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COMMENTARIES
ON THE
LAWS OF ENGLAND.
BOOK THE FIRST.
OF THE RIGHTS OF PERSONS.
CHAPTER THE FIRST.
OF THE ABSOLUTE RIGHTS OF INDIVIDUALS.
THE objects of the laws of England are fo very numerous and extenfive, that, in order to confider them with any tolerable eafe and perfpicuity, it will be neceffary to diftribute them methodically, under proper and diftinct heads ; avoiding as much as poffible divifions too large and comprehemive on the one hand, and too trifling and minute on the other ; both of which are equally productive of confufion.
NOW.
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NOW, as municipal law is a rule of civil conduct, commanding what is right, and prohibiting what is wrong ; or, as Cicero d, and after him our Bracton b, has expreffed it, fanctio jufta, jubens honefta et prohibens contraria ; it follows, that the primary and principal objects of the law are RIGHTS, and WRONGS. In the profecution therefore of thefe commentaries, I fhall follow this very fimple and obvious divifion ; and fhall in the firft place confider the rights that are commanded, and fecondly the wrongs that are forbidden by the laws of England.
RIGHTS are however liable to another fubdivifion ; being either, firft, thofe which concern, and are annexed to the perfons of men, and are then called jura perfonarum or the rights of perfons ; or they are, fecondly, fuch as a man may acquire over external objects, or things unconnected with his perfon, which are ftiled jura rerum or the rights of things. Wrongs alfo are divifible into, firft, prvate wrongs, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries ; and fecondly, public wrongs, which, being a breach of general and public rights, affect the whole community, and are called crimes and mifdemefnors.
THE objects of the laws of England falling into this fourfold divifion, the prefent commentaries will therefore confift of the four following parts : 1. The rights of perfons ; with the means whereby fuch rights may be either acquired or loft. 2. The rights of things ; with the means alfo of acquiring and lofing them. 3. Private wrongs, or civil injuries ; with the means of redreffing them by law. 4. Public wrongs, or crimes and mifdemefnors ; with the means of prevention and punifhment.
WE are now, firft, to confider the rights of perfons ; with the means of acquiring and lofing them.
.{FS}
11 Philipp. 12.
b l. 1. c. 3.
.{FE}
NOW
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the rights of perfons that are commanded to be obferved by the municipal law are of two forts ; firft, fuch as are due from every citizen, which are ufually called civil duties ; and, fecondly, fuch as belong to him, which is the more popular acceptation of rights or jura. Both may indeed be comprized in this latter divifion ; for, as all focial duties are of a relative nature, at the fame time that they are due from one man, or fet of men, they muft alfo be due to another. But I apprehend it will be more clear and eafy, to confider many of them as duties required from, rather than as rights belonging to, particular perfons. Thus, for inftance, allegiance is ufually, and therefore as the duty of the magiftrate ; and yet they are, reciprocally, the rights as well as duties of each other. Allegiance is the right of the magiftrate, and protection the right of the people.
PERSONS alfo are divided by the law into either natural perfons, or artificial. Natural perfons are fuch as the God of nature formed us : artificial are fuch as created and devifed by human laws for the purpofes of fociety and government ; which are called corporations or bodies politic.
THE rights of perfons confidered in their natural capacities are alfo of two forts, abfolute, and relative. Abfolue, which are fuch as appertain and belong to particular men, merely as individuals or fingle perfons : relative, which are incident to them as members of fociety, and ftanding in various relations to each other. The firft, that is, abfolute rights, will be the fubject of the prefent chapter.
BY the abfolute rights of individuals we mean thofe which are fo in their primary and ftricteft fenfe; fuch as would belong to their perfons merely in a ftate of nature, and which every man is intitled to enjoy whether out of fociety or in it. But with regard to the abfolute duties, which man is bound to perform con-
fidered
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fidered as a mere individual, it is not to be expected that any human municipal laws fhould at all explain or enforce them. For the end and intent of fuch laws being only to regulate the behaviour of mankind, as they are members of fociety, and ftand in various relations to each other, they have confequently no bufinefs or concern with any but focial or relative duties. Let a man therefore be ever fo abandoned in his principles, or vitious in his practice, provided he keeps his wickednefs to himfelf, and does not offend againft the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be fuch as feem principally to affect himfelf, (as drunkennefs, or the like) they then become, by the bad example they fet, of pernicious effects to fociety ; and therefore it is then the bufinefs of human laws to correct them. Here the circumftance of publication is what alters the nature of the café. Public fobriety is a relative duty, and therefore enjoined by our laws : private fobriety is an abfolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil fanction. But, with refpect to rights, the café is different. Human laws define and enforce as well thofe rights which belong to a man confidered as an individual, as thofe which belong to him confidered as related to others.
FOR the principal aim of fociety is to protect individuals in the enjoyment of thofe abfolute rights, which were vefted in them by the immutable laws of nature ; but which could not be preferved in peace without that mutual affiftance and intercourfe, which is gained by the inftitution of friendly and focial communities. Hence it follows, that the firft and primary end of human laws is to formation of ftates and focieties : fo that to maintain and regulate thefe, is clearly a fubfequent confideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce fuch rights as are
abfolute,
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abfolute, which in themfelves are few and fimple ; and, then, fuch rights as are relative, which arifing from a variety of connexions, will be far more numerous and more complicated. Thefe will take up a greater fpace in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of England actually do, take notice of thefe abfolute rights, and provide for their lafting fecurity.
