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CHA P. XVI.

OF OFFENCES AGAINST THE STATE

I

T may appear fingular, that I should Reafons for

confidering

attempt to explain and enforce the duties thefe offences,

of individuals towards the fociety, by confi

dering their breach and violation of them. Were this the point, from which I had originally started the fubject, I should certainly have pursued another courfe; but as what has been already offered will I hope fatisfy that clafs of my readers, who admit of the obligation to obferve and comply with thefe duties virtutis amore, so I feel it incumbent upon me to throw this obligation into a new light, for the conviction of thofe, who cannot otherwife than formidine pæne be induced to fubmit unto it.

Nothing is more true, than that the bafis and whole superstructure of our constitution is formed of true liberty; which confifts in the prefervation of order for the protection of fociety, not in the abandoned licentiousness of confufion and anarchy. The liberty of a nation is ever proportioned to the perfection the perfection of govern- government. of its government; the perfection of Hh 2

ment

The liberty of a tioned to the

nation propor

energy of its

Contempt of

the laws an inPary to the na

10.1.

ment is known by its energy, and that is nothing more, than the efficacy and facility, with which the executive power can enforce the laws. The laws are the direct emanations of the fovereignty of the whole; the consent of every individual of the community is formally included in each of the laws; and the contempt and violation of them is therefore more properly infulting to the nation, who have made the laws, than to the magiftrates, whofe duty it is to execute them. The law is the unanimous will of the whole community; for the conclufion of the whole by the act of the majority does away the prefumptive poffibility of a diffenting individual. In this great truth is engendered the peculiar vigour of our conftitution. Because our laws are framed, totius regni affenfu, as Fortescue obferves; therefore is the whole kingdom indifpenfably bound to the obfervance of them. From this affent of each individual arifes a right and intereft, which the community poffeffes collectively and individually, in the actual performance of the covenant and engagement, which at the paffing of every law each individual enters into for the performance and obfervance of it. Although the government itfelf is faid to be founded in the original compact between the governors

and

and governed; yet the fubfiftence of the government depends not only upon the continuation of that original contract, but in this mutual and reciprocal covenant, engagement, or contract of every individual to abide by and enforce his own voluntary act and deed; for it is a firft principle of our conftitutional policy, that every law of England is the free, unbiaffed, and deliberate act of every English

man.

It is but to fuch a political government as ours, that these, I may almost say, metaphyfical truths can be applied; they have no foundation in the first principle of the civil law, quod principi placuit, legis habet vigorem. As the will of the prince is not under the controul of the people, they have no participation in the act impofed upon them; and its coercive obligation can be urged against the people upon no other ground, than that of a fervile, timid, or compulfive acquiefcence in the arbitrary dictates of an uncontroulable power. The operative coercion and energy of a British act of parliament can never be fo clearly feen, as when viewed in antithefis to the defpotic mandates of an arbitrary monarch. If we could bring ourselves even to conceive a contract or compact between a people and an abfolute defpotic fovereign, Hh 3

yet

Our laws bind

ing upon each

individual, be

caufe every one

affents to their

paffing.

This reafon apbitrary go

plies not to ar

vernments.

yet as the whole legislative power rests folely in him, it neceffarily and effentially precludes the very poffibility of any mutual and reciprocal covenant, engagement, or contract of the individuals with each other; and this is the vivifying fap, that pervades every fibre of our conftitution.

Into what an extravagant error do not they fall, who attempt to justify by the spirit of the English conftitution the oppofition and refiftance of individuals to the establishment of its government? For if there can tion of England exift upon earth a government of human

The conftitu

peculiarly

adapted to enforce fubordi

nation.

institution, that emphatically and effentially condemns and precludes fuch anomalous efforts of the difcontented members of a community to disturb or fubvert the estabdifhment of the whole fociety, it is the constitution of Great Britain. In arbitrary regal governments, where the will of the fovereign makes the law, the aggrieved fubject is immediately challenged by the oppressive mandate of his fovereign to protect his own natural rights by perfonal refiftance. There is no intervening lenitive between his judgment and his feelings; the mental condemnation of an unreasonable command is as quickly fucceeded by the impulfe to refift it, as the report fucceeds the flash of a difcharged muf

quet,

quet. Nothing fhort of the ftricteft paffive obedience and non-refiftance can enfure to an arbitrary fovereign the univerfal fubmiffion of his fubjects. In regal governments was this doctrine engendered, fostered, and reared; and when our kings wifhed or attempted to erect themselves into regal arbitrary fovereigns, they attempted at the fame time to tranfplant it into this country; but the foil and climate of a political government, fuch as ours happily is, were little congenial with the nature of the plant. In the unnatural heat of exceffive prerogative under the Tudors and Stuarts it was forced into a puny exotic shoot, that drooped, withered, and decayed, when exposed to the natural foil and open free air of the English conftitution.

Few or none of my readers are ignorant of the fatal effects, which have proceeded from the rancorous differences and difputes upon this doctrine, that formerly divided and difgraced our unhappy country. It has stained with blood and infamy the field, the judicature, the fenate, and the church. Of this, as of most other party differences in this country, it may most truly be faid, «The heat of honeft men being once raised, and the cooler

* Yorke's Confid. on the Law of Forfeiture, p. 3.

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