had provided no other method to fecure their actual enjoyment. It has therefore established certain other auxiliary fubordinate rights of the subject, which ferve principally as barriers to protect and maintain inviolate the three great and primary rights of personal security,personal liberty, and private property. These are, 1. THE Constitution, powers, and privileges of parliament, of which I fhall treat at large in the enfuing chapter. 2. THE limitation of the king's prerogative, by bounds fo certain and notorious, that it is impoffible he fhould exceed them without the consent of the people. Of this alfo I fhall treat in it's proper place. The former of these keeps the legislative power in due health and vigour, fo as to make it improbable that laws should be enacted deftructive of general liberty: the latter is a guard upon the executive power, by reftraining it from acting either beyond or in contradiction to the laws, that are framed and established by the other, 3. A THIRD fubordinate right of every Englishman is that of applying to the courts of justice for redrefs of injuries. Since the law is in England the supreme arbiter of every man's life, liberty, and property, courts of juftice muft at all times be open to the subject, and the law be duly adminiftred therein. The emphatical words of magna carta", fpoken in the perfon of the king, who in judgment of law (fays fir Edward Coke") is ever present and repeating them in all his courts, are thefe; mul vendemus, nulli negabimus, aut differemus rectum vel juftitiam. " and therefore every fubject," continues the fame learned author," for injury done to him in bonis, in terris, vel perfona, by any other subject, be he ccclefiaftical or temporal without any "exception, may take his remedy by the courfe of the law, and "have juftice and right for the injury done to him, freely with"out fale, fully without any denial, and speedily without delay." It were endless to enumerate all the affirmative acts of parliament, 66 wherein justice 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 shall however just mention a few negative ftatutes, whereby abuses, perverfions, or delays of justice, especially by the prerogative, are reftrained. It is ordained by magna carta, thạt 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 pr letters thall be fent under the great feal, or the little feal, the fignet, or privy feal, in distur bance of the law; or to disturb or delay common right: and, though fuch commandments should come, the judges fhall not cease to do right; which is also 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 those 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 eftablished forms of the common law. For which reafon it is declared in the statute 16 Car. I. c. 10. upon the diffolution of the court of starchamber, that neither his majesty, nor his privy council, have any jurisdiction, power, or authority by English bill, petition, articles, libel (which were the courfe of proceeding to the starchamber, borrowed from the civil law) or by any other arbitrary way whatsoever, to examine, or drawinto 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. x c. 19. 4. IF 4. If there fhould happen any uncommon injury, or infringement of the rights before-mentioned, which the ordinary course 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 redress of grievances. In Ruffia we are told that the czar Peter established a law, that no fubject might petition the throne, till he had first petitioned two different minifters 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 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 redress them. The restrictions, 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 must be taken, left, under the pretence of petitioning, the fubject 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 statute 13 Car. II. ft. 1. c. 5. that no petition to the king, or either house of parliament, for any alterations 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, in the country; and in London by the lord mayor, aldermen, and common council: nor fhall any petition be presented by more than ten perfons at a time. But, under these 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 shall at present mention, is that of having arms for their defence, fuitable to their condition and degree, and fuch as are allowed by law. 9 Montefq. Sp. L. xii. 16; law. Which is alfo declared by the fame ftatute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due reftrictions, of the natural right of resistance and self-prefervation, when the fanctions of society and laws are found infufficient to reftrain the violence of oppreflion. In these feveral articles confift the rights, or, as they are frequently termed, the liberties of Englishmen: liberties more generally talked of, than thoroughly understood; 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 should hurry him into faction and licentiousness on the one hand, or a pufillanimous indifference and criminal fubmiflion on the other. And we have seen that these rights confist, 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 oppression must act in opposition to one or other of thefe rights, having no other object upon which it can poffibly be employed. To preferve these from violation, it is neceffary that the constitution of parliaments be fupported in it's full vigor; and limits, certainly known, be fet to the royal prerogative. And, laftly, to vindicate these rights, when actually violated or attacked, the fubjects 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 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 restraints. Reftraints in themfelves fo gentle and moderate, as will appear upon farther enquiry, that no man of fenfe or probity would with 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 cither to ourselves or our fellow citizens. So that this review of our fitua tion tion may fully juftify the observation of a learned French author, who indeed generally both thought and wrote in the spirit 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 it's conftitution. Recommending therefore to the ftudent 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 wifh of the famous father Paul to his country, "ESTO PERPETUA!" a Montefq. Sp. L. xi. s. T |