THE abfolute righs of man, confidered as a free agent, endowed with difcernment to known good from evil, and with power of choofing thofe meafures which appear to him to be moft defirable, are ufually fumed up on one general appellation, and denominated the natural liberty of mankind. This natural liberty confifts properly in a power of acting as one thinks fit, without any reftraint or control, unlefs by the law of nature : being a right inherent in a us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of freewill. But every man, when he enters into fociety, gives, up a part of his natural liberty, as the price of fo valuable a purchafe ; and, in confideration of receiving the advantages of mutual commerce, obliges himfelf to conform to thofe laws, which the community has tough proper to eftablifh. And this fpecies of legal obedience and conformity is infinitely more defirable, than that wild and favage liberty which is facrificed to obtain it. For no man, that confiders a moment, would wifh to retain the abfolute and uncontrolled power of doing whatever he pleafes; the confequence of which is, that every other man would alfo have the fame power ; and then there would be no fecurity to individuals in any of the enjoyments of life. Political therefore, or civil, liberty, which is that of a member of fociety, is no other than natural liberty fo far reftrained by human laws (and no farther) as is neceffary and expedient for the general advantage of the publick c. Hence we may collect that the law, which reftrains a
.{FS}
c Facultas ejus, quod cuique facere libet, nifi quid jure prohibetur. Inft. 1. 3. 1.
.{FE}
Q
man
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man from doing mifchief to his fellow citizens, though it diminifhes the natural, increafes the civil liberty of mankind : but every wanton and caufelefs reftraint of the will of the fubject, whether practiced by a monarch, a nobility, or a popular affembly, is a degree of tyranny. Nay, that even laws themfelves, whether made with or without our confent, if they regulate and conftrain our conduct in matters of mere indifference, without any good end in view, are laws deftructive of liberty : whereas if any public advantage can arife from obferving fuch precepts, the control of our private inclinations, in one or two particular points, will conduce to preferve our general freedom in others of more importance ; by fupporting that ftate, of fociety, which alone can fecure our independence. Thus the ftatute of king Edward IV d, which forbad the fine gentlemen of thofe times (under the degree of a lord) to wear pikes upon their fhoes or boots of more than two inches in length, was a law that favoured of oppreffion ; becaufe, however ridiculous the fafhion then in ufe might appear, the reftraining it by pecuniary penalties could ferve no purpofe of common utility. But the ftatute of king Charles II e, which prefcribes a thing feemingly as indifferent ; viz. a drefs for the dead, who are all ordered to be buried in woollen; is a law confiftent with public liberty, for it encourages the ftaple trade, on which in great meafure depends the univerfal good of the nation. So that laws, wen prudently framed, are by no means fubverfive but rather introductive of liberty ; for (as Mr Locke has well obferved f) where there is no law, there is no freedom. But then, on the other hand, that conftitution or frame of government, that fyftem of laws, is alone calculated to maintain civil liberty, which leaves the fubject entire mafter of his own conduct, except in thofe points wherein the public good requires fome direction or reftraint.
THE idea and practice of this political or civil liberty flourifh in their higheft vigour in thefe kingdoms, where it falls little
.{FS}
d 3 Edw. IV. c. 5.
e 30 Car. II. ft. 1. c. 3.
f on Gov. p. 2. § 57.
.{FE}
fhort
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fhort of perfection, and can only be loft or deftroyed by the folly or demerits of it's owner : the legiflature, and of courfe the laws of England, being peculiarly adapted to the prefervation of this ineftimable bluffing even in the meaneft fubject. Very different from the modern conftitutions of other ftates, on the continent of Europe, and from the genius of the imperial law ; which in general are calculated to veft an arbitrary and defpotic power of controlling the actions of the fubject in the prince, or in a few grandees. And this fpirit of liberty is fo deeply implanted in our conftitution, and rooted even in our very foil, that a flave or a negro, the moment he lands in England, falls under the protection of the laws, and with regard to all natural rights becomes eo inftanti a freeman g.
THE abfolute rights of every Englifhman (which, taken in a political and extenfive fenfe, are ufually called their liberties) as they are founded on nature and reafon, fo they are coeval with our form of government ; though fubject at times to fluctuate and change : their eftablifhment (excellent as it is) being ftill human. At fome times we have feen them depreffed by overbearing and tyrannical princes; at others fo luxuriant as even to tend to anarchy, a worfe ftate than tyranny itfelf, as any government is better than none at all. But the vigour of our free conftitution has always delivered the nation from thefe embaraffments, and, as foon as the convulfions confequent on the ftruggle have been over, the balance of our rights and liberties has fettled to it's proper level; and their fundamental articles have been from time to time afferted in parliament, as often as they were thought to be in danger.
FIRST, by the great charter of liberties, which was obtained, fword in hand, from king John ; and afterwards, with fome alterations, confirmed in parliament by king Henry the third, his fon. Which charter contained very few new grants ; but, as fir Edward Coke h obferves, was for the moft part declaratory of the
.{FS}
s Salk. 666.
h 2 Inft. proem.
