 section 10 part 3 of section 3 of the introduction of the commentaries on the laws of England book 1 this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by J. C. Guan commentaries on the laws of England by William Blackston book 1 introduction section 3 part 3 the canon law is a body of Roman ecclesiastical law relative to such matters as that church either has or pretends to have the proper jurisdiction over this is compiled from the opinions of the ancient Latin fathers the decrees of general councils the decretole epistles and bills of the Holy See all which lay in the same disorder and confusion as the Roman civil law till about the year 1151 one Grecian an Italian monk animated by the discovery of Justinian's pandex at Amalfi reduced them into some method in three books which he entitled concordia discordantium canonum but which are generally known by the name of the cretum Greciani these reached as low as the time of Pope Alexander III the subsequent papal decrees to the pontificate of Gregory 9th were published in much the same method under the auspices of that Pope about the year 1230 in five books entitled the cretalia gregori noni a sixth book was added by Boniface the 8th about the year 1298 which is called six twist the cretallium the Clementine constitutions or decrees of Clement five were in like manner authenticated in 1317 by his successor John the 22nd who also published 20 constitutions of his own called the extravagantes yobanis all which in some measure answer to the novels of the civil law to these have been since added some decrees of later popes in five books called extravagantes comunes and all these together Grecian's decree Gregory's decretals the sixth decretal the clementine constitutions and the extravagance of John and his successors form the corpus eury canonici or body of the Roman canon law besides these pontifical collections which during the times of papery were received as authentic in this island as well as in other parts of Christendom there is also a kind of national canon law composed of legateen and provincial constitutions and adopted only to the exigencies of this church and kingdom the legateen constitutions were ecclesiastical laws enacted in national synods held under the cardinals also and also one legates from Pope Gregory 9 and Pope Adrian 4 in the reign of King Henry III about the years 1220 and 1268 the provincial constitutions are principally the decrees of provincial synods held on the diverse archbishops of Canterbury from Stephen Langton in the reign of Henry III to Henry Tuteli in the reign of Henry V and adopted also by the province of York in the reign of Henry VI at the dawn of the reformation in the reign of King Henry VIII it was enacted in parliament that a review should be had of the canon law until such review should be made all canons constitutions ordinances and synodal provincial being then already made and not repugnant to the law of the land or the king's prerogative should still be used and executed and as no such review has yet been perfected upon this statute now depends the authority of the canon law in England as for the canons enacted by the clergy under James I in the year 1603 and never confirmed in parliament it has been solely adjudged upon the principles of law and the constitution that where they are not merely declaratory of the ancient canon law but are introductory of new regulations they do not bind the lady whatever regard the clergy may think proper to pay them there are four species of courts in which the civil and canon laws are permitted under different restrictions to be used one the courts of the archbishops and bishops and their derivative officers usually called in our law courts Christian courier christianitas or the ecclesiastical courts to the military courts three the courts of admiralty for the courts of the two universities in all the reception in general and the different degrees of that reception are grounded entirely upon customer corroborated in the latter instance by act of parliament ratifying those charters which confirm the customary law of the universities the more minute consideration of these will fall properly under that part of these commentaries which treats of the jurisdiction of courts it will suffice at present to remark a few particulars relative to them all which may serve to inculcate more strongly the doctrine laid down concerning them one and first the courts of common law have the superintendency over these courts to keep them within their jurisdictions to determine where in they exceed them to restrain and prohibit such excess and in case of contumacy to punish the officer who executes and in some cases the judge who enforces the sentence so declared to be illegal to the common law has reserved to itself the exposition of all such acts of parliament as concern either the extent of these courts or the matters depending before them and therefore if these courts either refuse to allow these acts of parliament or will expound them in any other sense than what the common law puts upon them the king's courts at Westminster will grant prohibitions to restrain and control them three an appeal lies from all these courts to the king in the last resort which proves that the jurisdiction exercised in them is derived from the crown of England and not from any foreign patented or intrinsic authority of their own and from these three strong marks and insigns of superiority it appears beyond a doubt that the civil and canon laws though admitted in some cases by custom in some courts are only subordinate and legus subgravioli legae and that thus admitted restrained altered new modeled and amended they are by no means with us a distinct independent species of laws but are inferior branches of the customary or unwritten laws of England properly called the king's ecclesiastical the king's military the king's maritime or the king's academical laws let us next proceed to the legus scripti the written laws of the kingdom which are statutes act or edicts made by the king's majesty by and with the advice and content of the Lord's spiritual and temporal and comments in parliament assembled the oldest of these now extant and printed in our statute books is the famous Magna Carta has confirmed in parliament nine Henry the third though doubtless they were many acts before that time the records of which are not lost and the determinations of them perhaps at present currently received for the maxims of the old common law. The manner of making these statutes will be better considered here after when we examine the constitution of parliaments at present we only take notice of the different kinds of statutes and of some general rules which regard their construction first as to their several kinds statutes are either general or special public or private. A general or public act is a universal rule that regards the whole community and of these the courts of law are bound to take notice judicially and ex-officio without the statute being particularly pleaded or formally set forth by the party who claims an advantage under it special or private acts are rather exceptions than rules being those that which only operate upon particular persons and private concerns such as the Romans entitled Senatus decretta in contra distinction to the Senatus consulta which regarded the whole community and of these the judges are not bound to take notice unless they be formally shown and pleaded thus to show the distinction the statute thirteen Elizabeth chapter ten to prevent spiritual persons from making leases for longer terms than twenty one years or three lives is a public act it's being a role prescribed to the whole body of spiritual persons in the nation but an act to enable the bishop of Chester to make a lease to AB for sixty years is an exception to this role it concerns only the parties and the bishop's successors and is therefore a private act statutes are also either declaratory of the common law or remedial of some defects there in their territory where the old custom of the kingdom is almost fallen into this use or become disputable in which case the parliament has thought proper in Perpetuum a day testimonium and for avoiding all doubts and difficulties to declare what the common law is and ever has been thus the statute of treasons twenty five Edward the third chapter two does not make any new species of treasons but only for the benefit of the subject declares and enumerate those several kinds of offense which before were treason at the common law remedial statutes are those which are made to supply such defect and the bright such superfluities in the common law as a rise either from the general imperfection of all human loss from change of time and circumstances from the mistakes and on advice determinations of unlearned judges or from any other cause whatsoever and this being done either by enlarging the common law where it was too narrow and circumscribed or by restraining it where it was to lacks and luxuriant this has occasioned another subordinate division of remedial acts of parliament into enlarging and restraining statutes to instance again in the case of treason clipping the current coin of the kingdom was an offense not sufficiently guarded against by the common law therefore it was thought expedient by statute five Elizabeth chapter eleven to make it high treason which it was not at the common law so that this was an enlarging statute at common law also spiritual corporations might lease out their estates for any term of years to prevented by the statute thirteen Elizabeth before mentioned this was therefore a restraining statute secondly the rules to be observed with regard to the construction of statutes are principally