"non," as Bracton expreffes it, "fufpicio cujuflibet vani et "meticulofi hominis, fed talis qui poffit cadere in virum conftan"tem; talis enim debet effe metus, qui in se contineat vitae peri"culum, aut corporis cruciatum". A fear of battery, or being beaten, though never fo well grounded, is no durefs; neither is the fear of having one's house burned, or one's goods taken away and deftroyed; because in these cafes, fhould the threat be performed, a man may have fatisfaction by recovering equivalent damages : but no fuitable atonement can be made for the loss of life, or limb (10). And the indulgence fhewn to a man under this, the principal, fort of durefs, the fear of lofing his life or limbs, agrees also with that maxim of the civil law; ignofcitur ei qui fanguinem fuum qualiter qualiter redemptum voluit *. W THE law not only regards life and member, and protects every man in the enjoyment of them, but also furnishes him with every thing neceffary for their support. For there is no man so indigent or wretched, but he may demand a supply fufficient for all the neceflities of life from the more opulent part of the community, by means of the feveral ftatutes enact ed for the relief of the poor, of which in their proper places. A humane provifion; yet, though dictated by the principles of society, discountenanced by the Roman laws. For the edicts of the emperor Conftantine 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 inftitution founded on the fame principle as our foundling hofpitals, though comprized in the Theodofian code, were rejected in Juftinian's collection. THESE rights, of life and member, can only be determined [ 132 1 by the death of the perfon; which was formerly accounted to be either a civil or natural death. The civil death commenced, if any man was banished or abjured the realm by ■ 1.2. c. 5. wz inft. 483. y l. 11. 6. 27. & Co. Litt. 133. (10) See 4 vol. 30. M 2 the the procefs of the common law, or entered into religion; that is, went into a monaftery, and became there a monk profeffed in which cafes he was abfolutely dead in law, and his next heir fhould have his eftate. For fuch banished man was entirely cut off from fociety; and fuch a monk, upon his profeffion, renounced folemnly all fecular concerns: and befides, as the popish clergy claimed an exemption from the duties of civil life and the commands of the temporal magistrate, the genius of the English laws would not suffer those persons to enjoy the benefits of fociety, who fecluded themselves from it, and refused to submit to it's regulations. A monk was therefore accounted civiliter mortuus, and when he entered into religion might, like other dying men, make his teftament and executors; or, if he made none, the ordinary might grant administration to his next of kin, as if he were actually dead inteftate. And fuch exccutors and adminiftrators had the fame power, and might bring the fame actions for debts due to the religious, and were liable to the fame actions for thofe due from him, as if he were naturally deceafed. Nay fo far has this principle been carried, that when one was bound in a bond to an abbot and his fucceffors, and afterwards made his executors and profeffed himself a monk of the fame abbey, and in process of time was him felf 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 . In fhort, a monk or religious was fo effectually dead in law, that a leafe made even to a third perfon, during the life (gcnerally) of one who afterwards became a monk, determined by fuch his entry into religion: for which reafon leafes, and other conveyances for life, were ufually made to have and to hold for the term of one's natural life. But, even in the times of popery, the law of [133] England took no cognizance of profeffion in any foreign country, because the fact could not be tried in our courts; and therefore, fince the reformation, this difability is held to a This was alfo a rule in the feodal b Litt. § 200. c Co. Litt. 133. d 2 Rep. 48. Co. Litt. 1.32. e Co. Litt. 132. be be abolished: as is alfo the difability of banifliment, confequent upon abjuration, by ftatute 21 Jac. I. c. 28. (11). THIS natural life being, as was before obferved, the immediate donation of the great creator, cannot legally be difpofed of or deftroyed by any individual, neither by the perfon himself, nor by any other of his fellow-creatures, merely upon their own authority. Yet neverthelefs it may, by the divine permiffion, be frequently forfeited for the breach of those laws of fociety, which are enforced by the fanction 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 prefent, I fhall only obferve, that whenever the conftitution of a state vests in any man, or body of men, a power of deftroying at pleafure, without the direction of laws, the lives or members of the fubject, fuch conftitution is in the highest degree tyrannical and that whenever any laws direct fuch deftruction for light