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DOWNING PROFESSOR OF LAW IN THE UNIVERSITY OF CAMBRIDGE,
AND LATE MEMBER OF THE SUPREME COUNCIL OF INDIA.
Labu Booksellers and Publishers,
26, BELL YARD, LINCOLN'S INN.
IR WILLIAM BLACKSTONE, in the peroration of his Com
mentaries, thus expresses himself concerning the English Constitution in the reign of King Charles the Second.
Immediately upon the restoration of King Charles the Second the principal remaining grievance, the doctrine and consequences of military tenures, was taken away and abolished, except in the instance of corruption of inheritable blood, upon attainder of treason and felony. And though the monarch, in whose person the regal government was restored, and with it our ancient constitution, deserves no commendation from posterity, yet, in his reign, (wicked, sanguinary, and turbulent as it was,) the concurrence of happy circumstances was such, that from thence we may date not only the re-establishment of our Church and Monarchy, but also the complete restitution of English liberty, for the first time since its total abolition at the conquest. For therein not only these slavish tenures, the badge of foreign dominion, with all their oppressive appendages, were removed from incumbering the estates of the subject; but also an additional security of his person from imprisonment was obtained, by that great bulwark of our constitution, the habeas corpus act. These two statutes, with regard to our property and persons, form a second Magna Charta, as beneficial and effectual
, as that of Running-Mead. That only pruned the luxuriances of the feodal system; but the statute of Charles the Second
extirpated all its slaveries ; except perhaps in copyhold tenure ; and there also they are now in great measure enervated by gradual custom, and the interposition of our courts of justice. Magna Charta only, in general terms, declared, that no man shall be imprisoned contrary to law: the habeas corpus act points him out effectual means, as well to release himself, though committed even by the king in council, as to punish all those who shall thus unconstitutionally misuse him.
“To these I may add the abolition of the prerogatives of purveyance and pre-emption; the statute for holding triennial parliaments ; the test and corporation acts, which secure both our civil and religious liberties; the abolition of the writ de hæretico comburendo; the statute of frauds and perjuries, a great and necessary security to private property; the statute for distribution of intestates' estates, and that of amendments and jeofails, which cut off those superfluous niceties which so long had disgraced our courts ; together with many other wholesome Acts that were passed in this reign, for the benefit of navigation and the improvement of foreign commerce: and the whole, when we likewise consider the freedom from taxes and armies which the subject then enjoyed, will be sufficient to demonstrate this truth, that the constitution of England had arrived to its full vigour, and the true balance between liberty and prerogative was happily established by law, in the reign of king Charles the Second.'
“It is far from my intention to palliate or defend many very iniquitous proceedings, contrary to all law, in that reign. What seems incontestable is this; that by the law, as it then stood, (notwithstanding some invidious, nay dangerous, branches of the prerogative have since been lopped off, and the rest more clearly defined,) the people had as large a portion of real liberty, as is consistent with a state of society; and sufficient power, residing in their own hands, to assert and preserve that liberty, if invaded by the royal prerogative; for which I need but appeal to the catastrophe of the next reign.”
Sir William Blackstone subjoins, in a note, “ The point of time at which I would chuse to fix this theoretical perfection of our public law is in the year 1679; after the habeas corpus Act was passed, and that for licensing the press had expired; though the years which immediately followed it were times of great practical oppression.”
Mr Fox, in the Introduction to his History of the reign of James the Second, adopts Blackstone's remarks, building on them a superstructure of political reflections.
“The reign of Charles the Second forms one of the most singular, as well as of the most important periods of history. It is the era of good laws and bad government. The abolition of the Court of Wards, the repeal of the Writ De Hæretico Comburendo, the Triennial Parliament Bill, the establishment of the rights of the House of Commons in regard to impeachment, the expiration of the License Act, and above all, the glorious statute of Habeas Corpus, have therefore induced a modern writer of great eminence to fix the year 1679 as the period at which our constitution had arrived at its greatest theoretical perfection ; but he owns, in a short note upon the passage alluded to, that the times immediately following were times of great practical oppression. What a field for meditation does this short observation, from such a man, furnish! What reflections does it not suggest to a thinking mind, upon the inefficacy of human laws, and the imperfection of human constitutions! We are called from the contemplation of the progress of our constitution, and our attention fixed with the most minute accuracy to a particular point, when it is said to have risen to its utmost perfection. Here we are then at the best moment of the best constitution that ever human wisdom framed. What follows? A time of oppression and misery, not arising from external or accidental causes, such as war, pestilence, or famine, nor even from any such alteration of the laws as might be supposed to impair this boasted perfection, but from a corrupt and wicked administration,
which all the so-much-admired checks of the constitution were not able to prevent. How vain then, how idle, how presumptuous, is the opinion, that laws can do everything! and how weak and pernicious the maxim founded upon it, that measures, not men, are to be attended to!"
To the like effect, Lord John Russell, in his History of the English Goverment, writes, that in the period of the reign of Charles II., are to be found the worst of governments, the best of laws.” To these eulogies on the Constitution may be added one of Dryden, in his Threnodia Augustalis, on that national felicity which is the natural result of a true balance between liberty and prerogative, and a freedom from taxes and armies.
Our British heaven was all serene,
No threatening cloud was nigh,
We liv'd as unconcern’d and happily
Supine amidst our flowing store,
Already lost before we fear'd.
“Our gracious Prince was dead.”
It is proposed to inquire into the state of the English Constitution in the reign of Charles the Second. If, in the result, it may appear that the Constitution has been subsequently improved rather than deteriorated, it will, nevertheless, be consistent with the history of the country, if bad government should be found to have been productive of good laws; and thus that King Charles II. may stand in unenviable rivalry with King