AN ADDRESS TO THE PEOPLE OF ENGLAND: BEING THE PROTEST OF A PRIVATE PERSON Against every SUSPENSION OF LAW that is liable to injure or endanger PERSONAL SECURITY.
WHEREIN IS SHEWN That the Claim of
personal Protection and Relief from unjust Imprisonment,
BY DUE PROCESS OF THE LAW,
(and that "WITHOUT DELAY,") is a "COMMON RIGHT," so indispensably due to all
innocent Persons,
that it cannot be set aside, or withdrawn from any
that are so,
(who demand it,) without
fundamentally subverting the political Constitution,
or
legal Establishment of these Kingdoms,
and thereby rendering the Advisers and Promoters of such a Measure
guilty of
HIGH-TREASON!
"It is the Duty of every Individual whatsoever to aid
PEACE
and
PUBLIC JUSTICE,
" — agreeable to a MAXIM of the Law—"UNUSQUISQUE PACI ET JUSTITIAE PUBLICAE TENETUR SUCCURRERE."
"Those Men, who set aside"
(or suspend)
"the Law of the Land, do thereby incur a perpetual Stain of Infamy!"—For it is a fundamental MAXIM of the Constitution —"
LEGEM TERRAE
amittentes perpetuam infamiae notam inde merito incurrunt."
LONDON: PRINTED IN THE YEAR M.DCC.LXXVIII.
TO THE PEOPLE OF ENGLAND.
COMMON CHARITY will induce us to believe that the advocates for an occasional
suspension
of the
Habeas Corpus
laws are not really aware of the dangerous tendency of such a measure; and therefore when the author of this Protest (in the following pages) charges the advisers and promoters of the suspension with
high-treason against the king and state,
he professes to aim the severity of his censure chiefly against
the measure itself,
(in order to express the
real danger
and
malignity
of its effect,) rather than against the
persons
of those men who, inadvertently, or through inattention to the
fundamental
or
indispensable principles of law,
have promoted it: and therefore to
those
persons, jointly with all the other People of England, (as being equally interested with the rest in the effects of such a measure) the author of this Protest now addresses himself, not to promote a spirit of vengeance and personal resentment, but merely for the purposes of warning and instruction to
all parties,
that they may cordially unite in restoring the
due limitations
of government, on which depends the common safety both of king and people.
The Advocates for an occasional
suspension of the law,
perhaps, will alledge, that the new
temporary
powers (whatever they may happen to be) which would thereby be thrown into the hands of the persons intrusted with the administration of government, are by no means intended to take effect against
the People of England,
that are resient
in
this island, but only against such persons as have
been guilty of treason in foreign parts
(in
America,
let us suppose, for instance) or
on the high seas, or for piracy;
and therefore they conceive, that the free inhabitants of this island could not be injured by so limited a
suspension
of the laws, especially if they should admit in their bill an additional clause of limitation, proposed even by an opposite party, by way of security; which we will suppose to be couched in the following terms,
viz.
That nothing herein is intended, or shall be construed, to extend to the case of any other prisoner or prisoners than such as shall have
BEEN OUT OF THE REALM AT THE TIME OR TIMES OF THE OFFENCE OR OFFENCES
wherewith he or they shall be charged, or of which they shall be suspected.
Such a clause as this seems, on a slight examination, to secure the inhabitants of this island from the danger of an
unlimited
power, against which all true Englishmen ought to be ever upon their guard: but, alas! so dangerous is it to stop the ordinary course of
justice
and
common right,
or to alter the
"due process of the law,"
in any cases whatsoever wherein
personal liberty
(the highest and most valuable
temporal
object of Englishmen) is concerned, that, if we should
suppose
the case of such a
suspension of the laws
as courtiers in general would endeavour to obtain, were they to be intrusted with
the compiling of a bill
for that purpose, and then carefully compare the said
supposed bill
with the abovementioned
clause of limitation,
we should soon have reason to be convinced that the security of the latter is only
imaginary;
and that multitudes of his majesty's
innocent
and
peaceable
subjects would be still liable to be oppressed, and be denied the benefits of
public justice
and
common right,
by such a
suspension of law,
if they should happen to incur the displeasure of persons in power, or be misrepresented to them by any secret enemy.
The proposed clause leaves unprotected all the nobility, gentry, and other persons whatsoever, that have made any excursions into
France, Italy, Germany, Flanders, &c.
or even to
Ireland,
ever since the commencement of the troubles (whatever they might be) which occasioned an
imaginary necessity,
or plea, for SUSPENDING THE LAWS. And this, perhaps, might be extended three or four years back, and might thereby exclude from the protection of the limiting clause a great multitude of the most respectable people of the kingdom, who might happen to have travelled abroad during such a period. Neither does the clause protect the merchants, traders, and other persons, that have arrived from the West-Indies, Ireland, or any other country, within such a supposed period. And they are, surely, too numerous and respectable a body to be thus
outlawed!
Add to this, that all
seafaring Persons without exception
(though they are the most valuable subjects of this maritime state) would be left unprotected by such a clause, and of course would be rendered subject to the
unlimited
WILL
of man,
(ARBITRIUM
hominis,
which is the true definition of ARBITRARY POWER,)
instead
of LAW! And, lastly, all other persons whatsoever are liable to suffer the same inconveniences, if they have not kept a diary, or have not memory or memorandums, to enable them to produce sufficient evidence of their being actually WITHIN THIS REALM at any period of time that might be fixed upon within the last three or four years; so that not only persons
seized and taken
OUT OF THE REALM
would be made liable to the effects of such a
suspending act,
but all the other persons abovementioned, though they are actually RESIENT WITHIN THE REALM.
In order to state the case for my argument as clearly as I am able, I have here supposed the adoption of such a
suspending bill
as we might naturally conceive to be proposed by any set of men in power, who are warmed by the sunshine of court-favour till they forget that their own real interest is inseparably connected with that of the public, and that the increase of power, which they promote, may possibly fall into some other hands than their own. But the hands of government must be strengthened, they would probably say; and, for this purpose, they would be very apt to insert in their bill some discretionary powers to enable the king and his ministers to imprison not only persons
seized and taken out of the realm,
but also persons
who shall be committed in any part of his majesty's dominions for the said crimes,
I mean, any crimes which I have before supposed in stating this case,
viz.
High-treason in any of his majesty's colonies or plantations in America, or
ON THE HIGH SEAS,
(which will include our own coasts any where beyond low-water mark,)
or the crime of piracy,
without any description or limitation of place whatsoever! So that if any innocent man (who happens not to be able to prove an
alibi
for every day, and even every hour, since these troubles began) should be maliciously
"charged with"
the crime of
treason
or
piracy
committed within half a mile of the British coasts, he may be seized and imprisoned,
without bail or mainprize,
at the
will and pleasure
of the king and council, for
many months;
and, at the expiration of the
limited
time, (without any farther examination or opportunity of being heard at all by his country,) his term of confinement is prolonged by another
such act,
and perhaps another after that, (as
evil
examples beget others,) till the time of his relief by
due process of the law
becomes totally
uncertain
and
indefinite!
— A deplorable condition this! which, in our common law, is deemed
"wretched slavery;"
— for,
Misera est servitus
(says the maxim)
ubi
JUS
est vagum aut incertum.
(
Principia leg. & Aeq. p.
61.)
But the condition of the
deluded
subjects will be rendered still more completely
uncertain
and
wretched,
if the compilers of the supposed suspending act should endeavour to avail themselves of
vague
terms and expressions: — for instance, — (in the body of the bill,) —
"Such crimes"
(referring to the crimes particularly named in the former part) instead of
"the said crimes:"
— for, as
"Nullum simile est idem,"
—
( LIKE
is not
THE SAME,)
— the expression,
"such crimes,"
signifies only
similar crimes,
and not
the same crimes
before expressed, whereby the power of the act would be liable to an arbitrary extension at the
will
of the magistrate!
Whenever persons in power cease to be
duly limited
by a free parliament, they will pay but very little regard to the grossness of the propositions which they tender to that,
once,
august assembly; and therefore, if such an
illegal
power should ever be usurped by any set of men, we may then expect to find many more
vague
expressions in our public acts! — We may in that case, without improbability, suppose the penning of a
suspending act
to be — not only
for such crimes,
OR ANY
of them,
— but also
for
SUSPICION
of
SUCH CRIMES,
or any of them, by any magistrate,
&c. viz.
any trading magistrate, pensioned Middlesex justice, or other wretched time-server, that may happen to be entrusted with a power of committing to prison. — And in such times it will afford a sufficient handle against any person whatsoever, if they are but
"charged with"
such crimes, whether they be guilty of them or not; or even if they be but
CHARGED WITH
the
SUSPICION
of
SUCH
crimes, or any of them, by
ANY
magistrate,
&c.
