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OF THE LIBERTY OF INDIVIDUALS.
To prevent its effects, it has been enacted, that all persons concerned in the management of any taxes created since 1692, commissioners of prize, navy, victualling-office, &c., comptrollers of the army accounts, agents for regiments, the clerks in the different offices of the revenue, persons holding any new office under the Crown (created since 1705), or having a pension under the crown during pleasure, or for any term of years, are incapable of being elected members. Besides, if any member accepts an office under the crown, except it be an officer in the army or navy accepting a new commission, his seat becomes void : though such member is capable of being re-elected.
Such are the precautions hitherto taken by the legislators for preventing the undue influence of the great prerogative of disposing of rewards and places; precautions which have been successively taken, according as circumstances have shown them to be necessary; and which, we may thence suppose, are owing to causes powerful enough to produce the establishment of new ones, whenever circumstances shall point out the necessity of them.*
OF PRIVATE LIBERTY, OR THE LIBERTY OF INDIVIDUALS.
WE have hitherto treated only 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 should treat particularly of a thing without which this general liberty, being absolutely frustrated in its object, would be only a matter of ostentation, and even could not long subsist, ---I mean the liberty of individuals.
* Nothing can be a better proof of the efficacy of the causes that produce the liberty of the English, than those victories which the parTiament from time to time gains over itself, and in which the members, forgetting all views of private ambition, only think of their interest as subjects.
Since this was first written, an excellent regulation has been made for the devision of controverted elections. Formerly the House decided
Private liberty, according to the division of the English lawyers, consists, first, of the right of property, that is, of the right of enjoying exclusively the gifts of fortune, and all the various fruits of one's industry ; secondly, of the right of personal security; thirdly, of the locomotive faculty, taking the word liberty in its more confined sense.
Each of these rights, say again the English lawyers, is inherent in the person of every Englishman; they are to him as an inheritance, and he cannot be deprived of them, but by virtue of a sentence passed according to the laws of the land. And, indeed, as this right of inheritance is
them in a very summary manner, and the witnesses were not examined upon oath. But by an Act passed a few years ago (a), the decision is left to a jury, or committee, of fifteen members, formed in the following manner :-Out of the members present, who must not be less than one hundred, forty-nine are drawn by lots : out of these, each candidate strikes off one alternately, till there remain only thirteen, who, with two others, named out of the whole house (one by each candidate), are to form the committee. In order to secure the necessary number of a hundred members, all other business in the House is to be suspended, ill the above operations are completed.
(a) The temporary Act, 10 Geo. III.c. 16, called the Grenville Act, 1776, afterwards amended by other Acts, and repealed by a greatly improved Act, 9 Geo. IV. c. 22 (1828 substituted.) Previous to the Grenville Act, controverted elections were decided by the whole house. By the 9 Geo. IV. c. 22, committees were to be selected by lot. In 1839, a new Act was passed : the selection was not left to chance, but chosen from panels, and reduced to 7 by selection. By 7 and 8 Vict. c. 103, the number of the election committees are reduced to 5. At the commencement of each session the Speaker appoints by warrant 6 members of the House to be a general committee on controverted elections; who proceed to “ Select in their discretion 6, 8, 10, or 12 members, whom they shall think fit to serve as chairmen of election committees.” The members so selected are formed into a separate panel, called the chairmen's panel ; the members of the general comunittee, the principal ministers and members above sixty years of age, are exempted from serving as members of election committees. The general committee then divide the remaining members of the House into 5 panels, from which the members are chosen from those panels by ballot to serve on election committees, to which the electors' petitions of the respective committees are referred by the House through the general committee. The chairman and four members constitute an election committee. The Act contains 101 clauses, and the form of the schedule to fill up the blank election recognizances.-See Supplementary Illustrations, No. 3,-Ed.
expressed in English by one word (birth-right), the same as that which expresses the king's title to the crown, it has, in times of oppression, been often opposed to him as a right, doubtless of less extent, but of a sanction equal to that of his own.
One of the principal effects of the right of property is, that the king can take from his subjects no part of what they possess ; he must wait till they themselves grant it to him : and this right, which, as we have seen before, is, by its consequences, the bulwark that protects all the others, has moreover the immediate effect of preventing one of the chief causes of oppression.
