falls under the protection of the laws, and may successfully assert his freedom(k). The absolute rights of every Englishman (which, taken in a political and extensive sense, are usually called his liberties), as they are founded on nature and reason, so are they 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 periods they have been depressed by overbearing and tyrannical princes; at others they have grown 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 [*152] from these embarrassments: and, as soon as the convulsions consequent on the struggle have been over, the balance of our rights and liberties. has again settled, more or less nearly, to its proper level; and the fundamental articles, on which those rights and liberties are based, have been from time to time asserted in parliament, as often as they were thought to be in danger. our liberties. First, by the great charter of liberties, which was obtained, sword in hand, from king John, and afterwards, with some alterations, confirmed in parliament The charters of by king Henry III., his son(). Which charter contained very few new grants; but, as sir Edward Coke(m) observes, was for the most part declaratory of the principal grounds of the fundamental laws of England. Afterwards by the statute called confirmatio cartarum(n), whereby the great charter is directed to be allowed as the common law; all judgments contrary to it are declared void; copies of it are ordered to be sent to all cathedral churches, and read twice a year to the people; and sentence of excommunication is directed to be as constantly denounced against those who by word, deed, or counsel, should act contrary thereto, or in any degree infringe it. Next, by a multitude of subsequent corroborating statutes (sir Edward Coke reckons thirty-two(0)), from the first Edward to Henry IV. Then, after a long interval, by the petition of right(p); which was a parliamentary declaration of the liberties of the people, assented to by king Charles I. in the beginning of his reign. This was closely followed by the still more ample concessions made by that unhappy prince to his parliament, before the fatal rupture between them; and by the many salutary laws, particularly the habeas corpus act(q), passed under Charles II. To these succeeded the bill of rights, or [*153] declaration delivered by the lords and commons to the prince and princess of Orange, 13 February, 1688; and afterwards enacted in parliament (r) when they became king and queen: which declaration concludes in these remarkable words; "and they do claim, demand, and insist upon, all and singular the premises, as their undoubted rights and liberties." And the act of parliament itself recognizes "all and singular the rights and liberties asserted and claimed in the said declaration to be the true, ancient, and indubitable rights of the people of this kingdom." Lastly, these liberties were again asserted at the commencement of the present century, in the act of settlement(s), whereby the crown was limited to her present Majesty's illustrious house; and some new provisions were added, at the same fortunate era, for better securing our (k) See Sommersett's case, and Note thereto, Broom's Const. Law, 65, 105, et seq. (9 Hen. 3. (m) 2 Inst. proëm. (n) 25 Edw. 1. (0) 2 Inst. proëm. (p) 3 Car. 1, c. 1. (r) 1 Will. & M. st. 2, c. 2. religion, laws, and liberties; which the statute declares to be "the birthright of the people of England," according to the ancient doctrine of the common law(t). Thus much for the declaration of our rights and liberties. The rights themselves, thus broadly defined by these several statutes, consist in a number of private immunities; which may be reduced to three principal or primary articles; I., the right of personal security; II., the right of personal liberty; and, III., 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 them, inviolate, may justly be said to include the preservation of our civil immunities in their largest and widest sense. I. The right of personal security consists in a person's legal and uninterrupted I. Right of per- enjoyment of his life, his limbs, his body, his health, and his sonal security. reputation. [*154] *1. Life is the immediate gift of God, a right inherent by nature in every individual. Even an infant in ventre sa mere, or in the mother's womb, is, for many purposes which will be specified in the course of these Commentaries, treated in law as if actually born.(56) 2. A man's limbs (by which for the present we understand those members which may be useful to him in fight, and the loss of which alone amounts to "mayhem (u) 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 even homicide if committed se defendendo, or in order to preserve them, is dispunishable(x). 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; such act, though accompanied with all other requisite solemnities, may be afterwards avoided, if forced upon him by a well-grounded apprehension of losing life, or even limb, in case of his non-compliance(y). The constraint a man is under in these circumstances is called in law duress, from the Latin durities, of which there are two sorts; duress of imprisonment, where a man actually loses his liberty, of which we shall presently speak; and duress per minas, where the hardship is only threatened and impending, which is that we are now discoursing of. Duress per minas is either for fear of loss of life, or else for fear of mayhem, or loss of limb. And this fear must be upon sufficient reason; "non," as Bracton (2) (t) Plowd. 