Blackstone, ss 14

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, 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.

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[**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.

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.

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.

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.

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.

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.

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 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.

Not only the substantial part, or judicial decisions, of the
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. If there should happen any uncommon injury, or infringement
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. The fifth and last auxiliary right of the subject, that I
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.

In these several articles consist the rights, or, as they are frequently
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,
"Esto perpetua!"

Blackstone, ss 13

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 municipal 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
principal 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.

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 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.

Persons also are divided by the law into either natural persons,
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.

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 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.

For the principal 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 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.

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 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.

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 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].

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 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.

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 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].

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 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. 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 God, 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].

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 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. A man's limbs, (by which for the present we only understand
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.

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 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].

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.

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].

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.

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.

Blackstone, ss 02

The Roman pandects will furnish us with a piece of history
not unapplicable to our present purpose. Servius Sulpicius, a
gentleman of the patrician order, and a celebrated orator, had
occasion to take the opinion of Quintus Mutius Scaevola, the
oracle of the Roman law; but for want of some knowlege in
that science, could not so much as understand even the technical
terms, which his friend was obliged to make use of. Upon which
Mutius Scaevola could not forbear to upbraid him with this memorable
reproof[g], "that it was a shame for a patrician, a nobleman,
and an orator of causes, to be ignorant of that law in
which he was so peculiarly concerned." This reproach made so
deep an impression on Sulpicius, that he immediately applied
himself to the study of the law; wherein he arrived to that proficiency, that he left behind him about a hundred and fourscore
volumes of his own compiling upon the subject; and became, in
the opinion of Cicero[h], a much more complete lawyer than even
Mutius Scaevola himself.

I would not be thought to recommend to our English nobility
and gentry to become as great lawyers as Sulpicius; though
he, together with this character, sustained likewise that of an
excellent orator, a firm patriot, and a wise indefatigable senator;
but the inference which arises from the story is this, that ignorance
of the laws of the land hath ever been esteemed dishonourable,
in those who are entrusted by their country to maintain, to
administer, and to amend them.

But surely there is little occasion to enforce this argument
any farther to persons of rank and distinction, if we of this place
may be allowed to form a general judgment from those who are
under our inspection: happy, that while we lay down the rule,
we can also produce the example. You will therefore permit your
professor to indulge both a public and private satisfaction, by
bearing this open testimony; that in the infancy of these studies
among us, they were favoured with the most diligent attendance,
and pursued with the most unwearied application, by those of the
noblest birth and most ample patrimony: some of whom are still
the ornaments of this seat of learning; and others at a greater
distance continue doing honour to it's institutions, by comparing
our polity and laws with those of other kingdoms abroad, or exerting
their senatorial abilities in the councils of the nation at
home.

Nor will some degree of legal knowlege be found in the least
superfluous to persons of inferior rank; especially those of the
learned professions. The clergy in particular, besides the common
obligations they are under in proportion to their rank and
fortune, have also abundant reason, considered merely as clergymen, to be acquainted with many branches of the law, which
are almost peculiar and appropriated to themselves alone. Such
are the laws relating to advowsons, institutions, and inductions;
to simony, and simoniacal contracts; to uniformity, residence,
and pluralities; to tithes and other ecclesiastical dues; to marriages
(more especially of late) and to a variety of other subjects,
which are consigned to the care of their order by the provisions
of particular statutes. To understand these aright, to discern what
is warranted or enjoined, and what is forbidden by law, demands
a sort of legal apprehension; which is no otherwise to be acquired
than by use and a familiar acquaintance with legal writers.

For the gentlemen of the faculty of physic, I must frankly
own that I see no special reason, why they in particular should
apply themselves to the study of the law; unless in common with
other gentlemen, and to complete the character of general and
extensive knowlege; a character which their profession, beyond
others, has remarkably deserved. They will give me leave however
to suggest, and that not ludicrously, that it might frequently
be of use to families upon sudden emergencies, if the physician
were acquainted with the doctrine of last wills and testaments,
at least so far as relates to the formal part of their execution.

