feas; (where they cannot have the full benefit and protection of the common law) but that all fuch imprisonments shall be illegal; that the perfon, who fhall dare to commit another contrary to this law, fhall be difabled from bearing any of fice, fhall incur the penalty of a praemunire, and be incapable of receiving the king's pardon: and the party suffering shall also have his private action against the person committing, and all his aiders, advisers and abettors, and shall recover treble costs; befides his damages, which no jury fhall affefs at lefs than five hundred pounds.

THE law is in this refpect fo benignly and liberally construed for the benefit of the subject, that, though within the realm the king may command the attendance and service of all his liegemen, yet he cannot fend any man out of the realm, even upon the public service; excepting failors and foldiers, the nature of whofe employment neceffarily implies an exception: he cannot even conftitute a man lord deputy or lieutenant of Ireland against his will, nor make him a foreign ambaffador. For this might in reality be no more than an honourable exile.

III. THE third abfolute right, inherent in every Englishman, is that of property: which confifts in the free use, enjoyment, and disposal of all his acquifitions, without any control or diminution, fave only by the laws of the land. The original of private property is probably founded in nature, as will be more fully explained in the second book of the ensuing commentaries: but certainly the modifications under which we at prefent find it, the method of conferving it in the prefent owner, and of tranflating it from man to man, are entirely derived from fociety: and are fome of those civil advantages, in exchange for which every individual has refigned a part of his natural liberty. The laws of England are therefore, in point of honour and juftice, extremely watchful in afcertaining and protecting this right. Upon this principle the great charter has declared that no freeman fhall be diffeifed, or divested, of his freehold, or of his liberties, or free cuf

г

9 2 Inft. 46.

T c. 29:

toms,

toms, but by the judgment of his peers, or by the law of the land. And by a variety of antient statutes it is enacted, that no man's lands or goods fhall be feifed into the king's hands, against the great charter, and the law of the land; and that no man fhall be difinherited, nor put out of his franchises or freehold, unless he be duly brought to answer, and be forejudged by course of law; and if any thing be done to the contrary, it shall be redreffed, and holden for none.

So great moreover is the regard of the law for private property, that it will not authorize the leaft violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private perfon, it might perhaps be extenfively beneficial to the public; but the law permits no man, or set of men, to do this without confent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, the public good is in nothing more effentially interested, than in the protection of every individual's private rights, as modelled by the municipal law. In this and fimilar cases the legiflature alone can, and indeed frequently does, interpose, and compel the individual to acquiefce. But how does it interpofe and compel? Not by abfolutely stripping the fubject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby fuftained. The public is now confidered as an individual, treating with an individual for an exchange. All that the legislature does, is to oblige the owner to alienate his poffeffions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform.

$ 5 Edw. III. c. 9. 25 Edw. III. f. 5. c. 4. 28 Edw. III. c. 3.

NOR

t

NOR is this the only inftance in which the law of the land has poftponed even public neceffity to the facred and invioJable 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 imposed by his own confent, or that of his representa tives 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. 1. which enacts, that no talliage or aid fhall be taken without the affent of the archbishops, bifhops, 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 assent of the great men and commons in parliament. And as this fundamental law had been fhamefully evaded under many fucceeding princés, 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 fhall be compelled to yield any gift, loan, or benevolence, tax, or fuch like charge, without common confent 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 ather manner, than the fame is or fhall be granted; is illegal.

IN the three preceding articles we have taken a short view of the principal abfolute rights which appertain to every Englifhman. But in vain would thefe rights be declared, afcer tained, and protected by the dead letter of the laws, if the

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

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

conftitution

conftitution had provided no other method to fecure their ac tual enjoyment. It has therefore eftablifhed 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 perfonal fecurity, perfonal liberty, and private property. These are,

I. THE conftitution, powers,, and privileges of parlia ment, of which I shall treat at large in the ensuing chapter.

2. THE limitation of the king's prerogative, by bounds, fo certain and notorious, that it is impoffible he should either mistake or legally exceed them without the confent of the people. Of this alfo 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 fhould be enacted deftructive of general liberty: the latter is a guard upon the executive power, by reftraining it from acting either beyond or in contradiction to the laws, that are framed and eftablished by the other.

3. A THIRD fubordinate right of every Englishman is that of applying to the courts of justice for redress 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 fubject, and the law be duly administered therein. The emphatical words of magna carta", fpoken in the person of the king, who in judgment of law (fays fir Edward Coke) is ever prefent and repeating them in all his courts, are thefe; nulli vendemus, nulli negabimus, aut differe mus rectum vel juftitiam: " and therefore every fubject," continues the fame learned author, " for injury done to him in "bonis, in terris, vel perfona, by any other fubject, 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,

□ 6.29.

w 2 Init. 55.

wherein

wherein juftice 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 arbitrary will of any judge, but is permanent, fixed, and unchangeable, unlefs by authority of parliament. 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*, 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. II. c. 8. and II Ric. II. c. 1o. it is enacted, that no commands or letters shall be sent under the great feal, or the little feal, the fignet, or privy feal, in difturbance of the law; or to disturb or delay common right: and, though fuch commandments should come, the judges fhall not cease 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 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 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 muft proceed according to the old established forms of the common law. For which reason it is declared in the ftatute 16 Car. I. c. 10, upon the diffolution of the court of ftarchamber, that neither his majefty, nor his privy council, have any jurifdiction, 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 whatsoever, to examine, or draw into queftion, determine, or dispose 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 justice, and by courfe of law.

x c. 29.