Sivut kuvina
PDF
ePub

It were endless to enumerate all the affirmative acts of parliament, wherein juftice is directed to be done according to the law of the land; and what that law is, every fubject 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 fhall however juft mention a few negative ftatutes, whereby abuses, perverfions, or delays of juftice, especially by the prerogative, are reftrained. It is ordained by the magna carta2, that no freeman fhall 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 II Ric. 2. c. 1o. it is enacted that no commands or letters fhall be fent under the great feal, or the little feal, the fignet, or privy feal, in difturbance of the law; or to difturb or delay common right; and, though fuch commandments fhould come, the judges fhall not ceafe to do right; which is alfo made a part of their oath by ftatute 18 Edw. III. ft. 4. And by 1 W. & M. ft. 2. c. 2. it is declared, that the pretended power of fufpending, or difpenfing with laws, or the execution of laws, by regal authority, without confent of parliament, is illegal.

Not only the fubftantial part, or judicial decifions, of the law, but also the formal part, or method of proceeding cannot be altered but by parliament; for, if once thofe outworks 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 juftice: but then they muft proceed according to the old eftablifhed forms of the common law. For which reafon it is declared in the ftatute 16 Car. I. c. 10. upon the diffolution of the court of ftarchambér, that neither his majefty, nor his privy council, have any jurifdiction, power, or authority by English bill, petition, articles, libels, (which were the courfe of proceeding in the ftarchamber, borrowed from the civil law) or by any other arbitrary way whatsoever, to examine, or draw into queftion, determine, or difpofe of the lands or goods of any fubjects of this kingdom; but that the fame ought to be tried and determined in the ordinary courts of juftice, and by courfe of law.

2

4. If there fhould happen any uncommon injury, or infringement of the rights before-mentioned, which the ordinary courfe of law is too defective to reach, there ftill remains a fourth fubordinate right, appertaining to every individual, namely, the right of petitioning the king, or either house of parliament, for the redrefs of grievances. In Ruffia we are told that the czar Peter eftablished a law, that no fubject might petition the throne, till he had first petitioned two different ministers of state. In cafe he had obtained juftice from neither, he might then prefent a third petition to the prince; but upon pain of death, if found to be in the wrong. The confequence of which was, that no one dared to offer fuch third petition; and grievances feldom falling under the notice of the fovereign, he had little opportunity to redrefs them. The reftrictions, for fome 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 muft be taken, left, 7 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, it is provided by the ftatute 13 Car. II. ft. I. c. 5. that no petition to the king, or either house of parliament, for any alteration in church or ftate, fhall be figned by above twenty perfons, unless the matter thereof be approved by three juftices of the peace, or the major part of the grand jury, in the country; and in London by the lord mayor, aldermen and common council: nor fhall any petition be prefented by more than ten perfons at a time. But, under thefe regulations, it is declared by the ftatute 1 W. & M. ft. 2. c. 2. that the subject hath a right to petition; and that all commitments and profecutions for fuch petitioning are illegal.

5. The fifth and laft auxiliary right of the subject, that I fhall at prefent mention, is that of having arms for their defence, fuitable to their condition and de2 Montefq. Sp. L1xii. 26. N

VOL. I.

grees, and fuch as are allowed by law. Which is alfo declared by the fame ftatute 1 W. & M. ft. 2. c. 2. and it is indeed a public allowance under due reftrictions, of the natural right of refiftance and felf-prefervation, when the fanctions of fociety and laws are found infufficient to restrain the violence of oppreffion.

In thefe feveral articles confifts the rights, or, as they are frequently termed, the liberties of Englishmen: liberties, more generally talked of, than thoroughly underftood; and yet highly neceffary to be perfectly known and confidered by every man of rank or property, left his ignorance of the points whereon they are founded fhould hurry him into faction and licentioufnefs on the one hand, or a pufillanimous indifference and criminal fubmiffion on the other. And we have seen that these rights confift, primarily, in the free enjoyment of perfonal fecurity, of perfonal liberty, and of private property. So long as thefe remain inviolate, the fubject is perfectly free; for every fpecies of compulfive tyranny and oppreffion muft act in oppofition to one or other of thefe rights, having no other object upon which it can poffibly be employed. To preferve thefe from violation, it is neceffary that the conftitution of parliament be fupported in it's full vigour; and limits, certainly known, be fet to the royal prerogative. And, laftly, to vindicate these rights, when actually violated or attacked, the fubjeds of England are entitled, in the firft place, to the regular adminiftration and free course of juftice in the courts of law; next to the right of petitioning the king and parliament for redrefs of grievances; and, laftly, to the right of having and ufing arms for felf prefervation 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 reftraints. Reftraints in themfelves fo gentle and moderate, as will appear upon farther inquiry, that no man of sense or probity would wifh to fee 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 reftrained from

nothing, but what would be pernicious either to ourfelves or our fellow-citizens. So that this review of our fituation may fully juftify the obfervation of a learned French author, who indeed generally both thought and wrote in the fpirit of genuine freedom *; 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 its conftitution. Recommending therefore to the ftudent in our laws a farther and more accurate fearch into this extenfive and important title, I fhall clofe my remarks upon it with the expiring with of the famous father Paul to his country, "ESTO PERPETUA!"

4 Montefq. Sp. L. xi. 5.

CHAPTER

THE

SECOND.

OF THE PARLIAMENT.

WE are next to treat of the rights and duties of

perfons, as they are members of fociety, and ftand in various relations to each other. These relations. are either public or private: and we will firft confider those that are public.

The most univerfal 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 au-thority from the supreme magiftrate, accountable to him for their conduct, and acting in an inferior fecondary fphere.

In all tyrannical governments the fupreme magiftracy, or the right of both making and of enforcing the laws, is vefted in one and the fame man, or one and the fame body of men; and wherever these two powers are united together, there can be no public liberty. The magistrate may enact tyrannical laws, and execute them in a tyrannical manner, fince he is poffeffed, in quality of difpenfer of justice, with all the power which he as legiflator thinks give himself. But, where the legislative and executive authority are in diftinct hands, the former will take care not to entruft the latter with fo large a power, as may tend to the fubverfion of its 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 legiflative, to wit, the parliament, confifting of king,

proper to

« EdellinenJatka »