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Library of Congress Cataloging-in-Publication Data

Blackstone, William Sir, 1723-1780.

Blackstone's commentaries: with notes of reference to the constitution and laws, of the federal government of the United States, and of the Commonwealth of Virginia: in five volumes, with an appendix to each volume, containing short tracts upon such subjects as appeared necessary to form a connected view of the laws of Virginia as a member of the federal union / by St. George Tucker ;

with an introduction by Paul Finkelman and David Cobin. p. cm.

Originally published: Philadelphia : William Young Birch, Abraham Small, 1803.

Includes bibliographical references.

ISBN 1-886363-15-3 (set: alk. paper)

1. Law—Great Britain. 2. Law—United States. 3. Law—Virginia. I. Tucker, St. George, 1752-1828. II. title. KF385.B55 1996 349.73—dc20

[347.3] 96-12566 CIP

BLACKSTONE'S COMMENTARIES:

WITH

NOTES OF REFERENCE,

TO

THE CONSTITUTION AND LAWS,

OF THE

FEDERAL GOVERNMENT OF THE UNITED STATES;

AND OF THE

COMMONWEALTH OF VIRGINIA.

IN FIVE VOLUMES.

WITH AN APPENDIX TO EACH VOLUME,

CONTAINING

SHORT TRACTS UPON SUCH SUBJECTS AS APPEARED NECESSARY TO FORM A CONNECTED

VIEW OF THE LAWS OF VIRGINIA,

AS A MEMBER OF THE FEDERAL UNION.

BY ST. GEORGE TUCKER,

PROFESSOR OF LAW, IN THE UNIVERSITY OF WILLIAM AND MARY, AND ONE OF THE JUDGES OF THE GENERAL COURT IN VIRGINIA.

PHILADELPHIA:

PUBLISHED BY WILLIAM YOUNG BIRCH, AND ABRAHAM SMALL, NO. 17, SOUTH SECOND-STREET. ROBERT CARR, PRINTER.

1803.

District of Pennsylvania: to wit.

BE it remembered, That on the ninth day of May, in the twenty-seventh Year of the Independence of the United States of America, William Young Birch, and Abraham Small, of the said District, have deposited in this Office the Title of a Book, the right whereof they claim as Proprietors, in the words following, to wit:

"Blackstone's Commentaries: with Notes of Reference, to the Constitution and Laws of the Federal Government of the United States, and of the Commonwealth of Virginia. In Five Volumes. With an Appendix to each Volume, containing, Short Tracts upon such Subjects as appeared necessary to form a connected

View of the Laws of Virginia, as a Member of the Federal Union, By St. George Tucker, Professor of Law, in the University of William and Mary, and one of the Judges of the General Court in Virginia."

In Conformity to the Act of the Congress of the United States, intituled, "An Act for the Encouragement of Learning, by securing the Copies, of Maps, Charts, and Books, to the Authors and Proprietors of such Copies during the times therein mentioned," and also, to an Act entituled, "An Act supplementary to an Act, entituled, an Act for the Encouragement of Learning, by securing the Copies of Maps, Charts, and Books, to the Authors and Proprietors of such Copies, during the Times therein mentioned. And extending the Benefits thereof to the Arts of designing, engraving, and etching historical, and other Prints." (L.S.) D. CALDWELL,

Clerk of the District of Pennsylvania.

ADVERTISEMENT.

The Editor having procured a copy of a late Edition of Blackstone's Commentaries, published in London, by Edward Christian, Esq. has made a selection of such of the Notes, contained in that Edition, as appeared to him most likely to be of use to an American Student... In the Second Volume, the selection has been more copious than in any of the others:

they are distinguished, by his name being subjoined to the end of each Note.

MAY 12, 1803.

COMMENTARIES

ON THE

LAWS OF ENGLAND.

IN FOUR BOOKS.

BY SIR WILLIAM BLACKSTONE, KNT.

ONE OF THE JUSTICES OF HIS MAJESTY'S COURT OF COMMON PLEAS.

WITH THE LAST CORRECTIONS OF THE AUTHOR.

TO THE READER.

Messrs. Pleasants and Pace, having, since this Edition of the Commentaries has been in the press, published a new collection of the LAWS OF VIRGINIA, containing, not only, all the acts printed in the edition of 1794, but likewise, a very considerable number of acts passed since that period ; the Editor avails himself of the opportunity, thereby afforded him, to assist the researches of the student, in consulting any act contained in that collection, which may be referred to in the notes, or appendices to this work. For this purpose, he has formed the following table, shewing, the correspondence between the edition of 1794, and subsequent sessions acts, and the chapters in the latter collection ; by means of which, any act contained in that collection, and referred to in the following notes, may readily be found.

TABLE.

N. B. The chapters in Pleasant's and Pace's collection correspond with the chapters, as numbered in the edition of 1794, from chap. 1, to chap. 181, inclusive: the correspondence between the succeeding chapters and the Sessions acts, as published annually, will appear below.

* There is a small error in the numbering of these three chapters in Pleasant and Pace's Edition; they are here referred to as numbered.

CONTENTS

OF BOOK FIRST. PART SECOND.

OF THE RIGHTS OF PERSONS.

CHAP. I.

Of the Absolute Rights of Individuals ............. 121

CHAP. II.

Of the Parliament ....................... 146

CHAP. III. Of the King, and his Title .................. 190

CHAP. IV.

Of the King's Royal Family. .................. 219

CHAP. V. Of the Councils belonging to the King ............. 227

CHAP VI.

Of the King's Duties. ..................... 233

CHAP. VII.

Of the King's Prerogative ................... 237

CHAP. VIII. Of the King's Revenue .................... 281

CHAP. IX. Of Subordinate Magistrates .................. 338

CHAP. X. Of the People, whether Aliens, Denizens, or Natives . . . . 366

CHAP. XI.

Of the Clergy .......................... 376

CHAP. XII. Of the Civil State ....................... 396

CHAP. XIII.

Of the Military and Maritime States ............. 408

CHAP. XIV.

Of Master and Servant .................... 422

CONTENTS.

CHAP. XV. Of Husband and Wife ..................... 433

CHAP. XVI. Of Parent and Child ...................... 446

CHAP. XVII.

Of Guardian and Ward .................... 460

CHAP. XVIII.

Of Corporations ........................ 467

THE EDITOR'S APPENDIX.

NOTE G.

Of the Right of Conscience; and of the Freedom of Speech, FO. and of the Press ...................... 3

NOTE H. Of the State of Slavery, in Virginia ............. 31

NOTE I.

Abstract of the Bill for the more General Diffusion of Knowledge in Virginia ...................... 86

NOTE K.

Of the Right of Expatriation ................. 90

NOTE L. Of the Rights of Aliens .................... 98

NOTE M.

Summary View of the Laws relative to the Glebes, and Churches in Virginia ......................... 104

COMMENTARIES

ON THE

LAWS OF ENGLAND.

BOOK THE FIRST.

PART THE SECOND.

COMMENTARIES

ON THE LAWS OF ENGLAND.

BOOK THE FIRST.

OF THE RIGHTS OF PERSONS.

CHAPTER THE FIRST. OF THE ABSOLUTE RIGHTS OF INDIVIDUALS.

THE objects of the laws of England are so very numerous and extensive, that, in order to consider them with any tolerable ease and perspicuity, it will be necessary to distribute them methodically, under proper and distinct heads; avoiding as much as possible, divisions too large and comprehensive on the one hand, and too trifling and minute on the other; both of which are equally productive of confusion.

Now, as municipal law is a rule of civil conduct, commanding what is right, and prohibiting what is wrong; or as Cicero,a and after him our Bracton,b have expressed it, sanctio justa, jubens honesta et prohibens contraria; it follows, that the primary and principal objects of the law are RIGHTS and WRONGS. In the prosecution, therefore, of these commentaries, I shall follow this very simple and obvious division; and shall in the first place consider the rights that are commanded, and secondly the wrongs that are forbidden, by the laws of England.

a 11 Phillip. 13. b l. 1. c. 3.

Rights, are, however, liable to another subdivision: being 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 they are, secondly, such as a man may acquire over external objects, or things unconnected with his person, which are stiled jura rerum or the rights of things. Wrongs also are 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 breach of general and public rights, affect the whole community, and are called crimes and misdemesnors.

The objects of the laws of England falling into this fourfold division, the present commentaries will therefore consist of the four following parts: 1. The rights of persons; with the means whereby such rights may be either acquired or lost. 2. The rights of things; with the means also of acquiring and losing them. 3. Private wrongs, or civil injuries; with the means of redressing them by law. 4. Public wrongs, or crimes and misdemesnors; with the means of prevention and punishment.

We are now, first, to consider the rights of persons; with the means of acquiring and losing them.

Now the rights of persons that are commanded to be observed by the municipal law are of two sorts: first, such as are due from every citizen, which are usually called civil duties; and, secondly, such as belong to him, which is the more popular acceptation of rights or jura. Both may indeed be comprised in this latter division; for, as all social duties are of a relative nature, at the same time that they are due from one man, or set of men, they must also be due to another. But I apprehend it will be more clear and easy, to consider many of them as duties required from, rather than as rights belonging to particular persons. Thus, for instance, allegiance is usually, and therefore most easily, considered as the duty of the people, and protection as the duty of the magistrate; and yet they are reciprocally, the rights as well as duties of each other.

