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."



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 [Page 4] 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 [Page 5] 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 [Page 6] 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 [Page 7] 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 [Page 8] 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 [Page 9] 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 [Page 10] 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 [Page 11] 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) [Page 12] 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 [Page 13] 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 [Page 14] 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 [Page 15] 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! [Page 16] 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.’ *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,’ [Page 17] 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 [Page 18] 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 [Page 19] 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 [Page 18] [...] [Page 19] [...] [Page 20] 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.’ * 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. And, in like manner, a parliament, or [Page 21] 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; and [Page 22] 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;’ and conse­quently the man, who ‘does not favour the cause of LIBERTY, is already con­demned, in our common law, as ‘im­pious [Page 23] and cruel.’ § 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; [Page 24] the knowledge of which (though it is a divine attribute) is inherited by mankind in general, and written in their hearts; 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:— [Page 25] "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 [Page 26] 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 [Page 27] 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* 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 [Page 28] 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 [Page 29] 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 [Page 30] 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" * 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.

[Page 31]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 [Page 32] 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 [Page 33] 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 [Page 34] 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.) — [Page 35] 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: [Page 36]‘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 [Page 37] 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 * (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 [Page 38] 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 [Page 39] 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!" [Page 40] 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 [Page 41] 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, 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 [Page 42] 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.’ 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 § which bear ample testimony [Page 43] 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; (Co. Lit. 227.) and ‘Res est misera;’‘Misera est servitus ubi JUS est VAGUM aut INCERTUM; * (4 Inst. 246.) wherefore,‘Justitia nemini neganda est. Justitia est cuili­bet facienda. Injusticia non est alicui [Page 44] fa­cienda. Justitia non est neganda, non DIFFERENDA. § (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.’ (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 [Page 45] 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.’ * (Doct. et Stud. c. 10. de Diversis Statu­tis.) because ‘Hae duae leges declinari non possunt:’ (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 [Page 46] 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 [Page 47] 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, 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, [Page 48] (which is done by this supposed act,) 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;’ § and another max­im [Page 49] 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 [Page 50] 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 [Page 51] 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, [Page 50] [...] [Page 51] [...] [Page 52] 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.).

[Page 53]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 [Page 54] 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 [Page 55] 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. [Page 56] 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 [Page 57] 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 them into ser­vice [Page 58] by force and violence, which the most dissolute of public ministers never pre­sumed [Page 59] to palliate, or excuse, by any o­ther plea than this mere bugbear, NE­CESSITY!

[Page 60]It is a practice so notoriously repugnant to common right and equity, so funda­mentally [Page 61] subversive of the most essential and indispensable principles of our happy [Page 62] legal establishment; and, at the same time, so impious a violation of that na­tural [Page 63] equality, with respect to law, jus­tice, and personal protection, which the [Page 64] Almighty himself has commanded to be maintained "without respect of persons;" [Page 65] 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 [Page 66] a gift,’ * &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!

[Page 67]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 [Page 68] 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, [Page 69] (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 [Page 70] 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 [Page 71] of the English law, * ‘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 [Page 72] custody of some press-masters, in Smith­field, happened to kill one of them.—This was but man-slaughter, (says Ld. C. J. Holt,) ‘for, when the liberty of [Page 73] one subject is invaded, it affects all the rest: it is a provocation to all people, as [Page 74] 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 [Page 75] 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 [Page 76] 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!’

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