.{FE}
Q 2
principal
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principal grounds of the fundamental laws of England. Afterwards by the ftatute called confirmatio cartarum I, whereby the great charter is directed to be allowed as the common law ; all judgments contrary to it are declared void ; copies of it are ordered to be fent to all cathedral churches, and read twice a year to the people ; and fentence of excommunication is directed to be as conftantly denounced againft all thofe that by word, deed, or counfel act contrary thereto, or in any degree infringe it. Next by a multitude of fubfequent corroborating ftatutes, (fir Edward Coke, I think, reckons thirty two k,) from the firft Edward to Henry the foruth. Then, after a long interval, by the petition of right ; which was a parliamentary declaration of the liberties of the people , affented to by king Charles the firft in the beginning of his reign. Which was clofely followed by the ftill more ample conceffions made by that unhappy prince to his parliament, before the fatal rupture between them ; and by the many falutary laws, particularly the habeas corpus act, paffed under Charles the fecund. To thefe fucceeded the bill of rights, or declaration delivered by the lords and commons to the prince and princefs of Orange 13 February 1688 ; and afterwards enacted in parliament, when they became king and queen : which declaration concludes in thefe remarkable words ; “and they do claim, “demand, and infift upon all and fingular the premifes, as their “undoubted rights and liberties.” And the act of parliament itfelf l recognizes “all and fingular the rights and liberties afferted “and claimed in the faid declaration to be the true, antient, and “indubitable rights of the people of this kingdom.” Lartly, thefe liberties wee again afferted at the commencement of the prefent century, in the act of fettlement m, whereby the crown is limited to his prefent majeft's illuftrious houfe, and fome new provifions were added at the fame fortunate aera for better fecuring our religion, laws, and liberties ; which the ftatute declares to be “the birthright of the people of England,” according to the antient doctrine of the common law n.
.{FS}
i 25 Edw. I.
k 2 Inft. proem.
l 1 W. and M. ft. 2. c. 2.
m 12 & 13 W. III. c. 2.
n Plowd. 55.
.{FE}
THUS
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THUS much for the declaration of our rights and liberties. The rights themfelves thus defined by thefe feveral ftatutes , confift in a number of private immunities ; which will appear, from what has been premifed, to be indeed no other, than either that refiduum of natural liberty, which is not required by the laws of fociety to be facrificed to public convenience ; or elfe thofe civil privileges, which fociety hath engaged to provide, in lieu of the natural liberties fo given up by individuals. Thefe therefore were formerly, either by inheritance or purchafe, the rights of all mankind ; but, in moft other countries of the world being now more or lefs debafed and deftroyed, they at prefent may be faid to remain, in a peculiar and emphatical manner, the rights of the people of England. And thefe may be reduced to three principal or primary articles ; the right of perfonal fecurity, the right of perfonal liberty ; and the right of private property : becaufe as there is no other known method of compulfion, or of abridging man's natural free will, but by an infringment or diminution of one or other of thefe important righs, the prefervation of thefe, inviolate, may juftly be faid to include the prefervation of our civil immunities in their largeft and moft extenfive fenfe.
I. THE right of perfonal fecurity confifts in a perfon's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.
1. LIFE is the immediate gift of God, a right inherent by nature in every individual ; and it begins in contemplation of law as foon as an infant is able to ftir in the mother's womb. For if a woman is quick with child, and by a potion, or otherwife, killeth it in her womb ; or if any one beat her, whereby the child dieth in her body, and fhe is delivered of a dead child ; this, though not murder, was by the antient law homicide or manflaughter o. But at prefent it is not looked upon in quite fo
.{FS}
o Si aliquis mulierem praegnantem percufferit, vel ei venenum dederit, per quod fecerit abortivam ; fi puerperium jam formatum fuerit, et maxime fi fuerit animatum, facit bomicidium. Bracton. l. 3. c. 21.
.{FE}
atrocious
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atrocious a light, though it remains a very heinous mifdemefnor p.
AN infant in ventre ftatute mere, or in the mother's womb, is fuppofed in law to be born for many purpofes. It is capable of having a legacy, or a furrender of a copyhold eftate made to it. It may have a guardian affigned to it q ; and it is enabled to have an eftate limited to it's ufe, and to take afterwards by fuch limitation, as if it were then actually born r. And in this point the civil law agrees with ours s.
2. A MAN'S limbs, (by which for the prefent we only underftand thofe members which may be ufeful to him in fight, and the lofs of which only amounts to mayhem by the common law) are alfo the gift of the wife creator ; to enable man to protect himfelf from external injuries in a ftate of nature. To thefe therefore he has a natural inherent right ; and they cannot be wantonly deftroyed or difabled without a manifeft breach of civil liberty.
BOTH the life and limbs of a man are of fuch high value, in the eftimation of the law of England, that it pardons even homicide if committed .{FE} defendendo, or in order to preferve them. For whatever is done by a man, to fave either life or member, is looked upon as done upon the higheft neceffity and compulfion. Therefore if a man through fear of death or mayhem is prevailed upon to execute a deed, or do any other legal act ; thefe, though accompanied with all other the requifite folemnities, are totally void in law, if forced upon him by a well-grounded apprehenfion of lofing his life, or even his limbs, in café of his non-compliance t. And the fame is alfo a fufficient excufe for the commiffion of many mifdemefnors, as will appear in the fourth book.