55. (u) As to the technical significance of which word, see vol. iv. (x) 24 & 25 Vict. c. 100, s. 7. (56) In this country, an infant in ventre sa mere is considered as in esse, or in being, for all beneficial purposes relating to property, as by taking a remainder, or any other estate or interest, whether by descent, devise or under the statute of distribution. Hone v. Van Schaick, 3 Barb. Ch. 488, 509; Mason v. Jones, 2 Barb. 231, 251; Marsellis v. Thalhimer, 2 Paige, 35, 40; Swift v. Duffield, 5 Serg. & Rawle, 38; Harper v. Archer, 4 Smedes & Marsh. 99; Hall v. Hancock, 15 Pick. 255; Stedfast v. Nicoll, 3 Johns. Cas. 18; Jenkins v. Freyer, 4 Paige, 47, 53. [*155] expresses it, suspicio cujuslibet vani et meticulosi hominis, sed talis qui possit cadere in virum constantem; talis enim debet esse metus, qui in se contineat vitæ periculum, aut corporis cruciatum." The mere fear of having one's goods taken away or injured would not justify homicide, though it might perhaps afford ground for recovering money paid to save them(a). Should the threat be performed, a man may have satisfaction by recovering equivalent damages(b): but no suitable atonement can be made for the loss of life, or limb. And the indulgence shown to a man under this, the principal, sort of duress, the fear of losing his life or limbs, agrees also with a maxim of the civil law; ignoscendum censuerunt ei, qui sanguinem suum qualiter qualiter redemptum voluit(c).(57) The law not only regards life and member, and protects every man in the enjoyment of them, but also furnishes him with everything necessary for his support. For there is no man so indigent or wretched, but he may obtain a supply sufficient for the necessaries 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(d), were rejected in Justinian's collection. These rights, of life and member, can only be determined by the death of the person; which was formerly accounted to be either a civil or a natural death. Civil death commenced, if any man was banished or abjured *the [*156] realm(e) by the process of the common law, or entered into religion; that is, went into a monastery, and became there a monk professed: in any of which cases he was absolutely dead in law, and his next heir became entitled to his estate. For such banished man was entirely cut off from society; and such a monk, upon his profession, renounced solemnly all secular concerns: and besides, as the popish clergy claimed exemption from the duties of civil (a) Per cur. Glynn v. Thomas, 11 Exch. 878-9; Note to Marriot v. Hampton, 2 Smith L. C. 6th ed. 383. (b) 2 Inst. 483. (c) Dig. 48. 21. 1. (d) L. 11, t. 27. cause it is to leave the realm for ever; and so if a man be attainted of treason or felony, and saving his life, is banished for ever, this also is a civil death. But if a man, by act of parliament, be exiled but for a time, which some call a relegation, that is no civil death. (e) To abjure the realm is a civil death, be- Co. Litt. 133 a. (57) An arrest for improper purposes, without a just cause: or, an arrest for a just cause, but without lawful authority; or an arrest for a just cause under a lawful authority, but for an unlawful purpose, will be construed to be duress. Strong v. Grannis 26 Barb. 122, 126; Osborn v. Robbins, 36 N. Y. (9 Tiff.) 365, 371; 2 Trans. App. 319, 325; Watkins v. Baird, 6 Mass. 506, 511; Severance v. Kimball, 8 N. H. 386; Bane v. Detrick, 52. Ill. 19; Belote v. Henderson, 5 Cold. (Tenn.) 471. But, a threat of imprisonment or even imprisonment for a just cause, and upon lawful process, is not duress. Nealley v. Greenough, 25 N. H. 325; Eddy v. Herrin, 17 Me. 338. In this country the courts hold that there may by a duress of property, as well as of the person; and that such duress will avoid contracts, or sustain a recovery of money unjustly taken by it. Harmony v. Bingham, 1 Duer 210; 12 N. Y. (2 Kern.) 99; Sasportas v. Jennings, 1 Bay, 470; Collins v. Westbury, 2 id. 211; Nelson v. Suddarth, 1 Hen. & Munf. 350; Foshay v. Ferguson, 5 Hill, 158. See the cases cited, 1 Wait's Law and Pract. 1073 to 1076. life and the commands of the temporal magistrate, the genius of the English laws would not suffer those persons to enjoy the benefits of society, who secluded themselves from it, and refused to submit to its regulations(ƒ). A monk was therefore accounted civiliter mortuus, and when he entered into religion might, like other dying men make his testament and executors; or, if he made none, the ordinary might grant administration to his next of kin, as if he were actually dead intestate. And such executors and administrators had the same power, and might bring the same actions for debts, due to the religious, and were liable to the same actions for debts due from him, as if he were naturally deceased (g). Nay, so far has this principle been carried, that when one was bound in a bond to an abbot and his successors, and afterwards made his executors, and professed himself a monk of the same