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 〈1 page duplicate〉 〈1 page duplicate〉 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 〈 in non-Latin alphabet 〉 properly ſignifying a legal deciſion, as 〈 in non-Latin alphabet 〉 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 〈 in non-Latin alphabet 〉 (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 〈 in non-Latin alphabet 〉 "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! ( 〈 in non-Latin alphabet 〉 — 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, ( 〈 in non-Latin alphabet 〉 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 〈 in non-Latin alphabet 〉 ) 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 〈 in non-Latin alphabet 〉 , 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 〈 in non-Latin alphabet 〉 , 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, 〈1 page duplicate〉 〈1 page duplicate〉 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 lawsThis 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.