England took no cognizance of profeffion in any foreign country, because the fact could not be tried in our courts; and therefore, since the reformation, this disability is held to be abolished: as is also the difability of banishment, confequent upon abjuration, by ftatute 21 Jac. I. c. 28. THIS natural life being, as was before obferved, the immediate donation of the great creator, cannot legally be difpofed of or deftroyed by any individual, neither by the perfon himself, nor by any other of his fellow-creatures, merely upon their own authority. Yet nevertheless it may, by the divine permiffion, be frequently forfeited for the breach of those laws of fociety, which are enforced by the fanction of capital punishments; of the nature, reftrictions, expedience, and legality of which, we may hercafter more conveniently inquire in the concluding book of these commentaries. At prefent, I fhall only obferve, that whenever the conftitution of a state vests in any man, or body of men, a power of deftroying at pleafure, without the direction of laws, the lives or members of the fubject, fuch conftitution is in the highest degree tyrannical: and that whenever any laws direct fuch destruction for light and trivial causes, fuch laws are likewise tyrannical, though in an inferior degree: because here the subject is aware of the danger he is expofed to, and may by prudent caution provide against it. The ftatute law of England does therefore very feldom, and the common law does never inflict any punishment extending to life or limb, unless upon the highest neceffity: and the conftitution is an utter stranger to any arbitrary power of killing or maiming the subject without the express warrant of law. "Nullus liber homo," says the great charter," aliquo modo deftruatur, nifi per legale judi"cium parium fuorum aut per legem terrae." Which words, "aliquo modo deftruatur," according to fir Edward Coke, include a prohibition not only of killing, and maiming, but allo of torturing (to which our laws are ftrangers) and of every oppreffion by colour of an illegal authority. And it is enacted by the ftatute 5 Edw. III. c. 9. that no man fhall be fore e Co. Litt. 132. f 1 Salk. 162, 8 c. 29. h I 3 judged judged of life or limb, contrary to the great charter and the law of the land: and again, by ftatute 28 Edw. III. c. 3. that no man shall be put to death, without being brought to anfwer by due process of law. 3. BESIDES thofe limbs and members that may be necefsary to a man, in order to defend himself or annoy his enemy, the rest of his person or body is also entitled, by the fame natural right, to fecurity from the corporal infults of menaces, affaults, beating, and wounding; though fuch infults amount not to deftruction of life or member. 4. THE preservation of a man's health from fuch practices as may prejudice or annoy it; and 5. THE fecurity of his reputation or good name from the arts of detraction and flander, are rights to which every man is entitled, by reason and natural justice; since without these it is impoffible to have the perfect enjoyment of any other advantage or right. But these three laft articles (being of much lefs importance than those which have gone before, and those which are yet to come) it will fuffice to have barely mentioned among the rights of perfons: referring the more minute difcuffion of their feveral branches, to thofe parts of our commentaries which treat of the infringement of these rights, under the head of perfonal wrongs. II. NEXT to perfonal fecurity, the law of England regards, afferts, and preferves the perfonal liberty of individuals. This perfonal liberty confifts in the power of loco-motion, of changing fituation, or moving one's perfon to whatsoever place one's own inclination may direct; without imprisonment or reftraint, unlefs by due courfe of law. Concerning which we may make the fame obfervations as upon the preceding article; that it is a right strictly natural; that the laws of England have never abridged it without fufficient cause; and, that in this kingdom it cannot ever be abridged at the mere difcretion of the magistrate, without the explicit permillion of the laws. Here again the language of the great charter charter is, that no freeman fhall be taken or imprisoned, but by the lawful judgment of his equals, or by the law of the land. And many subsequent old ftatutes i exprefsly direct, that no man fhall be taken or imprisoned by fuggestion or petition to the king or his council, unless it be by legal indictment, or the procefs of the common law. By the petition of right, 3 Car. I, it is enacted, that no freeman shall be imprisoned or detained without cause shewn, to which he may make answer according to law. By 16 Car. I. c. 10. if any perfon be reftrained of his liberty by order or decree of any illegal court, or by command of the king's majesty in perfon, or by warrant of the council board, or of any of the privy council; he fhall, upon demand of his council, have a writ of habeas corpus, to bring his body before the court of king's bench or common pleas; who fhall determine whe ther the