assertor of freedom, [that the English was the only nation in the world where political liberty was the direct end of its constitution (n).]

The political liberty of England has, however, been at some periods [depressed by overbearing and tyrannical princes; at others, so luxuriant as even to tend to anarchy, a worse state than tyranny itself, as any government is better than none at all. But the vigour of our free constitution has always delivered the nation from these embarrassments, and, as soon as the convulsions consequent on the struggle have been over, the balance of our constitutional liberty has settled to its proper level.] The particular rights or liberties which have at different periods been found most liable to the invasions of the prerogative have been, on various occasions of apprehended danger, asserted in parliament. [First, by the Great Charter of liberties, which was obtained sword in hand from King John, and afterwards with some alterations confirmed by King Henry the third, his son: which charter contained very few new grants; but as Sir E. Coke observes (o), was for the most part declaratory of the principal grounds of the fundamental laws of England. Afterwards by the statute called Confirmatio Chartarum(p), whereby the Great Charter is directed to be allowed as the common law-all judgments contrary to it declared void— copies of it ordered to be sent to all cathedral churches and read twice a year to the people,—and sentence of excommunication directed to be constantly denounced against all those that by word, deed, or counsel, act contrary thereto, or in any degree infringe it. Next, by a multitude of subsequent corroborating statutes, from the first Edward to Henry the fourth (g). Then, after a long interval, by the

(n) Montesquieu, Sp. L. 5. (o) 2 Inst. proëm.

(p) 25 Edw. 1. This statute (as to which vide sup. vol. 1. p. 197) not only confirmed Magna Charta, but enacted that none but the antient aids, tasks nor prises should be taken but by the common assent of the

realm, and for the common profit thereof;-a provision which established the great principle of immunity from arbitrary taxation. See Hallam, Mid. Ages, vol. 1. p. 5 (7th edit.)

(q) 2 Inst. proëm.

[Petition of Right, which was a parliamentary declaration of the liberties of the people assented to by King Charles the first, in the beginning of his reign;-which was closely followed by the still more ample concessions made by that unhappy prince to his parliament, before the fatal rupture between them; and by the many salutary laws, particularly the Habeas Corpus Act (r), passed under Charles the second. To these succeeded the Bill of Rights, or declaration delivered by the lords and commons to the Prince and Princess of Orange, 13th February, 1688, and afterwards enacted in parliament when they became king and queen which declaration concludes in these remarkable words, " And they do claim, demand, and insist upon, all "and singular the premises, as their undoubted rights and "liberties (s)." And the act of parliament itself (1 W. &

(r) 31 Car. 2, c. 2, extended by 56 Geo. 3, c. 100.

(s) In the Bill of Rights (1 W. & M. st. 2, c. 2), the rights declared are as follows.

1. That the pretended power of suspending of laws, or the execution of laws, by regal authority without consent of parliament, is illegal.

2. That the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it had been then of late assumed and exercised, is illegal.

3. That the commission for erecting the court of commissioners for ecclesiastical causes, and all other commissions and courts of like nature, are illegal and pernicious.

4. That levying money for or to the use of the crown by pretence of prerogative without grant of parliament, for longer time or in other manner than the same is or shall be granted, is illegal.

5. That it is the right of the subjects to petition the king, and all commitments and prosecutions for

such petitioning are illegal.

6. That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law. 7. That the subjects which are protestants may have arms for their defence, suitable to their conditions, and as allowed by law.

8. That election of members of parliament ought to be free.

9. That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.

10. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

11. That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders. [This provision respecting the qualification of jurors in cases of treason is repealed by the Jury Act, 6 Geo. 4, c. 50.]

1

[M. st. 2, c. 2) recognizes all and singular the rights and liberties, asserted and claimed in the said declaration, to be the "true, antient, and indubitable rights of the people "of this kingdom." Lastly, these liberties were again asserted at the commencement of the eighteenth century, in the Act of Settlement (12 & 13 Will. 3, c. 2), whereby the crown was limited] to her present majesty's illustrious house; [and some new provisions were added, at the same fortunate era, for better securing our religion, laws, and liberties (v); which the statute declares to be the "birthright of the people of England," according to the antient doctrine of the common law (x).]

