Page images
PDF
EPUB

clerk register sat, with his deputy clerks, who were the clerks of parliament.

There were also benches placed on the floor : on those on the right sat the commissioners of shires, and on the left the commissioners of burghs. After all the members had taken their seats in the order just named, the parliament was fenced in the king's name; then the king, if present, or if not, his commissioner, and afterwards the chancellor more copiously, declared the cause for which they were called together; which being concluded, the lords spiritual (that is, the bishops) retired apart and chose eight of the lords temporal ; the lords temporal likewise chose as many of the lords spiritual: these altogether nominated eight barons, and as many commissioners of burghs, which made in all thirty-two, who were called The LORDS OF THE ARTICLES, and with the chancellor, treasurer, privy-seal, the king's secretary, &c., admitted or rejected all matters proposed to the states after they had been first proposed to the king. After the bills were approved by the whole assembly of the states, those that passed by a majority of votes were presented to the king, who by touching them with his sceptre declared his confirmation of them; whereas, if he refused them, they were of no force. The members gave their votes distinctly in these words, I approve or not approve ; only those who were not satisfied either way, answered non liquet : no dissents or protests were allowed to public acts; but in private acts relative to men's rights and properties, any one might have protested for his interest. When all business was ended, the king, or his commissioner, made a speech, and the parliament was adjourned or dissolved, for there was no such thing as a prorogation in Scotland.

From the Revolution to the Union, the nobility with the commissioners of shires and burghs, composed a parliament without the bishops, and in queen Anne's time, the committee of the lords of the articles was abolished by act of parliament. So that all the members of the house had the liberty of making and debating proposals.

CONVENTIONS OF THE ESTATES.—Before the union there was another meeting of the three estates in Scotland, known by the name of the ConVENTION OF ESTATES, which was indicted by the king on twenty days' notice; the members were chosen in the same way and their proceedings were the same as those of the parliament. The king was either present at that meeting, or sent his commissioner, who enjoyed the same dignity and respect as the commissioner to parliament ; but at the opening of a convention, there was no riding or cavalcade as at a parliament. The difference betwixt a convention and a parliament consisted chiefly in this : that parliament could both make laws and impose taxes; whereas, the convention of estates could only impose taxations, and make statutes for their collection, but could not make laws; and those statutes of the convention of estates were published in the same manner as acts of parliament. The

learned Sir George Mackenzie in his Institutions says, that by the records of the conventions it appears, that of old the conventions of estates consisted of any of the three estates summarily called off the streets by the king; and that they cried down or up money, and judged processes, which of later times they could not. These conventions were not called frequently; for the goodness and justice of the kings of Scotland were such, that they seldom required money from their subjects by imposing taxations, without giving them also an opportunity of redressing their grievances, and of making new laws for the weal and safety of the kingdom.*

OF THE ABSOLUTE RIGHTS OF INDIVIDUALS.

[ocr errors]

As municipal law is a rule of civil conduct, commanding what is right, and prohibiting what is wrong, being in every Christian country based on the absolute rule of our obedience–The Ten COMMANDMENTS,—it follows, that the primary and principal objects of the law are RIGHTS and WRONG S.

Rights are either, first, those which concern and are annexed to the persons of men, and are then called jura personarum, or the rights of persons ; or, secondly, they are such as a man may acquire over external objects, or things unconnected with his person, which are styled jura rerum, or the rights of things. Wrongs are also divisible into first, private wrongs, which being an infringement merely of particular rights, concern individuals only, and are called civil injuries ; and secondly, public wrongs, which being a branch of general and public rights, affect the whole community, and are called crimes and misdemeanors.

Rights may be reduced to three principal or primary articles,—the right of personal security, the right of personal liberty, and the right of private property ; because, as there is no other known method of compulsion, or of abridging man's natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these inviolate, may justly be said to include the preservation of our civil immunities, in their largest and most extensive sense.

I. The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.

1. Life is the immediate gift of God, a right (at least as far as his sellow creatures are concerned) inherent by nature in every individual; and it begins, in the contemplation of the law, as soon as an infant is born, or

* Blackstone's Commentaries ; Chamberlayne's Magnæ Britanniæ Notitia, or present state of Great Britain.

even before its birth ; for, even whilst still in the womb, an infant is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate made to it: it may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and take afterwards by such limitation as if it were then actually born.

2. Both the life and limbs of a man are of such high value, in the estimation of the law of England, that it pardons even homicide, if committed se defendendo, or in order to preserve them. For whatever is done by a man to save either life or member, is looked upon as done upon

the highest necessity and compulsion. Therefore, if a man through fear of death or mayhem, is prevailed upon to execute a deed or do any legal act, these, though accompanied by all the other requisite solemnities, may be afterwards avoided, if forced upon him by a well-grounded apprehension of losing his life, or even his limbs, in case of his non-compliance; and the same is also a sufficient excuse for the commission of any misdemeanors. No suitable atonement can be made for the loss of life or limb ; and the law not only regards life and member, and protects every man in their enjoyment, but also furnishes him with every thing necessary for their support; for there is no man so indigent or wretched, but he may demand a supply sufficient for all the necessities of life from the more opulent part of the community, by means of the several statutes enacted for the relief of the poor, and detailed in another part of this work.

