Blackstone on the Absolute Rights of Individuals (1753)
Source: Sir William Blackstone, Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II. CHAPTER I.: OF THE ABSOLUTE RIGHTS OF INDIVIDUALS.
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OF THE ABSOLUTE RIGHTS OF INDIVIDUALS.
The objects of the laws of England are so very numerous and extensive, that, in order to consider them with any tolerable ease and perspicuity, it will be necessary to distribute them methodically under proper and distinct heads; avoiding as much as possible divisions too large and comprehensive on the one hand, and too trifling and minute on the other; both of which are equally productive of confusion.
Rights are, however, liable to another subdivision; being either, first, those which concern and are annexed to the persons of men, and are then called jura personarum, or the rights of persons; or they are, secondly, such as a man may acquire over external objects, or things unconnected with his person, which are styled jura rerum, or the rights of things. Wrongs also are divisible into, first, private wrongs, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and, secondly, public wrongs, which, being a breach of general and public rights, affect the whole community, and are called crimes and misdemesnors.
The objects of the laws of England falling into this fourfold division, the present commentaries will therefore consist of the four following parts: 1. The rights of persons, with the means whereby such rights may be either acquired or lost. 2. The rights of things, with the means also of acquiring or losing them. 3. Private wrongs, or civil injuries, with the means of redressing them by law. 4. Public wrongs, or crimes and misdemesnors, with the means of prevention and punishment.1
We are now first to consider the rights of persons, with the means of acquiring and losing them.
Persons also are divided by the law into either natural persons, or artificial. Natural persons are such as the God of nature formed us; artificial are such as are created and devised by human laws for the purposes of society and government, which are called corporations or bodies politic.
The rights of persons considered in their natural capacities are also of two sorts, absolute and relative. Absolute, which are such as appertain and belong to particular men, merely as individuals or single persons: relative, which are incident to them as members of society, and standing in various relations to each other. The first, that is, absolute rights, will be the subject of the present chapter.
By the absolute rights of individuals, we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it. But with regard to the absolute duties, which man is bound *
For the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature, but which could not be preserved in peace without that mutual assistance and intercourse which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals. Such rights as are social and relative result from, and are posterior to, the formation of states and societies: so that to maintain and regulate these is clearly a subsequent consideration. And, therefore, the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in *
The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless 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 free will. But every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obligos himself to conform to those laws, which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable than that wild and savage liberty which is sacrificed to obtain it. For no man that considers a moment would wish to retain the absolute and uncontrolled power of doing whatever he pleases: the consequence of which is, that every other man would also have the same power, and then there would be no security to individuals in any of the enjoyments of life. Political, therefore, or civil liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public.(c) Hence we may collect that the law, which restrains a man from doing *
The idea and practice of this political or civil liberty flourish in their highest vigour in these kingdoms, where it falls *
The absolute rights of every Englishman, (which, taken in a political and extensive sense, are usually called their liberties,) as they are founded on nature and reason, so they are coeval with our form of government; though subject at times to fluctuate and change: their establishment (excellent as it is) being still human. At some times we have seen them depressed by overbearing and tyrannical princes; at others so luxuriant as even to tend to anarchy, a worse state than tyranny itself, as any government is better than none at all.7 But the vigour of our free constitution has always delivered the nation from these embarrassments: and, as soon as the convulsions consequent on the struggle have been over, the balance of our rights and liberties has settled to its proper level; and their fundamental articles have been from time to time asserted in parliament, as often as they were thought to be in danger.8
First, by the great charter of liberties, which was obtained, sword in hand, from king John, and afterwards, with some alterations, confirmed in parliament by king Henry the Third, his son. Which charter contained very few new grants; but, as Sir Edward Coke(h) observes, was for the most part declaratory of the principal grounds of the fundamental *
I. The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.
1. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder,9 was by the ancient law homicide or manslaughter.(o) But the modern law doth not look *
An infant in ventre sa mere, or in the mother’s womb, is supposed in law to be born for many purposes.11 It is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it;(q) and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born.(r) And in this point the civil law agrees with ours.(s)
2. A man’s limbs (by which for the present we only understand those members which may be useful to him in fight, and the loss of which alone amounts to mayhem by the common law) are also the gift of the wise Creator, to enable 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 destroyed or disabled without a manifest breach of civil liberty.
Both the life and limbs of a man are of such high value, in the estimation of the law of England, that it pardons even homicide if committed se defendendo, or in order to preserve them. For whatever is done by a man to save either life or member, is looked upon as done upon the highest necessity and compulsion. Therefore, if a man through fear of death or mayhem is prevailed upon to execute a deed, or do any other legal act; these, though accompanied with all other the requisite solemnities, may be afterwards avoided, if forced upon him by a well-grounded apprehension of losing his life, or even his limbs, in case of his non-compliance.(t) And the same is also a sufficient excuse for the commission of many misdemesnors, as will appear in the fourth book. The constraint a man is under in these circumstances is called in law duress, from the Latin durities, of which there are two *
The law not only regards life and member, and protects every man in the enjoyment of them, but also furnishes him with every thing necessary for their support. For there is no man so indigent or wretched, but he may demand a supply sufficient for all the necessities of life from the more opulent part of the community, by means of the several statutes enacted for the relief of the poor, of which in their proper places. A humane provision; yet, though dictated by the principles of society, discountenanced by the Roman laws. For the edicts of the Emperor Constantine, 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 infants, an institution founded on the same principle as our foundling hospitals, though comprised in the Theodosian code,(y) were rejected in Justinian’s collection.
This natural life, being, as was before observed, the immediate donation of the great Creator, cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow-creatures, merely upon their own authority. Yet nevertheless it may, by the divine permission, be frequently forfeited for the breach of those laws of society, which are enforced by the sanction of capital punishments; of the nature, restrictions, expedience, and legality of which, we may hereafter more conveniently inquire in the concluding book of these commentaries. At present, I shall only observe, that whenever the constitution of a state vests in any man, or body of men, a power of destroying at pleasure without the direction of laws, the lives or members of the subject, such constitution is in the highest degree tyrannical; and that, whenever any laws direct such destruction for light and trivial causes, such laws are likewise tyrannical, though in an inferior degree; because here the subject is aware of the danger he is exposed to, and may, by prudent caution, provide against it. The statute law of England does therefore very seldom, and the common law does never, inflict any punishment extending to life or limb, unless upon the highest necessity;14 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 charter,(g) “aliquo modo destruatur, nisi per legale judicium parium suorum aut per legem terræ.” Which words, “aliquo modo destruatur,” according to Sir Edward Coke,(h) include a prohibition, not only of killing and maiming, but also of torturing, (to which our laws are strangers,) and of every oppression by colour of an illegal authority. And it is enacted by the statute of 5 Edw. III. c. 9, that no man shall be forejudged of life or limb contrary to the great charter and the *
3. Besides those limbs and members that may be necessary to a man in order to defend himself or annoy his enemy, the rest of his person or body is also entitled, by the same natural right, to security from the corporal insults of menaces, assaults, beating, and wounding; though such insults amount not to destruction of life or member.