Allegiance is the right of the magistrate, and protection the right of the people.1

Persons also are divided by the law into either natural persons, or artificial. Natural persons are such as the God of nature formed us: artificial are such as are created and devised by human laws for the purposes of society and government, which are called corporations or bodies politic.

The rights of persons considered in their natural capacities, are also of two sorts, absolute, and relative. Absolute, which are such as appertain and belong to particular men, merely as individuals or single persons: relative, which are incident to them as members of society, and standing in various relations to each other. The first, that is, absolute rights, will be the subject of the present chapter.

1. But here it is to be remembered, that a distinction arises in our government between personal allegiance, and that which is due to the constitution and government. In monarchical governments allegiance is supposed to be due to the person of the monarch .... in ours, it is due to the constitution and government, and not to the persons of those who administer the government. See page 368, Note, 2.

In America, there are rights, which appertain to one man without any correlative duty, owing to any other man. Though perhaps there is a correlative duty owing to the commonwealth. Thus every free white male, aged twenty-one years, and possessing a certain quantity of freehold lands in Virginia, hath an indubitable right to vote for any person to represent him as a member of congress, or of the state legislature: but no other person is authorised to claim the exercise of that right from him; much less, is there any other person to whom the exercise of it is a duty. Nevertheless, I conceive it to be a duty which the state has a right to compel him to perform.

"Every right is annexed to a certain character or relation, which each individual bears in society. The rights of magistrates, legislators, judges, husbands, fathers, heirs, purchasers, and occupants, are all dependent upon the respective characters of the claimants." ... Christian.

By the absolute rights of individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it. But with regard to the absolute duties, which man is bound to perform, considered as a mere individual, it is not to be expected that any human municipal law should at all explain or enforce them. For the end and intent of such laws being only to regulate the behaviour of mankind, as they are members of society, and stand in various relations to each other, they have consequently no concern with any other but social or relative duties. Let a man, therefore, be ever so abandoned in his principles, or vitious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like), they then become by the bad example they set, of pernicious effects to society; and, therefore, it is then the business of human laws to correct them. Here the circumstance of publication is what alters the nature of the case. Public sobriety is a relative duty, and therefore enjoined by our laws; private sobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil sanction. But with respect to rights, the case is different. Human laws define and enforce, as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others.

For the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without the mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals. Such rights as are social and relative, result from, and are posterior to, the formation of states and societies: so that to maintain and regulate these, is clearly a subse

quent consideration. And, therefore, the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in themselves are few and simple; and then such rights as are relative, which, arising from a variety of connexions, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind. Let us, therefore, proceed to examine how far all laws ought, and how far the laws of England actually do take notice of these absolute rights, and provide for their lasting security.

The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature;

being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of free-will. But every man, when he enters into society, 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. And this species of legal obedience and conformity is infinitely more desirable than that wild and savage liberty which is sacrificed to obtain it. For no man, that considers a moment, would wish to retain the absolute and uncontrolled power of doing whatever he pleases:

the consequence of which is, that every other man would also have the same power; and then there would be no security to individuals in any of the enjoyments of life. 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.c 2 Hence we may collect that the law, which restrains a man from doing mischief to his fellow-citizens, though it diminishes the natural,3 increases the civil liberty of mankind;

c Facultas ejus, quod cuique facere libet, nisi quid jure prohibetur. Inst. 1. 3. 1.

2. "Political liberty consists in the power of doing whatever does not injure another: the exercise of the natural rights of every man has no other limits than those which are necessary to secure to every other man the free exercise of the same rights; and these limits are determinable only by the law." Declaration of the

rights of man, and of citizens, by the national assembly of France ....

1789.

3. Man in a state of nature has no more right to do mischief, than in a state of society: the restrictions of society, therefore, do not diminish any natural right, when they prohibit the doing mischief:

they only restrain the exercise of a natural power to which no right was ever annexed. We must be careful, therefore, not to confound the term natural liberty, with natural right. Man, when he enters into society, may sacrifice a portion of his natural liberty in the sense here spoken of, without a particle of his natural rights. "It is a long received doctrine, that in a sate of society, or government, men give up a portion of their natural rights, in order to have the residue secured to them; by which it must be understood, that the rights possessed and enjoyed in a state of government, are necessarily fewer than those possessed, in what has been called, a state of nature. A man who adopts this opinion, is naturally enough inclined to look on government with a jealous eye; to esteem it, at best, but as the least of two evils; and to feel the restraints, or obligations, imposed by it, as an abridgement of his natural liberty. This position conveys an idea altogether untrue, and highly derogatory to the noblest of all human institutions; an institution so fundamentally necessary, that without it, no other could take place, of any nature whatever. Without it, men must forever remain in a state of savage ignorance and wretchedness; in a condition more miserable, and more contemptible than that of the vilest brutes, or reptiles. If we could suppose men in that state, which is falsely called a state of nature, their rights would be extremely few, of very little value, and wholly destitute of protection and security. And unless we include among the natural rights of man, his right of connecting himself with others in a state of civil society, his existence would be too wretched to be worth preserving. By legitimate government, his rights, so far from being diminished, are multiplied

but that every wanton and causeless restraint of the will of the subject, whether practised by a monarch, a nobility, or a popular assembly, is a degree of tyranny: nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are regulations destructive of liberty;

whereas, if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance, by supporting that state of society, which alone can secure our independence. Thus the statute of king Edward IV,d which forbad the fine gentlemen of those times (under the degree of a lord) to wear pikes upon their shoes or boots of more than two inches in length, was a law that savoured of oppression; because, however ridiculous the fashion then in use might appear, the restraining it by pecuniary penalties

d 3 Edw. IV. c. 5.

a thousand fold. To government he is indebted for every comfort, every convenience, and every enjoyment of life. He binds himself to certain duties, which are the conditions by which he becomes entitled to the benefits of government. But these duties, except on extraordinary occasions, are extremely light, whilst the benefits they procure are immense in value, and almost infinite in number. Were it possible in the jurisprudence of a democratic, government, to deprive men of the benefits of government in exact proportion to their neglect of their obligations to it, it would be a code founded in severe justice; and every one would become sensible, how incomparably more numerous and valuable are the rights acquired by the stipulations of compact, than those which belong to a state of nature. All would then be induced to make a proper estimate of the blessings of a well ordered community, and to be in love with legitimate government, as the fountain of true liberty, and of every thing valuable inhuman life. No one should dare to talk of the rights of man who is unwilling to perform the duties of a citizen. Such a person would, in strict justice, have no rights, but those of a savage: for the essential rights of man are acquired by purchase, and the price must be paid to make the title good. This price is, obedience to the laws." Oration in commemoration of American independence, July 4, 1795, by T. T. T.

of South-Carolina.

could serve no purpose of common utility. But the statute of king Charles II,e which prescribes a thing seemingly as indifferent, (a dress for the dead, who are all ordered to be buried in woollen) is a law consistent with public liberty; for it encourages the staple trade, on which in great measure depends the universal good of the nation. So that laws, when prudently framed, are by no means subversive, but rather introductive of liberty;

for (as Mr. Locke has well observed)f where there is no law there is no freedom. But then, on the other hand, that constitution or frame of government, that system of laws, is alone calculated to maintain civil liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint.

The idea and practice of this political or civil liberty flourish in their highest vigour in these kingdoms, where it falls little short of perfection, and can only be lost or destroyed by the folly or demerits of it's owner: the legislature, and of course the laws of England, being peculiarly adapted to the preservation of this inestimable blessing even in the meanest subject. Very different from the modern constitutions of other states, on the continent of Europe, and from the genius of the imperial law; which in general are calculated to vest an arbitrary and despotic power, of controlling the actions of the subject, in the prince, or in a few grandees. And this spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws; and so far becomes a freeman;g though the master's right to his service may possibly still continue.4

e 30 Car. II. st. 1. c. 3. g Salk. 666. See ch. 14.

f On Gov. p. 2. §. 57.

4. The act for preventing the further importation of slaves, declared all slaves thereafter imported into Virginia by sea or land, contrary to the true intent of that act, to become free upon such importation. L. V. 1778, c. 1, but a subsequent act unfortunately extended the period when they should become free to twelve months. L. V. 1785, c. 77. Edi. 1794, c. 103.

The absolute rights of every Englishman, (which, taken in a political and extensive sense, are usually called their liberties) as they are founded on nature and reason, so they are coeval with our form of government; though subject at times to fluctuate and change; their establishment (excellent as it is) being still human. At some times we have seen them depressed by overbearing and tyrannical princes; at others so luxuriant as even to tend to anarchy, a worse state than tyranny itself, as any government is better than none at all. But the vigour of our free constitution has always delivered the nation from these embarrassments:

and as soon as the convulsions consequent on the struggle have been over, the balance of our rights and liberties has settled to it's proper level; and their fundamental articles have been from time to time asserted in parliament, as often as they were thought to be-in danger.

First, by the great charter of liberties, which was obtained, sword in hand, from king John, and afterwards, with some alterations, confirmed in parliament by king Henry the third, his son. Which charter contained very few new grants; but, as Sir Edward Cokeh observes, was for the most part declaratory of the principal grounds of the fundamental laws of England. Afterwards by the statute called confirmatio cartarum,i whereby the great charter is directed to be allowed as the common law; all judgments contrary to it are declared void; copies of it are ordered to be sent to all cathedral churches, and read twice a year to the people; and sentence of excommunication is directed to to be as constantly denounced against all those that by word, deed, or counsel, act contrary thereto, or in any degree infringe it .... .

