tors for preventing the undue influence of the great prerogative of disposing of rewards and places; precautions which have been successively taken, according as circumstances have shewn them to be necessary; and which we may thence suppose, are owing to causes powerful enough to produce the establishment of new ones, whenever circumstances shall point out the necessity of them.

CHAP. IX.

OF PRIVATE LIBERTY, OR THE LIBERTY OF INDIVIDUALS.

We have hitherto only treated of general liberty, that is, of the rights of the nation as a nation, and of its share in the government. It now remains that we should treat particularly of a thing without which this general liberty, being absolutely frustrated in its object, would be only a matter of ostentation, and even could not long subsist; I mean the liberty of individuals.

Private liberty, according to the division of the English lawyers, consists, first, of the right of property, that is, of the right of enjoying exclusively the gifts of fortune, and

Nothing can be a better proof of the efficacy of the causes that produce the liberty of the English, and which will be explained hereafter, than those victories which the parliament from time to time gains over itself, and in which the members, forgetting all views of private ambition, only think of their interest as subjects.

Since this was first written, an excellent regulation has been made for the decision of controverted elections. Formerly the house decided them in a very summary manner, and the witnesses were not examined upon oath. But, by an act passed this session, the decision is now to be left to a jury, or committee, of fifteen members, formed in the following manner. Out of the members present, who must not be less than one hundred, fortynine are drawn by lots: out of these, each candidate strikes off one alternately, till there remain only thirteen, who, with two others, named out of the whole house, one by each candidate, are to form the committee: in order to secure the necessary number of a hundred members, all other business in the house is to be suspended, till the above operations are completed.

all the various fruits of one's industry. Secondly, of the right of personal security. Thirdly, of the loco-motive faculty, taking the word liberty in its more confined

sense.

Each of these rights, say again the English lawyers, is inherent in the person of every Englishman: they are to him as an inheritance, and he cannot be deprived of them, but by virtue of a sentence passed according to the laws of the land. And indeed, as this right of inheritance is expressed in English by one word, birth-right, the same as that which expresses the king's title to the crown, it has, in times of oppression, been often opposed to him as a right doubtless of a less extent, but of a sanction equal to that of his own.

One of the principal effects of the right of property is, that the king can take from his subjects no part of what they possess; he must wait till they themselves grant it him: and this right, which, as we have seen before, is, by its consequences, the bulwark that protects all the others, has moreover the immediate effect of preventing one of the chief causes of oppression.

In regard to the attempts to which the right of property might be exposed from one individual to another, I believe I shall have said every thing, when I have observed, that there is no man in England who can oppose the irresistible power of the laws; that, as the judges cannot be deprived of their employments but on an accusation by parliament, the effect of interest with the sovereign, or with those who approach his person, can scarcely influence their decisions; that, as the judges themselves have no power to pass sentence, till the matter of fact has been settled by men nominated, we may almost say, at the common choice of the parties, all private views, and consequently all respect of persons, are banished from the courts of justice. However, that nothing may be wanting which may help to throw light on the subject I have undertaken to treat, I shall relate, in general, what is the law in civil matters, that has taken place in England.

When the Pandects were found at Amalphi, the clergy, who were then the only men that were able to understand

a Owing to the extensive right of challenging jurymen, which is allowed to every person brought to his trial, though not frequently used.

them, did not neglect that opportunity of increasing the influence they had already obtained, and caused them to be received in the greater part of Europe. England, which was destined to have a constitution so different from that of other states, was to be farther distinguished by its rejecting the Roman laws.

Under William the conqueror, and his immediate successors, a multitude of foreign ecclesiastics flocked to the court of England. Their influence over the mind of the sovereign, which, in the other states of Europe, as they were then constituted, might be considered as matter of little importance, was not so in a country where the sove reign being all-powerful, to obtain influence over him was to obtain power itself. The English nobility saw, with the greatest jealousy, men of a condition so different from their own, vested with a power, to the attacks of which they were immediately exposed, and thought that they would carry that power to the height, if they were ever to adopt a system of laws which those same men sought to introduce, and of which they would necessarily become both the depositaries and interpreters.

