NOR is this the only inftance in which the law of the land has poftponed even public neceflity to the facred and inviolable rights of private property. For no fubject of England can be constrained to pay any aids or taxes, even for the defence of the realm or the fupport of government, but fuch as are impofed by his own confent, or that of his reprefentatives in parliament. By the ftatute 25 Edw. I. c. 5. and 6. it is provided, that the king fhall not take any aids or tasks, but by the common affent of the realm. And what that common affent is, is more fully explained by 34 Edw. I. ft. 4. c. I. which enacts, that no talliage or aid fhall be taken. without the affent of the archbishops, bishops, earls, barons, knights, burgeffes, and other freemen of the land: and again, by 14 Edw. III..ft. 2. c. 1. the prelates, earls, barons, and commons, citizens, burgeffes, and merchants fhall not be charged to make any aid, if it be not by the common affent of the great men and commons in parliament. And as this fundamental law had been fhamefully evaded under many

See the introduction to the great charter, (edit. Ox n.) fub anno 1297; wherein it is fhewn that this ftatute de talliagio non concedendo, supposed to have been made in 34 Edw. I, is in reality

nothing more than a fort of tranflation into Latin of the confirmatio cartarum, 25 Edw. I, which was originally publifhed in the Norman language.

any perfon's foil, even without his confent, fo that the new way fhall not be more than thirty feet wide, and that they pull down no building, nor take away the ground of any garden, park, or yard. But the furveyor fhall offer the owner of the foil, over which the new way is carried, a reasonable compenfation, which if he refuses to accept, the juftices fhall certify their proceedings to fome geBeral quarter feflions, and the furveyor fhall give fourteen days notice to the owner of the foil of an intention to apply to the feffions; and the juftices of the feflions fhall impanel a jury, who shall affess the damages, which the owner of the foil has fuftained, provided that they do not amount to more than forty years purchase. And the owner of the foil fhall ftill be entitled to all the mines within the foil, which can be got without breaking the furface of the highway.

[141]

fucceeding princes, by compulfive loans, and benevolences extorted without a real and voluntary confent, it was made an article in the petition of right 3 Car. I, that no man shall be compelled to yield any gift, loan, or benevolence, tax, or fuch like charge, without common consent by act of parlia ment. And, laftly, by the ftatute 1 W. & M. ft. 2. c. 2. it is declared, that levying money for or to the use of the. crown, by pretence of prerogative, without grant of parlia ment; or for longer time, or in other manner, than the fame is or fhall be granted; is illegal.

IN the three preceding articles we have taken a fhort view of the principal absolute rights which appertain to every Englishman. But in vain would these rights be declared, afcertained, and protected by the dead letter of the laws, if the constitution had provided no other method to fecure their acfual enjoyment. It has therefore established certain other auxiliary fubordinate rights of the fubject, which ferve principally as outworks or barriers, to protect and maintain inviolate the three great and primary rights, of personal security, perfonal liberty, and private property. These are,

1. THE conftitution, powers, and privileges of parlia ment, 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 either mistake or legally exceed them without the confent of the people. Of this also 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 be yond 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 fupreme arbiter of every man's life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered 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 these; nulli vendemus, nulli negabimus, aut differemus rectum vel juftitiam : " and therefore every subject," continues the fame learned author, " for injury done to him in "bonis, in terris, vel perfona, by any other subject, be he "ecclefiaftical or temporal, without any exception, may take "his remedy by the course of the law, and have justice and "right for the injury done to him, freely without fale, fully "without any denial, and speedily without delay." It were endless to enumerate all the affirmative acts of parliament, wherein justice is directed to be done according to the law of [ 142 ] the land: and what that law is, every subject knows, or may know, if he pleases; for it depends not upon the arbitrary will of any judge, but is permanent, fixed, and unchangeable, unlefs by authority of parliament. I shall however just mention a few negative ftatutes, whereby abuses, perversions, or delays of juftice, especially by the prerogative, are restrained. It is ordained by magna carta, 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 11 Ric. II. c. 10. 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 disturbance of the law; or to disturb or delay common right: and, though fuch commandments should come, the judges fhall not ceafe to do right; which is also made a part of their oath by statute 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.

u c. 29.

W2 Inft. 55.

x c. 23.

NOT

Not only the fubftantial part, or judicial decifions, of the law, but alfo 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 justice; but then they must proceed according to the old eftablished 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 ftarchamber, 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 in the ftarchamber, borrowed from the civil law,) or by any other arbitrary way whatfoever, 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.

[143] 4. IF there fhould happen any uncommon injury, or infringment of the rights before-mentioned, which the ordinary courfe of law is too defective to reach, there still remains a fourth fubordinate right, appertaining to every indi-. vidual, namely, the right of petitioning the king, or either houfe 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 firft petitioned two different minifters of ftate. In cafe he 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 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 fpirit 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 y Montefq. Sp. L. xii. 26.

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. 1. 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 persons, unless the matter thereof be approved by three juftices of the peace, or the major part of the grand jury (16), 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 statute i 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 last auxiliary right of the fabject, that I fhall at prefent mention, is that of having arms for their defence, fuitable to their condition and degree, and fuch as are allowed by law. Which is alfo declared by the fame statute [ 144 1 1 W. & M. ft. 2. c. 2. and it is indeed a public allowance under due restrictions, of the natural right of refiftance and felf-preservation, when the fanctions of fociety and laws are found infufficient to restrain the violence of oppreffion.

In these several 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 fhould hurry him into faction and licentioufnefs on the one hand, or a pufillanimous indifference and criminal fubmiffion on the other. And we

(16) Either at the affizes or quarter feffions. The punishment for offending against this act not to exceed a fine of 100l. and imprisonment for three months. Upon the trial of lord George Gordon, lord Mansfield and the court declared, that they were clearly of opinion that this fatute was not in any degree affected by the bill of rights. 1 W. M. ft. 2. 6. 2. Doug 571. VOL. I.

N

have