4. The preservation of a man’s health from such practices as may prejudice or annoy it; and
5. The security of his reputation or good name from the arts of detraction and slander, are rights to which every man is entitled by reason and natural justice; since, without these, it is impossible to have the perfect enjoyment of any other advantage or right. But these three last articles (being of much less importance than those which have gone before, and those which are yet to come,) it will suffice to have barely mentioned among the rights of persons: referring the more minute discussion of their several branches to those parts of our commentaries which treat of the infringement of these rights, under the head of personal wrongs.
II. Next to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law. Concerning which we may make the same observations as upon the preceding article, that it is a right strictly natural; that the laws of England have never abridged it without sufficient cause; and that, in this kingdom, it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws. Here again the language of the great *
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,)(k) there would soon be an end of all other rights and immunities. Some have thought that unjust attacks, even upon life or property, at the arbitrary will of the magistrate, *
The confinement of the person, in any wise, is an imprisonment; so that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment.(l) And the law so much discourages unlawful confinement, that if a man is under duress of imprisonment, which we before explained to mean a compulsion by an illegal restraint of liberty, until he seals a bond or the like, he may allege this duress, and avoid the extorted bond. But if a man be lawfully imprisoned, *
A natural and regular consequence of this personal liberty is, that every Englishman may claim a right to abide in his own country so 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 issue out his writ ne exeat regno, and prohibit any of his subjects from going into foreign parts without license.(o) This may be necessary for the public service and safeguard of the commonwealth. But no power on earth, except the authority of parliament, can send any subject of England out of the land against his will; no, not even a criminal. For exile and transportation are punishments at present unknown to the common law; and, wherever the latter is now inflicted, it is either by the choice of the criminal himself to escape a capital punishment, or else by the express direction of some modern act of parliament.18 To this purpose the great charter(p) declares, that no freeman shall be banished, 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 second magna carta, and stable bulwark of our liberties,) it is enacted, that no subject of this realm, who is an inhabitant of England, Wales, or Berwick, shall be sent prisoner into Scotland, Ireland, Jersey, Guernsey, or places beyond the seas, (where *
The law is in this respect so benignly and liberally construed 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 sailors and soldiers, the nature of whose employment necessarily implies an exception: he cannot even constitute a man lord deputy or lieutenant of Ireland against his will, nor make him a foreign ambassador.(q) For this might, in reality, be no more than an honourable exile.
III. The third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save 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 ensuing commentaries: but certainly the modifications under which we at present find it, the method of conserving it in the present owner, and of translating it from man to man, are entirely derived from society; 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 honour and justice, extremely watchful in ascertaining and protecting this right. Upon this principle the great charter(r) has declared that no freeman shall be disseised, or divested, of his freehold, or of his liberties, or free *
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 person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent 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. Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights, as modelled by the municipal law. In this and similar cases the legislature alone can, and indeed frequently does, interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered 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.19
In the three preceding articles we have taken a short view of the principal absolute rights which appertain to every Englishman.20 But in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the *
1. The constitution, powers, and privileges of parliament; of which I shall treat at large in the ensuing chapter.
2. The limitation of the king’s prerogative, by bounds so certain and notorious, that it is impossible he should either mistake or legally exceed them without the consent of the people. Of this, also, I shall treat in its proper place. The former of these keeps the legislative power in due health and vigour, so as to make it improbable that laws should be enacted destructive of general liberty: the latter is a guard upon the executive power by restraining it from acting either beyond or in contradiction to the laws, that are framed and established by the other.
3. A third subordinate right of every Englishman is that of applying to the courts of justice for redress of injuries. Since the law is in England the supreme arbiter of every man’s life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered therein. The emphatical words of magna carta,(u) spoken in the person of the king, who in judgment of law (says Sir Edward Coke)(w) is ever present and repeating them in all his courts, are these; nulli vendemus, nulli negabimus, aut differemus rectum vel justitiam: “and therefore every subject,” continues the same learned author, “for injury done to him in bonis, in terris, vel persona, by any other subject, be he ecclesiastical or temporal, without any exception, may take his remedy by the course of the law, and have justice and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay.” It were endless to enumerate all the affirmative acts of parliament, *
Not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament; for, if once those outworks were demolished, there would be an inlet to all manner of innovation in the body of the law itself. The king, it is true, may erect new courts of justice; but then they must proceed according to the old-established forms of the common law. For which reason it is declared, in the statute 16 Car. I. c. 10, upon the dissolution of the court of starchamber, that neither his majesty, nor his privy council, have any jurisdiction, power, or authority, by English bill, petition, articles, libel, (which were the course of proceeding in the starchamber, borrowed from the civil law,) or by any other arbitrary way whatsoever, to examine, or draw into question, determine, or dispose of the lands or goods of any subjects of this kingdom; but that the same ought to be tried and determined in the ordinary courts of justice, and by course of law.
5. The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are *
In these several articles consist the rights, or, as they are frequently termed, the liberties of Englishmen: liberties more generally talked of, than thoroughly understood; and yet highly necessary to be perfectly known and considered by every man of rank and property, lest his ignorance of the points whereon they are founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other. And we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed. To preserve these from violation, it is necessary that the constitution of parliament be supported in its full vigour; and limits, certainly known, be set to the royal prerogative. And, lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next, to the right of petitioning the king and parliament for redress of grievances; and, lastly, to the right of having and using arms for self-preservation and defence. And all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints: restraints in themselves so gentle and moderate, as will appear, upon further inquiry, that no man of sense or probity would wish to see them slackened. For all of us have it in our choice to do every thing that a good man would desire to do; and are restrained from nothing but what would be pernicious either to ourselves or our fellow-citizens. So that this review *
[(a) ] 11 Philipp. 12.
[(b) ]l. 1, c. 3.