It happened, therefore, by a somewhat singular conjunction of circumstances, that to the Roman laws brought over to England by monks, the idea of ecclesiastical power became associated, in the same manner as the idea of despotism was afterwards associated with the religion of the same monks, when favoured by kings who endeavoured to establish a despotic government. The nobility, at all times, rejected these laws, even with a degree of ill-humour; and the usurper Stephen, whose interest it was to conciliate their affections, went so far as to prohibit the study of them.

b

The general disposition of things establishing, as we have seen, a great communication between the nobility and the people, the aversion to the Roman laws gradually

The nobility, under the reign of Richard II., declared in the French language of those times," Purce que le roialme d'Engleterre n'étoit devant ces heures, ne al'entent du roy notre seignior, seigniors du parlement, unques ne sera rulé ne governé par la ley civil" viz. Inasmuch as the kingdom of England was not be *fore this time, nor according to the intent of the king our lord, and lords of parliament, ever shall be, ruled or governed by the civil law. In Rich. Parlamento Westmonasterii, Feb. 3. Anno 2.

spread itself far and wide; and those laws, whose wisdom in many cases, and particularly their extensiveness, ought naturally to have procured them admittance when the English laws themselves were as yet but in their infancy, experienced the most steady opposition from the lawyers; and as those persons who sought to introduce them, frequently renewed their attempts, there at length arose a kind of general combination amongst the laity, to confine them to universities and monasteries.c

This opposition was carried so far, that Fortescue, chief justice of the king's bench, and afterwards chancellor, under Henry VI. wrote a book intitled De Laudibus Legum Anglia, in which he proposes to demonstrate the superiority of the English laws over the civil; and, that nothing might be wanting in his arguments on this subjeet, he gives them the advantage of a superior antiquity, and traces their origin to a period much anterior to the foundation of Rome.

This spirit has been even preserved to much more modern times; and when we peruse the many paragraphs which judge Hale has written in his History of the Common Law, to prove, that in the few cases in which the civil law is admitted in England, it can have no power by virtue of any deference due to the orders of Justinian (a truth, which certainly had no need of proof,) we plainly see that this chief justice, who was also a very great lawyer, had, in this respect, retained somewhat of the heat of party.

It might perhaps be shewn, if it belonged to the subject, that the liberty of thinking in religious matters, which has at all times remarkably prevailed in England, is owing to much the same causes as its political liberty; both perhaps are owing to this, that the same men, whose interest it is in other countries that the people should be influenced by prejudices of a political or religi ous kind, have been in England forced to inform and unite with them. I shall here take occasion to observe, in answer to the reproach made to the English, by president Henault, in his muchesteemed Chronological History of France, that the frequent changes of religion which have taken place in England, do not argue any servile disposition in the people; they only prove the equilibrium between the then existing sects: there was none but what might become the prevailing one, whenever the sovereign thought proper to declare for it; and it was not England, as people may think at first sight, it was only its government which changed its religion.

Even at present the English lawyers attribute the liberty they enjoy, and of which other nations are deprived, to their having rejected, while those nations have admitted, the Roman law; which is mistaking the effect for the cause. It is not because the English have rejected the Roman laws that they are free: but it is because they were free, or at least, because there existed among them causes which were, in process of time, to make them so, that they have been able to reject the Roman laws. But even though they had admitted these laws, the same circumstances that have enabled them to reject the whole, would have likewise enabled them to reject those parts which might not have suited them; and they would have seen, that it is very possible to receive the decisions of the civil law on the subject of the servitutes urbanæ et rusticæ, without adopting its principles with respect to the power of the emperors."

Of this the republic of Holland, where the civil law is adopted, would afford a proof, if there were not the still more striking one, of the emperor of Germany, who, though in the opinion of his people he is the successor to the very throne of the Cæsars, has not by a great deal so much power as a king of England; and the reading of the several treaties which deprive him of the power of nominating the principal officers of the empire, sufficiently shews, that a spirit of unlimited submission to monarchical power is no necessary consequence of the admission of the Roman civil law.

The laws therefore, that have taken place in England, are what they call the unwritten law, also termed the common law, and the statute law.

The unwritten law is thus called, not because it is only transmitted by tradition from generation to generation; but because it is not founded on any known act of the legislature. It receives its force from immemorial custom, and, for the most part, derives its origin from acts of parliament enacted in the times which immediately followed the conquest, particularly those anterior to the time of Richard the first, the originals of which are lost.

The principal objects settled by the common law, are

What particularly frightens the English lawyers is L.1. lib.I. tit. 4. Dig. Quod principi placuerit legis habet vigorem.