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LAWS OF ENGLAND.
BOOK THE FIRST.
OF THE RIGHTS OF PERSONS.
CHAPTER THE FIRST.
OF THE ABSOLUTE RIGHTS OF INDIVIDUALS.
HE objects of the laws of England are fo very numerous and extenfive, that, in order to confider them with any tolerable ease and perfpicuity, it will be neceffary to diftribute them methodically, under proper and diftinct heads; avoiding as much as poffible divifions too large and comprehenfive on the one hand, and too trifling and minute on the other; both of which are equally productive of confufion.
Now, as municipal law is a rule of civil conduct, commanding what is right, and prohibiting what is wrong; or, as Cicero *, and after him our Bracton ',have expreffed it, sanctio justa, jubens honesta et prohibens contraria; it follows, that the primary and principal objects of the law are RIGHTS, and WRONG S. In the profecution therefore of these commentaries, I fhall follow this very fimple and obvious divifion; and fhall in the first place confider the rights that are commanded, and fecondly the wrongs that are forbidden by the laws of England.
RIGHTS are however liable to another fubdivifion: being either, first, those which concern and are annexed to the perfons of men, and are then called jura perfonarum or the rights of perfons; or they are, fecondly, fuch as a man may acquire over external objects, or things unconnected with his perfon, which are stiled jura rerum or the rights of things. Wrongs alfo are divifible into, firit, private wrongs, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and fecondly, public wrongs, which, being a breach of general and public rights, affect the whole community, and are called crimes and mifdemefnors.
THE objects of the laws of England falling into this fourfold divifion, the prefent commentaries will therefore confift of the four following parts: 1. The rights of perfons; with the means whereby fuch rights may be either acquired or loft. 2. The rights of things with the means alfo of acquiring and losing them. 3. Private wrongs, or civil injuries; with the means of redreffing them by law. 4. Public wrongs, or crimes and misdemefnors; with the means of prevention and punishment.
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WE are now, first, to consider the rights of perfons; with the means of acquiring and lofing them.
Now the rights of perfons that are commanded to be obferved by the municipal law are of two forts: firft, fuch as are due from every citizen, which are ufually called civil duties; and, fecondly, fuch as belong to him, which is the more popular acceptation of rights or jura. Both may indeed be comprized in this latter divifion; for, as all focial 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 confider many of them as duties required from, rather than as rights belonging to, particular perfons. Thus, for instance, allegiance is ufually, and therefore most éafily, confidered 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 magiftrate, and protection the right of the people.
PERSONS alfo are divided by the law into either natural perfons, or artificial. Natural perfons are fuch as the God of nature formed us; artificial are fuch as are created and devised by human laws for the purposes of fociety and government, which are called corporations or bodies politic.
THE rights of perfons confidered in their natural capacities are also of two forts, abfolute, and relative. Abfolute, which are fuch as appertain and belong to particular men, merely as individuals or single perfons: relative, which are incident to them as members of fociety, and standing in various relations to each other. The firft, that is, abfolute rights, will be the fubject of the present chapter.
By the abfolute rights of individuals we mean thofe which arc fo in their primary and ftricteft fense; fuch as would belong to their perfons merely in a flate of nature, and which every man is intitled to enjoy, whether out of focicty or in it. But with regard to the abfolute duties, which man is bound to perform confidered
fidered as a mere individual, it is not to be expected that any human municipal laws fhould at all explain or enforce them. For the end and intent of fuch laws being only to regulate the behayiour of mankind, as they are members of fociety, and stand in various relations to each other, they have confequently no bufinefs or concern with any but focial or relative duties. Let a man therefore be ever fo 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 fuch as feem principally to affect himself, (as drunkennefs, or the like) they then become, by the bad example they fet, of pernicious effects to fociety; and therefore it is then the bufinefs of human laws to correct them. Here the circumftance of publication is what alters the nature of the cafe. Public sobriety is a relative duty, and therefore enjoined by our laws; private fobriety is an abfolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil farction. But, with refpect to rights, the cafe is different. Human laws define and enforce as well those rights which belong to a man confidered as an individual, as thofe which belong to him confidered as related to others.
FOR the principal aim of fociety is to protect individuals in the enjoyment of thofe abfolute rights, which were vested in them by the immutable laws of nature; but which could not be preferved in peace without that mutual affiftance and intercourfe, which is gained by the inftitution of friendly and social communities. Hence it follows, that the first and primary end of human laws is maintain and regulate thefe abfolute rights of individuals. Such rights as are focial and relative refult from, and are pofterior to, the formation of ftates and focieties: fo that to maintain and regulate thefe is clearly a fubfequent confideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce fuch rights as are
abfolute, which in themselves are few and fimple; and, then, fuch rights as are relative, which arifing 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 thefe abfolute rights, and provide for their lafting fecurity.
THE abfolute rights of man, confidered as a free agent, endowed with difcernment to know good from evil, and with power of choosing those measures which appear to him to be most defirable, are usually fummed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty confifts properly in a power of acting as one thinks fit, without any rettraint or control, unlefs 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 fociety, gives up a part of his natural liberty, as the price of fo valuable a purchase; and, in confideration of receiving the advantages of mutual commerce, obliges himself to conform to thofe laws, which the community has thought proper to establish. And this fpecics of legal obedience and conformity is infinitely more defirable, than that wild and favage liberty which is facrificed to obtain it. For no man, that confiders a moment, would wish to retain the abfolute and uncontroled power of doing whatever he pleafes: the confequence of which is, that every other man would also have the fame power; and then there would be no fecurity to individuals in any of the enjoyments of life. Political therefore, or civil, liberty, which is that of a member of fociety, is no other than natural liberty so far restrained by human laws (and no farther) as is neceffary and expedient for the general advantage of the publick. Hence we may collect that the law, which reftrains a
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