Book I. laws, and fo far becomes a freeman; though the master's right to his fervice may poffibly ftill continue (4).

THE abfolute rights of every Englishman, (which, taken in a political and extensive sense, are ufually called their liberties) as they are founded on nature and reafon, fo they are coeval with our form of government; though fubject at times to fluctuate and change: their establishment (excellent as it is) being ftill human. At fome times we have seen them depressed by overbearing and tyrannical princes; at others fo luxuriant as even to tend to anarchy, a worfe ftate than tyranny itself, as any government is better than none at all (5). But the vigour of our free conftitution has always delivered the nation from these embarraffments: and, as foon as the convulfions confequent on the struggle have been over, the balance of our rights and liberties has fettled to it's proper level; and their fundamental articles have been from time to time afferted in parliament, as often as they were thought to be in danger.

Salk. 666. See ch. 14.

(4) It is not to the foil or to the air of England that negroes are indebted for their liberty, but to the efficacy of the writ of babeas corpus, which can only be executed by the sheriff in an English county.-I do not fee how the mafter's right to the fervice can paffibly continue; it can only arife from a contract, which the negro in a state of flavery is incapable of entering into with his mafter. See page 425.

(5) Lord Camden concluded his judgment in the cafe of general warrants in the fame words: " One word more for ourselves; we are no advocates for libels; all governments must fet their faces against them, and whenever they come before us and a jury, we fhall fet our faces against them; and if juries do not prevent them, they may prove fatal to liberty, deftroy government, and introduce anarchy; but tyranny is better than anarchy, and the worst government better than none at all." 2 Wilf, 292.

σε

FIRST, by the great charter of liberties, which was obtained, fword in hand, from king John, and afterwards, with fome alterations, confirmed in parliament by king Henry the third, his fon. Which charter contained very few new grants; but, as fir Edward Coke obferves, was for the most part declaratory of the principal grounds of the fundamental[ 128 ] laws of England (6). Afterwards by the ftatute called confirma tio cartarum 1, 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 fentence of excommunication is directed to be as conftantly denounced against all thofe that by word, deed, or counsel, act contrary thereto, or in any degree infringe it. Next, by a multitude of fubfequent corroborating ftatutes (fir Edward Coke, I think, reckons thirty-two *,) from the first Edward to Henry the fourth. Then, after a long interval, by the pe tition of right; which was a parliamentary declaration of the liberties of the people, affented to by king Charles the first in the beginning of his reign. Which was clofely followed by the still more ample conceffions made by that unhappy prince to his parliament, before the fatal rupture between them; and by the many falutary laws, particularly the habeas corpus a&, paffed under Charles the fecond. To thefe fucceeded the bill of rights, or declaration delivered by the lords and commons to the prince and princefs of Orange 13 February 1688; and afterwards enacted in parliament, when they became king and queen which declaration concludes in these remarkable words;" and they do claim, demand, and infift upon, all "and fingular the premises, as their undoubted rights and "liberties." And the act of parliament itself recognizes "all and fingular the rights and liberties afferted and claim

h2 Inft. proëm. 25 Edw. I.

kz Inft. proëm.

1

1 W. & M. it. 2. c. 2..

(6) See a fuller account of Magna Charta, 4 vol. p. 424.

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[ 29 ]

"ed in the faid declaration to be the true, antient, and in"dubitable rights of the people of this kingdom." Laftly, thefe liberties were again afferted at the commencement of the prefent century, in the act of fettlement", whereby the crown was limited to his prefent majefty's illuftrious house: and fome new provifions were added, at the same fortunate aera, for better fecuring our religion, laws, and liberties; which the statute declares to be "the birthright of the peo"ple of England," according to the antient doctrine of the common law ".

