enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. (r) (10) And in this point the civil law agrees with ours. (s)

2. A man's limbs (by which for the present we only understand those members which may be useful to him in fight, and the loss of which alone amounts to mayhem by the common law) are also the gift of the wise Creator, to enable him 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 se 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 and 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, though accompanied with all other the requisite solemnities, may be afterwards avoided, if forced upon him by a well-grounded apprehension of losing his life, or even his limbs, in case of his non-compliance. (t) And the same is also a sufficient excuse for the commission of many misdemeanors, as will appear in the fourth book. The constraint a man is under in these circumstances is called in law duress, from the Latin durities, of which there are two *sorts: duress

[*131] 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; "non," as Bracton expresses it, "suspicio cujuslibet vani et meticulosi hominis, sed talis qui possit cadere in virum constantem; talis enim debet esse metus, qui in se contineat vitæ periculum, aut corporis cruciatum." (u) 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; (11) because in these cases, (r) Stat. 10 and 11 W. III, c. 16.

(8) Qui in utero sunt, in jure civili intelliguntur in rerum natura esse, cum de eorum commodo agatur. Ff. (t) 2 Inst. 483. (u) l. 2. c. 5.

1. 5. 26.

(10) [Every legitimate infant in ventre de sa mere is considered as born for all beneficial purposes. Co. Litt. 36; 1 P. Wms. 329. Thus if lands be devised to B. for life, remainder to such child or children as shall be living at the time of his decease, a posthumous child will take equally with those who were born before B's death. Doe v. Clark, 2 Hen. Bla. 399. But the presumptive heir may enter and receive the profits to his own use, till the birth of the child who takes land by descent. 3 Wils. 526.

Such infant, &c., may have a distributive share of intestate property even with the half-blood: 1 Ves. 81; it is capable of taking a devise of land: 2 Atk. 117; 1 Freem. 244, 293; it takes, under a marriage settlement, a provision made for children living at the death of the father. 1 Ves. 85. And it has lately been decided, that marriage and the birth of a posthumous child, amount to a revocation of a will executed previous to the marriage. 5 T. R. 49. So in executory devises it is considered as a life in being. 7 T. R. 100.]

See also Stedfast v. Nichol, 3 Johns. Cas. 18; Swift v. Duffield, 5 S. and R. 38; Hall v. Hancock, 15 Pick. 255; Harper v. Archer, 4 Smedes and M. 99; Trower v. Butts, 1 Sim. and Stu. 181.

(11) An arrest may be duress where it is made for an unlawful purpose, even though under lawful process. Richardson v. Duncan, 3 N. H. 508; Severance v. Kimball, 8 N. H. 386; Fisher v. Shattuck, 17 Pick. 252; Osborn v. Robbins, 36 N. Y. 365. So may be, it is said, the fear of an unlawful imprisonment. Whitefield v. Longfellow, 13 Me. 146. But not the threat of lawful imprisonment. Alexander v. Pierce, 10 N. H. 497; Eddy v. Herrin, 17 Me. 338. See Jones v. Rogers, 36 Ga. 157. And although it is held that duress of goods will not avoid a contract: Atlee v. Backhouse, 3 M. and W. 642; Glynn v. Thomas, 11 Exch. 878; Skeate v. Beale, 11 A. and E. 983; Bingham v. Sessions, 6 Smedes and M. 13; yet money paid to obtain their release is regarded as paid under compulsion, and may be recovered back. Oates v. Hudson, 6 Exch. 346; Chase v. Dwinal, 7 Greenl. 134. And in this country a disposition has been manifested to hold that duress of goods may be sufficient to avoid one's contract, where he has no other speedy means than the giving of the contract for obtaining possession of them. Sarportas v. Jennings, 1 Bay, 470; Collins v. Westbury, 2 Bay, 211; Foshay v. Ferguson, 5 Hill 158.

should the threat be performed, a man may have satisfaction by recovering equivalent damages: (w) but no suitable atonement can be made for the loss of life or limb. And the indulgence shewn to a man under this, the principal, sort of duress, the fear of losing his life or limbs, agrees also with that maxim of the civil law; ignoscitur ei qui sanguinem suum qualiter, qualiter redemptum voluit. (x)

The law not only regards life and member, and protects every man in the enjoyment of them, but also furnishes him with every thing necessary for their support. For there is no man so indigent or wretched, but he may demand a supply sufficient for all the necessities of life from the more opulent part of the community, by means of the several statutes enacted for the relief of the poor, of which in their proper places. A humane provision; yet, though dictated by the principles of society, discountenanced by the Roman laws. For the edicts of the emperor Constantine, commanding the public to maintain the children of those who were unable to provide for them, in order to prevent the murder and exposure of infants, an institution founded on the same principles as our foundling hospitals, though comprised in the Theodosian code, (y) were rejected in Justinian's collection.