In regard to the attempts to which the right of property might be exposed from one individual to another, I believe I shall have said everything, when I have observed, 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 accusation 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 themselves have no power to pass sentence till the matter of fact has been settled by men nominated, we may almost say, at the common choice of the parties,* all private views, and consequently all respect of persons, are banished from the courts of justice. However, that nothing may be wanting which may help to throw light on the subject I have undertaken to treat, I shall 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 increasing the influence they had already obtained, and caused them to be received in the greater part of Europe. England, which was destined to have a constitution so different from that of other states, was to be farther distinguished by its rejecting the Roman laws.
* From the extensive right of challenging jurymen, which is allowed to every person brought to his trial, though not very frequently used. [At the time when De Lolme wrote this remark was true : but for some years challenging jurymep hạs become of frequent practice.- Ed.]
Under William the Conqueror, and his immediate successors, a multitude of foreign ecclesiastics 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 constituted, might be considered as matter of little importance, was not so in a country where, the sovereign being all-powerful, to obtain influence over him was to obtain power itself. The English nobility saw, with the greatest jealousy, men of a condition so different from their own vested with a power to the attacks of which they were immediately exposed ; and thought that they would carry that power to the height, if they should ever adopt a system of laws which those same men sought to introduce, and of which they would necessarily become both the depositories and the interpreters.
It happened, therefore, by a somewhat singular conjunotion of circumstances, that, to the Roman laws, brought over to England by monks, the idea of ecclesiastical power became associated, in the same manner as the idea of regal despotism was afterwards annexed to the religion of the same 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 illhumour ;* and the usurper Stephen, whose interest it was to conciliate their affections, went so far as to prohibit the study of them.
As the general disposition of things brought about a sufficient degree of intercourse between the nobility or gentry and the people, the aversion to the Roman laws gradually spread itself far and wide; and those laws, to which their
* The nobility, under the reign of Richard II., declared in the French language of those times, “Purce que le roialme d'Engleterre n'étoit devant ces heures, ne à l'entent du roy notre seignior, et seigniors du parlement, unques ne sera rulé ne governé par la loy civil;" viz.,Înasmuch 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 shall be, ruled or governed by the civil law.–Parl. Westmonast. Feb. 3, 1379 (a).-See Supplemental Illustration, No. 4.
(a) Great efforts were made by the clergy and the universities to introduce the civil and supersede the common law as arranged by Gratian. It is considered that excluding the study of the common law from the universities originated the Inns of Court in London.-Ed.
wisdom in many cases, and particularly their extensiveness, ought naturally to have procured admittance when the English laws themselves were yet but in their infancy, experienced the most steady opposition from the lawyers; and as those persons who sought to introduce them frequently renewed their attempts, there at length arose a kind of general combination among the laity to confine them to universities and monasteries. *
This opposition was carried so far, that Fortescue, Chief Justice of the King's Bench, and afterwards Chancellor, under Henry VI., wrote a book entitled De Laudibus Legum Angliæ, in which he proposes to demonstrate the superiority of the English laws over the civil ; and, that nothing might be wanting in his arguments on that subject, he gives them the advantage of superior antiquity, and traces their origin to a period much anterior to the foundation of Rome.
This spirit has been preserved even to much more modern times; and when we peruse the many paragraphs which Judge Hale has written in his History of the Cominon Law, to prove that, in the few cases in which the civil law is admitted in England, it can have no power by virtue of any deference due to the orders of Justinian (a truth which certainly had no need of proof), we plainly see that this Chief Justice, who was also a very great lawyer, had, in this respect, retained somewhat of the heat of party.
Even at present the English lawyers attribute the liberty they enjoy, and of which other nations are deprived, to their
* It might perhaps be shown, if it belonged to the subject, that the liberty of thinking in religious matters, which has at all times remarkably prevailed in England, is derived from nearly the same causes as its political liberty: both perhaps are owing to this, that the same men, whose interest it is in other countries that the people should be influenced by prejudices of a political or religious kind, have been in England forced to inform and unite with them. I shall here take occasion to observe, in answer to the reproach made to the English, by President Henault, in his much-esteemed Chronological History of France, “that the frequent changes of religion which have taken place in England do not argue any servile disposition in the people; they only prove the equilibrium between the then existing sects: there was none but what might become the prevailing one, whenever the sovereign thought proper to declare for it : and it was not England, as people may think at first sight-it was only its government, which changed its religion.”