Next, by a multitude of subsequent corroborating statutes (Sir Edward Coke, I think, reckons thirty-two),k from the first Edward to Henry the fourth. Then, after a long interval, by the petition of right; which was a parliamentary declaration of the liberties of the people, assented to by king Charles the first in the beginning of his reign. Which was closely followed by the still more ample concessions made by that unhappy prince to his parliament, before the fatal rapture between them; and by the many salutary laws, particularly the habeas corpus act, passed under

h 2 Inst. proem. i 25 Edw. I. k 2 Inst. proem.

Charles the second. To these succeeded the bill of rights, or declaration delivered by the lords and commons to the prince and princess of Orange, 13 February, 1688, and afterwards enacted in parliament, when they became king and queen: which declaration concludes in these remarkable words; "and they do claim, demand, and insist upon, all and singular the premises, as their undoubted rights and liberties." And the act of parliament itselfl recognizes "all and singular the rights and liberties asserted and claimed in the said declaration to be the true, antient, and indubitable rights of the people of this kingdom." Lastly, these liberties were again asserted at the commencement of the present century, in the act of settlement, whereby the crown was limited to his present majesty's illustrious house:

and some new provisions were added, at the same fortunate aera, for better securing our religion, laws, and liberties; which the statute declares to be "the birthright of the people of England," according to the antient doctrine of the common law.n

Thus much for the declaration of our rights and liberties5 .... The rights themselves, thus defined by these several statutes, consist in a number of private immunities, which will appear, from what has been premised, to be indeed no other, than either that residuum of natural liberty, which is not required by the

n Plowd. 55.

l 1 W. & M. st. 2. c. 2. m 12 & 13 W. III. c. 2.

5. The declarations of rights, of the people of the United States are contained, 1st. In the unanimous declaration of independence, by the congress of the United States. 2dly. In the articles of confederation and perpetual union, concluded between the several states; which were perhaps abrogated. 3dly. By the constitution of the United States, as approved and ratified by the several state conventions. 4thly. By the amendments of the constitution of the United States, proposed by congress in March, 1789, and since ratified and confirmed by the several states in the union. 5thly. By the bill of rights, and constitutions of the respective states, and 6thly. and lastly, by legislative acts, and declarations of the state legislatures. The contents of them respectively, have either been already noticed, or will occasionally be touched upon in the course of the notes in this edition.

laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals. These, therefore, were formerly, either by inheritance or purchase, the rights of all mankind; but, in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the rights of the people of England. And these 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.6

1. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law a soon as an infant is able to stir in the mother's womb. For if a woman is quick with child, and by a potion or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child;

this, though not murder, was by the antient law homicide or manslaughter.o(6) But the modern law doth not look upon this of-

o Si aliquis mulierem pregnantem percusserit, vel el venenum dederit, per quod fecerit abortivam; si puerperium jam formatum fucrit, et maxime si fuerit animatum, facit homicidium. Bracton. l. 3. c. 21.

6. The tight of personal security in the United States, in addition to those enumerated by the commentator, seems also to consist in the uninterrupted enjoyment of his conscience in all matters respecting religion, and of his opinions in those of a civil nature. See C. U. S. Art. 6. Amendments to C. U.S. Art. 3. Bill of rights, Art. 12, 16. This subject will be more fully discussed in a subsequent note.

(6) But if the child be born alive, and afterwards die in consequence of the potion, or beating, it will be murder. 3. Inst. 50. But quere, how shall this be proved?

fence in quite so atrocious a light, but merely as a heinous misdemesnor.p

An infant in ventre sa mere, or in the mother's womb, 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;q and it is enabled to have an estate limited to it's use, and to take afterwards by such limitation, as if it were then actually born.r 7 And in this point the civil law agrees with ours.s(7)

2. A man's limbs (by which for the present we only understand those members which may be useful to him in fight, and the loss of which alone amounts to mayhem by the common law) are also the gift of the wise Creator, to enable him to protect himself from external injuries in a state of nature. [T]o these therefore he has a natural inherent right; and they cannot be wantonly destroyed or disabled without a manifest breach of civil liberty.8

p 3 Inst. 50. q Stat. 12. Car. II. c. 24. r Stat. 10 and 11 W. III. c. 16.

s Qui in utero sunt, in jure civili intelliguntur in rerum natura esse, cum de eorum commodo agatur. Ff. 1. 5. 26.

7. "It may have a distributive share of intestate property, even with the half blood, 1. Ves. p. 81. It is capable of taking a devise of land. 2 Atk. 117. Frem. 244, 293. It takes under a marriage settlement a provision made for children at the time of the death of the father. 1 Ves. 85, and it hath been lately decided, that marriage, and the birth of a posthumous child, amount to a revocation of a will executed before marriage." .... Christian.

(7.) Herewith the laws of Virginia also agree. V. L. 1748. c. 2. Edi. 1769, 1785. c. 62, 85. Edi. 1794. c. 90, 95. By the laws of England also, an infant in ventre sa mere seems capable of taking as heir, provided it be afterwards born alive. 2 B. c. 208. But in Virginia the law is now altered in that respect, unless the infant be the child of the person from whom the inheritance shall descend. V. L. 1785. c. 60. Edi. 1794. c. 93. §. 13.

8. Such breaches are accordingly severely punishable, in some instances by our laws, as will be shewn in it's proper place. L. U. S. 1 Cong. 2 Sess. c. 9. §. 13. L. V. 1752. c. 6. 1788. c. 28. Edi. 1794. c. 99.

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.9 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 other legal act;

these, though accompanied with all other the 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.t And the same is also a sufficient excuse for the commission of many misdemesnors, as will appear in the fourth book. The constraint a man is under in these circumstances is called in law duress, from the Latin durities, of which there are two sorts; duress of imprisonment, where a man actually loses his liberty, of which we shall presently speak; and duress per minas, where the hardship is only threatened and impending, which is that we are now discoursing of. Duress per minas is either for fear or loss of life, or else for fear of mayhem, or loss of limb. And this fear must be upon sufficient reason; "non" as Bracton express it, "suspicio cujuslibet vani et meticulosi hominis, sed talis qui possit cadere in virum constantem; talis enim debet esse metus, qui in se contineat vitae periculum, aut carporis cruciatum."u A fear of battery, or being beaten, though never so well grounded, is no duress; neither is the fear of having one's house burned, or one's goods taken away and destroyed; because in these cases, should the threat be performed, a man may have satisfaction by recovering equivalent damages:w but no suitable atonement can be made for the loss of life or limb. And the indulgence shewn to a man under this, the principal, sort of duress, the fear of losing his life or limbs, agrees also with that maxim of the civil law; ignoscitur ei qui sanguinem suum qualiter qualiter redemptum voluit.x

t 2 Inst. 483. u l. 2. c. 5.

w 2 Inst. 483. x Ef. 48. 21. 1.

9. Herewith the laws of Virginia agree. L. V. 1789. c. 10. Edi. 1794. c. 43.

The law not only regards life and member, and protects every man in the enjoyment of them, 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,10 of which in their proper places. A humane provision; yet, though dictated by the principles of society, discountenanced by the Roman laws. For the edicts of the emperor Constantine commanding the public to maintain the children of those who were unable to provide for them, in order to prevent the murder and exposure of infants, an institution founded on the same principle as our foundling hospitals, though comprized in the Theodosian code,y were rejected in Justinian's collection.

These rights, of life and member, can only be determined by the death of the person; which was formerly accounted to be either a civil or natural death. The civil death commenced, if any man was banished or abjured the realmz by the process of the common law, or entered into religion; that is, went into a monastery, and became there a monk professed: in which cases he was absolutely dead in law, and his next heir should have his estate(10). For, such banished man was entirely cut off from society; and such a monk, upon his profession, renounced solemnly all secular concerns: and besides, as the popish clergy claimed an exemption from the duties of civil life and the commands of the temporal magistrate, the genius of the English

y l. 11. c. 27. z Co. Litt. 133.

10. Herewith the laws of Virginia also agree. It must however be acknowledged, that the laws respecting the poor are capable of great improvement. See V. L. 1794, c. 102.

(10.) Any person absenting himself from the commonwealth of Virginia beyond sea, or elsewhere, for seven years, successively, shall be presumed to be dead, in any case wherein his death shall come in question, unless proof be made that he was alive within that time. L. V. 1786, c. 67. Edi. 1794, c. 26.

laws would not suffer those persons to enjoy the benefits of society, who secluded themselves from it, and refused to submit to its regulations.a A monk was therefore accounted civiliter mortuus, and when he entered into religion might, like other dying men, make his testament and executors; or, if he made none, the ordinary might grant administration to his next of kin, as if he were actually dead intestate. And such executors and administrators had the same power, and might bring the same actions for debts due to the religious, and were liable to the same actions for those due from him, as if he were naturally deceased.b Nay, so far has this principle been carried, that when one was bound in a bond to an abbot and his successors, and afterwards made his executors and professed himself a monk of the same abbey, and in process of time was himself made abbot thereof;

here the law gave him, in the capacity of abbot, an action of debt against his own executors to recover the money due.c In short, a monk or religious, were so effectually dead in law, that a lease made even to a third person, during the life (generally) of one who afterwards became a monk, determined by such his entry into religion: for which reason leases, and other conveyances for life, were usually made to have and to hold for the term of one's natural life.d But, even in the times of popery, the law of England took no cognizance of profession in any foreign country, because the fact could not be tried in our courts;e and therefore, since the reformation, this disability is held to be abolished:f as is also the disability of banishment, consequent upon abjuration, by statute 21 Jac. I. c. 28.

