man from doing mischief to his fellow citizens, though it diminnhes the natural, increafes 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 affembly, is a degree of tyranny. Nay, that even laws themselves, whether made with or without our confent, if they regulate and contrain our conduct in matters of mere indifference, without any good end in view, are laws deftructive of liberty: whereas if any public advantage can arife from obferving fuch precepts, the control of our private inclinations, in one or two particular points, will conduce to preferve our general freedom in others of more importance; by fupporting that ftate, of fociety, which alone can fecure our independence. Thus the ftatute of king Edward IV, which forbad the fine gentlemen of those times (under the degree of a lord) to wear pikes upon their fhoes or boots of more than two inches in length, was a law that favoured of oppreffion; because, however ridiculous the fafhion then in ufe might appear, the reftraining it by pecuniary penalties could ferve no purpose of common utility. But the ftatute of king Charles II, which prefcribes a thing feemingly as indifferent; viz. a drefs for the dead, who are all ordered to be buried in woollen; is a law confiftent with public liberty, for it encourages the ftaple trade, on which in great measure depends the univerfal good of the nation. So that laws when prudently framed, are by no means fubverfive but rather introductive of liberty; for (as Mr Locke has well obferved) where there is no law, there is no freedom. But then, on the other hand, that conftitution or frame of government, that fyftem of laws, is alone calculated to maintain civil liberty, which caves the subject entire master of his own conduct, except in those points wherein the public good requires fome direc tion or reftraint.

THE idea and practice of this political or civil liberty flourish in their highest vigour in thefe kingdoms, where it falls little

fhort

short of perfection, and can only be loft 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 blefling even in the meaneft fubject. Very different from the modern conftitutions of other states, on the continent of Europe, and from the genius of the imperial law; which in general are calculated to veft an arbitrary and defpotic power, of controlling the actions of the fubject, in the prince, or in a few grandees. And this spirit of liberty is fo deeply implanted in our conftitution, and rooted even in our very foil, that a fiave or a negro, the moment he lands in England, falls under the protection of the laws, and fo far becomes a freeman; though the master's right to his service may poffibly still continue.

THE abfolute rights of every Englishman, (which, taken in a political and extenfive fenfe, are usually called their liberties) as they are founded on nature and reafon, fo they are coeval with our form of government; though fubject at times to fluctuate and change: their establishment (excellent as it is) being ftill human. At fome times we have feen them deprcffed by overbearing and tyrannical princes; at others fo luxuriant as even to tend to anarchy, a worfe ftate than tyranny itfelf, as any government is better than none at all. But the vigour of our free constitution has always delivered the nation from these embaraflments: and, as foon as the convulfions confequent on the struggle have been over, the ballance of our rights and liberties has fettled to it's proper level; and their fundamental articles have been from time to time afferted 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 fome alterations, confirmed in parliament by king Henry the third, his fon. Which charter contained very few new grants; but, as fir Edward Coke obferves, was for the moft part declaratory of the

principal

g Salk. 666. See ch. 14.

ha Luft. proem..

principal grounds of the fundamental laws of England. Afterwards by the ftatute called confirmatio cartarum', 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 fent to all cathedral churches, and read twice a year to the people; and fentence of excommunication is directed to be as conftantly denounced against all those that by word, deed, or counsel, act contrary thereto, or in any degree infringe it. Next by a multitude of fubfequent corroborating ftatutes, (fir Edward Coke, I think, reckons thirty two*,) 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, affented to by king Charles the first in the beginning of his reign. Which was closely followed by the ftill more ample conceffions made by that unhappy prince to his parliament, before the fatal rupture between them; and by the many falutary laws, particularly the habeas corpus act, passed under Charles the fecond. To thefe fucceeded the bill of rights, or declaration delivered by the lords and commons to the prince and princefs 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 infift upon, all and fingular the premises, as their "undoubted rights and liberties." And the act of parliament itfelf1 recognizes "all and singular the rights and liberties afferted " and claimed in the faid declaration to be the true, antient, and "indubitable rights of the people of this kingdom." Laftly, these liberties were again afferted at the commencement of the prefent century, in the act of fettlement", whereby the crown was limited to his present majesty's illuftrious house and some new provifions were added, at the fame fortunate aera, for better fecuring our religion, laws, and liberties; which the statute declares to be "the birthright of the people of England," according to the antient decline of the common law ".

i 25 Fdu I.

ka Inft. prom.

11 W. & M. f. 2. c. 2.

m 11 & 13 W. III. c. 2.

n Plowd. ss.

THUS

THUS much for the declaration of our rights and liberties. The rights themselves, thus defined by these several statutes, confift in a number of private immunities; which will appear, from what has been premised, to be indeed no other, than either that refiduum of natural liberty, which is not required by the laws of fociety to be facrificed to public convenience; or elfe thofe civil privileges, which fociety hath engaged to provide, in lieu of the natural liberties fo given up by individuals. These therefore were formerly, either by inheritance or purchase, the rights of all mankind; but, in moft other countries of the world being now more or less debased and destroyed, they at prefent may be faid to remain, in a peculiar and emphatical manner, the rights of the people of England. And these may be reduced to there principal or primary articles; the right of perfonal fecurity, the right of perfonal liberty, and the right of private property: because as there is no other known method of compulfion, or of abridging man's natural free will, ut by an infringement or diminution of one or other of these important rights, the prefervation of these, inviolate, may jusftly be said to include the preservation of our civil immunities in their largest and most extensive sense,

I. THE right of personal security confifts in a perfon's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.

I. LIFE is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as foon as an infant is able to ftir in the mother's womb. For it a woman is quick with child, and by a potion, or otherwife, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and fhe is delivered of a dead child, this, though not murder, was by the antient law homicide or manflaughter. But fir Edward Coke doth not look

R

upon this offence

o Si aliquis mulierem praegnaniem percufferit, vel ci venenum dederit, per quod fecerit abyr tivam; fi puerperium jam formatum fuerit, et

maxime fi fuerit animatur, fett homicidium Bracton. 1. 3. c, 21

offence in quite fo atrocious a light, but merely as a heinous mifdemefnor".

AN infant in ventre fa mere, or in the mother's womb, is fuppofed in law to be born for many purposes. It is capable of having a legacy, or a furrender of a copyhold eftate made to it. It may have a guardian affigned to it; and it is enabled to have an eftate limited to it's ufe, and to take afterwards by fuch limitation, as if it were then actually born'. And in this point the civil law agrees with ours'.

2. A MAN'S limbs, (by which for the present we only underftand thofe members which may be useful to him in fight, and the lofs of which alone amounts to mayhem by the common law) are also the gift of the wife 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 deftroyed or difabled without a manifcft 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 lofing his life, or even his limbs, in cafe of his noncompliance'. And the fame is also a fufficient excufe for the commiflion of many mifdemefnors, as will mifdemefnors, as will appear in the fourth book. The constraint a man is under in these circumftances is called in

law