[1 ] The distinction between private wrongs and public wrongs is more intelligible, and more accurately limited by the nature of the subjects, than the distinction between the rights of things, and the rights of persons; for all rights whatever must be the rights of certain persons to certain things. Every right is annexed to a certain character or relation, which each individual bears in society. The rights of kings, lords, judges, husbands, fathers, heirs, purchasers, and occupants, are all dependent upon the respective characters of the claimants. These rights might again be divided into rights to possess certain things, and the rights to do certain actions. This latter class of rights constitute powers and authority. But the distinction of rights of persons and rights of things, in the first two books of the Commentaries, seems to have no other difference than the antithesis of the expression, and that, too, resting upon a solecism; for the expression rights of things, or a right of a horse, is contrary to the idiom of the English language: we say, invariably a right to a thing. The distinction intended by the learned judge, in the first two books appears, in a great degree, to be that of the rights of persons in public stations, and the rights of persons in private relations. But, as the order of legal subjects is, in a great measure, arbitrary, and does not admit of that mathematical arrangement where one proposition generates another, it perhaps would be difficult to discover any method more satisfactory than that which the learned judge has pursued, and which was first suggested by Lord C. J. Hale. See Hale’s Analysis of the Law.—Christian.
[2 ] This distinction seems to convey a doctrine that can hardly bear examination, or be reconciled with sound law and morality. The circumstance of publication as evidence of shameless profligacy and hardened depravity may alter the nature of the punishment, but cannot alter the intrinsic criminality of the vicious act. Whatever is pernicious to society as an example must necessarily be vicious and destructive in itself. What is ruinous and criminal to repeat and follow must also be ruinous and criminal to commence. Human laws prohibit everywhere the guilty action; but punishment can only be the consequence of detection.—Christian.
[3 ] It is truly observed by the commentator that the absolute rights of individuals though occupying less space in codes of law than their relative rights or rights of property, are nevertheless by far the most important. The great end of society is to secure the wealth and happiness of its members; and the vast majority of mankind, depending upon their daily labour for their daily bread, have the most direct and immediate interest in their life, limbs, liberty, and reputation. It is true that the hope of acquiring property and of thus bettering our condition pervades all classes; and no country can prosper, nor be the seat of a contented people, where the fruits of industry and frugality are not fully secured to the possessor, and the relations of men and the enjoyment of their property regulated by wise and equal laws, impartially administered. In popular forms of government, such as prevail in the United States, where the people govern themselves by agents or representatives, chosen at short intervals, personal liberty, the elective and other political franchises, liberty of conscience, of speech, and of the press, and the right of the people peaceably to assemble to consider and discuss their grievances, are rights, which the people naturally cherish with jealousy, and which are able to protect themselves in a great measure from their own democratic affinities. Practically there is, however, not much difference between wresting from a man by force or fraud or governmental exaction, the few dollars, the product or savings of his industry for any period of time, and depriving him of his liberty, or chaining him to a log to work for another during the same period. Hence we ought not to undervalue those guards, which have been provided for the protection of the rights of property. These are as important parts of our liberties, and should be maintained with as vigilant an eye, as any other.
The constitution of the United States and the constitutions of the several States are accompanied with Bills of Rights, which are intended to declare and set forth the restrictions which the people in their sovereign capacity have imposed upon their agents,—the various governments established by these constitutions. But as the persons composing the different branches of these governments are chosen, directly or indirectly, by a majority of the people, the provisions of these Bills of Rights are really restrictions imposed upon these majorities. They constitute the security of the individual members of society against the acts of the majority. The great bulwark of the reserved rights protected by these restrictions is the judiciary department. They have the unquestioned power of declaring any act of the government, in any of its departments, which infringes any of these rights, to be utterly null and void. That department spreads the broad and impregnable shield of its protection over the life, limbs, liberty, reputation, and property of the citizen, when invaded even by the will of the majority. Our Bills of Rights are therefore not mere enunciations of abstract principles, but solemn enactments by the people themselves, guarded by a sufficient sanction.
The Bill of Rights which accompanies the federal constitution is mainly to be found in the amendments to that instrument. It was strongly urged by those who favoured the adoption of that instrument as it was proposed, that inasmuch as the government established by it was in all respects a limited one,—that it could exercise no powers except such as were expressly granted or necessarily implied,—there was no occasion of any Bill of Rights. But the States were not satisfied with this reasoning. They feared that, as the means of carrying into effect the granted powers were open to the discretion of government, they might still, unless expressly restricted, invade those rights, which ought not, in any event, or by any construction, to be submitted to the power of government. While they proceeded therefore to ratify the constitution as proposed unconditionally, it was in the confidence that such amendments would be adopted as would relieve their fears in this particular. This was accordingly done. The amendments were proposed at the first session of the first Congress of the United States, which was begun and held at the city of New York, on the 4th of March, 1789, and were adopted by the requisite number of States.
It must be remembered that the limitations of power contained in these amendments do not apply to the State governments. The people of the respective States are left to create such restrictions on the exercise of the power of their particular governments as they may think proper; and restrictions by the constitution of the United States on the exercise of power by the individual States in cases not consistent with the objects and policy of the powers vested in the Union are expressly enumerated in art. 1, sect. 10. (1 Kent’s Com. 407. Barron vs. The Mayor and City Council of Baltimore, 1 Peters, 243.)
The industrious student, by an examination of the constitution of the State in which he resides, and the constitution of the United States, will be able for himself to arrange the various provisions of these instruments under the several heads of this chapter: 1. The Right of Personal Security; 2. The Right of Personal Liberty; and 3. The Right of Private Property. To these the distinguished commentator Chancellor Kent has added a fourth head, which found no place under the English system, but which occupies a most prominent and important one under our American systems:—4. The free exercise and enjoyment of religious profession and worship.—Sharswood.
[(c) ]Fucultas ejus, quod cuique facere libet, nisi quid jure prohibeter. Inst. 1, 3, 1.
[(d) ] 3 Edw. IV. c. 5.
[(e) ] 30 Car. II. st. 1, c. 3.
[4 ] Repealed by stat. 54 Geo. III. c. 108.—Chitty.
[(f) ] On Gov. p. 2, 57.
[5 ] This section is one of the very few intelligible descriptions of liberty which have hitherto been communicated to the world. Though declamation and eloquence in all ages have exhausted their stores upon this favourite theme, yet reason has made so little progress in ascertaining the nature and boundaries of liberty, that there are very few authors indeed, either of this or of any other country, which can furnish the studious and serious reader with a clear and consistent account of this idol of mankind. I shall here briefly subjoin the different notions conveyed by the word liberty, which even by the most eminent writers and orators are generally confounded together.
The libertas quidlibet faciendi, or the liberty of doing every thing which a man’s passions urge him to attempt, or his strength enables him to effect, is savage ferocity; it is the liberty of a tiger, and not the liberty of a man.
“Moral or natural liberty [in the words of Burlamaqui, ch. 3, 15] is the right which nature gives to all mankind of disposing of their persons and property after the manner they judge most consonant to their happiness, on condition of their acting within the limits of the law of nature, and that they do not any way abuse it to the prejudice of any other men.”
This is frequently confounded, and even by the learned judge in this very section, with savage liberty.
Civil liberty is well defined by our author to be “that of a member of society, and is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public.”