these which follow one there are three points to be considered in the construction of all remedial statutes the old law the mischief and the remedy that is how the common law stood at the making of the act what the mischief was for which the common law did not provide and what remedy the parliament has provided to cure this mischief and it is the business of the judges so to construct the act as to suppress the mischief and advance the remedy let us instance again in the same restraining statute of thirteen Elizabeth by the common law ecclesiastical corporations might let as long leases as they thought proper the mischief was that they let long and unreasonable leases to the impoverished of their successors the remedy applied by the statute was by making void all leases by ecclesiastical bodies for longer terms than three lives or twenty one years now in the construction of this statute it is held that leases though for a longer term if made by a bishop are not void during the bishop's life or if made by a dean with concurrence of his chapter they are not void during the life of the dean for the act was made for the benefit and protection of the successor the mischief is therefore sufficiently suppressed by vacating them after the death of the grantor but the leases during their lives being not within the mischief are not within the remedy to a statute which treats of things or persons of an inferior rank cannot by any general word be extended to those of a superior so a statute treating of deans, preventaries, parson's, vickers and other having spiritual promotion is held not to extend to bishops though they have spiritual promotion deans being the highest persons named and bishops being of a still higher order three penal statutes must be construed strictly thus a statute one Edward the sixth having enacted that those who are convicted of stealing horses should not have the benefit of clergy the judges conceived that this did not extend to him that should steal but one horse and therefore procured a new act for that purpose in the following year and to come nearer to our times by the statute fourteen George the second chapter six stealing sheep or other cattle was made felony with the total benefit of clergy but these general words or other cattle being looked upon as much to lose to create a capital offense the act was held to extend to nothing but mere sheep and therefore in the next sessions it was found necessary to make another statute fifteen George the second chapter thirty four extending the former to bulls cows oxen steers bullocks hyphers cows and lambs by name for statutes against frauds are to be liberally and beneficially expounded this may seem a contradiction to the last rule most statutes against frauds being in their consequences penal but this difference is here to be taken where the statutes acts upon the offender and inflicts a penalty as the pillory or a fine it is then to be taken strictly but when the statute acts upon the offense by setting aside the fraudulent transaction here it is to be construed liberally upon this footing the statute of thirteen Elizabeth chapter five which avoids all gifts of goods etc made to defraud creditors and others was held to extend by the general words to a gift made to defraud the queen of a four feature five one part of a statute must be so construed by another that the whole may it possible stand as if land be vested in the king and his heirs by act of parliament saving the right of a and a has at that time a lease of it for three years here a shall hold it for his term of three years and afterwards it shall go to the king but this interpretation furnishes matter for every class of the statute to work and operate upon but six a saving totally repugnant to the body of the act is void if therefore an act of parliament vests land in the king and his heirs saving the right of all persons whatsoever or vest the land of a in the king saving the right of a in either of these cases the saving is totally repugnant to the body of the statute and if good would render the statute of no effect or operation and therefore the saving is void and the land vests absolutely in the king seven where the common law and the statute differ the common law gives place to the statute and an old statute gives place to a new one and this upon the general principle laid down in the last section that legis was the two years for your is contrary as abrogant but this is to be understood only when the latter statute is couched in negative terms or by its matter necessarily implies a negative as if a former act says that a juror upon such a trial shall have twenty pounds a year and a new statute comes and says he shall have twenty marks here the latter statute though it does not express yet necessarily implies a negative and virtually repeals the former for if twenty marks be made qualification sufficient the former statute which requires twenty pounds is at an end but if both acts be merely affirmative and the substance such that both may stand together here the latter does not repeal the former but they saw both have a concurrent efficacy if by a former law an offense be indictable at the quarter sessions and the latter law makes the same offense indictable at the acises here the jurisdiction of these sessions is not taken away but both have a concurrent jurisdiction and the offender may be prosecuted at either unless the new statute subjoins express negative words as that the offense shall be indictable at the acises and not elsewhere eight if a statute that repeals another is itself repealed afterwards the first statute is hereby revived without any formal words for that purpose so when the statute of twenty six and thirty five Henry the eight declaring the king to be the supreme head of the church were repealed by a statute one and two Philip and Mary and this latter statute was afterwards repealed by an act of one Elizabeth there needed not any express words of revival in Queen Elizabeth's statute but these acts of King Henry were implied and virtually revived nine acts of parliament derogatory from the power of subsequent parliament bind not so the statute eleven Henry the seventh chapter one which directs that no person for assisting a King de facto shall be attained of treason by act of parliament or otherwise is held to be good only as to common prosecutions for high treason but will not restrain or clog any parliamentary attainder because the legislature being in truth the sovereign power is always of equal always of absolute authority it acknowledged no superior upon births which the prior legislature must have been if its ordinances could bind the present parliament and upon the same principle size zero in his letters to Atticus treats with a proper content these restraining clauses which endeavor to tie up the hands of succeeding legislatures quote when you repeal the law itself says he you at the same time repeal the prohibitory clause which guards against such repeal and quote ten lastly acts of parliament that are impossible to be performed are of no validity and if there arise out of them collaterally any absurd consequences manifestly contradictory to common reason they are with regard to those collateral consequences void I lay down the role with these restrictions though I know it is generally laid down more largely that acts of parliament contrary to reason or void but if the parliament will positively enact a thing to be done which is unreasonable I know of no power that can control it and the examples usually alleged in support of this sense of the role to none of them prove that where the main object of a statute is unreasonable the judges are at liberty to reject it for that were to set the judicial power above that of the legislature which would be subversive of all government but where some collateral matter arises out of the general word and happens to be unreasonable there the judges are in decency to conclude that this consequence was not foreseen by the parliament and therefore they are at liberty to expound the statute by equity and only quite up this regarded thus if an act of parliament gives a man power to try all causes that arise within his manner of deal yet if a cause should arise in which he himself is party the act is construed not to extend to that because it is unreasonable that any man should determine his own but if we could conceive it possible for the parliament to enact that he should try as well his own causes as those of other persons there is no court that has power to defeat the intent of the legislature when couched in such evident and express words as leave no doubt whether it was the intent of the legislature or not these are the several grounds of the laws of England over and above which equity is also frequently called in to assist to moderate and to explain it what equity is and how impossible in its very essence to be reduced to stated rules has been shown in the preceding section I shall therefore only add that there are courts of this kind established for the benefit of the subject to correct and soften the rigor of the law when through its generality it bears too hard in particular cases to detect and punish latent frauds which the law is not minute enough to reach to enforce the execution of such matters of trust and confidence as are binding in conscience though perhaps not strictly legal to deliver from such dangers as are owing to misfortune or oversight and in short to relieve in all such cases as are Bonafide objects of relief this is the business of our courts of equity which however are only conversant in matters of property for the freedom of our constitution will not permit that in criminal cases a power should be lodged in