challenged by the clergy, as their libertas ecclesiastica: but by degrees, under weak princes and prevailing factions, under the title of church liberty,' they contended for a freedom of their persons and possessions from all secular power and jurisdiction, as appears by the canons and decrees of the council held by Boniface, Archbishop of Canterbury, at Merton, A. D. 1258, and at London, A.D. 1260, &c. Cowell. -See Lord Littleton's Hist. of Hen. II. and Robertson's Hist. of Emp. C. V.

LIBERATE PROBANDA. An ancient writ which lay for such as, being demanded for villeins, offered to prove themselves free; directed to the sheriff, that he should take security of them for the proving of their freedom before the justices of assize, and that in the meantime they should be unmolested. F. N. B. 77. See Tenures, Villein.

LIBERTATIBUS ALLOCANDIS. A writ lying for a citizen or burgess, impleaded contrary to his liberty, to have his privilege allowed. Reg. Orig. 262. And if any claim special liberty to be impleaded within a city or borough, and not elsewhere, there may be a special writ de libertatibus allocandis, to permit the burgesses to use their liberties, &c. These writs are of several forms, and may be used by a corporation, or by any single person, as the case shall happen. New Nat. Br. 509, 510. The barons of the cinque ports, &c. may sue forth such writs, if they are delayed to have

their liberties allowed them. Ibid.

LIBERTATIBUS EXIGENDIS IN ITINERE. An ancient writ whereby the king commands the justices in eyre to admit of an attorney for the defence of another man's liberty. Reg. Orig. 19.

LIBERTIES or FRANCHISES. These are synonymous terms, and their definition is, a royal privilege or branch of the king's prerogative, subsisting in the hands of a subject. The kinds of them are various, and almost infinite. See Franchise.

A LIBERTY. A privilege held by grant or prescription, by which men enjoy some benefit beyond the ordinary subject. Bract.

LIBERTY,

In its most general signification, is said to be a power to do as one thinks fit, unless restrained by the law of the land; and it is well observed, that human nature is ever an advocate for this liberty, it being the gift of God to man in his creation; therefore every thing is desirous of it, as a sort

of restitution to its primitive state. Fortesc. 96. It is upon

that account the laws of England in all cases favour liberty, and which is accounted very precious, not only in respect of the profit which every one obtains by his liberty, but also in respect of the public. 2 Lil. Abr. 169.

According to Montesquieu, liberty consists principally in not being compelled to do any thing which the law does not require; because we are governed by civil laws, and therefore we are free, living under those laws. Spirit of Laws, lib. 26. c. 20.

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 the 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 endowed him with the faculty of free will. 1 Comm.

c. 1.

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.

Political or civil liberty, therefore, 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. 1 Comm. C. 1. p. 125.

Hence we may collect, that the law, which restrains a man from doing mischief to his fellow-citizens, though it diminishes the natural, increases the civil liberty of mankind; 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, or 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, but supporting that state of society which alone can secure our independence. So that laws, when prudently framed, are by no means subversive, but rather introductive of liberty; for where there is no law there is no freedom. Locke on Gov. part 2. § 57. But then, on the other hand, that constitution or form 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. 1 Comm. 125, 6.

The above definition of the learned commentator is admitted by his latest editor to be clear, distinct, and rational, as far as relates to civil liberty; in the definition of which, however, he adds, it ought to be understood, or rather expressed, that the restraints introduced by the law should be equal to all; or as much so as the nature of things will admit. 1 Comm. 126, n.

The

Political liberty is distinguished by Mr. Christian from civil liberty; and he defines it to be, the security with which, from the constitution, form, and nature, of the established government, the subjects enjoy civil liberty. No ideas, continues he, are more distinguishable than those of civil and political liberty; yet they are generally confounded; and the latter cannot yet claim an appropriate name. learned Judge (Blackstone) uses political and civil liberty indiscriminately; but it would perhaps be convenient uniformly to use those terms in the respective senses here suggested, or to have some fixed specific denominations of ideas which, in their natures, are so widely different. The last species of liberty has, probably more than the rest, engaged the attention of mankind, and particularly of the people of England. Civil liberty, which is nothing more than the impartial administration of equal and expedient laws, they have long enjoyed, nearly to as great an extent as can be expected under any human establishment; and under a king who has no power to do wrong, yet all the prerogatives to do good, with the two houses of parliament, the people of England have a firm reliance that this civil liberty is secure, and that they shall retain and transmit its blessings, and those of political liberty also, to the latest posterity. See 1 Comm. 126,-n.

There is another common notion of liberty, which is nothing more than the freedom from confinement. This is a part of civil liberty; but it being the most important part, as a man

in a gaol can have but the exercise and enjoyment of few rights, it is kar' soxny called liberty.

The different definitions of the term liberty, here given and commented upon, should not be thought tautologous or uninteresting, since it is a word which it is of the utmost importance to mankind that they should clearly comprehend; for though a genuine spirit of liberty is the noblest principle that can animate the heart of man, yet liberty, in all times, has been the clamour of men of profligate lives and desperate fortunes: Falso libertatis vocabulum obtendi ab iis, qui, privatim de generis, in publicum extiosi, nihil spei nisi per discordias habeant. Tac. Ann. 11. c. 17.

