November 4, 2010
ENGLISH HISTORY, ENGLISH LAW
Hume, David, The History of England From The Invasion of Julius Caesar To The Revolution in 1688, Volume I (Indianapolis: Liberty Fund, 1983) ("When any person in any tything or decennary was guilty of a crime, the borsholder was summoned to answer for him; and if he were not willing to be surety for his appearance and his clearing himself, the criminal was committed to prison, and there detained till his trial. If he fled, either before or after finding sureties, the borsholder and decennary became liable to enquiry, and were exposed to the penalties of law. Thirty-one days were allowed them for producing the criminal; and if that time elapsed without their being able to find him, the borsholder, with two other members of the decennary, was obliged to appear, and together with three chief members of the three neighbouring decennaries (making twelve in all) to swear that his decennary was free from all privity both of the crime commited, and of the escape of the criminal. If the borsholder could not find such a number to answer for their innocence, the decennary was compelled by fine to make satisfaction to the king, according to the degree of the offence. By this institution every man was obliged from his own interest to keep watchful eye over the conduct of his neighbours; and was in a manner surety for the behavior of those who were placed under the division, to which he belonged: Whence these decenanaries received the name of frank-pledges. " Id. at 76.).
Hume, David, The History of England From The Invasion of Julius Caesar To The Revolution in 1688, Volume II (Indianapolis: Liberty Fund, 1983) ("That neglect, almost total, of truth and justice, which sovereign states discover in their transactions with each other, is an evil universal and inveterate; is one great source of the misery to which the human race is continually exposed; and it may be doubted, whether in many instances it be found in the end to contribute to the interests of those princes themselves, who thus sacrifice their integrity to their politics." Id. at 133. "It is easy to see what advantages Europe must have reaped by its inheriting at once from the ancients, so complete an art, which was also so necessary for giving security to all others arts, and which, by refining, and still more, by bestowing solidity on the judgment, served as a model to farther improvements. The sensible utility of the Roman law both to public and private interest recommended the study of it, at a time when the more exalted and speculative sciences carried no charms with them; and thus the last branch of ancient literature, which remained uncorrupted, was happily the first transmitted to the modern world. For it is remarkable, that in the decline of Roman learning, when the philosophers were universally infected with superstition and sophistry, and the poets and historians with barbarism, the lawyers, who, in other countries, are seldom models of science or politeness, were yet able, by the constant study and close imitation of their predecessors, to maintain the same good sense in their decisions and reasonings, and the same purity in their language and expression." Id. at 521.).
Hume, David, The History of England From The Invasion of Julius Caesar To The Revolution in 1688, Volume III (Indianapolis: Liberty Fund, 1983) ("The practice of persecution . . . is the scandal of all religion; and the theological animosity, so fierce and violent, far from being an argument of men's conviction in their opposite sects, is certain proof, that they have never reached any serious persuasion with regard to these remote and sublime subjects. Even those, who are the most impatient of contradiction in other controversies, are mild and moderate in comparison of polemical divines; and wherever a man's knowledge and experience give him a perfect assurance in his own opinion, he regards with contempt, rather than anger, the opposition and mistakes of others. . . . As healthful bodies are ruined by too nice a regimen, and are thereby rendered incapable of bearing the unavoidable incidents of human life; a people, who never were allowed to imagine, that their principles could be contested, fly out into the most outrageous violence, when any event (and such events are common) produce a faction among their clergy, and gives rise to any difference in tenet or opinion. But whatever may be said in suppressing, by persecution, the first beginnings of heresy, no solid argument can be alleged for extending severity towards multitudes, or endeavouring, by capital punishment, to extirpate an opinion, which has diffused itself among men of every rank and station. Besides the extreme barbarity of such attempt, it commonly proves ineffectual to the purpose intended; and serves only to make men more obstinate in their persuasion, and to encrease the number of their proselytes. . . .The glory of martyrdom stimulates all the more furious zealots, especially the leaders and preachers: Where a violent animosity is excited by oppression, men naturally pass, from hating the persons of their tyrants, to a more violent abhorrence of their doctrines: And the spectators, moved with pity towards the supposed martyrs, are easily seduced to embrace those principle, which can inspire men with a constancy that appears almost supernatural. Open the door to toleration, mutual hatred relaxes among the sectaries; their attachment to their particular modes of religion decays; the common occupations and pleasures of life succeed to the acrimony of disputation; and the same man, who, in other circumstances, would have braved flames and torture, is induced to change his sect from the smallest prospect of favour and advancement, or even from the frivolous hope of becoming more fashionable in his principles. . . . Id. at 432-433.).