.{FS}
p 3. Inft. 90.
q Stat. 12 Car II c. 24.
r Stat. 10 & 11 W. III. c. 16.
s 2id in imtelliguntur in rervum natura effe, cum de eorum commode agatur. Ff. 1. 5. 26.
t 2 Inft. 483.
.{FE}
The
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The conftraint a man is under in thefe circumft nces is called in law durefs, from the Latin durities, of which there are two forts ; durefs of imprifonment, where a man actually lofes his liberty, fo which we fhall prefently fpeak ; and durefs per minas, where the hardfhip is only threatened and impending, which is that we are now difcourfing of. Durefs per minas is either for fear of lofs of life, or elfe for fear of mayhem, or lofs of limb. And this fear muft be upon fufficient reafon ; “non,” as Bracton expreffes it, 'fufpicio cujuflibet vani et meticulofi bominis, fed talis qui poffit “cadere in cirum conftantem ; talis enim debet effe metus, qui in .fe “contineat vitae periculum, aut corporis cruciatum u.” A fear of battery, or being beaten, though never fo well grounded, is no durefs ; neither is the fear of having one's houfe burnt, or one's goods taken away and deftroyed ; becaufe in thefe cafes, fhould the threat be performed, a man may have fatisfaction by recovering equivalent damages w: but no fuitable atonement can be made for the lofs of life, or limb. And the indulgence fhewn to a man under this, the principal, for of durefs, he fear of lofing his life or limbs, agrees alfo with that maxim of the civil law ; ignofcitur ei qui fanguinem fuum qualiter redemptum voluit x.
THE law not only regards life and member, and protecs every man in the enjoyment of them, but alfo furnifhes him with every thing neceffary for their fupport. For there is no man fo indigent or wretched, but he may demand a fupply fufficient for all the neceffities of life, from the more opulent part of the community, by means of the feveral ftatutes enacted for the relief of the poor, of which in their proper places. A humane provifion ; yet, though dictated by the principles of fociety, difcountenanced by the Roman laws. For the edicts of the emperor Conftantine, commanding the public to maintain the children of thofe who were unable to provide for them, in order to prevent the murder and expofure of infants, an inftitution founded on the fame principle as our
.{FS}
u l. 2. c. 5.
w 2 inft. 483.
z Ff. 48. 21. 1.
.{FE}
founding
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founding hofpitals, though comprized in the Theodofian code y, were rejected in Juftinian's collection.
THESE rights, of life and member, can only be determined by the death of the perfon ; which is either a civil or natural death. The civil death commences if any man be banifhed the realm z by the procefs of the common law, or enters into religion ; that is, goes into a monaftery, and becomes there a monk profeffed : in which cafes he is abfolutely dead in law, and his next heir fhall have his eftate. For, fuch banifhed man is entirely cut off from fociety; and fuch a monk, upon his profeffion, renounces folemnly all fecular concerns : and befides, as the popifh clergy claimed an exemption from the duties of civil life, and the commands of the temporal magiftrate, the genius of the Englifh law would not fuffer thofe perfons to enjoy the benefits of fociety, who fecluded themfelves from it, and refufed to fubmit to it's regulations a. A monk is therefore accounted civiliter mortuus, and when he enters into religion may, like other dying men, make his teftament and executors ; or, if he makes none, the ordinary may grant adminiftration to his next of kin, as if he were actually dead inteftate. And fuch executors and adminiftrators fhall have the fame power, and may bring the fame actions for debts due to the religious, and are liable to the fame actions for thofe due from him, as if he were naturally deceafed b. Nay, fo far has this principle been carried, that when one was bound in a bond to an abbot and his fucceffors, and afterwards made his executors and profeffed himfelf a monk of the fame abbey, and in procefs of time was himfelf made abbot thereof ; here the law gave him, in the capacity of abbot, an action of debt againft his own executors to recover the money due c. In fhort, a monk or religious is fo effectually dead in law, that a leafe made even to a third perfon, during the life (generally) of one who afterwards becomes a monk, determines by fuch his entry into religion : for
.{FS}
y l. 11. t. 27.
z Co. Litt. 133.
a This was alfo a rv'e in the feudal law, l. 2. t. 21. defat effe miles feculi, qui factus eft miles Chrifti ; nec beneficium pertinet ad cum qui non debet gerere officium.
b Litt. §. 200.
c Co. Litt. 133 b.
.{FE}
which
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which reafon leafes, and other conveyances, for life, are ufually made to have and to hold for the term of one's natural life d.
THIS natural life being, as was before obferved, the immediate donation of the great creator, cannot legally be difpofed of or deftroyed by any individual, neither by the perfon himfelf nor by any other of his fellow creatures, merely upon their own authority. Yet neverthelefs it may, by the divine permiffion, be frequently forfeited for the breach of thofe laws of fociety, which are enforced by the fanction of capital punifhments ; of the nature, reftrictions, expedience, and legality of which, we may hereafter more conveniently enquire in the concluding book of thefe commentaries. At prefent, I fhall only obferve, that whenever the conftitution of a ftate vefts in any man, or body of men, a power of deftroying at pleafure, without the direction of laws, the lives or members of the fubject, fuch conftitution is in the higheft degree tyrannical : and that whenever any laws direct fuch deftruction for light and trivial caufes, fuch laws are likewife tyrannical, though in an inferior degree ; becaufe here the fubject is aware of the danger he is expofed to, and may by prudent caution provide againft it. The ftatute law of England does therefore very feldom, and the common law does never, inflict any punifhment extending to life or limb, unlefs upon the higheft neceffity : and the conftitution is an utter ftranger to any arbitrary power of killing or maiming the fubject without the exprefs warrant of law. “Nullus liber homo, fays the great charter e, ali- “ quo modo deftruatur, nifi per legale judicium parium fuorum aut “per legem terrae.” Which words, “aliquo modo deftruatur,” according to fir Edward Coke f, include a prohibition not only of killing, and maiming, but alfo of torturing (to which our laws are ftrangers) and of every oppreffion by colour of an illegal authority. And it is enacted by the ftatute 5 Edw. III. c. 9. that no man fhall be forejudged of life or limb, contrary to the great charter and the law of the land : and again, by ftatute 28 Ed. III.
