nation, will never suffer themselves to be told that they do not possess a legitimate right to alter, to curtail, or to annihilate it.- -The doctrines in the text, were not propagated for the first time by Fortescue, with the intention of captivating the affections of his countrymen, in favour of an exiled Sovereign, as Sir John Finch suggested; but they will be found to be no less unequivocally asserted, in the more ancient treatises of Bracton and Fleta, (See the principal Passages to this effect in these Authors, referred to in Hallam's Middle Ages, c. 8. Milton's Defensio Pro. Pop. Angl. and Hurd's Dialogue on the Constitution. The Mirror regards the King as being under the protection of the Law, in the same manner as an Infant, ch. 4. §. 22.) And the same opinions are maintained by Fortescue, in his work upon political monarchy, which he published after his reconciliation with Edw. IV. The notion of the divine right of kings, had indeed been promulgated in England, previous to the time when Fortescue wrote, (Bishop of Carlisle's Speech on the Deposition of Rich. II. Hayward's Life of Henry IV.) A parliamentary title to the throne, however, became established on more than one signal occasion, (Brief History of the Succession, Somer's Tracts. Discourse iv. in Foster's Crown Law.) And the deference to the authority of Parliament, evinced by princes in the heat of victory, in the raptures of a successful Revolution, and before the armies could be disbanded, had stampt a remarkable feature on the early history of this country. (Oldcastle's Remarks on English History, Letter 8.) Neither did the opinion of a divine and indefeasible right in kings, make much progress until a comparatively late period. Sir Thomas More, in a remarkable discourse, which he held with the Solicitor General, respecting the supremacy, treats the subserviency of the right of the Crown to that of Parliament, as a truth not to be disputed ; and by an early Statute of Elizabeth, it was made treason, to call in question the power of Parliament to alter the succession. It has been conjectured, that the circumstances which attended the reception of the Reformation into England, first rendered prevalent this opinion, (Hurd's Dial. on the Constitution.) The peculiar nature of the title of the house of Stuart to the throne, may have contributed materially to disseminate it, (Burnet's Own Times, last Edition, Vol. III. 382 n. Hargrave's Preface to Hale's Jurisdiction of the Lords, 145 n. Luder's Tract on the Will of Hen. VIII.) It is called in a speech of Lord Shaftsbury's, a Laudean Doctrine; and certainly that prelate conspired with his Sovereign, to sanction the delivering of tenets so heinous in their nature from the pulpit: a profanation of the religious feeling of the country, only to be paralleled by the introduction of them as articles into national oaths, (Transactions respecting Manwaring and Sibthorp, Tem. Car. I. Progress of Arbitrary Power, by Andrew Marvel. Letter from a Person of Quality, Tracts

Tem.

Tem. Car. II. Debate about the Subscription to Passive Obedience in Echard's History, Vol. III. p. 379. et seq. and Act of Uniformity, the Corporation Act, Militia Act, and Five-Mile Act.) It is to a convocation held in the time of James I, that the origin of the patriarchal theory of government is to be referred; which, when it was afterwards supported by Filmer, had a practical influence, and acquired a celebrity, that can only be accounted for, by its peculiar adaptation to the reading and genius of the times.-The debates upon the subject of the exclusion, must have contributed very much to enlighten the understandings of men, and to teach them to separate the objects of government, from the instruments by means of which those objects are to be obtained; but it was reserved for the event of the Revolution, practically to convince mankind of the happiness which a nation may reap, by resolving, at a fit crisis, to exchange the manager of the public trust, rather than frustrate the purposes for which he was invested with power. The distinguished Statesmen, who contributed to renovate the Constitution of this country, at the period of the Revolution, effected no doubt an important change in the opinions of the nation, respecting the true ends of Government, in bringing back the minds of men to the liberal views and principles, which were to be learnt from a writer of the age of Henry the Sixth. And it is no disparagement of the high merit, which will always be ascribed to them, by a grateful nation, if, in the present day, we are struck with a sense of impropriety, perhaps of the danger, of resting the indestructible privileges of mankind, upon the fiction, adopted by them, of an original compact, (Hardwick's State Papers, Vol. II. p. 401. Sacheverell's Trial, Hargr. St. Tr. Burke's Appeal to the Old Whigs. Hume's Essays on Resistance, and the Original Compact. Bolinbroke's Dissertation on Parties. Paley's Political Philosophy. Bentham's Fragment on Government. Sir W. Temple's Essay on Government.) The manifesto of the Representatives of the United States of America, when they declared their independence of Great Britian, expresses more correctly the dictates of nature and of wisdom. "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights; that among them are life, liberty, and the pursuit of happiness: that to secure these rights, governments are instituted amongst men, deriving their just powers from the consent of the governed: that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to constitute a new government, laying its foundations on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happi

ness."

CHAP. XV.

