counties palatine. The two former are such by prescription, or
immemorial custom; or, at least as old as the Norman conquest[f]: the
latter was created by king Edward III, in favour of Henry Plantagenet,
first earl and then duke of Lancaster, whose heiress John of Gant the
king's son had married; and afterwards confirmed in parliament, to
honour John of Gant himself; whom, on the death of his father-in-law,
he had also created duke of Lancaster[g]. Counties palatine are so
called _a palatio_; because the owners thereof, the earl of Chester,
the bishop of Durham, and the duke of Lancaster, had in those counties
_jura regalia_, as fully as the king hath in his palace; _regalem
potestatem in omnibus_, as Bracton expresses it[h]. They might pardon
treasons, murders, and felonies; they appointed all judges and
justices of the peace; all writs and indictments ran in their names,
as in other counties in the king's; and all offences were said to be
done against their peace, and not, as in other places, _contra pacem
domini regis_[i]. And indeed by the antient law, in all peculiar
jurisdictions, offences were said to be done against his peace in
whose court they were tried; in a court leet, _contra pacem domini_;
in the court of a corporation, _contra pacem ballivorum_; in the
sheriff's court or tourn, _contra pacem vice-comitis_[k]. These
palatine privileges were in all probability originally granted to the
counties of Chester and Durham, because they bordered upon enemies
countries, Wales and Scotland; in order that the owners, being
encouraged by so large an authority, might be the more watchful in
it's defence; and that the inhabitants, having justice administered at
home, might not be obliged to go out of the county, and leave it open
to the enemies incursions. And upon this account also there were
formerly two other counties palatine, Pembrokeshire and Hexamshire,
the latter now united with Northumberland: but these were abolished by
parliament, the former in 27 Hen. VIII, the latter in 14 Eliz. And in
27 Hen. VIII likewise, the powers beforementioned of owners of
counties palatine were abridged; the reason for their continuance in a
manner ceasing: though still all writs are witnessed in their names,
and all forfeitures for treason by the common law accrue to them[l].
[Footnote f: Seld. tit. hon. 2. 5. 8.]
[Footnote g: Plowd. 215.]
[Footnote h: _l._ 3. _c._ 8. Sec. 4.]
[Footnote i: 4. Inst. 204.]
[Footnote k: Seld. _in Hengham magn._ _c._ 2.]
[Footnote l: 4 Inst. 205.]
OF these three, the county of Durham is now the only one remaining in
the hands of a subject. For the earldom of Chester, as Camden
testifies, was united to the crown by Henry III, and has ever since
given title to the king's eldest son. And the county palatine, or
duchy, of Lancaster was the property of Henry of Bolinbroke, the son
of John of Gant, at the time when he wrested the crown from king
Richard II, and assumed the title of Henry IV. But he was too prudent
to suffer this to be united to the crown, lest, if he lost one, he
should lose the other also. For, as Plowden[m] and sir Edward Coke[n]
observe, "he knew he had the duchy of Lancaster by sure and
indefeasible title, but that his title to the crown was not so
assured: for that after the decease of Richard II the right of the
crown was in the heir of Lionel duke of Clarence, _second_ son of
Edward III; John of Gant, father to this Henry IV, being but the
_fourth_ son." And therefore he procured an act of parliament, in the
first year of his reign, to keep it distinct and separate from the
crown, and so it descended to his son, and grandson, Henry V, and
Henry VI. Henry VI being attainted in 1 Edw. IV, this duchy was
declared in parliament to have become forfeited to the crown[o], and
at the same time an act was made to keep it still distinct and
separate from other inheritances of the crown. And in 1 Hen. VII
another act was made to vest the inheritance thereof in Henry VII and
his heirs; and in this state, say sir Edward Coke[p] and Lambard[q],
viz. in the natural heirs or posterity of Henry VII, did the right of
the duchy remain to their days; a separate and distinct inheritance
from that of the crown of England[r].
[Footnote m: 215.]
[Footnote n: 4 Inst. 205.]
[Footnote o: 1 Ventr. 155.]