any judge to construe the law otherwise then according to the letter this caution while it admirably protects the public liberty can never bear hard upon individuals a man cannot suffer more punishment than the law assigned but he may suffer less the loss cannot be strained by partiality to inflict a penalty beyond what the letter will warrant but in cases where the letter induces any apparent hardship the crown has the power to pardon and have section 10 section 11 part 1 of section 4 of the introduction of the commentaries on the laws of England book 1 this is a LibriVox recording all LibriVox recordings on the public domain for more information or to volunteer please visit librivox.org recording by JC Guan commentaries on the laws of England by William Blackston book 1 introduction section 4 part 1 section the force on the country's subject to the laws of England the kingdom of England over which our municipal laws have jurisdiction includes not by the common law either wells Scotland or Ireland or any other part of the king's dominions except the territory of England only and yet the civil laws and local customs of this territory do now obtain in part or in all with more or less restrictions in these and many other adjacent countries of which it will be proper first to take a review before we consider the kingdom of England itself the original and proper subject of these laws wells had continued independence of England unconquered and uncultivated in the primitive pastoral state which Caesar and Tacitus ascribe to Britain in general for many centuries even from the time of the hostile invasions of the Saxons when the ancient and Christian inhabitants of the island retired to those natural entrenchments for protection from their pagan visitants but when these invaders themselves were converted to Christianity and settled into regular and potent governments this retreat of the ancient Britons grew every day never they were overrun by little and little gradually driven from one fastness to another and by repeated losses a bright their own wild independence very early in our history we find their princes doing homage to the crown of England till at length in the reign of Edward the first who may justly be styled the conqueror of wells the line of the ancient princes were abolished and the king of England's eldest son became as a matter of course their titular prince the territory of wells being then entirely annexed to the dominion of the crown of England or as the statute of Brutland expresses it terra volle comincolis suis prius redi jure feudali subiecta of which homage was designed jam in proprietatis dominium totaliter et cum integritate conversa est et coronae regni angliae tankuam pass corporis a use them annexa et unita by the statute also of wells very material alterations were made in diverse parts of their laws so as to reduce them nearer to the English standard especially in the forms of their judicial proceedings but they still retained very much of their original policy particularly their role of inheritance this that their lands were divided equally among all the issue male and did not descend to the eldest son alone by other subsequent statutes their provincial immunities were still further abridged but the finishing stroke of their independency was given by the statute twenty seven henry d eight chapter twenty six which at the same time gave the utmost advancement to their civil prosperity by admitting them to a thorough communication of laws with the subjects of England thus were this brave people gradually conquered into the enjoyment of true liberty being insensibly put upon the same footing and made fellow citizens with their conquerors a generous method of triumph which the Republic of Rome practiced with great success till she reduced all Italy to her obedience by admitting the vanquished states to partake of the Roman privileges it is enacted by this statute twenty seven henry d eight one that the dominion of wells shall be forever united to the kingdom of England to that all Welshman born shall have the same liberties as other the king subjects three the lands in wells shall be inheritable according to the English tenures and roles of descent for that the laws of England and no other shall be used in wells besides many other regulations of the polis of this principality and the statute thirty four and thirty five henry d eight chapter twenty six confirms the same adds further regulations divides it into twelve shares and in short reduces it into the same order in which it stands at this day differing from the kingdom of England in only a few particulars and those two of the nature of privileges such as having courts within itself independent of the process of Westminster Hall and some other immaterial peculiarities hardly more than are to be found in many counties of England itself the kingdom of Scotland not withstanding the union of the crowns on the ascension of their king James the sixth to that of England continued an entirely separate and distinct kingdom for above a century though an union had been long projected which was judged to be more easy to be done as both kingdoms were anciently under the same government and still remained a very great resemblance so far from an identity in their laws by an act of parliament one James the first chapter one it is declared that these two mighty famous and ancient kingdoms were formally one and third Edward Cook observes how marvelous a conformity there was not only in the religion and language of the two nations but also in their ancient laws the descent of the crown their parliament their titles of nobility their offices of state and of justice their writs their customs and even the language of their laws upon which account he supposes the common law of each to have been originally the same especially as their most ancient and ascetic book called religion my strata and containing the rules of their ancient common law is extremely similar to that of Glendale which contains the principles of ours as it stood in the reign of Henry II and the many diversities subsisting between the two laws at present may be well enough accounted for from a diversity of practice in two large and uncommunicating jurisdictions and from the acts of two distinct and independent parliaments which have in many points altered and abrogated the old common law for both kingdoms however Sir Edward Cook and the politicians of that time conceived great difficulties in carrying on the projected union but these were at length overcome and the great work was happily affected in 1707 5 and when 25 articles of union were agreed to by the parliaments of both nations the purport of the most considerable being as follows one that on the first of May 1707 and forever after the kingdoms of England and Scotland shall be united into one kingdom by the name of Great Britain to the succession to the monarchy of Great Britain shall be the same as was before settled with regard to that of England 3 the United Kingdom shall be represented by one parliament 4 there shall be a communication of all rights and privileges between the subjects of both kingdoms except where it is otherwise agreed 9 when England raises two million pounds by a land tax Scotland shall raise 48,000 pound 16 17 the standards of the coin of weights and of measures shall be reduced to those of England throughout the United Kingdoms 18 the laws relating to trade customs and the excise shall be the same in Scotland as in England but all the other laws of Scotland shall remain in force but alterable by the parliament of Great Britain yet with this caution that laws relating to public policy are alterable at the discretion of the parliament laws relating to private rights are not to be altered but for the evident utility of the people of Scotland 22 16 peers are to be chosen to represent the peerage of Scotland in parliament and 45 members to sit in the House of Commons 23 the 16 peers of Scotland shall have all privileges of parliament and all peers of Scotland shall be peers of Great Britain and ranked next after those of the same degree at the time of the union and shall have all privileges of peers except sitting in the House of Lords and voting on the trial of a peer these are the principle of the 25 articles of union which are ratified and confirmed by statute five and chapter eight in which statute there are also two acts of parliament recited the one of Scotland whereby the Church of Scotland and also the four universities of that kingdom are established forever and all succeeding sovereigns are to take a note inviolably to maintain the same the other of England five and chapter six whereby the acts of uniformity of 13 Elizabeth and 13 Charles the second except as the same had been altered by parliament at that time and all other acts then in force for the preservation of the Church of England are declared perpetual and it is stipulated that every subsequent King and Queen shall take an oath inviolably to maintain the same within England Ireland Wales and the town of Brewick upon tweed and it is enacted that these two acts quote shall forever be observed as fundamental and essential conditions of the union and quote upon these articles and act of union it is to be observed one that the two kingdoms are now so inseparably united that nothing can ever disunite them again but an infringement of those points which when they were separate and independent nations it was mutually stipulated shall be quote fundamental and essential conditions of the union and quote to that whatever else may be deemed quote fundamental and essential conditions and quote the preservation of the two churches of England and Scotland in the same state that