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and elucidate; and from this resolution long and deliberately made, no prospects, no connections, no station here or abroad, no fear of danger, or hope of advantage to myself, shall ever deter or allure me.
A form of government so apparently conducive to the true happiness of the Community, must be admired as soon as it is understood, and if reason and virtue have any influence in human breasts, ought to be preserved by any exertions, and at any hazard. Care must now be taken, lest by reducing the regal power to its just level, we raise the aristocratical to a dangerous height; since it is from the people that we can deduce the obligation of our laws, and the authority of magistrates.
On the people depend the welfare, the security, and the permanence of every legal government; in the people must reside all substantial power; and to the people must all those, in whose ability and knowledge we sometimes wisely, often imprudently confide, be always accountable for the due exercise of that power with which they are for a time entrusted.
If the properties of all good government be considered as duly distributed in the different parts of our limited republic, goodness ought to be the distinguished attribute of the crown, wisdom of the aristocracy, but power and fortitude of the people.
May justice and humanity prevail in them all!
I am, Sir,
Mr. JONES to Mr. THOMAS YEATES.
Lamb's Buildings, Temple, June 7, 1782. I lately met with some dangerous doctrine concerning the constitution of England, in the works of an admired English writer; the doctrine so dangerous, that an immediate confutation of it seems highly necessary, and the writer so admired, that his opinions, good or bad, must naturally have a very general influence. It was the opinion, in short, of the late ingenious Henry Fielding, that “ the constitution of this island was nothing fixed, but just as “ variable as its weather," and he treats the contrary notion as a ridiculous error: now if this doctrine be well founded, our society will soon, I imagine, think it wise to dissolve themselves, since it is hardly consistent with the gravity of sensible men to collect and impart information like the makers of almanacks, upon any thing so uncertain as the weather; if on the other hand, the error be palpably on the side of Mr. Fielding, you will not only proceed with assiduity in your laudable design of rendering our constitution universally known, but will be at least equal in usefulness and true dignity to any society that ever was formed. His words are these, in the preface to his tract, “ On the Increase of Robberies,” dedi. cated to Lord Chancellor Hardwicke. “ There is nothing so much “ talked of and so little understood in this country, as the constitution. “ It is a word in the mouth of every man ; and yet when we come “ to discourse of the matter, there is no subject on which our ideas
are more confused and perplexed. Some, when they speak of the “ constitution, confine their notions to the law; others to the legisla“ ture; others, again, to the governing or executive part; many “ there are who jumble all these together in one idea. One error “ however is common to them all; for all seem to have the conception “ of something uniform and permanent, as if the constitution of England partook rather of the nature of the soil than of the climate, 5
s and was as fixed and constant as the former, not as changing and “ variable as the latter. Now in this word, the constitution, are “ included the original and fundamental law of the kingdom, from “ whence all powers are derived, and by which they are circum“scribed ; all legislative and executive authority, all those municipal “ provisions, which are commonly called laws; and lastly, the
customs, manners, and habits of the people. These joined toge“ ther do, I apprehend, form the political, as the several members “ of the body, the animal economy, with the humours and habit,
compose that which is called the natural constitution."
He adds a paragraph or two of elegant, but idle allusions to the Platonic philosophy, as if we lived under the polity of Plato, not in the days of William the Norman. Now of all words easy to be comprehended, the easiest, in my humble opinion, is the word constitution; it is the great system of public in contra-distinction to private and criminal law, and comprises all those articles which Blackstone arranges in his first volume, under the rights of persons, and of which he gives a perspicuous analysis. Whatever then relates to the rights of persons, either absolute rights, as the enjoyment of liberty, security, and property, or relative, that is in the public relations of magistrates and people, makes a part of that majestic whole, which we properly call the constitution. Of those magistrates some are subordinate, and some supreme; as the legislative or parliament, which ought to consist of delegates from every independent voice in the nation; and the executive or the king, whose legal rights for the general good are called prerogative. The people are the aggregate body or community, and are in an ecclesiastical, civil, military, or maritime state.
This constitutional or public law is partly unwritten, and grounded upon immemorial usage, and partly written or enacted by
the legislative power, but the unwritten or common law contains the true spirit of our constitution: the written has often most unjustifiably altered the form of it: the common law is the collected wisdom of many centuries, having been used and approved by successive generations, but the statutes frequently contain the whims of a few leading men; and sometimes of the mere individuals employed to draw them ; lastly, the unwritten law is eminently favourable, and the written generally hostile to the absolute rights of persons.
But though this inestimable law be called unwritten, yet the only evidence of it is in writing preserved in the public records, judicial, official, and parliamentary, and explained in works of acknowledged authority. Positive acts of the legislature may indeed change the form of the constitution ; but as in the system of private law, the narrowness or rigour of our forensic rules may be enlarged or softened by the interposition of parliament, (for our courts of equity are wholly of a different nature,) so all legislative provisions, which oppose the spirit of the constitution, may be corrected agreeable to that very spirit, by the people or nation at large, who form as it were, the high court of appeal in cases of constitutional equity; and their sense must be collected from the petitions which they present, expressed with moderation and respect, yet with all the firmness which their cause justifies, and all the dignity which truly becomes them.
I am, Sir,
Mr. JONES to the Bishop of St. ASAPH.
Wimbledon Park, Sept. 13, 1782. If your Lordship received my letter from Calais, you will not be much surprised to see the date of this, and the place where I now am writing, while Lady Spencer is making morning visits. Mr. and Mrs. Poyntz have this instant left us. Lord Althorpe being in Northamptonshire, I must give myself some consolation for my disappointment in missing him, by scribbling a few lines to him, as soon as I have finished these with which I now trouble your lordship. My excursion to the United Provinces (which has been the substitute for my intended expedition to the United States) was extremely pleasing and improving to me. I returned last Monday, and finding all my friends dispersed in various parts of England, am going for a few days into Buckinghamshire, whence I shall go to Oxford, and must continue there till the Sessions. Should your lordship be in Hampshire any time in October, and should it be in all respects convenient to you, I will accept this year, with great pleasure, the obliging invitation to Chilbolton, which I was unfortunately prevented from accepting last year. I lainent the unhappy dissentions among our great men, and clearly see the vanity of my anxious wish, that they would have played in tune some time longer in the political concert.
The delays about the India judgeship have, it is true, greatly injured me; but with my patience and assiduity, I could easily recover my lost ground. I must however take the liberty here to allude to a most obliging letter of your lordship from Chilbolton, which I received so long ago as last November, but was prevented from answering till you came to town. It was inexpressibly flattering to me, but my intimate knowledge of the nature of my profession, obliges me to assure you, that it requires the whole man, and admits of no concurrent pursuits; that, consequently, I must either give it up, or it will engross me so much, that I shall not for some years be able to enjoy the society of my friends, or the sweets of liberty. Whether it be a wise part to live uncomfortably, in order to die wealthy, is