literal fenfe, divefted of the figure. They are both ranged in oppofite columns, and are copied here.

The pallage with the metaphor." The paffage without the metaphor. "In fine, the Government of "In fine, the Government of England is a Monarchy; the Mo-England is a Monarchy; the Monarch is the antient flock, from narch is the caput principium et fi which have fprung thofe goodlynis of the High Court of Parliabranches of the Legillature, the ment, or Legiflative Council of the Lords and Commons, that at the realm, the Lords and Commons, fame time give ornament to the that at the fame time refl & dignity tree, and afford fhelter to thofe on the King, and afford protection to who feek protection under it; but the fubje&t; but there are still only thefe are fill only branches, and a Council, and derive their origin, derive their origin and their nutri-and authority from the Monarch; ment from the common Parent; they may be diffolved, and the King

they may be lopped off, and the tree is a tree fill; fhorn indeed of its honours, but not, like them, caft into the fire. The Kingly Government may go on in all its functions without Lords or Commons; it has heretofore done fo for years together, and in our times it does fo, during every recefs of Parliament; but without the King his Parliament is no more. The King therefore alone it is, who neceffarily fubfifts without change or diminution; and from him alone we unceasingly derive the protection of Law and Government.

is a King ill; deprived, indeed, of this part of his dignity, but not lfing his fate, like them, who become private individuals. The Executive Government may go on in all its functions without Lords or Coin mons; it has heretofore done fo for years together, and in our times it does fo, during every recefs of Parliament; but without the King, his Parliament is no more. The King therefore alone it is, who neceffarily fubfifts without change or diminution; and from him alone we unceafingly derive the protec tion of Law and Government." P. 145

From what we have already given from the Letter, the conformity of every fentence of the commentary, and confequently of the original text, to the law, and therefore to the conflitation, is evident; and as to the metaphor of a tree with its. branches lopped off, and caft into the fire, it is very well known that a Parliament may be fuddenly diffolved by the Crown and another of a very different complexion returned; and although we do not in the least pronounce on the merits of the caufe which led to that event; yet at a period comparatively secent, we have feen this happen, furnishing the materials of a very extenfive martyrology*!

The Letter concludes with an expofition of the principles of the writer in a series of propofitions, many of which are deduced from the preceding parts of it. Some are applied to the cenfure of the principles of the theorifts; their new phrafes, preparing the way for new opinions by ftealth, and

The writer fays, among other things, that the tree he had in his conception was the oak; and that it was fuppofed by fome that when he fpeaks of its branches as being lopped, that he added that mean defcription of their fate, to degrade what is fignified by them. Again fo ferious a charge, the following defence inay be as feriously urged. In all our reading, we have met with but one author of repute, whe has treated on the fame fubject. Mr. Locke, in the Effay on the Human Understanding, b. ii, ch. 27, fect. iii. examines the profound queflion, whether a tree can lofe its principium individuationis, as be calls it, its identity as a plant, by this operation; that is, whether " the tree is a tree ftill," according to the firft Letter: and he determines, in exprefs words, that" an oak growing from a plant to a great tree, and then lop'd, is fill the fame oak.”