This natural life, being, as was before observed, the immediate donation of the Great Creator, cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow-creatures, merely upon their own authority. Yet nevertheless it may, by the divine permis-

a This was also a rule in the feodal law, l. 2. t. 21. dessit esse miles seculi, qui factus est miles Christi; nec beneficium pertinet ad eum qui non debet gerere

officium.

b Litt. §. 200. c Co. Litt. 133.

d 2 Rep. 48. Co. Litt. 132. e Co. Litt. 132. f 1 Salk, 162.

sion, be frequently forfeited for the breach of those laws of society, which are enforced by the sanction of capital punishments;

of the nature, restrictions, expedience, and legality of which, we may hereafter more conveniently inquire in the concluding book of these commentaries. At present, I shall only observe, that whenever the constitution of a state vests in any man, or body of men, a power of destroying at pleasure, without the direction of laws, the lives or members of the subject, such constitution is in the highest degree tyrannical: and that whenever any laws direct such destruction for light and trivial causes, such laws are likewise tyrannical, though in an inferior degree: because here the subject is aware of the danger he is exposed to, and may by prudent caution provide against it. The statute law of England does therefore very seldom, and the common law does never inflict any punishment extending to life or limb, unless upon the highest necessity: and the constitution is an utter stranger to any arbitrary power of killing or maiming the subject without the express warrant of law. "Nullus liber homo" says the great charters, "aliquo modo destruatur, nisi per legale judicium parium suorum aut per legem terrae."11 Which words, aliquo modo destruatur," according to sir Edward Coke,h include a prohibition not only of killing, and maiming, but also of torturing (to which our laws are strangers) and of every oppression by colour of an illegal authority. And it is enacted by the statute 5 Edw. III. c. 9, that no man shall be judged of life or limb, contrary to the great charter and the law of the land: and again, by statute 28 Edw. III. c. 3, that no man shall be put to death, without being brought to answer by due process of law.12

g c. 29. h 2 Inst. 48.

11. Herewith both the federal and state laws agree. Amendments to C. U. S. Art. 7. L. V. 1785, c. 81; Edi. 1794, c. 15, is a pretty exact translation of this part of the British Magna Charta.

12. No man shall be deprived of life, liberty, or property, without due process of law. Amendments to C. U. S. Art. 7. V. Bill of Rights, Art. 9. V. L. 1785, c. 81. Edi. 1794, c. 15.

3. Besides those limbs and members that may be necessary to a man, in order to defend himself or annoy his enemy, the rest of his person or body is also entitled, by the same natural right, to security from the corporal insults of menaces, assaults, beating, and wounding; though such insults amount not to destruction of life or member.13

4. The preservation of a man's health from such practices as may prejudice or annoy it;14 and,

5. The security of his reputation or good name from the arts of detraction and slander, are 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. But these three last articles (being of much less importance than those which have gone before, and those which are yet to come) it will suffice to have barely mentioned among the rights of persons: referring the more minute discussion of their several branches, to those parts of our commentaries which treat of the infringement of these rights, under the head of personal wrongs.15

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 moving one's person to whatsoever place one's own inclination may direct; without imprisonment or restraint, unless by due course of law. Concerning which we may make the same observations as upon the preceding article; that it is a right strictly natural; that the laws of England have never

13. This is by the common law. The persons of women, who are liable to some atrocious injuries which may fall under this description, are protected by some special laws for that purpose to be found in our statutory code. V. L. Edi. 1794, c. 104, 130. Sess. Acts of 1796, c. 2.

14. V. L. Edi. 1794, c. 23, 103, 105, 106, afford instances hereof.

15. See Appendix, Note G.

abridged it without sufficient cause; and, that in this kingdom it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws.(15) Here again the language of the great charteri is, that no freeman shall be taken or imprisoned, but by the lawful judgment of his equals, or by the law of the land.16 And many subsequent old statutesj expressly direct, that no man shall be taken or imprisoned by suggestion or petition to the king or his council, unless it be by legal indictment, or the process of the common law. By the petition of right, 3 Car. I, it is enacted, that no freeman shall be imprisoned or detained without cause shewn, to which he may make answer according to law.17 By 16 Car. I. c. 10. if any person be restrained of his liberty by order or decree of any illegal court, or by command of the king's majesty in person, or by warrant of the council board, or of any of the privy council; he shall, upon demand of his councel, have a writ of habeas corpus, to bring his body before the court of king's bench or common pleas; who shall determine whether the cause of his commitment be just, and thereupon do as to justice shall appertain.18

i c. 29. j 5 Edw. III. c. 9. 25 Edw. III. st. 5. c. 4. 28 Edw. III. c. 3.

(15.) The privilege of the writ of Habeas Corpus shall not be suspended, (viz. by congress) unless when in cases of rebellion or invasion the public safety may require it. C. U. 8. Art. I. Sec. 9. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized. Amendments to C. U. S. Art. 6. No person shall be deprived of life, liberty, or property, without due process of law. Ib. Art. 7. Excessive bail shall not be required, Ib. Art. 10. And herewith also agrees the bill of rights, Art. 8, 9, 10, and V. L. 1785, c. 81. Edi. 1794, c. 15.

16. V. L. 1785, c. 81. Edi. 1794, c. 15. accordant.

17. Amendments to C. U. S. Art. 6. V. Bill of Rights, Art. 10. accordant.

18. C. U. S. Art. 1. Sec. 9. L. U. S. 1 Cong. 1 Sess. c. 20. Sec. 14. L. V. 1784, c. 35. Edi. 1794, c. 118. accordant.

And by 31 Car. II. c. 2. commonly called the habeas corpus act, the methods of obtaining this writ are so plainly pointed out and enforced, that, so long as this statute remains unimpeached, no subject of England can be long detained in prison, except in those cases in which the law requires and justifies such detainer.19 And, lest this act should be evaded by demanding unreasonable bail, or sureties for the prisoner's appearance, it is declared by 1 W. & M. st. 2. c. 2, that excessive ball ought not to be required.20

Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in France it is daily practised by the crown)k there would soon be an end of all other rights and immunities. Some have thought, that unjust attacks, even upon life, or property, at the arbitrary will of the magistrate, are less dangerous to the commonwealth, than such as are made upon the personal liberty of the subject. To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom: but confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. And yet sometimes, when the state is in real danger, even this may be a necessary measure. But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient: for it is the parliament

k I have been assured upon good authority, that, during the mild administration of cardinal Fleury, above 54,000 lettres de cachet were issued, upon the single ground of the famous bulle unigenitus.

19. V. L. 1794, c. 118. to the same purpose.

20. Amendments to C. U. S. Art. 10. Bill of Rights, Art. 9. 1785, c. 80. Edi. 1794, c. 14. accordant.

only, or legislative power, that, whenever it sees proper, can authorise the crown, by suspending the habeas corpus act for a short and limited time,21 to imprison suspected persons without giving any reason for so doing; as the senate of Rome was wont to have recourse to a dictator, a magistrate of absolute authority, when they judged the republic in any imminent danger. The decree of the senate, which usually preceded the nomination of this magistrate, "dent operam consules, ne quid respublica detrimenti capiat,["] was called the senatus consultum ultimae necessitatis. In like manner, this experiment ought only to be tried in cases of extreme emergency; and in these the nation parts with it's liberty for a while, in order to preserve it for ever.

The confinement of the person, in any wise, 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.l And the law so much discourages unlawful confinement, that if a man is under duress of imprisonment, which we before explained to mean a compulsion by an illegal restraint of liberty, until he seals a bond or the like; he may allege this duress, and avoid the extorted bond. But if a man be lawfully imprisoned, and either to procure his discharge, or any other fair account, seals a bond or a deed, this is not by duress of imprisonment, and he is not at liberty to avoid it.m To make imprisonment lawful, it must either be by process from the courts 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 the commitment, in order to be examined into (if necessary) upon a habeas corpus.22 If there

l 3 Inst. 589. m 2 Inst. 482.

21. The privilege of the writ of Habeas Corpus, can only be suspended by the authority of congress, in case of actual rebellion or invasion. C. U. S. Art. 1. Sec. 9. And the legislature, only, have power to suspend it in the state governments.

22. General warrants, commanding the seizure of any persons not named, or whose offence is not particularly described, and sup-

be no cause expressed, the gaoler is not bound to detain the prisoner.n For the law judges in this respect, saith sir Edward Coke, like Festus the Roman governor; that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him.

A natural and regular consequence of this personal liberty, is, that every Englishman may claim a right to abide 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 licence.o 23 This may be necessary for the public service and safeguard of the commonwealth. But no power on earth, except the authority of parliament, can send any subject of England out of the land against his will; no, not even a criminal. For exile, and transportation, are punishments at present unknown to the common law; and, whenever the latter is now inflicted, it is either by the choice of the criminal himself to escape a capital punishment, or else by the express direction of some modern act of parliament. To this purpose the great charterp declares,

n 2 Inst. 52, 53. o F. N. B. 85. p c. 29.

ported by evidence, are grievous and oppressive, and ought not to be granted. Bill of rights, Art. 10. Amendments to C. U. S. Art. 6.