But those gentlemen who intend to profess the civil and ecclesiastical
laws in the spiritual and maritime courts of this kingdom,
are of all men (next to common lawyers) the most indispensably
obliged to apply themselves seriously to the study of our
municipal laws. For the civil and canon laws, considered with
respect to any intrinsic obligation, have no force or authority in
this kingdom; they are no more binding in England than our
laws are binding at Rome. But as far as these foreign laws, on
account of some peculiar propriety, have in some particular cases,
and in some particular courts, been introduced and allowed by
our laws, so far they oblige, and no farther; their authority being
wholly founded upon that permission and adoption. In which we
are not singular in our notions; for even in Holland, where the
imperial law is much cultivated and it's decisions pretty generally
followed, we are informed by Van Leeuwen[i], that, "it receives
it's force from custom and the consent of the people, either tacitly
or expressly given: for otherwise,[**"] he adds, [**"]we should no
more be bound by this law, than by that of the Almains, the
Franks, the Saxons, the Goths, the Vandals, and other of the
antient nations." Wherefore, in all points in which the different
systems depart from each other, the law of the land takes
place of the law of Rome, whether antient or modern, imperial
or pontificial. And in those of our English courts wherein a reception
has been allowed to the civil and canon laws, if either
they exceed the bounds of that reception, by extending themselves
to other matters, than are permitted to them; or if such
courts proceed according to the decisions of those laws, in cases
wherein it is controlled by the law of the land, the common law
in either instance both may, and frequently does, prohibit and
annul their proceedings[k]: and it will not be a sufficient excuse
for them to tell the king's courts at Westminster, that their practice
is warranted by the laws of Justinian or Gregory, or is conformable
to the decrees of the Rota or imperial chamber. For
which reason it becomes highly necessary for every civilian and
canonist that would act with safety as a judge, or with prudence
and reputation as an advocate, to know in what cases and how
far the English laws have given sanction to the Roman; in what
points the latter are rejected; and where they are both so intermixed
and blended together, as to form certain supplemental
parts of the common law of England, distinguished by the titles
of the king's maritime, the king's military, and the king's ecclesiastical
law. The propriety of which enquiry the university of
Oxford has for more than a century so thoroughly seen, that in
her statutes[l] she appoints, that one of the three questions to be
annually discussed at the act by the jurist-inceptors shall relate to
the common law; subjoining this reason, "quia juris civilis studiosos
decet haud imperitos esse juris municipalis, & differentias ex-teri patriique juris notas habere." And the statutes[m] of the university
of Cambridge speak expressly to the same effect.

From the general use and necessity of some acquaintance with
the common law, the inference were extremely easy, with regard
to the propriety of the present institution, in a place to which
gentlemen of all ranks and degrees resort, as the fountain of all
useful knowlege. But how it has come to pass that a design of
this sort has never before taken place in the university, and the
reason why the study of our laws has in general fallen into disuse,
I shall previously proceed to enquire.

Sir John Fortescue, in his panegyric on the laws of England,
(which was written in the reign of Henry the sixth) puts[n] a very
obvious question in the mouth of the young prince, whom he is
exhorting to apply himself to that branch of learning; "why the
laws of England, being so good, so fruitful, and so commodious,
are not taught in the universities, as the civil and canon
laws are?" In answer to which he gives[o] what seems, with
due deference be it spoken, a very jejune and unsatisfactory reason;
being in short, that "as the proceedings at common law
were in his time carried on in three different tongues, the
English, the Latin, and the French, that science must be necessarily
taught in those three several languages; but that in
the universities all sciences were taught in the Latin tongue
only;[**"] and therefore he concludes, [**"]that they could not be conveniently
taught or studied in our universities." But without
attempting to examine seriously the validity of this reason, (the
very shadow of which by the wisdom of your late constitutions
is entirely taken away) we perhaps may find out a better, or at
least a more plausible account, why the study of the municipal
laws has been banished from these seats of science, than what the
learned chancellor thought it prudent to give to his royal pupil.

