above which, equity is also frequently called in to assist, to moderate, and to explain them. What equity is will be shown hereafter. At present I shall only add, that there are courts of equity established for the benefit of the subject; to detect latent frauds and concealments, which the process of the courts of law is not adapted to reach; to enforce the execution of such matters of trust and confidence as are binding in conscience, though not cognizable in a court of law; to deliver from such dangers as are owing to misfortune or oversight; and to give a more specific relief, and one more adapted to the circumstances of the case, than can always be obtained by the generality of the rules of the positive or common law.

THE LAWS OF ENGLAND.

BOOK THE FIRST.

OF THE RIGHTS OF PERSONS. ·

CHAPTER I.

OF THE ABSOLUTE RIGHTS OF INDIVIDUALS.

The English liberties-Right of personal security-Right of personal liberty— Right of property-Securities for the enjoyment of these rights.

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.

Now, as municipal law is a rule of civil conduct, commanding what is right, and prohibiting what is wrong; it follows, that the primary and principal objects of the law are RIGHTS and WRONGS. In the prosecution therefore of these commentaries, I shall follow this very simple and obvious division; and shall in the first place consider the rights that are commanded, and secondly the wrongs that are forbidden by the laws of England.

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 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 particulars rights, concern individuals merely, 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 misdemeanors.

The object 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 and losing them. 3. Private wrongs, or civil injuries; with the means of redressing them by law. 4. Public wrongs, or crimes and misdemeanors; with the means of prevention and punishment.

We are now, first, to consider the rights of persons; which are of two sorts; first, such as are due from every citizen, and are usually called civil duties; and, secondly, such as belong to him, which is the more popular acceptation of rights or jura. But both may be comprised in this latter division; for, as all social duties are of a relative nature, at the same time that they are due from one man, or set of men, they must also be due to another.

Persons also are divided by the law into either natural persons or artificial. Natural persons are such as 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 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 to perform, considered as a mere individual, it is not to be expected that any human municipal law should at all explain or enforce them; for the end and intent of such laws being only to regulate the behaviour of mankind, as they are members of society, and stand in various relations to each other, they have consequently no concern with any other but social or relative duties. Let a man, therefore, be ever so abandoned in his principles, or vicious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be such as seem principally to affect himself (as drunkenness, or the like), they then become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them. Here the circumstance of publication is what alters the nature of the Public sobriety is a relative duty, and therefore enjoined by

case.

our laws; private sobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil sanction. But with respect to rights, the case is different. Human laws define and enforce as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others. The absolute rights of man 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. 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, obliges himself to conform to those laws which the community has thought proper to establish. And this species of legal obedience is infinitely more desirable than that savage liberty which is sacrificed to obtain it. For no man that considers a moment would wish to retain the 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 further) as is necessary and expedient for the general advantage of the public. Hence we may collect that the law, which restrains a man from doing mischief to his fellowcitizens, though it diminishes the natural, increases the civil liberty of mankind; but that every causeless restraint of the will of the subject, is a degree of tyranny: nay, that even laws themselves, if they constrain our conduct in matters of mere indifference, without any good end in view, are regulations destructive of liberty: whereas, if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance, by supporting that state of society, which alone canse cure our independence. So that laws, when prudently framed, are by no means subversive, but rather introductive of liberty; for where there is no law there is no freedom. But then, on the other hand, that constitution or frame of government, that system of laws is alone calculated to maintain civil liberty which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint.

The absolute rights of every Englishman (which, in a political sense, are usually called their liberties), are coeval with our form of government. At some times we have seen them depressed by

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. 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.

First, by the Great Charter of Liberties, which was obtained from King John, and afterwards, with some alterations, confirmed in parliament by Henry III., his son. Afterwards by the Confirmatio Cartarum, whereby the Great Charter is directed to be allowed as the common law; and all judgments contrary to it are declared void. Next, by a multitude of subsequent corroborating statutes, from the first Edward to Henry IV. Then, after a long interval, by the Petition of Right; a parliamentary declaration of the liberties of the people, assented to by King Charles I. in the beginning of his reign. Which was followed by the Habeas Corpus Act, passed under Charles II. To these succeeded the Bill of Rights, or declaration delivered by the lords and commons to the Prince and Princess of Orange; and afterwards enacted in parliament when they became king and queen. Lastly, these liberties were again asserted at the commencement of the last century, in the Act of Settlement, the statute declaring them to be "the birthright of "the people of England," according to the ancient doctrine of the common law.

Thus much for the declaration of our rights and privileges. The rights themselves consist in a number of private immunities; which are indeed no other, than either that residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society has engaged to provide, in lieu of the natural liberties so given up by individuals. And these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property: because, as there is no other known method of compulsion, or of abridging man's natural free-will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense.

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 a right inherent by nature in every individual; and it