23. The constitution of Virginia, Art. 9, expressly declares, "that the government shall not, under any pretext, exercise any power, or prerogative by virtue of any law, statute, or custom of England." And the laws of Virginia expressly admit the right of expatriation. It seems also to result from the nature of our government, that the federal executive possesses no such power as that here spoken of. But where it is suggested that a defendant in a civil suit, in which bail is not ordinarily required, is about to depart the state, the courts of equity, for good cause shewn, will award a writ of ne exeat to compel the defendant to give security to satisfy the judgment, or, perform the decree of the court. V. L. Edi. 1794, c. 64, 110. See also, 3 p. Wms. 312. 3 Bro. 370, and 1. Ves. jun. 96.

that no freeman shall be banished, unless by the judgment of his peers, or by the law of the land.24 And by the habeas corpus act, 31 Car. II. c. 2. (that second magna carta, and stable bulwark of our liberties) it is enacted, that no subject of this realm, who is an inhabitant of England, Wales, or Berwick, shall be sent prisoner into Scotland, Ireland, Jersey, Guernsey, or places beyond the seas; (where they cannot have the full benefit and protection of the common law) but that all such imprisonments shall be illegal; that the person, who shall dare to commit another contrary to this law, shall be disabled from bearing any office, shall 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 abbettors, and shall recover treble costs; besides his damages, which no jury shall assess at less than five hundred pounds.

24. V. L. 1785, c. 81. Edi. 1794, c. 15. accordant. No person shall be deprived of life, liberty, or property, without due process of law. Amendments of C. U. S. Art. 7.

Notwithstanding this express declaration of the C. U. S. an act was passed, 5 Cong. c. 75, authorising the president to order all such aliens as he should judge dangerous to the peace and safety of the United States, or have reasonable grounds to suspect of any treasonable, or secret machinations against the government thereof, to depart out of the territory of the United States within a limited time; and in case of disobedience, every such alien so ordered, was liable, on conviction, to be imprisoned for any term not exceeding three years. And any alien so ordered to depart, and remaining in the United States without a licence for that purpose, obtained from the president, might be arrested, and sent out of the United States by his order: and in case of his voluntary return thereto, might be imprisoned so long as in the opinion of the president the public safety might require. This unpopular act was limited to two years, when it was permitted to expire. The states of Kentucky and Virginia protested against it as unconstitutional: a construction, which it seems impossible to invalidate, unless we could conceive that aliens are not persons, that the suspicions of a president of the United States are a probable cause supported by oath, or affirmation; that the opinion or judgment of a president is a trial by jury and a conviction, (in case of treasonable acts) upon the tes-

The law in this respect is so 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 send any man out of the realm, even upon the public service; excepting sailors and soldiers, the nature of whose employment necessarily implies an exception: he cannot even constitute a man lord deputy, or lieutenant of Ireland against his will, nor make him a foreign ambassador.q For this might 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 any control or diminution, save only by the laws of the land.25 The original of private property is probably founded in nature, as will be be more fully explained in the second book of the ensuing commentaries: but certainly the modifications under which we at present find it, the method of conserving it in the present owner, and of translating it from man to man, are entirely derived from society: and are some of those civil advantages, in exchange for which, every individual has resigned a part of his natural liberty. The laws of England are therefore, in point of honour and justice, extremely watchful in ascertaining and protecting this right. Upon this principle the great charterr has declared that no freeman shall be disseised, or divested, of his freehold, or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land.26 And by a variety of ancient

q 2 Inst. 46.

r c. 29.

timony of two witnesses; and that neither imprisonment, nor banishment, is any deprivation of personal liberty. See note (28) p. 260.

25. The means of acquiring and possessing property is one of the inherent rights of man, as enumerated in our bill of rights, Art. 1. See also Amendts. to C. U. S. Art. 6, 7.

26. Amendments to the C. U. S. Art. 7. L. V. 1785, c. 81. Edi. 1794, c. 15. accordant.

statutess It is enacted, that no man's lands or goods shall be seised into the king's hands, against the great charter, and the law of the land;27 and that no man shall be disinherited, nor put out of his franchises or freehold, unless he be duly brought to answer, and be forejudged by course of law; but if any thing be done to the contrary, it shall be redressed, and holden for none.

So great, moreover, is the regard of the law for 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 the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent 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 essentially interested, than in the protection of every individual's private rights, as modelled by the municipal law. 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 properly in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained.28 The public is now considered as an individual, treating with an individual for an

s 5 Edw. III. c. 9. 25 Edw. III. st. 5. c. 4. 28 Edw. III. c. 3.

27. Private property shall not be taken for the public use, without just compensation. Amendments to the C. U. S. Art. 7. V. L. 1794, c. 121.

28. V. L. 1785, c. 75. Edi. 1794, c. 19. accordant, except that the county courts are generally authorised to judge of the propriety of opening the road. The compensation to be allowed is assessed by a jury, assembled by virtue of a writ of ad quod damnum.

exchange. All that the legislature does, is to oblige the owner to alienate his possessions 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.

Nor is this the only instance in which the law of the land has postponed even public necessity to the sacred and inviolable rights of private property. For no subject of England can be constrained to pay any aids or taxes, even for the defence of the realm or the support of government, but such as are imposed by his own consent, or that of his representatives in parliament.29 By the statute, 25 Edw. I. c. 5. and 6, it is provided, that the king shall not take any aids or tasks, but by the common assent of the realm. And what that common assent is, is more fully explained by 34 Edw. I. st. 4. c. 1, whicht enacts, that no talliage or aid shall be taken without the assent of the archbishops, bishops, earls, barons, knights, burgesses, and other freemen of the land:

and again, by 14 Edw. III. st. 2. c. 1, the prelates, earls, barons, and commons, citizens, burgesses, and merchants shall 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 shamefully evaded under many succeeding princes, by compulsive loans, and benevolences extorted without a real and voluntary consent, it was made an article in the petition of right, 3 Car I, that no man shall be compelled to yield any

t See the introduction to the great charter, (edit, Oxon.) sub anno 1297; wherein it is shewn that this statute de talliagio non concedendo, supposed to have been made in 34 Edw, I, is in reality nothing more than a sort of translation into Latin of the confirmatio cartarum, 25 Edw. I, which was originally published in the Norman language.

29. Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence, and general welfare of the United States: but all duties, imposts, and excises, shall he uniform throughout the United States:

and no capitation, or other direct tax, shall be laid but in proportion to the census. C. U. S. Art. 1. §. 89. And in the state governments, also, no man can be taxed, or deprived of his property for public uses, without his own consent, or that of his representatives. Bill of Rights, Art, 6,

gift, loan, or benevolence, tax, or such like charge, without common consent by act of parliament. And, lastly, by the statute 1 W. and M. st. 2. c. 2, it is declared, that levying money for or to the use of the crown, by pretence of prerogative, without grant of parliament; or for longer time, or in other manner, than the same is or shall be granted: is illegal.

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 be declared, ascertained, and protected by the dead letter of the laws, 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 private property. These are,

1. The constitution, powers, and privileges of parliament, of which I shall treat at large in the ensuing chapter.30

2. The limitation of the king's prerogative, by bounds, so certain and notorious, that it is impossible he should either mistake or legally exceed them without the consent of the people .... Of this also, I shall treat in it's proper place. The former of these, keeps the legislative power in due health and vigour, so as to make it improbable that laws should be enacted destructive of general liberty: the latter is a guard upon the executive power, by restraining it from acting either beyond or in contradiction to the laws, that are framed and established by the other.31

30. Having already treated somewhat at large of the constitution, powers and privileges both of the federal and the state legislature, in the Appendix to the first part of this volume, the Editor will, in general, confine himself to short references, only, in this and the ensuing chapters. See C. U. S. Art. 1. C. V. Art. 3.

31. The powers and duties of the federal executive, and of the governor of the commonwealth, with the limitations thereof respectively. See C. U. S. Art. 2. C. V. Art. 9. L. V. c. 62. Edi. 1794.

3. A third subordinate right of every Englishman is that of applying to the courts of justice for redress of injuries.32 Since the law is in England 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. The emphatical words of magna carta,u spoken in the person of the king, who in judgment of law (says Sir Edward Cokew) is ever present and repeating them in all his courts, are these; nulli vendemus, nulli negabimus, aut differemus rectum vel justitiam:

"and therefore, every subject,"33 continues the same learned author, "for injury done to him in bonis, in terns, vel persona, by any other subject, be he ecclesiastical 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 sale, fully without any denial, and speedily without delay." It were endless to enumerate all the affirmative acts of parliament, wherein justice 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, unless 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,x 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.34 By 2 Edw. III. c. 8. and 11 Ric. II. c. 10, it is enacted, that no commands or letters

u c. 29. w 2. Inst. 55. x c. 29.

