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 misdemeanors; with the means of prevention and punishment. (2)

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

*Now the rights of persons that are commanded to be observed by the [*123 ] municipal laws 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 man is bound *to

[ *124 ] 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 abandoned in his principles, or vicious in his practice, pro

(2) [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 books of the Commentaries, seems to have no other difference than the antithesis of the expression, 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 books, appears, in a great degree, 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 generates 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 Ch. J. Hale. See Hale's Analysis of the Law.]

Austin on the Province of Jurisprudence considers at some length and criticises the classification of the text.

vided 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. 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, [125] which, arising from a variety of connexions, will be far more numerous and more complicated. (3) 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

(3) The people of the American States have not been disposed to leave the protection of the absolute rights of individuals exclusively to the legislative bodies to which they have intrusted the making of the laws; but, with what appeared to many at first an excess of prudence, they have hedged about these rights with constitutional securities in a manner which reasonably protects them from invasion. In the several state constitutions there is incorporated a bill of rights" declaratory of the rights of individuals, so framed as to limit the power of the legis lative department in the directions which might lead to their abridgment. Thus, bills of attainder and ex post facto laws are prohibited; the right to freedom of speech, freedom of the press, and freedom of religious worship are declared, and the legislature prohibited from abridging them; private property is declared to be inviolable, except when required for public use, and then it can only be taken on compensation being made; unreasonable searches and seizures are forbidden, and the authorities are precluded from quartering soldiers upon citizens in time of peace. These rights and immunities being thus declared, it becomes the duty of the courts to enforce them against the action of the other departments of the government; and for the more complete protection of the citizen, a right of trial by jury is preserved, that he may have the judgment of his peers upon his controversies, and upon any accusation that may be preferred against him. The constitution of the United States originally contained but few provisions in the nature of a bill of rights, but such was the popular jealousy of undefined power over their persons and property, that it was found impracticable to secure the adoption of that instrument except in connection with the recommendation of amendments which should supply the deficiency. Those amendments were soon added. It is a settled rule of construction of the national constitution that the limitations it imposes upon the powers of government are in all cases to be understood as limitations upon the government of the Union only, except where the states are expressly mentioned: Barron v. Baltimore, 7 Pet. 243; Livingston's Lessee v. Moore, ib. 551; Fox e. Ohio, 5 How. 432; Sinith r. Maryland, 18 How. 471; Puryear v. Commonwealth, 5 Wal. 475; Twitchell v. Commonwealth, 7 Wal. 321. Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, and laws discriminating between citizens on account of race, color or previous condition of servitude, the states are forbidden to pass; but for the most part the protection of individual rights, as against the action of the state authorities, is not provided for by the constitution of the Union, but is left to the people of the states themselves, who will insert such prohibitions and guaranties as they deem important when framing their fundamental law.

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, 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 [*126] a 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 control 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 forbade the fine gentlemen of those times (under the degree of a lord) to wear pikes on their shoes or boots of more than two inches in length, was 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) (4) which prescribes a thing seemingly 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) (c) Facultas ejus, quod cuique facere libet, nisi quid vi aut jure prohibetur. Inst. 1 2. 1. (d) 3 Edw. IV, c. 5. (f) On Gov. p. 2. § 57.

(e) 30 Car. II St. 1. c. 3.

(4) [Repealed by Stat. 54 Geo. III, c. 108.]

(5) [This section is one of the very few intelligible descriptions of liberty, which have have hith erto been communicated to the world. Though declamation and eloquence in all ages have exhausted their stores upon this favorite theme, yet reason has made so little progress in ascertaining 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 consistent account of this idol of mankind. 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 tiger, and not the liberty of a man.

Moral or natural liberty (in the words of Burlamaqui, c. 3, § 15,) is the right which nature gives to all mankind of disposing of their persons and property after the manner they

The idea and practice of this political or civil liberty flourish in their highest vigor in these kingdoms, where it falls *little short of perfection, and [*127] can only be lost or destroyed by the folly or demerits of its owner: the legislature, and of course the laws of England, being peculiarly adapted to the preservation of this inestimable blessing even in the meanest subject. Very different from the modern constitutions of other states, on the continent of Europe, and from the genius of the imperial law; which in general are calcula

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 not being restrained by any law, but what conduces in a greater degree to the public welfare." B. vị, c. 5.