Mr. Paley begins his excellent chapter upon civil liberty with the following definition:—“Civil liberty is the not being restrained by any law, but what conduces in a greater degree to the public welfare.” (B. vi. c. 5.)
The Archbishop of York has defined “civil or legal liberty to be that which consists in a freedom from all restraints except such as established law imposes for the good of the community, to which the partial good of each individual is obliged to give place.” (A sermon preached Feb. 21, 1777, p. 19.)
All these three definitions of civil liberty are clear, distinct, and rational, and it is probable they were intended to convey exactly the same ideas; but I am inclined to think that the definition given by the learned judge is the most perfect, as there are many restraints by natural law which, though the established law does not enforce, yet it does not vacate and remove.
In the definition of civil liberty it ought to be understood, or rather expressed, that the restraints introduced by the law should be equal to all, or as much so as the nature of things will admit.
Political liberty may be defined to be the security with which, from the constitution, form, and nature of the established government, the subjects enjoy civil liberty. No ideas or definitions are more distinguishable than those of civil and political liberty; yet they are generally confounded; and the latter cannot yet claim an appropriate name. The learned judge uses political and civil liberty indiscriminately; but it would, perhaps, be convenient uniformly to use those terms in the respective senses here suggested, or to have some fixed specific denominations of ideas which in their nature are so widely different. The last species of liberty has probably more than the rest engaged the attention of mankind, and particularly of the people of England. Civil liberty, which is nothing more than the impartial administration of equal and expedient laws, they have long enjoyed nearly to as great an extent as can be expected under any human establishment.
But some who are zealous to perpetuate these inestimable blessings of civil liberty, fancy that our political liberty may be augmented by reforms, or what they deem improvements in the constitution of the government. Men of such opinions and dispositions there will be, and perhaps it is to be wished that there should be, in all times. But before any serious experiment is made, we ought to be convinced, by little less than mathematical demonstration, that we shall not sacrifice substance to form, the end to the means, or exchange present possession for future prospects. It is true, that civil liberty may exist in perfection under an absolute monarch, according to the well-known verse:—
- Fallitur egregiè quisquis sub principe credit
- Servitium. Nunquam libertas gratior extat
- Quam sub rege pio.
But what security can the subjects have for the virtues of his successor? Civil liberty can only be secure where the king has no power to do wrong, yet all the prerogatives to do good. Under such a king, with two houses of parliament, the people of England have a firm reliance that they will retain and transmit the blessings of civil and political liberty to the latest posterity.
There is another common notion of liberty, which is nothing more than a freedom from confinement. This is a part of civil liberty, but it being the most important part, as a man in a jail can have the exercise and enjoyment of few rights, it is κατ’ εξοχην called liberty.
But, where imprisonment is necessary for the ends of public justice, or the safety of the community, it is perfectly consistent with civil liberty. For Mr. Paley has well observed that “it is not the rigor, but the inexpediency, of laws and acts of authority, which makes them tyrannical.” (B. vi. c. 5.)
This is agreeable to that notion of civil liberty entertained by Tacitus, one who was well acquainted with the principles of human nature and human governments, when he says, Gothones regnantur paulò jam adductius, quam cæteræ Germanorum gentes, nondum tamen supra libertatem. (De Mor. Ger. c. 43.)
It is very surprising that the learned commentator should cite with approbation, (p. 6, and 125,) and that Montesquieu should adopt, (b. xi. c. 13,) that absurd definition of liberty given in Justinian’s Institutes:—Facultas ejus, quod cuique facere libet, nisi quod vi, aut jure prohibetur. The liberty here defined implies that every one is permitted to do whatever is not forbidden by an existing law, and perhaps whatever is not forbidden to all. The word vi seems to refer to a restraint against law. In every country, and under all circumstances, the subjects possess the liberty described by this definition.
When an innocent negro is seized and chained, or is driven to his daily toil by a merciless master, he still retains this species of liberty, or that little power of action, of which force and barbarous laws have not bereft him. But we must not have recourse to a system of laws, in which it is a fundamental principle, quod principi placuit, legis habet rigorem, for correct notions of liberty.
So far the editor thought it proper to suggest to the student the different significations of the word liberty; a word which it is of the utmost importance to mankind that they should clearly comprehend; for, though a genuine spirit of liberty is the noblest principle that can animate the heart of man, yet liberty, in all times, has been the clamour of men of profligate lives and desperate fortunes: Falsò libertatis vocabulum obtendi ab iis, qui privatim degeneres, in publicum exitiosi, nihil spei, nisi per discordias habeant. (Tac. 11 Ann. c. 17.) And the first sentence of our Hooker’s Ecclesiastical Polity contains no less truth and eloquence:—“He that goeth about to persuade a multitude that they are not so well governed as they ought to be, shall never want attentive and favourable hearers.”
The editor cannot but cherish even a confident hope, that they who acquire the most intimate acquaintance with the laws and the constitution, will always be the most convinced, that to be free, is to live in a country where the laws are just, expedient, and impartially administered, and where the subjects have perfect security that they will ever continue so; and, allowing for some slight, and perhaps inevitable, imperfections, that to be free, is to be born and to live under the English constitution. Hanc retinete, quæso, Quirites, quam vobis tanquam hæreditatem, majores vestri reliquerunt. Cic. 4 Phil.—Christian.
[(g) ] Salk. 666. See ch. 14.
[6 ] It is not to the soil, or to the air, of England, that negroes are indebted for their liberty, but to the efficacy of the writ of habeas corpus, which can only be executed by the sheriff in an English county. I do not see how the master’s right to the service can possibly continue; it can only arise from a contract, which the negro in a state of slavery is incapable of entering into with his master. See page 425.—Christian.
The reader may peruse the case of Forbes vs. Cochrane, 2 B. & C. 448; 3 D. & R. 679, S. C., the judgments in which are “luminous, profound, and eloquent.” The placitum of the case is:—“Where negroes in a state of slavery, in a colony of Spain, escaped from their master’s plantation, and took refuge, and were received on board a British vessel-of-war, whilst she was stationed at an island captured by his majesty’s arms from the United States in time of war; and, after notice given to the officers commanding on the station, that they were runaway slaves, the officer carried them to, and left them at, a British colony;—held that case would not lie in this country against the officers for harbouring and detaining such negroes, even though by the lex loci, whence they escaped, slavery was permitted.”—Chitty.
[7 ] Lord Camden concluded his judgment in the case of general warrants in the same words:—“One word more for ourselves; we are no advocates for libels; all governments must set their faces against them, and whenever they come before us and a jury, we shall set our faces against them; and if juries do not prevent them, they may prove fatal to liberty, destroy government, and introduce anarchy; but tyranny is better than anarchy, and the worst government better than none at all.” 2 Wils. 292.—Christian.