That antient collection of unwritten maxims and customs,
which is called the common law, however compounded or from
whatever fountains derived, had subsisted immemorially in this
kingdom; and, though somewhat altered and impaired by the
violence of the times, had in great measure weathered the rude
shock of the Norman conquest. This had endeared it to the
people in general, as well because it's decisions were universally
known, as because it was found to be excellently adapted to the
genius of the English nation. In the knowlege of this law consisted
great part of the learning of those dark ages; it was then
taught, says Mr Selden[p], in the monasteries, in the universities,
and in the families of the principal nobility. The clergy in particular,
as they then engrossed almost every other branch of learning,
so (like their predecessors the British druids[q]) they were
peculiarly remarkable for their proficiency in the study of the
law. Nullus clericus nisi causidicus, is the character given of them
soon after the conquest by William of Malmsbury[r]. The judges
therefore were usually created out of the sacred order[s], as was
likewise the case among the Normans[t]; and all the inferior offices
were supplied by the lower clergy, which has occasioned their
successors to be denominated clerks to this day.

But the common law of England, being not committed to
writing, but only handed down by tradition, use, and experience,
was not so heartily relished by the foreign clergy; who came
over hither in shoals during the reign of the conqueror and his
two sons, and were utter strangers to our constitution as well as
our language. And an accident, which soon after happened, had
nearly completed it's ruin. A copy of Justinian's pandects, being
newly[u] discovered at Amalfi, soon brought the civil law into

vogue all over the west of Europe, where before it was quite
laid aside[w] and in a manner forgotten; though some traces of it's
authority remained in Italy[x] and the eastern provinces of the empire[y].
This now became in a particular manner the favourite of
the popish clergy, who borrowed the method and many of the
maxims of their canon law from this original. The study of it
was introduced into several universities abroad, particularly that
of Bologna; where exercises were performed, lectures read, and
degrees conferred in this faculty, as in other branches of science:
and many nations on the continent, just then beginning to recover
from the convulsions consequent upon the overthrow of the
Roman empire, and settling by degrees into peaceable forms of
government, adopted the civil law, (being the best written system
then extant) as the basis of their several constitutions; blending
and interweaving it among their own feodal customs, in some
places with a more extensive, in others a more confined authority[z].

Nor was it long before the prevailing mode of the times
reached England. For Theobald, a Norman abbot, being elected
to the see of Canterbury[a], and extremely addicted to this new
study, brought over with him in his retinue many learned proficients
therein; and among the rest Roger sirnamed Vacarius,
whom he placed in the university of Oxford[b], to teach it to the
people of this country. But it did not meet with the same easy
reception in England, where a mild and rational system of laws
had been long established, as it did upon the continent; and,
though the monkish clergy (devoted to the will of a foreign primate)
received it with eagerness and zeal, yet the laity who were
more interested to preserve the old constitution, and had already
severely felt the effect of many Norman innovations, continued
wedded to the use of the common law. King Stephen immediately published a proclamation[c], forbidding the study of the
laws, then newly imported from Italy; which was treated by the
monks[d] as a piece of impiety, and, though it might prevent the
introduction of the civil law process into our courts of justice,
yet did not hinder the clergy from reading and teaching it in
their own schools and monasteries.

From this time the nation seems to have been divided into
two parties; the bishops and clergy, many of them foreigners,
who applied themselves wholly to the study of the civil and canon
laws, which now came to be inseparably interwoven with
each other; and the nobility and laity, who adhered with equal
pertinacity to the old common law; both of them reciprocally
jealous of what they were unacquainted with, and neither of
them perhaps allowing the opposite system that real merit which
is abundantly to be found in each. This appears on the one
hand from the spleen with which the monastic writers[e] speak of
our municipal laws upon all occasions; and, on the other, from
the firm temper which the nobility shewed at the famous parliament
of Merton; when the prelates endeavoured to procure an
act, to declare all bastards legitimate in case the parents intermarried
at any time afterwards; alleging this only reason, because
holy church (that is, the canon law) declared such children legitimate:
but "all the earls and barons[**"] (says the parliament roll[f])
[**"]with one voice answered, that they would not change the laws
of England, which had hitherto been used and approved."
And we find the same jealousy prevailing above a century afterwards[g],
when the nobility declared with a kind of prophetic
spirit, "that the realm of England hath never been unto this
hour, neither by the consent of our lord the king and the lords
of parliament shall it ever be, ruled or governed by the civil
law[h]." And of this temper between the clergy and laity many
more instances might be given.

