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 neceffary restraintsRestraints in themselves fo gentle and moderate, as will appear upon farther enquiry, that no man of sense or probity would wish to see them flackened. For all of us have it in our choice to do every thing that a good man would defire to do; and are restrained from nothing, but what would be pernicious either to ourselves or our fellow citizens. So that this review of our fituation may fully juftify the obfervation of a [ 145 1 learned French author, who indeed generally both thought and wrote in the spirit of genuine freedom 2; and who hath not fcrupled to profefs, even in the very bofom 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 conftitution. Recommending therefore to the ftudents in our laws a farther and more accurate fearch into this extensive and important title, I fhall close my remarks upon it with the expiring with of the famous father Paul to his country, "ESTO PERPETUA!"

WE

“E are next to treat of the rights and duties of persons, as they are members of fociety, and stand in various relations to each other. These relations are either public or private and we will first confider those that are public.

THE most universal public relation, by which men are connected together, is that of government; namely as governors and governed, or, in other words, as magiftrates and people. Of magiftrates fome alfo are fupreme, in whom the fovereign power of the ftate refides; others are fubordinate, deriving all their authority from the fupreme magistrate, accountable to him for their conduct, and acting in an inferior fecondary sphere.

In all tyrannical governments the fupreme magistracy, or the right both of making and of enforcing the laws, is vested in one and the fame man, or one and the same body of men ; and wherever these two powers are united together, there can be no public liberty. The magiftrate may enact tyrannical laws, and execute them in a tyrannical manner, fince he is poffeffed, 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 fo large a power as may tend to the fubverfion of it's own independence, and therewith of the liberty of the fubject. With us therefore in England this fupreme power is divided

into two branches; the one legislative, to wit, the parliament, confifting of king, lords, and commons; the other executive, confifting of the king alone. It will be the bufiness of this chapter to confider the British parliament; in which the legislative power, and (of course) the fupreme and absolute authority of the state, is vested by our conftitution.

THE original or first institution of parliament is one of those matters which lie so far hidden in the dark ages of antiquity, that the tracing of it out is a thing equally difficult and uncertain. The word, parliament, itself, (parliament or colloquium, as fome of our hiftorians tranflate it,) is comparatively of modern date; derived from the French, and fignifying an affembly that met and conferred together. It was firft applied to general affemblies of the states under Louis VII. in France, about the middle of the twelfth centurya (1). But

Mod. Un. Hift. xxiii. 307. The in the preamble to the statute of Westm. first mention of it in our ftatute law is 1.3 Edw. I. A. D. 1272.

(1) The word parliamentum was not used in England till the reign of Hen. III. (Pryn. on 4 Inft. 2.) Sir Henry Spelman in his Gloffary, (voc. Parl.) says, Johannes rex haud dicam parliamentum, nam hoc nomen non tum emicuit, fed communis concilii regni formam et coactionem perfpicuam dedit.

It was from the use of the word parliamentum that Prynne discovered lord Coke's manufcript, Modus tenendi parliamentum tempore regis Edwardi, filii regis Etheldredi, &c. to be spurious. Lord Coke fet a high value upon it, and has affured us," that certain it is, "this modus was rehearfed and declared before the conqueror at the "conqueft, and by him approved." (4 Inft. 12.) But for many reigns after this word was introduced, it was indifcriminately applied to a feffion and to the duration of the writ of fummons; we now confine it to the latter, viz. to the period between the meeting after the return of the writ of summons and the diffolution. Etymology is not always frivolous pedantry; it fometimes may afford an useful comment upon the original fignification of a word. No inconfiderable pains have been bestowed by learned men in analyfing the word parliament; though the following fpecimens will ferve rather to amuse than to inftruct: "The word parliament," faith

one,

it is certain that, long before the introduction of the Norman language into England, all matters of importance were debated and fettled in the great councils of the realm. A practice, which feems to have been univerfal among the northern nations, particularly the Germans ; and carried b; b De minoribus rebus principes confultant, de majoribus omnes. Tac. de mor,

