England can be long detained in prifon, except in those cafes in which the law requires and justifies such detainer. And, left this act fhould be evaded by demanding unreafonable bail, or fureties for the prifoner's appearance, it is declared by i W. & M. ft. 2. c. 2. that exceffive bail ought not to be required.

OF great importance to the public is the prefervation of this perfonal liberty: for if once it were left in the power of any, the highest, magiftrate to imprifon arbitrarily whomever he or his officers thought proper, (as in France it is daily practifed by the crown *,) there would foon be an end of all other rights and immunities. Some have thought, that unjust attacks, even upon life, or property, at the arbitrary will of the magistrate, [136] are lefs dangerous to the commonwealth, than fuch as are made upon the perfonal liberty of the fubject. To bereave a man of life, or by violence to confifcate his eftate, without accufation or trial, would be fo grofs and notorious an act of defpotifm, as muft at once convey the alarm of tyranny throughout the whole kingdom: but confinement of the perfon, by fecretly harrying him to gaol, where his fufferings are unknown or forgotten, is a lefs public, a lefs ftriking, and therefore a more dangerous engine of arbitrary government. And yet fometimes, when the flate is in real danger, even this may be a neceffary measure. But the happiness of our conftitution is, that it is not left to the executive power to determine when the danger of the fate is fo great, as to render this measure expedient: for it is the parliament only, or legislative power, that, whenever it fees proper, can authorize the crown, by fufpending the habeas corpus act for a fhort and limited time, to imprifon fufpected perfons without giving any reafon for fo doing; as the fenate of Rome was wont to have recourfe to a dictator, a magiftrate of abfolute authority, when they judged the republic in any imminent danger. The decree of the fenate, which usually preceded the nomination

k I have been affured upon good authority, that, during the mild adminiftration of cardinal Fleury, above 54000

lettres de cachet vere iffued, upon the fingle ground of the famous bulle unigenitus.

of

of this magiftrate, "dent operam confules, ne quid refpublica detri"menti capiat," was called the fenatus confultum ultimae neceffitatis. In like manner this experiment ought only to be tried in cafes of extreme emergency; and in these the nation' parts with it's liberty for a while, in order to preferve it for

ever.

THE Confinement of the perfon, in any wife, is an impri fonment. So that the keeping a man against his will in a private house, putting him in the ftocks, arrefting or forcibly detaining him in the ftreet, is an imprisonment'. And the law fo much difcourages unlawful confinement, that if a man is under duress of imprisonment, which we before explained to mean a compulfion by an illegal reftraint of liberty, until he feals a bond or the like; he may allege this durefs, and avoid the extorted bond. But if a man be lawfully imprisoned, and either to procure his difcharge, or on any other fair ac- [137] count, feals a bond or a deed, this is not by durefs. of imprifonment, and he is not at liberty to avoid it". To make imprisonment lawful, it must either be by procefs from the courts of judicature, or by warrant from fome legal officer having authority to commit to prifon; which warrant must be in writing, under the hand and feal of the magiftrate, and exprefs the caufes of the commitment, in order to be examined into (if neceffary) upon a habeas corpus. If there be no caufe expreffed, the gaoler is not bound to detain the prifoner". For the law judges in this respect, faith fir Edward Coke, like Feftus the Roman governor; that it is unreasonable to send a prisoner, and not to fignify withal the crimes alleged against him.

A NATURAL and regular confequence of this personal liberty, is, that every Englishman may claim a right to abide in his own country fo long as he pleases; and not to be driven from it unlefs by the fentence of the law. The king indeed, by his royal prerogative, may issue out his writ ne exeat

1 2 Inft. 589. m2 Inft. 482.