they were in at the time of the union and the maintenance of the acts of uniformity which establish our common prayer are expressly declared so to be three that therefore any alteration in the constitutions of either those churches or in the liturgy of the Church of England would be an infringement of these quote fundamental and essential conditions and quote and greatly endanger the union for that the municipal laws of Scotland are ordained to be still observed in that part of the Ireland unless altered by Parliament and as the Parliament has not yet thought proper except in a few instances to alter them they still with regard to the particulars unaltered continue in full force where for the municipal or common laws of England are generally speaking of no force or validity in Scotland and of consequence in the ensuing commentaries we shall have very little occasion to mention any further than sometimes by way of illustration the municipal laws of that's part of the United Kingdoms the town of Burwick upon Tweed those subject to the crown of England ever since the conquest of it in the reign of Edward IV is not part of the Kingdom of England nor subject to the common law though it is subject to all acts of Parliament being represented by Burgesses therein and therefore it was declared by statute twenty George the Second Chapter 42 that where England only is mentioned in any act of Parliament the same notwithstanding shall be deemed to comprehend the Dominion of Wales and the town of Burwick upon Tweed but the general law there used is the Scots law and the ordinary process of the courts of Westminster Hall is there of no authority as to Ireland that is still a distinct kingdom though a dependent subordinate kingdom it was only entitled the Dominion or Lordship of England and the King's style was no other than the Minus Ibernia Lord of England till the 33rd year of King Henry VIII when he assumed the title of King which is recognized by act of Parliament 35 Henry VIII Chapter III but as Scotland and England are now one and the same kingdom and yet differ in their municipal laws so England and Ireland are on the other hand distinct kingdoms and yet in general agree in their laws the inhabitants of Ireland are for the most part descended from the English who planted it as a kind of colony after the conquest of it by King Henry II at which time they carried over the English laws along with them and as Ireland thus conquered planted and governed still continues in a state of dependence it must necessarily conform to and be obliged by such laws as the superior state thinks proper to prescribe at the time of this conquest the Irish were governed by what they called the Brihyn law so stalled from the Irish name of judges who were denominated Brihyns but King John in the 12th year of his reign went into Ireland and carried over with him many able sages of the law and there by his letters patent in right of the Dominion of conquest is said to have ordained and established that Ireland shall be governed by the laws of England which letters patent Sir Edward Cook apprehends to have been there confirmed in Parliament but to this ordinance many of the Irish were averse to conform and still stuck to the Brihyn law so that both Henry III and Edward I were obliged to renew the injunction and at Lent in the Parliament Holden at Kilkenny Forty Edward III under Lionel Duke of Clarence the then Lieutenant of England the Brihyn law was formally abolished it being unanimously declared to be indeed no law but a lewd custom crept in of later times and yet even in the reign of Queen Elizabeth the Wild Natives still kept and preserved the Brihyn law which is described to have been quote a role of right unwritten but delivered by tradition from one to another in which often times there appeared great shoe of equity in determining the right between party and party but in many things repunent quite both to God's law and man's end quote the latter part of which character is alone allowed it under Edward I and his grandson but as Ireland was a distinct dominion and had Parliament of its own it is to be observed that though the immemorial customs or common law of England were made the role of justice in Ireland also yet no acts of the English Parliament since the 12th of King John extended into that kingdom unless it were specially named or included under general words such as quote within any of the King's dominions and quote and this is particularly expressed and the reason given in the yearbook quote Ireland had a Parliament of its own and make his and alter its laws and our statues do not bind them because they do not send representatives to our Parliament but their persons are the King's subjects like as the inhabitants of Calais, Gasconi and Gayane which they continued under the King's subjection and quote the methods made use of England as stated by Sir Edward Cook of making statues in their Parliament according to pointings law of which hereafter is this one the Lord Lieutenant and Council of Ireland must certified to the King under the great seal of Ireland the acts proposed to be passed to the King and Council of England are to consider approve alter or reject the set acts and certify them back again under the great seal of England and then three they are to be proposed received or rejected in the Parliament of Ireland by this means nothing was left to the Parliament of England but a bear negative or power of rejecting not of proposing any law but the usage now is that bills are often framed in either House of Parliament under the denomination of heads for a bill or bills and in that shape they are offered to the consideration of the Lord Lieutenant and Private Council who then reject them at the measure without transmitting them to England but the Irish nation being excluded from the benefits of the English statutes were deprived of many good and profitable laws made for the improvement of the common law and the measure of justice in both kingdoms becoming thereby no longer uniform therefore in the 10th year of Henry the 7th a set of statutes passed in Ireland Sir Edward Poynings being then Lord Deputy whence it is called Poynings Law by which it was among other things enacted that all acts of Parliament before made in England should be a force within the realm of Ireland but by the same rule that no laws made in England between King John's time and Poynings Law were then binding in Ireland it follows that no acts of the English Parliament made since the 10th year of Henry the 7th do now bind the people of Ireland unless specially named or included under general words and on the other hand it is equally clear that where Ireland is particularly named or is included under general words they are bound by such acts of Parliament for this follows from the very nature and constitution of a dependent state dependents being very little else but an obligation to conform to the will or law of that superior person or state upon which the inferior depends the original and true ground of this superiority is the right of conquest a right allowed by the law of nations if not by that of nature and founded upon a compact either expressly or tacitly made between the conqueror and the conquered that if they will acknowledge the victor for their master he will treat them for the future as subject and not as enemies but this state of dependence being almost forgotten and ready to be disputed by the Irish nation it became necessary some years ago to declare how that matter really stood and therefore by the statute six George the first chapter five it is declared that the kingdom of Ireland ought to be subordinate to and dependent upon the imperial crown of Great Britain as being inseparably united there to and that the king's majesty with the consent of the Lords and Commons of Great Britain in Parliament has power to make laws to bind the people of Ireland thus we see how extensively the laws of Ireland communicate with those of England and indeed such communication is highly necessary as the ultimate resort from the courts of justice in England is as in Wales to those in England a writ of error in the nature of an appeal lying from the king's bench in Ireland to the king's bench in England as the appeal from all other courts in England lies immediately to the House of Lords here it's being expressly declared by the same statute six George the first chapter five that the peers of Ireland have no jurisdiction to affirm or reverse any judgments or decrees whatsoever this propriety and even necessity in all inferior dominions of this constitution quote that though justice be in general administered by courts of their own yet that the appeal in the last resort ought to be to the courts of the superior state and quote is founded upon these two reasons one because otherwise the law appointed or permitted to such inferior dominion might be insensibly changed within itself without the essence of the superior to because otherwise judgments might be given to the disadvantage or diminution of the superiority or to make the dependence to be only of the person of the king and not of the crown of England with regard to the other adjacent islands which are subject to the crowns of a Great Britain some of them as the Isle of White of Portland of Tannert etc. are comprised within some neighboring county and are therefore to be looked upon as an act to the mother islands and part of the kingdom of England but there are others which require a more particular consideration and first the Isle of Man is a distinct territory from England and is not governed by our laws neither does any act of parliament extend to it unless it be particularly named therein and then an act of parliament is