While things were in this situation, the clergy, finding it
impossible to root out the municipal law, began to withdraw
themselves by degrees from the temporal courts; and to that end,
very early in the reign of king Henry the third, episcopal constitutions
were published[i], forbidding all ecclesiastics to appear as
advocates in foro saeculari; nor did they long continue to act as
judges there, nor caring to take the oath of office which was
then found necessary to be administred, that they should in all
things determine according to the law and custom of this realm[k];
though they still kept possession of the high office of chancellor,
an office then of little juridical power; and afterwards, as it's
business increased by degrees, they modelled the process of the
court at their own discretion.

But wherever they retired, and wherever their authority extended,
they carried with them the same zeal to introduce the
rules of the civil, in exclusion of the municipal law. This appears
in a particular manner from the spiritual courts of all denominations,
from the chancellor's courts in both our universities,
and from the high court of chancery before-mentioned; in all of
which the proceedings are to this day in a course much conformed
to the civil law: for which no tolerable reason can be assigned,
unless that these courts were all under the immediate direction of
the popish ecclesiastics, among whom it was a point of religion
to exclude the municipal law; pope Innocent the fourth having[l]
forbidden the very reading of it by the clergy, because it's decisions
were not founded on the imperial constitutions, but merely
on the customs of the laity. And if it be considered, that our
universities began about that period to receive their present form
of scholastic discipline; that they were then, and continued to
be till the time of the reformation, entirely under the influence
of the popish clergy; (sir John Mason the first protestant, being
also the first lay, chancellor of Oxford) this will lead us to perceive
the reason, why the study of the Roman laws was in those
days of bigotry[m] pursued with such alacrity in these seats of learning;
and why the common law was entirely despised, and esteemed
little better than heretical.

And, since the reformation, many causes have conspired to
prevent it's becoming a part of academical education. As, first,
long usage and established custom; which, as in every thing else,
so especially in the forms of scholastic exercise, have justly great
weight and authority. Secondly, the real intrinsic merit of the
civil law, considered upon the footing of reason and not of obligation,
which was well known to the instructors of our youth;
and their total ignorance of the merit of the common law, though
it's equal at least, and perhaps an improvement on the other.
But the principal reason of all, that has hindered the introduction
of this branch of learning, is, that the study of the common
law, being banished from hence in the times of popery, has
fallen into a quite different chanel, and has hitherto been wholly
cultivated in another place. But as this long usage and established
custom, of ignorance in the laws of the land, begin now to be
thought unreasonable; and as by this means the merit of those
laws will probably be more generally known; we may hope that
the method of studying them will soon revert to it's antient course,
and the foundations at least of that science will be laid in the
two universities; without being exclusively confined to the chanel
which it fell into at the times I have been just describing.

For, being then entirely abandoned by the clergy, a few
stragglers excepted, the study and practice of it devolved of
course into the hands of laymen; who entertained upon their
parts a most hearty aversion to the civil law[n], and made no
scruple to profess their contempt, nay even their ignorance[o] of
it, in the most public manner. But still, as the ballance of learning
was greatly on the side of the clergy, and as the common
law was no longer taught, as formerly, in any part of the kingdom,
it must have been subjected to many inconveniences, and
perhaps would have been gradually lost and overrun by the civil,
(a suspicion well justified from the frequent transcipts of Justinian
to be met with in Bracton and Fleta) had it not been for a
peculiar incident, which happened at a very critical time, and
contributed greatly to it's support.

Blackstone, ss01

INTRODUCTION.

Section the first.

On the STUDY of the LAW.[A]


