*140] *Nor is this the only instance in which the law of the land has postponed even public necessity to the sacred and inviolable rights of private property. For no subject of England can be constrained to pay any aids or taxes, even for the defence of the realm or the support of government, but such as are imposed by his own consent, or that of his representatives in parliament. By the statute 25 Edw. I. c. 5 and 6, it is provided, that the king shall not take any aids or tasks, but by the common assent of the realm. And what that common assent is, is more fully explained by 34 Edw. I. st. 4, c. 1, which(t) enacts that no talliage or aid shall be taken without the assent of the archbishops, bishops, earls, barons, knights, burgesses, and other freemen of the land: and again by 14 Edw. III. st. 2, c. 1, the prelates, earls, barons, and commons, citizens, burgesses, and merchants, shall not be charged to make. any aid, if it be not by the common assent of the great men and commons in parliament. And as this fundamental law had been shamefully evaded under many succeeding princes, by compulsive loans, and benevolences extorted without a real and voluntary consent, 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 such like charge without common consent by act of parliament. And, lastly, by the statute I W. and M. st. 2, c. 2, it is declared, that levying money for or to the use of the crown, by pretence of prerogative, without grant of parliament, or for longer time, or in other manner, than the same is or shall be granted, is illegal.

In the three preceding articles we have taken a short view of the principal absolute rights which appertain to every Englishman. But in vain would

(t) See the introduction to the great charter, (edit. Oxon.) sub anno 1297; wherein it is shown that this statute de talliagio non concedendo, supposed to have been made in 34

20

Edw. I., is, in reality, nothing more than a sort of translation into Latin of the confirmatio cartarum, 25 Edw. I., which was originally published in the Norman language.

the damages which the owner of the soil has sustained, provided that they do not amount to more than forty years' purchase. And the owner of the soil shall still be entitled to all the mines within the soil which can be got without breaking the surface of the highway. Many other acts for local improvements, recently passed, contain similar compensation clauses.-CHITTY.

The constitution of the United States has provided (Amendments, Art. V.) that private property shall not be taken for public use without just compensation. A similar provision is contained in the several State constitutions. The compensation may be ascertained in any equitable and fair mode, to be provided by law, without the intervention of a jury, inasmuch as trial by jury is only required on issues in fact, in civil and criminal cases in courts of justice. The better opinion is that the compensation or offer of it must precede or be concurrent with the seizure and entry upon private property under the authority of ne State. In Bonaparte vs. Camden & Amboy Railroad Co., 1 Baldwin, 205, it was held that a law taking private property for public use without providing compensation was not void; for it may be provided by a subsequent law. But the execution of the law will be prevented by injunction until the provision is made, and the payment ought to be simultaneous with the actual appropriation of the property. It has been determined, however, that it is sufficient if provision be made to ascertain and pay the damages: they need not be actually ascertained and paid previous to the entry and appropriation of the property. Bloodgood vs. Railroad Co., 18 Wendell, 1, 59. This is the construction given to English statutes in like cases, and frequently, as Lord Denman observed, the amount of compensation cannot be ascertained until the work is done. Lister vs. Lobley, 7 Ad. & Ell. 124.

There are cases undoubtedly in which the right to destroy property may exist without any remedy by the owner against the public or individuals. Thus it has been held that the right to destroy property in cases of extreme emergency, as to prevent the spread of a conflagration, is not the exercise of the right of eminent domain, nor the taking of it for public use, but is a right existing at common law, founded on the plea of necessity, and may be exercised by individuals. The American Print Works vs. Laurens, 1 Zabriskie, 248. See 2 Kent's Com. 339, notes.-SHARSWOOD.

20 Chancellor Kent enumerates among the absolute rights of individuals the free exercise and enjoyment of religious profession and worship. Civil and religious liberty generally go hand in hand; and the suppression of either of them for any length of time will terminate the existence of the other. It is ordained by the constitution of the United States (Amendments, Art. I.) that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; and the same pro

these rights be declared, ascertained, and protected by the dead letter of the laws, if the *constitution had provided no other method to secure their [*141 actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as outworks or bar. riers 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 shall treat at large in the ensuing chapter.

2. The limitation of the king's prerogative, by bounds so certain and notorious, that it is impossible he should either mistake or legally exceed them without the consent of the people. Of this, also, I shall treat in its proper place. The former of these keeps the legislative power in due health and vigour, so as to make it improbable that laws should be enacted destructive of general liberty: the latter is a guard upon the executive power by restraining it from acting either beyond or in contradiction to the laws, that are framed and established by the other.