*These rights, of life and member, can only be determined by the death of the person; which was formerly accounted to be either a civil [*132 ] or natural death. The civil death commenced, if any man was banished or abjured the realm (z) by the process of the common law, or entered into religion; that is, went into a monastery, and became there a monk professed; in which cases he was absolutely dead in law, and his next heir should have his estate. For such banished man was entirely cut off from society; and such a monk, upon his profession, renounced solemnly all secular concerns: and besides, as the popish clergy claimed an exemption from the duties of civil life and the commands of the temporal magistrate, the genius of the English laws would not suffer those persons to enjoy the benefits of society, who secluded themselves from it, and refused to submit to its regulations. (a) A monk was therefore accounted civiliter mortuus, and when he entered into religion might, like other dying men, make his testament and executors; or, if he made none, the ordinary might grant administration to his next of kin, as if he were actually dead intestate. And such executors and administrators had the same power, and might bring the same actions for debts due to the religious, and were liable to the same actions for those due from him, as if he were naturally deceased. (b) Nay, so far has this principle been carried, that when one was bound in a bond to an abbot and his successors, and afterwards made his executors, and professed himself a monk of the same abbey, and in process of time was himself made abbot thereof; here the law gave him, in the capacity of abbot, an action of debt against his own executors to recover the money due. (c) In short, a monk or religious was so effectually dead in law, that a lease made even to a third person, during the life (generally) of one who afterwards became a monk, determined by such his entry into religion: for which reason leases, and other conveyances for life, were usually made to have and to hold for the term of one's natural life. (d) But, even in the time of popery, the law of England took no cognizance of profession in any foreign [*133] country, because the fact could not be tried in our courts; (e) and therefore, since the reformation, this disability is held to be abolished: (ƒ) as is also the disability of banishment, consequent upon abjuration, by statute 21 Jac. I, c. 28. (12) (w) 2 Inst. 483. (x) Ff. 48. 21. 1. (y) L. 11. t. 27. (z) Co. Litt. 133.

(a) This was also a rule in the feudal law, 7. 2. t. 21. "desiit esse miles seculi, qui factus est miles Christi ; nec beneficium pertinet ad eum qui non debet gerere officium. (b) Litt. 200. (c) Co. Litt. 133. (d) 2 Rep. 48. Co. Litt. 132. (e) Co. Litt. 132.

(f) 1 Salk. 162.

(12) [One species of civil death may still exist in this country; that is, where a man by act of parliament is attainted of treason or felony, and saving his life, is banished forever; this Lord Coke declares to be a civil death. But, he says, a temporary exile is not a civil death. Co. Litt. 133. And for the same reason where a man receives judgment of death, and afterwards leaves the kingdom for life, upon a conditional pardon, this seems to amount to a civil death. This practice did not exist in the time of Lord Coke, who says, that a man can only lose his country by authority of parliament. Ib.]

This natural life being, as was before observed, the immediate donation of the great Creator, cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow-creatures, merely upon their own authority. Yet nevertheless it may, by the divine permission, be frequently forfeited for the breach of those laws of society, which are enforced by the sanction of capital punishments; of the nature, restrictions, expedience, and legality of which, we may hereafter more conveniently inquire in the concluding book of these commentaries. At present, I shall only observe, that whenever the constitution of a state vests in any man, or body of men, a power of destroying at pleasure, without the direction of laws, the lives or members of the subject, such constitution is in the highest degree tyrannical; and that, whenever any laws direct such destruction for light and trivial causes, such laws are likewise tyrannical, though in an inferior degree; because here the subject is aware of the danger he is exposed to, and may, by prudent caution, provide against it. The statute law of England does therefore very seldom, and the common law does never, inflict any punishment extending to life or limb, unless upon the highest necessity; (13) and the constitution is an utter stranger to any arbitrary power of killing or maiming the subject without the express warrant of law. "Nullus liber homo," says the great charter, (g) "aliquo modo destruatur, nisi per legale judicum parium suorum aut per legem terræ." Which words, "aliquo modo destruatur," according to Sir Edward Coke, (h) include a prohibition, not only of killing and maiming, but also of torturing, (to which our laws are strangers,) and of every oppression by colour of an illegal authority. And it is enacted by the statute 5 Edw. III, c. 9, that no man shall be forejudged of life or limb contrary to the great charter and the *law of the land: and again, by statute 28 Edw. III, c. 3, that no [*134] 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, to security from the corporal insults of menaces, assaults, beating, and wounding; though such insults amount not to destruction of life or member.

