Commentaries on the Laws of England Part 10

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 munic.i.p.al 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 princ.i.p.al 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 munic.i.p.al 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 G.o.d 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 int.i.tled 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 munic.i.p.al 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 princ.i.p.ally 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 circ.u.mstance 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 princ.i.p.al 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 a.s.sistance and intercourse, which is gained by the inst.i.tution 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 princ.i.p.al 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 s.p.a.ce 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 G.o.d 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 n.o.bility, or a popular a.s.sembly, 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 const.i.tution 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. --. 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 const.i.tutions 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 const.i.tution, 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 const.i.tution has always delivered the nation from these embarra.s.sments, 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 a.s.serted 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 c.o.ke[h] observes, was for the most part declaratory of the princ.i.p.al 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 mult.i.tude of subsequent corroborating statutes, (sir Edward c.o.ke, I think, reckons thirty two[k],) from the first Edward to Henry the fourth. Then, after a long interval, by _the pet.i.tion of right_; which was a parliamentary declaration of the liberties of the people, a.s.sented 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, pa.s.sed 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 a.s.serted 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 a.s.serted at the commencement of the present century, in the _act of settlement_[m], whereby the crown is limited to his present majesty's ill.u.s.trious 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 princ.i.p.al 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 G.o.d, 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 a.s.signed 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, c.u.m de eorum commodo agatur._ _Ff._ 1. 5. 26.]