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 [*138] 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 promunire, 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 abettors; and shall recover treble costs; besides his damages, which no jury shall assess at less than five hundred pounds.

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 honour

able 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. The origin of private property is probably founded in nature, as will 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 charter (r) 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, *139] or by the law of the land. And by a variety of ancient statutes (s) it is enacted that no man's lands or goods shall be seized 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 of his franchises or freehold, unless he be duly brought to answer, and be forejudged by course of law; and if anything 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 authorize 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 property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered as an individual, treating with an individual for an 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

(q) 2 Inst. 46
(r) C. 29.
VOL. 1.-12

(8) 5 Edw. III, c. 9. 25 Edw. III, St. 5. c. 4. 28 Edw. III, c. 3.
89

power, which the legislature indulges with caution, and which nothing but the legislature can perform.(17) *Nor is this the only instance in which the law of the land has post[*140] poned 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. 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, which(t)

(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.

(17) [These observations must be taken with considerable qualification, for, as observed by Buller, J., there are many cases in which individuals sustain an injury, for which the law gives no action for instance, pulling down houses or raising bulwarks for the preservation and defence of the kingdom against the king's enemies. The civil law writers indeed say that the individuals who suffer have a right to resort to the public for a satisfaction, but no one ever thought that the common law gave an action against the individual who pulled down the house, &c. And where the acts of commissioners appointed by a paving act occasion a damage to an individual, without any excess of jurisdiction on their part, the commissioners or paviors acting under them are not liable to an action. 4 Term Rep. 794. 6, 7; 3 Wils. 461; 6 Taunton, 29. In general, however, a power of this nature must be created by statute, and which usually provides compensation to the individual. Thus by the highway act, 13 Geo. III, c. 78, and 3 Geo. IV, c. 126, sec. 84-5, two justices may either widen or divert any highway through or over any person's soil, even without his consent, so that the new way shall not be more than thirty feet wide, and that they pull down no building, nor take away the ground of any garden, park, or yard. But the surveyor shall offer the owner of the soil, over which the new way is carried, a reasonable compensation, which, if he refuses to accept, the justices shall certify their proceedings to some general quarter sessions; and the surveyor shall give fourteen days' notice to the owner of the soil of an intention to apply to the sessions; and the justices of the sessions shall empanel a jury, who shall assess the damages which the owner of the soil has sustained, provided that they do not amount to more than forty years' purchase. And the owner of the soil shall still be entitled to all the mines within the soil which can be got without breaking the surface of the highway. Many other acts for local improvements, recently passed, contain similar compensation clauses.]

The constitutions of the United States and of the several states forbid the taking of private property for public use without just compensation. It is well settled that government has no right to take the property of one citizen and transfer it to another, even on the making of full compensation. Beekman v. S. and S. R. R. Co., 3 Paige, 45; Hepburn's Case, 3 Bland, 95; Pittsburg v. Scott, I Penn. St. 139; Matter of Albany St. 11 Wend., 149; Cooper v. Williams, 5 Ohio, 393; Reeves v. Treasurer of Wood county, 8 Ohio, N. S. 333; Nesbitt v. Trumbo, 39 Ill. 110; Osborn v. Hart, 24 Wis. 90; Bankhead v. Brown, 25 Iowa, 540. The legislature has a right to determine, or to provide a tribunal for determining, the necessity of appropriating property for public purposes; Lyon v. Jerome, 26 Wend. 484; Ford v. Chicago and N. W. R. R. Co., 14 Wis. 617; Hays v. Risher, 32 Penn. St. 169; North Missouri R. R. Co. v. Lackland, 25 Mo. 515; but on the question of the amount of compensation the owner has a right to require that an impartial tribunal be provided for its determination; Charles River Bridge v. Warren Bridge, 7 Pick. 344; Same Case, 11 Pet. 571; People v. Tallman, 36 Barb, 222; Booneville v. Ormrod, 26 Miss. 193. Some of the state constitutions provide that compensation shall be first made, but in the absence of such provision it is sufficient if the means be provided by which the owner can, with certainty, obtain it. Bloodgood v. Mohawk and H. R. R. Co., 18 Wend. 9.; Rexford v. Knight, 11 N. Y. 308; Taylor v. Marcy, 25 Ill. 518; Collison v. Hedrick, 15 Grat. 244; People v. Green, 3 Mich. 496; Charlestown Branch R. R. Co. v. Middlesex, 7 Met. 78; Harper v. Richardson, 26 Cal. 251. Corporations for the construction of railroads, turnpikes and other improved highways may be adopted as public agencies, and may be authorized to take private property to themselves under the right of eminent domain, on obtaining the proper legislative authority. Beekman v. S. and S. R. R. Co., 3 Paige, 73; Pratt v. Brown, 3 Wis. 603; Wilson v. Blackbird Creek Marsh Co., 2 Pet. 251; Buonaparte v. Camden and A. R. R. Co., 1 Bald. 205; Swan v. Williams, 2 Mich. 427; Stevens v. Middlesex Canal, 12 Mass. 466; Raleigh, &c., R. R. Co. v. Davis, 2 Dev. and Bat. 451: Gilmer v. Lime Point, 18 Cal. 229. There has been some controversy whether the appropriation of lands by the owners of mill sites in order to obtain power for manufacturing purposes, was to be regarded as a public purpose, so as to authorize the exercise of the right of eminent domain; but laws for this purpose have been sustained in some states. Wolcott W. M. Co. v. Upham, 5 Pick, 294; French v. Braintree Manuf. Co., 23 Pick. 220; Hazen v. Essex Co., 12 Cush. 477; Harding v. Goodlet, 3 Yerg. 41; Thein v. Voegtlander, 3 Wis. 465; Pratt v. Brown, Ibid. 603. See People v. Salem, 20 Mich. 450.

