Commentaries on the Laws of England Part 11

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.

BOTH the life and limbs of a man are of such high value, in the 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 circ.u.mstances 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 princ.i.p.al, 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 inst.i.tution 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. --. 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 _const.i.tution_ 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 const.i.tution 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 const.i.tution is an utter stranger to any arbitrary power of killing or maiming the subject without the express warrant of law. "_Nullus liber h.o.m.o_, 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 c.o.ke[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 ent.i.tled by the same natural right to security from the corporal insults of menaces, a.s.saults, 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 int.i.tled, 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, a.s.serts, 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 pet.i.tion to the king, or his council, unless it be by legal indictment, or the process of the common law. By the pet.i.tion 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 const.i.tution 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 c.o.ke, 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 a.s.sess 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 const.i.tute a man lord deputy or lieutenant of Ireland against his will, nor make him a foreign emba.s.sador[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 munic.i.p.al 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 a.s.sent of the realm. And what that common a.s.sent is, is more fully explained by 34 Edw. I. st. 4. cap. 1. which enacts, that no talliage or aid shall be taken without a.s.sent 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 a.s.sent 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 pet.i.tion 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 princ.i.p.al 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 const.i.tution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve princ.i.p.ally 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 const.i.tution, 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.

3. A THIRD subordinate right of every Englishman is that of applying to the courts of justice for redress of injuries. Since the law is in England the supreme arbiter of every man's life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administred therein. The emphatical words of _magna carta_[s], spoken in the person of the king, who in judgment of law (says sir Edward c.o.ke[t]) is ever present and repeating them in all his courts, are these; "_nulli vendemus, nulli negabimus, aut differemus r.e.c.t.u.m vel just.i.tiam_: and therefore every subject,"

continues the same learned author, "for injury done to him _in bonis, in terris, vel persona_, by any other subject, be he ecclesiastical or temporal without any exception, may take his remedy by the course of the law, and have justice and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay."

It were endless to enumerate all the _affirmative_ acts of parliament wherein justice is directed to be done according to the law of the land: and what that law is, every subject knows; or may know if he pleases: for it depends not upon the arbitrary will of any judge; but is permanent, fixed, and unchangeable, unless by authority of parliament. I shall however just mention a few _negative_ statutes, whereby abuses, perversions, or delays of justice, especially by the prerogative, are restrained. It is ordained by _magna carta_[u], that no freeman shall 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 shall be sent under the great seal, or the little seal, the signet, or privy seal, in disturbance of the law; or to disturb or delay common right: and, though such commandments should come, the judges shall not cease to do right. And by 1 W. & M. st. 2. c. 2. it is declared, that the pretended power of suspending, or dispensing with laws, or the execution of laws, by regal authority without consent of parliament, is illegal.

[Footnote s: c. 29.]

[Footnote t: 2 Inst. 55.]