[8 ] Civil liberty, the great end of all human society and government, is that state in which each individual has the power to pursue his own happiness, according to his own views of his interests and the dictates of his conscience, unrestrained, except by equal, just, and impartial laws. Laws are, therefore, the just and necessary limits of natural liberty. Political liberty, on the other hand, is that state in which the individual enjoys civil liberty with security; a security, as the experience of history shows, only to be attained by the force of public opinion, formed and influenced by an untrammelled press, and by the legislators being at stated intervals chosen by the people and from the people, upon whom their enactments are to operate. The particular form which may assign to the government its denomination in political science may be, and often is, important to this end, but not of the essence of political liberty. It follows, too, from this definition, that some classes or orders of men in a country may enjoy a higher degree of political liberty than others, while some, indeed, may be entirely deprived of it. “The value of any form of government,” says Mr. Palgrave, “depends upon the protection which through the law it affords to the individual.” The same sentiment has been well expressed by William Penn:—“Any government is free to the people under it, whatever be the frame, where the laws rule and the people are a party to those laws; and more than this is tyranny, oligarchy, and confusion.”
It is certainly true that law in its turn may be a tyrant, whether enacted by the will of one man or of a majority of the people. Laws may justly restrain all classes of actions whose tendencies are to impair individual security, whether those actions are abstractly right or wrong in themselves, useful or noxious in particular instances. The converse of the proposition is true. Whenever laws attempt more than is necessary to secure alike to every man, weak or strong, rich or poor, ignorant or instructed, the right, the moral power, of seeking his own happiness in his own way, they invade that natural liberty of which they ought only to be the bulwark. To this security, it is certainly necessary that violence, fraud, and crime should be prevented, and, as the most efficient means of prevention, punished. We may go further, and say punished without regard to the preventive effects of punishment, considering the civil ruler in this respect as the sword-bearer of the Deity, and bound to enforce his moral law. Nay, we may still advance a step, and hold that such injuries in a perfect system should in every instance be compensated, either by the community directly, or by its force applied to the offender. To the security of which we speak, it is further necessary that general rules should be established and promulgated, and tribunals erected, whose wisdom, independence, and impartiality should be as carefully provided for as possible, to determine controversies between men, with power to enforce the execution of their judgments. It may be that the means of intercourse with other members of the society inhabiting the same territory, and with other states and countries, for the mutual interchange of kind offices, the products of labour, the works of genius and learning, and the discoveries of science, should be provided for; that public institutions should be founded for the care of the old, sick, and impotent, the forced employment of the idle and imprudent, and for the education of the young, whose education otherwise would be neglected. Perhaps, in the progress of society, it may be found that some of these subjects, important as they appear to be and undoubtedly are, may be safely left to take care of themselves, and that the assumption by government of the imperfect obligations of individuals is never the part of a wise policy. There are, indeed, many subjects in regard to which we may well hesitate in deciding whether or not they fall within the legitimate province of government. This, however, may be safely said, that there is not much danger of erring upon the side of too little law. It is not in the making of laws, but in their stern and impartial execution, that there is danger of failure. Few laws well executed are better than many laws slumbering on the statute-book. These are snares to the unwary; weapons of fraud and injustice in the hands of the astute, reducing government itself to a condition of odium and weakness. The true strength, stability, and glory of every government rest upon the intelligent loyalty of its subjects. The world is notoriously too much governed. Legislators almost invariably aim at accomplishing too much. Representative democracies, so far from being exempt from this vice, are from their nature peculiarly liable to it. Annual legislatures increase the evil. The members fall into the common mistake that their commission is to act, not merely to decide whether action is necessary. They would be blamed and ridiculed if they adjourned without some important act of legislation. Hence the annual volumes of our acts of assembly are fearfully growing in bulk. It is not merely of the extent of local legislation, or of the constantly recurring changes in the most general subjects of interest,—finance, revenue, banking, and pauperism,—that there is reason to complain; but scarce a session of the legislature passes without rash and ill-considered alterations in the civil code, vitally affecting private rights and relations. Such laws are very frequently urged by men having causes pending, who dare not boldly ask that a law should be made for their particular case, but who do not hesitate to impose upon the legislature, by plausible arguments, the adoption of some general rule, which by a retrospective construction will have the same operation. It is a most monstrous practice, which lawyers are bound by the true spirit of their oath of office, and by a comprehensive view of their duty to the constitution and laws which they bear so large a part in administering, to discountenance and prevent. It is to be feared that too often it is the counsel of the party, who recommends and cunningly frames the bill, which, when enacted into a law, is legislatively to decide the cause. These bills are sometimes appropriately called makes. It is time that a resort to such a measure should be regarded in public estimation as a flagrant case of professional infidelity and misconduct.
It has become a favourite maxim that it is the great duty of government to promote the happiness of the people. The phrase may be interpreted so as to mean well; but it is a very inaccurate and unhappy one. It is the inalienable right of the people to pursue their own happiness; and the true and only true object of government is to secure them this right. The happiness of the people is the happiness of the individuals, who compose the mass. Speaking now with reference to those objects, which human laws can reach and influence, he is the happy man, who sees his condition in life constantly but gradually improving. Even sudden changes of fortune from worse to better hold no comparison with this. Laws, which open the door to the sudden creation of large fortunes by speculation, have no tendency to promote the happiness of the people at large; often, alas! not even the happiness of those for whose benefit they are made. On the contrary, in so far as they operate, as they mostly do, directly or indirectly, to transfer property from the masses to the favoured few, they contract the general limits of private comfort and independence. The intellectual, moral, and religious capabilities enter largely into the account. They too must be in the process of gradual improvement to satisfy the longings of a rational soul,—one of the best signs that it is destined to an immortal existence and growth. It is certainly true, in the broad sense of the word, that the wealth of a community is not necessarily the weal of the community. “A political institution,” says Mr. Austin, “may further the weal of the community, though it checks the growth of its wealth; a political institution, which quickens the growth of its wealth, may hinder the advancement of its weal.” Yet the wealth of individuals, the aggregate of which is the wealth of the state, is notwithstanding one great source of physical, intellectual, and moral advancement, the stimulus and reward of effort and enterprise. Government can protect and promote it but in one way,—by equal and just laws, and the wise and impartial administration of them. It usurps functions, which do not belong to it, and functions which it is not competent to use well, when it undertakes to interpose by directing the pursuits of industry or encouraging its employment in any particular manner. All that a government takes out of the pocket of individuals in the shape of taxes, direct or indirect, for any other than its appropriate and legitimate purposes, is an invasion of their right to the enjoyment of the fruits of their own labour of mind or body. The power of taxation in the legislature is in fact a part of the eminent domain,—a power that must necessarily be reposed in the discretion of every government to furnish the very means for its own existence. The unwise and even corrupt exercise of it is undoubtedly to be submitted to by the good citizen; but no effort should be spared in any state to procure the repeal of all such laws, and to reduce government from a complicated to a simple machine, a few general objects steadily kept in view and strictly adhered to. The days of kingcraft and government-craft are passing away. “The people,” as Lord Brougham has well said, “ought to have the greatest liberty they can safely enjoy, and the cheapest government that suffices to regulate their affairs.” (Political Philosophy, vol. i. p. 64.) “As all government is made for the benefit of the community, the people have a right not only to be governed, but to be governed as well as possible; that is, with as little expense to their natural freedom and their resources as is consistent with the nature of human affairs. Towards this point of perfection all nations ought constantly to be directing their course.” Ibid. p. 27.—Sharswood.