.{FS}
d 2 Rep. 48. Co. Litt. 132.
e c. 29.
f 2 Inft. 48.
.{FE}
R
c. 3.
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c. 3. that no man fhall be put to death, without being brought to anfwer by due procefs of law.
3. BESIDES thofe limbs and members that may be neceffary to man, in order to defend himfelf or annoy his enemy, the reft of his perfon or body is alfo entitled by the fame natural right to fecurity from the corporal infults of menaces, affaults, beating, and wounding ; though fuch infults amount not to deftruction of life or member.
4.THE prefervation of a man's health from fuch practices as may prejudice or annoy it, and
5. THE fecurity of his reputation or good name from the arts of detraction and flander, are rights to which every man is intitled, by reafon and natural juftice ; fince without thefe it is impoffible to have the perfect enjoyment of any other advantage or right. But thefe three laft articles (being of much lefs importance than thofe which have gone before, and thofe which are yet to come ) it will fuffice to have barely mentioned among the rights of perfons ; referring the more minute difcuffion of their feveral branches, to thofe parts of our commentaries which treat of the infringement of thefe rights, under the head of perfonal wrongs.
II. NEXT to perfonal fecurity, the law of England regards, afferts, and preferves the perfonal liberty of individuals. This perfonal liberty confifts in the power of loco-motion, of changing fituation, or removing one's perfon to whatfoever place one's own inclination may direct ; without imprifonment or reftraint, unlefs by due courfe of law. Concerning which we may make the fame obfervations as upon the preceding article ; that it is a right ftrictly natural ; that the laws of England have never abridged it without fufficient caufe ; and , that in this kingdom it cannot ever be abridged at the mere difcretion of the magiftrate, without the explicit permiffion of the laws. Here again the language of the great charter g is, that no freeman fhall be taken or imprifoned
.{FS}
g c. 29.
.{FE}
but
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but by the lawful judgment of his equals, or by the law of the land. And many fubfequent old ftatutes h expreffly direct, that no man fhall be taken or imprifoned or detained without caufe fhewn, to which he may make anfwer according to law. By 16 Car. I. c. 10. if any perfon be reftrained of his liberty by order or decree of any illegal court, or by command of the king's majefty in perfon, or by warrant of the council board, or of any of the privy council ; he fhall, upon demand of his counfel, have a writ of habeas corpus, to bring his body before the court of king's bench or common pleas ; who fhall determine whether the caufe of his commitment be juft, and thereupon do as to juftice fhall appertain. And by 31 Car. II. c. 2. commonly called the babcas corpus act, the methods of obtaining this writ are fo plainly pointed out and enforced, that, fo long as this ftatute remains unimpeached, no fubject of England can be long detained in prifon, except in thofe cafes in which the law requires and juftifies fuch detainer. And, left this act fhould be evaded by demanding unreafonable bail, or fureties for the prifoner's appearance, it is declared by 1 W. & M. ft. 2. c. 2. that excefive bail ought not to be required.
OF great importance to the public is the prefervation of this perfonal liberty : for if once it were left in the power of any, the higheft, magiftrate to imprifon arbitrarily whomever he or his officers thought proper, (as in France it is daily practiced by the crown ) there would foon be an end of all other rights and immunities. Some have thought, that unjuft attacks, even upon life, or property, at the arbitrary will of the magiftrate, are lefs dangerous to the commonwealth, than fuch as are made upon the perfonal liberty of the fubject. To bereave a man of life, of by violence to confifcate his eftate, without accufation or trial, would be fo grofs and notorious an act of defpotifm, as muft at once
.{FS}
h 5 Edw. III. c. 9. 25. Edw. III. Ft. 5. c. 4. and 28 Edw. III. 4. 3.
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R 2
convey
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convey the alarm of tyranny throughout the whole kingdom. But confinement of the perfon, by fecretly hurrying him to gaol, where his fufferings are unknown or forgotten ; is a lefs public, a lefs ftriking, and therefore a more dangerous engine of arbitrary government. And yet fometimes, when the ftate is in real danger, even this may be a neceffary meafure. But the happinefs of our conftitution is, that it is not left to the executive power to determine when the danger of the ftate is fo great, as to render this meafure expedient. For the parliament only, or legiflative power, whenever it fees prper, can authorize the crown, by fufpending the babeas corpus act for a fhort and limited time, to imprifon fufpected perfons without giving any reafon for fo doing. As the fenate of Rome was wont to have recourfe to a dictator, a magiftrate of abfolute authority, when they judged the republic in any imminent danger. The decree of the fenate, which ufually preceded the nomination of this magiftrate, “dent operam confu- “les, nequid refpublica detrimenti capiat,” was called the fenatus confultum ultimate neceffitatis. In like manner this experiment ought only to be tried in cafe of extreme emergency ; and in thefe the nation parts with it's liberty for a while, in order to preferve it for ever.