[Footnote p: 4 Inst. 206.]
[Footnote q: Archeion. 233.]
[Footnote r: If this notion of Lambard and Coke be well founded, it
might have become a very curious question at the time of the
revolution in 1688, in whom the right of the duchy remained after king
James's abdication. The attainder indeed of the pretended prince of
Wales (by statute 13 W. III. c. 3.) has now put the matter out of
doubt. And yet, to give that attainder it's full force in this
respect, the object of it must have been supposed legitimate, else he
had no interest to forfeit.]
THE isle of Ely is not a county palatine, though sometimes erroneously
called so; but only a royal franchise; the bishop having, by grant of
king Henry the first, _jura regalia_ within the isle of Ely, and
thereby he exercises a jurisdiction over all causes, as well criminal,
as civil[s].
[Footnote s: 4 Inst. 220.]
THERE are also counties _corporate_; which are certain cities and
towns, some with more, some with less territory annexed to them; to
which out of special grace and favour the kings of England have
granted to be counties of themselves, and not to be comprized in any
other county; but to be governed by their own sheriffs and other
magistrates, so that no officers of the county at large have any power
to intermeddle therein. Such are London, York, Bristol, Norwich,
Coventry, and many others. And thus much of the countries subject to
the laws of England.
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 so very numerous and extensive,
that, in order to consider them with any tolerable ease and
perspicuity, it will be necessary to distribute them methodically,
under proper and distinct heads; avoiding as much as possible
divisions too large and comprehensive on the one hand, and too
trifling and minute on the other; both of which are equally productive
of confusion.
NOW, as municipal law is a rule of civil conduct, commanding what is
right, and prohibiting what is wrong; or, as Cicero[a], and after him
our Bracton[b], has expressed it, _sanctio justa, jubens honesta et
prohibens contraria_; it follows, that the primary and principal
objects of the law are RIGHTS, and WRONGS. In the prosecution
therefore of these commentaries, I shall follow this very simple and
obvious division; and shall in the first place consider the _rights_
that are commanded, and secondly the _wrongs_ that are forbidden by
the laws of England.
[Footnote a: 11 _Philipp._ 12.]
[Footnote b: _l._ 1. _c._ 3.]
RIGHTS are however liable to another subdivision; being either, first,
those which concern, and are annexed to the persons of men, and are
then called _jura personarum_ or the _rights of persons_; or they are,
secondly, such as a man may acquire over external objects, or things
unconnected with his person, which are stiled _jura rerum_ or the
_rights of things_. Wrongs also are divisible into, first, _private
wrongs_, which, being an infringement merely of particular rights,
concern individuals only, and are called civil injuries; and secondly,
_public wrongs_, which, being a breach of general and public rights,
affect the whole community, and are called crimes and misdemesnors.
THE objects of the laws of England falling into this fourfold
division, the present commentaries will therefore consist of the four
following parts: 1. _The rights of persons_; with the means whereby
such rights may be either acquired or lost. 2. _The rights of things_;
with the means also of acquiring and losing them. 3. _Private wrongs_,
or civil injuries; with the means of redressing them by law. 4.
_Public wrongs_, or crimes and misdemesnors; with the means of
prevention and punishment.
WE are now, first, to consider _the rights of persons_; with the means
of acquiring and losing them.
NOW the rights of persons that are commanded to be observed by the
municipal law are of two sorts; first, such as are due _from_ every
citizen, which are usually called civil _duties_; and, secondly, such
as belong _to_ him, which is the more popular acceptation of _rights_
or _jura_. Both may indeed be comprized in this latter division; for,
as all social duties are of a relative nature, at the same time that
they are due _from_ one man, or set of men, they must also be due _to_
another. But I apprehend it will be more clear and easy, to consider
many of them as duties required from, rather than as rights belonging
to, particular persons. Thus, for instance, allegiance is usually, and
therefore most easily, considered as the duty of the people, and
protection as the duty of the magistrate; and yet they are,
reciprocally, the rights as well as duties of each other. Allegiance
is the right of the magistrate, and protection the right of the
people.