Chancellor. I OBSERVE, Sir, that you have given attention, and remember well what I have hitherto been discoursing upon, therefore you have the better title to receive an answer to your question. Know then, that all human laws are either the Law of Nature, Customs, or Statutes, which are also called Constitutions: but, the two former, when they are reduced into writing, and made public by a sufficient authority of the Prince, and commanded to be observed, they then pass into the nature of, and are accepted as constitutions or statutes, and, in virtue of such promulgation and command, oblige the subject to the observance of them under a greater penalty than otherwise they could do. Such are a considerable part of the Civil Laws which are digested in great volumes by the Roman Emperors, and by their authority commanded to be observed: whence they obtain the name of the Civil Law, in like manner as all other imperial edicts or statutes. If therefore, under these three distinctions of the Law of Nature, Customs and Statutes, the fountains and originals of all laws, I shall prove the Law of England eminently to excel, then I shall have evinced it to be good and effectual for the government of that kingdom. Again, if I clearly make out that it is as well accommodated for the good of that State, as the Civil Laws are for that of the empire then I shall have made appear, that the Law of England is not only an excellent law, but that, in its kind, it is as well chosen as the Civil Law. In proof of this, I proceed.

CHAP. XVI.

THE Laws of England, as far as they agree with, and are deduced from the Law of Nature, are neither better nor worse in their decisions than the laws of all other states or kingdoms in similar cases. For, as the philosopher says, in the fifth of his Ethics, "The Law of Nature is the same, and has the same force all the world over." Wherefore I see no occasion to enforce this point any farther; so now, the enquiry rests, what the customs and statutes of England are: and, in the first place we will consider and look into the nature of those customs.

a

There is a fine passage in Cicero de Republicâ, descriptive of the Law of Nature. "Huic legi nec abrogari fas est neque derogari ex hâc aliquid licet, neque tota abrogari potest. Nec vero aut per senatum aut per populum solvi hâc lege possumus. Neque est quærendus explanator aut interpres ejus alius nec erit alia lex Romæ, alia Athenis, alia nunc, alia posthac. Sed et omnes gentes et omni tempore una lex et sempiterna et immutabilis continebit, unusque erit communis quasi magister et imperator omnium Deus, ille legis hujus inventor, disceptator, lator: cui non parebit ipse se fugiet ac naturam hominis aspernatus, atque hoc ipso luet maximas pœnas etiam si cetera supplicia quæ putantur, effugint." lib. 3. §. 22. The subject of the Law of Nature has been treated of with great learning by the foreign Jurists, and some Authors of our own country have written profoundly apon it. (Bishop Cumberland de Lege Natura. Tyrrel's Disquisition on the Law of Nature. Selden de jure Naturali et Gentium juxta Disciplinam Hebræorum. See also Bishop of Cloyne on Passive Obedience. First Book of Hooker's Ecclesiastical Polity.) The question whether there exist any uniform dictates of nature independent of the consideration of utility, is one which to the philosopher does not admit of a very easy solution. But every

Thus some

friend to the institutions of his country, will watch, with vigilant care, an appeal to so vague a standard as that of natural right, in any question, which is capable of being determined by the municipal law. Much uncertainty and perplexity arising from this source, is to be found in our legal authorities. eminent lawyers have expressed an opinion that an Act of Parliament made against natural justice, or the law of God, is void, and the reason assigned is, that "leges naturæ sunt immutabilia" and they are "leges legum." (Hobart 87. 12 Mod. 687.) And hence questions have arisen, whether usury was against the law of God; the same of Commendams; whether a statute that no alms should be given, would militate against that law, and whether it enjoined that no excommunicated person should maintain an action: again, the Law of Nature has been thought to direct, that gifts ought to become void by reason of ingratitude. (3 Inst. 151. Hob. 149. Doctor and Student. Dial, i. ch. 6. Dial. ii. ch. 45.) Perhaps Sir E. Coke may be considered to have carried this principle to a most dangerous extent, in the maxim which he so frequently repeats: "Nihil quod inconveniens est est licitum." From the same mode of reasoning is derived the distinction between "mala prohibita" and "mala in se." (Thomas v. Sorrel Vaughan's Rep. Foster's Disc. Disc. ii. ch. 1. 12 Rep. 76. Lord Macclesfield's Speech on his Impeachment. Stilling fleet on Resignation Bonds, and see Taylor's Civil Law, 129 et seq.) And partly from the same cause has arisen the great liberty which Courts of Justice have assumed, especially in ancient times, of construing Statutes by equity. (Hargr. Co. Litt. 24 b. n. Hatton on Statutes. Plowden's Comm. p. 465.) Blackstone in his Commentaries, treats of the Law of Nature as a branch of the Law of England, and as paramount to it in all cases in which they may conflict. (1 Bl. Comm. 42. Bentham on Government, 109. Doctor and Student, Dial. i. ch. 5. See also the Case of Forbes v. Cochrane. 2 Barnewall and Cresswell's Rep. Protest of the Lords on the Occasion of the Royal Marriage Act, 12 Geo. I.) Perhaps it will be thought that such an opinion has a tendency to encourage Judges in directing their conduct by what Coke terms the crooked cord of discretion, rather than being guided by the golden metewand of the law. Examples abound in the History of this Country, in which the injunctions of the Law of Nature have been pleaded as a sanction for the most flagrant violations of Civil rights. It was the argument, used by Salmasius, to prove that Charles was not accountable for his arbitrary proceedings: Finch adduced the Law of Nature in support of Ship Money: and in the celebrated declaration of James II. respecting liberty of conscience, it is urged as a reason to justify the dispensing power. In some instances of very rare occurrence, as, for example, the case of the " Postnati," in which the municipal laws are silent, it may become the duty of a Judge to enquire

D

how