NEW COMMENTARIES ON THE LAWS OF ENGLAND. BOOK I. OF PERSONAL RIGHTS. IN a disquisition of such extent and variety as that on which we are about to enter, it is obviously of the first importance to lay down a proper preliminary arrangement of the subject; and the plan of division which appears to be most suitable to a treatise of this description, is one founded on a consideration of the nature of municipal law in the abstract, and of the objects or purposes towards which it is directed. It will be necessary, therefore, to recur for a moment to the views taken of this subject in a preceding part of the work. We have seen that municipal law is a rule of civil conduct prescribed by the supreme power in a state (a); whose authority to prescribe it has been referred to the contract implied in civil society, that its members should submit to certain restraints of their natural freedom, in order to secure to each the enjoyment of defined liberties and advantages and these we have comprehended under the general name of rights (b). It results from these considerations, that, in every country, the true and proper objects of the law consist in the establishment and maintenance of (a) Vide sup. p. 26. (b) Vide sup. p. 30. the rights, severally due to the different members of the community. The idea of rights however naturally suggests the correlative one of wrongs; for every right is capable of being violated. A right to receive payment for goods sold (for example) implies a wrong on the part of him who owes, but withholds, the price; a right to live in personal security, a wrong on the part of him who commits personal violence. And, therefore, while in a general point of view the law is intended for the establishment and maintenance of rights, we find it on closer examination to be dealing both with rights and wrongs. It first fixes the character and definition of rights, and then, with a view to their effectual security, proceeds to define wrongs, and to devise the means by which the latter shall be prevented or redressed. These considerations form the most convenient basis upon which to construct the principal division of the laws of England; and we shall therefore sever them (like former writers (c)) into two portions, one of which regards Rights, and the other Wrongs. But, again, if rights be analyzed, they will be found to consist of several kinds. For first, they are such as regard a man's own person; secondly, such as regard his dominion over the external and sensible things by which he is surrounded; thirdly, such as regard his private relations, as a member of a family; fourthly, such as regard his social state or condition, as a member of the community the first of which classes may be designated as personal rights, the second, as rights of property, the third, as rights in private relations, and the fourth, as public rights. In these divisions of rights, it is to be observed, that we everywhere mean to include the converse or reciprocal consideration of duties. For whatever is due to one man or set of men, is necessarily due from another. Thus the (c) Hale and Blackstone; see the Preface to Hale's Analysis of the Laws of England, and Blackstone's right of one man to receive from another the price of a commodity sold, casts upon the latter the duty of paying that price; and the general right of each individual to live in personal security, implies the converse duty on the part of others not to subject him to any violence. The party too, who possesses the right, is in general himself subject to some resulting duty. Thus the people have a right to live under the form of government established by law, and are under a corresponding duty of submission to that government. In the discussion of rights, therefore, it is often necessary to speak also of duties. Indeed, it is under the aspect of duties principally, that some rights require to be considered. To avoid, however, any misapprehension from the use of the term "duties," we may remark that there are some duties which have no connection with rights in the sense which we have affixed to the latter expression; and of such duties our law consequently takes no cognizance. These are, such as the law of God or conscience prescribes, but the violation of which by the individual is attended with no direct mischief to others. Thus public sobriety is a duty recognized by the law, having regard to the right of each citizen to be protected from disgusting or contaminating exhibitions of vice; but private sobriety is not enforced by any legal sanction; because secret intoxication, though equally opposed, with open drunkenness, to conscience and the law of God, is no violation of any human right, nor its commission, if by any means detected, a fit subject for human punishment. Wrongs also may be subdivided; but as regards these, we are necessarily led to adopt a different principle of distribution. For the leading distinction here depends not on the character of the right violated, but on the party who is supposed to sustain injury from its violation. According to the view which our law takes of this subject, the violation of a right may in some instances amount to an injury to the particular individual only, but in others it may take the character of an injury to the public at large (d). When viewed in the first aspect, it is usually called a civil injury, when in the last, a crime. Thus the withholding of money due, is a wrong to the individual; and consequently a civil injury; but it is considered as not affecting the public; and therefore it is no crime. On the other hand to deprive a man of his money by theft or robbery, is held to be a wrong to the public, and therefore a crime; though it is also a civil injury, if considered in relation to the damage which the party individually sustains. The considerations which tend to determine whether a given species of wrong shall be treated as an injury to the individual, or to the public, or both, constitute a subject which it would be premature to enter upon in this place, and which belongs to a later portion of the treatise. It is sufficient at present to have thus stated the general nature of the distinction between civil injuries and crimes, and to remark that it is one of great practical importance; for the law deals very differently with the two kinds of wrong; the former being merely a subject for redress, the latter for punishment. The extensive subject under consideration appearing thus naturally to resolve itself into the several divisions above indicated, we shall adopt them for the purpose of the present work; and our method, or order of discussion, will be as follows: Book I. Of Personal Rights. II. Of Rights of Property. III. Of Rights in Private Relations. IV. Of Public Rights. V. Of Civil Injuries; including also the modes of VI. Of Crimes; comprising also the modes of (d) Vide 4 Bl. Com. pp. 5, 6. We are now first to consider Personal Rights, or those which relate to a man's own person. As these are the most important, so are they also the most simple of all that are secured to men by the institutions of society; and the law has been much less frequently employed in fixing their definition and boundaries, than in devising redress or punishment in case of their violation. The discussion of these rights will consequently lie in a comparatively narrow compass. They consist of two principal or primary articles, the right of Personal Security, and the right of Personal Liberty. I. [The right of Personal Security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. 1. 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] designedly [killeth it in her womb; or if any one beat her,] with a like design, [whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the antient law homicide or manslaughter (e).] But by the modern law, the offence is, in neither case, considered in this light; though to procure a miscarriage is, in all cases, a heinous crime (f). If a potion, however, be used, or a battery inflicted, with intent to kill a child in the womb, and the child is born alive, and afterwards dies of the potion or battery; the case is very different and amounts to murder (g). [An infant in ventre sa mère, or in the mother's womb, (e) "Si aliquis mulierem prægnantem percusserit, vel ei venenum dederit, per quod fecerit abortivam, si puerperium jam formatum fuerit, et maxime si fuerit animatum, facit homicidium." -Bracton, 1. 3, c. 4. (f) See 24 & 25 Vict. c. 100, ss. 58, 59, et post, bk. VI. c. IV. (g) 3 Inst. 50. |