Abbildungen der Seite

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 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 farther 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 freedoma; 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 farther and more accurate search into this extensive and important title, I shall close my remarks upon it with the expirirg wish of the famous father Paul to his country, “ Esto TERPETUA!”

z Montesq. Sp. L. xi. 5.



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 and 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, op the right both of 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 90 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 supreme power is divided into two branches; the one legislative, to 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.

The original or first institution of parliament is one of those matters which lie so far hidden in the dark ages of antiquity, that the tracing of it out is a thing equally difficult and uncertain. The word, parliament, itself (parlement or colloquium, as some of our historians translate it,) is comparatively of modern date; derived from the French, and signifying an assembly that met and conferred together. It was first applied to general assemblies of the states under Louis VII. in France, about the middle of the twelfth century a (1). But

a Mod. Un. Hist. xxiii. 307. The first mention of it in our statute law is in the pre

amble to the statute of Westm. 1. 3 Edw. I. A. D. 1272

(1) The word parliamentum was not used in England till the reign of Henry III. ( Pryn. on 4 Inst. 2.) Sir Henry Spelman in his Glossary, rooc. Parl. )says, Johannes rex haud dicam parliamentum, nam hoc nomen non tum emicuit, sed communis concilii regni formam et coactionem perspicuam dedit.

It was from the use of the word parliamentum that Prynne dis. covered lord Coke's manuscript, Modus tenendi parliamentum tempore regis Edwardi, filii regis Etheldredi, &c. to be spurious. Lord Coke set a high value upon it, and has assured us, “that certain it is, this “ modus was rehearsed and declared before the conqueror at the con“ quest, and by him approved.” (4 Inst. 12.) But for many reigns after this word was introduced, it was indiscriminately applied to a session and to the duration of the writ of summons; we now confine it to the latter, viz. to the period between the meeting after the return of the writ of summons and the dissolution. Etymology is not always frivolous pedantry; it sometimes may afford an useful comment upon the original signification of a word. No inconsiderable pains have been bestowed by learned men in analysing the word parliament ; though the following specimens will serve rather to amuse than to instruct: “ The word

it is certain that, long before the introduction of the Norman language into England, all matters of importance were debated and settled in the great councils of the realm. A practice, which seems to have been universal among the northern nations, particularly the Germans b; and carried

b De minoribus rebus principes consultant, de majoribus omnes. Tac. de mor. Germ. e. 11.

“parliament,” saith one, “is compounded of parium lamentum ; “because (as he thinks) the peers of the realm did at these assemblies “ lament and complain each to the other of the enormities of the coun“try, and thereupon provided redress for the same.” (Lamb. Arch. 235.) Whitelocke, in his notes (174.), declares, “ that this derivation “of parliament is a sad etymology." Lord Coke and many others say, that “it is called parliament, because every member of that court “should sincerely and discretely parler la ment, speak his mind for the “ general good of the commonwealth.” (Go. Litt. 110.) Mr. Lam. bard informs us, that “Lawrence Vallo misliketh this derivation." r Arch. 236.) And Lawrence Vallo is not singular ; for Mr. Barrington assures us, that “lord Coke's etymology of the word parliament * from speaking one's mind has been long exploded. If one might pre. “sume (adds he) to substitute another in its room after so many “guesses by others, I should suppose it was a compound of the two “Celtic words parley and ment, or mend. Both these words are to be “found in Bullet's Celtic Dictionary published at Besancon in 1754. 3d "vol. fol. He renders parley by the French infinitive parler ; and we “use the word in England as a substantive, viz. parley; ment or mend “is rendered quantité, abondance. The word parliament therefore being ss resolved into its constituent syllables, may not improperly be said “to signify what the Indians of North America call a Great Talk.” (Ant. Stat. 48.) I shall leave it to the reader to determine which of these derivations is most descriptive of a parliament; and perhaps after so much recondite learning it may appear presumptuous in me to observe, that parliament imported originally nothing more than a coun. cil or conference ; and that ment in parliament has no more signification than it has in impeachment, engagement, imprisonment, hereditament, and a thousand others of the same nature, though the civilians have adopted a similar derivation, viz. testament from testari mentem. Tay. Civ. Law. 70. VOL. I.


by them into all the countries of Europe, which they overran at the dissolution of the Roman empire. Relics of which constitution, under various modifications and changes, are still to be met with in the diets of Poland, Germany, and Sweden, and the assembly of the estates in Francec: for what is there now called the parliament is only the supreme court of justice, consisting of the peers, certain dignified ecclesiastics and judges; which neither is in practice, nor is supposed to be in theory, a general council of the realm.

With us in England this general council hath been held immemorially, under the several names of mychel-synoth or

great council, michel-gemote or great meeting, and [148] more frequently wittena-gemote, or the meeting of wise men.

It was also styled in Latin, commune concilium regni, magnum concilium regis, curia magna, conventus magnatum vel procerum, assisa generalis, and sometimes communitas regni Angliaed. We have instances of its meeting to order the affairs of the kingdom, to make new laws, and to amend the old, or, as Fletae expresses it, “ novis injuriis emersię nova constituere remedia,” so early as the reign of Ina king of the West Saxons, Offa king of the Mercians, and Ethelbert king of Kent, in the several realms of the heptarchy. And, after their union, the mirrorf informs us, that king Alfred ordained for a perpetual usage, that these councils should meet twice in the year, or oftener, if need be, to treat of the government of God's people; how they should keep themselves from sin, should live in quiet, and should receive right. Our succeeding Saxon and Danish monarchs held frequent councils of this sort, as appears from their respective codes of laws; the titles whereof usually speak them to be enacted, either by the king with the advice of his wittena-gemote, or wise men, as,

« haec sunt instituta, quae Edgarus rex consilis " sapientum suorum instituit ;" or to be enacted by those sages

c'These were assembled for the last time, d Glanvil, I. 13. c. 32. I. 9. c. 10. Pref. A. D. 1561. (See Whitelocke of part. c. 72.) Rep. 2 Inst. 526. or according to Rubertson, A.D. 1614. (Hist. e l. 2, c. 2 Ch, V. i. 369.

fa 1. sec. 30

« ZurückWeiter »