THUS much for the declaration of our rights and liberties. The rights themselves, thus defined by these several ftatutes, confift in a number of private immunities; which will appear, from what has been premifed, to be indeed no other, than either that refiduum of natural liberty, which is not required by the laws of society to be facrificed to public convenience; or else those civil privileges, which fociety hath engaged to provide, in lieu of the natural liberties fo given up by individuals. These therefore were formerly, either by inheritance or purchase, the rights of all mankind; but, in most other countries of the world being now more or lefs debafed and destroyed, they at prefent may be faid to remain, in a peculiar and emphatical manner, the rights of the people of England. And thefe may be reduced to three principal or primary articles; the right of perfonal fecurity, the right of perfonal 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 thefe important rights, the prefervation of thefe, inviolate, may juftly be faid to include the prefervation of our civil immunities in their largest and moft extenfive fenfe.

I. THE right of perfonal fecurity confifts in a person's legal and uninterruped enjoyment of his life, his limbs, his body, his health, and his reputation.

m 12 & 13 W. III. c. 2.

■ Plowd. 55.

1. LIFE

1. LIFE is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as foon as an infant is able to flir in the mother's womb. For if a woman is quick with child, and by a potion or otherwife, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and fhe is delivered of a dead, child; this, though not murder (7), was by the ancient law homicide or manflaughter. But the modern law doth not look. upon this offence in quite fo atrocious a light (8), but merely as [130] a heinous mifdemefnor P.

Ax infant in ventre fa mere, or in the mother's womb, is fuppofed in law to be born for many purpofes. It is capable of having a legacy, or a furrender of a copyhold eftate made to it. It may have a guardian affigned to it; and it is cnabled to have an eftate limited to it's ufe, and to take afterwards by fuch limitation, as if it were then actually born '(9); And in this point the civil law agrees with ours.

(7) The diftinction between murder and manflaughter or felonious homicide, in the time of Bracton, was in a great degree nominal. The punishment of both was the fame; for murder as well as manflaughter, by the common law, had the benefit of clergy. Feft. 302.

(8) But if the child be born alive, and afterwards die in confequence of the potion or beating, it will be murder (3 Inft. 50. 1 P. W ́ms. 245.); and of course thofe who, with a wicked intent, adminiftered the potion, or advifed the woman to take it, will be acceffaries before the fact, and fubject to the fame punishment as the principal.

(9) It may have a diftributive fhare of inteftate property even with the half blood (1 Vf. 81.): it is capable of taking a devife of land (2 Atk. 117. 1 Freem. 244. 293.): it takes under a marriage fettlement, a provifion made for children living at the death of the father (1 ef. 85.). And it has lately been decided, that marVOL. I. riage,

M

2. A MAN'S limbs (by which for the prefent we only understand those members which may be useful to him in fight, and the lofs of which alone amounts to mayhem by the common law) are alfo the gift of the wife creator, to enable him to protect himself from external injuries in a state of naTo these therefore he has a natural inherent right; and they cannot be wantonly destroyed or disabled without a manifeft breach of civil liberty.

ture.

BOTH the life and limbs of a man are of fuch high value, in the estimation of the law of England, that it pardons even homicide if committed fe defendendo, or in order to preserve them. For whatever is done by a man, to fave either life or member, is looked upon as done upon the highest neceffity and compulfion. Therefore if a man through fear of death · or mayhem is prevailed upon to execute a deed, or do any other legal act; thefe, though accompanied with all other the requisite folemnities, may be afterwards avoided, if forced upon him by a well-grounded apprehenfion of lofing his life, or even his limbs, in cafe of his non-compliance'. And the fame is also a fufficient excufe for the commiffion of many. misdemesnors, as will appear in the fourth book. The conftraint a man is under in these circumstances is called in law duress, from the Latin durities, of which there are two [131] forts; durefs of imprisonment, where a man actually lofes 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 difcourfing of. Durefs per minas is either for fear of loss of life, or else for fear of mayhem, or lofs of limb. And this fear must be upon fufficient reason; t2 Inft. 483.

riage, and the birth of a pofthumous child, amount to a revocation of a will executed previous to the marriage. (5 T. R. 49.) It takes land by defcent, though, in that cafe, the prefumptive heir may enter and receive the profits for his own ufe till the birth of the child (3 Wilf. 5.26.), which feems to be the only interest it loses by it's fituation. See alfo 2 vol. 169.

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