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 its owners; the legislature, and of course the laws of England, being particularly adapted to the preservation of this inestimable blessing, even in the meanest subject. 1 Comm. 126, 7.

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 its 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 III., his son; which charter contained very few new grants; but as Sir Edward Coke observes (2 Inst. proëm.) was for the most part declaratory of the principal grounds of the fundamental laws of England. Afterwards by the statute called Confirmatio Cartarum, 25 Edw. 1, 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 the cathedral churches, and read twice a year to the people; and sentence of excommunication is directed to be as constantly denounced against all those who by word, deed, or counsel, act contrary thereto, or in any degree infringe it. Next, by a multitude of subsequent corroborating statutes from Edward I. to Henry IV.; of which the following are the most forcible.

25 Edw. 3. st. 5. c. 4. None shall be taken by petition or suggestion made to the king or his council, unless it be by indictment of lawful people of the neighbourhood, or by process made by writ original at the common law. And none shall be put out of his franchises or freehold, unless he be duly brought to answer, and forejudged by course of law; and if any thing be done to the contrary, it shall be redressed and holden for none.

42 Edw. 3. c. 3. No man shall be put to answer without presentment before justices, or matter of record of due process, or writ original, according to the ancient law of the land. And if any thing be done to the contrary, it shall be void in law, and held for error.

After a long interval these liberties were still further confirmed by the Petition of Right; which was a parliamentary declaration of the liberties of the people, assented to by King Charles I. in the beginning of his reign; and is classed among our statutes as 3 Car. 1. c. 1. By this it was provided that no one should be compelled to make, or yield

any gift, loan, benevolence, tax, or such like charge, without consent by act of parliament; (as to which liberty or privilege, see 25 Edw. 1. cc. 5, 6; 34 Edw. 1. st. 4. c. 1.; & 14 Edw. 3. st. 2. c. 1.) This petition of right was closely followed by the still more ample consessions made by that unhappy prince to his parliament (particularly the dissolution of the Star-chamber, by 16 Car. 1. c. 10,) before the fatal rupture between them; and by the many salutary laws, particularly the Habeas Corpus Act, passed under King Charles II.

To these succeeded the Bill of Rights, or Declaration delivered by the Lords and Commons to the Prince and Princess of Orange, February 13, 1688; and afterwards enacted in parliament, when they became King and Queen ; which is as follows:

Stat. 1 W. & M. st. 2. c. 2. § 1. Whereas the Lords Spiritual and Temporal, and Commons, assembled at Westminster, representing all the estates of the people of this realm, did upon the 13th of February, 1688, present unto their majesties, then Prince and Princess of Orange, a declaration, containing that,

The said Lords Spiritual and Temporal, and Commons, being assembled in a full and free representative of this nation, for vindicating their ancient rights and liberties, DECLARE,

That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal :

That the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal :

That the commission for erecting the late Court of Commissioners for ecclesiastical causes, and all other commissions and courts of like nature, are illegal and pernicious:

That levying money for or to the use of the Crown, by pretence of prerogative, without grant of parliament, for longer time, or in other manner than the same is or shall be granted, is illegal:

That it is the right of the subjects to petition the king; and all commitments and prosecutions for such petitioning are illegal:

That the raising or keeping a standing army within the kingdom in the time of peace, unless it be with consent of parliament, is against law:

That the subjects which are protestants may have arms for their defence suitable to their conditions, and as allowed by law:

That elections of members of parliament ought to be free: That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament:

That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted:

That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason, ought to be freeholders:

That all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void: And for redress of all grievances, and for the amending, strengthening, and preserving of the laws, parliaments ought to be held frequently:

And they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties; and that no declarations, judgments, doings, or proceedings, to the prejudice of the people in any of the said premises, ought in any wise to be drawn hereafter into consequence or example.

§ 6. All and singular the rights and liberties asserted and claimed in the said declaration are the true, ancient, and indubitable rights and liberties of the people of this kingdom,

and so shall be esteemed, allowed, adjudged, and taken to be; and all the particulars aforesaid shall be firmly holden as they are expressed in the said declaration; and all officers shall serve their majesties according to the same in all times

to come.

§ 12. No dispensation by non obstante of any statute shall be allowed, except a dispensation be allowed of in such statute; and except in such cases as shall be specially provided for during this session of parliament.

§13. No charter granted before the 23d of October, 1689, shall be invalidated by this act, but shall remain of the same force as if this act had never been made.

Lastly. These liberties were again asserted at the commencement of the last century, in the Act of Settlement, 12 & 13 W. 3. c. 2. whereby the Crown was limited to his present majesty's illustrious house; and some new provisions were added at the same fortunate æra, for better securing our religion, laws, and liberties, which the statute declares to be "the birthright of the people of England;" according to the ancient doctrine of the common law.