— Nothing more
arbitrary
or
capricious
can easily be described; and yet, alas! my
supposed bill
by no means exceeds the bounds of probability; for, when the baneful practice of
bribery
becomes triumphant, and the very foundations of government are thoroughly
corrupted,
we may expect that
probability
will still go farther, and that the above
supposed
extraordinary powers will be farther augmented by a
"non obstante,"
to trample down at once, not only the
Habeas Corpus Act,
but all the other fences of British
liberty,
national
justice,
and
common right,
on which the safety of Englishmen depends!
viz.
any law, statute, or usage, to the contrary, in any wise notwithstanding.
The clause is indeed a common one, for the repeal of useless or indifferent matters; but, when the effect extends to annul all the laws of
personal protection,
and the
common right
of Englishmen to
"the due process of the law,"
(which is, to be tried
without delay
by their country,
[per legem terrae,]
and,
if innocent,
to be restored to freedom,) — such a
suspension,
I say, of
common justice
and
common right
is so fundamentally subversive of the British constitution of state, that no authority of parliament can make it
legal;
because it it is
high-treason
against the king and people! and all the abettors and promoters of such an act would thereby render themselves
"eternally infamous"
in the eye of the law! — which is declared by a constitutional maxim: —
LEGEM TERRAE
amittentes
PERPETUAM INFAMIAE NOTAM
inde merito incurrunt.
(3. inst. p. 221.)—
Those men, who set aside
THE LAW OF THE LAND,
(which is certainly the case of those who vote for
suspending
it,)
do thereby incur a
PERPETUAL STAIN
of
INFAMY!
If ever such an act, therefore, should subsist, and the promoters of it remain in power, British subjects may amuse themselves with the
name of freedom
if they please, but they will have no more
real
and
just
right to boast of their
liberty
than the subjects of France or Prussia! For they would then be involved exactly in the same
uncertain
and
precarious
condition! And, though they might not, perhaps, for some considerable time afterwards, begin to feel the pernicious effects of a government
unlimited by law,
yet that would not render their condition less
base
or
slavish,
for our common law has already stated the condition of such as an
outlawed
people: —
Res est misera, ubi
JUS
est vagum.
Grounds and Rudiments of Law and Equity, p. 304.
—
WRETCHED
is the state of affairs wherever
COMMON RIGHT
is vague
and uncertain!
— Nay it is downright
slavery,
as declared by another maxim, already cited, in p. 11.
The learned Sir Robert Atkins (formerly one of the judges of the Common Pleas) has remarked, (concerning
the pope's exercise of his power of dispensing,
or rather of
suspending laws,
by virtue of such a
"non obstante,"
) that
it was used with some moderation
AT FIRST, in cases that seemed to be
of
GREAT NECESSITY only; but at last, by degrees, it grew to be
intolerable and unlimited.
(See his parliamentary and political Tracts, p. 247.) And surely we ought to be equally jealous of every claim or pretension to
omnipotence,
or
unlimited power,
whenever and by whomsoever it is made, though we do not immediately feel the baneful effects of it.—There are but too many advocates for the imaginary
omnipotence,
or
unlimited power,
of parliament!
True it is, that the same persons, who are entrusted with authority to
make laws,
are entrusted likewise with authority to
suspend
or
repeal
them; but in this (without the least detriment to their just
liberty
and
free
privileges) they are not without
limitation.
Even
liberty
itself is
limited,
and submits to the same sort of definition; for
liberty
(says an old and eminent law-writer)
is not a power to act,
quidquid libet, what we list,
(for this may be
licentious,
and a lust or passion may enslave a man
[or men]
as much as any chain or fetter,) but,
quod licet,
what is
just
and
rational.
(Rights of the Kingdom,
p. 136.
)
And, in the preceding page, speaking expressly of the house of commons, or parliaments, he says: —
When they are
FREEST
they have
LIMITS,
for they be
NOT INFINITE.
Nay, when they are
MOST FREE,
they are
MOST BOUND
to
GOOD ORDERS
and
TO RIGHT REASON.
The truth of this doctrine is unquestionable: for, if a
parliament,
or
legislative power
of any kind, (regal or popular,) presume to enact ordinances which oppose, or in any respect set aside,
natural justice,
or
the common right of innocent persons,
and shall claim an
authority
or
privilege
to do so, (which is ignorantly and vainly called
omnipotence of parliament,
) the said
power
ceases to be a
legal power,
because it casts off the restraint and government of God's indispensable laws, and thereby becomes excommunicated from God! —
Shall the throne of
INIQUITY
have fellowship with thee, which
FRAMETH MISCHIEF BY A LAW?
(Psalm xciv. 20.)
A due consideration of this ought to restrain the modern rage of act-making! for it is laid down, in that ancient and respectable law-book, called FLETA, that
the power of
RIGHT
(
or
justice) is of God alone, but the power of
WRONG (or injury)
is of the
DEVIL;
and the works of whichsoever of these two,
(viz.
of God or of the devil,
)
he shall
do,
(
speaking of the agency of a
king,
and the same may surely be said also of a
parliament,)
of him he is the servant.
Potestas enim
JURIS
solius est
DEI, INJURIAE
vero
DIABOLI,
et, cujus
OPERA
fecerit, ejus et minister erit.
(Fleta, c. xvii. p. 17.)
And to this doctrine, as an unquestionable truth, that illustrious lawyer,
Henry de Bracton,
(who was a judge in this realm above 530 years ago,) has made the following addition: —
Therefore,
(
says he, still speaking of a
king,)
while he
DOES JUSTICE
he is the vicar of the
ETERNAL KING;
but he is the
SERVANT OF THE DEVIL
while he declines to
INJUSTICE
or
WRONG.
Quia illa potestas
(potestas JURIS)
solius
DEI
est; potestas autem injuriae
DIABOLI,
et non
DEI;
et, cujus horum opera fecerit rex, ejus minister erit cujus opera fecerit.
(And then follows the addition quoted above.)
Igitur, dum
FACIT JUSTITIAM,
vicarius est
REGIS AETERNI;
minister autem
DIABOLI,
dum declinet ad injuriam.
Bract. lib. iii. c. 9, p. 107.
And, in like manner, a parliament, or the persons entrusted with the power of legislation, are to be esteemed as
the servants of the devil,
and as enemies to
God,
while they promote or establish any notorious
injustice:
for,
Know ye not, that, to whom ye yield yourselves servants, to obey, his servants ye are to whom ye obey; whether of sin, unto death, or of obedience, unto righteousness?
(Rom. vi. 16.)
Many laws there are which belong to
God
as well as
man,
and which are therefore to be esteemed as parts of the ETERNAL LAW:
i.e. the
WILL
of
GOD
that all things be moved and directed to a good and proper end; a perpetual and constant
WILL
to give to every one his
RIGHT;
LEX AETERNA
nihil aliud est quam ipsa summa ratio gubernationis rerum in
DEO,
sive illa summa ratio
DIVINAE SAPIENTIAE,
qua vult
DEUS
omnia a se condita, moveri, et dirigi, ad bonum et debitum finem,
—&c. And again:
LEX AETERNA,
sub alia descriptione, dicitur
PERPETUA et CONSTANS VOLUNTAS JUS SUUM
unicuique tribuens,
&c. Doct. et Stud. c. i. p. 2.
and no
right
can be more sacred than the
right
of an
innocent man to obtain
FREEDOM, by
"due process of the law,"
from duress and unjust imprisonment: for,
LIBERTY
is inestimable;
(
libertas est res inestimabilis,
Jenk. cent. 52.
) and
is planted
BY GOD
in the very nature of man.
(
Libertas a Deo hominis est indita naturae.
Fortescu de laud. Leg. Ang. 41.
) So that
human nature intreats
(or implores)
favour in the
CAUSE OF LIBERTY
more than in any other cause;
—
Humana natura in libertatis causa favorem semper, MAGIS QUAM IN ALIIS CAUSIS, deprecetur,
&c. Ib. c. xlvii. p. 109.
and consequently the man, who
does not favour the cause of
LIBERTY,
is already condemned, in our common law, as
impious and cruel.
Impius et crudelis judicandus est qui libertati non favet.
Co. Lit. 124.
And, in like manner, every act of parliament, or statute, which is
unfavourable
thereto, (by reducing
freedom
and augmenting
slavery,
) must necessarily be esteemed equally obnoxious and inimical to GOD and MAN: — for,
CRUDELIS
etiam
NECESSARIO
judicabitur
LEX,
quae servitutem augmentat et minuit libertatem.
(Fortescu, c. 41.) And, as this
"will of God,"
respecting the
right of men,
is, in the above quotation, declared to be
perpetual and constant,
it necessarily follows, that
no human authority
upon
earth
can
suspend
or
annul
any part of the
eternal law,
without grievous sin! for our first allegiance is made in baptism to
God and his laws:
and the latter consist not merely in the
written
injunctions of divine revelation, (which we call the
scriptures,
) but also in
reason
and
natural justice;
the knowledge of which (though it is a divine attribute) is inherited by mankind in general,
and written in their hearts;
Scribiturque haec lex
(lex rationis)
in corde cujuslibet hominis,
docens eum quid agendum, et quid fugiendum, unde dicit apostolus ad Romanos secundo.
