COMMENTARIESON THELAWSOFENGLAND.Book the first.Of the RIGHTS ofPERSONS.

[u]4 Inst. 284. 2 And. 116.

[w]Selden. tit. hon. 1. 3.

[x]Camden. Eliz.A.D.1594.

[y]1 P.W. 329.

[z]The bishoprick of Man, or Sodor, or Sodor and Man, was formerly within the province of Canterbury, but annexed to that of York by statute 33 Hen. VIII. c. 31.

Theislands of Jersey, Guernsey, Sark, Alderney, and their appendages, were parcel of the duchy of Normandy, and were united to the crown of England by the first princes of the Norman line. They are governed by their own laws, which are for the most part the ducal customs of Normandy, being collected in an antient book of very great authority, entituled,le grand coustumier. The king's writ, or process from the courts of Westminster, is there of no force; but his commission is. They are not bound by common acts of our parliaments, unless particularly named[a]. All causes are originally determined by their own officers, the bailiffs and jurats of the islands; but an appeal lies from them to the king in council, in the last resort.

[a]4 Inst. 286.

Besidesthese adjacent islands, our more distant plantations in America, and elsewhere, are also in some respects subject to the English laws. Plantations, or colonies in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desart and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies, with respect to the laws by which they are bound. For it is held[b], that if an uninhabited country be discovered and planted by English subjects, all the Englishlaws are immediately there in force. For as the law is the birthright of every subject, so wherever they go they carry their laws with them[c]. But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the antient laws of the country remain, unless such as are against the law of God, as in the case of an infidel country[d].

[b]Salk. 411. 666.

[c]2 P. Wms. 75.

[d]7 Rep. 17b.Calvin's case. Show. Parl. C. 31.

OurAmerican plantations are principally of this latter sort, being obtained in the last century either by right of conquest and driving out the natives (with what natural justice I shall not at present enquire) or by treaties. And therefore the common law of England, as such, has no allowance or authority there; they being no part of the mother country, but distinct (though dependent) dominions. They are subject however to the control of the parliament; though (like Ireland, Man, and the rest) not bound by any acts of parliament, unless particularly named. The form of government in most of them is borrowed from that of England. They have a governor named by the king, (or in some proprietary colonies by the proprietor) who is his representative or deputy. They have courts of justice of their own, from whose decisions an appeal lies to the king in council here in England. Their general assemblies which are their house of commons, together with their council of state being their upper house, with the concurrence of the king or his representative the governor, make laws suited to their own emergencies. But it is particularly declared by statute 7 & 8 W. III. c. 22. That all laws, by-laws, usages, and customs, which shall be in practice in any of the plantations, repugnant to any law, made or to be made in this kingdom relative to the said plantations, shall be utterly void and of none effect.

Theseare the several parts of the dominions of the crown of Great Britain, in which the municipal laws of England are not of force or authority, merelyasthe municipal laws of England. Most of them have probably copied the spirit of their own law from this original; but then it receives it's obligation, and authoritative force, from being the law of the country.

Asto any foreign dominions which may belong to the person of the king by hereditary descent, by purchase, or other acquisition, as the territory of Hanover, and his majesty's other property in Germany; as these do not in any wise appertain to the crown of these kingdoms, they are entirely unconnected with the laws of England, and do not communicate with this nation in any respect whatsoever. The English legislature had wisely remarked the inconveniences that had formerly resulted from dominions on the continent of Europe; from the Norman territory which William the conqueror brought with him, and held in conjunction with the English throne; and from Anjou, and it's appendages, which fell to Henry the second by hereditary descent. They had seen the nation engaged for near four hundred years together in ruinous wars for defence of these foreign dominions; till, happily for this country, they were lost under the reign of Henry the sixth. They observed that from that time the maritime interests of England were better understood and more closely pursued: that, in consequence of this attention, the nation, as soon as she had rested from her civil wars, began at this period to flourish all at once; and became much more considerable in Europe than when her princes were possessed of a larger territory, and her counsels distracted by foreign interests. This experience and these considerations gave birth to a conditional clause in the act[e]of settlement, which vested the crown in his present majesty's illustrious house, "That in case the crown and imperial dignity of this realm shall hereafter come to any person not being a native of this kingdom of England, this nation shall not be obliged to engage in any war for the defence of any dominions or territories which do not belong to the crown of England, without consent of parliament."

[e]Stat. 12 & 13 W. III. c. 3.

Wecome now to consider the kingdom of England in particular, the direct and immediate subject of those laws, concerning which we are to treat in the ensuing commentaries. And this comprehends not only Wales, of which enough has been already said, but also part of the sea. The main or high seas are part of the realm of England, for thereon our courts of admiralty have jurisdiction, as will be shewn hereafter; but they are not subject to the common law[f]. This main sea begins at the low-water-mark. But between the high-water-mark, and the low-water-mark, where the sea ebbs and flows, the common law and the admiralty havedivisum imperium, an alternate jurisdiction; one upon the water, when it is full sea; the other upon the land, when it is an ebb[g].