THE confinement of the perfon, in any wife, is an imprifonment. So that the keeping a man againft his will in a private houfe, putting him in the ftocks, arrefting or forcibly detaining him in the ftreet, is an imprifonment i. And the law fo much difcourages unlawful confinement, that if a man is under durefs of imprifonment, which we before explained to mean a compulfion by an illegal reftraint of liberty, until he feals a bond or the like ; he may alledge this durefs, and avoid the extorted bond. But if a man be lawfully imprifoned, and either to procure his difcharge, or on any other fair account, feals a bond or a deed, this is not by durefs of imprifonment, and he is not at liberty to avoid itk. To make imprifonment lawful, it muft either be, by procefs from the courts of judicature, or by warrant from fome
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i 2. Inft. 5 9.
k 2 Inft. 482.
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legal officer, having authority to commit to prifon ; which warrant muft be in writing, under the hand and feal of the magiftrate, and exprefs the caufes of the commitment, in order to be examined into (if neceffary) upon a babeas corpus. If there be no caufe expreffed, the goaler is not bound to detain the prifoner l. For the law judges in this refpect, faith fir Edward Coke, like Feftus the Roman governor ; that it is unreafonable to fend a prifoner, and not to fignify withal the crimes alleged againft him.
A NATURAL and regular confequence of this perfonal liberty, is that every Englifhman may claim a right to abide in his own country fo long as he pleafes ; and not to be driven from it unlefs by the fentence of the law. The king indeed, by his royal prerogative, may iffue out his writ ne exeat regnum, and prohibit any of his fubjects from going into foreign parts without licence m. This may be neceffary for the public fervice, and fafeguard of the commonwealth. But no power on earth, except the authority of parliament, can fend any fubject of England out of the land againft his will ; no not even a criminal. For exile, or tranfportation, is a punifhment unknown to the common law ; and, wherever it is now infticted, it is either by the choice of the criminal himfelf, to efcape a capital punifhment, or elfe by the exprefs direction of fome modern act of parliament. To this purpofe the great charter n declares that no freeman fhall be banifhed, unlefs by the judgment of his peers, or by the law of the land. And by the babeas corpus act, 31 Car. II. c. 2. (that fecund magna carta, and ftable bulwark of our liberties) it is enacted, that no fubject of this realm, who is an inhabitant of England, Wales, or Berwick , fhall be fent prifoner into Scotland, Ireland, Jerfey, Guernfey, or places beyond the feas ; (where they cannot have the benefit and protection of the common law ) but that all fuch imprifonments fhall be illegal ; that the perfon, who fhall dare to commit another contrary to this law, fhall be difabled from bearing any office, fhall incur the penalty of a praemunire, and be incapable of receiving the king's pardon :
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l 2 Inft. 52. 53.
m F. N. B. 85.
n cap. 29.
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and the party fuffering fhall alfo have his private action againft the perfon committing, and all his aiders, advifers and abettors, and fhall recover treble cofts ; befides his damages, which no jury fhall affefs at lefs than five hundred pounds.
THE law in is this refpect fo benignly and liberally conftrued for the benefit of the fubject, that, though within the realm the king may command the attendance and fervice, of all his liegemen, yet he cannot fend any man out of the realm, even upon the public fervice : he cannot even conftitute a man lord deputy or lieutenant of Ireland againft his will, nor make him a foreign embaffador o. For this might in reality be no more than an honorable exile.
III. THE third abfolute right, inherent in every Englifhman, is that of property : which confifts in the free ufe, enjoyment, and difpofal of all his acquifitions, without any control or diminution, fave only by the laws of the land. The original of private property is probably founded in nature, as will be more fully explained in the fecund book of the enfuing commentaries : but certainly the modifications under which we at prefent find it, the method of conferving it in the prefent owner, and of tranflating it from man to man, are entirely derived from fociety ; and are fome of thofe civil advantages, in exchange for which every individual has refigned a part of his natural liberty. The laws of England are therefore, in point of honor and juftice, extremely watchful in afcertaining and protecting this right. Upon this principle the great charter p has declared that no freeman fhall be diffeifed, or divefted, of his freehold, or of his liberties, or free cuftoms, but by the judgment of his peers, or by the law of the land. And by a variety of antient ftatutes q it is enacted, that no man's lands or goods fhall be feifed into the king's hands, againft the great charter, and the law of the land ; and that no man fhall be difinherited, nor put out of his franchifes or freehold,
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o 2 Inft. 47.
p c. 29.
q 5 Edw. III. c. 9. 25 Edw. III. ft. 5. c. 4. 28 Edw. III. c. 3.
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unlefs he be duly brought to anfwer, and be forejudged by courfe of law ; and if any thing be done to the contrary, it fhall be redreffed, and holden for none.