Omnes gentes, qui legem S. scriptam non habent
NATURALITER,
ea quae legis suni faciunt, hujusmodi legem non habentes ipsi sibi sunt lex, qui ostendunt opus legis
SCRIPTUM IN CORDIBUS SUIS,
testimonium reddente illis
CONSCIENTIA IPSORUM.
Et, quod lex rationis in corde scribitur, ideo deleri non potest, nec etiam recepit mutationem, ex loco nec tempore; sed
ubique, et inter omnes homines, servari debet.
NAM JURA NATURALIA IMMUTABILIA SUNT,
&c. Doct. et Stud. c. ii. p. 5.
or else there could be no such thing as the imputation of sin! THE LAW OF REASON is therefore justly esteemed the
first foundation
of the
laws
of England: —
Primum fundamentum legis Angliae est lex rationis.
(Doct. et Stud. c. v. p. 14.) And
the law of reason
includes
the laws of nature,
which cannot lawfully be
suspended
or
changed
by parliament; for our common law declares that they are immutable:— "Jura naturae sunt IMMUTABILIA." (Prin. Leg. et Aequit. p. 46.)
The laws of nature are unchangeable:
they cannot therefore be
lawfully
suspended or
changed
by parliament; neither can any manifest
injustice
be made
lawful:
for, by the same authority, we know, that
LEX INJUSTA non est LEX.
"An unjust ordinance" (or act of parliament) "is not law."— No plea
of necessity
could render such a parliamentary exertion even excuseable; for, though there are many maxims on this head, as
Necessitas non habet legem;
and
Salus populi
(which even bad legislators will pretend to regard)
suprema est lex;
—
Necessitas facit licitum quod aliàs non est licitum;
—
Necessitas vincet legem.
Yet these can relate only to such laws as are made to remedy inconveniences,
not in themselves evil,
mere
mala prohibita;
but cannot authorize any thing that is
malum in se;
for that would be REBELLION AGAINST GOD, which no case can justify. For, of those who say
Let us do evil that good may come;
the Scripture has added,
Whose damnation is just.
(Rom. iii. 8.)
Fiat justitia, ruat coelum,
is, therefore, a sound maxim both of law and politics; so that no
necessity
whatever can justify the establishment of any
injustice,
without a remedy: and no
injustice, evil, tort, wrong,
or
iniquity,
can be more flagrant or more dangerous to the state than an unnecessary
delay
of
common right
and
justice
to an innocent man, whose
personal liberty
is unjustly invaded; for, if
"personal liberty"
is not secured and protected BY EQUAL LAW, no property, or other rights whatsoever, can have any real value; and from thence it arises that the
common right
of every innocent person
to the laws
of protection, is esteemed our highest and most valuable inheritance; for,
Major haereditas venit unicuique nostrum a
JURE
et
LEGIBUS
quam a parentibus;
A greater inheritance descends to every one of us from
(the constitutional establishment of)
right
It is called
RIGHT," (says the lord Coke, 2nd inst. p. 56,)
"because it is
THE BEST BIRTHRIGHT
the subject hath; for thereby his goods, lands, wife, children,
HIS BODY," (for it is the
birthright
and
best
PROTECTION of every honest SEAMAN, as well as of all other men,)
"life, honour, and estimation, are
PROTECTED
from injury and wrong:"
(and then he cites THE MAXIM:)
—"Major haereditas,
&c.
and the laws than from our parents.
—A
"non obstante;"
therefore, which boldly suspends at once all the
ancient constitutional
laws of personal protection, and leaves an innocent man without
a remedy,
cannot be LAW, being contrary to all that ought to be esteemed law; for,
Lex nemini operatur iniquum, nemini
facit
injuriam;
Law works no iniquity to any man, does
INJURY
to no man:
and,
Quicquid est contra norman
RECTI
est injuria;
whatever is contrary to the rule of
RIGHT,
is
INJURY:
—and
Tort à la ley est CONTRARY.
Co. Lit. 158.
Wrong is CONTRARY to
law,
and therefore
whatever is done
CONTRARY TO LAW
(or
makes against law
)
ought to be esteemed as UNDONE.
—
Pro infecto habetur,
(says the maxim;)
Quod contra legem fit pro infecto habetur;
so that the examples, that have been cited as precedents for
suspending
the
laws
of
liberty
and
protection,
are no precedents of
justification;
for the legislative power of
dispensing
with
laws,
extends only to those laws which relate to
mala prohibita,
as I have before remarked,
(Dispensatio est
MALI PROHIBITI
provida relaxatio utilitate communi pensata,)
and cannot effect the laws of
natural justice
and common constitutional
right;
because an act of parliament for any such purpose must be a
malum in se,
and consequently is
null
and
void
in itself.
The king has no power, nor can be allowed any power, to
defer, postpone,
or
suspend,
that
equal and right justice
which is due,
by inheritance,
to all British subjects, (to common sailors as well as others,) without respect of persons; because the king subscribed
Magna Charta
when he received the Holy Sacrament at his coronation, (of which the author of this protest is an eye-witness, being very near the king's person at that time,) whereby he has promised before God and the people, that he
will delay
or
deny
to
none right
or
justice;
—
Nulli negabimus aut differemus justitiam vel rectum;
(cap. xxix.) so that this excludes all power of
suspending
any of the laws on which
justice
or
right
depend! The king, therefore, must neither
delay
justice himself, nor be, in any way, instrumental in preventing his
judges
from proceeding to do
justice
according to Magna Charta and the other ancient and fundamental laws of the land; for the judges are also sworn to
deny to no man common right, by the king's letters, nor none other man's, nor for none other cause.
(See the oath made 18 Edward III. Keble's Statutes, p. 110.) This wary expression in the oath, (viz.
for none other cause,
) excludes all possibility of admitting any
exception
whatsoever; so that the sworn judges are so bound to GOD,
the king, and the people,
(for they are sworn to
"serve the people"
Ye shall swear, and well and lawfully ye shall SERVE
our lord the king,
AND HIS PEOPLE,
in the office of justice,
&c.
as well as the king,) that they must not obey even an act of parliament which sets aside this matter of
"common right,"
I mean the
common right of
PERSONAL LIBERTY
to all ranks of men
that are innocent from crimes and free from debt.
Some worthy men, zealous for the
privileges of parliament,
are, indeed, unwilling to admit this
seeming independence
of the judges, in the administration of
justice
or
common right;
which, by their oaths, they are to
"deny to no man:"
but the
just
privileges of parliament never can be injured by the independence of the judges
in this single point;
because, if a judge is so scrupulous, or conscientious, that he refuses to enforce or obey an
unjust
statute, it is still in the power of parliament to impeach or discharge him from his office for disobedience, so that the
loss
would fall only upon the honest and worthy judge, though the
dishonour
of the
injustice
would rest where it began! Nevertheless, while JUDGES remain in office, they must not acknowledge any obligation
superior
to that which they owe to
natural justice
and
the laws of God;
for they are
bound to
GOD (as I have already remarked) by the nature of their office, as well as to the
king
and the
people;
though this
first
and
most binding
obligation is not expressed in their oath; yet the Scripture says,
The judgement is God's;
(Deut. i. 17.) and again,
Ye judge not for man, but for
THE LORD,
who is with you in the JUDGEMENT:
(2 Chron. ix. 6.) and, therefore, neither the
judges
nor the
king
himself are to be accounted
laymen,
but
"ministers of God,"
for
righteousness, justice,
and
judgement.
— By the two latter, in the present case, I do not mean
penal
justice or judgement, but the duties of maintaining the
"common right"
of
innocent
persons, and of relieving the oppressed. These are, in a peculiar manner,
sacred to God,
and, therefore,
unalienable
from the people, and not to be
suspended
by the authority of parliament; because the commands of
God,
in these matters, are peremptory, and can admit of no exceptions.—
Thus saith the Lord,
(Jehovah,)
KEEP YE
judgement and do justice,
(Isaiah lvi. 1.) which is diametrically opposite to the measure of
suspending
or
postponing
them. And again,—
KEEP
mercy and
JUDGEMENT,
and wait on thy God
CONTINUALLY
or
ALWAYS:
(Hos. xii. 6.) so that there never can be any time of danger, or difficulty, so pressing and urgent as to justify the plea of a NECESSITY for the
suspension
of
justice
and
judgement,
when demanded by
innocent
persons under illegal restraint or
duress!
For, prisoners, that are
really guilty,
will not demand
judgement,
(by writs of
Habeas Corpus,
) for fear of the
penal
statutes; and even if such prisoners (trusting, at any time, to the want of sufficient evidence against them) should demand
judgement,
and thereby escape; yet it is better that TEN offenders should escape
penal
justice, than that ONE
innocent man
should suffer by the
denial
or
suspension
of "COMMON RIGHT."—
Melius est ut
DECEM NOXII
evadant, quam ut
UNUS INNOCENS
pereat.