binding there it was formally a subordinate feudatory kingdom subject to the kings of Norway then to King John and Henry III of England afterwards to the kings of Scotland and then again to the crown of England and at length we find King Henry IV claiming the island by right of conquest and disposing of it to the Earl of North Umberland upon whose attainer it was granted by the name of the Lordship of Man to serve John the Stanley by letters pattern seven Henry IV in his linear descendants it continued for eight generations till the death of Ferdinando Earl of Derby AD 1594 when he controversy arose concerning the inheritance thereof between his daughters and William his surviving brother upon which and a doubt that was started concerning the validity of the original patent the island was seized into the queen's hands and afterwards various grants were made of it by King James I all which being expired or surrendered it was granted a fresh in seven James I to William Earl of Derby and the ears male of his body with remainder to his ears general which grant was the next year confirmed by act of parliament with a restraint of the power of alienation by the said Earl and his issue male on the death of James Earl of Derby AD AD 1535 the male line of Earl William failing the Duke of Assol succeeded to the island as air general by a female branch in the meantime though the title of King has long been disused the Oles of Derby as Lords of Man had remained a sort of royal authority therein by assenting or dissenting to laws and exercising and appellate jurisdiction yet though no English writ or process from the courts of Westminster was of any authority in man and appeal lay from a decree of the Lord of the island to the King of Great Britain in council but the distinct jurisdiction of this little subordinate royalty being found inconvenient for the purposes of public justice and for the revenue it affording a convenient asylum for debtors outlaws and smugglers authority was given to the treasury by statute 12 George the first chapter 28 to purchase the interest of the then proprietors for the use of the crown which purchase has at length been completed in this present year 1765 and confirmed by statutes 5 George the third chapter 26 and 39 whereby the whole island and all its dependencies so granted as a foresaid except the landed property of the Athol family their many real rights and emoluments and the patronage of the bishopric and other ecclesiastical benefits is are unalienably vested in the crown and subjected to the regulations of the British excise and customs the islands of Jersey Guernsey Sark Alderney and their appendages were parcel of the duchy of Normandy and were united to the crown of England by the first princes of the Norman line they are governed by their own laws which are for the most part the Ducal customs of Normandy being collected in an ancient book of very great authority in titulated Le Grand Costumier the king's writ or process from the courts of Westminster is therefore of no force but his commission is they are not bound by common acts of our parliament unless particularly named all causes are originally determined by their own officers the beliefs and jurids of the islands but an appeal lies from them to the king and council in the last resort besides these adjacent islands our more distant plantations in America and elsewhere are also in some respects subject to the English laws plantations or colonies in distant countries are either such where the lands are claimed by right of occupancy only by finding them dessert and uncultivated and peopling them from the mother country or where when already cultivated they have been either gained by conquest or seeded to us by treaties and both these rights are found upon the law of nature or at least upon that of nations but there is a difference between these two species of colonies with respect to the laws by which they are bound for it is held that if an uninhabited country be discovered and planted by English subject all the English laws are immediately there in force for as the law is the birth right of every subject so wherever they go they carry their laws with them but in conquered or seeded countries that have already laws of their own the king may indeed alter and change those laws but till he does actually change them the ancient laws of the country remain unless such as are against the law of God as in the case of an infidel country and of section eleven section twelve part two of section four of the introduction of the commentaries on the laws of England book one this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit livrivox.org recording by JC Guan commentaries on the laws of England by William Blackston book one introduction section four part two our American plantations are principally of this latter sort being obtained in the last century either by right of conquest and driving out the natives with what natural justice I shall not at present inquire or by treaties and therefore the common law of England as such has no allowance or authority there they being no part of the mother country but distinct though dependent dominions they are subject however to the control of the parliament though like Ireland man and the rest not bound by any acts of parliament unless particularly named the form of government in most of them is borrowed from that of England they have a governor named by the king or in some proprietary colonies by the proprietor who is his representative or deputy they have courts of justice of their own from whose decisions and appeal lies to the king in council here in England their assemblies which are their house of comments together with their council of state being their upper house with the concurrence of the king or his representative the governor make laws suited to their own emergencies but it is particularly declared by statute seven and eight William the third chapter twenty two that all laws bylaws usages and customs which shall be in practice in any of the plantations repugnant to any law made or to be made in this kingdom relative to the said plantations shall be utterly void and of non-effect these are the several parts of the dominions of the crown of Great Britain in which the municipal laws of England are not a force or authority merely as the municipal laws of England most of them have probably copied the spirit of their own law from this original but then it receives its obligation and authoritative force from being the law of the country as to any foreign dominions which may belong to the person of the king by hereditary descent by purchase or other acquisition as the territory of Hanover and his majesty's other property in Germany as these do not in any wise a pertain to the crown of these kingdoms they are entirely unconnected with the laws of England and do not communicate with this nation in any respect whatsoever the English legislature had wisely remarked the inconvenience that had formally resulted from dominions on the continent of Europe from the Norman territory which William the conqueror brought with him and held in conjunction with the English throne and from Anjou and its appendages which fell to Henry II by hereditary descent they had seen the nation engaged in near 400 years together in ruinous wars for defense of these foreign dominions till happily for this country they were lost under the reign of Henry VI they observed that from that time the maritime interest of England were better understood and more clearly pursued that in consequence of this attention the nation as soon as she had rested from her civil wars began at this period to flourish all at once and became much more considerable in Europe than when her princes were possessed of a larger territory and her councils distracted by foreign interest the experience and these considerations gave birth to a conditional clause in the act of settlement which vested in the crown in his present Majesty's illustrious house quote that in case the crown and imperial dignity of this room shall hereafter come to any person not being a native of this kingdom of England this nation shall not be obliged to engage in any war for the defense of any dominions or territories which do not belong to the crown of England without consent of parliament end quote we come now to consider the kingdom of England in particular the direct and immediate subject of those laws concerning which we are to treat in the ensuing commentaries and this comprehends not only wells of which enough has been already said but also part of the sea the main or high seas are part of the realm of England for there on our courts of admiralty have jurisdiction as will be shown hereafter but they are not subject to the common law this main sea begins at the low watermark but between the high watermark and the low watermark where the sea ebbs and flows the common law and the admiralty have divisome imperium and alternate jurisdiction upon the water when it is full sea the other upon the land when it is an eb the territory of England is liable to two divisions the one ecclesiastical the other civil one the ecclesiastical division is primarily into two provinces those of Canterbury and York a province is the circuit of an archbishop's jurisdiction each province contains diverse dioceses or seas of suffragan bishops where of Canterbury includes 21 and York three besides the bishopric of the Isle of Man which was annexed to the province of York by King Henry VIII every diocese is divided into archdeaconries where after there are sixty in all each archdeaconry into rural deanries which are the circuit of the archdeacons and rural deans jurisdiction of whom hereafter and every deanry is divided