[f]Co. Litt. 260.

[g]Finch. L. 78.

Theterritory of England is liable to two divisions; the one ecclesiastical, the other civil.

1.Theecclesiastical division is, primarily, into two provinces, those of Canterbury and York. A province is the circuit of an arch-bishop's jurisdiction. Each province contains divers dioceses, or sees of suffragan bishops; whereof Canterbury includes twenty one, and York three; besides the bishoprick of the isle of Man, which was annexed to the province of York by king Henry VIII. Every diocese is divided into archdeaconries, whereof there are sixty in all; each archdeaconry into rural deanries, which are the circuit of the archdeacon's and rural dean's jurisdiction, of whom hereafter; and every deanry is divided into parishes[h].

[h]Co. Litt. 94.

A parishis that circuit of ground in which the souls under the care of one parson or vicar do inhabit. These are computed to be near ten thousand in number. How antient the division of parishes is, may at present be difficult to ascertain; forit seems to be agreed on all hands, that in the early ages of christianity in this island, parishes were unknown, or at least signified the same that a diocese does now. There was then no appropriation of ecclesiastical dues to any particular church; but every man was at liberty to contribute his tithes to whatever priest or church he pleased, provided only that he did it to some: or, if he made no special appointment or appropriation thereof, they were paid into the hands of the bishop, whose duty it was to distribute them among the clergy and for other pious purposes according to his own discretion[i].

[i]Seld. of tith. 9. 4. 2 Inst. 646. Hob. 296.

MrCamden[k]says England was divided into parishes by arch-bishop Honorius about the year 630. Sir Henry Hobart[l]lays it down that parishes were first erected by the council of Lateran, which was heldA.D.1179. Each widely differing from the other, and both of them perhaps from the truth; which will probably be found in the medium between the two extremes. For Mr Selden has clearly shewn[m], that the clergy lived in common without any division of parishes, long after the time mentioned by Camden. And it appears from the Saxon laws, that parishes were in being long before the date of that council of Lateran, to which they are ascribed by Hobart.

[k]in his Britannia.

[l]Hob. 296.

[m]of tithes. c. 9.

Wefind the distinction of parishes, nay even of mother-churches, so early as in the laws of king Edgar, about the year 970. Before that time the consecration of tithes was in generalarbitrary; that is, every man paid his own (as was before observed) to what church or parish he pleased. But this being liable to be attended with either fraud, or at least caprice, in the persons paying; and with either jealousies or mean compliances in such as were competitors for receiving them; it was now ordered by the law of king Edgar[n], that "dentur omnes decimae primariae ecclesiae ad quam parochia pertinet." However, if any thane, orgreat lord, had a church within his own demesnes, distinct from the mother-church, in the nature of a private chapel; then, provided such church had a coemitery or consecrated place of burial belonging to it, he might allot one third of his tithes for the maintenance of the officiating minister: but, if it had no coemitery, the thane must himself have maintained his chaplain by some other means; for in such caseallhis tithes were ordained to be paid to theprimariae ecclesiaeor mother-church[o].

[n]c.1.

[o]Ibid.c.2. See also the laws of king Canute, c. 11. about the year 1030.

Thisproves that the kingdom was then universally divided into parishes; which division happened probably not all at once, but by degrees. For it seems pretty clear and certain that the boundaries of parishes were originally ascertained by those of a manor or manors: since it very seldom happens that a manor extends itself over more parishes than one, though there are often many manors in one parish. The lords, as christianity spread itself, began to build churches upon their own demesnes or wastes, to accommodate their tenants in one or two adjoining lordships; and, in order to have divine service regularly performed therein, obliged all their tenants to appropriate their tithes to the maintenance of the one officiating minister, instead of leaving them at liberty to distribute them among the clergy of the diocese in general: and this tract of land, the tithes whereof were so appropriated, formed a distinct parish. Which will well enough account for the frequent intermixture of parishes one with another. For if a lord had a parcel of land detached from the main of his estate, but not sufficient to form a parish of itself, it was natural for him to endow his newly erected church with the tithes of those disjointed lands; especially if no church was then built in any lordship adjoining to those out-lying parcels.

Thusparishes were gradually formed, and parish churches endowed with the tithes that arose within the circuit assigned. But some lands, either because they were in the hands of irreligious and careless owners, or were situate in forests and desartplaces, or for other now unsearchable reasons, were never united to any parish, and therefore continue to this day extraparochial; and their tithes are now by immemorial custom payable to the king instead of the bishop, in trust and confidence that he will distribute them, for the general good of the church[p]. And thus much for the ecclesiastical division of this kingdom.

[p]2 Inst. 647. 2 Rep. 44. Cro. Eliz. 512.