— For herein the difference between the sort of
justice
and
judgement,
for which I contend, and
penal justice,
(which may be
suspended
by competent authority,) is manifested, viz. that THE RIGHTEOUS "JUDGE OF ALL THE WORLD" declared himself willing to
suspend
his
penal
judgement against A WHOLE NATION of notorious convicted offenders, rather than he would involve TEN
innocent
persons in their destruction, if so many could have been found among them! This sentiment of
divine justice
was revealed, for our instruction, to a man, who was honoured with the testimony of being inclined to
KEEP
the way of the Lord;
—and
the way of the Lord,
(as the following words declare,) is
—
to
DO
justice and judgement,
(Gen. xviii. 19-33.) — The
suspension,
therefore, of
justice
and
judgement
from
innocent
persons, is plainly the reverse of
KEEPING
the way of the Lord!
Wherefore,—
Let it suffice you, O princes of Israel; remove violence and spoil, and
EXECUTE JUDGEMENT AND JUSTICE;
(which is the very reverse of
suspending
them!
)
take away your exactions from my people, saith the Lord.
(Ezek. xlv. 9.)—
Cease to do evil; learn to do well; seek judgement;
RIGHTEN
the
OPPRESSED;
(for this is plainly the kind of
judgement,
which, in the former texts, God has commanded men to KEEP, and which, therefore, ought never to be SUSPENDED;)
judge the fatherless; plead for the widow.
(Isaiah i. 16, 17.)
It is also necessary to remark the divine testimony against those who
suspended
or did not "KEEP
justice
and
judgement;
" but, on the contrary, devised wicked ordinances: —
They conceive mischief, and bring forth iniquity. They hatch cockatrice eggs, and weave the spider's web,
&c. All which may well be said of those who enact wicked statutes to ensnare and oppress the people! And again,
The act of violence is in their hands. Their feet run to evil, and they make haste to
SHED INNOCENT BLOOD:
their thoughts are thoughts of iniquity;
WASTING AND DESTRUCTION
are in their paths.
THE WAY OF PEACE THEY KNOW NOT;
and
(there is)
NO JUDGEMENT
in their goings;
(meaning no
legal
judgement, or
due process of the law;
for the Hebrew word is
properly signifying a
legal
decision, as
also signifies a JUDGE;)
they have made them crooked paths;
(which may surely be said of wicked or unjust
laws,
but more especially of any
law
to
suspend
or annul the
law
itself!)
whosoever goeth therein shall not know
PEACE.
Therefore is
JUDGEMENT
far from us,
(
meaning that
the due process of the law,
or
proper
LEGAL
decision, is far from us;
for it is the same Hebrew word as before;)
neither doth
RIGHTEOUSNESS
In the common version it is rendered,—
neither doth
JUSTICE
overtake us:
which is liable to be understood in a contrary sense from the original as if it referred to
penal
justice, whereas the Hebrew word is
(properly
righteousness
); which (as it is due to all men) may justly be understood to signify that which in our English law is called
"common right."
(
or
"common right")
reach us,
&c. (Isaiah lix. 4—9.) And again, the 14th and 15th verses of the same chapter, demonstrate, that what I have already cited from it relates to the failure of
justice
and
judgement,
or the
suspension
of
due legal process!
And judgement
(said the prophet)
is turned away backward; and justice
(or rather COMMON RIGHT
as I have before remarked; for the Hebrew word is
"RIGHTEOUSNESS")
STANDETH AFAR OFF:
for
TRUTH
is fallen in the street,
(
i. e.
the TRUTH of conviction or acquittal, by legal process,
"is fallen,"
)
and
EQUITY
cannot enter;
(which must generally be the case when WILL is set up
above law!
but hear the prophet,)
Yes;
TRUTH
(says he)
faileth; and he that departeth from evil maketh himself a prey:
(or, as we read in the margin,
"is accounted mad:"
i.e. in the opinion of those detestable politicians who
do evil that good may come:
)
and the Lord
(Jehovah)
saw! and it displeased him that there was
NO JUDGEMENT!
(
— so that it can never be either
lawful
or
expedient
to remove the
"due process of the law"
from the reach of innocent persons, by
suspension,
or in any other manner,).
And he saw that
(there was)
no man:
that is,—
no man
to stand in the gap for the defence of his ETERNAL LAW, which is explained by the 4th verse, —
None calleth for justice,
(
more properly for RIGHTEOUSNESS, or "THE COMMON RIGHT" of the people,)
nor any pleadeth for truth,
&c. [Neither
prince, prelate,
nor
judge,
it seems, were inclined to
enter a protest
in favour of immutable
justice
and
right!
— Horrible depravity!]
And he
(the almighty)
wondered that there was no intercessor! therefore his arm brought salvation unto him; and his
RIGHTEOUSNESS,
it sustained him. For he put on
RIGHTEOUSNESS
as a breast-plate: and an helmet of salvation
(i. e.
in behalf of the poor, and those that were unjustly oppressed
)
upon his head; and he put on the garments of
VENGEANCE (for)
cloathing; and was clad with
ZEAL
as a cloke.
(And then follows,
THE LAW OF RETRIBUTION;
).
"According to their deeds, accordingly he will repay,—
FURY
to his adversaries,
RECOMPENCE" (or retribution)
"to his enemies, to
THE ISLANDS
he will
REPAY RETRIBUTION!
" Where then (if we have any belief in God's
eternal law
) is the boasted
"omnipotence of parliament!"
Or, who can be truly
"loyal,"
in the proper sense of that epithet, but those who acknowledge that the former is
unchangeable,
and that
common right,
and the justice due to
innocent
persons, can never be SUSPENDED without
rebellion against
GOD! For there is
no salvation
for man without CHARITY; and our common law teaches us,— that "the highest" (
and therefore
the most indispensable)
CHARITY
is to do
JUSTICE
to all and every single soul at
ALL TIMES:
—so that A TIME of NECESSITY (I mean SUCH A TIME as is generally called so) will afford but a poor excuse for so notorious a breach of this
FIRST
principle of
CHARITY;
Summa
CARITAS
est facere
JUSTITIAM
singulis et omnibus
OMNI TEMPORE.
—My countrymen, in general, I fear are too depraved to bear all the
truths
of my remonstrance; but I cannot now be silent without guilt!
Many are the limitations of
the law of reason,
(too numerous to be here recited,) which necessarily annul
all acts of legislature
that unhappily exceed them,
Against this law,
(i. e.
the law of reason,
)
prescription,
STATUTE,
nor custom, may not prevail; and, if any be brought in against it, they be not prescriptions,
STATUTES,
nor
CUSTOMS,
but
(
CORRUPTELAE, CORRUPTIONS
Et contra eam
(viz. legem rationis)
non est praescriptio vel ad appositum
STATUTUM,
sive consuetudo: et, si aliqua fiant,
NON SUNT STATUTA,
sive consuetudines, sed
CORRUPTELAE.
(Doct. et Stud. c. ii. p. 5. ed.
at.)
)
things void and against justice.
(Doct. et Stud. Eng. ed. 1668, p. 5.)
if the
first foundation of the English law
(already mentioned in p. 24.) be duly regarded. And
the second foundation
of our excellent
legal
establishment acknowledges no fewer
limitations of legislature
than there are
divine
precepts of
morality
and
justice
in the Holy Scriptures. For
THE SECOND FOUNDATION
of the law of England is the
LAW OF GOD:
against which the haughty
omnipotence of parliament
(the pope of England) has not the least authority to ordain any thing! insomuch, that
if
ANY STATUTE
is set forth
AGAINST
them, it ought to be esteemed of
NO FORCE
in the law of England.
—
Etiam, si aliquod statutum esse editum contra
eos;
[probably mis-written for
eas,
(leges divinas,) or
eam
(legem divinam)];
nullius vigoris in legibus Angliae censeri debet:
&c. Doct. et Stud. c. vi. p. 18.
b.
For, if FOUNDATIONS are removed, the whole fabric of our
law
and political constitution must precipitate into destruction!
I appeal to the JUDGES THEMSELVES for the
truths
which I here assert.
They know the foundations of our law:
they
know
that there are many
maxims
of a superior order
By maxims of a superior order, I mean, those inevitable and necessary conclusions of
reason,
which belong to the
first foundation of English law:
for, though these may be justly included also in the
fourth foundation of our law,
under the general head of
Maxims,
yet they ought to be duly distinguished from those less obvious
maxims
which relate only to the general customs of the kingdom, and have no claim to be ranked higher than
the fourth foundation.
which bear ample testimony to my doctrine; that
justice
or
common right
can never be
suspended,
without subverting the
legal
constitution of this kingdom!—
Si a
JURE
discedas
VAGUS
eris, et erunt omnia omnibus
INCERTA;
If you depart from
COMMON RIGHT,
you will become vague,
(or unsettled,)
and all things will be uncertain to all men.