cause of his commitment be juft, and thereupon do as to justice fhall appertain. And by 31 Car. II. c. 2. commonly called the habeas corpus act, the methods of obtaining this writ are so plainly pointed out and enforced, that, fo long as this ftatute remains unimpeached, no fubject of England can be long detained in prifon, except in those cafes in which the law requires and justifies fuch detainer. And, left this act should be evaded by demanding unreafonable bail, or fureties for the prifoner's appearance, it is declared by W. & M. ft. 2. c. 2, that excessive bail ought not to be required. Of great importance to the public is the preservation of this perfonal liberty: for if once it were left in the power of any, the highest, magiftrate to imprison arbitrarily whomever he or his officers thought proper, (as in France it is daily practifed by the crown) there would foon be an end of all other rights and immunities. Some have thought, that unjuft attacks, even upon life, or property, at the arbitrary will of the magistrate, are lefs dangerous to the commonwealth, than fuch as are made upon the perfonal liberty of the fubject. To bereave a man of life, or by violence to confifcate his estate, without accufation or trial, would be fo grofs and notorious an act of defpotifm, as muft at once convey the alarm of tyranny throughout the whole kingdom: but confinement of the perfon, by fecretly hurrying him to gaol, where his fufferings are unknown or forgotten, is a lefs public, a less striking, and therefore a more dangerous engine of arbitrary government. And yet fometimes, when the state is in real danger, even this may be a neceffary measure. But the happiness of our conftitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient: for it is the parliament only, or legislative power, that, whenever it fees proper, can authorize the crown, by fufpending the habeas corpus act for a fhort and limited time, to imprison suspected perfons without giving any reason for fo doing; as the fenate of Rome was wont to have recourse to a dictator, a magiftrate of absolute authority, when they judged the republic in any imminent danger. The decree of the fenate, which ufually preceded the nomination of this magiftrate, "dent operam confules, ne quid refpublica detri"menti capiat," was called the fenatus confultum ultimae neceffitatis. In like manner this experiment ought only to be tried in cafes of extreme emergency; and in these the nation parts with it's liberty for a while, in order to preferve it for ever, THE Confinement of the perfon, in any wife, is an imprifonment. So that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment'. And the law fo much difcourages unlawful confinement, that if a man is under duress of imprisonment, which we before explained to mean à compulsion by an illegal restraint of liberty, until he feals a bond or the like; he may allege this durefs, and avoid the extorted bond. But if a man be lawfully imprisoned, 1 2 Inft. 539. and and either to procure his discharge, or on any other fair account, feals a bond or a deed, this is not by durefs of imprifonment, and he is not at liberty to avoid it". To make imprisonment lawful, it must either be by procefs from the courts of judicature, or by warrant from fome legal officer having authority to commit to prifon; which warrant must be in writing, under the hand and feal of the magiftrate, and exprefs the causes of the commitment, in order to be examined into (if neceffary) upon a habeas corpus. If there be no caufe expreffed, the gaoler is not bound to detain the prisoner". For the law judges in this respect, faith fir Edward Coke, like Feftus the Roman governor; that it is unreasonable to fend a prifoner, and not to fignify withal the crimes alleged against him. A NATURAL and regular confequence of this perfonal liberty, is, that every Englishman may claim a right to abide in his own country fo long as he pleases; and not to be driven from it unlefs by the fentence of the law. The king indeed, by his royal prerogative, may iffue out his writ ne exeat regnum, and prohibit any of his fubjects from going into foreign parts without licence. This may be neceffary for the public fervice and fafeguard of the commonwealth. But no power on earth, except the authority of parliament, can fend any fubject of England out of the land against his will; no, not even a criminal. For exile, and transportation, are punishments at prefent unknown to the common law; and, whenever the latter is now inflicted, it is either by the choice. of the criminal himself to escape a capital punishment, or else by the exprefs direction of fome modern act of parliament. To this purpofe the great charter declares, that no freeman fhall be banished, unless by the judgment of his peers, or by the law of the land. And by the habeas corpus act, 31 Car. II. c. 2. (that fecond magna carta, and ftable bulwark of our liberties) it is enacted, that no fubject of this realm, who is an inhabitant of England, Wales, or Berwick, fhall be fent prifoner into Scotland, Ireland, Jersey, Guernsey, or placcs beyond the |