Germ. c. II.

one," is compounded of parium lamentum; because (as he thinks) "the peers of the realm did at these assemblies lament and com"plain each to the other of the enormities of the country, and "thereupon provided redrefs for the fame." (Lamb. Arch. 235.) Whitelocke, in his notes (174.) declares," that this derivation of "parliament is a fad etymology." Lord Coke and many others fay, that "it is called parliament, because every member of that "court fhould fincerely and difcreetly parler la ment, speak his mind. "for the general good of the commonwealth." (Co. Lit. 110) Mr. Lambard informs us, that "Lawrence Vallo mifliketh this "derivation." (Arch. 236.) And Lawrence Vallo is not fingular; for Mr. Barrington affures us, that "lord Coke's etymology of the "word parliament from speaking one's mind has been long exploded. If one might prefume (adds he) to substitute another "in it's room after so many gueffes by others, I should fuppofe "it was a compound of the two Celtic words parley and ment, or "mend. Both these words are to be found in Bullet's Celtic Dicc6 tionary published at Befançon in 1754. 3d vol. fol. He renders "parley by the French infinitive parler; and we use the word in

England as a substantive, viz. parley; ment or mend is rendered "quantité, abondance. The word parliament therefore being re"folved into it's conftituent fyllables, may not improperly be faid "to fignify what the Indians of North America call a Great “Talk.” (Ant. Stat. 48.) — I shall leave it to the reader to determine which of thefe derivations is moft defcriptive of a parliament; and perhaps after fo much recondite learning it may ap pear prefumptuous in me to observe, that parliament imported originally nothing more than a council or conference; and that ment in parliament has no more fignification than it has in impeachment, engagement, imprisonment, hereditament, and a thoufand others of the fame nature, though the civilians have adopted a fimilar derivation, viz. teftament from teflari mentem. Tay. Civ. Law. 70.

by

by them into all the countries of Europe, which they overran at the diffolution of the Roman empire. Relics of which conftitution, under various modifications and changes, are ftill to be met with in the diets of Poland, Germany, and Sweden, and the affembly of the eftates in France: for what is there now called the parliament is only the supreme court of justice, confifting of the peers, certain dignified ecclefiaftics and judges; which neither is in practice, nor is supposed to be in theory, a general council of the realm.

WITH us in England this general council hath been held immemorially, under the several names of mychel-fynoth or great council, michel-gemote, or great meeting, and more frequently wittena-gemote, or the meeting of wife men. It was [ 148 ] also styled in Latin, commune concilium regni, magnum concilium regis, curia magna, conventus magnatum vel procerum, affifa generalis, and sometimes communitas regni Angliaea. We have inftances of its meeting to order the affairs of the kingdom, to make new laws, and to amend the old, or, as Fleta expresses it, “novis injuriis emerfis nova conftituere remedia,” so early as the reign of Ina king of the Weft Saxons, Offa king of the Mercians, and Ethelbert king of Kent, in the feveral realms of the heptarchy. And, after their union, the Mirror informs us, that king Alfred obtained for a perpetual ufage, that thefe councils fhould meet twice in the year, or oftener, if need be, to treat of the government of God's people; how they should keep themselves from fin, should live in quiet, and fhould receive right. Our fucceeding Saxon and Danish monarchs held frequent councils of this fort, as appears from their respective codes of laws; the titles whereof usually speak them to be enacted, either by the king with the advice of his wittena-gemote, or wife men, as, "baec funt inftituta, quae Edgarus rex confilio fapientum fuorum "inftituit ;" or to be enacted by thofe fages with the advice

These were affembled for the laft time, A. D. 1561. (See Whitelocke of parl. c. 72.) or according to Robertson, A. D. 1614. (Hist. Ch. V. i. 369.)

d Glanvil. l. 13. 6. 32. l. 9. c. 10.Pref. 9 Rep.-2 Inft. 526.

e 1. 2. c. 2.

fc. I. $ 3.

of