3. Besides those limbs and members that may be necessary to a man, for his own defence or his enemy's annoyance, the rest of his person or body is also entitled, by the same natural right, to security from the corporeal insults of menaces, assaults, beating, and wounding, though such insults do not amount to the destruction of life or member.

4. The preservation of a man's health from such practices as may prejudice or annoy it ; and,

5. The security of his reputation or good name from the arts of detraction and slander, are also rights to which every man is entitled, by reason and natural justice ; since, without these, it is impossible to have the perfect enjoyment of any other advantage or right.

II. Next to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists in the power of loco-motion, of changing situation, or removing one's person to whatsoever place one's own inclinations may direct, without imprisonment or restraint, unless by due course of law.

Personal confinement, in any way, is an imprisonment. So that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment. But if a man be lawfully imprisoned, this is no duress of imprisonment. To make imprisonment lawful, it must either be by process from the courts

р

of judicature, or by warrant from some legal officer, having authority to commit to prison ; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of his commitment, in order to be examined into (if necessary) upon a habeas corpus. If there be no cause expressed, the gaoler is not bound to detain the prisoner.

A natural and regular consequence of this personal liberty is, that every Englishman may claim a right to remain in his own country, so long as he pleases, and not to be driven from it, unless by the sentence of the law. The king, indeed, by his royal prerogative, may issue out his writ, ne exeat regnum, and prohibit any of his subjects from going into foreign parts without license. The law in this respect is so benignly and liberally construed for the subject's benefit, that, though within the king may command the attendance and service of all his liegemen, yet he cannot send any man out of the realm, even upon public service, excepting soldiers and sailors, the nature of whose employment necessarily implies an exception; he cannot even constitute a man lord deputy or lieutenant of Ireland against bis will, nor make him a foreign ambassador. For this inight, in reality, be no more than an honourable exile.

III. The third absolute right, inherent in every Englishman, is that of property, which consists in the free use, enjoyment, and disposal of all his acquisitions, without control or diminution, save only by the laws of the land. The great Charter, already detailed, has declared, that no freeman shall be disseised nor divested of his freehold, nor of his liberties, nor free customs, but by the judgment of his peers, or by the law of the land.

So great respect does the law of the land pay to private property, that it will not authorise the least 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 a private person's grounds, although it might perhaps be extensively beneficial to the public, yet the law permits no man, or set of men, to do this without the owner of the land's consent. In this and similar cases, the legislature alone can, and, indeed, frequently does, interpose and compel the individual to acquiesce. But how does it interpose and compel ? Not by absolutely stripping the subject of his property in an arbitrary manner, but by giving him a full indemnification and equivalent for the injury thereby sustained. And even this is an exertion of power, in which the legislature indulges with caution, and which nothing but the legislature can perform.

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 these rights he declared, ascertained, and protected by the dead letter of the laws, (for the law is a dead letter till it is pronounced by the lips of a judge lawfully appointed to administer it,) if the Constitution had provided no other method to secure their actual enjoyment. It has,

therefore, established certain other auxiliary subordinate rights of the subject, which serve principally as outworks or barriers to protect and maintain inviolate the three great and primary rights of personal security, personal liberty, and personal property.

1. The constitution, powers, and privileges of parliament, of which we have already treated at large in a preceding article.

2. The limitation of the king's prerogative, by bounds of his own concession, so certain and notorious, that it is impossible he should either mistake or legally exceed them.

3. A third subordinate right of every Englishman is, that of applying to the Courts of Justice for redress of injuries. Since, in England, the law is 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.

4. If any uncommon injury, or infringement of the rights before mentioned, should happen, which the ordinary course of law is too defective to reach, there still remains another subordinate right, appertaining to every individual—the right of petitioning the king, or either house of Parliament, for the redress of grievances. Care only must be taken lest, under the pretence of petitioning, the subject be guilty of any riot, or tumult, as happened in the memorable parliament in 1640 ; and, to prevent this, it is provided by the statute 13th Car. II., that no petition to the king or either house of Parliament, for any alteration in the 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, alderman, and common 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 1st W. and M., 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 is, that of having arms for a man's defence, suitable to his condition and degree, and such as are allowed by law. Which is also declared by the same statute, 1st W. and M., and, indeed, it is a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of societies and laws are found insufficient to restrain the violence of oppression.

In these several articles consists British rights or liberties, liberties more generally talked of than thoroughly understood, and yet highly necessary to be perfectly known and considered by every man of rank or 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 on the other."

* See Bill of Rights,

† Blackstone's Commentaries.

« PreviousContinue »