Counties corporate.

There are also counties corporate: which are certain cities and towns, some with more, some with less territory annexed to them; to which out of special grace and favour the kings of England have granted the privilege to be counties of themselves, and not to be comprised in any other county; but to be governed by their own sheriffs (c) and other magistrates, [*143] so that no officers of *the county at large have any power to intermeddle therein. Such are London, York, Bristol(d), Norwich, Coventry, and many others(e). And thus much of the countries subject to the laws of England.

(c) See 5 & 6 Wm. 4, c. 76, s. 61.

(d) In R. v. Goodere, 17 St. Tr. 1075, tried at Bristol, Sir M. Foster (Recorder) observed that no evidence is so proper to prove the boundaries of any county as the constant ex

ercise of jurisdiction in the place in question where that sort of evidence can be had.

(e) Which are enumerated in 3 Geo. 1, c. 15; but see 5 & 6 Wm. 4, c. 76, ss. 61, 109.

BOOK THE FIRST.

THE RIGHTS OF PERSONS.

CHAPTER I.

THE ABSOLUTE RIGHTS OF INDIVIDUALS.

THE laws of England are so numerous and diverse, that in order to consider them with perspicuity, they must be distributed by the Commentator 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; which might be equally productive of confusion.

Now, as municipal law is "a rule of civil conduct, commanding what is right, prohibiting what is wrong, and regulating matters in themselves indifferent "(a); or as Cicero (b), and after him our Bracton (c), has expressed it sanctio justa, jubens, honesta et prohibens contraria(d); 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.

1. persons or

2. things.

[*146]

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 Rights: respect jura personarum or the rights of persons; or, 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(e). Wrongs also are divisible into, first, private wrongs, which, infringing merely particular rights, concern individuals only, and are called civil injuries; and secondly, public wrongs, which being in breach of general and public rights, affect the whole community, and are called crimes and misde

Wrongs are

1. private or 2. public.

meanors.

Regard being had to the above fourfold division, the present Commentaries will consist of the following parts: 1. The rights of persons; with the means

(a) Ante, p. 37.

11 Philipp. 12. (c) L. 1, c. 3.

(d) Norma recti (3 Bulstr. 313), jubens honesta et prohibens contraria (2 Inst. 587).

(e) This classification was adopted by Lord C. J. Hale (see Hale's Analysis of the Law), who introduced it into our system from the Institutes. It has also been adopted in the

code civil of France.

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, including breaches of contract; with the means of redressing them by law. 4. Public wrongs or crimes; with the means of preventing and punishing them.

First we are to consider the rights of persons; with the means of acquiring and losing them.

Now the rights of persons that are commanded to be observed by the municipal law are of two sorts: first, such as are due from every citizen, which are usually called civil duties; and, secondly, such as belong to him, which is the more popular acceptation of rights or jura. Both of such rights. may indeed 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

1. Rights respecting persons; divisions

[*147] man, or set of men, they must *also be due to another. But I apprehend it will be more clear and easy, to consider many of them as duties required from, rather than as rights belonging to, particular persons. Thus, allegiance is usually, and therefore most easily, considered as the duty of the people, and protection as the duty of the magistrate; and yet they are, reciprocally, the rights as well as duties of each other. Allegiance is the right of the magistrate, and protection the right of the people.

Persons are natu

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 ral or artificial. society and government, ex. gr., corporations, partnerships, &c. 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: relative, which are natural persons incident to them as members of society, and as standing in various relations to each other. The first, that is, absolute rights, will be the subject of the present chapter.

The rights of

are absolute or relative.

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, Absolute rights. 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 than 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 [*148] himself, and does not offend against the public peace or against the rules of public decency and decorum, 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, they may then become, by the bad example they set, of pernicious effect to society; and therefore it may then be the business of human laws to correct them. Here the circumstance of publicity is what alters the nature of the case. Public sobriety is a relative duty, the breach of which may expose to punishment; private sobriety is an absolute duty, whether it be

performed or not, human tribunals cannot know, and therefore they cannot 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.