into parishes a parish is that circuit of ground in which the souls under the care of one person or vicar do inhabit these are computed to be near ten thousand in number how ancient the division of parishes is may at present be difficult to a certain for it seems to be agreed on all hands that in the early ages of Christianity in this island parishes were unknown or at least signified the same that the diocese does now there was then no appropriation of ecclesiastical use to any particular church but every man was at liberty to contribute his tithes to whatever priest or church he pleased provided only that he did it to some or if he made no special appointment or appropriation thereof they were paid into the hands of the bishop whose duty it was to distribute them among the clergy and for other pious purposes according to his own discretion Mr. Camden says England was divided into parishes by archbishop Harnarius about the year six hundred and thirty Sir Henry Hobart lays it down that parishes were first erected by the council of lettering which was held a d eleven seventy nine each wildly differing from the other and both of them perhaps from the truth which will probably be found in the medium between the two extremes for Mr. Selden has clearly shown that the clergy lived in common without any division of parishes long after the time mentioned by Camden and it appears from the Saxon laws that parishes were in being long before the date of that council of lettering to which they are ascribed by Hobart we find the distinction of parishes may even of mother churches so early as in the laws of King Edgar about year nine seventy before that time the consecration of tides was in general arbitrary that is every man paid his own as was before observed to a church or parish he pleased but this being liable to be attended with either fraud or at least caprice in the person's paying and with either jealousies or mean compliances in such as we're competitors for receiving them it was now ordered by the law of King Edgar that quote then to the omnis the same I primary ecclesia ad quam parochia pertinent and quote however if any sane or great lord had a church within his own domestic distinct from the mother church in the nature of a private chapel then provided such church had a cemetery or consecrated place of burial belonging to it he might allot one third of his tights for the maintenance of the officiating minister but if it had no cemetery the same must himself have maintained his chaplain by some other means for in such case all his tights were ordained to be paid to the primary ecclesia or mother church this proves that the kingdom was then universally divided into parishes which division happened probably not all at once but by the grease for it seems pretty clear and certain that the boundaries of parishes were originally ascertained by those of a manner or manners since it's very seldom happens that a manner extends itself over more parishes than one though there are often many manners in one parish the Lord as Christianity spread itself began to build churches upon their own domestic or waste to accommodate their tenants in one or two adjoining lordships and in order to have divine service regularly perform therein obliged all their tenants to appropriate their tithes to the maintenance of one officiating minister instead of leaving them at liberty to distribute them among the clergy of the diocese in general and this tract of land the tithes whereof were so appropriated formed a distinct parish which will well enough account for the frequent intermixture of parishes one with another for if a lord had a parcel of land detached from the main of his estate but not sufficient to form a parish of itself it was natural to him to endow his newly erected church with the tithes of those disjoint lands especially if no church was then built in any lordship adjoining to those outlying parcels to the civil division of the territory of England is into counties of those counties two hundred of those hundreds into tithings or towns which division as it now stands seems to owe its original to King Alfred who to prevent the ripiness and disorders which formerly prevailed in the realm instituted tithings so called from the Saxon because ten freeholders with their families composed one these all dwelt together and were surities or free pledges to the king for the good behavior of each other and if any offense were committed in their district they were bound to have the offender forthcoming and therefore anciently no man was suffered to abide in England above 40 days unless he were enrolled in some tithing or decenary one of the principal inhabitants of the tithing is annually appointed to preside over the rest being called the tithing man the head borough words which pick their own etymology and in some countries the board holder or Boris elder being supposed the discreetest man in the borough town or tithing tithings towns or bills are of the same signification in law and had each of them originally a church and celebration of divine service sacraments and burials which to have or have had separate to itself is the essential distinction of a town according to Sir Edward Cook the word town or bill is indeed by the alteration of times and language now become a generical term comprehending under it the several species of cities boroughs and common towns a city is a town incorporated which is or has been the sea of a bishop and though the bishopric be dissolved as at Westminster yet still it remained at city a borough is now understood to be a town either corporate or not that scented Burgesses to parliament other towns there are to the number Sir Edward Cook says of eight thousand eight hundred and three which are neither cities nor boroughs some of which have the privileges of markets and others not but both are equally towns in law to several of these towns there are small appendages belonging called Hamlet's which are taken notice of in the statute of Exeter which makes frequent mention of entire wheels dimmavills and Hamlet's entire wheels Sir Henry Spellman conjectures to have consisted of ten Freeman or Frank pledges dimmavills of five and Hamlet's of less than five these little collections of houses are sometimes under the same administration as the town itself sometimes governed by separate officers in which last case it is to some purposes in law looked upon as a distinct township these towns as was before hinted contained each originally but one parish and one tithing though many of them now by the increase of inhabitants are divided into several parishes and tithings and sometimes where there is but one parish there are two or more bills or tithings as ten families of preholders make up a town or tithing so ten tithings composed a superior division called a hundred as consisting of ten times ten families the hundred is governed by a high constable or bailiff and formally there was regularly held in it the hundred court for the trial of causes though now fallen into disuse in some of the more northern counties these hundreds are called weapon takes the subdivision of hundreds into tithings seems to be most particularly the invention of Alfred the institutions of hundreds themselves he rather introduced than invented for they seem to have obtained in Denmark and we find that in France a regulation of this sort was made above two hundred years before set on foot by clotarius and child a bird with the view of obliging each district to answer for the robberies committed in its own division these divisions were in that country as well military as civil and each contained a hundred freemen who were subject to an officer called the centenarius a number of which centenary were themselves subject to a superior officer called the count or comes and indeed this institution of hundreds may be traced back as far as the ancient Germans from which were derived both the Franks who became masters of Gaul and the Saxons who settled in England for we read in Tacitus that both the thing and the name were well known to that war like people quote centeni a single is by this soon it could if some interswers of a gun to it could pretty monomer who's food young no man it or not is and quote an indefinite number of these hundreds make up a county or sure sure is a Saxon word signifying a division but the county committatus is plainly derived from commerce the count of the Franks that is the Earl or Alderman as the Saxons called him of the sure to whom the government of it was interested this he usually exercised by his deputy still called in Latin vice commerce and in English the sheriff Shreve or shire reef signifying the officer of the shire upon whom by process of time the civil administration of it is now totally devolved in some counties there is an intermediate division between the sure and the hundreds as late in Kent and rapes in success each of them containing about three or four hundreds apiece these had formerly had their lathe reefs and rate briefs acting in some board of the shire reef and in some of the where a country is divided into three of these intermediate jurisdictions they're called tri-things which were anciently governed by a tri-thing reef these tri-things still subsist in the large county of York where by an easy corruption they are denominated writings the north the east and the west writing the number of counties the number of counties in England and Wales have been different at different times at present there are 40 in England and 12 in Wales three of these counties Chester Durham and Lancaster are called counties Palatine the two former are such by prescription or immemorial custom or at least as old as the Norman conquest the