Ibid. 52, 53

regnum,

regnum (13), and prohibit any of his fubjects from going into foreign parts without licence. This may be neceffary for the public service and safeguard of the commonwealth. But no power on earth, except the authority of parliament, can fend any fubject of England out of the land against his will; no, not even a criminal. For exile, and tranfportation, are punishments at prefent unknown to the common law; and, whenever the latter is now inflicted, it is either by the choice of the criminal himself to escape a capital punishment, or else by the express direction of fome modern act of parliament (14). To this purpofe the great charter declares, that no freeman fhall be banished, unless by the judgment of his peers, or by the law of the land. And by the habeas corpus act, 31 Car. II. c. 2. (that fecond magna carta, and stable bulwark of our liberties) it is enacted, that no fubject of this realm, who is an inhabitant of England, Wales, or Berwick, fhall be fent prisoner into Scotland, Ireland, Jersey, Guernsey, or places beyond the [138] feas; (where they cannot have the full benefit and protec

(14) It is faid that exile was first introduced as a punishment by the legislature in the 39th year of Eliz. when a ftatute enacted that "fuch rogues as were dangerous to the inferior people should be "banished the realm;" (39 Eliz. c. 4. See Barr. Ant. Stat. 269.) and that the first statute in which the word transportation is used is the 18 C. II. c. 3. which gives a power to the judges at their discretion either to execute or tranfport to America for life, the Mosstroopers of Cumberland and Northumberland, (2 Woodd. 498.) a law which very unneceffarily was continued till the 31 Geo. II. c. 42. and then made perpetual. This perhaps is the only inftance in which the legislature has extended the term of transportation beyond fourteen years. But to perfons capitally convicted the king frequently offers a pardon upon condition of their being transported for life. Many have at first rejected this gracious offer, and there have been one or two inftances of perfons fo defperate as to perfift in the refufal, and who in confequence fuffered the execution of their fentence.

tion of the common law;) but that all fuch imprisonments shall be illegal; that the perfon, who shall dare to commit another contrary to this law, shall be disabled from bearing any office, shall incur the penalty of a praemunire, and be incapable of receiving the king's pardon: and the party fuffering fhall also have his private action against the perfon committing, and all his aiders, advisers, and abettors, and fhall recover treble cofts; befides his damages, which no jury fhall affefs at less than five hundred pounds.

THE law is in this refpect fo benignly and liberally conftrued for the benefit of the fubject, that, though within the realm the king may command the attendance and service of all his liegemen, yet he cannot fend any man out of the realm, even upon the public fervice; excepting failors and foldiers, the nature of whofe employment neceffarily implies an exception: he cannot even conftitute a man lord deputy or lieutenant of Ireland against his will, nor make him a foreign ambaffador. For this might in reality be no more than an honourable exile.

III. THE third abfolute right, inherent in every Englishman, is that of property: which confifts in the free use, enjoyment, and difpofal of all his acquifitions, without any control or diminution, save only by the laws of the land. The original of private property is probably founded in nature, as will be more fully explained in the second book of the enfuing commentaries: but certainly the modifications under which we at present find it, the method of conferving it in the present owner, and of tranflating it from man to man, are entirely derived from fociety; and are fome of those civil advantages, in exchange for which every individual has refigned a part of his natural liberty. The laws of England are therefore, in point of honour and justice, extremely watchful in ascertaining and protecting this right. Upon this principle the great charter has declared that no freeman shall be diffeifed, or divefted, of his freehold, or of his liberties, or free cuf

92 Inft. 46.

sc. 29.

toms,

toms, but by the judgment of his peers, or by the law of the land. And by a variety of antient ftatutes it is enacted, that no man's lands or goods fhall be feifed into the king's hands, against the great charter, and the law of the land; and that no man fhall be difinherited, nor put out of his franchises or freehold, unless he be duly brought to answer, and be forcjudged by courfe of law; and if any thing be done to the contrary, it fhall be redreffed, and holden for none.

So great moreover is the regard of the law for private property, that it will not authorize the leaft violation of it; no, not even for the general good of the whole community. If a new road, for inftance, were to be made through the grounds of a private perfon, it might perhaps be extenfively beneficial to the public; but the law permits no man, or set of men, to do this without confent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Befides, the public good is in nothing more effentially interested, than in the protection of every individual's private rights, as modelled by the municipal law. In this and fimilar cafes the legiflature alone can, and indeed frequently does, interpofe, and compel the individual to acquiefce. But how does it interpofe and compel? Not by abfolutely ftripping the fubject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby fuftained. The public is now confidered as an individual, treating with an individual for an exchange. All that the legislature does, is to oblige the owner to alienate his possesfions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legiflature can perform (15).

S 5 Edw. III. c. 9. 25 Edw. III. ft. 5. c. 4. 28 Edw. III. c. 3.

(15) But by the laft highway act (13 Geo. III. c. 78.) two juftices may either widen or divert any highway through or over

any