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 law is, or ought to be, to explain, protect, and enforce such rights as are absolute, which in themselves are few and simple; and then such rights as are relative, which, arising from a variety of connexions, will be far more numerous and more complicated. These latter will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are *not, than rights of the former kind. Let us therefore proceed to examine how far all laws ought to, and how far the laws of England [*149] actually do, take notice of absolute rights, and provide for their lasting security. (55)

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 was endued 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 intercourse with his fellowmen, obliges himself to conform to those laws, which the community has thought proper to establish. 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 who considers a moment would wish to retain the absolute and uncontrolled power of doing whatever he pleases: conceding to every other man the same power: for 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 only restrained by human laws as is necessary and expedient

liberty,

(55) Under a government like that of the people of this country, the liberties and rights of the citizen are declared and secured by written constitutions, which are the paramount law of the land, binding upon individuals, courts or legislators. The student who desires to make himself familiar with the constitution of the United States, and also those of the different states of the Union, will carefully read the two volumes by Franklin B. Hough, and recently published by Messrs. Weed, Parsons & Co., and the valuable work of Judge Cooley on Constitutional Limitations. Both of these works possess the highest value for the American lawyer or statesman,

VOL. I.-14

for the general advantage of the public(f). Hence we may collect that the *law, which restrains a man from doing mischief to his fellow-citizens, [*150] though it diminishes the natural, increases the civil liberty of mankind; but that every wanton and causeless restraint of the will of the subject, whether practised by a monarch, a nobility or a popular assembly, is in a degree tyranny: nay, that even laws themselves, whether made with or without our consent, if they regulate and 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 can secure our independence. Thus the statute of king Edward IV. (g), which forbade the fine gentlemen of those times (under the degree of a lord) to wear pikes upon their shoes or boots of more than two inches in length, was a law that savoured of oppression; because, however ridiculous the fashion then in use might appear, the restraining it by pecuniary penalties could serve no purpose of common utility. But the statute of king Charles II. (h), which prescribed a thing seemingly as [*151] *indifferent (a dress for the dead, who were ordered to be buried in

woolen), was a law consistent with public liberty; for it encouraged the staple trade, on which in great measure depended the universal good of the nation. So that laws, when prudently framed, are by no means subversive but rather introductive of liberty; for (as Mr. Locke has well observed (i)) 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 throse points wherein the public good requires some direction or restraint of it.

On the English liberties.

The idea and practice of this political or civil liberty flourish in their highest vigour in these kingdoms, where the freedom accorded to each individual member of the community, falls little short of perfection, and can only be lost or destroyed by the folly or demerits of its owner: the legislature, and of course the laws of England, being peculiarly adapted to the preservation of this inestimable blessing even in the meanest subject. And this spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave, the moment he lands in England,

(f) Facultas ejus, quod cuique facere libet, nisi si quid vi aut jure prohibetur. Inst. i. 3, 1. Liberty," says Mr. Burke (Works, iii. 49, 185), "must be limited in order to be possessed. The degree of restraint it is impossible in any case to settle precisely. But it ought to be the constant aim of every wise public council to find out, by cautious experiinents and rational cool endeavours, with how little, not how much, of this restraint, the community can subsist. For liberty is a good to be improved, and not an evil to be lessened. It is not only a private blessing of the first order, but the vital spring or energy of the state itself, which has just so much life and vigour as there is liberty in it." "The liberty of man in society is to be

under no other legislative power, but that established by consent in the commonwealth; nor under the dominion of any will, or restraint of any law, but what that legislature shall enact, according to the trust put in it. Freedom of men under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where the rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man." Locke, Gov. ii. c. 4. (g) 3 Edw. 4, c. 5.

(h) 30 Car. 2, st. 1, c. 3; repealed by 54 Geo. 3, c. 108.

(i) On Gov. p. 2, s. 57.