PERSONS also are divided by the law into either natural persons, or
artificial. Natural persons are such as the God of nature formed us:
artificial are such as created and devised by human laws for the
purposes of society and government; which are called corporations or
bodies politic.
THE rights of persons considered in their natural capacities are also
of two sorts, absolute, and relative. Absolute, which are such as
appertain and belong to particular men, merely as individuals or
single persons: relative, which are incident to them as members of
society, and standing in various relations to each other. The first,
that is, absolute rights, will be the subject of the present chapter.
BY the absolute _rights_ of individuals we mean those which are so in
their primary and strictest sense; such as would belong to their
persons merely in a state of nature, and which every man is intitled
to enjoy whether out of society or in it. But with regard to the
absolute _duties_, which man is bound to perform considered as a mere
individual, it is not to be expected that any human municipal laws
should at all explain or enforce them. For the end and intent of such
laws being only to regulate the behaviour of mankind, as they are
members of society, and stand in various relations to each other, they
have consequently no business or concern with any but social or
relative duties. Let a man therefore be ever so abandoned in his
principles, or vitious in his practice, provided he keeps his
wickedness to himself, and does not offend against the rules of public
decency, he is out of the reach of human laws. But if he makes his
vices public, though they be such as seem principally to affect
himself, (as drunkenness, or the like) they then become, by the bad
example they set, of pernicious effects to society; and therefore it
is then the business of human laws to correct them. Here the
circumstance of publication is what alters the nature of the case.
_Public_ sobriety is a relative duty, and therefore enjoined by our
laws: _private_ sobriety is an absolute duty, which, whether it be
performed or not, human tribunals can never know; and therefore they
can never enforce it by any civil sanction. But, with respect to
_rights_, the case is different. Human laws define and enforce as well
those rights which belong to a man considered as an individual, as
those which belong to him considered as related to others.
FOR the principal aim of society is to protect individuals in the
enjoyment of those absolute rights, which were vested in them by the
immutable laws of nature; but which could not be preserved in peace
without that mutual assistance and intercourse, which is gained by the
institution of friendly and social communities. Hence it follows, that
the first and primary end of human laws is to maintain and regulate
these _absolute_ rights of individuals. Such rights as are social and
_relative_ result from, and are posterior to, the formation of states
and societies: so that to maintain and regulate these, is clearly a
subsequent consideration. And therefore the principal view of human
laws is, or ought always to be, to explain, protect, and enforce such
rights as are absolute, which in themselves are few and simple; and,
then, such rights as are relative, which arising from a variety of
connexions, will be far more numerous and more complicated. These will
take up a greater space 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 these absolute rights, and provide for their lasting security.
THE absolute rights of man, considered as a free agent, endowed with
discernment to know good from evil, and with power of choosing those
measures which appear to him to be most desirable, are usually summed
up in one general appellation, and denominated the natural liberty of
mankind. This natural liberty consists properly in a power of acting
as one thinks fit, without any restraint or control, unless by the law
of nature: being a right inherent in 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 society, gives up a part
of his natural liberty, as the price of so valuable a purchase; and,
in consideration of receiving the advantages of mutual commerce,
obliges himself to conform to those laws, which the community has
thought proper to establish. And this species of legal obedience and
conformity is infinitely more desirable, than that wild and savage
liberty which is sacrificed to obtain it. For no man, that considers a
