Now the rights of persons that are commanded to be obferved by the municipal law are of two forts: first, such as are due from every citizen, which are ufually called civil duties; and, fecondly, fuch as belong to him, which is the more popular acceptation of rights or jura. Both may indeed be comprized in this latter divifion; for, as all focial duties are of a relative nature, at the fame time that they are due from one man, or fet of men, they must also be due to another. But I apprehend it will be more clear and eafy, to confider many of them as duties required from, rather than as rights belonging to, particular perfons. Thus, for inftance, allegiance is usually, and therefore most easily, confidered as the duty of the people, and protection as the duty of the magiftrate; 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 alfo are divided by the law into either natural perfons, or artificial. Natural perfons are fuch as the God of nature formed us; artificial are fuch as are created and devifed by human laws for the purposes of fociety and govern ment, which are called corporations or bodies politic.

THE rights of perfons confidered in their natural capacities are also of two forts, abfolute, and relative. Abfolute, which are fuch as appertain and belong to particular men, merely as individuals or fingle perfons: relative, which are incident to them as members of society, and standing in various relations to each other. The firft, that is, abfolute rights, will be the subject of the present chapter,

By the abfolute rights of individuals we mean those which are fo in their primary and strictest sense; fuch as would belong to their perfons merely in a state of nature, and which every man is entitled to enjoy, whether out of fociety or in it, But with regard to the abfolute duties, which man is bound

to

to perform confidered as a mere individual, it is not to be expected that any human municipal law fhould at all explain or enforce them. For the end and intent of fuch laws being only to regulate the behaviour of mankind, as they are members of fociety, and stand in various relations to each other, they have confequently no concern with any other but focial or relative duties. Let a man therefore be ever fo abandoned in his principles, or vitious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be fuch as feem principally to affect himself, (as drunkenness, or the like) they then become, by the bad example they fet, of pernicious effects to society; and therefore it is then the bufinefs of human laws to correct them. Here the circumftance of publication is what alters the nature of the cafe. Public fobriety is a relative duty, and therefore enjoined by our laws; private fobriety is an abfolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil fanction. But with respect to rights, the cafe is different. Human laws define and enforce as well those rights which belong to a man confidered as an individual, as thofe which belong to him confidered as related to others.

FOR the principal aim of fociety is to protect individuals in the enjoyment of thofe abfolute rights, which were vested in them by the immutable laws of nature; but which could not be preferved in peace without that mutual affistance and intercourfe, which is gained by the inftitution of friendly and focial communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate thefe abfolute rights of individuals. Such rights as are focial and relative refult from, and are posterior to, the formation of states and focieties: fo that to maintain and regulate thefe, is clearly a fubfequent confideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce fuch rights as are abfolute, which in

themselves

themselves are few and fimple; and then fuch rights as are relative, which, arising from a variety of connexions, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended, to, though in reality they are not, than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of England actually do, take notice of these absolute rights, and provide for their lasting security.

THE abfolute rights of man, confidered as a free agent, endowed with difcernment to know good from evil, and with power of choosing those measures which appear to him to be moft defirable, are ufually fummed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty confifts 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 fociety, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in confideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. And this fpecies of legal obedience and conformity is infinitely more defirable than that wild and favage liberty which is facrificed to obtain it. For no man, that confiders a moment, would wish to retain the abfolute and uncontrolled power of doing whatever he pleafes: the confequence of which is, that every other man would also have the fame power; and then there would be no fecurity to individuals in any of the enjoyments of life. Political therefore, or civil liberty, which is that of a member of fociety, is no other than natural liberty fo far reftrained by human laws (and no farther) as is neceffary and expedient for the general advantage of the public. Hence we may collect that the law, which restrains a man from doing mif

© Facultas ejus, quid cuique facerc libet, nifi quid jure prohibetur. Irft. 1. 3. 1.

chief

chief to his fellow-citizens, though it diminishes the natural, increases the civil liberty of mankind; but that every wanton and caufelefs reftraint of the will of the fubject, whether practifed by a monarch, a nobility, or a popular affembly, is a degree of tyranny: nay, that even laws themselves, whether made with or without our confent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are regulations deftructive of liberty: whereas, if any public advantage can arife from obferving fuch precepts, the control of our private inclinations, in one or two particular points, will conduce to preferve our general freedom in others of more importance; by fupporting that state of society, which alone can secure our independence. Thus the ftatute of king Edward IV, which forbad the fine gentlemen of those times (under the degree of a lord) to wear pikes upon their fhoes or boots of more than two inches in length, was a law that favoured of oppreffion; becaufe, however ridiculous the fashion then in use might appear, the reftraining it by pecuniary penalties could ferve no purpofe of common utility. But the ftatute of king Charles II, which prescribes a thing feemingly as indifferent, (a drefs for the dead, who are all ordered to be buried in woollen) is a law confiftent with public liberty; for it encourages the staple trade, on which in great measure depends the univerfal good of the nation. So that laws, when prudently framed, are by no means fubverfive but rather introductive of liberty; for (as Mr Locke has well obfervedf) where there is no law there is no freedom. But then, on the other hand, that conftitution or frame of government, that fyftem of laws, is alone calculated to maintain civil liberty, which leaves the fubject entire mafter of his own conduct, except in those points wherein the public good requires fome direction or reftraint.

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

d

3 Edw. IV. c. 5.

e 30 Car. II. f. 1. c. 3.

f on Gov. p. 2. •§. 57.

little short of perfection, and can only be loft or destroyed by the folly or demerits of it's owner: the legislature, and of course the laws of England, being peculiarly adapted to the prefervation of this ineftimable bleffing even in the meaneft fubject. Very different from the modern conftitutions of other ftates, on the continent of Europe, and from the genius of the imperial law; which in general are calculated to veft an arbitrary and defpotic power, of controlling the actions of the subject, in the prince, or in a few grandees. And this fpirit of liberty is fo deeply implanted in our conftitution, and rooted even in our very soil, that a flave or a negro, the mo ment he lands in England, falls under the protection of the laws, and so far becomes a freeman; though the master's right to his service may poffibly still continue.

THE abfolute rights of every Englishman, (which, taken in a political and extenfive fenfe, are ufually called their liberties) as they are founded on nature and reason, so they are coeval with our form of government; though fubject at times to fluctuate and change; their establishment (excellent as it is) being still human. At some times we have seen them depreffed by overbearing and tyrannical princes; at others fo luxuriant as even to tend to anarchy, a worse state than tyranny itself, as any government is better than none at all. But the vigour of our free conftitution has always delivered the nation from these embarraffments: and, as foon as the convulfions confequent on the ftruggle have been over, the balance of our rights and liberties has fettled to it's proper level; and their fundamental articles have been from time to time afferted in parliament, as often as they were thought to be in danger.

FIRST, by the great charter of liberties, which was obtained, fword in hand, from king John, and afterwards, with fome alterations, confirmed in parliament by king Henry the third, his fon. Which charter contained very few new grants; but, as fir Edward Cokeh obferves, was for the most part declaratory of the principal grounds of the fundamental

Salk. 666. See ch. 14.

h 2 Inft. prom,

laws