gerous to the commonwealth, than fuch as are made upon the perfonal liberty of the fubject. To bereave a man of life, or by violence to confiftate his eftate, without accufation or trial, would be fo grofs and notorious an act of defpotifm, as must at once convey the alarm of tyranny thoughout the whole kingdom. But confinement of the perfon, by fecretly hurrying him to goal, where his fufferings are unknown or forgotten, is a less public, a lets striking, and therefore a more dangerous engine of arbitrary government. And yet fometimes, when the state is in real danger, even this may be a neceffary measure, But the happiness of our conftitution is, that it is not left to the executive power to determine when the danger of the ftate is fo great, as to render this measure expedient. For the parliament only, or legislative power, whenever it fees proper, can authorize the crown, by fufpending the haveas corpus act for a fhort and limited time, to, imprison suspected perfons without giving any reason for fo doing, As the fenate 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 fenate, which usually preceded the nomination of this magiftrate, "dent operam confu"les, nequid refpublica detrimenti capiat," was called the senatus confultum ultimae neceffitatis. In like manner this experiment ought only to be tried in cafes of extreme emergency; and in these the nation parts with it's liberty for a while, in order to preferve it for ever.

ment.

THE Confinement of the perfon, in any wife, is an imprisonSo that the keeping a man against his will in a private houfe, putting him in the ftocks, arrefting or forcibly detaining him in the street, is an imprisonment'. And the law fo much discourages unlawful confinement, that if a man is under duress of imprisonment, which we before explained to mean a compulfion by an illegal restraint of liberty, until he feals a bond or the like; he may allege this durefs, and avoid the extorted bond. But if a man be lawfully imprifoned, and either to procure his discharge

discharge, or on any other fair account, feals a bond or a deed, this is not by duress of imprisonment, and he is not at liberty to avoid it". To make imprisonment lawful, it must either be by process from the courts of judicature, or by warrant from fome legal officer having authority to commit to prifon; which warrant must be in writing, under the hand and feal of the magiftrate, and exprefs the causes of the commitment, in order to be examined into (if neceffary) upon a habeas corpus. If there be no caufe expreffed, the goaler is not bound to detain the prisoner" For the law judges in this respect, faith fir Edward Cokc, like Feftus the Roman governor; that it is unreasonable to send a prifoner, and not to fignify withal the crimes alleged against him.

A NATURAL and regular confequence of this personal lí berty, is, that every Englishman may claim a right to abide in his own country fo 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 iffue out his writ ne exeat regnum, and prohibit any of his fubjects from going into foreign parts without licence. This may be neceffary for the public fervice, and fafeguard of the commonwealth. But no power on earth, except the authority of parliament, can fend any fubject of England cus 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 himfelf, to escape a capital punishment, or elfe by the express direction of fome modern act of parliament. To this purpose the great charter declares, that no freemen fhall be banifhed, 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 fecond magna carta, and stable bulwark of our liberties) it is enacted, that no fubject of this realm, who is an inhabitant of England, Wales, or Berwick, fhall be fent prisoner into Scotland, Ireland, Jersey, Guernsey, or places beyond the feas; (where they

P

S

Book I. they cannot have the benefit and protection of the common law) but that all fuch imprisonments shall be illegal; that the person, who fhall dare to commit another contrary to this law, shall be disabled from bearing any office, fhall incur the penalty of a praemunire, and be incapable of receiving the king's pardon: and the party suffering fhall also have his private action against the perfon committing, and all his aiders, advisers and abettors, and shall recover treble cofts; besides his damages, which no jury fhall affefs at lefs than five hundred pounds.

THE law is in this respect so benignly and liberally conftrued for the benefit of the subject, that, though within the realm the king may command the attendance and service of all his liegemen, yet he cannot send any man out of the realm, even upon the public service; excepting failors and foldiers, the nature of whofe employment neceffarily implies an exception: he cannot even constitute a man lord deputy or lieutenant of Ireland against his will, nor make him a foreign embaffador, 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 confists in the free use, enjoyment, and difpofal of all his acquifitions, without any control or diminution, fave 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 enfuing commentaries: but certainly the modifications under which we at present find it, the method of conferving it in the present owner, and of translating it from man to man, are entirely derived from fociety; 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' has declared that no freeman fhall be diffeifed, or divefted, of his freehold, or of his liberties, or free customs,

customs, but by the judgment of his peers, or by the law of the land. And by a variety of antient statutes it is enacted, that no man's lands or goods fhall be feifed into the king's hands, against the great charter, and the law of the land; and that no man fhall be difinherited, 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 redreffed, 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 perfon, it might perhaps be extenfively beneficial to the public; but the law permits no man, or fet of men, to do this without confent 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. Befides, the public good is in nothing more effentially interested, than in the protection of every individual's private rights, as modelled by the municipal law, In this and fimilar cafes the legislaturn alone can, and indeed frequently does, intérpofe, and compel the individual to acquiefce. But how does it interpofe and compel? Not by abfolutely stripping the subject of his property in an ar bitrary manner; but by giving him a full indemnification and equivalent for the injury thereby fuftained. The public is now confidered, 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.

S 2.

55 Edw. III. c. 9. 25 Edw, III. ft. s. c. 4. 28, Edw. III. c. 3.

NOR

NOR is this the only inftance in which the law of the land has poftponed even public neceffity to the facred and inviolable rights of private property. For no fubject of England can be constrained to pay any aids or taxes, even for the defence of the realm or the support of government, but fuch as are imposed by his own consent, or that of his representatives in parliament. By the ftatute 25 Edw. I. c. 5 and 6, it is provided, that the king hall not take any aids or tasks, but by the common affent of the realm. And what that common affent is, is more fully explained by 34 Edw. I. ft. 4. c. 1. which' enacts, that no talliage or aid fhall be taken without affent of the arch-bishops, bishops, earls, barons, knights, burgeffes, and other freemen of the land and again by 14 Edw. III. ft. 2. c. 1. the prelates, earls, barons and commons, citizens, burgeffes and merchants fhall not be charged to make any aid, if it be not by the common affent of the great men and commons in parliament. And as this fundamental law had been shamefully evaded under many fucceeding 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 fhall be compelled to yield any gift, loan, or benevolence, tax, or fuch like charge, without common confent by act of parliament. And lafily, by the ftatute 1 W. & M. ft. 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 fame is or fhall be granted; is illegal,

I

In the three preceding articles we have taken a short view of the principal abfolute 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 conftitution had

t See the introduction to the great charter, (edit. Oxon.) fub anno 1297; wherein it is hewn that this ftatute de talliagio non Buncedendo, fuppofed to have been made in

34 Edw. I. is in reality nothing more than a fort of tranflation into Latin of the confirmatic cartarum, 25 Edw. I, which was originally published in the Norman language.