Thus much for the declaration of our rights and liberties. 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 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 or destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the rights of the people of England.

These rights may be reduced to three principal or primary articles :

The right of personal security.
The right of personal liberty.
The right of private property.

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. 1 Comm. 129.

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. The enjoyment of this right is secured to every subject by the various laws made for the punishment of those injuries by which it is any way violated; for a particular detail of which, see titles Assault, Homicide, Maihem, Libel, Nuisance, &c.

Life, however, may, by the Divine permission, be frequently forfeited for the breach of those laws of society which are enforced by the sanction of capital punishments. On this subject it is sufficient at present to 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 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. The words of the Great Charter, c. 29, are " Nullus liber homo capiatur, imprisonetur, vel aliquo modo destruatur, nisi per le

VOL. II.

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gale judicium parium suorum aut per legem terræ. No freeman shall be taken, imprisoned, or any way destroyed, unless by the lawful judgment of his peers, or by the law of the land." Which words, aliquo modo destruatur, according to Coke, include a prohibition not only of killing or 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 5 Edw. 3. c. 9. that no man shall be attached by any accusation, nor forejudged of life or limb, nor shall his lands or goods be seised into the king's hands contrary to the Great Charter, and the law of the land. And again by 28 Edw. 3. c. 3. that no man shall be put to death without being brought to answer by due process of law. I Comm. 133.

The right of personal liberty consists in the power of loco-motion, of changing situation, or moving one's] s person to whatsoever place one's own inclination may direct; without imprisonment or restraint, unless by due course of law. On this right there is at present no occasion to enlarge. For the provisions made by the laws of England to secure it, see titles Arrest, Bail, False Imprisonment, Habeas Corpus,

&c. &c.

The absolute right of property, inherent in every Englishman, consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only the laws of the land. The origin of private property is probably founded in nature; 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 Charter, c. 29, has declared that no freeman shall be disseised or divested of his freehold, or of his liberties or free customs, (or be outlawed, banished, or otherwise destroyed, nor shall the king pass or send upon him,) but by the judgment of his peers, or by the law of the land. And by a variety of ancient statutes 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; and that no man shall be disinherited, nor put out out of his franchises or freehold, unless he be duly brought to answer, and be forejudged by course of law; and if any thing be done to the contrary, it shall be redressed and holden for none. See 5 Edw. 3. c. 9; 25 Edw. 3. st. 5. c. 4; ante, 28 Edw. 3. c. 3.

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. In instances where the property of an individual is necessary to be obtained for the accommodation of the public, as in the case of enlarging or turning highways, 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 indulged with caution, and which none but the legislature, or those acting under their immediate direction, can perform. See 13 Geo. 3. c. 78; and title Way.

Another effect of this right of private property is, that no subject of England can be constrained to pay any aids or taxes, even for the defence of the realm, or the support of the government, but such as are imposed by his own consent, or that of his representatives in parliament. By 25 Edw. 1. c. 5. 6. it is provided that the king shall not take any aids or tasks, but by the common assent of the realm. And what the common assent is, is more fully explained by the instrument usually called the statute de Tallagio non concedendo, usually classed as statute 34 Edw. 1. st. 4. c. 1 ; which enacts that no talliage or aid shall be taken, without the assent of the archbishops, bishops, earls, barons, knights, burgesses,

L

LICENCE TO GO TO ELECTION of bishops, is by congé d'elire directed to the dean and chapter to elect the person named by the king, &c. Reg. Writs, 294. 25 Hen. 8. c. 20. See Bishops.

LICENCE OF THE KING to go beyond sea may be revoked before the time expires, because it concerns the public good. Jenk. Cent. See Ne exeat Regnum.

LICENCE OF MARRIAGE. Bishops have power to grant licences for the marrying of persons; and parsons marrying any person without publishing the banns of matrimony, or without licence, incur a forfeiture of 1007. &c. by 7 & 8 Wm. 3. c. 35. See also 4 Geo. 4. c. 76; and tit. Marriage.

LICENCE TO ERECT A PARK, WARREN, &c. See Park, Warren.

LICENSING OF BOOKS. See Libel, Printing. LICENTIA CONCORDANDI. Is that licence for which the king's silver was paid on passing a fine. See Fine of Lands.

LICENTIA SURGENDI. See Licence to arise. LICENTIA TRARSFRETANDI. A writ or warrant directed to the keeper of the port of Dover, or other seaport, commanding them to let such persons pass over sea, who have obtained the king's licence thereunto. Reg. Orig.

193.

LICKING OF THUMBS. A form by which bargains of importance were amicably completed; and still in use in trifling bargains among the lower orders. Sotch. Dict.

LIDFORD LAW. A proverbial speech, intending as much as to hang a man first, and judge him afterwards.

LIEGE [Ligeus.] Is used for liege lord, and sometimes for liege man. Liege lord is he that acknowledgeth no superior; and liege man is he who oweth allegiance to his liege lord. The king's subjects are called liege people, because they owe and are bound to pay allegiance to him.