(Co. Lit. 227.) and
Res est misera;
—
Misera est servitus ubi
JUS
est
VAGUM
aut
INCERTUM;
Affairs are in a wretched state,
—
nay,
it is deplorable slavery, wherever justice
(or common right)
is vague or uncertain.
(4 Inst. 246.) wherefore,
—
Justitia nemini neganda est.
"Justice must be denied to no man."
Justitia est cuilibet facienda.
"Justice must be done to every man whatsoever."
Injusticia non est alicui facienda.
"Injustice must not be done to any man whatsoever."
Justitia non est neganda, non
DIFFERENDA.
"Justice must neither be denied nor delayed,"
i. e.
nor
SUSPENDED.
(Jenk. Cent. 93.)— And, therefore, no plea of
necessity
whatever can excuse so great an
evil
as a SUSPENSION
of justice
or
common right!
This is confirmed also by another maxim,—
Melius est
OMNIA MALA
pati quam malo consentire.
It is better to endure
ALL
adversities than to assert to
ONE
evil measure!
(3 Inst. 23.) How much soever any particular man, in authority, may be either inclined, or think himself obliged to accommodate his opinion to the present times of
violence
and
injustice,
yet, I flatter myself, that there is not a single judge in the kingdom, who will venture to set his face against these indispensable conclusions of
reason;
and, therefore, to the
judges
I have appealed for the
truth
of my assertion; that every act of parliament which contains any thing in it contrary to these first
principles of
reason
and honesty,
is
null
and
void;
—is a
corruption,
and not
law!
For statutes,—
Nec contra
RATIONEM,
nec contra
LEGEM DIVINAM
existunt.
Statutes
"cannot exist either against
REASON,
or the
LAW DIVINE.
"
(Doct. et Stud. c. 10. de Diversis Statutis.) because
Hae duae leges declinari non possunt:
Because
"these two laws"
(the law of reason and the law of God)
"cannot abate or turn aside."
(ib. c. 17.) and because the holy Scriptures denounce WO against the makers of
unjust laws.
—
Wo
unto them that decree
UNRIGHTEOUS DECREES,
(or laws,)
and write grievousness
(which)
they have prescribed: to turn aside the needy from
JUDGEMENT;
(which, in Israel, was a
judgement
of peers; the judgement of the congregation)
and to take away the right
(
or rather
"the judgement"
or
"process of the law;"
for the Hebrew word is
)
from the poor of my people, that widows may be their prey, and that they may rob the fatherless.
(And then follows the
retribution,
which proves that there never can be any NECESSITY for INJUSTICE.)
And what will you do in the day of visitation, and in the desolation
(which)
shall come from far? To whom will you flee for help? and where will ye leave your glory?
[or, (in the plural,)
your honours?
] (Isai. x. 1—3.).
No
necessity,
therefore, whatever, can justify the adoption of an
unrighteous
or
unjust
measure, by any legislature upon earth; because no danger or evil whatsoever is so much to be dreaded as God's vengeance for the failure of
justice, judgement,
and
righteousness;
and, therefore,
"common right"
and
equal justice,
which belong to God, for the good of his people, are so interwoven and united with the legal constitution of these kingdoms, that to set them aside, by public authority, amounts to a
total subversion of the common law,
and, of course, to the
legal
constitution of
these kingdoms,
which no act of parliament can effect; for that (with respect to the legislature) would be a sort of
felo de se,
Whatever is destructive of the law cannot itself be law; for then the law would be
felo de se:
Lex quae leges avertit, ipsa lex esse non potest;
a thing divided against itself, and therefore will not stand.
Uhi non est pudor, nec
cura juris,
instabile regnum est.
Judge Atkins, p. 221.
a crime of the
highest treason
in all who voted for it! for which they are liable to be impeached by the great body of the nation, in case a political reformation should take place; and precedents are not wanting for inflicting
capital punishment
on JUDGES, for enforcing
unjust laws,
though the same had obtained the sanction of parliament. To submit the
operation of law
to the WILL of the king and council, (which is done by this supposed act,
That no judge
or justice of peace shall
bail or try any such person
or persons, without order from his majesty's most honourable privy-council,
&c. any law, statute, usage,
&c.
notwithstanding;
boldly subverting at once the whole
legal
constitution.
) would tend to annul even THE KING'S AUTHORITY; for, it is laid down as an established principle of the British constitution, by one of the best authorities in our common law, that
there is
NO KING
where
WILL
rules, and not law:
Non est enim rex, ubi dominatur
voluntas
et non lex;
so that a king of England ceases to be
king,
when he ceases to be limited by the LAW; as another old constitutional maxim also informs us,
The law is the most high inheritance that the king has; for, if the
LAW
was not, there would be
NO KING
nor inheritance;
Le ley est le plus haute inhéritance que le roi ad: car par
la ley
il-même et tous ses sujets sont rulés; et, si le ley ne fuit,
nul
roi et nul inhéritance sera.
Year Book, 19 Hen. VI. 63.
and another maxim says,
Cessa regnare, si non vis judicare.
Cease to reign, if you will not do justice.
—The king, therefore, must not
deny
or
delay
common right; and the insertion of a
"non obstante,"
to set aside at once all
the laws, statutes,
and
usages,
of the kingdom, respecting THE PERSONAL PROTECTION of the subject, is a manifest
subversion of our legal constitution,
and consequently is HIGH-TREASON
against the king,
as well as against the
state,
and the
latter
is declared to be no less a crime than the
former;
—
Non minor est proditio
LEGIS,
quam
REGEM
velle perdere.
— So that such an attempt against
the law
is not only a most dangerous undermining of the
king's crown and dignity,
but the highest act of
treason
and DISLOYALTY in the strictest sense of the word: as
no man
can be LOYAL who votes for a
general suspension
of
all the
LAWS and
fences
of that most valuable
right
of the subject, the
right
to personal liberty!
Such a suspension
of law
is too similar to that
non obstante
of pope Innocent IV. "whereby" (as the proctors of king Henry III. declared)
common right was annulled, and authentic records rendered void.
—
Per quam jus pro nihilo habetur et authentica scripta enervantur.
(Judge Atkins Parl. Tracts, p. 212.) And the same learned judge remarks, that
it is part of the description given of
antichrist,
by the prophet Daniel, c. 7.
He shall think that he may change times and laws, and they shall be given into his hands.
(P. 218.) In the following paragraph he also cites bp. Jewel's Exposition upon the Epistle to the Thessalonians, (fol. 131.) viz.
Antichrist
(says the bishop)
is there called
, a man without order or LAW, that man of sin; which is one of the peculiar notes of antichrist.
He shall seek to be free, and go at liberty; he shall be tied to NO LAW, neither of God nor man.
Hence it is said of the pope, that he is
Solutus
OMNI LEGE HUMANA.
In iis quae
VULT,
est ei pro ratione
VOLUNTAS,
nec est qui dicat illi, Domine, cur ita facis? Ille potest
SUPRA JUS DISPENSARE,
et de injustitia facere justitiam, corrigendo jura et mutando.
To set up the WILL and PLEASURE of man, therefore, above LAW, or to pretend to give a power to the king, or
his privy-council,
to SUSPEND the
fundamental
LAWS
of the kingdom,
is to render them
,
lawless
and
unlimited,
like the princes and powers of ANTICHRIST, foretold in the second Psalm, who say, —
Let us break their bonds asunder, and cast away their cords from us;
viz. the
bonds
of
reason,
law,
and
natural justice,
and the
cords
of allegiance to
divine authority;
for, to this effect, I have seen a remark upon the text, by judge Atkins, though I cannot at present find the passage. An act of parliament for so base a purpose, as the establishment of an
unlimited power,
is so far from deserving the name of
law,
that it must necessarily be deemed a
subversion of law;
as it sets up the
will
and
pleasure
of
man (king and council)
above the
operation of law,
contrary to a fundamental principle of the constitution.
More
SECURE,
as well as
MORE POWERFUL,
is the effect
(or operation)
of
LAW,
than the
WILL
and
PLEASURE
of man;
Firmior et potentior est operatio
LEGIS
quam
DISPOSITIO
hominis;
(Co. Lit. 102.) because,
the man who is allowed more power than is just and equal,
will
affect still more than is allowed:
Cui plus licet quam par est, plus vult quam licet.
(2 Inst. 464.).
From the unhappy experience of
all
nations, in
all
ages, this established doctrine of our
common law
may be amply proved; and, with respect to
the supposed act
in question, it is certainly liable to afford such opportunity and temptation to promote unjust charges against innocent persons; (arming a particular party with unconstitutional powers of oppression and iniquity, to intimidate all honest and independant people;) that it is manifestly a
malum in se,
(as I have said,) which can never be made
lawful;
nay, the whole business is so
disloyal
that it seems to be nothing less than
"framing mischief by a law,"
which is the most dangerous as well as most
iniquitous
mode of oppression; because it amounts to
an apostacy from God!
as the Scriptures declare,
Shall the throne of iniquity have fellowship with thee, which formeth mischief by a law?
