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But every man when he enters into fociety, gives up a part of his natural liberty, as the price of so valuable a purchase ; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws which the community has thought proper to establish. Political therefore, or civil liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws .(and no farther) as is necessary and expedient for the general advantage of the public. Hence we may collect that the law, which restrains a man from doing mischief to his fellow citizens, though it diminifies the natural, increases the civil li. berty of mankind. So that laws, when prudently framed, are by no means fubversive, but rather introductive of liberty; for (as Mr. Locke has well obierved) where there is no law, there is no freedom.
The Writer then states the several legislative acts which declare the rights and liberties of the people of England; which 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. Having briefly explained the general principles of the law with respect to these rights, our Author proceeds to treat of the rights and duties of persons, as they are members of society, and stand in various relations to each other; which relations are either public or private.
The most universal public relation, he obferves, by which men are connected together, is that of governrient, or, in cther w:rds, of magiitrates and people. Of magiftrates fome are furenc; others are fulordinate. With us, this fupreme power is divided into rwo branches; the one legillative, to wit, the parliament, confiiting of King; Lords and Commons: the other executive, confiiting of the King alune. He therefore very properly begins with the confideration of the British parliament.
in the prokcution of this inquiry, be very judiciously conficiers, firlt, the manner and tinie of its afiendly: secondly, its confiituent parts: thirdly, the laws and customs relating to parliament, considered as one aggregate body: fourthly, and thly, the laws and customs relating to each bouie, feparately and flinctly taken: fixthly, the methods of proceeding and of making itatutes, in both houses : and laftly, the manner of the pulient's adjournment, prorogation, and diffolution.
With respect to the laws and customs of parliament considercil as one aggregate body, we meet with the following observations,
• Tlie pover and jurisdiction of parliament, says fir Edward Cok, is to transcendent and absolute, that it cannot be confincd, cither for causes or perlons, within any bounds. And of this high ,
eft vetuftifsima ; si dignitatem, eft honoratisima ; fi juridiEtionem, eft capacissima.” It hath sovereign and uncontrolable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all posible denominations, ecclefiaitical, or temporal, civil, military, maritime, or criminal : this being the place where that absolute despotic power, which much in all governments reside somewhere, is intrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that tranfcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new model the fuccession to the crown; as was done in the reign of Henry VIII and Willliam III. It can alter the established religion of the land; as was done in a variety of instances, in the reigns of king Henry VIII and his three children. It can change and create afresh even the constitution of the kingdom and of parliaments themselves; as was done by the act of union, and the several statutes for triennial and feptennial elections. It can, in short, do every thing that is not naturally impossible ; and therefore some have not scrupled to call it's power, by a figure rather too bold, the omnipotence of parliament. True it is, that what they do, no authority upon earth can undo. So that it is a matter moft effential to the liberties of this kingdom, that such members be delegated to this important trust, as are most eminent for their probity, their fortitude, and their knowlege ; for it was a known apothegm of the great lord treasurer Burleigh, “ that England could never be ruined but by a parliament:” and, as fir Matthew Hale observes, this being the highest and greatest court, over which none other can have jurisdiction in the kingdom, if by any means a misgovernment should any way fall upon it, the subjects of this kingdom are left without all manner of remedy. To the fame purpose the president Montesquieu, though I trust too haftily, presages; that as Rome, Sparta, and Carthage have lost their liberty and perished, so the constitution of England will in time lose it's liberty, will perish : it will perish, whenever the legislative power shall become more corrupt than the executive.
It must be owned that Mr. Locke, and other theoretical writers, have held, that “there remains still inherent in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them: for when such trust is abused, it is thereby forfeited, and devolves to thole who gave it.” But however juft this conclusion may be in theory, we cannot adopt it, nor argue from it, under any dispensation of government at present actually existing. For this devolution of power, to the people at large, includes in it a
diffolution of the whole form of government established by that people, reduces all the members to their original state of equality, and by annihilating the sovereign power repeals all positive laws whatsoever before enacted. No human laws will therefore suppose a case, which at once muft destroy all law, and compel men to build afresh upon a new foundation ; nor will they make provision for lo desperate an event, as muft render all legal provisions ineffectual. So long therefore as the English constitution Jafts, we may venture to affirm, that the power of parliment is abfolute and without control.'
Our Author's conclusion is certainly juft, for the power of parliament being supreme, must consequently be without controul, that is, it must be free from political coercion, But nevertheless Mr. Locke's conclusion may be very safely adopted, For as the people give up their natural rights upon certain trusts either express or implied, there still remains, if we may so call it, a certain natural supremacy of power in the people to remove or alter the legislative, when such trusts are abufed. Anarchy itself cannot be more intolerable, than a tyrannical and oppreslive government; and as to the danger of repealing all pofitive laws, and rendering all legal provisions ineffectual, that is not so great as may be imagined : for admitting a case wherein men may be compelled to build a-fresh upon a new foundation, they may, by a fingle act of legislation, revive all those laws; of which proceeding, examples are not wanting. Indeed what shall be deemed such a breach of trust as shall amount to a forfeiture, it is not easy or safe to determine. But there can be no doubt but that such may arise, and our Author, in a fublequent part of his commentaries, has such a crisis in contemplation. His observations, on this occafion, are so manly, liberal and judicious, that it would be unjust to suppress them.
