war against this philosophical code, his contempt for the one, and his admiration of the other, would be likely to be increased. But there is no doubt that the advocates of the common law were right in resisting the introduction of the pliant principles of the civilians. If it be true that the common law, and the constitution which grew along with it, embodied no philosophical principle of liberty, it is also true that they embodied no philosophical principle of despotism, such as that which was ready made in the Justinian legislation. The theories of passive obedience, and the sacredness of the monarchical character, were strangers to it; and these doctrines, so attractive to those who profit by them, were introduced by the civilians. In presence of the unbending operation of the common law, and dependent on a surly suspicious parliament, the sovereign might yet, if he were a man of talent and courage, be very powerful and very tyrannical: but he had none of those attributes through which the ingenuity of the civilians had divested him of all the moral failings, so far as they were accompanied with the moral responsibilities of a human being. He was often a "most dread sovereign:" but it was for these novel doctrines, the fruit of the reading of the clergy and the ecclesiastical lawyers, to invest him with the attributes of "sacred majesty."
The supporters of the common law, and of the old popular rights, strove to keep the law above the king. Those who drew their constitutional principles from the civilians and canonists, desired to place the king above the law. They accomplished their object in name, but not in fact, by incorporating with the constitutional law those fictions, that the king never dies, is not responsible, does not require to appear by
his attorney, suffers no laches, &c. But in reality the old principles which made the king merely the head of a community, all of whom were subjected to the law, substantially held its ground; for, in so far as the monarch was exempted from responsibilities, in the same proportion was he deprived of any powers which he could exercise otherwise than through a responsible minister.
There was in Hume a like want of appreciation of the value of parliamentary forms and privileges, and a corresponding indifference about their violation. He had not sufficiently studied the Journals of the Commons, and did not trace the rise and development of that system of procedure which has protected our own liberties, and afforded a model for the legislative assemblies of all free nations.[71:1] It was in the Long Parliament, and under the eye of the able men of business who then held the lead, that this noble system was brought to perfection; but the reader whose historical information is derived solely from
Hume, knows little of its value. Thus unconscious of the practical importance of the rights and privileges of the English people, he did not sympathize with those who expected alarming consequences from their infringement. He involved those who put the protection of their legal rights to the issue of the sword, in the same contemptuous estimate with the fanatics whom he charged with convulsing the state about religious differences of no essential moment. In either case the event at issue was of so little importance in his estimation, that he had small charity for those who made it a vitally important concern.[72:1] But in all these matters we look back on Hume with the light of later times. To appreciate his services to constitutional history, we must, while we keep in view the successful labours of later inquirers, remember how little had been done by his predecessors. The old chroniclers, such as Hall and
Holingshed, scarcely ever deign to descend from the pride, pomp, and circumstance of glorious war, to mention constitutional matters; and perhaps, in an impartial estimate, it will be admitted that in the gradual progress towards a better appreciation of what is truly valuable in British history, no one writer has taken so great a stride as Hume.
FOOTNOTES:
[3:1] MS. R.S.E.
[5:1] MS. R.S.E.