32. See C. U. S. Art. 3. C. V. Art. 3. 14.

33. Justice or right shall not be sold, denied, or deferred to any man. L. V. 1785, c. 81. Edi. 1794, c. 15.

34. No freeman shall be taken or imprisoned, or be disseized of his freehold or liberties, or free customs, or be outlawed or exiled, or any otherwise destroyed, nor shall the commonwealth pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. V. L. 1785, c. 81. Edi. 1794, c. 15.

shall be sent under the great seal, or the little seal, the signet, or privy seal, in disturbance of the law; or to disturb or delay common right: and, though such commandments should come, the judges shall not cease to do right; which is also made apart of their oath by statute 18 Edw. III. st. 4.35 And by 1 W. and M. st. 2. c. 2, it is declared, that the pretended power of suspending, or dispensing with laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.36

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 those out works 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;37 but then they must proceed according to the old established forms of the common law. For which reason it is declared in the statute 16 Car. I. c. 10, upon the dissolution of the court of star-chamber, that neither his majesty, nor his privy council, have any jurisdiction, power, or authority by English bill, petition, articles, libel, (which were the course of proceeding in the star-chamber, borrowed from the civil law) or by any other arbitrary way whatsoever, to examine, or draw into question, determine, or dispose of the lands or goods of any subjects of this kingdom; but that the same ought to be

35. It is also made a part of the oath of the judges of all the superior courts in Virginia, but not of the county courts. Edi. 1794, c. 63, 64, 65, 66, 67, neither is it a part of the oath of the federal judges. L. U. S. 1 Cong. 1 Sess. c. 20.

36. All power of suspending laws, or the execution of laws, by any authority without the consent of the representatives of the people, is injurious to their rights, and ought not to be exercised. Bill of rights, Art. 7.

37. It does not belong to the executive authority either in the federal, or state government, to erect courts of judicature. The constitutions of both provide for the establishment of superior courts, and the congress, or state legislature only, has authority to establish inferior tribunals. C. U. S. Art. 3. C. V. Art. 14.

tried and determined in the ordinary courts of justice, and by course of law.

4. If there should happen any uncommon injury, or infringement of the rights before-mentioned, which the ordinary course of law is too defective to reach, there still remains a fourth subordinate right, appertaining to every individual, namely, the right of petitioning the king, or either house of parliament, for the redress of grievances.38 In Russia we are toldy that the czar Peter, established a law, that no subject might petition the throne, till he had first petitioned two different ministers of state. In case he obtained justice from neither, he might then present a third petition to the prince; but upon pain of death, it found to be in the wrong. The consequence of which was, that no one dared to offer such third petition; and grievances seldom falling under the notice of the sovereign, he had little opportunity to redress them. The restrictions, for some there are, which are laid upon petitioning in England, are of a nature extremely different; and while they promote the spirit of peace, they are no check upon that of liberty. Care only must be taken, lest, under the pretence of petitioning, the subject be guilty of any riot or tumult; as happened in the opening of the memorable parliament in 1640: and, to prevent this, it is provided by the statute 13 Car. II. st. 1. c. 5, that no petition to the king, or either house of parliament, for any alteration in 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

y Montesq. Sp L. xii. 26.

38. The right of the people peaceably to assemble, and to petition the government for a redress of grievances shall not be prohibited. Amendments to C. U. S. Art. 3. The convention of Virginia, at the time of their acceptance and ratification of the constitution of the United States, declared; That the people have a right peaceably to assemble together to consult for the common good, or to instruct their representatives; and that every freeman hath a right to petition or apply to the legislature for redress of grievances. See the bill of rights proposed by that convention, Art. 15.

jury, in the country39; and in London by the lord mayor, aldermen, 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 1 W. & M. st. 2. c. 2, 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, that I shall at present mention, is that of having arms for their defence40 suitable to their condition and degree, and such as are allowed by law.41 Which is also declared by the same statute 1 W. & M. st. 2. c. 2, and it is indeed, a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

In these several articles consist the rights, or, as they are frequently termed, the liberties of Englishmen: 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 and criminal submission on the other. And we have seen that these rights con-

39. From hence, probably originated the practice of grand-juries presenting state-grievances. The right of petitioning is not subject to any limitation or restriction in the United States.

40. the right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government.

41. Whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England. The commentator himself informs us, Vol. II, p. 412, "that the prevention of popular insurrections and resistence to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws."

sist, 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 birth-right 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 fully justify the observation of a learned French author, who indeed generally both thought and wrote in the spirit of genuine freedom;z 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 it's constitution.42 Re-

z Montesq. Sp. L. xi. 5.

42. Professor Christian, in one of his notes upon this chapter, page 126, hints at a distinction between civil and political liberty. Something of the same kind will be found in the tract concerning slavery, Appendix note H. Perhaps the idea is not there carried far enough; I shall therefore subjoin a few observations in this place.

Perhaps the difficulty which occurs in drawing the line of distinction between civil and political liberty, arises from the present use of that term, as synonimous with the word right: it may be not amiss, therefore, to give a short definition of each.

Liberty

commending, 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 expiring wish of the famous father Paul to his country, "ESTO PERPETUA!"43

Liberty, then, is defined by Mr. Locke, to be, the power in any agent to do, or to forbear, any particular action, according to the determination or thought of the mind, whereby either of them is preferred to the other.*

Right, on the other hand, is defined by Doctor Johnson, to be, that which justly belongs to one; or, a just claim.

In discussing the interests, immunities, privileges, prerogatives, and powers, which appertain to men and states, as moral agents, the term right seems to be more definite and appropriate than that of liberty; I shall therefore adopt it.

Rights, then, I apprehend, admit of a fourfold division: 1st, natural rights; 2dly, social rights; 3dly, civil rights; 4thly, political rights. 1. Natural rights, are such as appertain to every man, as a moral agent, independent of any social institutions, or laws, whatsoever: to which all men, without distinction, so long as they remain In the state of nature, are absolutely entitled. The whole of which are comprehended under the right of self-preservation, and

of doing whatsoever may be necessary to that end.

It is this right of self-preservation which gives to any person in the state of nature the right to punish any other for any evil Ire has done; and to be himself both the judge and executioner of the law of nature.

But this natural right doth not amount, even in the state of nature, to a state of license, or uncontrolled liberty; for the state of nature hath the law of nature to govern it, which obliges every one;

and reason, which is that law, teaches all mankind that will consult it, that being all equal, and independent, no one ought to harm another in his life, health, liberty, or possessions. And, therefore, when his own preservation comes not in competition, he ought, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the liberty, health, limbs, or goods of another.†

When * Locke on the Human Understanding, B. 2. c. 21. Sec. 8.

† Locke on Civil Government, c. 2.

43. See Appendix, Note H.

When a man quits the state of nature, and enters into a state of society, he resigns into the hands of society the right of punishing an offender, for an injury already done him, the society by the terms of the social compact, having engaged to punish every such offender for him. But he retains the right of repelling force by force; because that may be absolutely necessary for self-preservation, and the intervention of the society in his behalf, may be too late to prevent an injury. Upon the same principle, he may be supposed to retain every other natural right, which the society cannot aid him in preserving or enforcing.

2. Social rights are such as appertain to every individual in a state of society, without regard to the form or nature of the government in which he resides. Social rights comprehend whatever natural rights a man hath not abandoned by entering into society; they likewise include all those privileges which are supposed to be tacitly stipulated for, by the very act of association; such as the right of protection from injury, which the whole society has engaged to afford him; or of redress for the same, by suit or action. The right of holding lands by a mere symbolical representation, as a deed, instead of actual possession, the only title which the law of nature gives; the right of transmitting property to his posterity, or. to his executors, or legatees; are all of them, social rights, being the mere creatures of the artificial institutions of society.

Social rights depend upon the laws, customs, and usages of different nations and countries; but they have no relation to the nature, form, or administration of the government; the rights which appertain to these subjects being more properly civil, or political, as will be shewn hereafter. Therefore, in all civilized nations, all free persons, whether citizens or aliens; males or females; infants or adults; white or black, of sound mind, or ideots and lunatics, have their respective social rights, according to the laws, customs, and usages of the country. Slaves, only, where slavery is tolerated by the laws, are excluded from social rights. Society deprives them of personal liberty, and abolishes their right to property; and, in some countries, even annihilates all their other natural rights: the life of the slave, in divers parts of the world, being held by a tenure, altogether as precarious as that of the ox he ploughs with.

3. Civil rights, taken in a strict and confined sense, as contradistinguished from natural and social rights, are such as appertain to a man as a citizen or subject, of this, or that, particular state or country; in his private and individual capacity as a free agent, and member of the body politic or state, in respect to the state or body politic; and contradistinguished from such as might be due to him as a magistrate, legislator, judge, or other public agent, character,

or functionary. The right of electing, and being elected to, any public office or trust, may be considered as among the most important of these rights.

These civil rights may be inherited, or acquired, in the United States: they are acquired by a foreigner who is naturalized; they are inherited by all whose parents, at the time of their birth, were citizens. They may be enlarged, in some states, by the purchase of lands, if the purchaser had no lands before; they may be narrowed by the sale of lands, if the seller has no more left.

Aliens, women, children under the age of discretion, ideots, and lunatics, during their state of insanity, and negroes and mulattoes, though natives of the state, and born free, have no civil rights in Virginia, taken in this strict and limited sense.

4. Political rights, as contradistinguished from the three former, are such as appertain to a man, or body of men, as magistrates, legislators, judges, or other public agents, characters, or functionaries. Thus the prerogatives of a king of Great Britain are his political rights; and the powers vested in the president of the United States; in the senate; in the whole body of the congress; in the federal courts; and in the executive, legislative, and judiciary departments, and officers of the several states, constitute their political rights, respectively.

