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Mr. Capel ton. The rule proves itself by its utility and neceffity.


It should feem, from another paffage in Mr. Burke, that not one of the three branches of the legiflature could be conftitutionally annulled by its own confent, and that of the other two, founded on the most express and general declaration of the public will for the change: they have then each a several, absolute, indefeasible right in the most perfect fenfe and by the fame reason, two or one would have had the fame right, if no more had existed; and they could not, I prefume, have confented to the creation of a co-ordinate power, any more than to the extinction of their own. Tot is, ftrict and neceffary analogy feems to carry Mr. Burke: if fo, it may shake his faith hereafter as to the legitimate existence of an house of commons. It will not shake mine: I know that the creation of new, or extinction of actual legislative powers, is neceffarily and clearly beyond the limits of the ordinary legislature: but to fay the nation cannot proceed thus far without exceeding the bounds of moral competence; without breach of reafon, faith, juftice, and fixed policy, appears nothing less than faying, that it is morally incompetent to any people to have a better conftitution than that which, on their first forming themselves into civil fociety, happened to be adopted.

I feel very different emotions from those of pleafure, in being obliged to diffent from Mr. Burke; but I find another point which compels me to ex



prefs my diffent: his denial of the refponfibility of Mr. Capel the king to the public.

I know that Mr. Burke may find a statute in which that refponsibility is denied; denied not only of a representative public in the ordinary state of the conftitution, but of the people, in any the moft extraordinary and fulleft expreffion of their will. He may find (or rather he has found in both inftances) the fame denial, in a triumphant fpeech* from a tribunal of juftice, when the monarchy fat in judgment on its late victors. He will certainly, I apprehend, not hear from any fociety or individual, any mention made, or intimation given, of a reprefentative public, to which in the fettled ftate of the conftitution the king is refponfible: but if the house of lords fhould arrogate to itself exclufively the powers of both, or either of the other branches; if the houfe of commons fhould declare its pleasure to fit till it fhould diffolve itself, that houfe of lords and that houfe of commons would. be refponfible in right; and I trust the spirit of the nation would reduce that refponfibility to fact. Nothing can be more clearly in the house of lords than the judicial power: and it would be impoffible for both, or either of the co-ordinate powers of the conftitution to interfere coercively, by way of fentence, in cafe of mifapplication or non-ufe of that power. Yet in this right, which it poffeffes in a peculiar and undoubted manner, it is unquef

* By Sir Orlando Bridgeman, on the trial of the regicides.



Mr. Capel tionably refponfible to the nation; and has certainly no other political refponfibility, in a ftrict and direct fenfe.

The constitutional doctrine is, certainly, that the king is not criminally refponfible to the ordinary legiflature, nor any of its branches, to either or both the other. And the conftitution provides exprefsly for that refponfibility alone, which can be incurred while it exifts unfubverted. While it does thus exift, none of its feparate powers can fo act as to be amenable to the others. But whichever branch, by affuming an exorbitant authority, deftroys the conftitutional equilibrium, deprives itself of its immunities as a part of the conftitution, and becomes neceffarily refponfible to the judgment of the community, by whofe fole arbitrement fuch infraction can be remedied.

A king, or governors of any defignation, irrefponfible to the community in cafes which exclude all other means of redrefs, would be as monstrous an incongruity, compared with the univerfal principles and neceffary end of government, as a king in the ordinary state of the British government, responsible for measures which, in such state, must always have been refolved and executed by minifters in their known departments; who have a direct refponfibility, in fome cafes, to the fubordinate courts of juftice, and in all to parliament. Mr. Burke admits, that war may be juftifiable by neceffity against a king: that punishment may be justified, if inflicted" with a regard to dignity,"



and the decorous gravity of national juftice; for Mr. Capel that "the punishment of tyrants is a noble and "awful act, and has, with truth, been faid to be "confolatory of the human mind." It would, after this, appear fufficient to remark, that the only refponfibility of which, at this day, any man can expect to hear, is that which Mr. Burke has exprefsly, and with becoming ardour, recognized. But this conceffion feems not long retained with confiftency.

For, if Mr. Burke has learnt that all perfons are individually and collectively under the king, he has learnt more than can be well reconciled to any cafe or form of responsibility: he has learnt more from the law than Bratton found in it; whofe king, greater than the parts, is inferior to the aggregate ; fingulis major, univerfis minor. He has learnt more than the most eminent, and not ambitiously popular, of our modern lawyers, who quote with approbation this aphorifm of Bracon.

If Mr. Burke, after his experience in courts and fenates, and the best societies (they are called the beft) at home and abroad, remains perfuaded, that words are strictly reprefentative and clearly difcriminative of powers, it may be too much to queftion the fenfe annexed to the ftyle by which our law fpeaks of the king, "our fovereign lord."

Otherwife it might be faid, with apparent probability, that it only denoted his pre-eminence as the firft executive over the fubordinate magiftracies; and not a proper political fovereignty, fuch as



Mr. Capel derivatively is afcribed to the legislature, figuratively

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to the conftitution, properly and absolutely to the people. But if it would not bear a meaning correspondent to the principles of constitutional freedom, it would be preferable to endure, or to disuse, a complimental folecifm, rather than to permit a form of expreffion to be an inftrument of infringing or obfcuring public and fubftantial rights. And Mr. Burke, fenfible of the facility with which titles of the lowest fubmiffion may veil the invidious glare of the proudest domination, might as commodiously be reconciled to the poffibility of pompous titles accompanying a limited and moderate authority.

There is much and elegant declamation on hereditary privileges in the crown, the lords, and the commons; a conftitutional inheritance in rights and liberties, illustrating the dignity of the people. And where antiquity has been attended with uniform examples of wifdom and virtue, it reflects a luftre on thofe bodies which are thus diftinguifhed. How far the wisdom and virtue of our two houses, how far the conduct even of the nation itself has maintained inviolate this inheritance of glory, I would not digrefs fo far as to state on this occafion. But whatever privileges, whatever glory are inheritable from civil inftitution, the rights of men, the honour of intellectual and moral agents, the illuftrious rank of men determined to be free, is of date far higher, and of origin tranfcendently more venerable. It is an inheritance coeval with the com


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