latter was created by King Edward Dutzerd in favor of Henry Plantagenet first Earl and then Duke of Lancaster whose ear is John of Ghent the King's son had married and afterwards confirmed in Parliament to honor John of Ghent himself whom on the death of his father-in-law he had also created Duke of Lancaster counties Palatine are so-called a palatio because of the towns thereof the Earl of Chester the Bishop of Durham and the Duke of Lancaster had in those Countries Yura Regalia as fully as the King hath in his palace regalim potestatum in omnibus as Braxton expresses it they might pardon treasons murders and felonies they appointed all judges and justices of the peace all writs and indictments ran in their names as another counties in the Kings and all offenses were said to be done against their peace and not as another places Contrapassem Domini Regis and indeed by the ancient law and all peculiar jurisdictions offenses were said to be done against his peace in whose court they were tried in a court lead Contrapassem Domini in the court of a corporation Contrapassem Valivorum in the sheriff's court or torn Contrapassem Vise Comitis these palatine privileges were in all probability originally granted to the Counties of Chester and Durham because they bordered upon enemy Countries Wales and Scotland in order that the owners being encouraged by so large an authority might be the more watchful in its defense and that the inhabitants having justice administered at home might not be obliged to go out of the county and leave it open to the enemies incursions and upon this account also there were formerly two other counties Palatine Pernbrookshire and Herkcemshire the latter now united with North Sumberland but these were abolished by Parliament the former in 27 Henry VIII the latter in 14 Elizabeth and in 27 Henry III likewise the powers before mentioned of owners of counties Palatine were approached the reason for their continuance in the manner seizing though still all writs are witnessed in their names and all four features for treason by the common law accrue to them of these three the County of Durham is now the only one remaining in the hands of a subject for the earldom of Chester as Camden testifies was united to the crown by Henry III and has ever since given title to the King's eldest son and the County Palatine or Duchy of Lancaster was the property of Henry of Bolenbrook the son of John of Grant at the same time when he rested the crown from King Richard II and assumed the title and Henry IV but he was too prudent to suffer this to be united to the crown lest if he lost one he should lose the other also for as plowden and Sir Edward Cook observed quote he knew he had the Duchy of Lancaster by sure and indefeasible title but that his title to the crown was not so assured for that after the disease of Richard II the right of the crown was in the air of Lownett Duke of Clarence second son of Edward III John of Gant father to this Henry IV being but the fourth son and therefore he procured an act of parliament in the first year of his reign to keep it distinct and separate and so it descended to his son and grandson Henry V and Henry VI Henry VI being attained in one Edward IV this Duchy was declared in parliament to have become forfeited to the crown and at the same time an act was made to keep it still distinct and separate from the other inheritances of the crown and in one Henry VII another act was made to vest the inheritance thereof in Henry VII and his ears and in this state say Sir Edward Cook and Lambert viz in the natural ears or posterity of Henry VII did the right of the Duchy remain in their days as separate and distinct inheritance from that of the crown of England the Isle of Ellie is not a county Palatine though sometimes erroneously called so but only a royal franchise the bishop having by grant of King Henry I Yura Regalia within the Isle of Ellie and thereby he exercises a jurisdiction over all causes as well criminal as civil there are also counties corporate which are certain cities and towns some with more some with less territory and next to them to which out of special place and favor the Kings of England have granted to be counties of themselves and not to be comprised in any other county but to be governed by their own service and other magistrates so that no officers of the county at large have any power to intermeddle therein such are London York Bristol Norwich Coventry and many others and thus much of the subject to the laws of England and of section 12 part one of chapter one of the commentaries on the laws of England book one this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Anna Simon commentaries on the laws of England book the first of the rights of persons chapter the first of the absolute rights of individuals the object 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 and the proper and distinct heads avoiding as much as possible divisions too large and comprehensive on the one hand and to 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 and after him our brecton has expressed it thanks you just a jib and sonnester at prohibence 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 next to the persons of man and are then called you a person or the rights of persons or they are secondly such as a man may acquire over external objects or things unconnected with this person which are styled 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 one the rights of persons with the means whereby such rights may be either acquired or lost two the rights of things with the means also of acquiring and losing them three private wrongs or civil injuries with the means of redressing them by law four public wrongs or crimes and misdemeanors 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 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 expectation of rights both may indeed be comprised in this letter 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 apprehended 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 a 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 created and devised human laws for the purposes of society and government which are called corporations or bodies politic the rights of persons considered in the 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 perform considered as a mere individual it is not to be expected that any human municipal laws should at all explain or enforce them for the end and intent of such laws being only to regulate the behavior of mankind as their members of society and stand in various relations to each other they have consequently no business or concern with any but social or relative duties let a man therefore be ever so abandoned in his principles or wishes in his practice provided he keeps his wickedness to himself and does not offend against the rules of the 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 principle 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 hands it follows that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals such rights as our 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 principle view of human laws is or ought always to be to explain protect and enforce such rights as our absolute which in themselves are few and simple and then such rights as our relative which arising from a variety of connections 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 and the rights of the former kind let us therefore proceed to examine how far all laws or 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 and doubt 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 things 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 men at his creation when he endured 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 purchase and in consideration for 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 enjoyment of life political therefore or civil liberty which is that of a member of society rather than natural liberty so far restrained by human laws and no father as is necessary and expedient for the general advantage of the public hence we may collect that a law which restrains a man from doing mischief to his fellow citizens though it diminishes the natural increases the civil liberty of mankind but every wanton and causeless restraint of the will of the subject whether practiced by a monarch a nobility or an 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 our laws 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 matters of more importance by supporting that state of society which alone can secure our independence thus the statute of King Edward IV which forbade the fine gentleman of those times under the degree of a lord to where piked upon their shoes or boots of more than two inches in length was a law that save it of oppression because however ridiculous the fashion then in use might appear though restraining it by pecuniary penalties could serve as of common utility but the statute of King Charles II which prescribes a thing seemingly as indifferent that is 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 interactive of liberty for as Mr. Locke has well observed 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 its own conduct except in those points wherein public good requires some direction or restrained 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 can only be lost or destroyed by the folly or demerits of its owner the legislator 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 calculated 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 a negro the moment he lands in England falls under the protection of the laws and with regard to all natural rights becomes aio instanti a free man 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 