3. A third subordinate right of every Englishman is that of applying to the courts of justice for redress of injuries. 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 carta, (u) spoken in the person of the king, who in judgment of law (says Sir Edward Coke) (w) 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 persona, 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 [*142 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.

hibition on the State legislature appears in all the State constitutions. The principle is generally announced in them without any kind of qualification or limitation annexed, and with the exclusion of every species of religious test. He adds a brief account of the early charters and laws, so far as they bear on the point, and concludes that it appears from these illustrious examples that various portions of this country became, even in its infant state, distinguished asylums for the enjoyment of the principles of civil and religious liberties by the persecuted votaries of those principles from every part of Europe. 2 Kent's Com. 34.

Another of the absolute rights of individuals, in a state of society, which ought not to be omitted in such an examination, is the freedom of speech and of the press. The constitution of the United States has made the general provision that Congress shall make no "law abridging the freedom of speech or of the press." (Amendment, Art. I.) The State Bills of Rights have clauses of the same character, but more precise and particular. We may take that of Pennsylvania as an instance:-"The printing-presses shall be free to every person, who undertakes to examine the proceedings of the legislature, or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. In prosecutions for the publication of papers investigating the official conduct of officers, or men in a public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases." (Const. Penn., Art. IX. s. 7.) in some constitutions the extension of the right to give the truth in evidence is more at large, and applies to all prosecutions or indictments for libels, without any qualifications annexed in restraint of the privilege. 2 Kent's Com., 23, note SHARSWOOD.

I shall, however, just mention a few negative statutes, whereby abuses, perversions, or delays of justice, especially by the prerogative, are restrained. It is ordained by magna carta,(x) 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 Ric. II. c. 10, it is enacted, that no commands or letters shall be sent under the great seal, or the little seal, 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. and 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 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 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 16 Car. I. c. 10, upon the dissolution 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 course of proceeding in the starchamber, 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. 4. *If there should happen any uncommon injury, or infringement *143] of the rights before mentioned, which the ordinary course of law is too defective to reach, there still remains a fourth subordinate right, appertaining to every individual, namely, the right of petitioning the king, or either house of parliament, for the redress of grievances." In Russia we are told(y) that the czar Peter established a law, that no subject might petition the throne till he had first petitioned two different ministers 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 consequence of which was that no one dared to offer such third petition; and grievances seldom falling under the notice of the sovereign, he had little opportunity to redress them. The restrictions, for some 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, lest, under the pretence of petitioning, the subject 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. st. 1, c. 5, that no petition to the king, or either house of parliament, for any alteration 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 com

21"The right of the people peaceably to assemble and to petition the government for a redress of grievances shall not be prohibited." (Const. U. S. Amendments, Art. III.) This clause was the subject of much discussion in regard to petitions presented to Congress for the abolition of slavery in the District of Columbia; and it was the decision of Congress then that this clause did not imply any duty in the legislature to receive, read, or act upon such petitions.-SHARSWOOD.

22 Which the grand jury may do either at the assizes or sessions. The punishment for an offence against this act, is a fine to any amount not exceeding 1007., and imprisonment for three months. At the trial of lord George Gordon, the whole court, including lord Mansfield, declared that this statute was not affected by the bill of rights. 1 Wm! & M. at. 2, c. 2, (see Douglas, 571.) But Mr. Dunning, in the house of commons, contended

mon council: nor shall any petition be presented by more than ten persons at a time. But, under these regulations, it is declared by the statute 1 W and M. st. 2, c. 2, that the subject hath a right to petition; and that all commitments and prosecutions for such petitioning are illegal.

5. The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are *allowed by law. Which is also declared

by the same statute, 1 W. and M. st. 2, c. 2, and is indeed a public al- [*144

lowance, under due restrictions, of the natural right of resistance and selfpreservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

In these several articles consist the rights, or, as they are frequently termed, the liberties of Englishmen: liberties more generally talked of, than thoroughly understood; and yet highly necessary to be perfectly known and considered by every man of rank and property, lest his ignorance of the points whereon they are founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other. And we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed. To preserve these from violation, it is necessary that the constitution of parliament be supported in its full vigour; and limits, certainly known, be set to the royal prerogative. And, lastly, to vindicate these rights, when actually violated or attacked, the subjects 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

"that it was a clear and fundamental point in the constitution of this country, that the people had a right to petition their representative in parliament, and that it was by no means true that the number of names signed to any such petition was limited. To argue that the act of Charles was now in force, would be as absurd as to pretend that the prerogative of the crown still remained in its full extent, notwithstanding the declaration in the bill of rights." See New An. Reg. 1781, v. 2. And the acknowledged practice has been consistent with this opinion.

