APPENDIX. No. 1.-P. 11. LAWS OF MAHOMET ON PEACE AND WAR. It is the Ottoman Empire that is here in question, and what I say, as to the effect on the Christians of Europe of learning that Mussulmans cannot draw the sword without a judicial decision pronounced against the enemy, is derived from my own experience. This discovery I made solely in consequence of the return which it caused me to make on myself. Had I not been stricken with shame, and had I not felt repentance, I should have rejected it with contempt. When I spoke of it to my co-religionists and contemporaries, all the effect it produced was a stupid astonishment, up to the time when I came to form a school of practical jurisprudence. This rule of conduct has not only been admitted in theory, but it has been adopted in practice. In the history of the Turks, a single infraction took place with respect to a truce, and this infraction cost the Sultan (MAHOMET IV.) his life. In modern times Turkey has never made war. It has been made against her. In 1806, a year memorable for the resumption of hostilities with France, England, without motive for war, without pretext of grievance, and without Declaration of War, sent a squadron to bombard Constantinople. In 1809 she wished to make peace with Turkey, and experienced the greatest difficulty in obtaining it. It was not that the Sublime Porte put forward onerous conditions for its assent, but the disgust and horror which the Mussulmans felt for a nation which had attacked them without cause and without Declaration of War. English Ambassador (Sir ROBERT ADAIR), a little before his death, revealed, in a volume precious on this account, the secret, until then unknown, of that negotiation. He explained that the Turkish language was incapable of rendering our words in a double sense, and he reasoned thus: "We shall never be able to do anything with the "Turks until we have taught them our language.' The He wrote, in 1808, to Mr. Canning, "The course of this negotiation has abundantly proved to me the tenacity of the Turks with regard to their peculiar form of expression, He understood by the word "do" the removing from the Mussulmans the idea of crime and sin attached by them to acts in which Europeans see none, and which for them are only political measures. It is to be feared that Turkey will no longer present an inconvenient example; our language has been taught to the Turks, and with it our manners and ideas. Among the Mussulmans a civil war has to be legalized not less than an external war. A rebel is designated "Convict" (Firmanli) because sentence has been pronounced against him. At the time of the war against the Wahabees, the Fetva (the sentence of the Ulemas, that is to say, of the judges) was proclaimed from the Minarets, and read at the head of each battalion by its Imaum on the opening of the campaign. Without this formality no Mussulman would have drawn a sword, any more than a European executioner would have performed his functions without the sentence delivered by the judge. For a similar case ALI PACHA of Janina had to have recourse to his Christian mercenaries when the Mussulmans refused to fire on the Christians of Chardiké. The case was the same as that of the Theban Legion, who would not shed innocent blood. They preferred rather to die themselves, and were canonised for the act. When the love of justice exists, it is, and ought to be, accompanied with horror for crime. Or rather it is the horror of crime which gives birth to and nourishes the love of justice. It is with this that it is necessary to begin, and this horror is dead in modern Christendom. No. II.-P. 17. CONSTITUTIONAL REMEDIES. SHOWING HOW THE LAW IS DESIGNED TO CONTROL THE ACTS OF THE GOVERNMENT. [WHAT is given below is extracted from a pamphlet published under the title by the Foreign Affairs Committee of Newcastle-on-Tyne, and which contains the short-hand report of answers made by Mr. URQUHART to questions addressed to him by that Committee.] Answer. At present you have got what you call a minister responsible. Yet in consequence of the functions of the Privy Council and the difficulty of making them comprehend the superiority of these simple formula in use among Christian States in all solemn transactions of business. The genius of their language, and the impossibility (almost) of conveying the sense of it through a literal translation, contribute greatly to their obstinacy on this point. On the present occasion Vaahid Effendi earnestly requested me to adopt the Turkish preamble, and to admit also the use of expressions calculated to describe the mildest degree of warfare in reciting the late rupture. As this could in no way influence the Treaty either in principle or substance, or bear upon the justice of the war, I consented, with some alterations, to follow the form proposed."— Negotiations for the Peace of the Dardanelles, pp. 103-4. being in abeyance, there are no means of punishing a Minister. The acts of the Privy Council were recorded with the signatures; the book of the Privy Council was open, and consequently, the adviser of every measure was traceable and pursuable. Then the habit prevailed of investigating the conduct of functionaries, there were co-ordinate powers in the State, which watched one another; as these successively became effete, new ones sprang up by which the power of investigation was de novo delegated from the Crown for the control and punishment of its own servants. Let me read you the terms of one of the commissions to the justices in Eyre, issued in the 15th year of the reign of EDWARD III. It commences; "These were the points ordained by the King's Council-First to inquire of all manner of oppressions, wrongs, grievances, damages, done by every the king's servientes (servants)." After enumerating many functionaries "admirals of the navy fleets" included, it adds: "done by whatever persons it may be," the whole having reference to acts committed by virtue of authority delegated to them, "Those which (have done) anything falsely by colour of their office or other matter for doing of their office." The public jealousy was then of office as now the public subserviency is for office. When on this point, I may state, that in these itinerant investigations the shire was always brought into the presence of the Crown. The elected men-the knights of the shire with their Reeves, always attended on that inquiry. Every species of grievance could be presented-treason in the highest functions of the Crown included, because that which was a general damage was treated of in each particular shire as a particular damage affecting that shire. Nay, more than this, you could proceed in the Courts Leet. The Courts Leet of the smallest community could impeach for high treason, in reference even to the sacrifice of an army in the Crimea. All questions were brought within the scope of the law, and that was at the door of each man. Question. What is a Court Leet? A. Courts Leet were the Peoples' Courts. They were established in each particular barony, so that there might be a dozen Courts Leet in this very town. In each of these parish Courts, if the old practice had remained, you might inquire on every particular case we have been going upon that of the Corn Trade for example, and present upon it. Then the aggregate of these-for you move from one to the other must have led to the correction of the abuse. I recollect speaking to Sir