estimation of the law of England, that it pardons even homicide if
committed _se defendendo_, or in order to preserve them. For whatever
is done by a man, to save either life or member, is looked upon as
done upon the highest necessity and compulsion. Therefore if a man
through fear of death or mayhem is prevailed upon to execute a deed,
or do any other legal act; these, though accompanied with all other
the requisite solemnities, are totally void in law, if forced upon him
by a well-grounded apprehension of losing his life, or even his limbs,
in case of his non-compliance[t]. And the same is also a sufficient
excuse for the commission of many misdemesnors, as will appear in the
fourth book. The constraint a man is under in these circumstances is
called in law _duress_, from the Latin _durities_, of which there are
two sorts; duress of imprisonment, where a man actually loses his
liberty, of which we shall presently speak; and duress _per minas_,
where the hardship is only threatened and impending, which is that we
are now discoursing of. Duress _per minas_ is either for fear of loss
of life, or else for fear of mayhem, or loss of limb. And this fear
must be upon sufficient reason; "_non_," as Bracton expresses it,
"_suspicio cujuslibet vani et meticulosi hominis, sed talis qui possit
cadere in virum constantem; talis enim debet esse metus, qui in se
contineat vitae periculum, aut corporis cruciatum_[u]." A fear of
battery, or being beaten, though never so well grounded, is no duress;
neither is the fear of having one's house burnt, or one's goods taken
away and destroyed; because in these cases, should the threat be
performed, a man may have satisfaction by recovering equivalent
damages[w]: but no suitable atonement can be made for the loss of
life, or limb. And the indulgence shewn to a man under this, the
principal, sort of duress, the fear of losing his life or limbs,
agrees also with that maxim of the civil law; _ignoscitur ei qui
sanguinem suum qualiter qualiter redemptum voluit_[x].
[Footnote t: 2 Inst. 483.]
[Footnote u: _l._ 2. _c._ 5.]
[Footnote w: 2 Inst. 483.]
[Footnote x: _Ff._ 48. 21. 1.]
THE law not only regards life and member, and protects every man in
the enjoyment of them, but also furnishes him with every thing
necessary for their support. For there is no man so indigent or
wretched, but he may demand a supply sufficient for all the
necessities of life, from the more opulent part of the community, by
means of the several statutes enacted for the relief of the poor, of
which in their proper places. A humane provision; yet, though dictated
by the principles of society, discountenanced by the Roman laws. For
the edicts of the emperor Constantine, commanding the public to
maintain the children of those who were unable to provide for them, in
order to prevent the murder and exposure of infants, an institution
founded on the same principle as our foundling hospitals, though
comprized in the Theodosian code[y], were rejected in Justinian's
collection.
[Footnote y: _l._ 11. _t._ 27.]
THESE rights, of life and member, can only be determined by the death
of the person; which is either a civil or natural death. The civil
death commences if any man be banished the realm[z] by the process of
the common law, or enters into religion; that is, goes into a
monastery, and becomes there a monk professed: in which cases he is
absolutely dead in law, and his next heir shall have his estate. For,
such banished man is entirely cut off from society; and such a monk,
upon his profession, renounces solemnly all secular concerns: and
besides, as the popish clergy claimed an exemption from the duties of
civil life, and the commands of the temporal magistrate, the genius of
the English law would not suffer those persons to enjoy the benefits
of society, who secluded themselves from it, and refused to submit 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 testament and executors; or, if he makes none, the ordinary
may grant administration to his next of kin, as if he were actually
dead intestate. And such executors and administrators shall have the
same power, and may bring the same actions for debts due _to_ the
religious, and are liable to the same actions for those due _from_
him, as if he were naturally deceased[b]. Nay, so far has this
principle been carried, that when one was bound in a bond to an abbot
and his successors, and afterwards made his executors and professed
himself a monk of the same abbey, and in process of time was himself
made abbot thereof; here the law gave him, in the capacity of abbot,
an action of debt against his own executors to recover the money
due[c]. In short, a monk or religious is so effectually dead in law,
that a lease made even to a third person, during the life (generally)
of one who afterwards becomes a monk, determines by such his entry
into religion: for which reason leases, and other conveyances, for
life, are usually made to have and to hold for the term of one's
_natural_ life[d].