[(h) ] 2 Inst. proem.
[(i) ] 25 Edw. 1.
[(k) ] 2 Inst. proem.
[(l) ] 1 W. and M. st. 2, c. 2.
[(m) ] 12 and 13 W. III. c. 2.
[(n) ] Plowd. 55.
[9 ] The distinction between murder and manslaughter, or felonious homicide, in the time of Bracton, was in a great degree nominal. The punishment of both was the same, for murder as well as manslaughter, by the common law, had the benefit of clergy. Fost. 302.—Christian.
[(o) ]Si aliquis mulierem pregnantem percusserit, vel ei venenum dederit, per quod fecerit abortivam; si puerperium jam formatum fuerit, et maxime si fuerit animatum, facit homicidium. Bracton, l. 3, c. 21.
[10 ] But if the child be born alive, and afterwards die in consequence of the potion or beating, it will be murder, (3 Inst. 50. 1 P. Wms. 245;) and of course those who, with a wicked intent, administered the potion, or advised the woman to take it, will be accessaries before the fact, and subject to the same punishment as the principal.—Christian.
[(p) ] 3 Inst. 50.
[11 ] Every legitimate infant in ventre de sa mere is considered as born for all beneficial purposes. (Co. Litt. 36. 1 P. Wms. 329.) Thus if lands be devised to B. for life, remainder to such child or children as shall be living at the time of his decease, a posthumous child will take equally with those who were born before B.’s death. Doe vs. Clark, 2 Hen. Bla. 399. But the presumptive heir may enter and receive the profits to his own use till the birth of the child, who takes land by descent. 3 Wils. 526. See 1 Ves. 81, 85 2 Atk. 117. 1 Freem. 244. 293; also 2 Book, 169, post.—Chitty.
Such infant, &c. may have a distributive share of intestate property even with the half-blood, (1 Ves. 81:) it is capable of taking a devise of land, (2 Atk. 117. 1 Freem. 244, 293:) it takes, under a marriage settlement, a provision made for children living at the death of the father. (1 Ves. 85.) And it has lately been decided that marriage and the birth of a posthumous child amount to a revocation of a will executed previous to the marriage. (5 T. R. 49.) So in executory devises it is considered as a life in being. (7 T. R. 100.) It takes land by descent, though in that case the presumptive heir may enter and receive the profits for his own use till the birth of the child, (3 Wils. 526,) which seems to be the only interest it loses by its situation.—Christian.
“But as it respects the rights of others claiming through the child, if it is born dead, or in such an early stage of pregnancy as to be incapable of living, it is to be considered as if it never had been born or conceived. 2 Parjes C. R. 35.”—Chitty.
If the child dies subsequently to birth from wounds received in the womb, it is clearly homicide, even though the child is still attached to the mother by the umbilical cord. It has been said that it is not an indictable offence to administer a drug to a woman, and thereby to procure an abortion, unless the mother is quick with child, though such a distinction, it is submitted, is neither in accordance with the result of medical experience, nor with the principles of the common law. The civil rights of an infant in ventre sa mere are equally respected at every period of gestation; and it is clear that, no matter at how early a stage, he may be appointed executor, is capable of taking as legatee or under a marriage settlement, may take specifically under a general devise as a child, and may obtain an injunction to stay waste. Wharton’s American Crim. Law, 537. See Comm. vs. Parker, 9 Metcalf, 263. State vs. Cooper, 2 Zabriskie, 57. Smith vs. State, 33 Maine, 48.
An infant is in esse from the time of conception, for the purpose of taking any estate which is for his benefit, whether by descent, devise, or under the statute of distributions, provided the infant be born alive and after such a period of fœtal existence that its continuance in life may be reasonably expected. The right of an unborn infant to take property by descent or otherwise is an inchoate right, which will not be completed by a premature birth. Harper vs. Archer, 4 Smedes & Marsh. 99. Marsellis vs. Halkimer, 2 Paige, Ch. Rep. 35.—Sharswood.
[(q) ] Stat. 12 Car. II. c. 24.
[(r) ] Stat. 10 and 11 W. III. c. 16.
[(s) ]Qui in utero sunt, in jure civili intelliguntur in rerum natura esse, cum de eorum commodo agatur. Ff. 1, 5, 26.
[(t) ] 2 Inst. 483.
[(u) ]l. 2, c. 5.
[(x) ] 2 Inst. 483.
[12 ] It must be observed that, in modern times, parties have been allowed to rely upon, if not technically to plead, duress in avoidance of their deeds or contracts in cases which do not come up to the rule laid down in the text. Duress of goods will, under certain circumstances of great difficulty and hardship, avoid a contract. Money paid to obtain a delivery of property unlawfully detained, especially if it is paid under protest, may be recovered back. 2 Bay, 211. 9 Johns. 201. 10 Peters, 137. A note given to obtain a release of property from an illegal levy is not void; but it may be considered as an element in a question of fraud. 6 Smedes & Marsh. 13.—Sharswood.
[(y) ]L. 11, c. 27.
[(z) ] Co. Litt. 133.
[(a) ] This was also a rule in the feodal law, l. 2, c. 21: desiit esse miles seculi, qui factus est miles Christi; nec beneficium pertinet ad eum qui non debet genere officium.
[(b) ] Litt. 200.
[(c) ] Co. Litt. 133.
[(d) ] 2 Rep. 48; Co. Litt. 182.
[(e) ] Co. Litt. 132.
[(f) ] 1 Salk. 162.
[13 ] One species of civil death may still exist in this country; that is, where a man by act of parliament is attainted of treason or felony, and, saving his life, is banished forever: 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 same reason, where a man receives judgment of death, and afterwards leaves the kingdom 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 says, that a man can only lose his country by authority of parliament. Ib.—Christian.
[14 ] This is a compliment, which I fear the common law does not deserve; for although it did not punish with death any person 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 stealing only of twelve pence farthing.—Christian.
