the fear of having one's house burned, or one's goods taken away and destroyed; because in these cases, should the threat be performed, a man may have satisfaction by recovering equivalent damages :(x) but no suitable atonement can bo 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 that maxim of the civil law; ignoscitur ei qui sanguinem suum qualiter redemptum voluit.12 The law not only regards life and member, and protects every man in the enjoyment of them, but also furnishes him with every thing necessary for their support. For there is no man so indigent or wretched, but he may demand a supply sufficient for all the necessities 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,(y) were rejected in Justinian's collection. *These rights of life and member, can only be determined by the death *132] of the person; 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(2) by the process of the common law, or entered into religion; that is, went into a monastery, and became there a monk professed: in which cases he was absolutely dead in law, and his next heir should have 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 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 society, who secluded themselves from it, and refused to submit to its regulations. (a) A monk was therefore counted 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 those due from him, as if he were naturally deceased. (b) 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.(c) 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.(d) *) 2 Inst. 483. (Y) L. 11, c. 27. (z) Co. Litt. 133. This was also a rule in the feodal law, l. 2, c. 21: desiit esse miles seculi, qui factus est miles Christi; nec beneficium pertinet ad eum qui non debet genere officium. (b) Litt. 200. (c) Co. Litt. 133. (d) 2 Rep. 48; Co. Litt. 182. 12 It must be observed that, in modern times, parties have been allowed to rely upon, if not technically to plead, duress in avoidance of their deeds or contracts in cases which do not come up to the rule laid down in the text. Duress of goods will, under certain circumstances of great difficulty and hardship, avoid a contract. Money paid to obtain a delivery of property unlawfully detained, especially if it is paid under protest, may be recovered back. 2 Bay, 211. 9 Johns. 201. 10 Peters, 137. A note given to obtain a release of property from an illegal levy is not void; but it may be considered as an element in a question of fraud. 6 Smedes & Marsh. 13.-SHARSWOOD. [*133 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;(e) and therefore, since the Reformation, this disability is held to be abolished:(ƒ) as is also the disability of banishment, consequent upon abjuration, by statute 21 Jac. I. c. 28.13 This natural life, being, as was before observed, the immediate donation of the great Creator, cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow-creatures, merely upon their own authority. Yet nevertheless it may, by the divine permission, be frequently forfeited for the breach of those laws of society, which are enforced by the sanction 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 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 subject, 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 the subject is aware of the danger he is exposed to, and may, by prudent caution, provide against it. The statute law of England does therefore very seldom, and the common law does never, inflict any punishment extending to life or limb, 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 warrant of law. "Nullus liber homo," says the great charter,(g) "aliquo modo destruatur, nisi per legale judicium parium suorum aut per legem terræ." Which words, "aliquo modo destruatur," according to Sir Edward Coke,(h) 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 statute of 5 Edw. III. 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 Edw. III. c. 3, that no man [*134 shall be put to death, without being brought to answer by due process of law. 3. Besides those limbs and members that may be necessary to a man in order to defend himself or annoy his enemy, the rest of his person or body is also entitled, by the same natural right, to security from the corporal insults of menaces, assaults, beating, and wounding; though such insults amount not to destruction of life or member. 4. The preservation of a man's health from such practices as may prejudice or annoy it; and 5. The security of his reputation or good name from the arts of detraction and slander, 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 these 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 13 One species of civil death may still exist in this country; that is, where a man by act of parliament is attainted of treason or felony, and, saving his life, is banished for ever: this Lord Coke declares to be a civil death. But, he says, a temporary exile is not a civil death. Co. Litt. 133. And for the same reason, where a man receives judg ment of death, and afterwards leaves the kingdom for life, upon a conditional pardon, this seems to amount to a civil death: this practice did not exist in the time of Lord Coke, who says, that a man can only lose his country by authority of parliament. Ib.CHRISTIAN. 14 This is a compliment, which I fear the common law does not deserve; for although it did not punish with death any person 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 stealing only of twelve pence farthing.