[Footnote z: Co. Litt. 133.]
[Footnote a: This was also a rule in the feodal law, _l._ 2. _t._ 21.
_desiit esse miles seculi, qui factus est miles Christi; nec
beneficium pertinet ad eum qui non debet gerere officium_.]
[Footnote b: Litt. Sec. 200.]
[Footnote c: Co. Litt. 133 _b._]
[Footnote d: 2 Rep. 48. Co. Litt. 132.]
THIS natural life being, as was before observed, the immediate
donation of the great creator, cannot legally be disposed of or
destroyed by any individual, neither by the person himself nor by any
other of his fellow creatures, merely upon their own authority. Yet
nevertheless it may, by the divine permission, be frequently forfeited
for the breach of those laws of society, which are enforced by the
sanction of capital punishments; of the nature, restrictions,
expedience, and legality of which, we may hereafter more conveniently
enquire in the concluding book of these commentaries. At present, I
shall only observe, that whenever the _constitution_ of a state vests
in any man, or body of men, a power of destroying at pleasure, without
the direction of laws, the lives or members of the subject, such
constitution is in the highest degree tyrannical: and that whenever
any _laws_ direct such destruction for light and trivial causes, such
laws are likewise tyrannical, though in an inferior degree; because
here the subject is aware of the danger he is exposed to, and may by
prudent caution provide against it. The statute law of England does
therefore very seldom, and the common law does never, inflict any
punishment extending to life or limb, unless upon the highest
necessity: and the constitution is an utter stranger to any arbitrary
power of killing or maiming the subject without the express warrant of
law. "_Nullus liber homo_, says the great charter[e], _aliquo modo
destruatur, nisi per legale judicium parium suorum aut per legem
terrae._" Which words, "_aliquo modo destruatur_," according to sir
Edward Coke[f], include a prohibition not only of _killing_, and
_maiming_, but also of _torturing_ (to which our laws are strangers)
and of every oppression by colour of an illegal authority. And it is
enacted by the statute 5 Edw. III. c. 9. that no man shall be
forejudged of life or limb, contrary to the great charter and the law
of the land: and again, by statute 28 Ed. III. c. 3. that no man
shall be put to death, without being brought to answer by due process
of law.
[Footnote e: c. 29.]
[Footnote f: 2 Inst. 48.]
3. BESIDES those limbs and members that may be necessary to man, in
order to defend himself or annoy his enemy, the rest of his person or
body is also entitled by the same natural right to security from the
corporal insults of menaces, assaults, beating, and wounding; though
such insults amount not to destruction of life or member.
4. THE preservation of a man's health from such practices as may
prejudice or annoy it, and
5. THE security of his reputation or good name from the arts of
detraction and slander, are rights to which every man is intitled, by
reason and natural justice; since without these it is impossible to
have the perfect enjoyment of any other advantage or right. But these
three last articles (being of much less importance than those which
have gone before, and those which are yet to come) it will suffice to
have barely mentioned among the rights of persons; referring the more
minute discussion of their several branches, to those parts of our
commentaries which treat of the infringement of these rights, under
the head of personal wrongs.