4. The preservation of a man's health from such practices as may prejudice or annoy it; and

5. The security of his reputation or good name from the arts of detraction and slander, are rights to which every man is entitled, by reason and natural justice; since, without these, it is impossible to have the perfect enjoyment of any other advantage or right. But these three last articles (being of much less importance than those which have gone before, and those which are yet to come,) it will suffice to have barely mentioned among the rights of persons: referring 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.

II. Next to personal security, the law of England regards, asserts, and preserves, the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or moving one's person to whatsoever place one's own inclination may direct, without imprisonment or restraint, unless by due course of law. Concerning which we may make the same observations as upon the preceding article, that it is a right strictly natural; that the laws of England have never abridged it without sufficient cause; and that, in this kingdom, it cannot ever be abridged at the mere discretion of the magis(h) 2 Inst. 48.

(g) c. 29.

(13) [This is a compliment which, I fear, the common law does not deserve; for although it did not punish with death any person who could read, even for any number of murders or other felonies, yet it inflicted death upon every felon who could not read, though his crime was the stealing only of twelve pence farthing.]

trate, without the explicit permission of the laws. Here again the language of the great *charter (i) is, that no freeman shall be taken or imprisoned but by the lawful judgment of his equals, or by the law of the land. (14) [*135] And many subsequent old statutes (j) expressly direct, that no man shall be taken or imprisoned by suggestion or petition to the king or his council, unless it be by legal indictment, or the process of the common law. By the petition of right, 3 Car. I, it is enacted, that no freeman shall be imprisoned or detained without cause shown, to which he may make answer according to law. By 16 Car. I, c. 10, if any person be restrained of his liberty by order or decree of any illegal court, or by command of the king's majesty in person, or by warrant of the council board, or of any of the privy council, he shall, upon demand of his counsel, have a writ of habeas corpus, to bring his body before the court of king's bench or common pleas, who shall determine whether the cause of his commitment be just, and thereupon do as to justice shall appertain. And by 31 Car. II, c. 2, commonly called the habeas corpus act, the methods of obtaining this writ are so plainly pointed out and enforced, that, so long as this statute remains unimpeached, no subject of England can be long detained in prison, except in those cases in which the law requires and justifies such detainer. (15) And, lest this act should be evaded by demanding unreasonable bail, or sureties for the prisoner's appearance, it is declared by 1 W. and M. St. 2, c. 2, that excessive bail ought not to be required.

Of great importance to the public is the preservation of this personal liberty; for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in France it is daily practiced by the crown,) (k) there would soon be an end of all other rights and immunities. Some have thought that unjust attacks, even upon life or property, at the arbitrary will of the magistrate, *are less dangerous to the the com[*136] monwealth than such as are made upon the personal liberty of the subject. To bereave a man of life, or by violence to confiscate his estate, with

(j) 5 Edw. III, c. 9. 25 Edw. III, St. 5. c. 4. 28 Edw. III, c. 3.

(i) c. 29. (k) I have been assured, upon good authority that, during the mild administration of Cardinal Fleury, above 54,000 lettres de cachet were issued, upon the single ground of the famous bull unigenitus.

(14) The words "law of the land" and "due process of law" are employed interchangeably in constitutional law, and mean the same thing. State v. Simons, 2 Spears, 767; Van Zandt v. Waddell, 2 Yerg. 260; Matter of John and Cherry Streets; 19 Wend. 659; Green v. Briggs, 1 Curt. 311; Ervine's Appeal, 16 Penn. St. 256; Parsons v. Russell, 11 Mich. 129; Murray's Lessee v. Hoboken Land Co. 18 How. 276. They have sometimes been supposed to be equivalent to "the judgment of his peers," but this is an error, as they are applicable to a great variety of cases in which trial by jury is not permissible or not applicable. "The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of general rules which govern society." Webster in Dartmouth College v. Woodward, 4 Wheat. 519. Due process of law in each particular case means, such an exertion of the powers of government as the settled maxims of law sanction and require, and under such safe-guards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs. See State v Allen, 2 McCord, 56; Sears v. Cottrell, 5 Mich. 251; Taylor v. Porter, 4 Hill, 140; Hoke v. Henderson, 4 Dev. 15; James v. Reynolds, 2 Texas, 251. Bank of Columbia v. Okely, 4 Wheat. 235; Lenz v. Charlton, 23 Wis. 478.