and trivial caufes, fuch laws are likewife tyrannical, though in an inferior degree: because here the fubject is aware of the danger he is expofed to, and may by prudent caution provide against it. The statute law of England does therefore very feldom, and the common law does never in flict any punishment extending to life or limb, unlefs upon the higheft neceffity (12): and the conftitution is an utter ftranger f 1 Salk. 162. (11) One fpecies of civil death may ftill exift in this country; that is, where a man by act of parliament is attainted of treason or felony, and faving his life, is banished for ever; this lord Coke declares to be a civil death. But he fays, a temporary exile is not a civil death. Co. Litt. 133. And for the fame reason where a man receives judgment of death, and afterwards leaves the kingdom for life, upon a conditional pardon, this feems to amount to a civil death: this practice did not exist in the time of lord Coke, who fays, that a man can only lofe his country by authority of parliament. 16. (12) This is a compliment which, I fear, the common law does not deferve; for although it did not punish with death any to any arbitrary power of killing or maiming the subject without the exprefs warrant of law. « Nullus liber homo," fays the great charter," aliquo modo deftruatur, nifi per legale judi"cium parium fuorum aut per legem terrae." Which words, "aliquo modo deftruatur," according to fir Edward Coke, 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 ftatute 5 Edw. III. c. 9. that no man shall be fore[134] judged of life or limb, contrary to the great charter and the law of the land: and again, by ftatute 28 Edw. III. c. 3, that no man shall be put to death, without being brought to answer by due process of law. 3. BESIDES thofe limbs and members that may be neces fary to a man, in order to defend himself or annoy his enemy, the rest of his person or body is also entitled, by the fame natural right, to fecurity from the corporal infults of menaces, affaults, beating, and wounding; though fuch infults amount not to deftruction of life or member. 4. THE prefervation of a man's health from fuch practices as may prejudice or annoy it; and 5. THE fecurity of his reputation or good name from the arts of detraction and flander, are rights to which every man is entitled, by reafon and natural juftice; fince without these it is impoffible to have the perfect enjoyment of any other advantage or right. But thefe three laft articles (being of much lefs importance than those which have gone before, and those which are yet to come) it will fuffice to have barely mentioned among the rights of perfons: referring the more minute difh 2 Inft. 48. & c. 29. perfon 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 ftealing only of twelve-pence farthing. euflion cuffion of their feveral branches, to thofe parts of our commentaries which treat of the infringement of these rights, under the head of personal wrongs. II. NEXT to perfonal fecurity, the law of England regards, afferts, and preferves the perfonal liberty of individuals. This perfonal liberty confifts in the power of loco-motion, of changing fituation, or moving one's perfon to whatsoever place one's own inclination may direct; without imprisonment or restraint, unless by due courfe of law. Concerning which we may make the fame obfervations as upon the preceding article; that it is a right strictly natural; that the laws of England have never abridged it without fufficient caufe; and, that in this kingdom it cannot ever be abridged. at the mere difcretion of the magistrate, without the explicit permiffion of the laws. Here again the language of the great charter is, that no freeman fhall be taken or imprisoned, [ 135 1 but by the lawful judgment of his equals, or by the law of the land. And many fubfequent old ftatutes i exprefsly direct, that no man fhall be taken or imprisoned by fuggestion or petition to the king or his council, unless it be by legal indictment, or the procefs of the common law. By the petition of right, 3 Car. I, it is enacted, that no freeman shall be imprisoned or detained without caufe fhewn, to which he may make aufwer according to law. By 16 Car. I. c. 10. if any perfon be reftrained of his liberty by order or decree of any illegal court, or by command of the king's majesty in perfon, or by warrant of the council board, or of any of the privy council; he fhall, upon demand of his council, have a writ of habeas corpus, to bring his body before the court of king's bench or common pleas; who fhall determine whether the cause of his commitment be juft, and thereupon do as to justice shall appertain. And by 31 Car. II. c. 2. commonly called the habeas corpus act, the methods of obtaining this writ are fo plainly pointed out and enforced, that, fo long as this ftatute remains unimpeached, no fubject of j5 Edw. III. c. 9. 25 Edw. III. ft. 5. c. 4. 28 Edw. III. c. 3. |