him 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 deftroyed or difabled without a manifeft breach of civil liberty. BOTH the life and limbs of a man are of fuch high value, in the estimation of the law of England, that it pardons even homicide if committed fe defendendo, or in order to preferve them. For whatever is done by a man, to fave either life or member, is looked upon as done upon the highest neceffity and compulfion. Therefore if a man through fear of death or mayhem is prevailed upon to execute a deed, or do any other legal act; thefe, though accompanied with all other the requifite folemnities, may be afterwards avoided, if forced upon him by a well-grounded apprehenfion of losing his life, or even his limbs, in case of his non-compliance . And the fame is alfo a fufficient excufe for the commiffion of many mifdemefnors, as will appear in the fourth book. The conftraint a man is under in these circumstances is called in law dures, from the Latin durities, of which there are two forts; durefs of imprisonment, where a man actually lofes his [131] 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 difcourfing of Durefs per minas is either for fear of lofs of life, or elfe for fear of mayhem, or lofs of limb. And this fear muft be upon fufficient reason; "non" as Bracton expreffes it, "fufpicio cujuflibet vani et « meticuloft hominis, fed talis qui poffit cadere in virum conftan« tem; talis enim debet effe metus, qui in fe contineat vitae peri"culum, aut corporis cruciatum." A fear of battery, or being beaten, though never fo well grounded, is no duress; neither is the fear of having one's house burned, or one's goods taken away and deftroyed; becaufe in these cafes, should the threat be performed, a man may have satisfaction by recovering equivalent damages : but no fuitaole atonement can be made for the loss of life, or limb (16). And the W2 Inft. 483. 12 Inft. 483. ~ 1.2. c. 5. W [132] Book I. indulgence fhewn to a man under this, the principal, fort of durefs, the fear of lofing his life or limbs, agrees alfo with that maxim of the civil law; ignofcitur ei qui fanguinem fuum 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 supply fufficient for all the neceffaries of life from the more opulent part of the community, by means of the feveral ftatutes enacted for the relief of the poor, of which in their proper places. A humane provifion; yet, though dictated by the principles of fociety, discountenanced 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 exposure of in. fants, an institution founded on the fame principle as our foundling hofpitals, though comprized 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 realm2 by the process of the common law, or entered into religion; that is, went into a monaftery, and became there a monk profeffed in which cafes he was abfolutely dead in law, and his next heir fhould have his estate. For fuch banished man was entirely cut off from society; and such a monk, upon his profeffion, renounced folemnly all fecular 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 laws would not fuffer those perfons to enjoy the benefits of fociety, who fecluded themselves from it, and refufed to fubmit to it's regulations. A monk was there * Ff. 48. 21. I. y l. 11. c. 27. 2 Co. Litt. 133. This was alfo a rule in the feodal law, l. 2. t. 21. defiit effe miles feculi, qui factus eft miles Chrifti; nec beneficium pertinet ad eum qui non debet gerere 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 administration to his next of kin, as if he were actually dead inteftate. And fuch 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 deceased. 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 pro cefs of time was him felf 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 fhort, a monk or religious was fo effectually dead in law, that a lease made even to a third perfon, 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 ufually 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 profeffion in any foreign [133] country, because the fact could not be tried in our courts; and therefore, fince the reformation, this disability is held to be abolished f: as is alfo the difability of banishment, confe quent upon abjuration, by ftatute 21 Jac. I. c. 28. (11). (11) One fpecies 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 fays, 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 kingdom for life, upon a conditional pardon, this feems to amount to a civil death; this practice did not exist in the time of lord Coke, who says, that a man can only lofe his country by authority of parliament. Ib. Book I. THIS natural life, being, as was before obferved, the im mediate 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 permiflion, be frequently forfeited for the breach of those laws of fociety, which are enforced by the fanction of capital punishments; of the nature, reftrictions, expedience, and le. gality of which, we may hereafter more conveniently inquire in the concluding book of thefe commentaries. At prefent, I fhall only obferve, that whenever the conflitution of a state vests in any man, or body of men, a power of deftroying at pleafure, without the direction of laws, the lives or members of the fubject, fuch conftitution is in the highest degree tyrannical and that whenever any laws direct such destruction for light and trivial causes, fuch laws are likewife tyrannical, though in an inferior degree; because here the fubject 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 higheft neceffity (12): and the conftitution is an utter ftranger to any arbitrary power of killing or maiming the fubject without the exprefs warrant of law. " Nullus liber homo,” says the great charter," 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 alfo of torturing, (to which our laws are strangers), and of every oppreffion by colour of an illegal authority. And it is h 2 Inft. 48. B C. 29. (12) This a compliment which, I fear, the common law docs 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 far thing. 8 enacted enacted by the ftatute 5 Ed. III. c. 9. that no man shall be fore-judged of life or limb, contrary to the great charter and [134] the law of the land: and again, by ftatute 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 thofe limbs and members that may be neceffary to a man, in order to defend himself or annoy his enemy, the rest of his person or body is also entitled, by the fame natural right, to fecurity from the corporal infults of menaces, affaults, beating, and wounding; though fuch infults amount not to destruction of life or member. 4. THE prefervation of a man's health from fuch 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 juftice; 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 lefs 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 perfons: referring the more minute difcuffion of their several branches, to thofe parts of our commentaries which treat of the infringement of thefe rights, under the head of perfonal wrongs. II. NEXT to perfonal fecurity, the law of England regards, afferts, and preserves 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 imprifonment or restraint, unless by due courfe of law. Concerning which we may make the fame obfervations as upon the preceding article; that it is a right ftrictly natural; that the laws of England have never abridged it without fufficient caufe; and, that in this kingdom it cannot ever be abridged. at the mere difcretion of the magiftrate, without the explicit permiffion |