SO great moreover is the regard of the law for private property, that it will not authorize the leaft violation of it ; no, not even for the general good of the whole community. If a new road, for inftance, were to be made through the grounds of a private perfon, it might perhaps be extenfively beneficial to the public ; but the law permits no man, or fet of men, to do this without confent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community ; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Befides, the public good is in nothing more effentially interefted, than in the protection of every individual's private rights, as modelled by the municipal law. In this, and fimilar cafes the legiflature alone, can, and indeed frequently does, interpofe, and compel the individual to acquiefce. But how does it interpofe and compel ? Not by abfolutely ftripping the fubject of his property in an arbitrary manner ; but by giving him a full indemnification and equivalent for the injury thereby fuftained. The public is now confidered as an individual, treating with an individual for an exchange. All that the legiflature does is to oblige the owner to alienate his poffeffions for a reafonable price ; and even this is an exertion of power, which the legiflature indulges with caution, and which nothing but the legiflature can perform.
NOR is this the only inftance in which the law of the land has poftponed even public neceffity to the facred and inviolable rights of private property. For no fubject of England can be conftrained to pay any aids or taxes, even for the defence of the realm or the fupport of government, but fuch as are impofed by his own confent, or that of his reprefenatives in parliament. By the ftatute 25 Edw. I. c. 5 and 6, it is provided, that the king
fhall
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fhall not take any aids or tafks, but by the common affent of the realm. And what that common affent is, is more fully explained by 34 Edw. I. ft. 4. cap. 1. which enacts, that no talliage or aid fhall be taken without affent of the arch-bifhops, bifhops, earls, barons, knights, burgeffes, and other freemen of the land r : and again by 14 Edw. III. ft. 2. c. 1. the prelates, earls, barons, and commons, citizens, burgeffes, and merchants fhall not be charged to make any aid, if it be not by the common affent of the great men and commons in parliament. And as this fundamental law had been fhamefully evaded under many fucceeding princes, by compulfive loans, and benevolences extorted without a real and voluntary confent, it was made an article in the petition of right 3 Car. I, that no man fhall be compelled to yield any gift, loan, or benevolence, tax, or fuch like charge, without common confent by act of parliament. And, laftly, by the ftatute 1 W. & M. ft. 2. c. 2. it is declared, that levying money for or to the ufe of the crown, by pretence of prerogative, without grant of parliament ; or for longer time, or in other manner, than the fame is or fhall be granted, is illegal.
IN the three preceding articles we have taken a fhort view of the principal abfolute rights which appertain to every Englifhman. But in vain would thefe rights be declared, afcertained, and protected by the dead letter of the laws, if the conftitution had provided no other method to fecure their actual enjoyment. It has therefore eftablifhed certain other auxiliary fubordinate rights of the fubject, which ferve principally as barriers to protect and maintain inviolate the three great and primary rights, of perfonal fecurity, perfonal liberty, and private property. Thefe are,
1. THE conftitution, powers, and privileges of parliament, of which I fhall treat at large in the enfuing chapter.
.{FS}
r See the hiftorical introduction to the great charter, & c. fub anno 1297 ; wherein it is fhewn that this ftatute de talliagio non concedendo, fuppo ed to have been made in 34 Edw. I, is in reality nothing more than a fort of tranflation into Latin of the confirmatio cartarum, 25 Edw. I, which was originally publifhed in the Norman language.
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2. THE
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2. THE limitation of the king's prerogative, by bounds fo certain and notorious, that it is impoffible he fhould exceed them without the confent of the people. Of this alfo I fhall treat in it's proper place. The former of thefe keeps the lcgiflative power in due health and vigour, fo as to make it improbable that laws fhould be enacted deftructive of general liberty : the latter is a guard upon the executive power, by reftraining it from acting either beyond or in contradiction to the laws, that are framed and eftablifhed by the other.
3. A THIRD fubordinate right of every Englifhman is that of applying to the courts of juftice for redrefs of injuries. Since the law is in England the fupreme arbiter of every man's life, liberty, and property, courts of juftice muft at all times be open to the fubject, and the law be duly adminiftred therein. The emphatical words of magna carta s, fpoken in the perfon of the king, who in judgment of law (fays fir Edward Coke t) is ever prefent and repeating them in all his courts, are thefe ; “nulli “vendemus, nulli negabimus, aut differemus rectum vel juftitiam : “and therefore every fubject,” continues the fame learned author, “for injury done to him in bonis, in terries, vel perfona, by “any other fubject, be he ecclefiaftical or temporal without any “exception, may take his remedy by the courfe of the law, and “have juftice and right for the injury done to him, freely with- “out fale, fully without any denial, and fpeedily without delay.” It were endlefs to enumerate all the affirmative acts of parliament wherein juftice is directed to be done according to the law of the land : and what that law is, every fubject knows ; or may know if he pleafes : for it depends not upon the arbitrary will of any judge ; but is permanent, fixed, and unchangeable, unlefs by authority of parliament. I fhall however juft mention a few negative ftatutes , whereby abufes, perverfions, or delays of juftice, efpecially by the prerogative, are reftrained. It is ordained by
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s c. 29.
t 2 Inft. 55.
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S
magna
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magna carta u, that no freeman fhall be outlawed, that is, put out of the protection and benefit of the laws, but according to the law of the land. By 2 Edw. III. c. 8. and 11 Ric. II. c. 10. it is enacted, that no commands or letters fhall be fent under the great feal, or the little feal, the fignet, or privy feal, in difturbance of the law ; or to difturb or delay common right : and, though fuch commandments fhould come, the judges fhall not ceafe to do right. And by 1 W. & M. ft. 2 : c. 2. it is declared, that the pretended power of fufpending, or difpenfing with laws, or the execution of laws, by regal authority without confent of parliament, is illegal.
