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in which the executive power, or the crown, is placed in relation to the two bodies that concur with it to form the legislature,—the circumstances in which those two assemblies are placed in relation to the crown, and to each other,-and the situation in which all the three find themselves with respect to the whole body of the people. *
• The assertion above made, with respect to the impartiality with which justice is, in all cases, administered in England, not being of a nature to be proved by alleging single facts, I have entered into no particulars on that account. However, I will subjoin two cases, which, I think, cannot but appear remarkable to the reader.
The first is the case of the prosecution commenced in the year 1763, by some journeymen printers, against the king's messengers, for apprehending and imprisoning them for a short time, by virtue of a general warrant from the secretaries of state ; and that which was afterwards carried on by another private individual against one of the secretaries themselves.- In these actions, all the ordinary forms of proceeding used in cases of actions between private subjects, were strictly adhered to: and both the secretary of state and the messengers, were, in the end, condemned. Yet, which it is proper the reader should observe, from all the circumstances that accompanied this affair, it is difficult to propose a case in which ministers could, of themselves, be under greater temptations to exert an undue influence to hinder the ordinary course of justice. Nor were the acts for which those ministers were condemned, acts of evident oppression,
In fine a very remarkable circumstance in the English government (and which alone evinces something peculiar and excellent in its
which nobody could be found to justify. They had done nothing but follow a practice, of which they found several precedents, established in their offices: and their case, if I am well informed, was such that most individuals, under similar circumstances, would have thought themselves authorized to have acted as they had done.
The second case I propose to relate, affords a singular instance of the confidence with which all subjects in England claim what they think their just rights, and of the certainty with which the remedies of the law are in all cases open to them. The fact I mean, is the arrest executed in the reign of queen Anne, in the year 1708, on the person of the Russian ambassador, by taking him out of his coach for the sum of fifty pounds.--And the consequences that followed this fact are still more remarkable. The czar highly resented the affront, and demanded that the sheriff of Middlesex, and all others concerned in the arrest, should be punished with instant death. “But the “queen” (to the amazement of that despotic court, says judge Blackstone, from whom I borrow this fact) “di“rected the secretary of state to inform him that she “ could inflict no punishment upon any, the meanest of " her subjects, unless warranted by the law of the land." An act was afterwards passed to free from arrests the persons of foreign ministers, and such of their servants as they have delivered a list of to the secretary of state. A copy of this act, elegantly engrossed and illuminated, continues judge Blackstone, was sent to Moscow, and an ambassador extraordinary commissioned to deliver it.
nature) is, that spirit of extreme mildness with which justice, in criminal cases, is administered in England: a point with regard to which England differs from all other countries in the world.
When we consider the punishments in use in the other states of Europe, we wonder how men can be brought to treat their fellowcreatures with so much cruelty: and the bare consideration of those punishments would sufficiently convince us (if we did not know the fact from other circumstances) that the men in those states who frame the laws, and preside over their execution, have little apprehension that either they, or their friends, will ever fall victims to those laws which they thus rashly establish.
In the Roman republic, circumstances af the same nature with those just mentioned were also productive of the greatest defects in the kind of criminal justice which took place in it. That class of citizens who were at the head of the republic, and who knew how mutually to exempt each other from the operation of any too severe laws or practice, not only allowed themselves great liberties, as we have seen, in disposing of the lives of the inferior citizens, but had also introduced, into the
exercise of the illegal powers they assumed to themselves in that respect, a great degree of cruelty.*
Nor were things more happily conducted in the Grecian republics. From their democratical nature, and the frequent revolutions to which they were subject, we naturally expect to find that authority used with mildness, which those who enjoyed it must have known to have been precarious; yet such were the effects of the violence attending those very revolutions, that a spirit both of great irregularity and cruelty had taken place among the Greeks, in the exercise of the power of inflicting punishments. The very harsh laws of Draco are well known, of which it was said that they were not written with ink, but with blood. The severe laws of the Twelve Tables among the Romans were in great part brought over from Greece.
And it was an opinion commonly received in Rome, that the cruelties practised by the magistrates on the citizens were only imitations of the examples which the Greeks had given them. *
* The common manner in which the senate ordered citizens to be put to death was, by throwing them headlong from the top of the Tarpeian rock. The consuls, or other particular magistrates, sometimes caused citizens to expire upon a cross; or, which was a much more common case, ordered them to be beaten to death, with their heads fastened between the branches of a fork ; which they called cervicem
In fine, the use of torture, that method of administering justice, in which folly may be said to be added to cruelty, had been adopted by the Greeks in consequence of the same causes which had concurred to produce the irregularity of their criminal justice. And the same practice continues, in these days, to prevail on the continent of Europe, in consequence of that general arrangement of things which creates there such a carelessness about remedying the abuses of public authority.
But the nature of that same government which has procured to the people of England all the advantages we have before described, has, with still more reason, freed them from the most oppressive abuses which prevail in other countries.
That wantonness in disposing of the dearest rights of mankind, those insults upon human
* Cæsar expressly reproaches the Greeks with this fact in his speech in favour of the accomplices of Catiline, which Sallust has transmitted to us - Eodem illo tempore, Græcia morem imitati (majores nostri), verberibus animadrertebant in civeis ; de condemnatis ultimum suppliciurr sumptum.