II. NEXT to personal security, the law of England regards, asserts,
and preserves the personal liberty of individuals. This personal
liberty consists in the power of loco-motion, of changing situation,
or removing one's person to whatsoever place one's own inclination may
direct; without imprisonment or restraint, unless by due course of
law. Concerning which we may make the same observations as upon the
preceding article; that it is a right strictly natural; that the laws
of England have never abridged it without sufficient cause; and, that
in this kingdom it cannot ever be abridged at the mere discretion of
the magistrate, without the explicit permission of the laws. Here
again the language of the great charter[g] is, that no freeman shall
be taken or imprisoned, but by the lawful judgment of his equals, or
by the law of the land. And many subsequent old statutes[h] expressly
direct, that no man shall be taken or imprisoned by suggestion or
petition to the king, or his council, unless it be by legal
indictment, or the process of the common law. By the petition of
right, 3 Car. I, it is enacted, that no freeman shall be imprisoned or
detained without cause shewn, to which he may make answer according to
law. By 16 Car. I. c. 10. if any person be restrained of his liberty
by order or decree of any illegal court, or by command of the king's
majesty in person, or by warrant of the council board, or of any of
the privy council; he shall, upon demand of his counsel, have a writ
of _habeas corpus_, to bring his body before the court of king's bench
or common pleas; who shall determine whether the cause of his
commitment be just, and thereupon do as to justice shall appertain.
And by 31 Car. II. c. 2. commonly called _the habeas corpus act_, the
methods of obtaining this writ are so plainly pointed out and
enforced, that, so long as this statute remains unimpeached, no
subject of England can be long detained in prison, except in those
cases in which the law requires and justifies such detainer. And, lest
this act should be evaded by demanding unreasonable bail, or sureties
for the prisoner's appearance, it is declared by 1 W. & M. st. 2. c.
2. that excessive bail ought not to be required.
[Footnote g: c. 29.]
[Footnote h: 5 Edw. III. c. 9. 25 Edw. III. st. 5. c. 4. and 28 Edw.
III. c. 3.]
OF great importance to the public is the preservation of this personal
liberty: for if once it were left in the power of any, the highest,
magistrate to imprison arbitrarily whomever he or his officers thought
proper, (as in France it is daily practiced by the crown) there would
soon be an end of all other rights and immunities. Some have thought,
that unjust attacks, even upon life, or property, at the arbitrary
will of the magistrate, are less dangerous to the commonwealth, than
such as are made upon the personal liberty of the subject. To bereave
a man of life, or by violence to confiscate his estate, without
accusation or trial, would be so gross and notorious an act of
despotism, as must at once convey the alarm of tyranny throughout the
whole kingdom. But confinement of the person, by secretly hurrying him
to gaol, where his sufferings are unknown or forgotten; is a less
public, a less striking, and therefore a more dangerous engine of
arbitrary government. And yet sometimes, when the state is in real
danger, even this may be a necessary measure. But the happiness of our
constitution is, that it is not left to the executive power to
determine when the danger of the state is so great, as to render this
measure expedient. For the parliament only, or legislative power,
whenever it sees proper, can authorize the crown, by suspending the
_habeas corpus_ act for a short and limited time, to imprison
suspected persons without giving any reason for so doing. As the
senate of Rome was wont to have recourse to a dictator, a magistrate
of absolute authority, when they judged the republic in any imminent
danger. The decree of the senate, which usually preceded the
nomination of this magistrate, "_dent operam consules, nequid
respublica detrimenti capiat_," was called the _senatus consultum
ultimae necessitatis_. In like manner this experiment ought only to be
tried in cases of extreme emergency; and in these the nation parts
with it's liberty for a while, in order to preserve it for ever.