Hume, David, The History of England From The Invasion of Julius Caesar To The Revolution in 1688, Volume IV (Indianapolis: Liberty Fund, 1983).
Hume, David, The History of England From The Invasion of Julius Caesar To The Revolution in 1688, Volume V (Indianapolis: Liberty Fund, 1983) ("But above all branches of prerogatives, that which is most necessary to be preserved, is the power of imprisonment. Faction and discontent, like diseases, frequently arise in every political body; and during these disorders, it is by the salutary exercise alone of this discretionary power, that rebellious and civil wars can be prevented. To circumscribe this power, is to destroy its nature: Entirely to abrogate it, is impracticable; and the attempt itself must prove dangerous, if not pernicious to the public. The supreme magistrate, in critical and turbulent time, will never, agreeably either to prudence or duty, allow the state to perish, while there remains a remedy which, how irregular soever, it is still in his power to apply. And if, moved by a regard to public good, he employs any exercise of power condemned by recent and express statute, how greedily, in such dangerous times, will factious leaders seize this pretence of throwing on his government the imputation of tyranny and despotism? Were the alternative4 quite necessary, it were surely much better for human society to b deprived of liberty than to be destitute of government." Id. at 194. "No government, at that time, appeared in the world, nor is perhaps to be found in the records of any history, which subsisted without a mixture of some arbitrary authority, committed to some magistrate; and it might reasonably, beforehand, appear doubtful, whether human society could ever reach that state of perfection, as to support itself with no other control than the general and rigid maxims of law and equity. But the parliament justly thought, that the king was too eminent a magistrate to be trusted with discretionary power, which he might easily turn to the destruction of liberty. And in the event it has hitherto been found, that, though some sensible inconveniences arise from the maxim of adhering strictly to the law, yet the advantages overbalance them, and should render the English grateful to the memory of their ancestors, who, after repeated contests, at last established that noble, though dangerous, principle." Id. at 329-330.).
Hume, David, The History of England From The Invasion of Julius Caesar To The Revolution in 1688, Volume VI and Index (Indianapolis: Liberty Fund, 1983) ("The English laws of treason, both in the manner of defining that crime, and in the proof required, are the mildest and most indulgent, and consequently the most equitable, that are any where to be found. The two chief species of treason, contained in the statute of Edward III., are the compassing and intending of the king's death, and the actually levying of war against him; and by the law of Mary, the crime must be proved by the concurring testimony of two witnesses, to some overt act, tending to these purposes. But lawyers, partly desirous of paying court to the sovereign, partly convinced of ill consequences, which might attend such narrow limitations, had introduced a greater latitude, both in the proof and definition of the crime. It was not required, that the two witnesses should testify the same precise overt act: It was sufficient, that they both testified some overt act of the same treason; and though this evasion may seen a subtilty, it had long prevailed in the courts of judicature, and had at last been solemnly fixed in parliament at the trial of lord Stafford. The lawyers had observed the same freedom with the law of Edward III. They had observed, that, by the statute, if a man should enter into a conspiracy for a rebellion, should even fix a correspondence with foreign powers for that purpose, should provide arms and money, yet, if he were detected and no rebellion ensued, he could not be tried for treason. To prevent this inconvenience, which it had been better to remedy by a new law, they had commonly laid their indictment for intending the death of the king, and had produced the intention o rebellion as a proof of that other intention. But thought this form of indictment and trial was very frequent, and many criminals had received sentence upon it, it was still considered as somewhat irregular, and was plainly confounding, by a sophism, two species of treason, which the statute had accurately distinguished. What made this refinement still more exceptionable, was, that a law had passed soon after the restoration; in which the consulting or the intending of a rebellion, was, during Charles's life-time, declared treason; and it was required, that the prosecution should be commenced within six months after the crime was committed. But notwithstanding this statute, the lawyers had persevered, as they still do persevere, in the old form of indictment. . . . Such was the general horror, entertained against the old republicans, and the popish conspirators, that no one had murmured against this interpretation of the statute; and the lawyers thought, they they might follow the precedent, even in the case of the popular and beloved lord Russel. Russel's crime fell plainly within the statute of Charles the IId; but the facts sworn to by Rumsey and Shepard were beyond the six months required by the law, and to the other facts Howard was a single witness, To make the indictment, therefore, more extensive, the intention of murdering the king was comprehended to it; and the for proof of this intention the conspiracy for raising a rebellion was assigned; and what seemed to bring the matter still near, the design of attacking the king's guards." "Russel perceived this irregularity, and desired to have the pot argued by counsel: The chief justice told him, that this favour could not be granted, unless he previously confessed the facts charged upon him. . . ." Id. at 432-433.).