moment, would wish to retain the absolute and uncontroled power of
doing whatever he pleases; the consequence of which is, that every
other man would also have the same power; and then there would be no
security to individuals in any of the enjoyments of life. Political
therefore, or civil, liberty, which is that of a member of society, is
no other than natural liberty so far restrained by human laws (and no
farther) as is necessary and expedient for the general advantage of
the publick[c]. Hence we may collect that the law, which restrains a
man from doing mischief to his fellow citizens, though it diminishes
the natural, increases the civil liberty of mankind: but every wanton
and causeless restraint of the will of the subject, whether practiced
by a monarch, a nobility, or a popular assembly, is a degree of
tyranny. Nay, that even laws themselves, whether made with or without
our consent, if they regulate and constrain our conduct in matters of
mere indifference, without any good end in view, are laws destructive
of liberty: whereas if any public advantage can arise from observing
such precepts, the control of our private inclinations, in one or two
particular points, will conduce to preserve our general freedom in
others of more importance; by supporting that state, of society, which
alone can secure our independence. Thus the statute of king Edward
IV[d], which forbad the fine gentlemen of those times (under the
degree of a lord) to wear pikes upon their shoes or boots of more than
two inches in length, was a law that savoured of oppression; because,
however ridiculous the fashion then in use might appear, the
restraining it by pecuniary penalties could serve no purpose of common
utility. But the statute of king Charles II[e], which prescribes a
thing seemingly as indifferent; viz. a dress for the dead, who are all
ordered to be buried in woollen; is a law consistent with public
liberty, for it encourages the staple trade, on which in great measure
depends the universal good of the nation. So that laws, when prudently
framed, are by no means subversive but rather introductive of liberty;
for (as Mr Locke has well observed[f]) where there is no law, there is
no freedom. But then, on the other hand, that constitution or frame of
government, that system of laws, is alone calculated to maintain civil
liberty, which leaves the subject entire master of his own conduct,
except in those points wherein the public good requires some direction
or restraint.
[Footnote c: _Facultas ejus, quod cuique facere libet, nisi quid jure
prohibetur._ _Inst._ 1. 3. 1.]
[Footnote d: 3 Edw. IV. c. 5.]
[Footnote e: 30 Car. II. st. 1. c. 3.]
[Footnote f: on Gov. p. 2. Sec. 57.]
THE idea and practice of this political or civil liberty flourish in
their highest vigour in these kingdoms, where it falls little short
of perfection, and can only be lost or destroyed by the folly or
demerits of it's owner: the legislature, and of course the laws of
England, being peculiarly adapted to the preservation of this
inestimable blessing even in the meanest subject. Very different from
the modern constitutions of other states, on the continent of Europe,
and from the genius of the imperial law; which in general are
calculated to vest an arbitrary and despotic power of controlling the
actions of the subject in the prince, or in a few grandees. And this
spirit of liberty is so deeply implanted in our constitution, and
rooted even in our very soil, that a slave 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 instanti_ a freeman[g].
[Footnote g: Salk. 666.]
THE absolute rights of every Englishman (which, taken in a political
and extensive sense, are usually called their liberties) as they are
founded on nature and reason, so they are coeval with our form of
government; though subject at times to fluctuate and change: their
establishment (excellent as it is) being still human. At some times we
have seen them depressed by overbearing and tyrannical princes; at
others so luxuriant as even to tend to anarchy, a worse state than
tyranny itself, as any government is better than none at all. But the
vigour of our free constitution has always delivered the nation from
these embarrassments, and, as soon as the convulsions consequent on
the struggle have been over, the ballance of our rights and liberties
has settled to it's proper level; and their fundamental articles have
been from time to time asserted in parliament, as often as they were
thought to be in danger.
