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.
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
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.
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.
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.
the means of acquiring and losing them.
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.
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.
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.
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.
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.
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.
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].
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.
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].
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.
and uninterrupted enjoyment of his life, his limbs, his body, his
health, and his reputation.
1.
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].
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].
2.
those members which may be useful to him in sight,
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.
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 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].
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.
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].
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.
3.
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.
may prejudice or annoy it, and
5.
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.
