THE objects of the laws of England are so very numerous and extensive, that in order to consider them with any tolerable ease and perspicuity, it will be necessary to distribute them 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; both of which are equally productive of confusion.

Now, as municipal law is a rule of civil conduct, commanding what is right, and prohibiting what is wrong; or as Cicero, (a) and after him our Bracton, (b) have expressed it, scanctio justa, jubens honesta et prohibens contraria; 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.

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 jura personarum or the rights of persons; or they are, 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. Wrongs also are divisible into, first, private wrongs, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and secondly, public wrongs, which being a breach of general and public rights, affect the whole community, and are called crimes and misdemeanors.

The objects of the laws of England falling into this fourfold division, the present commentaries will therefore consist of the four following parts: 1. The rights of persons; with the means 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; with the

means of redressing them by law. 4. Public wrongs, or crimes and misdemesnors; with the means of prevention and punishment.'

We are now, first, to consider the rights of persons; with the means of acquiring and losing them.

[123] 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 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 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, for instance, 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 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 society and government, which are called corporations or bodies politic.

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 or single persons: relative, which are incident to them as members of society, and standing in various relations to each other. The first, that is, absolute rights, will be the subject of the present chapter.

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, whether out

of society or in it. But with regard to the absolute duties, which [124] 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 but social or relative duties. Let a man therefore be ever so aban

(1) It has been observed by Mr. Christian, that the distinction between private wrongs and public wrongs is more intelligible, and more accurately limited by the nature of the subjects, than the distinction between the rights of things, and the rights of persons: for all rights whatever must be the rights of certain persons to certain things. Every right is annexed to a certain character or relation, which each individual bears in society. The rights of kings, lords, judges, husbands, fathers, heirs, purchasers, and occupants, are all dependent upon the respective characters of the claimants. These rights might again be divided into rights to possess certain things, and the rights to do certain actions. This latter class of rights constitute powers and authority. But the distinction of rights of persons and rights of things in the first two volumes of the Commentaries, seems to have no other difference that the antithesis of the expres sion, and that too resting upon a solecism; for the expression, rights of things, or a right of a horse, is contrary to the idiom of the English language: we say, invariably, a right to a thing. The distinction intended by the learned judge in the first two volumes appears, in a great de gree, to be that of the rights of persons in public stations, and the rights of persons in private relations. But as the order of legal subjects is, in a great measure, arbitrary, and does not admit of that mathematical arrangement, where one proposition gencrates another, it perhaps would be difficult to discover any method more satisfactory than that which the learned judge has pursued, and which was first suggested by lord C. J. Hale. Sce Hale's Analysis of the Law.

doned in his principles, or vicious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, 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 (as drunkenness, or the like), they then become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them. Here the circumstance of publication is what alters -the nature of the case. Public sobriety is a relative duty, and therefore enjoined by our laws; private sobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know: and therefore they can never 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.3

2

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 always 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 con- [125] nexions, will be far more numerous and more complicated. These 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 the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of England actually do, take notice of these absolute rights, and provide for their lasting security.

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,

(2) The doctrine which is founded upon this distinction has been questioned by the learned professor Christian; but it is plain he has not sufficiently considered the distinction between prirate and public, as the words are used in this instance. The act of drunkenness is punishable as an offence against law, because of its tendency to a breach of the peace, and its pernicious influence, as an example to others; but if the offence be committed in solitude or privacy, its bad effects are confined to the individual, and it would be an infatuated spirit of legislation which should seek to regulate conduct which is purely, in its beginning and its end, personal.

Chitty. (3) This distinction seems to convey a doctrine that can hardly bear examination, or be reconciled with sound law and morality. The circumstance of publication as evidence of shameless profligacy and hardened depravity, may alter the nature of the punishment, but cannot alter the intrinsic criminality of the vicious act. Whatever is pernicious to society as an example, must necessarily be vicious and destructive in itself. What is ruinous and criminal to repeat and follow, must also be ruinous and criminal to commence. Human laws prohibit every where the Christian guilty action, but punishment can only be the consequence of detection."

9.0

OF THE RIGHTS

[Воок 1. when he endued him 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 mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. And 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, that considers a moment, would wish to retain the absolute and uncontrolled power of doing whatever he pleases: the consequence of which is, that every other man would also have the same power; and 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 restrained by human laws (and no farther) as is necessary and expedient for the general advantage of

the public. (c) Hence we may collect that the law, which restrains a [126] man from doing mischief to his fellow-citizens, 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 a degree of 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 cotrol 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., (d) which forbad 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.,(e) which prescribes a thing seemingly as indifferent (a dress for the dead, who are all ordered to be buried in woollen,) is a law consistent with public liberty; for it encourages the staple trade, on which in great measure depends 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) (ƒ) 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 those points wherein the public good requires some direction or restraint.5 6

4

c Facultas ejus, quod cuique facere libet, nisi quid jure prohibetur. Inst. 1.3.1.
d 3 Edw. IV. c. 5.
e 30 Carr. II. st. 1. c. 3.

f On Gov. p. 2 § 57.