(Ps. 94.20.) And again,
Wo be to them that decree unrighteous decrees, and that write grievousness which they have prescribed, to turn aside the needy from
JUDGEMENT,
&c. The very case in point! Isaiah x. 12. See pages 19, 33, 41, 44, and 45. — We are bound, by our baptismal vow, to
"renounce the devil and all his works,"
and of course it is our duty to resist and oppose
evil
to the utmost of our power; otherwise we deserve not to be ranked with the
servants
and
soldiers
of the
"prince of peace,"
because he is, also, the
king of
RIGHTEOUSNESS; and, therefore, in a Christian community, every
private
person, every individual, has an undoubted right to detect and protest against every
iniquity
and
injustice,
even though it shall have obtained the sanction of the
public
legislature; and it is a maxim of the common law, that
Unusquisque paci et justitiae publicae tenetur succurrere;
but the judges are still more particularly bound (both on account of their learning and office) to point out and reject every ordinance of man that is contrary to
natural justice
and
the laws of God.
And so far is it from being their duty to obey, or enforce, any
such laws,
that the common law has provided them a ready answer for refusing the functions of their office in such cases; —
Contra justitiam nihil possumus:
for, though they are officers of the king and people, and sit in the
king's judgement seat,
judging in
his
name; yet their duty respecting
common right
and
natural justice
does not depend
on the king,
nor any other, but on GOD alone, as I have already remarked; for they
judge not for man, but for the Lord,
&c. (2d Chron. xix. 6, 7.) — And again, —
Ye shall not be afraid of the face of man,
(which excludes all partial influence of kings or any other human powers,)
for the judgement is God's.
(Deut. i. 16, 17.).—And all judges ought to be deeply impressed with that indispensable doctrine of our common law, that
it is infinitely more heinous to offend
ETERNAL
than
TEMPORAL
majesty!
for it is a maxim, —
Gravius est
ETERNAM
quam
TEMPORALEM
laedere
MAJESTATEM.
— Thus stands THE LAW OF GOD respecting
judges;
and THE LAW OF GOD is always to be esteemed an unalienable and unchangeable part of THE LAW OF ENGLAND! (See p. 42, 45.)
Both the king and his judges are sworn (as I have already observed, p. 29, 30.)
not to delay or deny common right;
and, therefore, no danger, or other
evil
whatsoever, (against which men have ever pleaded a NECESSITY of
suspending
the laws of protection from innocent persons,) can be so great an
evil,
or be so imminently dangerous in itself, as that very measure of
suspension!
No NECESSITY whatsoever can be so deplorable, or so disgracefully injurious to the state, as the
measure itself!
and, therefore, there never can be a
necessity
for such a MEASURE; and the same may be said, with unquestionable truth, concerning every other MEASURE of
oppression
and
injustice;
but more particularly may it be said of that other most notorious and
iniquitous
mode of
suspending,
or rather
annulling,
all
the laws
of British freedom, in the case of
seamen;
I mean the IMPRESSING
The form of
press-warrants,
and the
expressions
used therein, may, perhaps, be very ancient; and those expressions, (viz.
impress
and
press-money,
) perhaps, according to the ancient meaning of them, may be innocent and
legal:
but no RIGHT or prerogative, either by
usage
or
prescription,
is thereby to be presumed in favour of the
modern sense
in which they are now usually interpreted:
viz.
as a warrant to take a man
by force,
to drag him away, like a thief, to a
floating prison
(the most dangerous and detestable of all others); that, by
imprisonment
and
duress,
he may be compelled to enter into an
involuntary servitude!
What is this but a
true
definition of the most absolute slavery!—And yet it is
equally true
when applied to the case of
pressed seamen
on-board the tenders and hulks. But let us examine by what authority this is done, and then judge whether the supposed
prerogative
is
legal.
The warrant is signed by
the lords commissioners of the admiralty and their secretary,
who claim no other authority in their justification than what is expressed in the beginning of the warrant:—viz.—
"In pursuance of his majesty's order in council, dated,"
—&c. &c.
Now, unhappily for
the lords of the admiralty and their secretary,
(if they should be duly prosecuted for their misdemeanor,) neither
his majesty
nor
the privy-council
(neither any of them separately, nor all of them together have any
legal
power to commit, or
distrain
an innocent man of his liberty; because all power for any such purposes was taken from them by authority of parliament, and the act is still in full force. See 16 Cha. I. c. x. The purpose of this act is expressly
"for the regulating the privy-council,"
as well as
for taking away the court commonly called the star-chamber.
In the preamble of this act the Great Charter is cited, —that—
No freeman shall be
TAKEN,
or
IMPRISONED,
or disseized of his freehold, or
LIBERTIES,
&c. but by lawful judgement of his peers, or by the law of the land,
and also (besides several others) that inestimable statute of 28 Edw. III. cap. iii. that
No man, of what estate or condition soever he be, shall be put out of his lands or tenements, nor
TAKEN,
nor
IMPRISONED,
&c. without being brought in to answer
BY DUE PROCESS OF LAW:
—so that the whole statute of 16 Cha. I. c. x. must be construed according to the true spirit of these golden laws of liberty; and more especially the 8th section of it, where we read—
That, if
ANY PERSON
(here can be no exception to the prejudice of seamen)
shall hereafter be
COMMITTED, RESTRAINED OF HIS LIBERTY,
or
SUFFER IMPRISONMENT,
by the order or decree of any such court of star-chamber,
&c. (mentioning several other courts, and then adds,)
OR
by the command
OR WARRANT
of
THE KING'S MAJESTY,
his heirs or successors, in their own person, or by the command or
WARRANT
of the
COUNCEL-BOARD,
or of any of the lords, or others of
HIS MAJESTY'S PRIVY-COUNCIL,
that, in
EVERY
such case,
EVERY PERSON,
so committed, restrained of his liberty, or suffering imprisonment,
[
which necessarily includes the case of
"every person" — "
restrained of his
liberty,"
or
taken, or imprisoned
by
a press-warrant;
especially as
his majesty's order in council
(which is
expressly
limited by this act) is the only authority cited by the
admiralty
for issuing such warrants, since the clause of
non obstante statuto
has been declared VOID in law.]
upon demand, or motion made,
(says the act,)
by his counsel, or other employed by him for that purpose, unto the
JUDGES
of the court of
KING'S-BENCH,
or
COMMON-PLEAS,
in open court,
SHALL, WITHOUT DELAY UPON ANY PRETENCE WHATSOEVER,
for the ordinary dues usually paid for the same, have forthwith granted unto him a writ of
HABEAS CORPUS,
to be directed generally unto all and every sheriff, goaler, minister,
OFFICER,
or other person, in whose custody the party so committed or restrained shall be,
&c. (And, after describing the mode of making the return to the writ, the statute directs the court that they)—
shall thereupon do what to
JUSTICE
shall appertain; either by delivering, bailing, or
REMANDING,
the prisoner: and, if any thing shall be otherwise wilfully done, or omitted to be done,
BY ANY JUDGE, JUSTICE, OFFICER,
or other person aforementioned, contrary to the direction and
TRUE MEANING
hereof,
(necessarily including the "TRUE MEANING," likewise, of all the acts recited in the preamble: so that, if A JUDGE should presume to
remand
into confinement any
man, of what estate or condition soever he be,
that has been
TAKEN, or IMPRISONED, &c. WITHOUT DUE PROCESS OF LAW,
)
that then
(says the act)
such person, so offending, shall forfeit to the party grieved his
TREBLE DAMAGES,
to be recovered by such means and in such manner as is formerly in this act limited and appointed for the like penalty to be sued for and recovered,
&c.
In the preamble of the Petition of Rights, (3 Cha. I.) the same noble declarations of British liberty, drawn from the ancient statutes against
taking and imprisoning a man without due process of the law,
are expressly recited and confirmed, (see 3d and 4th §.) as well as in the last-mentioned act. And the
judges
are likewise expressly directed, BY BOTH ACTS, to grant "WRITS OF HABEAS CORPUS," for immediate relief from all such
illegal
imprisonments; whether committed by authority of the
king
or of the
privy-council:
so that there are two
habeas corpus
acts, previous to, and of equal authority with, that which commonly engrosses the title of
the Habeas Corpus Act,
though it is, in reality, only a supplement to the two former acts, being clearly intended to supply all that could be thought insufficient for the security of the subject's
liberty
in the former acts above recited: being intitled,—"
An Act for the
BETTER SECURING
the Liberty of the Subject, &c.
" See stat. 31 Cha. II. c. ii. And therefore whatever may seem
doubtful,
or not sufficiently expletive therein, must necessarily be construed
in favour of liberty,
according to the established rules and maxims of the common law.
"
Impius et crudelis judicandus est qui
LIBERTATI
non favet.