FRANCIS PALGRAVE of one of the modern imputations on ancient times, when he answered, "it is impossible, because we have no presentments on the subject, and it could not have escaped the sifting of the Courts Leet." Mr. Galloway. I think the old burghers' guilds of this town were on the same footing; but the Council of the town usurped their authority, and would not allow them to be Courts of Record, A. Then you see this would have been the real reform, only the people did not understand it. We must reconstitute the courts that have been lost. The Chairman. What would be the next step in the process? How could we bring the criminal to justice? : A. The great charters of the ancient times of England gave great powers. In the words of Chief Justice COKE, no man ever strove with the laws of England, that in the end they did not break his neck, be he monarch or favourite. This was while there were laws of England. Let me read a passage from a profound lawyer: "Surely of every popular constitution which the world ever saw, the aim was to excite the popular attention to the course of contemporary events; to instruct the popular mind as to the causes and results of those events, and to control the evil intentions and to coerce the sluggish tendencies of their servants by placing in the hands of the people the means of making the knowledge effectual, thus acquired. These are the true and only safeguards of States; Monarchy, or Democracy, it matters not that State is a strong State, whose people hold and are determined to retain the knowledge of their affairs-the boldness in applying it, for which the Anglo-Saxons of other days are honourably distinguished from their progeny in this." The further progress of impeachment would come immediately to the Shire Mote. You would move-the word "move" shows the cohesion of the whole-the Courts Leet would move the shire mote. Once a shire in England moved (it was then not a question of opinions), it spread to the next, and the next, and so on in every direction throughout the country. The shire mote was of the value, in the aggregate state, that one of the states of Greece would have been in the Confederation of States. If in one particular community a decision was come to, it was sure to be equally come to elsewhere, when the facts were known. It was not because the Whigs said this, or the Tories said that: it was not because on the registration a few votes were gained in one place and lost in another. The Chairman. How were proceedings for Impeachment conducted in the higher stages? A. Let us take the most difficult case where the Crown was directly impeached or concerned. The Parliament could not then be summoned. Taxes were not annual. Parliament was only called together when an aid was required; and fifteen years might pass without that necessity arising. Taxes are only an invention of your modern Parliamentarians. Aids and benevolences were required only at specific times, and then the Crown had to yield because Parliament would not grant an aid unless grievances were redressed. It was the usual form, and this was the condition of assent. Let me here point out that the power of the shire in its direct action in the Central Government was what you can have no conception of by mere opinion. I put to you the case of Hungary. We have all felt that there was there an inherent strength by the fact of its holding out for so long against such overwhelming forces. The retention of its old law at the present moment is evidence of inherent strength, and carries their existence back to the highest imaginable historic point. This power of life depended on its possessing institutions similar to those I am describing. The shires of Hungary decided for themselves, each shire for itself, and sent the result of its conclusions to the Diet. Each comitat or shire was a separate Senate. The Diet at Pesth was the reservoir in which were collected the streams from these separate shires. If corruption prevailed in one, it was only in one. No venial vote could upset the constitution of the land. At the same time no local outburst of ephemeral passion could lay prostrate the rights of ages. Having in themselves this constituting power you may imagine what only a single shire could do in the way of bringing to justice a great offender by its action in the Parliament; but this action has still only reference to putting the case in process of legal investigation. Not only was there then the constant habit of impeachment, but on the other side there was no concert to defeat it. There were not, as at present, two parties, each supporting itself, and both parties supporting each other against every charge of malversation. In the worst times, such as those of JAMES I. and CHARLES II., the House of Commons was wont to order the arrest of a minister and to send him to the Tower; there was no talk of the others resigning; nothing was simpler-nothing easier. All men were ready prepared for such trials. The people were then armed, not the Cabinet. Their ideas of guilt entirely differed from yours. The Lord Protector SOMERSET was tried for his life for doing what no man in this room before we commenced this inquiry would have considered anything but his bounden duty-for holding intercourse with a foreign ambassador without the knowledge of the Privy Council. This our forefathers considered impeachable matter, and for which they pursued to the very death.* Q. Supposing we had the Leet Courts, how should we find ourselves differently placed? A. Probably those here present would belong to half-a-dozen different ones. Every householder was bound to belong to them. This you look upon as a privilege, but it was then looked upon as a service. Mr. Galloway. They were all burgesses, and at one time they were classified by their trades. The Mayor was the only person recognised as superior. It was "the Mayor and burgesses. It was service; and every man was sworn to carry a musket for the defence of the town. A. As every one of us to-day is bound by law to do. Even women are not excepted. The Chairman. These Leet Courts would, if reconstructed, be a *IMPEACHMENT. Lord Somers. "The power of impeachment, therefore, in the Commons, seems to be an original inherent right in the people of England, reserved to them in the first institution of the Government by the law of nature and self-preservation, for the common security of their just rights and liberties." Lord Camden. "Serjeant Ashley was committed to the Tower by the House of Lords in the 3rd Charles I., only for asserting in argument that there was a law of state different from the common law. If the King himself have no power to declare when the law ought to be violated for reasons of state, I am sure we his judges have no such prerogative." Burke. "This tribunal will be found (I hope it always will be found) too great for petty crimes; if it should at the same time be found incompetent to one of the greatest—that is, if little offences, from their minuteness, escape you, and the greatest, from their magnitude, oppress you-it is impossible that this form of trial should not in the end vanish out of the constitution." "If the constitution should be deprived, I do not mean in form, but virtually, of this resource, it is virtually deprived of everything else that is valuable in it. For this process is the cement which binds the whole together-this it is which makes England what England is." |