(15) Amended and enforced by 56 Geo. III, c. 100. See the construction of these acts. 1 Chitty's Crim. Law, 123. As to the writ of habeas corpus under these statutes and at the common law, see 9 A. and E. 731. The habeas corpus act of 31 Charles II, has been generally re-enacted in the American States, with modifications to conform it to our judicial systems. The constitution of the United States, art 1, § 9, forbids the suspension of the writ of habeas corpus. unless when, in cases of rebellion or invasion, the public safety may require it; and no suspension has been had under this permission except during the recent rebellion. The federal courts only issue the writ in the cases prescribed in the acts of congress, and those cases are comparatively few, and are only where the imprisonment is under pretence of national authority, or where this process seems important to prevent encroachments by state officials upon the proper province of the general government. The protection of individuals against unlawful imprisonments is for the most part left to the state courts.

The suspension of the writ of habeas corpus does not legalize whatever may be done during the suspension; it only takes from the individual one of the usual means of redress, but leaves the persons concerned in arrests and imprisonments to bear the responsibility if they prove illegal.

out accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom; but confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. And yet sometimes, when the state is in real danger, even this may be a necessary measure. But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great as to render this measure expedient; for it is the parliament only, or legislative power, that, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing; as the senate of Rome was wont to have recourse to a dictator, a magistrate of absolute authority, when they judged the republic in any imminent danger. The decree of the senate, which usually preceded the nomination of this magistrate, "dent operam consules, ne quid respublica detrimenti capiat," was called the senatus consultum ultimæ necessitatis. In like manner this experiment ought only to be tried in cases of extreme emergency; and in these the nation parts with its liberty for awhile, in order to preserve it for ever.

The confinement of the person, in any wise, is an imprisonment; so that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment. (1) And the law so much discourages unlawful confinement, that if a man is under duress of imprisonment, which we before explained to mean a compulsion by an illegal restraint of liberty, until he seals a bond or the like; he may allege this duress, and avoid the extorted bond. But if a man be lawfully imprisoned, *and, [*137] either to procure his discharge, or on any other fair account, seals, a bond or a deed, this is not by duress of imprisonment, and he is not at liberty to avoid it. (m) To make imprisonment lawful, it must either be by process from the courts of judicature, or by warrant from some legal officer having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into, if necessary, upon a habeas corpus. If there be no cause expressed, the gaoler is not bound to detain the prisoner: (n) for the law judges, in this respect, saith Sir Edward Coke, like Festus the Roman governor, that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him.

A natural and regular consequence of this personal liberty is, that every Englishman may claim a right to abide in his own country so long as he pleases; and not to be driven from it unless by the sentence of the law. The king, indeed, by his royal prerogative, may issue out his writ ne exeat regnum, and prohibit any of his subjects from going into foreign parts without license. (0) This may be necessary for the public service and safeguard of the commonwealth. But no power on earth, except the authority of parliament, can send any subject of England out of the land against his will; no, not even a criminal. For exile and transportation are punishments at present unknown to the common law; and, 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 express direction of some modern act of parliament. (16) To this purpose the great charter (p) declares, that no freeman shall be banished, unless by the judgment of his peers, or by the law of the land. And by the habeas corpus act, 31 Car. (m) 2 Inst. 482. (n) Ibid. 52, 53.

(1) 2 Inst. 589.

(0) F. N. B. 85.

(p) C. 29.

(16) Exile is said to have been first introduced as a punishment by stat. 39 Eliz. c. 4. See Barrington on Statutes, 269. Persons capitally convicted are frequently pardoned on condition of their being transported for life; and it has been held in the United States that the condition of voluntary exile might be lawfully attached to a pardon. People v. James, 2 Caines, 57; Flavell's Case, 8 W. and S. 197. So may the condition that a payment of money by the convict shall be made or secured. Rood v. Winslow, 2 Doug. Mich. 68.