co-evil with our form of government those 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 anarchy a worse state than tyranny itself as any government is better than not at all but the vigor 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 first by the great charger of liberties which was obtained sword in hand from King John and afterwards with some alterations confirmed in parliament by King Henry III his son which charter contained very few new grants but as Sir Edward Koch observes was for the most part declaratory of the principal grounds of the fundamental laws of England afterwards by the statute called conformatio carterum 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 council act contrary thereto or in any degree infringed next by a multitude of subsequent corroborating statutes Sir Edward Koch I think reckons 32 from the first Edward to Henry IV 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 I 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 rupture between them many salutary laws particularly the habeas corpus act passed under Charles II to these succeeded the bill of rights or declaration delivered by the lords and commons to the prince and princess of orange 13 February 1688 and afterwards enacted in parliament when they became king and queen which declaration concludes in these remarkable words quote and they do claim demand and insist upon all and singular the premises as their undoubted rights and liberties end quote and the act of parliament itself recognizes quote all and singular the rights and liberties asserted and claimed in the set declaration to be the true ancient and indubitable rights of the people of this kingdom end quote lastly these liberties were again asserted at the commencement of the present century in the act of settlement whereby the crown is limited to his present majesty's illustrious house and some new provisions were added at the same fortunate era for a better securing our religion laws and liberties which the statute declares to be quote the birthright of the people of England end quote according to the ancient doctrine of the common law thus much for the declaration of our rights and liberties the rights themselves thus defined by these several statutes consist in a number of private communities which will appear from what has been premised to be indeed no other than either that residuum of natural liberty which is not required by the laws of society to be sacrificed public convenience or else those civil privileges which society had engaged to provide in lieu of the natural liberties so given up by individuals these therefore were formally either by inheritance or purchase the rights of all mankind but in most other countries of the world being now more or less debased when destroyed they at present may be set to remain in a peculiar and emphatical manner the rights of the people of England and these may be reduced to three principle or primary articles the right of personal security the right of personal liberty and the right of private property because as there is no other known method of compulsion or of abridging man's natural free will but by an infringement or diminution of one or other of these important rights the preservation of these in violet may just be set to include the preservation of our civil immunities in their largest and most extensive sense roman numeral 1 the right of personal security consists in a persons legal and uninterrupted enjoyment of his life his limbs his body his health and his reputation one life is the immediate gift of God a right inherent by nature in every individual and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb for if a woman is quick with child and by a potion or otherwise kill it in her womb or if anyone beat her whereby the child died in her body and she is delivered of a dead child this though not murder was by the ancient law outside or manslaughter but at present it is not looked upon in quite so a trash as a light though it remains a very heinous misdemeanor an infant in ventre sa mère or in mother's womb is supposed in law to be born for many purposes it is capable of having a legacy or a surrender of a copy hold a state made to it it may have a garden assigned to it and it is enabled to have an estate limited to its use and to take by such limitation as if it were then actually born and in this point the civil law agrees with ours 2. a mans limbs by which for the present we only understand those members which may be useful to him in fight and the loss of which only amounts to mayhem by the common law are also the gift of the wise creator to enable man to protect himself from external injuries in a state of nature to these therefore he has a natural inherent right and they cannot be wantonly destroyed or disabled without a manifest breach of civil liberty both the life and limbs of a man are of such high value in the estimation of the law of England that it pardons even homicide if committed say defendendo or in order to preserve them for whatever is done by a man to save either life or member is looked upon as done upon the highest necessity in compulsion therefore if a man through fear of death or mayhem is prevailed upon to execute a deed or do any other legal act these they were accompanied with all other the requisite solemnities are totally void in law if forced upon him by a well grounded apprehension of losing his life or even his limbs in case of his non-compliance and the same is also a sufficient excuse for the commission of many misdemeanors as will appear in the fourth book the constrained a man is under in these circumstances is called in law duress from the Latin of which there are two sorts duress of imprisonment where a man actually loses his liberty of which we shall presently speak and duress per minas where the hardship is only threatened and impending which is that we are now discoursing of duress per minas is either for fear of loss of life or else for fear of mayhem or loss of limb and this fear must be upon sufficient reason none as brecton expresses it quote a fear of battery or being beaten though never so well grounded is no duress neither is 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 but no suitable atonement can be made for the loss of life or limb and the indulgence shone to a man under this the principle sort of duress the fear of losing his life or limbs agrees also with that maxim of the civil law the law not only regards life and membel and protects every man in the enjoyment of them but also furnishes him with everything necessary for their support for there is no man so indigent or wretched but he may demand a supply sufficient for all the necessities for 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 this countenanced 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 principles as our foundling hospitals though comprised in the theodosian code were rejected in justinian's collection these rites of life and membel can only be determined by the death of the person which is either a civil or natural death the civil death commences if any man be banished the realm by the process of the common law or enters into religion that is goes into a monastery and becomes there a monk professed in which cases he is absolutely dead in law and his next heir shall have his estate for such banished man is entirely cut off from society and such a monk upon his profession renounces 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 law would not suffer those persons to enjoy the benefits of society who secluded themselves from it and refused to submit to its regulations footnote this was also a rule in the feudal law and footnote a monk is therefore accounted civiliter motus and when he enters into religion may, like other dying man make his testament and executors or if he makes none the ordinary may grant administration to his next of kin and such executors and administrators shall have the same power and may bring the same actions for debts due to the religious and are liable to the same actions for those due from him as if he were naturally deceased 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 in the 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 in short, a monk or religious is so effectually dead in law that a lease made even to a third person during the life generally of one who afterwards becomes a monk determines by such his entry into religion for which reason leases and other conveyances for life are usually made to have and to hold for the term of one's natural life the 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 man 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 is exposed to and may by prudent caution provide against it the statute law of England thus 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 nulus liber homo says the great charter quote aliquomodo destruator nisi per legale judicium perium siorum out per legum teri which words aliquomodo destruator according to Sir Edward Koch include a prohibition not only of killing and maiming but also of torturing to which our laws are strangers and of every oppression by color of an illegal authority and it is enacted by the statute 5 Edward III chapter 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 Edward III chapter 3 that no man 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 from the corporal insults of menace 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 rise of persons referring the more minute discussion of their several branches to those parts of our commentaries which treat of the infringement of these rights under the head of personal wrongs and of part one of chapter one of the absolute rights of individuals