The Archibishop 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 some fixed 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 of 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:

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 gaol can have the exercise and enjoyment of few rights, it is kar' e5oxnu called liberty.

But, where imprisonment is necessary for the ends of public justice, or the safety of the community, it is perfectly consistent with civil liberty. For Mr. Paley has well observed that, "it is not the rigour, but the inexpediency of laws and acts of authority, which makes them tyrannical." B. vi, c. 5.

This is agreeable to that notion of civil liberty entertained by Tacitus, one who was well acquainted with the principles of human nature and human governments, when he says, Gothones regnantur paula jam adductius, quam cæteræ Germanorum gentes, nondum tamen supra libertatem. De Mor. Ger. c. 43.

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ted to vest an arbitrary and despotic power, of controlling the actions of the subject, in the prince, or in a few grandees. And this spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave or negro, the moment he lands in England, falls under the protection of the laws, and so far becomes a freeman; (g) though the master's right to his service may possibly still continue. (6)

The absolute rights of every Englishman, which, (taken in a political and extensive sense, are usually called their liberties,) as they are founded on nature and reason, so they are coeval with our form of government; though subject at times to fluctuate and change; their establishment (excellent as it is) being still human. At some times we have seen them depressed by overbearing and tyrannical princes; at others so luxuriant as even to tend to anarchy, a worse state than tyranny itself, as any government is better than none at all. (7) But the vigour of our free constitution has always delivered the nation from these embarrassments: and, as soon as the convulsions consequent on the struggle have been over, the balance of our rights and liberties has settled to its proper level; and their fundamental articles have been from time to time asserted in parliament, as often as they were thought to be in danger.

(1)

First, by the great charter of liberties, which was obtained, sword in hand, from King John, and afterwards, with some alterations, confirmed in parliament by King Henry the Third, his son. Which charter contained very few new grants; but, as Sir Edward Coke () observes, was for the most part declaratory of the principal grounds of the fundamental laws of Eng[*128] land. Afterwards by the statute called confirmatio cartarum, 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 sentence of excommunication is directed to be as constantly denounced against all those that, by word, deed, or counsel, act contrary thereto, or in any degree infringe it. Next, by a multitude of subsequent corroborating statutes (Sir Edward Coke, I think, reckons thirty-two,) (k) from the first Edward to Henry the Fourth. Then, after a long interval, by the petition of right; which was a parliamentary declaration of the liberties of the people, assented to by King Charles the First in the beginning of his reign. Which was closely followed by the still more ample concessions made by that unhappy prince to his parliament before the fatal rupare between them; and by the many salutary laws, particularly the habeas corpus act, passed under Charles the Second. To these succeeded the bill of rights, or declaration delivered by the lords and commons to the prince and princess of Orange, 13th of February, 1688; and afterwards

(g) Salk. 666. See ch. 14.

(h) 2 Inst. proem. (i) 25 Edw. 1.

(k) 2 Inst. proem.

It is very suprising that the learned commentator should cite with approbation (pp. 6 and 125), and that Montesquieu should adopt (b. xi, c. 13), that absurd definition of liberty given in Justinian's Institutes: Facultas ejus, quod cuique facere libet, nisi quod vi, aut jure prohibetur. The liberty here defined implies that every one is permitted to do whatever is not forbidden by an existing law, and perhaps whatever is not forbidden to all. The word ci seems to refer to a restrainst against law. In every country, and under all circumstances, the subjects possess the liberty described by this definition.

When an innocent negro is seized and chainel, or is driven to his daily toil by a merciless master, he still retains this species of liberty, or that little power of action, of which force and barbarous laws have not bereft him. But we must not have recourse to a system of laws in which it is a fundamental principle, quod principi placuit, legis habet vigorem, for correct notions of liberty. CHRISTIAN.]

(6) See Forbes v. Cochrane, 2 B. and C 448; 3 D. and R. 679, S. C. See, also, note to Sommerset's Case, Broom's Const. Taw 65, 105, et seq. If the master has any right to service, it must spring from contract by the negro to render it

(7) [Lord Camden concluded his judgment in the case of general warrants in the same worda · "One word more for ourselves; we are no advocates for libels; all governments must set their faces against them, and whenever they come before us and a jury, we shall set our faces against them; and if juries do not prevent them, they may prove fatal to liberty, destroy government, and introduce anarchy; but tyranny is better than anarchy, and the worst government better than none at all." ~2. Wils, 292. }