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 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 [*141] 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.

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 its proper place. The former of these keeps the legislative power in due health and vigor, 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. 3. A third subordinate right of every Englishman is that of applying to the courts of justice for redress of injuries. 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 Coke), (w) 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," continues the same learned author, for injury done to him in bonis, in terris, 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, [*142] 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. By 2 Edw. III, c. 8, and 11 Ric. II, c. 10, it is enacted, that no commands or letters 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 a part of their oath by statute 18 Edw. III, St. 4. And by 1 W. and M. St. 2, c. 2, it is declared, that the pretended power of sus(w) 2 Inst. 55. (x) c. 29.

(u) C. 29.

pending, or dispensing with laws, or the execution of laws, by regal authority, without consent of parliament, is illegal. (18)

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 outworks 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; 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 starchamber, 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 starchamber, 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 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 [ *143 ] 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. (19) In Russia we are told (y) 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, if 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. ÎI, 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 jury (20) in the country; 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,

(y) Montesq. Sp. L. xii, 26.

(18) [See the case of the Seven Bishops, and note thereto. Broom's Const. L. 408, 493]. (19) [This right is guaranteed by the third amendment to the constitution of the United States. For discussions in congress respecting it, see Benton's Abridgment of Debates, V. II, 57 to 60, 182 to 188, 209, 436 to 444; v. I. 397; v. XII, 660 to 679, 705 to 743; v. XIII, 5 to 28, 266 to 290, 557 to 562.

(20) [Which the grand jury may do either at the assizes or sessions. The punishment for an offence against this act, is a fine to any amount not exceeding 1001. and imprisonment for three months. At the trial of Lord George Gordon, the whole court, including Lord Mansfield, declared that this statute was not affected by the bill of rights, 1 Wm. and M. St. 2, c. 2. See Douglas, 571. But Mr. Dunning, in the house of commons, contended, "that it was a clear and fundamental point in the constitution of this country, that the people had a right to petition their representatives in parliament, and that it was by no means true that the number of names signed to any such petition was limited. To argue that the act of Charles was now in force, would be as absurd as to pretend that the prerogative of the crown still remained in its full extent, notwithstanding the declaration in the bill of rights." See New An. Reg. 1781, v. II. And the acknowledged practice has been consistent with this opinion.

The state of disturbance and political excitement in which this kingdom was involved several years after the peace of 1815, produced further regulations and restrictions of the right of petitioning. The people in the manufacturing districts having little employment, from the general stagnation of trade, devoted themselves with intense ardor to political discussions, and in some places the partisans of reform, presuming that their demands would not be conceded to their petitions, were preparing for the alternative of open force. In these circumstances the legislature thought fit to forbid all public meetings (except county meetings called by the lord-lieutenant or the sheriff), which consisted of more than fifty persons, unless in

under these regulations, it is declared by the statute 1 W. and 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 defence, suitable to their condition and degree, and such as are *allowed by law. (21) Which is also declared by the same statute, 1 W. and M. St. 2, c. 2, and is indeed a public allow- [ *144]

ance, 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 and 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 consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed. To preserve these from violation, it is necessary that the constitution of parliament be supported in its full vigour; and limits, certainly known, be set to the royal prerogative. And, lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next, to the right of petitioning the king and parliament for redress of grievances; and lastly, to the right of having and using arms for self-preservation and defence. And all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints: restraints in themselves so gentle and moderate, as will appear, upon farther inquiry, that no man of sense or probity would wish to see them slackened. For all of us have it in our choice to do everything 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 [*145] spirit of genuine freedom, (2) and who hath not scrupled to profess, even in the very bosom of his native country, that the English is the only nation in the world where political or civil liberty is the direct end of its constitution. Recommending, therefore, to the students 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!"

(*) Montesq. Spirit of Laws xi, 5.

separate township or parishes, by the inhabitants thereof of which six days' previous notice must be given to a justice of the peace, signed by seven resident householders. See 60 Geo.

III, c. 6.

But as the mischief was temporary, the restrictions upon the right of meeting to deliberate upon public measures were limited in their duration, and have mostly expired; those enactments which were designed to prevent such meetings from being perverted to objects manifestly dangerous to the peace of the community, only continuing in force.]

(21) Mr. Tucker, writing in 1802, calls attention to the fact that the Constitution of the United States (4th amend.) declares that the right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government. 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. 2, p. 412,) that "the prevention of popular insurrections and resistance to government, by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game law."

As to the right of all persons to bear arms for self-protection, see Bliss v. Commonwealth, 2 Lit. 90; Nunn v. State, 1 Kelley, 243; and Ely v. Thompson, 3 Á. K. Marsh. 73.