Political rights, in monarchies and aristocracies, are frequently personal and hereditary; in democracies properly constituted, they are merely official, temporary, and incapable of transmission by inheritance. In England, a man may be a chief magistrate, a legislator, or a judge, by inheritance: in the American States it is a fundamental principle, that no man can be a magistrate, a legislator, or a judge by hereditary right. In America, women have no political rights; in England, a woman may hold the reins of government.

Civil rights form the only balance or counterpoise in a state, against political rights: where the constitution of a state respects civil rights, more than such as are political, the people, whilst the constitution remains in fall force, are free; but the government may possibly be too feeble to preserve the constitution, or to secure to individuals the enjoyment of their social rights: but where the constitution respects political rights, more than civil rights, the state may be free, and the constitution preserved in its fall tone and vigour: but the people (unless they have reserved to themselves the power to change the constitution, which is not supposed in this case,) are slaves.

As civil rights form the only check in a state upon such as are political, so also do they constitute the only safeguard and protection for social rights. In Turkey, where there are no civil rights, social rights are at the mercy of the grand seignior and his bashaws.

The right of personal liberty is a natural right; the benefit of habeas corpus is a social right; the right of individuals to choose representatives to congress is a civil right; the right of the several state legislatures to appoint senators to congress is a political right. The first of these rights is derived from our Creator, and is not abandoned by entering into society; the second is a creature of social law, invented for the security and protection of the former; the third results from the constitution of the United States regarded as a civil compact; the fourth results from the same instrument, regarded as a federal compact. The right of congress to make laws, binding not only upon the several states, but, in some cases, upon every individual citizen, is another political right, the creature of the same instrument.

Social rights are not unfrequently unequal; in England no inferior tradesman or mechanic, whatever his property may be; nor even a farmer, upon the land which he rents, and occupies, can kill a hare or a partridge, without being liable to a penalty for so doing;

nor can any other person unless he hath a freehold estate, or other adequate qualification, to the amount of 100l. per annum, at least, except he be the son and heir apparent of an esquire, or person of a superior degree; in which case he may do it with impunity, (so far as relates to the public) wheresoever he meets with them. In Virginia, a negro, or mulatto, though born free, cannot be a witness in any civil suit, in which a white person may be a party, nor in any criminal prosecution whatsoever, against a white person, even though the negro, or mulatto may have been beaten or maimed by him.

Civil rights also, are frequently unequal; both in England, and in Virginia, none but the possessors of a freehold-estate in lands, of a certain value, are (in general*) qualified to vote for a member of congress, or of the state legislature; nor can any negro, or mulatto, though free, and possessed of such an estate in lands, vote for either in Virginia.

Wherever a distinction of ranks is permitted, or established by the laws, or constitution, there an inequality, both in respect to social, and civil rights, is unavoidable.

* The right of suffrage in Williamsburg, Norfolk, and Richmond, is extended to all house-keepers in those towns: the same holds in respect to the English boroughs.

Social rights are, in some respects, more extensive in England, than in Virginia, for in England domestic slavery is unknown. In other respects they are more extensive here, than in England; for any free white person may be naturalized here, in the mode prescribed by law, as a matter of right; in England it is a matter of the highest grace, and favour. Social rights have, moreover, one security more, in the United States than in England; for no man in America is subject to the operation of a bill of attainder as he may be in England.

Civil rights are far more extensive in the United States than in England: every citizen without regard to his religion, or estate, may be elected a member of either house of congress, or even president of the United States, if there be no other constitutional objection, or incapacity: in England, a member of parliament must possess a certain estate, and must profess to believe in one particular set of religious tenets; and none but the persons of one particular family are at present capable of succeeding to the office of chief magistrate. Civil rights are likewise better secured in the United States, than in England; depending generally upon the federal and state constitutions for their support, instead of the acts of the ordinary legislature, as in England.

On the other hand, political rights are far more extensive in England, than in the American states; for the British parliament can alter the established religion of the land, and even change the constitution of the kingdom. Congress can make no law respecting religion; nor, of itself, can it change an iota of the federal constitution. And the powers of the state legislatures are equally restrained.

Hitherto, we have spoken of political rights, as they regard a man or body of men, as public functionaries, or component parts of the body politic, or state, and not as they regard the state, or nation itself; in this latter view, political rights may be either perfect, or imperfect.

When any state freely exercises all the rights of self-government, without any constraint, or control, except such as the general law of nations imposes upon all civilized nations, alike, the political rights of such state are perfect; that is the state is politically free.

It is nevertheless easy to conceive that the people of such a state may groan under the most intolerable slavery, from which they cannot relieve themselves. Rome under the government of the Caesars, and modern Turkey may illustrate this position.

But when a state, from any external cause, is deprived of any of the rights of self government, the political rights of such a state are imperfect, and the state itself can no longer be said to be politically free, whatever civil rights the people of such a state may enjoy therein. Such is the state of colonies, and other dependent governments.

In this case it is no less easy to conceive that both social and civil rights may be extensive, and secure, as they relate to the administrative authority of the dependent state; but precarious, and uncertain, as they relate to the paramount state, to which the dependent state is, itself subject. Such was the state of United America before the revolution; civil rights were in fact more extensive here, than in the predominant state; but the political rights of the colonies were imperfect. The revolution was necessary to their perfection, and also to the security of the civil rights of their inhabitants; by establishing them on the basis of the constitution of a state, which should be in itself absolutely free, and independent of all external constraint, or control, whatsoever.

From the preceding investigation of the nature of different rights, we may hazard the following definitions, without pretending to answer for their accuracy.

1. Natural liberty, then, consists in the power of acting as one thinks fit, without any constraint, or control, except by the law of nature.

2. Social liberty is natural liberty so far restrained by human laws, and no farther, as is necessary and expedient for the general advantage of any community.

3. Civil liberty consists in the free and uninterrupted exercise, enjoyment, and security of a man's civil rights; including in a more general and extensive sense, his social rights, also.

4. Political liberty, when applied to a state, or nation, consists in the absolute and unconstrained power of self-government; without any other constraint, or control whatsoever, except such as the general law of nations imposes upon all states, and nations alike. When applied to the public functionaries of any state, it consists in the free and uninterrupted exercise, enjoyment and security of their respective political rights, according to the constitution of the state.

Civil liberty is most perfect where social rights are protected and secured; where civil rights are equal, extensive, and established upon the basis of the constitution; where the political rights

of the public functionaries are defined, and limited by the constitution; and where the political rights of the state, or nation, itself, are perfect, and unlimited.

Those rights, which, according to Judge Blackstone, are the absolute rights of individuals, constitute, according to this distribution, the aggregate of their social rights.

The quantum of civil liberty in a state, is more or less, according as the people, have more or less, a share in government, and of a controlling power over the persons, by whom it is administered.*

* Price on civil liberty, Sect. 2.

CHAPTER THE SECOND.

OF THE PARLIAMENT.1

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.(1)

In all tyrannical governments the supreme magistracy, or the right of making and enforcing the laws, is vested in one and the same man, or one and the same body of men; and whereso-

1. In the Appendix to the former part of this volume, the student will find "a summary view and comparison of the constituent parts of the parliament of Great Britain, and the congress of the United States." See Appendix, note D. In the present chapter the Editor hath generally confined himself to short notes of reference to the correlative parts of the constitution of the United States, or of the state of Virginia.

(1.) A more obvious distinction in the United States, is that of the people, and their agents; the former being at once sovereign and subject; the latter governors and servants. Of agents some are federal, or such as have the administration of the government of the United States; others there are to whom the administration of the state governments is, exclusively, committed.

ever these two powers are united together, there can be no public liberty.2 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 entrust the latter with so large a power, as may tend to the subversion of it's 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 in our constitution.

The original or first institution of parliaments 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 But 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

a Mod. Un. Hist. xxiii. 307. The first mention of it in our statute law is in the preamble to the statute of Westm. 1. 3. Edw. I. A. D. 1272.

2. Both the bill of rights, Art, 5. and the constitution of Virginia, Art. 3. declare, That the legislative and executive powers of the state should be separate and distinct from the judiciary, and from each other, except in certain cases especially provided. The distribution of the powers of the federal government is conformable to the same principle. See C. U. S. Art. 1. §. I. Art. 2. §. 1. Art. 3. §. 1.

the northern nations, particularly the Germans;b and carried 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 France:c 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 michel-synoth or great council, michel-gemote or great meeting, and more frequently wittena-gemote or the meeting of wise men. It was also stiled in Latin, commune concilium regni, magnum concilium regis, curia magna, conventus magnatum vel procerum, assisa generalis, and sometimes communitas regni Angliae.d We have instances of it's meeting to order the affairs of the kingdom, to make new laws, and to mend the old, or, as Fletae expresses it, "novis injuriis emersis 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

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

c These were assembled for the last time, A. D. 1561. (See Whitelocke of parl. c. 72. or according to Robertson, A. D. 1614. (Hist. Cha. V. i. 369.)

d Glanvil. l. 13. c 32. l. 9. c. 10 .... Pref. 9 Rep .... 2 Inst. 526.

e l. 2. c. 2 f c. l. §. 3.

sunt instituta, quae Edgarus rex consilio sapientum suorum instituit;" or to be enacted by those sages with the advice of the king, as, "haec sunt judicia, qua sapientes consilio regis Ethelstani instituerunt;" or lastly, to be enacted by them both together, as, "haec sunt institutiones, quas rex Edmundus et episcopi sui cum sapientibus suis instituerunt."