Mr Vice-Chancellor, and gentlemen of the
university,

The general expectation of so numerous and respectable
an audience, the novelty, and (I may
add) the importance of the duty required from this
chair, must unavoidably be productive of great diffidence
and apprehensions in him who has the honour
to be placed in it. He must be sensible how much will depend
upon his conduct in the infancy of a study, which is now
first adopted by public academical authority; which has generally
been reputed (however unjustly) of a dry and unfruitful nature;
and of which the theoretical, elementary parts have hitherto received
a very moderate share of cultivation. He cannot but reflect
that, if either his plan of instruction be crude and injudicious,
or the execution of it lame and superficial, it will cast a
damp upon the farther progress of this most useful and most rational
branch of learning; and may defeat for a time the public-*
spirited design of our wise and munificent benefactor. And this
he must more especially dread, when he feels by experience how
unequal his abilities are (unassisted by preceding examples) to
complete, in the manner he could wish, so extensive and arduous
a task; since he freely confesses, that his former more private
attempts have fallen very short of his own ideas of perfection.
And yet the candour he has already experienced, and this last
transcendent mark of regard, his present nomination by the free
and unanimous suffrage of a great and learned university, (an
honour to be ever remembered with the deepest and most affectionate
gratitude) these testimonies of your public judgment must
entirely supersede his own, and forbid him to believe himself totally
insufficient for the labour at least of this employment. One
thing he will venture to hope for, and it certainly shall be his
constant aim, by diligence and attention to atone for his other
defects; esteeming, that the best return, which he can possibly
make for your favourable opinion of his capacity, will be his
unwearied endeavours in some little degree to deserve it.

The science thus committed to his charge, to be cultivated,
methodized, and explained in a course of academical lectures, is
that of the laws and constitution of our own country: a species
of knowlege, in which the gentlemen of England have been
more remarkably deficient than those of all Europe besides. In
most of the nations on the continent, where the civil or imperial
law under different modifications is closely interwoven with the
municipal laws of the land, no gentleman, or at least no scholar,
thinks his education is completed, till he has attended a course or
two of lectures, both upon the institutes of Justinian and the
local constitutions of his native soil, under the very eminent professors
that abound in their several universities. And in the northern
parts of our own island, where also the municipal laws are
frequently connected with the civil, it is difficult to meet with a
person of liberal education, who is destitute of a competent
knowlege in that science, which is to be the guardian of his
natural rights and the rule of his civil conduct.

Nor have the imperial laws been totally neglected even in
the English nation. A general acquaintance with their decisions
has ever been deservedly considered as no small accomplishment
of a gentleman; and a fashion has prevailed, especially of late,
to transport the growing hopes of this island to foreign universities,
in Switzerland, Germany, and Holland; which, though
infinitely inferior to our own in every other consideration, have
been looked upon as better nurseries of the civil, or (which is
nearly the same) of their own municipal law. In the mean time
it has been the peculiar lot of our admirable system of laws, to
be neglected, and even unknown, by all but one practical profession;
though built upon the soundest foundations, and approved
by the experience of ages.

Far be it from me to derogate from the study of the civil
law, considered (apart from any binding authority) as a collection
of written reason. No man is more thoroughly persuaded of the
general excellence of it's rules, and the usual equity of it's decisions;
nor is better convinced of it's use as well as ornament to
the scholar, the divine, the statesman, and even the common
lawyer. But we must not carry our veneration so far as to sacrifice
our Alfred and Edward to the manes of Theodosius and Justinian:
we must not prefer the edict of the praetor, or the rescript
of the Roman emperor, to our own immemorial customs,
or the sanctions of an English parliament; unless we can also
prefer the despotic monarchy of Rome and Byzantium, for whose
meridians the former were calculated, to the free constitution of
Britain, which the latter are adapted to perpetuate.

Without detracting therefore from the real merit which
abounds in the imperial law, I hope I may have leave to assert,
that if an Englishman must be ignorant of either the one or the
other, he had better be a stranger to the Roman than the English
institutions. For I think it an undeniable position, that a competent
knowlege of the laws of that society, in which we live,
is the proper accomplishment of every gentleman and scholar;
an highly useful, I had almost said essential, part of liberal and
polite education. And in this I am warranted by the example of
antient Rome; where, as Cicero informs us[a], the very boys were
obliged to learn the twelve tables by heart, as a carmen necessarium
or indispensable lesson, to imprint on their tender minds an early
knowlege of the laws and constitutions of their country.

But as the long and universal neglect of this study, with us
in England, seems in some degree to call in question the truth of
this evident position, it shall therefore be the business of this introductory
discourse, in the first place to demonstrate the utility of
some general acquaintance with the municipal law of the land,
by pointing out its particular uses in all considerable situations of
life. Some conjectures will then be offered with regard to the
causes of neglecting this useful study: to which will be subjoined
a few reflexions on the peculiar propriety of reviving it in our
own universities.

