raging, whilft they themselves enjoyed the moft delightful ferenity: with this difference, however, that thefe philofophers knew they must soon descend, and become obnoxious to thefe ftorms themselves *.— The laws of the Decemviri were full of cruelty, inflicting death for almost every offence, and punishing by fire as well as by the fword. In the time of the Republic, these severe laws were virtually repealed, as it was ordained by the Porcian law, that no citizen fhould be punished with death; but under the Emperors the most rigid feverity was again reftored.

The natural effect of fevere laws, is, either that none will put them in execution, or, if put in execution, that men become fo hardened and defperate, that no laws, no punishments will have any effect in reftraining or reforming them: the former was the cafe at Athens, with the laws of Draco; the latter is the melancholy cafe of the people of Japan; the defpotic power of their emperor, and the horrid feverity of their laws, feeming only to mul* Ulloa, vol. i. page 223. C 4

tiply

tiply the most dreadful robberies and murders.-There was a time in England, when our good old Saxon conftitution was overturned, and the nation groaned under the yoke of tyrants. Our defpotic princes of the Norman line, enacting the moft inhuman laws, proved how unfit it is, that one man, who is above all controul, fhould make laws for others. Witnefs thofe foreft laws, which were not repealed till the reign of Richard the first, which inflicted the moft fhocking punishments, fuch as caftration, lofs of eyes, cutting off the hands and feet of thofe who only tranfgreffed in hunting, or even killed a hare! Thefe cruelties were exercifed not only in the old forefts, but in the new alfo, which William made by laying together vaft tracts of country for that purpose. In Hampshire he destroyed thirty-fix churches, depopulated as many parishes, and made no fatisfaction to the proprietors for their lands *.-If from the inhumanity of laws, the humane can

* See Rapin. See Blackftone, vol. iv. p. 423.

not

not put them in execution, this defpotic severity nuft destroy the power of the laws, and increase the number of offenders.

$ 4. As long as the English conftitution lafts, the laws will be equally and univerfally binding. We have not one law for the peer, and another for the peafant. They are equally protected in their property, their lives, their liberty, their poffeffions. If the first peer of the realm should fhed the blood of the meaneft fubject, his punishment would be equally certain, severe, and ignominious, as if he had himself been one of the lowest of the people.

Happy island, whofe laws have no refpect of perfons! Even James the first, were he now upon the throne, could not grant his favorite a " pardon for all manner of treafons, murders, felonies, and outrages whatever, already committed, or which fhould hereafter be committed by him *” The laws of England acknow

See Coke Hift. Narrat. c. 32.

ledge

ledge no dispensing power, but declare exprefsly, that the fufpending or difpenfing with laws, by regal authority, without confent of parliament, is illegal *. Nay, even the kings themselves are fubject to the laws, being bound not only by an imaginary compact, but by a specific declaration; not only by tacit agreement, but by oath, that they will " govern the people of this kingdom of England, and the dominions thereunto belonging, according to the ftatutes in parliament agreed on, and the laws and customs of the fame." Should a king of England violate this oath, the original contract would be broken, and allegiance would be no longer due to him.-How different is the language of the imperial law," in omnibus, imperatoris excipitur fortuna; cui ipfas leges Deus fubjecit !"-How different the claims of James the first! He tells his parliament, that their privileges were derived from the grace and permiflion of himfelf and his ancestors;

* 1 W. & M. 2. c. 2.

but

but that with regard to his prerogative, "as to dispute what God may do, is blafphemy, fo is it fedition in subjects to dispute what a king may do in the height of his power*." We cannot be furprized to hear fuch fentiments from him; this is the common language of defpotifm : but who would ever have expected fuch language from English judges, thofe facred guardians of our laws? When Richard II. had affembled them all at Nottingham, and afked them if he could not annul fuch acts as were prejudicial to him, they answered, "The king is above the laws;" that is, "the government of England is, and ought to be defpotic †."

The Norman kings were indeed defpotic, and trampled on our laws. The family of the Stuarts thought to do the fame. They have found by woeful experience, that in England "Rex debet effe fub lege quia lex facit regem ‡.”

§ 5. The great barrier of liberty must be fought for in thofe laws of any coun

• Rapin. + Idem.

↑ Bracton.

try