- As to such public oppressions as tend to diffolve the conftitution, and fubvert the fundamentals of government, they are cases which the law will not, out of decency, suppose ; being incapable of distrusting those, whom it has invested with any part of the supreme power; since such distruft would render the exercife of that power precarious and impracticable. For, whereever the law expreffes it's diftruit of abuse of power, it always vefts a superior coercive authority in some other band to correct it; the very notion of which deltroys the idea of sovereignty. If therefore (for example) the two houses of parliament, or either of them, had avowedly a right to animadvert on the king, or each other, or if the king had a right to animadvert on either of the houses, that branch of the legislature, so subject to animadversion, would instantly cease to be part of the supreme power ; the ballance of the constitution would be overturned ; and that branch or branches, in which this jurisdiction resided, would be comple.ely fovereign. The suppofitien of law therefore is, that neither the king nor either house of parliament (collectively taken) is capable of doing any wrong; fince in Tuch cases the law feels itself incapable of furnithing any adequate remedy. For which reason all oppressions, which may happen to spring from any branch of the lovereign power, must necessarily be out of the reach of any stated rule, or express legal provition : but, if ever they unfortunately happen, the prudence of the times must provide new remedies upon new emergencies,
• Indeed, it is found by experience, that whenever the unconstitutional oppressions, even of the fovereign power, advance with gigantic strides and threaten desolation to a ftate, mankind will not be reasoned out of the feelings of humanity; nor will facrifice their liberty by a scrupulous a herrnce to those political maxims, which were originally establishe i to preserve it. And therefore, though the positive laws are filent, experince will furnith us with a very remarkable case, wherein nature and reason prevailed. When King James the fecond invaded the funda.rental conftitution of the realm, the convention declared an abdication, whereby the throne was rendered vacant, which induced a new settlement of the crown. And so far as this precedent leads, and no farther, we may now be allowed to lay down the law of redress against public opprefsion. If therefore any future prince should endeavour to subvert the conftitutirn by breaking the original contract between king and people, should violate the fundamental laws, and should withdraw himself out of the kingdom; we are now authorized to declare that this conjunction of circumstances would amount to an abdication, and the throne would be thereby vacant. But it is not for us to say, that any one, or two, of these ingredients would amount to such a situation ; for there our precedent would fail us. In these therefore, or other circumstances, which a fertile imagination may furnish, since bo h law and his tory are silent, it becomes us to be silent too ; leaving to future generations, whenever necessity and the safety of the whole shall
it, the exertion of thote inherent (though latent) powers of society, which no climate, no time, no constitution, no contract, can ever destroy or diminish.'
Mr. Blackstone, as he proceeds, briefly touches the law of parliament, which, he says, has iis original from this one maxim, that whatever matter arises concerning either house of parliament, ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere. Hence, for instance, the lords will not suffer the commons to incerf re in fettling a claim of privilege; the commons will not allow the lords to judge of the election of a burgess; nor will either house permit the courts of law to examine the merits of eitirer cales.
How far the courts of law have a right to examine in such cases, it would not become us to enquire. It had not been amiss however, if the Author had taken notice of the opinion of the great Chief Justice Holt, who in the case of Lord Banbury, did in some respect interfere in a claim of pecrage ;--and who likewise in the case of Ashby and TV bite did interfere in the election of a burgess; notwithstanding in the former case he was menaced by the house of lords, and in the latter by the house of commons. With respect to the law of parliament, this noble Chief Justice said, that supposing it to be a particular law, yet if a question arose determinable in the King's Bench, the King's Bench ought to determine it.
In tracing the method of making laws, we find the following observations with respect to the old method of proclaiming acts of parliament.-When a bill has received the royal allent, it is then, and not before, a statute or act of parliament. “This statute or act is placed among the records of the kingdom; there needing no formal primulgation to give it the force of a ław, as was necessary by the civil law with regard to the emperors edics: becaule every man in England is, in judgment of faw, party to the making of an act of parliament, being prcfent thereat by his representatives. However, a copy thereof is usually printed at the king's press, for the information of the whole Jand. And formerly, before the invention of printing, it was used to be published by the sheriff of every county; the king's writ being sent to him at the end of every feflion, together with a transcript of all the acts made at that fellion, commanding him “ ut ftatuta illa, et omnes articulos in eisdem contentes, in fingulis locis ubi expedire viderit, publice proclamari, et firmiter teneri et obfervari faciat.” And the usage was to proclaim them at his county court, and there to keep them, that whoever would might read or take copies thereof; which custom continued till the reign of Henry the seventh.'
It is much to be lamented that some usage of this kind is not practised at present, which from the vast multiplicity of statutes, especially of penal laws, seems to be more requisite than ever. It has been common of late indeed to print abstracts of particular acts, such as the Polt-ofice act, &c, in the News-papers. Why all penal laws fhould not be thus promulgated, it is not easy to afsign a rea on; and it must, to a reficering mind, afford a very strange idea of the wisdom and justice of government, when it is seen that greater attention is paid to the interest of the revenue, than to the liber:y and life of the subjcer.
Our Author in the next place takes the executive power into contideration, which, by our law, is vested in the King or