And, first, to demonstrate the utility of some acquaintance
with the laws of the land, let us only reflect a moment on the
singular frame and polity of that land, which is governed by this
system of laws. A land, perhaps the only one in the universe,
in which political or civil liberty is the very end and scope of the
constitution[b]. This liberty, rightly understood, consists in the
power of doing whatever the laws permit[c]; which is only to be
effected by a general conformity of all orders and degrees to those
equitable rules of action, by which the meanest individual is protected
from the insults and oppression of the greatest. As therefore
every subject is interested in the preservation of the laws, it
is incumbent upon every man to be acquainted with those at least,
with which he is immediately concerned; lest he incur the censure,
as well as inconvenience, of living in society without knowing
the obligations which it lays him under. And thus much
may suffice for persons of inferior condition, who have neither
time nor capacity to enlarge their views beyond that contracted
sphere in which they are appointed to move. But those, on whom
nature and fortune have bestowed more abilities and greater leisure,
cannot be so easily excused. These advantages are given
them, not for the benefit of themselves only, but also of the public:
and yet they cannot, in any scene of life, discharge properly
their duty either to the public or themselves, without some degree
of knowlege in the laws. To evince this the more clearly,
it may not be amiss to descend to a few particulars.

Let us therefore begin with our gentlemen of independent
estates and fortune, the most useful as well as considerable body
of men in the nation; whom even to suppose ignorant in this
branch of learning is treated by Mr Locke[d] as a strange absurdity.
It is their landed property, with it's long and voluminous
train of descents and conveyances, settlements, entails, and incumbrances,
that forms the most intricate and most extensive object
of legal knowlege. The thorough comprehension of these,
in all their minute distinctions, is perhaps too laborious a task
for any but a lawyer by profession: yet still the understanding of
a few leading principles, relating to estates and conveyancing,
may form some check and guard upon a gentleman's inferior
agents, and preserve him at least from very gross and notorious
imposition.

Again, the policy of all laws has made some forms necessary
in the wording of last wills and testaments, and more with
regard to their attestation. An ignorance in these must always be
of dangerous consequence, to such as by choice or necessity compile
their own testaments without any technical assistance. Those
who have attended the courts of justice are the best witnesses of
the confusion and distresses that are hereby occasioned in families;
and of the difficulties that arise in discerning the true meaning
of the testator, or sometimes in discovering any meaning at all:
so that in the end his estate may often be vested quite contrary to
these his enigmatical intentions, because perhaps he has omitted
one or two formal words, which are necessary to ascertain the
sense with indisputable legal precision, or has executed his will
in the presence of fewer witnesses than the law requires.

But to proceed from private concerns to those of a more
public consideration. All gentlemen of fortune are, in consequence
of their property, liable to be called upon to establish the
rights, to estimate the injuries, to weigh the accusations, and
sometimes to dispose of the lives of their fellow-subjects, by
serving upon juries. In this situation they are frequently to decide,
and that upon their oaths, questions of nice importance,
in the solution of which some legal skill is requisite; especially
where the law and the fact, as it often happens, are intimately
blended together. And the general incapacity, even of our best
juries, to do this with any tolerable propriety has greatly debased
their authority; and has unavoidably thrown more power into
the hands of the judges, to direct, control, and even reverse
their verdicts, than perhaps the constitution intended.

But it is not as a juror only that the English gentleman is
called upon to determine questions of right, and distribute justice
to his fellow-subjects: it is principally with this order of men
that the commission of the peace is filled. And here a very ample
field is opened for a gentleman to exert his talents, by maintaining
good order in his neighbourhood; by punishing the dissolute
and idle; by protecting the peaceable and industrious; and,
above all, by healing petty differences and preventing vexatious
prosecutions. But, in order to attain these desirable ends, it is
necessary that the magistrate should understand his business; and
have not only the will, but the power also, (under which must
be included the knowlege) of administering legal and effectual
justice. Else, when he has mistaken his authority, through passion,
through ignorance, or absurdity, he will be the object of
contempt from his inferiors, and of censure from those to whom
he is accountable for his conduct.