[(g) ] C. 29.
[(h) ] 2 Inst. 48.
[(i) ] C. 29.
[15 ] “For the true sense and exposition of these words,” says Lord Coke, (2 Inst. 50,) “see the statute of 37 Eliz. cap. 8, where the words ‘by the law of the land’ are rendered, without due process of law.” The amendments to the constitution of the United States use the language, “nor be deprived of life, liberty, or property, without due process of law.” And Judge Story observes that “this clause in effect affirms the right of trial according to the process and proceedings of the common law.” (3 Story on the Const. 661.) “These terms ‘law of the land’ do not mean merely an act of the general assembly. If they did, every restriction upon the legislative authority would be at once abrogated.” 4 Devereux, 1. 10 Yerger, 59. 19 Wend. 659. “In a state which is governed by a written constitution like ours, if the legislature should so far forget its duty, and the natural rights of an individual, as to take his private property and transfer it to another, where there was no foundation for a pretence that the public was to be benefited thereby, I should not hesitate to declare that such an abuse of the right of eminent domain was an infringement of the spirit of the constitution, and therefore not within the general powers delegated by the people to the legislature.”—Ch. Walworth, 5 Paige, 137.—Sharswood.
[(j) ] 5 Edw. III. c. 9. 25 Edw. III. st. 5. c. 4. 28 Edw. III. c. 3.
[16 ] The writ of habeas corpus at common law, although a writ of right, is not grantable of course, but only on motion in term-time, stating a probable cause for the application, and verified by affidavit. Hobhouse’s Case, 3 B. & Ald. 420. The cases in which prisoners have a right to the writ are when they are detained in prison when they are entitled to be admitted to bail. This right is secured to such prisoners by the 31 Car. II. c. 2. Before the passing of that statute, prisoners committed for bailable offences were sometimes kept for a long time in prison without being brought to trial. To prevent this grievous oppression, the habeas corpus act directs that if any person be committed or detained for any crime, unless for treason or felony, other than persons convict or in execution by legal process, he may apply to the lord-chancellor or a judge in vacation, and the person so applied to is to cause such prisoner to be brought before him, and to discharge him from imprisonment, upon his recognizance to appear in the court where his offence is cognizable. In cases which come under this statute, a single judge may perhaps be obliged to grant the writ as of course, but in no other; and the provision of this law do not apply to writs grantable by the court in term-time. Best, J.: Ibid. Passmore Williamson’s Case, 26 Penna. State Reg. 9.
In some of the States it is enacted that the judge or court before which the writ is returned shall have authority to revise the cause of commitment, and to examine into the truth of the facts alleged in the return. The English statute of 56 Geo. III. c. 100 conferred the like power. If it appears, on the return, that the prisoner stands committed for a contempt adjudged against him by any tribunal of competent authority, the court or judge awarding the writ cannot examine into the fact of such contempt or bail the prisoner, but must immediately remand him. The adjudication is a conviction, and the commitment an execution. Murray’s Case, 1 Wilson, 200. Crosby’s Case, 3 Wilson, 188. Hobhouse’s Case, 3 B. & Ald. 420.
It is provided by the constitution of the United States that the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it. (Art. 1, sec. 9.) The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrants shall issue but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized. (Amendments, Art. VI.) No person shall be deprived of life, liberty, or property without due process of law. (Ibid., Art. VII.) Excessive bail shall not be required. (Ibid. Art. X.) These provisions have been copied almost without exception into the various Bills of Rights, &c. which form parts of the several State constitutions.—Sharswood.
[(k) ] I have been assured upon good authority, that, during the mild administration of Cardinal Fleury, above 54,000 lettres de cachet were issued upon the single ground of the famous bull unigenitus.
[(l) ] 2 Inst. 589.
[(m) ] 2 Inst. 482.
[17 ] As an arrest is an imprisonment in the large sense of the word, this position, that imprisonment, to be lawful, should be by process or warrant, must be understood with the qualifications pointed out in the Chapter on Arrests, b. iv. ch. 21. A constable or peace-officer has a right to arrest without warrant, upon probable ground of suspicion shown; and even a private person may justify an arrest without warrant, by proof of the guilt of the party arrested.
To constitute duress at law, the arrest must have been originally illegal, or have become so by subsequent abuse of it. 2 Watts, 167. 2 Foster, 303. An arrest for a just cause and under lawful authority, if for an unlawful purpose, will be construed duress of imprisonment. 8 N. Hamp. 386.—Sharswood.
[(n) ] Ibid. 52, 53.
[(o) ] F. N. B. 85.
[18 ] The executive may annex to a pardon any condition, whether precedent or subsequent, not forbidden by law; and it lies on the grantee to perform it. It is not an unlawful condition that the party shall depart or be removed from the country. Flavill’s Case, 8 Watts & Serg. 197.—Sharswood.
[(p) ] C. 29.
[(q) ] 2 Inst. 46.
[(r) ] C. 29.
[(s) ] 5 Edw. III. c. 9. 25 Edw. III. st. 5, c. 4; 28 Edw. III. c. 3.
[19 ] These observations must be taken with considerable qualification; for, as observed by Buller, J., there are many cases in which individuals sustain an injury for which the law gives no action. For instance, pulling down houses or raising bulwarks for the preservation and defence of the kingdom against the king’s enemies. The civil law writers, indeed, say that the individuals who suffer have a right to resort to the public for a satisfaction, but no one ever thought that the common law gave an action against the individual, who pulled down the house, &c. And where the acts of commissioners, appointed by a paving act, occasion a damage to an individual, without any excess of jurisdiction on their part, the commissioners or paviors acting under them are not liable to an action. 4 Term. Rep. 794, 6, 7. 3 Wils. 461. 6 Taunton, 29. In general, however, a power of this nature must be created by statute, which usually provides compensation to the individual. Thus, by the highway act, (13 Geo. III. c. 78, and 3 Geo. IV. c. 126, sec. 84, 85,) two justices may either widen or divert any highway through or over any person’s soil, even without his consent, so that the new way shall not be more than thirty feet wide, and that they pull down no building, nor take away the ground of any garden, park, or yard. But the surveyor shall offer the owner of the soil over which the new way is carried a reasonable compensation, which if he refuses to accept, the justices shall certify their proceedings to some general quarter-sessions, and the surveyor shall give fourteen days’ notice to the owner of the soil of an intention to apply to the sessions; and the justices of the sessions shall empanel a jury, who shall assess the damages which the owner of the soil has sustained, provided that they do not amount to more than forty years’ purchase. And the owner of the soil shall still be entitled to all the mines within the soil which can be got without breaking the surface of the highway. Many other acts for local improvements, recently passed, contain similar compensation clauses.—Chitty.
