CHAPTER 14|Document 5
William Penn, The Excellent Priviledge of Liberty and Property Being the Birth-Right of the Free-born Subjects of England1687Philobiblon Club ed. 3--12
To the Reader
It may reasonably be supposed that we shall find in this part of the world, many men, both old and young, that are strangers, in a great measure, to the true understanding of that inestimable inheritance that every Free-born Subject of England is heir unto by Birth-right, I mean that unparalleled privilege of Liberty and Property, beyond all the Nations in the world beside; and it is to be wished that all men did rightly understand their own happiness therein; in pursuance of which I do here present thee with that ancient Garland, the Fundamental Laws of England, bedecked with many precious privileges of Liberty and Property, by which every man that is a Subject to the Crown of England, may understand what is his right, and how to preserve it from unjust and unreasonable men: whereby appears the eminent care, wisdom and industry of our progenitors in providing for themselves and posterity so good a fortress that is able to repel the lust, pride and power of the Noble, as well as ignorance of the Ignoble; it being that excellent and discreet balance that gives every man his even proportion, which cannot be taken from him, nor be dispossessed of his life, liberty or estate, but by the trial and judgment of twelve of his equals, or Law of the Land, upon the penalty of the bitter curses of the whole people; so great was the zeal of our predecessors for the preservation of these Fundamental Liberties (contained in these Charters) from encroachment, that they employed all their policy and religious obligations to secure them entire and inviolable, albeit the contrary hath often been endeavoured, yet Providence hitherto hath preserved them as a blessing to the English Subjects.
The chief end of the publication hereof is for the information and understanding (what is their native right and inheritance) of such who may not have leisure from their Plantations to read large volumes; and beside, I know this Country is not furnished with Law-Books, and this being the root from whence all our wholesome English Laws spring, and indeed the line by which they must be squared, I have ventured to make it public, hoping it may be of use and service to many Freemen, Planters and Inhabitants in this Country, to whom it is sent and recommended, wishing it may raise up noble resolutions in all the Freeholders in these new Colonies, not to give away any thing of Liberty and Property that at present they do, (or of right as loyal English Subjects, ought to) enjoy, but take up the good example of our ancestors, and understand, that it is easy to part with or give away great privileges, but hard to be gained, if once lost. And therefore all depends upon our prudent care and actings to preserve and lay sure foundations for ourselves and the posterity of our loins.
In France, and other nations, the mere will of the Prince is Law, his word takes off any man's head, imposeth taxes, or seizes any man's estate, when, how and as often as he lists; and if one be accused, or but so much as suspected of any crime, he may either presently execute him, or banish, or imprison him at pleasure; or if he will be so gracious as to proceed by form of their laws, if any two villains will but swear against the poor party, his life is gone; nay, if there be no witness, yet he may be put on the rack, the tortures whereof make many an innocent person confess himself guilty, and then, with seeming justice, is executed. But,
In England the Law is both the measure and the bound of every Subject's duty and allegiance, each man having a fixed Fundamental Right born with him, as to freedom of his person and property in his estate, which he cannot be deprived of, but either by his consent, or some crime, for which the law has imposed such a penalty or forfeiture. For (1) all our Kings take a solemn oath at their Coronation to observe and cause the laws to be kept: (2) all our Judges take an oath wherein among other points they swear, to do equal Law and Right to all the King's Subjects, rich and poor, and not to delay any person of Common Right for the Letters of the King, or of any other Person, or for any other cause: Therefore saith Fortescue, (who was first Chief Justice, and afterwards Lord Chancellor to King Henry the Sixth) in his Book De Laudibus Legum Angliae, cap. 9, Non potest Rex Angliae, etc. The King of England cannot alter nor change the laws of his realm at his pleasure; For why, he governeth his people by power not only royal, but also politic: If his power over them were only regal, then he might change the laws of his realm, and charge his Subjects with Tallage and other burthens, without their consent; but from this much differeth the power of a King whose government is politic; for he can neither change laws without the consent of his Subjects, nor yet charge them with impositions against their wills. With which accords Bracton, a learned Judge and Law-Author, in the Reign of King Henry the Third, saying, Rex in Regno suo superiores habet Deum et Legem; i.e., The King in his Realm hath two superiors, God and the Law; for he is under the directive, though not coercive Power of the Law.
Tis true, the Law itself affirms, the King can do no wrong, which proceeds not only from a presumption, that so excellent a Person will do none, but also because he acts nothing but by Ministers, which (from the lowest to the highest) are answerable for their doings; so that if a King in passion should command A. to kill B. without process of law, A. may yet be prosecuted by Indictment or upon an Appeal (where no royal pardon is allowable) and must for the same be executed, such command notwithstanding.
This original happy Frame of Government is truly and properly called an Englishman's Liberty, a Privilege not exempt from the law, but to be freed in person and estate from arbitrary violence and oppression. A greater inheritance (saith Judge Coke) is derived to every one of us from our laws than from our parents. For without the former, what would the latter signify? And this Birth-right of Englishmen shines most conspicuously in two things:
By the First the Subject has a share by his chosen Representatives in the Legislative (or law-making) Power; for no new laws bind the people of England, but such as are by common consent agreed on in that great Council.
By the Second, he has a share in the executive part of the law, no causes being tried, nor any man adjudged to lose life, member or estate, but upon the verdict of his Peers or Equals his neighbours, and of his own condition: These two grand pillars of English liberty, are the Fundamental Vital Privileges, whereby we have been, and are preserved more free and happy than any other people in the world, and (we trust) shall ever continue so: For whoever shall design to impair, pervert or undermine either of them, do strike at the very Constitution of our Government, and ought to be prosecuted and punished with the utmost zeal and rigour. To cut down the banks and let in the sea, or to poison all the springs and rivers in the kingdom, could not be a greater mischief; for this would only affect the present age, but the other will ruin and enslave all our posterity.
But beside these paramount privileges which the English are estated in by the original Constitution of their Government, there are others more particularly declared and expressed in divers Acts of Parliament too large to be inserted in this place.
The Founders' Constitution
Volume 1, Chapter 14, Document 5
The University of Chicago Press
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