CHA P. IX.

Of private Liberty, or the Liberty of Individuals.

WE have hitherto only treated of general liberty, that is, of the rights of the Nation as a Nation, and of its share in the Government. It now remains that we fhould treat particularly of a thing without which this general liberty, being abfolutely fruftrated in its object, would be only a matter of oftentation, and even could not long fubfift,-I mean the liberty of individuals.

Private Liberty, according to the divifion of the English Lawyers, confifts, firft, of the right of Property, that is, of the right of enjoying exclufively the gifts of fortune, and all the various fruits of one's industry. Secondly, of the right of Perfonal Security. Thirdly, of the Locomotive Faculty, taking the word Liberty in its more confined sense.

Each of these rights, fay again the English Lawyers, is inherent in the person of every Englifhman; they are to him as an inheritance, and he cannot be deprived of them, but by virtue of a fentence paffed according to the laws of the land. And,

And, indeed, as this right of inheritance is expreffed in English by one word (birth-right), the fame as that which expreffes the King's title to the Crown, it has, in times of oppreffion, been often opposed to him as a right, doubtless of lefs extent, but of a fanction equal to that of his

own.

One of the principal effects of the right of Property is, that the King can take from his fubjects no part of what they poffefs; he must wait till they themselves grant it him and this right, which, as we have seen before, is, by its confequences, the bulwark that protects all the others, has moreover the immediate effect of preventing one of the chief caufes of oppreffion.

of

In regard to the attempts to which the right

property might be expofed from one individual to another, I believe I fhall have faid every thing, when I have obferved, that there is no Man in England who can oppose the irresistible power of the Laws,-that, as the Judges cannot be deprived of their employments but on an accufation by Parliament, the effect of interest with the Sovereign, or with those who approach his person, can scarcely influence their decisions,that, as the Judges themfelves have no power to pass fentence till the matter of fact has been fettled by men nominated, we may almost say, at the

common choice of the parties*, all private views, and confequently all refpect of perfons, are banished from the Courts of Juftice. However, that nothing may be wanting which may help to throw light on the fubject I have undertaken to treat, I fhall relate, in general, what is the law in civil matters, that has taken place in England.

When the Pandects were found at Amalphi, the Clergy, who were then the only Men that were able to understand them, did not neglect that opportunity of increafing the influence they had already obtained, and caufed them to be received in the greater part of Europe. England, which was destined to have a Conftitution fo different from that of other States, was to be farther diftinguished by its rejecting the Roman Laws.

Under William the Conqueror, and his immediate fucceffors, a multitude of foreign Ecclefiaftics flocked to the Court of England. Their influence over the mind of the Sovereign, which, in the other States of Europe, as they were then conftituted, might be confidered as matter of no great importance, was not fo in a Country where the fovereign being all-powerful, to obtain influence over him, was to obtain power itself. The

* Owing to the extensive right of challenging jurymen, which is allowed to every perfon brought to his trial, though not very frequently used. English

English Nobility faw with the greatest jealousy, Men of a condition fo different from their own, vested with a power to the attacks of which they were immediately expofed, and thought that they would carry that power to the height, if they were ever to adopt a fyftem of laws which thofe fame men fought to introduce, and of which they would neceffarily become both the depofitaries and the interpreters.

It happened, therefore, by a fomewhat fingular conjunction of circumstances, that, to the Roman Laws, brought over to England by Monks, the idea of ecclefiaftical power became affociated, in the fame manner as the idea of regal Defpotism became afterwards annexed to the Religion of the fame Monks, when favoured by Kings who endeavoured to establish an arbitrary government. The Nobility at all times rejected these laws, even with a degree of ill humour *; and the ufurper Ste

The nobility, under the reign of Richard II. declared in the French language of thofe times,"Purce que le "roialme d'Engleterre n'étoit devant ces heures, ne a l'en"tent du Roy notre Seignior, & Seigniors du Parlement, "unques ne fera, rulé ne governé par la ley civil." viz. Inafmuch as the Kingdom of England was not before this time, nor according to the intent of the King our Lord, and Lords of Parliament, ever fhall be, ruled or governed by the civil law. In Rich. Parlamento Westmonafterii, Feb. 3. Anno 2.

phen, whofe intereft it was to conciliate their affections, went fo far as to prohibit the study of them,

As the general difpofition of things brought about, as hath been above obferved, a sufficient degree of intercourfe between the Nobility or Gentry, and the People, the averfion to the Roman Laws gradually spread itself far and wide; and those laws, to which their wifdom in many cafes, and particularly their extenfiveness, ought naturally to have procured admittance when the English laws themselves were as yet but in their infancy, experienced the moft fteady oppofition from the Lawyers; and as thofe perfons who fought to introduce them, frequently renewed their attempts, there at length arofe a kind of general combination amongst the Laity, to confine them to Univerfities and Monafteries *.

This

*It might perhaps be fhewn, if it belonged to the fubject, that the liberty of thinking in religious matters, which has at all times remarkably prevailed in England, is owing to much the fame caufes as its political liberty: both perhaps are owing to this, that the fame Men, whofe interest it is in other Countries that the people fhould be influenced by prejudices of a political or religious kind, have been in England forced to inform and unite with them. I fhall he e take occafion to obferve, in anfwer to the reproach made to the English, by Prefident Henault, in his much efteemed Chronological Hiftory of France, that the frequent changes of religion which have taken place in England, do not argue any fervile difpofition in the people; they only prove the

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