THE confinement of the person, in any wise, is an imprisonment. So
that the keeping a man against his will in a private house, putting
him in the stocks, arresting or forcibly detaining him in the street,
is an imprisonment[i]. And the law so much discourages unlawful
confinement, that if a man is under _duress of imprisonment_, which we
before explained to mean a compulsion by an illegal restraint of
liberty, until he seals a bond or the like; he may alledge this
duress, and avoid the extorted bond. But if a man be lawfully
imprisoned, and either to procure his discharge, or on any other fair
account, seals a bond or a deed, this is not by duress of
imprisonment, and he is not at liberty to avoid it[k]. To make
imprisonment lawful, it must either be, by process from the courts of
judicature, or by warrant from some legal officer, having authority
to commit to prison; which warrant must be in writing, under the hand
and seal of the magistrate, and express the causes of the commitment,
in order to be examined into (if necessary) upon a _habeas corpus_. If
there be no cause expressed, the goaler is not bound to detain the
prisoner[l]. For the law judges in this respect, saith sir Edward
Coke, like Festus the Roman governor; that it is unreasonable to send
a prisoner, and not to signify withal the crimes alleged against him.
[Footnote i: 2 Inst. 589.]
[Footnote k: 2 Inst. 482.]
[Footnote l: 2 Inst. 52, 53.]
A NATURAL and regular consequence of this personal liberty, is, that
every Englishman may claim a right to abide in his own country so long
as he pleases; and not to be driven from it unless by the sentence of
the law. The king indeed, by his royal prerogative, may issue out his
writ _ne exeat regnum_, and prohibit any of his subjects from going
into foreign parts without licence[m]. This may be necessary for the
public service, and safeguard of the commonwealth. But no power on
earth, except the authority of parliament, can send any subject of
England _out of_ the land against his will; no not even a criminal.
For exile, or transportation, is a punishment unknown to the common
law; and, wherever it is now inflicted, it is either by the choice of
the criminal himself, to escape a capital punishment, or else by the
express direction of some modern act of parliament. To this purpose
the great charter[n] declares that no freeman shall be banished,
unless by the judgment of his peers, or by the law of the land. And by
the _habeas corpus_ act, 31 Car. II. c. 2. (that second _magna carta_,
and stable bulwark of our liberties) it is enacted, that no subject of
this realm, who is an inhabitant of England, Wales, or Berwick, shall
be sent prisoner into Scotland, Ireland, Jersey, Guernsey, or places
beyond the seas; (where they cannot have the benefit and protection of
the common law) but that all such imprisonments shall be illegal; that
the person, who shall dare to commit another contrary to this law,
shall be disabled from bearing any office, shall incur the penalty of
a praemunire, and be incapable of receiving the king's pardon: and
the party suffering shall also have his private action against the
person committing, and all his aiders, advisers and abettors, and
shall recover treble costs; besides his damages, which no jury shall
assess at less than five hundred pounds.
[Footnote m: F.N.B. 85.]
[Footnote n: cap. 29.]
THE law is in this respect so benignly and liberally construed for the
benefit of the subject, that, though _within_ the realm the king may
command the attendance and service of all his liege-men, yet he cannot
send any man _out of_ the realm, even upon the public service: he
cannot even constitute a man lord deputy or lieutenant of Ireland
against his will, nor make him a foreign embassador[o]. For this might
in reality be no more than an honorable exile.
[Footnote o: 2 Inst. 47.]
III. THE third absolute right, inherent in every Englishman, is that
of property; which consists in the free use, enjoyment, and disposal
of all his acquisitions, without any control or diminution, save 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 second book
of the ensuing commentaries: but certainly the modifications under
which we at present find it, the method of conserving it in the
present owner, and of translating it from man to man, are entirely
derived from society; and are some of those civil advantages, in
exchange for which every individual has resigned a part of his natural
liberty. The laws of England are therefore, in point of honor and
justice, extremely watchful in ascertaining and protecting this right.
Upon this principle the great charter[p] has declared that no freeman
shall be disseised, or divested, of his freehold, or of his liberties,
or free customs, but by the judgment of his peers, or by the law of
the land. And by a variety of antient statutes[q] it is enacted, that
no man's lands or goods shall be seised into the king's hands, against
the great charter, and the law of the land; and that no man shall be
disinherited, nor put out of his franchises or freehold, unless he be
duly brought to answer, and be forejudged by course of law; and if any
thing be done to the contrary, it shall be redressed, and holden for
none.