" Co. Lit. 29, from Fortescu.
Impious and cruel is that man to be esteemed who does not
favour
liberty.
—
Angliae jura in omni casu
LIBERTATI
dant savorem.
(See Prin. Leg. et Aequit. p. 5, from Fortescu.)
The laws of England
FAVOUR
liberty
IN EVERY CASE.
And the learned chancellor Fortescu himself expresses this
noble principle
still more fully in c. xlvii. p. 109,
e laud. Leg. Ang.—
Humana natura in
LIBERTATIS
causa
FAVOREM
semper,
MAGIS QUAM IN ALIIS CAUSIS,
deprecetur,
&c.
In the cause of
LIBERTY
human nature
ALWAYS
implores
FAVOUR
more than in any other cause.
If a judge, therefore, should
remand
a man into any such illegal imprisonment, he immediately (by the inevitable construction of these laws
This truth is also farther testified by the arguments and authorities collected in Bushel's case, reported by Ld C. J. Vaughan, p. 156:—
viz.
When a man is brought by
HABEAS CORPUS
to the court, and, upon return of it, it appears to the court that he was against law
IMPRISONED
and
DETAINED,
though there be no cause of privilege for him in this court, he shall never be by the act of the court
REMANDED
to his unlawful imprisonment, for then
THE COURT
should do an act of
INJUSTICE,
in imprisoning him,
DE NOVO, AGAINST LAW;
whereas the the great charter is, Quod nullus liber homo
IMPRISONETUR, NISI PER LEGEM TERRAE,
&c.
) becomes a party in the injury: for the illegality of
remanding
a man, brought up by HABEAS CORPUS, where
no cause is certified,
(that is, no
legal
cause,) is severely condemned in the 5th sect. of
the Bill of Rights:
and the subsequent act, of 16 Cha. I. c. x. gives a penalty of
treble damages,
as I have already remarked. And, what is worse, if any judge should be guilty of such
injustice,
in the case of a
pressed man,
he would be liable to still greater penalties, because the case of
pressing
necessarily includes, not only the circumstances of
taking and imprisoning a man without due process of the law,
but also the intention of carrying him a prisoner
"out of the realm;"
whereby the judges (so offending) become liable to all the penalties of the last supplemental
habeas corpus act;
which is treble costs, and 500
l.
damages
at the least;
a disability to bear any office of trust or profit under the crown; besides all the other penalties of a
premunire,
which the king
cannot pardon!
— the person, or persons, who shall knowingly frame, contrive, write, seal, or counter-sign,
ANY WARRANT
or writing
for such commitment, detainer,
imprisonment,
or
TRANSPORTATION;
or shall so commit, detain, imprison, or
TRANSPORT,
any person, or persons, contrary to this act; or be
ANY WAYS ADVISING, AIDING, OR ASSISTING, THEREIN;
(which must inevitably include the act of REMANDING;)
being lawfully convicted thereof, shall
(besides the penalties of
treble costs and £.
500
damages,
mentioned in the former part of the section)
be disabled from thenceforth to bear any office of trust or profit within the said realm of England, &c. and shall incur and sustain the pains, penalties, &c. in and by the statute of provision and premunire, &c.—and be
INCAPABLE OF ANY PARDON FROM THE KING,
his heirs, &c.
—Stat. 31 Car. II. §. xii. And, by the x. §. a forfeit of 500
l.
is awarded against any judge for refusing the writ of HABEAS CORPUS, even though demanded in time of vacation.
The plea of
necessity
for the service will not excuse them; because that very plea in the very same case,
the necessity for the sea service,
viz. for
the good and safety of the kingdom in general, &c. and the whole kingdom in danger
(and a stronger or more urgent
necessity
cannot be expressed); yet it was deemed INSUFFICIENT to
justify
the opinion of
all the judges
in favour of extorting SHIP-MONEY (16 Cha. I. c. 14); and much more
insufficient
will it be to excuse the violent and forcible
"taking and imprisoning"
of SHIP-MEN, because the
persons
of men are infinitely more sacred in law than their pecuniary property: for it is an unquestionable maxim, that
LAW
regards
THE PERSON
above his possessions.
LIFE AND LIBERTY MOST,
&c. (Prin. Leg. et Aeq. p. 56.) And, as
the inheritance of the law,
by an established maxim already quoted, is said to descend
unicuique nostrum,
—
to
EVERY ONE
of us,
(without exception,) the SEAMEN are surely as much entitled to claim their
inheritance
and RIGHT to the whole benefit of the law as any other part of the community; for they cannot be excluded, because another excellent maxim says,
Turpis est
PARS
quae non convenit cum suo
TOTO.
(Plowden, 161.)
Shameful is▪ that part
(of a community)
which is not suited with its whole
(body). So that, if SEAMEN are denied
the benefit and protection of the laws,
on the part of government, such a denial unavoidably tends to slacken and untie the
bands of allegiance
on the part of the seamen, who are thereby compelled to undertake their own protection and defence whenever
the law
is denied them; for the ties of allegiance must necessarily be reciprocal, according to the first principles of social government, because the protection of
natural right
is the
first foundation of English law,
which no act of parliament has any authority
to subvert;
and the useful order of
seamen,
in particular, cannot be denied
the protection of the law,
without the most stimulalating provocation to resistance in their own defence: because it is agreeable to a fundamental maxim of the British constitution of state, that
Nothing is more intolerable in law, than that any one part of the community should be esteemed under a different law from the rest,
Nihil in lege intolerabilius est, candem rem diverso jure censeri:
and another maxim says,
—
Turpis est pars quae non convenit cum suo toto.
for there can be no such thing as
common right
wherever this is the case.—Thus I have endeavoured to express the
right of seamen
in as plain and intelligible terms as I could; that every
common seaman
of
common sense
may be able to discern the
inestimable value
of his
best inheritance,
THE LAW; and I shall always esteem it
my duty to God
to maintain and defend their rights to the utmost of my power.
them into service by
force
and
violence,
which the most dissolute of public ministers never presumed to palliate, or excuse, by any other plea than this mere bugbear, NECESSITY!
It is a practice so notoriously repugnant to
common right
and equity, so fundamentally subversive of the most essential and indispensable principles of our happy legal establishment; and, at the same time, so impious a violation of that
natural equality,
with respect
to law, justice,
and
personal protection,
which the Almighty himself has commanded to be maintained
"without respect of persons;"
that even an act of parliament cannot make it
lawful;
for
God is no respecter
of
persons.
(Acts x. 34)
He accepteth not the persons of princes, nor regardeth the rich
MORE THAN POOR;
for they are all the work of his hands.
(Job. xxxiv. 19.)
He hath made the small and the great,
AND CARETH FOR ALL ALIKE.
(Wisdom, vi. 7.) And, with respect to
equal justice,
God's direction to judges is part of the
moral law,
which is still binding,—
they shall judge the people with
JUST JUDGEMENT.
Thou shalt not wrest judgement. Thou
SHALT NOT RESPECT PERSONS;
neither take a gift,
According to the common law of England also, BRIBERY, or the
taking of gifts,
is esteemed a most
heinous crime
in JUDICIAL PROCEEDINGS; yet it is much
more heinous
(because more dangerous) in LEGISLATION: insomuch that a JUST SUSPICION of
undue influence
(by
private pensions, places held during pleasure,
&c.) is sufficient also to
vitiate
and
annul
the proceedings even of a LEGISLATURE! and therefore, when wicked and corrupt men, in the administration of
any
government, presume to varnish over their illegal proceedings with the specious pretence of
vindicating and establishing legislative authority,
and yet, at the same time, (by sapping its
honour
and
dignity
with the baneful influence of
pensions,
and such other BRIBERY,) do notoriously practice the most effectual means to undermine and destroy it!—such men, I say, must be deemed
traitors
and
unpardonable hypocrites,
whom NATIONAL JUSTICE will mark for the future vengeance of a much
injured,
and, hitherto,
DELUDED PEOPLE,
if they do not repent, before the measure of their iniquity be fulfilled, and heartily adopt some prudent plan of political reformation!
&c. (Deut. xvi. 18.) The fashionable
sneer,
therefore, of some modern lawyers, against the
just
doctrine concerning
"the equality of mankind,"
savours of a lamentable ignorance in
the first principles
of their profession, relating to
"common right"
or
justice!
All that I have said against the
supposed act
for
suspending the law,
would be equally applicable to an act of parliament for
impressing
either
seamen,
or any other rank or denomination of British subjects: because it would be a real
suspension
(with respect to
one part
of the community) of all the most valuable acts of parliament which are deemed the pillars of the constitution, though the learned judge Foster has prostituted his pen by asserting that it is
not inconsistent with any statute.
That learned man, surely, did not consider that the practice of
impressing
(as now carried on) necessarily includes the circumstances of
taking
and
imprisoning
without
due process of the law;
which is expressly prohibited not only by
one
statute, but by many
statutes.