NOT only the fubftantial part, or judicial decifions, of the law, but alfo the formal part, or method of proceeding, cannot be altered but by parliament ; for if once thofe outworks were demolifhed, there would be no inlet to all manner of innovation in the body of the law itfelf. The king, it is true, may erect new courts of juftice ; but then they muft proceed according to the old eftablifhed forms of the common law. For which reafon it is declared in the ftatute 16 Car. I. c. 10. upon the diffolution of the court of ftarchamber, that neither his majefty, nor his privy council, have any jurifdiction, power, or authority by Englifh bill, petition, articles, libel (which were the courfe of proceeding in the ftarchamber, borrowed from the civil law) or by any other arbitrary way whatfoever, to examine, or draw into queftion, determine or difpofe of the lands or goods of any fubjects of this kingdom ; but that the fame ought to be tried and determined in the ordinary courts of juftice, and by courfe of law.
4. IF there fhould happen any uncommon injury, or infringement of the rights beforementioned, which the ordinary courfe of law is too defective to reach, there ftill remains a fourth fubordinate right appertaining to every individual, namely, the right of petitioning the king, or either houfe of parliament, for the
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u c. 29.
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redrefs of grievances. In Ruffia we are told w that the czar Peter eftablifhed a law, that no fubject might petition the throne, till he had firft petitioned two different minifters of ftate. In café he obtained juftice from neither, he might then prefent a third petition to the prince ; but upon pain of death, if found to be in the wrong. The confequence of which was, that no one dared to offer fuch third petition ; and grievances feldom falling under the notice of the fovereign, he had little opportunity to redrefs them. The reftrictions, for fome there are, which are laid upon petitioning in England, are of a nature extremely different ; and while they promote the fpirit of peace, they are no check upon that of liberty. Care only muft be taken, left, under the pretence of petitioning, the fubject be guilty of any riot or tumult ; as happened in the opening of the memorable parliament in 1640 : and, to prevent this, it is provided by the ftatute 13 Car. II. ft. 1. c. 5. that no petition to the king, or either houfe of parliament, for any alterations in church or ftate, fhall be figned by above twenty perfons, unlefs the matter thereof be approved by three juftices of the peace or the major part of the grand jury, in the country ; and in London by the lord mayor, aldermen, and common council ; nor fhall any petition be prefented by more than two perfons at a time. But under thefe regulations , it is declared by the ftatute 1 W. & M. ft. 2. c. 2. that the fubject hath a right to petition ; and that all commitments and profecutions for fuch petitioning are illegal.
5. THE fifth and laft auxiliary right of the fubject, that I fhall at prefent mention, is that of having arms for their defence, fuitable to their condition and degree, and fuch as are allowed by law. Which is alfo declared by the fame ftatute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due reftrictions, of the natural right of refiftance and felf-prefervation, when the fanctions of fociety and laws are found infufficient to reftrain the violence of oppreffion.
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w Montefq. Sp. L. 12. 26.
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S 2
IN
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IN thefe feveral articles confift the rights, or, as they are frequently termed, the liberties of Englifhmen : liberties more generally talked of, than thoroughly underftood ; and yet highly neceffary to be perfectly known and confidered by every man of rank or property, left his ignorance of the points whereon it is founded fhould hurry him into faction and licentioufnefs on the one hand, or a pufillanimous indifference and criminal fubmiffion on the other. And we have feen that thefe rights confift, primarily, in the free enjoyment of perfonal fecurity, of perfonal liberty, and of private property. So long as thefe remain inviolate, the fubject is perfectly free ; for every fpecies of compulfive tyranny and oppreffion muft act in oppofition to one or other of thefe rights, having no other object upon which it can poffibly be employed. To preferve thefe from violation, it is neceffary that the conftitution of parliaments be fupported in it's full vigor ; and limits certainly known, be fet to the royal prerogative. And, laftly, to vindicate thefe rights, when actually violated or attacked, the fubjects of England are entitled, in the firft place, to the regular adminiftration and free courfe of juftice in the courts of law ; next to the right of petitioning the king and parliament for redrefs of grievances ; and laftly to the right of having and ufing arms for felf-prefervation and defence. And all thefe rights and liberties it is our birthright to enjoy entire ; unlefs where the laws of our country have laid them under neceffary reftraints. Reftraints in themfelves fo gentle and moderate, 23 will appear upon farther enquiry, that no man of fenfe or probity would wifh to fee them flackened. For all of us have it in our choice to do every thing that a good man would defire to do ; and are reftrained from nothing, but what would be pernicious either to ourfelves or our fellow citizens. So that this review of our fituation may fully juftify the obfervation of a learned French author, who indeed generally both thought and wrote in the fpirit of genuine freedom x; and who hath not fcrupled to profefs, even
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z Montefq. Sp. L. 11. 5.
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in
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in the very bofom of his native coglifh is the only nation in the world, where political or civil liberty is the direct end of it's conftitution. Recommending therefore to the ftudent in our laws a farther and more accurate feach into this extenfive and important title, I fhall clofe my remarks upon it with the expiring wifh of the famous father Paul to his country,
“ESTO PERPETUA !”