abbey, and in process of time was himself made abbot thereof; here the law gave him, in the capacity of abbot, an action of debt against his own executors to recover the money due(h). [ *157) In short, a monk or religious was so effectually dead in *law, that a lease made even to a third person, during the life, generally, of one who afterwards became a monk, determined by such his entry into religion: for which reason leases, and other conveyances for life, were usually made to have and to hold for the term of one's natural life(i). But even in the times of popery, the law of England took no cognizance of "profession" in any foreign country, because the fact could not be tried in our courts(); and, since the Reformation, this disability has been held to be abolished (7): so also has been the disability of banishment, consequent upon abjuration, by statute 21 Jac. 1, c. 28.(58) This natural life being, as was before observed, the immediate donation of the Creator, cannot legally be disposed of or destroyed by the person himself, nor by a fellow-creature, merely upon his own authority. Yet nevertheless it may, under certain circumstances, be forfeited for the breach of social laws, as to 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 subjects, 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 each subject is aware of the danger he is exposed to, and may by prudent caution provide against it. The law of England therefore never inflicts any punishment extending to life unless upon the highest necessity: and the constitution is an utter stranger to any arbitrary power of killing or maiming the subject without the express war (f) This was also a rule in the feudal law, (Cons. Feud. 1. 2, t. 21,) desiit esse miles seculi, gui factus est miles Christi, nec beneficium pertinet ad eum qui non debet gerere officium. (g) Litt. s. 200. (h) Co. Litt. 133. (i, Archbishop of Canterbury's case, 2 Rep. 48 b; Co. Litt. 132. (k) Co. Litt. 132. (1) R. v. Lady Portington, 1 Salk. 162. (58) Civil death is the state of a person who, though possessing natural life, has lost all his civil rights, and as to them, is considered as dead. In New York, a person sentenced to imprisonment in a State prison for life, is thereafter deemed civilly dead. 2 R. S. 701 (724), 20. But such imprisonment does not prevent creditors from bringing actions against the prisoner. Davis v. Duffie, 4 Abb. N. S. 478; 3 Trans. App. 54; 3 Keyes, 606. rant of law. "Nullus liber homo," says the *great charter(m), "aliquo [*158] modo destruatur, nisi per legale judicium parium suorum, aut per legem terræ." Which words, "aliquo modo destruatur," according to sir Edward Coke(n), include a prohibition not only of killing and maiming, but also of torturing (to which our laws are strangers(o)), and of every oppression by colour of an illegal authority. And it is enacted by the statute 5 Ed. 3, c. 9, that no man shall be forejudged of life or limb, contrary to the great charter and the law of the land: and again, by statute 28 Ed. 3, c. 3, that no man shall be put to death, without being brought to answer by due process of law. Besides those limbs and members that may be necessary to a man, in order to defend himself or annoy his enemy, he is also entitled, by natural right, to 3. Security from the corporal insults of menaces, assaults, beating, and wounding; though such insults amount not to destruction of life or member. 4. Preservation of health from such practices as may prejudice or annoy it, and, 5. Security of his reputation or good name from the arts of detraction and slander. These 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 the 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 to 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(p). II. Right of per sonal liberty. II. Next to personal security, the law of England regards, asserts, and preserves the personal liberty of *individuals. This personal liberty con[*159] sists in the power of loco-motion, of changing situation, or removing 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 do not assume to abridge it without sufficient cause; and, that in this kingdom it cannot ever be abridged without the explicit permission of the laws. Here again the language of the great charter().is, that no freeman shall be taken or imprisoned, but by the law of the land.(59) And subsequent old statutes(r) (m) C. 29. (n) 2 Inst. 48. (0) Broom's Const. L. 147, 148. (p) Vide vol. iii. (q) C. 29. (r) See, for instance, 5 Edw. 3, c. 8; 25 Edw. 3, st. 5, c. 4; 28 Edw. 3, c. 3. (59) The phrases "due process of law," " due course of the law," and "the law of the land," are used interchangeably or indifferently in statutes or constitutions; and the same meaning is usually attached to either mode of expression. Murray's Lessee v. Hoboken Land Co., 18 How. (U. S.) 276; Greene v. Briggs, 1 Curt. 311; Matter of John and Cherry streets, 19 Wend. 659; Parsons v. Russell, 11 Mich. 129; Banning v. Taylor, 24 Penn. St. 292; State v. Simons, 2 Speers, 767; Vanzant v. Waddell, 2 Yerg. 260. "By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society. Every thing which may pass under the form of an enactment is not therefore to be considered the law of the land." Webster in Dartmouth College v. |