FIRST, by the great charter of liberties, which was obtained, sword in
hand, from king John; and afterwards, with some alterations, confirmed
in parliament by king Henry the third, his son. Which charter
contained very few new grants; but, as sir Edward Coke[h] observes,
was for the most part declaratory of the principal grounds of the
fundamental laws of England. Afterwards by the statute 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 sent to all cathedral churches,
and read twice a year to the people; and sentence of excommunication
is directed to be as constantly denounced against all those that by
word, deed, or counsel act contrary thereto, or in any degree infringe
it. Next by a multitude of subsequent corroborating statutes, (sir
Edward Coke, I think, reckons thirty two[k],) from the first Edward to
Henry the fourth. Then, after a long interval, by _the petition of
right_; which was a parliamentary declaration of the liberties of the
people, assented to by king Charles the first in the beginning of his
reign. Which was closely followed by the still more ample concessions
made by that unhappy prince to his parliament, before the fatal
rupture between them; and by the many salutary laws, particularly the
_habeas corpus_ act, passed under Charles the second. To these
succeeded _the bill of rights_, or declaration delivered by the lords
and commons to the prince and princess of Orange 13 February 1688; and
afterwards enacted in parliament, when they became king and queen:
which declaration concludes in these remarkable words; "and they do
claim, demand, and insist upon all and singular the premises, as their
undoubted rights and liberties." And the act of parliament itself[l]
recognizes "all and singular the rights and liberties asserted and
claimed in the said declaration to be the true, antient, and
indubitable rights of the people of this kingdom." Lastly, these
liberties were again asserted at the commencement of the present
century, in the _act of settlement_[m], whereby the crown is limited
to his present majesty's illustrious house, and some new provisions
were added at the same fortunate aera for better securing our
religion, laws, and liberties; which the statute declares to be "the
birthright of the people of England;" according to the antient
doctrine of the common law[n].
[Footnote h: 2 Inst. proem.]
[Footnote i: 25 Edw. I.]
[Footnote k: 2 Inst. proem.]
[Footnote l: 1 W. and M. st. 2. c. 2.]
[Footnote m: 12 & 13 W. III. c. 2.]
[Footnote n: Plowd. 55.]
THUS much for the _declaration_ of our rights and liberties. The
rights themselves thus defined by these several statutes, consist in a
number of private immunities; which will appear, from what has been
premised, to be indeed no other, than either that _residuum_ of
natural liberty, which is not required by the laws of society to be
sacrificed to public convenience; or else those civil privileges,
which society hath engaged to provide, in lieu of the natural
liberties so given up by individuals. These therefore were formerly,
either by inheritance or purchase, the rights of all mankind; but, in
most other countries of the world being now more or less debased and
destroyed, they at present may be said to remain, in a peculiar and
emphatical manner, the rights of the people of England. And these may
be reduced to three principal or primary articles; the right of
personal security, the right of personal liberty; and the right of
private property: because as there is no other known method of
compulsion, or of abridging man's natural free will, but by an
infringement or diminution of one or other of these important rights,
the preservation of these, inviolate, may justly be said to include
the preservation of our civil immunities in their largest and most
extensive sense.
I. THE right of personal security consists in a person'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 soon as an
infant is able to stir in the mother's womb. For if a woman is quick
with child, and by a potion, or otherwise, killeth it in her womb; or
if any one beat her, whereby the child dieth in her body, and she is
delivered of a dead child; this, though not murder, was by the antient
law homicide or manslaughter[o]. But at present it is not looked upon
in quite so atrocious a light, though it remains a very heinous
misdemesnor[p].
[Footnote o: _Si aliquis mulierem praegnantem percusserit, vel ei
venenum dederit, per quod fecerit abortivam; si puerperium jam
formatum fuerit, et maxime si fuerit animatum, facit homicidium._
Bracton. _l._ 3. _c._ 21.]
[Footnote p: 3 Inst. 90.]
AN infant _in ventre sa mere_, or in the mother's womb, is supposed in
law to be born for many purposes. It is capable of having a legacy, or
a surrender of a copyhold estate made to it. It may have a guardian
assigned to it[q]; and it is enabled to have an estate limited to it's
use, and to take afterwards by such limitation, as if it were then
actually born[r]. And in this point the civil law agrees with ours[s].
[Footnote q: Stat. 12 Car. II. c. 24.]
[Footnote r: Stat. 10 & 11 W. III. c. 16.]
[Footnote s: _Qui in utero sunt, in jure civili intelliguntur in rerum
natura esse, cum de eorum commodo agatur._ _Ff._ 1. 5. 26.]
2. A MAN'S limbs, (by which for the present we only understand those
members which may be useful to him in fight, and the loss of which
only amounts to mayhem by the common law) are also the gift of the
wise creator; to enable man to protect himself from external injuries
in a state of nature. To these therefore he has a natural inherent
right; and they cannot be wantonly destroyed or disabled without a
manifest breach of civil liberty.