Some of the rights and liberties thus asserted are of a nature to require particular notice in this place, as being in

12. That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void.

13. And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, parliaments ought to be held frequently.

(v) In the Act of Settlement (12 & 13 Will. 3, c. 2) it is further enacted: 1. That whosoever shall hereafter come to the possession of this crown shall join in communion with the church of England as by law established.

2. That in case the crown and imperial dignity of this realm shall hereafter come to any person, not being a native of this kingdom of England, this nation be not obliged to engage in any war for the defence of any dominions or territories which do not belong to the crown of England, without the consent of parlia

ment.

3. That judges' commissions be made quamdiu se bene gesserint, and their salaries ascertained and established; but upon the address of both

houses of parliament it may be lawful to remove them. [This provision was confirmed by 1 Geo. 3, c. 23, by which statute the judges' commissions are continued notwithstanding the demise of the crown, vide post, p. 482.]

4. That no pardon under the great seal of England, be pleadable to an impeachment by the commons in parliament.

Besides the above provisions, the act of settlement contains some which have been since, at different times, repealed:

As, 1. Against the sovereign going out of the united kingdom without consent of parliament (repealed by 1 Geo. 1, sess. 2, c. 51).

2. As to the matters to be transacted in the privy council (repealed by 4 Anne, c. 8, s. 24).

3. As to aliens naturalized or made denizens (for the present law on this subject, vide sup. pp. 345, 420, 469).

4. As to officers of the crown sitting in parliament (see as to this, sup. p. 372).

(x) Plowd. 55.

the nature of permanent safeguards, provided by our political system for the preservation of the rest. They are as follows:

1. [The constitution, powers, and privileges of parliament,] already stated at large.

2. The free and uncontrolled dispensation of the law, in the ordinary courts of justice.

66

[Since the law is in England the supreme 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 Charta (y), spoken in the person of the king, who, in judgment of law, says Sir E. Coke (z), is ever present and repeating them in all his courts, are these; nulli vendemus, nulli negabimus, aut differemus, rectum vel justitiam ;" and, therefore, every subject," continues the same learned author, “for injury done to him in bonis, in terris, vel personû, by any other subject, "be he ecclesiastical 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 "sale, 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 the land; and what that law is, every subject knows or may know if he pleases; for it depends not upon the will] of the crown, or [of any judge, but is permanent, fixed, and unchangeable, unless by authority of parliament. It may be proper, however, to mention a few negative statutes, whereby abuses, perversions, or delays of justice, especially by the prerogative, are restrained. It is ordained by Magna Charta (a), that 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 Rich. II. c. 10, it is enacted, that no commands or letters shall be sent under the great seal, or the little seal, (a) C. 29.

(y) C. 29.

VOL. II.

(z) 2 Inst. 55.

I I

[the signet, or privy seal, in disturbance of the law; or to disturb or delay common right: and though such commandments should come, the judges shall not cease to do right; which is also made a part of their oath by statute 18 Edw. III. st. 4. And by 1 W. & M. st. 2, c. 2, it is declared, that the pretended power of suspending or dispensing with laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.

Not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament: for if once these outworks were demolished, there would be an inlet to all manner of innovation in the body of the law itself. The sovereign, it is true, may erect new courts of justice, but then they must proceed according to the old established forms of the common law. For which reason it is declared in the statute of 16 Car. I. c. 10, upon the dissolution of the Court of Star Chamber, that neither his majesty, nor his privy council, have any jurisdiction, power, or authority, by English bill, petition, articles, libel, (which were the course of proceedings in the Star Chamber, borrowed from the civil law,) or by any other arbitrary way whatsoever, to examine or draw into question, determine, or dispose of the lands or goods of any subjects of this kingdom; but that the same ought to be tried and determined in the ordinary courts of justice, and by course of law.]

To the head now under consideration must be also referred the provisions which have been made to secure the dignity and political independence of the judges of the superior courts of the common law, at Westminster. [It is enacted by the statute 12 & 13 Will. III. c. 2, that their commissions shall be made (not, as formerly, durante bene placito, but) quamdiu bene se gesserint;] but that it may be lawful to remove them on the address of both houses of parliament. And afterwards by the statute 1 Geo. III. c. 23, [enacted at the earnest recommendation of the king himself from the throne, the judges are con