The constitution of the United States has provided (Amendments, Art. V.) that private property shall not be taken for public use without just compensation. A similar provision is contained in the several State constitutions. The compensation may be ascertained in any equitable and fair mode, to be provided by law, without the intervention of a jury, inasmuch as trial by jury is only required on issues in fact, in civil and criminal cases in courts of justice. The better opinion is that the compensation or offer of it must precede or be concurrent with the seizure and entry upon private property under the authority of the State. In Bonaparte vs. Camden & Amboy Railroad Co., 1 Baldwin, 205, it was held that a law taking private property for public use without providing compensation was not void; for it may be provided by a subsequent law. But the execution of the law will be prevented by injunction until the provision is made, and the payment ought to be simultaneous with the actual appropriation of the property. It has been determined, however, that it is sufficient if provision be made to ascertain and pay the damages: they need not be actually ascertained and paid previous to the entry and appropriation of the property. Bloodgood vs. Railroad Co., 18 Wendell, 1, 59. This is the construction given to English statutes in like cases, and frequently, as Lord Denman observed, the amount of compensation cannot be ascertained until the work is done. Lister vs. Lobley, 7 Ad. & Ell. 124.
There are cases undoubtedly in which the right to destroy property may exist without any remedy by the owner against the public or individuals. Thus it has been held that the right to destroy property in cases of extreme emergency, as to prevent the spread of a conflagration, is not the exercise of the right of eminent domain, nor the taking of it for public use, but is a right existing at common law, founded on the plea of necessity, and may be exercised by individuals. The American Print Works vs. Laurens, 1 Zabriskie, 248. See 2 Kent’s Com. 339, notes.—Sharswood.
[(t) ] See the introduction to the great charter, (edit. Oxon.) sub anno 1297; wherein it is shown that this statute de talliagio non concedendo, supposed to have been made in 34 Edw. I., is, in reality, nothing more than a sort of translation into Latin of the confirmatio cartarum, 25 Edw. I., which was originally published in the Norman language.
[20 ] Chancellor Kent enumerates among the absolute rights of individuals the free exercise and enjoyment of religious profession and worship. Civil and religious liberty generally go hand in hand; and the suppression of either of them for any length of time will terminate the existence of the other. It is ordained by the constitution of the United States (Amendments, Art. I.) that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; and the same prohibition on the State legislature appears in all the State constitutions. The principle is generally announced in them without any kind of qualification or limitation annexed, and with the exclusion of every species of religious test. He adds a brief account of the early charters and laws, so far as they bear on the point, and concludes that it appears from these illustrious examples that various portions of this country became, even in its infant state, distinguished asylums for the enjoyment of the principles of civil and religious liberties by the persecuted votaries of those principles from every part of Europe. 2 Kent’s Com. 34.
Another of the absolute rights of individuals, in a state of society, which ought not to be omitted in such an examination, is the freedom of speech and of the press. The constitution of the United States has made the general provision that Congress shall make no “law abridging the freedom of speech or of the press.” (Amendment, Art. I.) The State Bills of Rights have clauses of the same character, but more precise and particular. We may take that of Pennsylvania as an instance:—“The printing-presses shall be free to every person, who undertakes to examine the proceedings of the legislature, or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. In prosecutions for the publication of papers investigating the official conduct of officers, or men in a public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.” (Const. Penn., Art. IX. s. 7.) in some constitutions the extension of the right to give the truth in evidence is more at large, and applies to all prosecutions or indictments for libels, without any qualifications annexed in restraint of the privilege. 2 Kent’s Com., 23, note.—Sharswood.
[(u) ] C. 29.
[(w) ] 2 Inst. 55.
[(x) ] C. 29.
[21 ] “The right of the people peaceably to assemble and to petition the government for a redress of grievances shall not be prohibited.” (Const. U. S. Amendments, Art. III.) This clause was the subject of much discussion in regard to petitions presented to Congress for the abolition of slavery in the District of Columbia; and it was the decision of Congress then that this clause did not imply any duty in the legislature to receive, read, or act upon such petitions.—Sharswood.
[(y) ] Montesq. Sp. L. xii. 26.
[22 ] Which the grand jury may do either at the assizes or sessions. The punishment for an offence against this act, is a fine to any amount not exceeding 100l., and imprisonment for three months. At the trial of lord George Gordon, the whole court, including lord Mansfield, declared that this statute was not affected by the bill of rights. 1 Wm. & M. st. 2, c. 2, (see Douglas, 571.) But Mr. Dunning in the house of commons, contended, “that it was a clear and fundamental point in the constitution of this country, that the people had a right to petition their representative in parliament, and that it was by no means true that the number of names signed to any such petition was limited. To argue that the act of Charles was now in force, would be as absurd as to pretend that the prerogative of the crown still remained in its full extent, notwithstanding the declaration in the bill of rights.” See New An. Reg. 1781, v. 2. And the acknowledged practice has been consistent with this opinion.
The state of disturbance and political excitement in which this kingdom was involved several years, after the peace of 1815, produced further regulations and restrictions of the right of petitioning. The people in the manufacturing districts having little employment, from the general stagnation of trade, devoted themselves with intense ardour to political discussions, and in some places the partisans of reform, presuming that their demands would not be conceded to their petitions, were preparing for the alternative of open force. In these circumstances the legislature thought fit to forbid all public meetings (except county meetings called by the lord-lieutenant or the sheriff) which consisted of more than fifty persons, unless in separate townships or parishes, by the inhabitants thereof, of which six days’ previous notice must be given to a justice of the peace, signed by seven resident householders. See 60 Geo. III. c. 6. The act also provides for the dissolution of any public meeting by proclamation of a chief civil officer of the place, and persons refusing to depart, are liable to seven years’ transportation. Persons attending such meetings with arms, bludgeons, flags, banners, &c., are subject to fine and imprisonment for any term not exceeding two years.
But as the mischief was temporary, the restrictions upon the right of meeting to deliberate upon public measures were limited in their duration, and have mostly expired; those enactments which were designed to prevent such meetings from being perverted to objects manifestly dangerous to the peace of the community, only continuing in force.—Chitty.
[23 ] The right of the people to keep and bear arms shall not be infringed; (Const. U. S. Amendments, Art. IV.;) and this without any qualification as to their condition or degree, as is the case in the British government. Whoever examines the forest and game laws in the British code will readily perceive that the right of keeping arms is effectually taken away from the people of England. The commentator himself informs us (vol. ii. p. 412) “that the prevention of popular insurrections and resistance to government by disarming the bulk of the people is a reason oftener meant than avowed by the makers of the forest and game laws.”—Tucker.
[(z) ] Montesq. Sp. L. 5.
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