dominions, by affuming neighbouring provinces into the confederation; or how far it is capable of uniting the liberty of a small commonwealth, with the safety of a powerful empire; or whether, amongst co-ordinate powers, diffenfions and jealoufies would not be likely to arife, which, for want of a common fuperior, might proceed to fatal extremities, are questions, upon which the records of mankind do not authorize us to decide with tolerable certainty. The experiment is about to be tried in America upon a large scale.

СНАР.

CHAP. VII.

OF THE BRITISH CONSTITUTION.

Y the CONSTITUTION of a country is

Br

meant fo much of its law, as relates to the defignation and form of the legiflature; the rights and functions of the feveral parts of the legiflative body; the conftruction, office, and jurifdiction of courts of juftice. The conflitution is one principal divifion, fection, or title, of the code of public laws; diftinguished from the reft only by the fuperior importance of the fubject of which it treats. Therefore the terms conftitutional and unconftitutional mean legal and illegal. The distinction and the ideas, which thefe terms denote, are founded in the fame authority with the law of the land upon any other fubject; and to be ascertained by the fame inquiries. In England the fyftem of public jurifprudence is made up of acts of parliament, of decifions of courts of law, and of immemorial ufages: confequently, thefe are the principles of

which the English conftitution itself confifts; the fources from which all our knowledge of its nature and limitations is to be deduced, and the authorities to which all appeal ought to be made, and by which every conflitutional doubt and question can alone be decided. This plain and intelligible definition is the more neceffary to be preserved in our thoughts, as fome writers upon the subject abfurdly confound what is conftitutional, with what is expedient; pronouncing forthwith a measure to be unconftitutional, which they adjudge in any refpect to be detrimental or dangerous: whilft others again afcribe a kind of tranfcendant authority, or myfterious fanctity, to the conftitution, as if it were founded in fome higher original than that which gives force and obligation to the ordinary laws and statutes of the realm, or were inviolable on any other account than its intrinfic utility. An act of parliament in England can never be unconftitutional, in the ftrict and proper acceptation of the term; in a lower sense it may, viz. when it militates with the fpirit, contradicts the analogy, or defeats the provision of other laws, made to regulate the form of government. Even that flagitious abufe of their truft, by which a parliament of Henry the Eighth conferred upon the king's proclama

tion the authority of law, 'was unconftitutional only in this latter fenfe.

Moft of those who treat of the British conftitution, confider it as a fcheme of government formally planned and contrived by our ancestors, in fome certain æra of our national history, and as fet up in pursuance of fuch regular plan and defign. Something of this fort is fecretly fuppofed, or referred to, in the expreffions of thofe who speak of the "principle of the conftitu"tion," of bringing back the constitution to its "first principles," of restoring it to its "ori

ginal purity," or "primitive model." Now this appears to me an erroneous conception of the fubje&. No fuch plan was ever formed, confequently no fuch firft principles, original model, or standard exift. I mean, there never was a date or point of time in our history, when the government of England was to be fet up anew, and when it was referred to any fingle person, or affembly, or committee, to frame a charter for the future government of the country; or when a conftitution, fo prepared and digefted, was by common confent received and established. In the time of the civil wars, or rather between the death of Charles the First and the restoration of his fon, many fuch projects were published,

but

but none were carried into execution. The great charter, and the bill of rights, were wife and ftrenuous efforts to obtain fecurity against certain abuses of regal power, by which the fubject had been formerly aggrieved; but these were, either of them, much too partial modifications of the conftitution to give it a new original. The conftitution of England, like that of moft countries in Europe, hath grown out of occafion and emergency; from the fluctuating policy of different ages; from the contentions, fucceffes, interefts, and opportunities of different orders and parties of men in the community. It resembles one of thofe old manfions, which instead of being built all at once, after a regular plan, and according to the rules of architecture at prefent established, has been reared in different ages of the art, has been altered from time to time, and has been continually receiving additions and repairs fuited to the tafte, fortune, or conveniency of its fucceffive proprietors. In fuch a building we look in vain for the elegance and proportion, for the juft order and correfpondence of parts, which we expect in a modern edifice; and which external symmetry, after all, contributes much more perhaps to the amusement of the beholder,

VOL. II.