[132]

the indulgence fhewn to a man under this, the principal, fort of duress, the fear of lofing his life or limbs, agrees also with that maxim of the civil law; ignofcitur ei qui fanguinem Juum qualiter qualiter redemptum voluit.×

THE law not only regards life and member, and protects every man in the enjoyment of them, but also furnishes him with every thing neceffary for their fupport. For there is no man fo indigent or wretched, but he may demand a fupply fufficient for all the neceffaries of life from the more opulent part of the community, by means of the feveral statutes enacted for the relief of the poor, of which in their proper places. A humane provision; yet, though dictated by the principles of fociety, difcountenanced by the Roman laws. For the edicts of the emperor Conftantine commanding the public to maintain the children of those who were unable to provide for them, in order to prevent the murder and expofure of infants, an inftitution founded on the fame principle as our foundling hofpitals, though comprised in the Theodofian code, were rejected in Juftinian's collection.

THESE rights, of life and member, can only be determined by the death of the perfon; which was formerly accounted to be either a civil or natural death. The civil death commenced, if any man was banished or abjured the realm z by the procefs of the common law, or entered into religion; that is, went into a monaftery, and became there a monk professed: in which cases he was abfolutely dead in law, and his next heir should have his estate. For fuch banished man was entirely cut off from fociety; and fuch a monk, upon his profeffion, renounced folemnly all fecular concerns: and befides, as the popish clergy claimed an exemption from the duties of civil life and the commands of the temporal magiftrate, the genius of the English laws would not suffer those persons to enjoy the benefits of fociety, who fecluded themselves from it, and refused to submit to it's regulations a. A monk was thereFf. 48. 21. I.

y l. 11. c. 27.

z Co. Litt. 133.

law, l. 2. t. 21. defiit effe miles feculi, qui factus eft miles Chrifti, nec beneficium pertinet ad eum qui non debet gerere

This was alfo a rule in the feodal officium.

fore

fore accounted civiliter mortuus, and when he entered into religion might, like other dying men, make his testament and executors; or, if he made none, the ordinary might grant adminiitration to his next of kin, as if he were actually dead inteftate. And such executors and administrators had the fame power, and might bring the fame actions for debts, due to the religious, and were liable to the fame actions for those due from him, as if he were naturally deceasedb Nay, fo far has this principle been carried, that when one was bound in a bond to an abbot and his fucceffors, and afterwards made his executors, and profeffed himself a monk of the fame 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. In short, a monk or religious was fo effectually dead in law, that a lease made even to a third person, during the life (generally) of one who afterwards became a monk, determined by fuch his entry into religion: for which reafon leafes, and other conveyances for life, were usually made to have and to hold for the term of one's natural life. But, even in the times of popery, the law of England took no cognizance of profession in any [133] foreign country, because the fact could not be tried in our courts; and therefore, fince the reformation, this difability is held to be abolished: as is also the difability of banishment, confequent upon abjuration, by statute 21 Jac. I. c. 28. (II)

(11) One species of civil death may ftill exift in this country; that is, where a man by act of parliament is attainted of treafon or felony, and faving his life, is banished for ever: this lord Coke declares to be a civil death. But he says, a temporary exile is not a civil death. Co. Litt. 133. And for the fame reafon where a man receives judgment of death, and afterwards leaves the king' dom for life, upon a conditional pardon, this seems to amount to a civil death; this practice did not exist in the time of lord Coke, who fays, that a man can only lofe his country by authority of parliament. Ib.

C

:

THIS natural life, being, as was before observed, the immediate donation of the great Creator, cannot legally be difpofed of or destroyed by any individual, neither by the perfon himself, nor by any other of his fellow-creatures, merely upon their own authority. Yet nevertheless it may, by the divine permiffion, be frequently forfeited for the breach of thofe laws of society, which are enforced by the fanction of capital punishments; of the nature, restrictions, expedience, and legality of which, we may hereafter more conveniently inquire in the concluding book of thefe commentaries. At present I shall only observe that whenever the conftitution of a state vests in any man, or body of men, a power of destroying at pleafure, without the direction of laws, the lives or members of the subject, fuch conftitution is in the highest degree tyrannical and that whenever any laws direct fuch deftruction for light and trivial causes, fuch laws are likewife tyrannical, though in an inferior degree; because here the subject is aware of the danger he is expofed to, and may by prudent caution provide against it. The ftatute law of England does therefore very feldom, and the common law does never inflict any punishment extending to life or limb, unless upon the highest neceffity (12): 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 charters," aliquo modo deftruatur, nifi per legale judi"cium parium fuorum, aut per legem terrae." Which words, "aliquo modo deftruatur," according to fir Edward Coke, include a prohibition not only of killing and maiming, but also of torturing (to which our laws are strangers), and of every oppreffion by colour of an illegal authority. And it is

(12) This is a compliment which, I fear, the common law does not deferve; for although it did not punish with death any perfon who could read, even for any number of murders or other felonies, yet it inflicted death upon every felon who could not read, though his crime was the ftealing only of twelve-pence farthing.

enacted

enacted by the statute 5 Ed. III. c. 9. that no man shall be forejudged of life or limb, contrary to the great charter and [134 ]

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.

his ene

3. BESIDES those limbs and members that may be necefsary to a man, in order to defend himself or annoy my, the rest of his perfon or body is alfo entitled, by the same natural right, to fecurity from the corporal insults of menaces, affaults, beating, and wounding; though such infults amount not to deftruction of life or member.

4. THE prefervation of a man's health from such practices as may prejudice or annoy it; and,

5. THE fecurity of his reputation or good name from the arts of detraction and flander, are rights to which every man is entitled, by reason and natural justice; fince without these it is impoffible to have the perfect enjoyment of any other advantage or right. But these three laft articles (being of much less importance than those which have gone before, and those which are yet to come) it will fuffice to have barely mentioned among the rights of persons; referring the more minute difcuffion of their several branches, to those parts of our commentaries which treat of the infringement of these rights, under the head of perfonal wrongs.

II. NEXT to personal security, the law of England regards, afferts, and preferves the perfonal liberty of individuals. This perfonal liberty confifts in the power of loco-motion, of changing fituation, or removing one's perfon to whatsoever place one's own inclination may direct; without imprisonament or restraint, unless by due courfe of law. Concerning which we may make the same obfervations as upon the preceding article; that it is a right strictly natural; that the laws of England have never abridged it without fufficient cause; and, that in this kingdom it cannot ever be abridged at the mere difcretion of the magistrate, without the explicit

permiffion

permiffion of the laws. Here again the language of the great [135] charter is, that no freeman fhall be taken or imprisoned, but by the lawful judgment of his equals, or by the law of the land. And many fubfequent old ftatutes i exprefsly direct, that no man fhall be taken or imprifoned by fuggeftion or petition to the king or his council, unless it be by legal indictment, or the procefs of the common law. By the petition of right, 3 Car. I., it is enacted, that no freeman shall be imprisoned or detained without caufe fhewn, to which he may make answer according to law. By 16 Car. I. c. 10. if any perfon be restrained of his liberty by order or decree of any illegal court, or by command of the king's majesty in perfon, 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 fhall determine whether the cause of his commitment be juft, and thereupon do as to juftice fhall 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 fubject of England can be long detained in prison, except in those cases in which the law requires and justifies fuch detainer. And, left this act should be evaded by demanding unreasonable bail, or fureties for the prifoner's appearance, it is declared by W. & M. ft. 2. c. 2. that exceffive 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 practised by the crown*,) there would soon be an end of all other rights