[Footnote p: c. 29.]
[Footnote q: 5 Edw. III. c. 9. 25 Edw. III. st. 5. c. 4. 28 Edw. III.
c. 3.]
SO great moreover is the regard of the law for private property, that
it will not authorize the least violation of it; no, not even for the
general good of the whole community. If a new road, for instance, were
to be made through the grounds of a private person, it might perhaps
be extensively beneficial to the public; but the law permits no man,
or set of men, to do this without consent 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. Besides, the
public good is in nothing more essentially interested, than in the
protection of every individual's private rights, as modelled by the
municipal law. In this, and similar cases the legislature alone can,
and indeed frequently does, interpose, and compel the individual to
acquiesce. But how does it interpose and compel? Not by absolutely
stripping the subject of his property in an arbitrary manner; but by
giving him a full indemnification and equivalent for the injury
thereby sustained. The public is now considered as an individual,
treating with an individual for an exchange. All that the legislature
does is to oblige the owner to alienate his possessions for a
reasonable price; and even this is an exertion of power, which the
legislature indulges with caution, and which nothing but the
legislature can perform.
NOR is this the only instance in which the law of the land has
postponed even public necessity to the sacred and inviolable rights of
private property. For no subject of England can be constrained to pay
any aids or taxes, even for the defence of the realm or the support of
government, but such as are imposed by his own consent, or that of his
representatives in parliament. By the statute 25 Edw. I. c. 5 and 6.
it is provided, that the king shall not take any aids or tasks, but
by the common assent of the realm. And what that common assent is, is
more fully explained by 34 Edw. I. st. 4. cap. 1. which enacts, that
no talliage or aid shall be taken without assent of the arch-bishops,
bishops, earls, barons, knights, burgesses, and other freemen of the
land[r]: and again by 14 Edw. III. st. 2. c. 1. the prelates, earls,
barons, and commons, citizens, burgesses, and merchants shall not be
charged to make any aid, if it be not by the common assent of the
great men and commons in parliament. And as this fundamental law had
been shamefully evaded under many succeeding princes, by compulsive
loans, and benevolences extorted without a real and voluntary consent,
it was made an article in the petition of right 3 Car. I, that no man
shall be compelled to yield any gift, loan, or benevolence, tax, or
such like charge, without common consent by act of parliament. And,
lastly, by the statute 1 W. & M. st. 2. c. 2. it is declared, that
levying money for or to the use of the crown, by pretence of
prerogative, without grant of parliament; or for longer time, or in
other manner, than the same is or shall be granted, is illegal.
[Footnote r: See the historical introduction to the great charter, &c,
_sub anno_ 1297; wherein it is shewn that this statute _de talliagio
non concedendo_, supposed to have been made in 34 Edw. I, is in
reality nothing more than a sort of translation into Latin of the
_confirmatio cartarum_, 25 Edw. I, which was originally published in
the Norman language.]
IN the three preceding articles we have taken a short view of the
principal absolute rights which appertain to every Englishman. But in
vain would these rights be declared, ascertained, and protected by the
dead letter of the laws, if the constitution had provided no other
method to secure their actual enjoyment. It has therefore established
certain other auxiliary subordinate rights of the subject, which serve
principally as barriers to protect and maintain inviolate the three
great and primary rights, of personal security, personal liberty, and
private property. These are,
1. THE constitution, powers, and privileges of parliament, of which I
shall treat at large in the ensuing chapter.
2. THE limitation of the king's prerogative, by bounds so certain and
notorious, that it is impossible he should exceed them without the
consent of the people. Of this also I shall treat in it's proper
place. The former of these keeps the legislative power in due health
and vigour, so as to make it improbable that laws should be enacted
destructive of general liberty: the latter is a guard upon the
executive power, by restraining it from acting either beyond or in
contradiction to the laws, that are framed and established by the
other.