Yet farther; most gentlemen of considerable property, at
some period or other in their lives, are ambitious of representing
their country in parliament: and those, who are ambitious of
receiving so high a trust, would also do well to remember it's
nature and importance. They are not thus honourably distinguished
from the rest of their fellow-subjects, merely that they
may privilege their persons, their estates, or their domestics;
that they may list under party banners; may grant or with-hold
supplies; may vote with or vote against a popular or unpopular
administration; but upon considerations far more interesting and
important. They are the guardians of the English constitution;
the makers, repealers, and interpreters of the English laws;
delegated to watch, to check, and to avert every dangerous innovation,
to propose, to adopt, and to cherish any solid and well-weighed
improvement; bound by every tie of nature, of honour,
and of religion, to transmit that constitution and those laws to
their posterity, amended if possible, at least without any derogation.
And how unbecoming must it appear in a member
of the legislature to vote for a new law, who is utterly ignorant
of the old! what kind of interpretation can he be enabled
to give, who is a stranger to the text upon which he
comments!

Indeed it is really amazing, that there should be no other
state of life, no other occupation, art, or science, in which some
method of instruction is not looked upon as requisite, except only
the science of legislation, the noblest and most difficult of any.
Apprenticeships are held necessary to almost every art, commercial
or mechanical: a long course of reading and study must
form the divine, the physician, and the practical professor of the
laws: but every man of superior fortune thinks himself born a
legislator. Yet Tully was of a different opinion: "It is necessary,[** "] says he[e], [** "]for a senator to be thoroughly acquainted with
the constitution; and this, he declares, is a knowlege of the
most extensive nature; a matter of science, of diligence, of
reflexion; without which no senator can possibly be fit for his
office."

The mischiefs that have arisen to the public from inconsiderate
alterations in our laws, are too obvious to be called in question;
and how far they have been owing to the defective education
of our senators, is a point well worthy the public attention.
The common law of England has fared like other venerable edifices
of antiquity, which rash and unexperienced workmen have
ventured to new-dress and refine, with all the rage of modern improvement.
Hence frequently it's symmetry has been destroyed,
it's proportions distorted, and it's majestic simplicity exchanged
for specious embellishments and fantastic novelties. For, to say
the truth, almost all the perplexed questions, almost all the niceties,
intricacies, and delays (which have sometimes disgraced the
English, as well as other, courts of justice) owe their original
not to the common law itself, but to innovations that have been
made in it by acts of parliament; "overladen[** "] (as sir Edward
Coke expresses it[f]) [** "]with provisoes and additions, and many
times on a sudden penned or corrected by men of none or very
little judgment in law." This great and well-experienced judge
declares, that in all his time he never knew two questions made
upon rights merely depending upon the common law; and
warmly laments the confusion introduced by ill-judging and unlearned
legislators. "But if,[** "] he subjoins, [** "]acts of parliament were
after the old fashion penned, by such only as perfectly knew
what the common law was before the making of any act of
parliament concerning that matter, as also how far forth former
statutes had provided remedy for former mischiefs, and
defects discovered by experience; then should very few questions in law arise, and the learned should not so often and so
much perplex their heads to make atonement and peace, by
construction of law, between insensible and disagreeing words,
sentences, and provisoes, as they now do." And if this inconvenience
was so heavily felt in the reign of queen Elizabeth, you
may judge how the evil is increased in later times, when the
statute book is swelled to ten times a larger bulk; unless it should
be found, that the penners of our modern statutes have proportionably
better informed themselves in the knowlege of the common
law.

What is said of our gentlemen in general, and the propriety
of their application to the study of the laws of their country,
will hold equally strong or still stronger with regard to the nobility
of this realm, except only in the article of serving upon juries.
But, instead of this, they have several peculiar provinces
of far greater consequence and concern; being not only by birth
hereditary counsellors of the crown, and judges upon their honour
of the lives of their brother-peers, but also arbiters of the
property of all their fellow-subjects, and that in the last resort.
In this their judicial capacity they are bound to decide the nicest
and most critical points of the law; to examine and correct such
errors as have escaped the most experienced sages of the profession,
the lord keeper and the judges of the courts at Westminster.
Their sentence is final, decisive, irrevocable: no appeal, no correction,
not even a review can be had: and to their determination,
whatever it be, the inferior courts of justice must conform;
otherwise the rule of property would no longer be uniform and
steady.