The state of disturbance and political excitement in which this kingdom was involved several years, after the peace of 1815, produced further regulations and restrictions of the right of petitioning. The people in the manufacturing districts having little employment, from the general stagnation of trade, devoted themselves with intense ardour to political discussions, and in some places the partisans of reform, presuming that their demands would not be conceded to their petitions, were preparing for the alternative of open force. In these circumstances the legislature thought fit to forbid all public meetings (except county meetings called by the lord-lieutenant or the sheriff) which consisted of more than fifty persons, unless in separate townships or parishes, by the inhabitants thereof, of which six days' previous notice must be given to a justice of the peace, signed by seven resident householders. See 60 Geo. III. c. 6. The act also provides for the dissolution of any public meeting by proclamation of a chief civil officer of the place, and persons refusing to depart, are liable to seven years' transportation. Persons attending such meetings with arms, bludgeons, flags, banners, &c., are subject to fine and imprisonment for any term not exceeding two years.

But as the mischief was temporary, the restrictions upon the right of meeting to deliberate upon public measures were limited in their duration, and have mostly expired; those enactments which were designed to prevent such meetings from being perverted to objects manifestly dangerous to the peace of the community, only continuing in force.-CHITTY.

The right of the people to keep and bear arms shall not be infringed; (Const. U. S. Amendments, Art. IV.;) and this without any qualification as to their condition or degree, as is the case in the British government. Whoever examines the forest and game laws in the British code will readily perceive that the right of keeping arms is effectually taken away from the people of England. The commentator himself informs us (vol. ii. p. 412) "that the prevention of popular insurrections and resistance to government by disarming the bulk of the people is a reason oftener meant than avowed by the makers of the forest and game laws."-TUCKER.

of petitioning the king and parliament for redress of grievances; and, lastly, to the right of having and using arms for self-preservation 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 necessary restraints: restraints in themselves so gentle and moderate, as will appear, upon further inquiry, that no man of sense or probity would wish to see them slackened. For all of us have it in our choice to do every thing that a good man would desire to do; and are restrained from nothing but what would be pernicious either to ourselves or our fellow-citizens. So that this review *of our situation may

*145] fully justify the observation of a learned French author, who indeed generally both thought and wrote in the spirit of genuine freedom,(z) and who hath not scrupled to profess, even in the very bosom of his native country, that the English is the only nation in the world where political or civil liberty is the direct end of its constitution. Recommending, therefore, to the student in our laws a further and more accurate search into this extensive and important title, I shall close my remarks upon it with the expiring wish of the famous father Paul to his country, "ESTO PERPETUA.”

CHAPTER II.

OF THE PARLIAMENT.

WE are next to treat of the rights and duties of persons, as they are members of society, and stand in various relations to each other. These relations are either public or private: and we will first consider those that are public

The most universal public relation, by which men are connected together, is that of government; namely, as governors or governed; or, in other words, as magistrates and people. Of magistrates, some also are supreme, in whom the sovereign power of the state resides; others are subordinate, deriving all their authority from the supreme magistrate, accountable to him for their conduct, and acting in an inferior secondary sphere.

In all tyrannical governments, the supreme magistracy, or the right of both making and of enforcing the laws, is vested in one and the same man, or one and the same body of men; and wherever these two powers are united together, there can be no public liberty. The magistrate may enact tyrannical laws, and execute them in a tyrannical manner, since he is possessed, in quality of dispenser of justice, with all the power which he, as legislator, thinks proper to give himself. But, where the legislative and executive authority are in distinct hands, the former will take care not to intrust the latter with so large a power as may tend to the subversion of its own independence, and therewith of the liberty of the subject. With us, therefore, in England, this *147] supreme power is divided into *two branches; the one legislative, tc wit, the parliament, consisting of king, lords, and commons; the other executive, consisting of the king alone. It will be the business of this chapter to consider the British parliament, in which the legislative power, and (of course) the supreme and absolute authority of the state, is vested by our constitution.1

(*) Montesq. Sp. L. 5.

'It will not, of course, be forgotten by the American student that in the government under which it is his privilege to live, "legislative power," and "the supreme and absolute authority of the state," are not convertible terms. The people of every state alone possess, and can exercise, supreme and absolute authority; the legislature, as the other departments of government, are but the depositaries of delegated powers, more or less limited according to the terms of the letter of attorney, the constitution: their acts, if they transcend their powers or violate their written instructions, are null and void.-SHARSWOOD