affirmative acts of parliament, wherein justice is directed to [142] be done according to the law of the land: and what that law is, every subject knows, or may know, if he pleases; for it depends not upon the arbitrary will of any judge, but is permanent, fixed, and unchangeable, unless by authority of parliament. I shall however just mention a few negative statutes, whereby abuses, perversions, or delays of justice, especially by the prerogative, are restrained. It is ordained by magna carta,e that no freeman shall be outlawed, that is, put out of the protection and benefit of the laws, but according to the law of the land. By 2 Edw. III. c. 8, and 11 Ric. II. c. 10, it is enacted, that no commands or letters shall be sent under the great seal, or the little seal, the signet, or privy seal, in disturbance of the law; or to disturb or delay common right: and, though such commandments should come, the judges shall not cease to do right; which is also made a part of their oath by statute 18 Edw. III. st. 4. And by 1 W. & M. st. 2, c. 2, it is declared, that the pretended power of suspending, or dispensing with laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.

stance of

not be alparliament,

Not only the substantial part, or judicial decisions, of the The sublaw, but also the formal part, or method of proceeding, can- the law can. not be altered but by parliament: for, if once those out- tered but by works were demolished, there would be an inlet to all manner of innovation in the body of the law itself. The king, it is true, may erect new courts of justice; but then they must proceed according to the old established forms of the common law, For which reason it is declared in the statute 16 Car. I. c. 10, upon the dissolution of the court of star-chamber, that neither his majesty, nor his privy council, have any jurisdiction, power, or authority by English bill, petition, articles, libel, (which were the course of proceeding in the star-chamber, borrowed from the civil law) or by any other arbitrary way whatsoever, to examine, or draw into question, determine, or dispose of the lands or goods of any subjects of this kingdom; but that the same ought to be tried and determined in the ordinary courts of justice, and by course of law.

[143]

4. If there should happen any uncommon injury, or in4. The right fringement of the rights before-mentioned, which the ordi

of petition

and parliament.

ing the king nary course of law is too defective to reach, there still remains a fourth subordinate right, appertaining to every individual, namely, the right of petitioning the king, or either house of parliament, for the redress of grievances. In Russia we are told that the czar Peter established a law, that no subject might petition the throne, till he had first petitioned two different ministers of state. In case he obtained justice from neither, he might then present a third petition to the prince; but upon pain of death, if found to be in the wrong. The consequence of which was, that no one dared to offer such third petition; and grievances seldom falling under the notice of the sovereign, he had little opportunity to redress them. The restrictions, for some there are, which are laid upon petitioning in England, are of a nature extremely different; and while they promote the spirit of peace, they are no check upon that of liberty. Care only must be taken, lest, under the pretence of petitioning, the subject be guilty of any riot or tumult; as happened in the opening of the memorable parliament in 1640: and, to prevent this, indeed it is provided by the statute 13 Car. II. st. 1, c. 5, that no petition to the king, or either house of parliament, for alteration of matters established by law in church or state, shall be signed by above twenty persons, unless the matter thereof be approved by three justices of the peace, or the major part of the grand jury, at assizes or quarter sessions in the country; and in London by the lord mayor, aldermen, and common council: nor shall any petition be presented by more than ten persons at a time. But, under these regulations, it is declared by the Bill of Rights, 1 W. & M. st. 2, c. 2, that the subject hath a right to petition; and that all commitments and prosecuState of the tions for such petitioning are illegal. The judges have held, although not without opinions to the contrary, that the statute of Charles II. was not in any degree affected by the Bill of Rights. The former has, however, to a great extent

law as to pe

titioners.

Montesq. Sp. L. xii. 26.

Mr. Dunning expressed an opinion to the contrary. See Ann. Reg.

(1781) and Sedgwick on Blackstone,

107.

h Doug. 591.

become obsolete, and would at any rate be construed strictly, as meetings are constantly held and petitions prepared and presented in parliament, relating to alterations in church and state which are not in conformity with this statute. But meetings for the purpose of petitioning, of more than fifty persons, in any open place in Westminster or Middlesex, within one mile of Westminster Hall are illegal.i

ing arms for

5. The fifth and last auxiliary right of the subject, that I 5. The hav shall at present mențion, is that of having arms for their de- defence. fence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same [144] statute 1 W. & M. st. 2, c. 2, and it is indeed a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

ticles con

berties of

In these several articles consist the rights, or, as they are In these arfrequently termed, the liberties of Englishmen : liberties, sist the limore generally talked of, than thoroughly understood; and Englishmen. yet highly necessary to be perfectly known and considered by every man of rank or property, lest his ignorance of the points whereon they are founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other. And we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed. To preserve these from violation, it is necessary that the constitution of parliament be supported in it's full vigour; and limits, certainly known, be set to the royal prerogative. And, lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next, to the right of petitioning the king and parliament for redress of grievances; and, lastly, to the right of having and using

i 57 Geo. III. c. 19. s. 23.

arms for self-preservation and defence. And all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints. Restraints in themselves so gentle and moderate, as will appear upon farther inquiry, that no man of sense or probity would wish to see them slackened. For all of us have it in our choice to do every thing that a good man would desire to do; and are restained from nothing, but what would be pernicious either to ourselves or our [145] fellow-citizens. So that this review of our situation may fully justify the observation of a learned French author, who indeed generally both thought and wrote in the spirit of genuine freedom1; and who hath not scrupled to profess, even in the very bosom of his native country, that the English is the only nation in the world, where political or civil liberty is the direct end of it's constitution. Recommending therefore to the student in our laws a farther and more accurate search into this extensive and important title, I shall close my remarks upon it with the expiring wish of the famous father Paul to his country, "ESTO PERPETUA!"

Montesq. Sp. L, xi, 5,

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The rela

We are next to treat of the rights and duties of persons, as they are members of society, and stand in various relations tons of to each other. These relations are either public or private: society are and we will first consider those that are public.

members of

either public or private.

of govern

ment.

The most universal public relation, by which men are The relation connected together, is that of government; namely, as governors and governed, or, in other words, as magistrates and people. Of magistrates some also are supreme, in whom the sovereign power of the state resides; others are subordinate, deriving all their authority from the supreme magistrate, accountable to him for their conduct, and acting in an inferior secondary sphere.

governments

making and

the laws is

person or

In all tyrannical governments the supreme magistracy, or In tyrannical the right of both making and of enforcing the laws, is vested the right of in one and the same man, or one and the same body of men; enforcing and wherever these two powers are united together, there in the same can be no public liberty. The magistrate may enact tyran- body. nical laws, and execute them in a tyrannical manner, since he is possessed, in quality of dispenser of justice, with all the power which he as legislator thinks proper to give himself. But, where the legislative and executive authority are in distinct hands, the former will take care not to entrust the latter with so large a power, as may tend to the subversion of its own independence, and therewith of the liberty of the subject. With us therefore in England this supreme power is divided into two branches; the one [ 147 ] legislative, to wit, the parliament, consisting of king, lords, but in Engand commons; the other executive, consisting of the king are distinct

land they

branches.