[the realm the king may command the attendance and service of all his liegemen, yet he cannot send any man out of the realm, even upon the public service; excepting sailors and soldiers, the nature of whose employment necessarily implies an exception: he cannot even constitute a man lord deputy or lieutenant of Ireland against his will, nor make him a foreign ambassador (c). For this might, in reality, be no more than honourable exile.] What has been hitherto said on the subject of personal liberty, refers, it will be observed, chiefly to its illegal restraint by the authority of government. When imprisonment is illegally inflicted by a private subject, relief may, in the same manner, be had by habeas corpus: and redress may also be obtained by action, or the offender may be punished upon indictment. But the consideration of these methods, and the further discussion of the mode of proceeding upon habeas corpus, more properly belong to our divisions of civil injuries and of crimes. They are glanced at, in this place, only in illustration of the importance attached by the law to the right of personal liberty. In connection with the rights of personal liberty and security, which we have been considering in this Book, is the right of the subject to carry arms proper for his defence. [This is declared by the statute 1 W. & M. st. 2, c. 2; and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanction of society and laws are found insufficient to restrain the violence of oppression.] There is an antient enactment, however, against going armed under such circumstances as may tend to terrify the people, or indicate an intention of disturbing the public peace (d); and, by a modern statute, the training of (c) 2 Inst. 46. (d) 2 Edw. 3, c. 3; vide Hawk. bk. 1, c. 63, ss. 9, 10. persons, without lawful authority, to the use of arms is prohibited; and any justice of the peace is authorized to disperse such assemblies of persons as he may find engaged in that occupation, and to arrest any of the persons present (e). (e) 60 Geo. 3 & 1 Geo. 4, c. 1. As to the authority under which the Volunteer Rifle Corps are trained, see BOOK II. OF RIGHTS OF PROPERTY. INTRODUCTION. OF PROPERTY IN GENERAL. THE rights of property consist in a man's free use, enjoyment, and disposal, according to the laws of the community, of all his acquisitions in the external things around him. It may be desirable to premise a few observations on the nature and origin of these rights, before we proceed to distribute and consider their several objects. The rights in question, though we speak of them in the plural, in regard to the different objects over which a man may have ownership, and the different modifications of that ownership, are yet capable of being reduced, and for the purpose of abstract discussion are usually reduced, to one general head—the right of property, or the principle by which one man claims and exercises a sole and despotic dominion over the external things of the world, in total exclusion of all other individuals in the universe. However generally recognized that right may be, there are very few that will give themselves the trouble to consider its origin and foundation. [Pleased as we are with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title; or at best we rest satisfied with the decision of the laws in our favour, without examining the reason or authority upon which those laws have been built (a). We think it enough that our title is derived by the grant of the former proprietor, by descent from our ancestors, or (a) Bl. Com. vol. ii. p. 2. [by the last will and testament of the dying owner: not caring to reflect that (accurately and strictly speaking) there is no foundation in nature or in natural law, why a set of words upon parchment should convey the dominion of land; why the son should have a right to exclude hist fellow-creatures from a determinate spot of ground, because his father had done so before him; or why the occupier of a particular field, or of a jewel, when lying on his deathbed, and no longer able to maintain possession, should be entitled to tell the rest of the world which of them should enjoy it after him. These inquiries, it must be owned, would be useless and even troublesome in common life. It is well if the mass of mankind will obey the laws when made, without scrutinizing too nicely into the reasons of making them. But, when law is to be considered not only as a matter of practice, but also as a rational science, it cannot be improper or useless to examine more deeply the rudiments and grounds of these positive constitutions of society. In the beginning of the world, as we are informed by holy writ, the all-bountiful Creator gave to man " dominion over all the earth; and over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth (b)."] Hence [the earth, and all things therein, are the general property of all mankind, exclusive of other beings, from the immediate gift of the Creator. And, while the earth continued bare of inhabitants, it is reasonable to suppose that all was in common among them, and that every one took from the public stock, to his own use, such things as his immediate necessities required. These general notions of property were then sufficient to answer all the purposes of human life; and might perhaps still have answered them, had it been possible for mankind to have remained in a state of primeval simplicity as may be collected from the manners of many (b) Genesis, i. 28. [American nations when first discovered by the Europeans; and from the antient method of living among the first Europeans themselves, if we may credit either the memorials of them preserved in the golden age of the poets, or the uniform accounts given by historians of those times, wherein "erant omnia communia et indivisa omnibus, veluti unum cunctis patrimonium esset (c)." Not that this communion of goods seems ever to have been applicable, even in the earliest ages, to ought but the substance of the thing; nor could it be extended to the use of it. For, by the law of nature and reason, he, who first began to use it, acquired therein a kind of transient property, that lasted so long as he was using it, and no longer (d); or, to speak with greater precision, the right of possession continued for the same time only that the act of possession lasted. Thus the ground was in common, and no part of it was the permanent property of any man in particular; yet whoever was in the occupation of any determined spot of it-for rest, for shade, or the like-acquired for the time a sort of ownership, from which it would have been unjust, and contrary to the law of nature, to have driven him by force but the instant that he quitted the use or occupation of it, another might seize it without injustice. Thus also a vine or other tree might be said to be in common, as all men were equally entitled to its produce; and yet any private individual might gain the sole property of the fruit which he had gathered for his own repast. A doctrine well illustrated by Cicero, who compares the world to a great theatre, which is common to the public, and yet the place which any man has taken is, for the time, his own (e). But when mankind increased in number, craft, and ambition, it became necessary to entertain conceptions of more permanent dominion, and to appropriate to indivi (c) Justin, 1. 43, c. 1. (d) Barbeyr. Puff. 1. 4, c. 4. commune sit, recte tamen dici potest, ejus esse eum locum quem quisque occuparit."-De Fin. 1. 3, c. 20. |