The very first
statute
in our book ordains, that
No freeman shall be
TAKEN
or
IMPRISONED,
&c. but by the lawful judgement of his peers, or by the
LAW OF THE LAND:
which, in another recital,
by parliamentary authority,
is explained to signify
process of the law.
—And another venerable statute (which, like Magna Charta, has been so frequently confirmed by other acts of parliament, in different periods, that
no single parliament
can have sufficient authority to repeal it) expressly ordains, that
No man, of what estate or condition that he be,
(so that there can be no exception of SEAMEN,)
shall be put out of land or tenements, nor
TAKEN,
nor
IMPRISONED,
nor disinherited,
(and the protection of THE LAW is already shewn to be our
most valuable
inheritance,)
nor put to death, without being brought to answer by
DUE PROCESS OF LAW.
Stat. 28 Ed. III. c. 3. This excellent statute, and the clause above quoted from the Great-Charter, are both
expressly recited
and
confirmed
in the Bill of Rights, (3 Cha. I. c. 1.) and also in the act for
regulating the privy-council,
(16 Cha. I. c. 10.)—So that judge Foster's assertion in favour of
pressing,
viz. that it is
not inconsistent with any statute,
is an unpardonable instance of disingenuity! For what
"due process of law"
can be pointed out to justify or warrant the
taking, imprisoning,
and
disinheriting,
(of his
most
valuable
inheritance,
THE LAW) an innocent sailor? — An
admiralty-warrant
cannot be considered as a
due process of the law,
to justify any such
taking, imprisoning, &c.
because it is founded on no other authority than that of
the king and council,
whose warrant,
for any such purposes,
is rendered totally
illegal
by authority of an act of parliament, still in force; (16 Cha. I. c. 10.) so that if a judge should presume to
remand
a man to confinement, that has been
taken and imprisoned
by any such
warrant,
(which is
illegal,
and of course no
process of law,
) he would be liable to an impeachment of
high-treason to the state:
for promoting an
illegal
power and pretension of the crown, in direct opposition to
a solemn act of the whole legislature!
For the same reasons, every magistrate who presumes to
back a press-warrant
is also highly criminal, and makes himself an
adviser
and
party,
in a most notorious breach of the king's peace! because the effect of promoting an
illegal
warrant, to
suspend
(as much as in him lies) the laws of the king's peace,
common right,
and
personal protection,
from any of the
king's subjects,
(and this even in the
king's name,
) must necessarily
suspend
also, at the same time, the
allegiance
of the persons injured, for so a long time as they are in any actual danger; and they are permitted, even by the FIRST
foundation of the English law,
Primum fundamentum legis Angliae est lex
RATIONIS.
—Doct. et Stud. c. 5.
—
Insuper lex rationis permittit plurima fieri, ut scilicet quod
LICITUM EST
vim vi repellere, et quod fas est
UNICUIQUE
(seamen not excepted)
se tueri, et rem suam defendere contra vim injustam.
Doct. et Stud. c. ii.
to repel force with force, and to defend themselves and their own property against
UNJUST
violence.
And they are not deemed guilty of
murder,
even if they
kill
the assailants, provided the
killing
be
inevitable
in their defence; and that they cannot otherwise maintain their rights.—Nay, men are not only
justified
in defending
themselves
with force and arms, but may also legally
defend
and
rescue
any other person whatever, that is attacked or oppressed by an
unlawful violence,
though he be totally unknown to the rescuers!— For this was literally the case of Hopkins, Hugget, and three others, (an adjudged case in B. R. 18 Car. 2.) who, in attempting to
rescue
a stranger from the custody of some
press-masters,
in Smithfield, happened to kill one of them.—
This was but man-slaughter,
(says Ld. C. J. Holt,
See his Report of
"Regina versus Mawgridge,"
published at the end of Ld C. J. Kelyng's Reports, of which judge Holt was the editor. Some stress has been laid on the circumstance in the above case, that
"the piece of paper,"
which the press-masters shewed to Hugget, &c.
"was not a sufficient warrant."
This is, indeed, readily allowed; and we may safely add, that, if the
lord admiral himself
had attended to assist his
press-masters,
his authority in this case would have been as insignificant as that of any other man; since the baneful clause of
"Non obstante statuto"
in the
lord admiral's patent
is declared
null and void:
and, even if
the king,
at that time, and the
lords of the privy-council
had also attended in person, with the BEST WARRANT they could make, it would still have been
"an insufficient warrant"
to justify any such violent attacks upon the liberty of innocent subjects! and the same
judgement in law
must inevitably have been given (supposing the LAW to be DULY MAINTAINED) as in the recited case: because the
meanest subjects
are as much entitled to
the protection of the law
as a king is to
his crown,
and consequently are
equally
justified in defending it, and in resisting
unlawful
force with force, according to the
first foundation of the English law
as already recited. For it is a maxim in law, that
"the king can order nothing"
(i. e. nothing of legal process)
except by a court legally appointed.
Rex nil potest jubere nisi per curiam legitime constitutam.
Now, as all pretence of
legal power
(in the capacity of a court of law) is taken from the
king and council
by express act of parliament, it would be absurd to attribute to their
warrants and orders,
or the
admiralty press-warrants,
(which are founded on no other authority,) the least
legal
authority as
"a sufficient warrant"
to justify the
taking
and
imprisoning
any man whatsoever; because they are not, nor cannot be considered as, any part of "THE DUE PROCESS OF THE LAW," which alone can justify the
taking
and
imprisoning
British subjects! And, therefore, as
press-gangs
(officers as well as men) are manifestly employed in an
unlawful
business, acting WITHOUT LAW, there is no crime in
beating,
or even in
killing,
them, if they cannot otherwise be repelled, which must necessarily be deemed a
justifiable manslaughter,
"SE DEFENDENDO;" because it is a maxim, that—
where there is
NO LAW
there is no
TRANSGRESSION.
Ubi non est
LEX
ibi non est
TRANSGRESSIO.
And another maxim says: —
In vain doth that man implore the aid
(or protection)
of
LAW,
who strives to subvert even the
LAW
itself.
—
Frustra
LEGIS
auxilium implorat, qui
LEGES IPSAS
subvertere conatur:
which must inevitably be deemed the case of
press-gangs;
insomuch that judge Foster himself (if he meant to act according TO LAW) must have directed the jury to find
the same
verdict, in his famous reported case of
Alexander Broadfoot,
even if, instead of a
common sailor
belonging to
the press-gang,
Broadfoot had shot the lieutenant of the gang, or even the captain himself with the
admiralty warrant
in his hand; because the same
just objection
would still have held good against the press-gang,
viz.—"that they acted without legal warrant;"
for an admiralty warrant, to impress seamen, is
no legal warrant,
or
"process of the law,"
to
take
or
imprison
any man whatsoever: — and, therefore all the pains that have been taken, by that learned man, to disguise and confound the true
legal
state of the case, are frivolous, and unworthy his rank and character!
)
for, when the liberty of one subject is invaded, it affects all the rest: it is a provocation to all people, as being of ill example and pernicious consequence.
In short, that excellent adage for all the ordinary circumstances of life, viz. "
Honesty the best
POLICY," will be found to hold equally good in real
politics,
or affairs of government, even throughout the most dangerous and alarming difficulties and emergencies of state; because (if we entertain any real belief in divine Providence) examples may be produced, from the histories of all nations, to demonstrate, that the crafty refinements of mere
worldly policy
do frequently hasten or produce the very evils they were intended to avert! An administration of
government,
therefore, which cannot subsist with
law, justice,
and
common honesty,
is
unfit to subsist at all!
because
law
is the only basis of
good and lawful government;
so that no man can be esteemed truly
loyal
who thinks otherwise; and though several precedents for
suspending
THE LAW (both in pressing and other cases) may easily be produced; yet they can afford no justification or excuse for such measures; because the
iniquity
of them still remains, and
Malum quo communius eo pejus;
so that the citing
bad presidents
is a manifest aggravation of the
treason!
And it is a maxim,—that
PEACE IS THE LIFE OF THE COMMONWEALTH, LIBERTY THE SOUL OF IT, AND THE LAWS IT'S BODY.
—
VITA REIPUBLICAE PAX, ET ANIMUS LIBERTAS, ET CORPUS LEGES.
—And, therefore, the hateful measure of SUSPENDING THE LAWS, under a pretended
necessity
of carrying on a cruel WAR against the advocates for LIBERTY, ought to be deemed an attempt to destroy the LIFE, SOUL, and BODY,
of the republic!
—Great is the TRUTH, and stronger than all things;—it liveth and conquereth for evermore. With her there is no ACCEPTING OF PERSONS, or REWARDS; she doeth the things that are JUST, and refraineth from ALL UNJUST and WICKED THINGS. — Neither in her JUDGEMENT (or decree) is any UNRIGHTEOUSNESS; and she is the STRENGTH, KINGDOM, POWER, and MAJESTY, of all ages!
BLESSED BE THE GOD OF TRUTH!