3. A man is also entitled, as to his whole body, to security from all corporal insults or injuries, whether by menaces, assaults, beating, wounding, or otherwise, though they may amount not to destruction of life or member. 4. To the preservation of his health from such practices as may prejudice or annoy it; and 5. To the security of his reputation or good name from slander. But these three last articles, it will suffice to have barely mentioned among personal rights. It is to their infringement, rather than to the rights themselves, that the provisions of the laws have been in general directed; and a more convenient place for their further discussion, will consequently be found in that part of the work which relates to wrongs (1). 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 never abridge it without cogent reason; [and that in this kingdom it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws, Here again the language of the Great Charter is, that no freeman shall be taken or imprisoned, but by the lawful judgment of his equals, or by the law of the land (m). And many subsequent old statutes (n) 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 (1) As to Wrongs, vide post, bk. v. and bk. VI. (m) C. 29. (n) 5 Edw. 3, c. 9; 25 Edw. 3, s.. 5, c. 4; 28 Edw. 3, c. 3. [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 an 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,] amended and made more effectual by 56 Geo. III. c. 100, [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. And, lest the habeas corpus should be evaded by demanding unreasonable bail or sureties for the prisoner's appearance, it is declared by 1 W. & M. st. 2, c. 2, that excessive bail ought not to be required;] though, on the other hand, to prevent such abuses as are naturally apt to occur in the resort to a writ of this description, it is a rule with the courts that they will not grant a habeas corpus as of course, and without probable cause shown (o). [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 was once daily practised by the crown (p), [there would soon be an end of all other rights and immunities. (0) Hobhouse's case, 3 Barn. & Ald. 420. And see 56 Geo. 3, c. 100, by the express provisions of which there must, in the cases to which it applies, be "an affidavit showing a probable and reasonable ground" for the complaint. Further information respecting the statutes of habeas corpus will be found, post, vol. iv. p. 18 et seq. (p) See 1 Bl. Com. p. 135. [Some have thought, that unjust attacks, even upon life or property, at the arbitrary will of the magistrate, are less dangerous to the commonwealth, 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, without 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 the possibility of their obtaining their discharge, during that period, by any interference of the courts of law (q); [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 detri"menti 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 a while, 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 (q) The 57 Geo. 3, c. 3, and c. suspending the Habeas Corpus 55, are instances of Acts temporarily Acts. [forcibly detaining him in the street, is an imprisonment (r). 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, 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(s).] To make a commitment to prison lawful, [it must either be by process from the courts of judicature, or by warrant from some legal officer having authority to commit; 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. For the law judges in this respect, saith Sir Edward Coke (t), 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 regno, and prohibit any of his subjects from going into foreign parts without licence (u). 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 was never sanctioned by the common law, except in the case of abjuration above referred to(v); and though (r) 2 Inst. 589. (s) 2 Inst. 482. (t) 2 Inst. 52, 53. See 1 Chitty, Crim, Law, 110, &c. (u) F. N. B. 85. Vide sup. in modern times persons have been conveyed to parts beyond the seas, under sentence of "transportation" (x), they have been so dealt with either by their own choice to escape a capital punishment, or else by the express direction of some act of parliament (y). [To this purpose the Great Charter(z) 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. II. c. 2, (that second Magna Charta, and stable bulwark of our liberties,) it is enacted, that no subject of this realm, who is an inhabitant of England, Wales, or Berwick, shall be sent prisoner into Scotland, Ireland, Jersey, Guernsey, or places beyond the seas; (where they cannot have the full benefit and protection of the common law;) but that all such imprisonment shall be illegal: that the person who shall dare to commit another, contrary to this law, shall be disabled from bearing any office, shall incur the penalty of a præmunire (a), and be incapable of receiving the king's pardon:] and the party wrongfully committed shall also have his private action against the person committing and all his aiders, advisers and abettors, and shall recover costs and damages to the extent of at least five hundred pounds (b). [The law is in this respect so benignly and liberally construed for the benefit of the subject, that, though within (a) It is said that exile was first introduced as a punishment by the legislature in the thirty-ninth year of Eliz., when a statute enacted, that "such rogues as were dangerous to the inferior people should be banished the realm ;" (39 Eliz. c. 4; see Bar. Ant. Stat. 269;) and that the first statute in which the word "transportation" is used is the 18 Car. 2, c. 3, which gives a power to the judges at their discretion either to execute, or transport to America for life, the Moss-troopers of Cum berland and Northumberland. (2 Woodd. 498.) (y) Convicts are still in like manner sometimes conveyed to parts beyond the seas, under that sentence of penal servitude which is now substituted for sentence of transportation. See 20 & 21 Vict. c. 3; 22 Vict. c. 25. (z) C. 29. (a) See Gen. Index, in tit. " Præmunire." (b) As to the writ of habeas corpus, see further, bk. v. c. XII. |