The Constitution of England

Chapter XII1

115 u c h a p t e r x i i u Of Criminal Justice. We are now to treat of an article, which, though it does not in England, and indeed should not in any State, make part of the powers which are properly Constitutional, that is, of the reciprocal rights by means of which the Powers that concur to form the Government constantly balance each other, yet essentially interests the security of individuals, and, in the issue, the Constitution itself; I mean to speak of Criminal Justice. But, previous to an exposition of the laws of England on thishead,itisnecessary to desire the Reader’s attention to certain considerations. When a Nation entrusts the power of the State to a certain number of persons, or to one, it is with a view to two points: the one, to repel more effectually foreign attacks; the other, to maintain domestic tranquillity. To accomplish the former point, each individual surrenders a share of his property, and sometimes, to a certain degree, even of his liberty. But, though the power of those who are the Heads of the State may thereby be rendered very considerable, yet it cannot be said, that liberty is, after all, in any high degree endangered, because, should ever theExecutivePowerturn against the Nation a strength which ought to be employed solely for its defence, this Nation, if it were really free, by which I mean, unrestrained by political prejudices, would be at no loss for providing the means of its security. In regard to the latter object, that is, the maintenance of domestic tranquillity , every individual must, exclusive of new renunciations of his natural liberty, moreover surrender, which is a matter of far more dangerous consequence, a part of his personal security. The Legislative power, being, from the nature of human affairs, placed 116 book i in the alternative, either of exposing individuals to dangers which it is at the same time able extremely to diminish, or of delivering up the State to the boundless calamities of violence and anarchy, finds itself compelled to reduce all its members within reach of the arm of the public Power, and, by withdrawing in such cases the benefit of the Social strength, to leave them exposed, bare, and defenceless, to the exertion of the comparatively immense power of the Executors of the laws. Nor is this all; for, instead of that powerful re-action which the public authority ought in the former case to experience, here it must find none; and the law is obliged to proscribe even the attempt of resistance.Itistherefore in regulating so dangerous a power, and in guarding lest it should deviate from the real end of its institution, that legislation ought to exhaust all its efforts. But here it is of great importance to observe, that the more powers a Nation has reserved to itself, and the more it limits the authority of the Executors of the laws, the more industriously ought its precautions to be multiplied. In a State where, from a series of events, the will of the Prince has at length attained to hold the place of law, he spreads an universaloppression, arbitrary and unresisted; even complaint is dumb; and the individual, undistinguishable by him, finds a kind of safety in his own insignificance. With respect to the few who surround him, as they are at the same time the instruments of his greatness, they have nothing to dread but momentary caprices; a danger againstwhich,if thereprevailsacertaingeneralmildness of manners, they are in a great measure secured. But in a State where the Ministers of the laws meet with obstacles at every step, even their strongest passions are continually put in motion; and that portion of public authority, deposited with them to be the instrument of national tranquillity, easily becomes a most formidable weapon. Let us begin with the most favourable supposition, and imagine a Prince whose intentions areinevery casethoroughlyupright,—letusevensuppose that he never lends an ear to the suggestions of those whose interest it is to deceive him: nevertheless, he will be subject to error: and this error, which, I will farther allow, solelyproceedsfromhisattachmenttothepublic welfare, yet may very possibly happen to prompt him to act as if his views were directly opposite. chapter xii 117 When opportunities shall offer (and many such will occur) of procuring a public advantage by overleaping restraints, confident in the uprightness of his intentions, and...