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, 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.
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.
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[**typo for gaoler?] 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.
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.
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.
III.
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.
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.
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.
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.
of which I shall treat at large in the ensuing chapter.
2.
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.
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 Coke[t]) is ever
present and repeating them in all his courts, are these; "nulli
vendemus, nulli negabimus, aut differemus rectum vel justitiam:
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.
law, but also the formal part, or method of proceeding, cannot
be altered but by parliament: for if once those outworks were
demolished, there would be no inlet to all manner of innovation
in the body of the law itself. The king, it is true, may erect
new courts of justice; but then they must proceed according to
the old established forms of the common law. For which reason
it is declared in the statute 16 Car. I. c. 10. upon the dissolution of
the court of starchamber, that neither his majesty, nor his privy
council, have any jurisdiction, power, or authority by English
bill, petition, articles, libel (which were the course of proceeding
in the starchamber, borrowed from the civil law) or by any
other arbitrary way whatsoever, to examine, or draw into question,
determine or dispose of the lands or goods of any subjects
of this kingdom; but that the same ought to be tried and
determined in the ordinary courts of justice, and by course of
law.
4.
of the rights beforementioned, which the ordinary course
of law is too defective to reach, there still remains a fourth subordinate
right appertaining to every individual, namely, the right
of petitioning the king, or either house of parliament, for the
redress of grievances. In Russia we are told[w] that the czar Peter
established a law, that no subject might petition the throne, till
he had first petitioned two different ministers of state. In case
he obtained justice from neither, he might then present a third
petition to the prince; but upon pain of death, if found to be
in the wrong. The consequence of which was, that no one dared
to offer such third petition; and grievances seldom falling under
the notice of the sovereign, he had little opportunity to redress
them. The restrictions, for some there are, which are laid upon
petitioning in England, are of a nature extremely different; and
while they promote the spirit of peace, they are no check upon
that of liberty. Care only must be taken, lest, under the pretence
of petitioning, the subject be guilty of any riot or tumult;
as happened in the opening of the memorable parliament in
1640: and, to prevent this, it is provided by the statute 13 Car. II.
st. 1. c. 5. that no petition to the king, or either house of parliament,
for any alterations in church or state, shall be signed by
above twenty persons, unless the matter thereof be approved by
three justices of the peace or the major part of the grand jury,
in the country; and in London by the lord mayor, aldermen,
and common council; nor shall any petition be presented by more
than two persons at a time. But under these regulations, it is
declared by the statute 1 W. & M. st. 2. c. 2. that the subject hath
a right to petition; and that all commitments and prosecutions
for such petitioning are illegal.
5.
shall at present mention, is that of having arms for their defence,
suitable to their condition and degree, and such as are allowed by
law. Which is also declared by the same statute 1 W. & M.
st. 2. c. 2. and is indeed a public allowance, under due restrictions,
of the natural right of resistance and self-preservation,
when the sanctions of society and laws are found insufficient to
restrain the violence of oppression.
termed, the liberties of Englishmen: liberties more
generally talked of, than thoroughly understood; and yet highly
necessary to be perfectly known and considered by every man of
rank or property, lest his ignorance of the points whereon it is
founded should hurry him into faction and licentiousness on the
one hand, or a pusillanimous indifference and criminal submission
on the other. And we have seen that these rights consist, primarily,
in the free enjoyment of personal security, of personal liberty,
and of private property. So long as these remain inviolate,
the subject is perfectly free; for every species of compulsive tyranny
and oppression must act in opposition to one or other of
these rights, having no other object upon which it can possibly
be employed. To preserve these from violation, it is necessary
that the constitution of parliaments be supported in it's full vigor;
and limits certainly known, be set to the royal prerogative. And,
lastly, to vindicate these rights, when actually violated or attacked,
the subjects of England are entitled, in the first place, to
the regular administration and free course of justice in the courts
of law; next to the right of petitioning the king and parliament
for redress of grievances; and lastly to the right of having and
using arms for self-preservation and defence. And all these rights
and liberties it is our birthright to enjoy entire; unless where the
laws of our country have laid them under necessary restraints.
Restraints in themselves so gentle and moderate, as will appear
upon farther enquiry, that no man of sense or probity would
wish to see them slackened. For all of us have it in our choice
to do every thing that a good man would desire to do; and are
restrained from nothing, but what would be pernicious either to
ourselves or our fellow citizens. So that this review of our situation
may fully justify the observation of a learned French author,
who indeed generally both thought and wrote in the spirit of
genuine freedom[x]; and who hash not scrupled to profess, even
in the very bosom of his native country, that the English is the
only nation in the world, where political or civil liberty is the
direct end of it's constitution. Recommending therefore to the
student in our laws a farther and more accurate search into this
extensive and important title, I shall close my remarks upon it
with the expiring wish of the famous father Paul to his country,
"