Should a judge in the most subordinate jurisdiction be deficient
in the knowlege of the law, it would reflect infinite contempt
upon himself and disgrace upon those who employ him.
And yet the consequence of his ignorance is comparatively very
trifling and small: his judgment may be examined, and his errors
rectified, by other courts. But how much more serious and
affecting is the case of a superior judge, if without any skill in
the laws he will boldly venture to decide a question, upon which
the welfare and subsistence of whole families may depend! where
the chance of his judging right, or wrong, is barely equal; and
where, if he chances to judge wrong, he does an injury of the
most alarming nature, an injury without possibility of redress!

Yet, vast as this trust is, it can no where be so properly reposed
as in the noble hands where our excellent constitution has
placed it: and therefore placed it, because, from the independence
of their fortune and the dignity of their station, they are
presumed to employ that leisure which is the consequence of
both, in attaining a more extensive knowlege of the laws than
persons of inferior rank: and because the founders of our polity
relied upon that delicacy of sentiment, so peculiar to noble birth;
which, as on the one hand it will prevent either interest or affection
from interfering in questions of right, so on the other it
will bind a peer in honour, an obligation which the law esteems
equal to another's oath, to be master of those points upon which
it is his birthright to decide.

Blackstone, preface

PREFACE.


The following sheets contain the substance of a
course of lectures on the laws of England, which
were read by the author in the university of OXFORD.
His original plan took it's rise in the year 1753: and,
notwithstanding the novelty of such an attempt in this age
and country, and the prejudices usually conceived against
any innovations in the established mode of education, he had
the satisfaction to find (and he acknowleges[**p3 typo or archaic?] it with a mixture
of pride and gratitude) that his endeavours were
encouraged and patronized by those, both in the university
and out of it, whose good opinion and esteem he was principally
desirous to obtain.

THE death of Mr Viner in 1756, and his ample
benefaction to the university for promoting the study of the
law, produced about two years afterwards a regular and
public establishment of what the author had privately undertaken.
The knowlege of our laws and constitution was
adopted as a liberal science by general academical authority;
competent endowments were decreed for the support
of a lecturer, and the perpetual encouragement of students;
and the compiler of the ensuing commentaries had the honour
to be elected the first Vinerian professor.

IN this situation he was led, both by duty and inclination,
to investigate the elements of the law, and the
grounds of our civil polity, with greater assiduity and attention
than many have thought it necessary to do. And
yet all, who of late years have attended the public administration
of justice, must be sensible that a masterly acquaintance
with the general spirit of laws and the principles
of universal jurisprudence, combined with an accurate
knowlege of our own municipal constitutions, their
original, reason, and history, hath given a beauty and
energy to many modern judicial decisions, with which our
ancestors were wholly unacquainted. If, in the pursuit of
these inquiries, the author hath been able to rectify any errors
which either himself or others may have heretofore
imbibed, his pains will be sufficiently answered: and, if
in some points he is still mistaken, the candid and judicious
reader will make due allowances for the difficulties of
a search so new, so extensive, and so laborious.

THE labour indeed of these researches, and of a regular
attention to his duty, for a series of so many years,
he hath found inconsistent with his health, as well as his
other avocations: and hath therefore desired the university's
permission to retire from his office, after the conclusion
of the annual course in which he is at present engaged.
But the hints, which he had collected for the use of his
pupils, having been thought by some of his more experienced
friends not wholly unworthy of the public eye, it is
therefore with the less reluctance that he now commits them
to the press: though probably the little degree of reputation,
which their author may have acquired by the candor
of an audience (a test widely different from that of a deliberate
perusal) would have been better consulted by a
total suppression of his lectures;----had that been a
matter intirely[**p3 typo or archaic?] within his power.

FOR the truth is, that the present publication is as
much the effect of necessity, as it is of choice. The notes
which were taken by his hearers, have by some of them
(too partial in his favour) been thought worth revising
and transcribing; and these transcripts have been frequently
lent to others. Hence copies have been multiplied,
in their nature imperfect, if not erroneous; some of which
have fallen into mercenary hands, and become the object
of clandestine sale. Having therefore so much reason to
apprehend a surreptitious impression, he chose rather to
submit his own errors to the world, than to seem answerable
for those of other men. And, with this apology, he
commits himself to the indulgence of the public.