-CHRISTIAN. the more minute discussion of their several branches to those parts of our coinmentaries which treat of the infringement of these rights, under the head of personal wrongs. II. Next to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or moving one's person to whatso ever 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 have never abridged it without sufficient cause; and that, in this kingdom, it cannot ever be abridged at the mere discretion of the magis trate, without the explicit permission of the laws. Here again the language of *135] the great charter(i) is, that no freeman shall be taken or imprisoned but by the lawful judgment of his equals, or by the law of the land. And many subsequent old statutes() expressly direct, that no man shall be taken or imprisoned by suggestion or petition to the king or his council, unless it be by legal indictment, or the process of the common law. By the petition of right, 3 Car. I., it is enacted, that no freeman shall be imprisoned or detained without cause shown, to which he may make answer according to law. By 16 Car. I. c. 10, if any person be restrained of his liberty by order or decree of any illegal court, or by command of the king's majesty in person, or by warrant of the council board, or of any of the privy council, he shall, upon demand of his counsel, have a writ of habeas corpus, to bring his body before the court of king's bench or common pleas, who shall determine whether the cause of his commitment be just, 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 so plainly pointed out and enforced, that, so long as this statute remains animpeached, no subject of England can be long detained in prison, except in those cases in which the law requires and justifies such detainer.1 (5) C. 29. (1) 5 Edw. III. c. 9. 25 Edw. III. st. 5. c. 4. 28 Edw. III. c. 3. 15" For the true sense and exposition of these words," says Lord Coke, (2 Inst. 50,) "see the statute of 37 Eliz. cap. 8, where the words 'by the law of the land' are rendered, without due process of law." The amendments to the constitution of the United States use the language, "nor be deprived of life, liberty, or property, without due process of law." And Judge Story observes that "this clause in effect affirms the right of trial according to the process and proceedings of the common law." (3 Story on the Const. 661.) "These terms 'law of the land' do not mean merely an act of the general assembly. If they did, every restriction upon the legislative authority would be at once abrogated." 4 Devereux, 1. 10 Yerger, 59. 19 Wend. 659. "In a state which is governed by a written constitution like ours, if the legislature should so far forget its duty, and the natural rights of an individual, as to take his private property and transfer it to another, where there was no foundation for a pretence that the public was to be benefited thereby, I should not hesitate to declare that such an abuse of the right of eminent demain was an infringement of the spirit of the constitution, and therefore not within the general powers delegated by the people to the legislature.”—Ch. Walworth, 5 Paige, 137.-SHARSWOOD. 16 The writ of habeas corpus at common law, although a writ of right, is not grantable of course, but only on motion in term-time, stating a probable cause for the application, and verified by affidavit. Hobhouse's Case, 3 B. & Ald. 420. The cases in which prisoners have a right to the writ are when they are detained in prison when they are entitled to be admitted to bail. This right is secured to such prisoners by the 31 Car. II. c. 2. Before the passing of that statute, prisoners committed for bailable offences were sometimes kept for a long time in prison without being brought to trial. To prevent this grievous oppression, the habeas corpus act directs that if any person be committed or detained for any crime, unless for treason or felony, other than persons convict or in execution by legal process, he may apply to the lord-chancellor or a judge in vacation, and the person so applied to is to cause such prisoner to be brought before him, and to discharge him from imprisonment, upon his recognizance to appear in the court where his offence is cognizable. In cases which come under this statute, a single judge may perhaps be obliged to grant the writ as of course, but in no other; and the provision of And, lest this act should be evaded by demanding unreasonable b that of profor the prisoner's appearance, it is declared by 1 W. and M. st. 2, c. his acquicessive bail ought not to be required. land. Of great importance to the public is the preservation of this personal libeore for if once it were left in the power of any the highest magistrate to impriso arbitrarily whomever he or his officers thought proper, (as in France it is daily practised by the crown,)(k) there would soon 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, *are less dangerous to the commonwealth than such as are made upon the personal liberty of the sub[*136 ject. To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom; but corfinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. And yet sometimes, when the state is in real danger, even this may be a necessary measure. But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great as to render this measure expedient; for it is the parliament only, or legislative power, that, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing; as the senate of Rome was wont to have recourse to a dictator, a magistrate of absolute authority, when they judged the republic in any imminent danger. The decree of the senate, which usually preceded the nomiuation of this magistrate, "dent operam consules ne quid respublica detrimenti capiat," was called the senatus consultum ultimæ necessitatis. In like manner this experiment ought only to be tried in cases of extreme emergency; and in these the nation parts with its liberty for a while, in order to preserve it forever. The confinement of the person, in any wise, is an imprisonment; so that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment.(1) And the law so much discourages unlawful confinement, that if a man is under duress of imprisonment, which we before explained to mean a compulsion by an illegal restraint of liberty, until he seals a bond or the like, he may allege this duress, and avoid the extorted bond. But if a man be lawfully imprisoned, (*) I have been assured upon good authority, that, during the mild administration of Cardinal Fleury, above 54,000 lettres de cachet were issued upon the single ground of the this law do not apply to writs grantable by the court in term-time. Best, J.: Ibid. Passmore Williamson's Case, 26 Penna. State Reg. 9. In some of the States it is enacted that the judge or court before which the writ is returned shall have authority to revise the cause of commitment, and to examine into the truth of the facts alleged in the return. The English statute of 56 Geo. III. c. 100 conferred the like power. If it appears, on the return, that the prisoner stands committed for a contempt adjudged against him by any tribunal of competent authority, the court or judge awarding the writ cannot examine into the fact of such contempt or bail the prisoner, but must immediately remand him. The adjudication is a conviction, and the commitment an execution. Murray's Case, 1 Wilson, 200. Crosby's Case, 3 Wilson, 188. Hobhouse's Case, 3 B. & Ald. 420. It is provided by the constitution of the United States that the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the, public safety may require it. (Art. 1, sec. 9.) The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrants shall issue but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized. (Amendments, Art. VI.) No person shall be deprived of life, lit erty, or property without due process of law. (Ibid., Art. VII.) Excessive bail shall not be required. (Ibid. Art. X.) These provisions have been copied almost without exception into the various Bills of Rights, &c. which form parts of the several State constitutions.SHARSWOOD. the more mentaries either to procure his discharge, or on any other fair account, seals personal to avoid it.(m) To make imprisonment lawful, it must either be by proII from the courts of judicature, or by warrant from some legal officer having sexuthority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into, if necessary, upon a habeas corpus." If there be no cause expressed, the jailer is not bound to detain the prisoner;(n) for the law judges, in this respect, saith Sir Edward Coke, like Festus the Roman governor, that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged. personalad or a deed, this is not by duress of imprisonment, and he is not at A natural and regular consequence of this personal liberty is, that every Englishman may claim a right to abide in his own country so long as he pleases; and not to be driven from it unless by the sentence of the law. The king, indeed, by his royal prerogative, may issue out his writ ne exeat regno, and prohibit any of his subjects from going into foreign parts without license.(0) This may be necessary for the public service and safeguard of the commonwealth. But no power on earth, except the authority of parliament, can send any subject of England out of the land against his will; no, not even a criminal. For exile and transportation are punishments at present unknown to the common law; and, wherever 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 some modern act of parliament.18 To this purpose the great charter(p) declares, that no freeman shall 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 second magna carta, and stable bulwark of our liberties,) it is enacted, that no subject of this realm, who is an inhabitant of England, Wales, or Berwick, shall be sent prisoner into Scotland, Ireland, Jersey, Guernsey, or places beyond the seas, (where *they cannot have the full benefit and *138] protection of the common law;) but that all such imprisonments shall be illegal; that the person, who shall dare to commit another contrary to this law, shall be disabled from bearing any office, shall incur the penalty of a pramunire, and be incapable of receiving the king's pardon; and the party suffering shall also have his private action against the person committing, and all his aiders, advisers, and abettors; and shall recover treble costs; besides his damages, which no jury shall assess at less than five hundred pounds. The law is in this respect so benignly and liberally construed for the benefit of the subject, that, though within the realm the king may command the attendance and service of all his liegemen, yet he cannot send any man out of the realm, even upon the public service; excepting sailors and soldiers, the nature of whose employment necessarily implies an exception: he cannot even constitute a man lord deputy or lieutenant of Ireland against his will, nor make him a foreign ambassador.(g) For this might, in reality, be no more than an honourable exile. 17 As an arrest is an imprisonment in the large sense of the word, this position, that imprisonment, to be lawful, should be by process or warrant, must be understood with the qualifications pointed out in the Chapter on Arrests, b. iv. ch. 21. A constable or peace-officer has a right to arrest without warrant, upon probable ground of suspicion shown; and even a private person may justify an arrest without warrant, by proof of the guilt of the party arrested. To constitute duress at law, the arrest must have been originally illegal, or have become so by subsequent abuse of it. 2 Watts, 167. 2 Foster, 303. An arrest for a just cause and under lawful authority, if for an unlawful purpose, will be construed duress of imprisonment. 8 N. Hamp. 386.-SHARSWOOD. 18 The executive may annex to a pardon any condition, whether precedent or subsequent, not forbidden by law; and it lies on the grantee to perform it. It is not an unlawful condition that the party shall depart or be removed from the country. Flavill's Case, 8 Watts & Serg. 197.—SuARSWOOD. |