(4) See also 22 Ed. IV. c. 1. (10 vol. stat. 102.) where it is enacted, that "no person under the estate of a lord shall wear any gown or mantle, unless it be of such length that he, being upright, it cover his privy members and buttocks, upon pain of forfeiting to the king twenty shillings." Chitty.

(5) This is an able and eloquent description of civil liberty. See page 3. note 1. (6) This section' is one of the very few intelligible descriptions of liberty, which have hither. to been communicated to the world. Though declamation and eloquence in all ages have exhausted their stores upon this favourite theme, yet reason has made so little progress an ascerraining the nature and boundaries of liberty, that there are very few authors indeed, either of this or of any other country, which can furnish the studious and serious reader with a clear and Onsistent account of this idol of mankind. Thousands worship it, and are even ready to offer

The idea and practice of this political or civil liberty flourish in their highest vigour in these kingdoms, where it falls little short of perfection,

their blood as a sacrifice to it, under the form of a tree, a cap, or a cockade. These foolish symu bols, with various watch-words of sedition equally unmeaning, may inflame the passions of the vulgar for a time, when practised upon by all the artifices of designing and wicked men, and may suppress the voice of reason and sobriety, but the consequences are too terrible to last long. Anarchy must reform itself, or in a country where every crime is committed, and where neither life, person, nor property is secure, in such a war of all against all, each individual for his own sake will soon demand a truce, and offer articles of capitulation.

This subject deserves a discussion much more extensive than the limits of a note will admit, in which it would not be difficult to prove that Englishmen at present possess every species of liberty, in a higher degree than ever was enjoyed in any other country, and even in a degree unknown to their ancestors. But I shall here briefly subjoin the different notions conveyed by the word liberty, which even by the most eminent writers and orators are generally confounded together. The libertas quidlibet faciendi, or the liberty of doing every thing which a man's passions urge him to attempt, or his strength enables him to effect, is savage ferocity; it is the liberty of a ty- / ger and not the liberty of a man.

"Moral or natural liberty (in the words of Burlamaqui, ch. 3. s. 15.) is the right which nature gives to all mankind of disposing of their persons and property after the manner they judge most consonant to their happiness, on condition of their acting within the limits of the law of nature, and that they do not any way abuse it to the prejudice of any other men."

This is frequently confounded, and even by the learned judge in this very section, with savage liberty.

Civil liberty is well defined by our author to be" that of a member of society, and is no other than natural liberty, so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public."

Mr. Paley begins his excellent chapter upon civil liberty with the following definition: "Civil liberty is the not being restrained by any law, but what conduces in a greater degree to the public welfare." B. vi. c. 5.

The archbishop of York has defined "civil or legal liberty to be that which consists in a freedom from all restraints except such as established law imposes for the good of the community, to which the partial good of each individual is obliged to give place." (A sermon preached Feb. 21, 1777, p. 19.)

All these three definitions of civil liberty are clear, distinct, and rational, and it is probable they were intended to convey exactly the same ideas; but I am inclined to think that the definition given by the learned judge is the most perfect, as there are many restraints by natural law, which, though the established law does not enforce, yet it does not vacate and remove.

In the definition of civil liberty it ought to be understood, or rather expressed, that the restraints introduced by the law should be equal to all, or as much so as the nature of things will admit. Political liberty may be defined to be the security with which, from the constitution, form, and nature of the established government, the subjects enjoy civil liberty. No ideas or definitions are more distinguishable than those of civil and political liberty: yet they are generally confounded; and the latter cannot yet claim an appropriate name. The learned judge uses political and civil liberty indiscriminately; but it would perhaps be convenient uniformly to use those terms in the respective senses here suggested, or to have fixed some specific denominations of ideas, which in their nature are so widely different. The last species of liberty has probably more than the rest engaged the attention of mankind, and particularly the people of England. Civil liberty, which is nothing more than the impartial administration of equal and expedient laws, they have long enjoyed nearly to as great an extent as can be expected under any human establishment.

But some who are zealous to perpetuate these inestimable blessings of civil liberty, fancy that our political liberty may be augmented by reforms, or what they deem improvements in the constitution of the government. Men of such opinions and dispositions there will be, and perhaps it is to be wished that there should be, in all times. But before any serious experiment is made, we ought to be convinced by little less than mathematical demonstration, that we shall not sacrifice substance to form, the end to the means, or exchange present possession for future prospects. It is true, that civil liberty may exist in perfection under an absolute monarch, according to the well-known verse:

Fallitur egregio quisquis sub principe credit
Servitium. Nunquam libertas gratior extat.
Quam sub rege pio.

CLAUD.

But what security can the subjects have for the virtues of his successor? Civil liberty can only be secure where the king has no power to do wrong, yet all the prerogatives to do good. Under such a king, with two houses of parliament, the people of England have a firm reliance that they will retain and transmit the blessings of civil and political liberty to the latest posterity.

There is another common notion of liberty, which is nothing more than a freedom from confinement. This is a part of civil liberty, but it being the most important part, as a man in a goal can have the exercise and enjoyment of few rights, it is a?' eoxny called liberty.

But where imprisonment is necessary for the ends of public justice, or the safety of the com