There is also no doubt but these great councils were occasionally held under the first princes of the Norman line. Glanvil, who wrote in the reign of Henry the second; speaking of the particular amount of an amercement in the sheriff's court, says, it had never yet been ascertained by the general assise, or assembly, but was left to the custom of particular counties.g Here the general assise is spoken of as a meeting well known, and it's statutes or decisions are put in a manifest contradistinction to custom, or the common law. And in Edward the third's time, an act of parliament, made in the reign of William the conqueror, was pleaded in the case of the abbey of St. Edmund's-bury, and judicially allowed by the court.h

Hence it indisputably appears, that parliaments, or general councils, are coeval with the kingdom itself. How those parliaments were constituted and composed, is another question, which has been matter of great dispute among our learned antiquaries; and, particularly, whether the commons were summoned at all; or, if summoned, at what period they began to form a distinct assembly. But it is not my intention here to enter into controversies of this sort. I hold it sufficient that it is generally agreed, that in the main the constitution of parliament, as it now stands, was marked out so long ago as the seventeenth year of king John, A. D. 1215, in the great charter granted by that prince; wherein he promises to summon all archbishops, bishops, abbots, earls, and greater barons, personally; and all other tenants in chief under the crown, by the sheriff and bailiffs; to meet at a certain place, with forty days notice, to assess aids and

g Quanta esse debeat per nullam assissam generalem determinatum est, sed pro consuetudire su galorum comitatuum debetum l 9 c 10

h Year book 21 Edw. III 60

acutages when necessary. And this constitution has subsisted in fact at least from the year 1266, 49 Hen. III: there being still extant writs of that date, to summon knights, citizens, and burgesses to parliament. I proceed, therefore, to inquire wherein consists this constitution of parliament, as it now stands, and has stood for the space of at least five hundred years. And in the prosecution of this inquiry, I shall consider, first, the manner and time of it's assembling: secondly, it's constituent parts:

thirdly, the laws and customs relating to parliament, considered as one aggregate body: fourthly and fifthly, the laws and customs relating to each house, separately and distinctly taken:

sixthly, the methods of proceeding, and of making statutes, in both houses: and lastly, the manner of the parliament's adjournment, prorogation, and dissolution.

I. As to the manner and time of assembling.3 The parliament is regularly to be summoned by the king's writ or letter, issued out of chancery by advice of the privy council, at least forty days before it begins to sit. It is a branch of the royal prerogative, that no parliament can be convened by its own authority, or by the authority of any, except the king alone. And this prerogative is founded upon very good reason. For, supposing it had a right to meet spontaneously, without being called together, it is impossible to conceive that all the members, and each of the houses, would agree unanimously upon the proper time and place of meeting; and if half of the members met, and half absented themselves, who shall determine which is really the legislative body, the part assembled, or that which stays away?4 It is therefore necessary that the parliament should be

3. The manner and time of assembling the congress of the United States, is provided for in the C. U. S. Art. 1. Sec. 4.

The manner and time of assembling the legislature of the state, is likewise provided for, in C. V. Art. 4. L. V. Edi. 1794, c. 17, 162, and Sessions Acts, 1796, c. 9. 1797, c. 15. and 1798, c. 14.

4. The inconveniencies here suggested have been so completely obviated by the provisions contained in the federal, and state constitutions and laws, as to shew them to be merely creatures of the imagination.

called together at a determinate time and place: and highly becoming it's dignity and independence, that it should be called together by none but one of it's own constituent parts: and, of the three constituent parts, this office can only appertain to the king; as he is a single person, whose will may be uniform and steady; the first person in the nation, being superior to both houses in dignity; and the only branch of the legislature that has a separate existence, and is capable of performing any act at a time when no parliament is in being.i Nor is it an exception to this rule that, by some modern statutes, on the demise of a king or queen, if there be then no parliament in being, the last parliament revives, and is to sit again for six months, unless dissolved by the successor: for this revived parliament must have been originally summoned by the crown.

It is true, that by a statute, 16 Car. I. c. 1. it was enacted, that, if the king neglected to call a parliament for three years, the peers might assemble and issue out writs for choosing one; and, in case of the neglect of the peers, the constituents might meet and elect one themselves.5 But this, if ever put in practice, would have been liable to all the inconveniences I have just now stated: and the act itself, was esteemed so highly detrimental and injurious to the royal prerogative, that it was repealed by statute 16 Car. II. c. 1. From thence, therefore, no precedent can be drawn.

It is also true, that the convention-parliament, which restored king Charles the second, met, above a month before his return;

i By motives somewhat similar to these, the republic of Venice was actuated, when towards the end of the seventh century it abolished the tribunes of the people, who were annually chosen by the several districts of the Venetian territory, and constituted a doge in their stead; in whom the executive power of the state at present resides. For which their historians have assigned these, as the principal reasons. 1. The propriety of having the executive power a part of the legislative, or senate; to which the former annual magistrates were not admitted. 2. The necessity of having a single person to convoke the great council when separated. (Mod. Un. Hist. xxvii. 15 )

5. Both congress, and the state legislature, must meet at least once a year. C. U. S. Art. 1. §. 4. C. V. Art. 4. 10.

the lords by their own authority, and the commons, in pursuance of writs issued in the name of the keepers of the liberty of England by authority of parliament: and, that the said parliament sat till the twenty-ninth of December, full seven months after the restoration; and enacted many laws, several of which are still in force. But this was for the necessity of the thing, which supersedes all law; for, if they had not so met, it was morally impossible that the kingdom should have settled in peace.6 And the first thing done after the king's return was to pass an act, declaring this to be a good parliament, notwithstanding the defect of the king's writs.i So that, as the royal prerogative was chiefly wounded by their so meeting; and as the king himself, who alone had a right to object, consented to wave the objection, this cannot be drawn into an example, in prejudice of the rights of the crown. Besides, we should also remember, that it was, at that time, a great doubt among the lawyers,k whether even this healing act made it a good parliament; and held by very many in the negative; though it seems to have been too nice a scruple. And yet, out of abundant caution, it was thought necessary to confirm it's acts in the next parliament, by statute 13 Car. II. c. 7, and c. 14.

It is likewise true, that, at the time of the revolution, A. D. 1688, the lords and commons, by their own authority, and upon the summons of the prince of Orange, (afterwards king William) met in a convention, and therein disposed of the crown and kingdom. But it must be remembered, that this assembling was upon a like principle of necessity as at the restoration; that is, upon a full conviction that king James the second had abdicated the government; and, that the throne was thereby vacant: which supposition of the individual members was confirmed by their

i Stat. 12 Car. II. c. 1. k 1 Sid. 1.

6. The conventions which were held in Virginia during the existence of the regal government, assembled in consequence of recommendations from the members of the general assembly, which had been dissolved by the governor; or of recommendations from the general congress held at Philadelphia.

concurrent resolution, when they actually came together. And, in such a case as the palpable vacancy of a throne, it follows, ex necessitate rei, that the form of the royal writs must be laid aside, otherwise no parliament can ever meet again. For, let us put another possible case, and suppose, for the sake of argument, that the whole royal line should at any time fail and become extinct, which would indisputably vacate the throne: in this situation it seems reasonable to presume, that the body of the nation, consisting of lords and commons, would have a right to meet and settle the government; otherwise, there must be no government at all. And upon this and no other principle did the convention in 1688 assemble. The vacancy of the throne was precedent to their meeting without any royal summons, not a consequence of it. They did not assemble without writ, and then make the throne vacant; but, the throne being previously vacant by the king's abdication, they assembled without writ, as they must do if they assembled at all. Had the throne been full, their meeting would not have been regular; but, as it was really empty, such meeting became absolutely necessary. And accordingly it is declared by statute 1 W. & M. st. 1. c. 1. that this convention was really the two houses of parliament, notwithstanding the want of writs or other defects of form. So that, notwithstanding these two capital exceptions, which were justifiable only on a principle of necessity, (and each of which, by the way, induced a revolution in the government) the rule laid down is in general certain, that the king, only, can convoke a parliament.

And this by the antient statutes of the realml he is bound to do every year, or oftener, if need be. Not that he is, or ever was, obliged by these statutes to call a new parliament every year; but only to permit a parliament to sit annually for the redress of grievances, and dispatch of business, if need be. These last words are so loose and vague, that such of our monarchs as were inclined to govern without parliaments, neglected the convoking them, sometimes for a very considerable period, under pretence that there was no need of them. But, to remedy this, by the statute 16 Car. II. c. 1, it is enacted, that the sitting and holding of parliaments shall not be intermitted

1 4 Edw. III. c. 14. 36 Edw. III. c. 10.

above three years at the most. And by the statute 1 W. and M. st. 2. c. 2, it is declared to be one of the rights of the people, that for redress of all grievances, and for the amending, strengthening, and preserving the laws, parliaments ought to be held frequently. And this indefinite frequency, is again reduced to a certainty by statute 6 W. and M. c. 2, which enacts, as the statute of Charles the second had done before, that a new parliament shall be called, within three yearsm after the determination of the former.7

II. The constituent parts of a parliament are the next objects of our inquiry. And these are, the king's majesty, sitting there in his royal political capacity, and the three estates of the realm: the lords spiritual, the lords temporal, (who sit, together with the king, in one house) and the commons, who sit by themselves in another. And the king and these th