2.Thecivil division of the territory of England is into counties, of those counties into hundreds, of those hundreds into tithings or towns. Which division, as it now stands, seems to owe it's original to king Alfred; who, to prevent the rapines and disorders which formerly prevailed in the realm, instituted tithings; so called, from the Saxon, becausetenfreeholders with their families composed one. These all dwelt together, and were sureties or free pledges to the king for the good behaviour of each other; and, if any offence were committed in their district, they were bound to have the offender forthcoming[q]. And therefore antiently no man was suffered to abide in England above forty days, unless he were enrolled in some tithing or decennary[r]. One of the principal inhabitants of the tithing is annually appointed to preside over the rest, being called the tithing-man, the headborough, (words which speak their own etymology) and in some countries the borsholder, or borough's-ealder, being supposed the discreetest man in the borough, town, or tithing[s].

[q]Flet.1. 47. This the laws of king Edward the confessor, c. 20. very justly intitle "summa et maxima securitas, per quam omnes statu firmissimo sustinentur;—quae hoc modo fiebat, quod sub decennali fidejussione debebant esse universi, &c."

[r]Mirr. c. 1. §. 3.

[s]Finch. L. 8.

Tithings, towns, or vills, are of the same signification in law; and had, each of them, originally a church and celebration of divine service, sacraments, and burials; which to have, or have had, separate to itself, is the essential distinction of a town, according to sir Edward Coke[t]. The wordtownorvillis indeed, by the alteration of times and language, now become a generical term, comprehending under it the several species ofcities, boroughs, and common towns. A city is a town incorporated, which is or hath been the see of a bishop; and though the bishoprick be dissolved, as at Westminster, yet still it remaineth a city[u]. A borough is now understood to be a town, either corporate or not, that sendeth burgesses to parliament[w]. Other towns there are, to the number sir Edward Coke says[x]of 8803, which are neither cities nor boroughs; some of which have the privileges of markets, and others not; but both are equally towns in law. To several of these towns there are small appendages belonging, called hamlets; which are taken notice of in the statute of Exeter[y], which makes frequent mention of entire vills, demi-vills, and hamlets. Entire vills sir Henry Spelman[z]conjectures to have consisted of ten freemen, or frank-pledges, demi-vills of five, and hamlets of less than five. These little collections of houses are sometimes under the same administration as the town itself, sometimes governed by separate officers; in which last case it is, to some purposes in law, looked upon as a distinct township. These towns, as was before hinted, contained each originally but one parish, and one tithing; though many of them now, by the encrease of inhabitants, are divided into several parishes and tithings: and sometimes, where there is but one parish there are two or more vills or tithings.

[t]1 Inst. 115b.

[u]Co. Litt. 109b.

[w]Litt. §. 164.

[x]1 Inst. 116.

[y]14 Edw. I.

[z]Gloss. 274.

Asten families of freeholders made up a town or tithing, so ten tithings composed a superior division, called a hundred, as consisting of ten times ten families. The hundred is governed by an high constable or bailiff, and formerly there was regularly held in it the hundred court for the trial of causes, though now fallen into disuse. In some of the more northern counties these hundreds are called wapentakes[a].

[a]Seld.in Fortesc.c.24.

Thesubdivision of hundreds into tithings seems to be most peculiarly the invention of Alfred: the institution of hundredsthemselves he rather introduced than invented. For they seem to have obtained in Denmark[b]: and we find that in France a regulation of this sort was made above two hundred years before; set on foot by Clotharius and Childebert, with a view of obliging each district to answer for the robberies committed in it's own division. These divisions were, in that country, as well military as civil; and each contained a hundred freemen; who were subject to an officer called thecentenarius; a number of whichcentenariiwere themselves subject to a superior officer called the count orcomes[c]. And indeed this institution of hundreds may be traced back as far as the antient Germans, from whom were derived both the Franks who became masters of Gaul, and the Saxons who settled in England. For we read in Tacitus[d], that both the thing and the name were well known to that warlike people. "Centeni ex singulis pagis sunt, idque ipsum inter suos vocantur; et quod primo numerus fuit, jam nomen et honor est."

[b]Seld. tit. of hon. 2. 5. 3.

[c]Montesq. Sp. L. 30. 17.

[d]de morib. German.6.

Anindefinite number of these hundreds make up a county or shire. Shire is a Saxon word signifying a division; but a county,comitatus, is plainly derived fromcomes, the count of the Franks; that is, the earl, or alderman (as the Saxons called him) of the shire, to whom the government of it was intrusted. This he usually exercised by his deputy, still called in Latinvice-comes, and in English the sheriff, shrieve, or shire-reeve, signifying the officer of the shire; upon whom by process of time the civil administration of it is now totally devolved. In some counties there is an intermediate division, between the shire and the hundreds, as lathes in Kent, and rapes in Sussex, each of them containing about three or four hundreds apiece. These had formerly their lathe-reeves and rape-reeves, acting in subordination to the shire-reeve. Where a county is divided intothreeof these intermediate jurisdictions, they are called trithings[e], which were antiently governed by a trithing-reeve. These trithings still subsist in the large county of York, where by an easy corruption they are denominated ridings; the north, the east, and the west-riding. The number of counties in England and Wales have been different at different times: at present there are forty in England, and twelve in Wales.

[e]LL. Edw.c.34.

Threeof these counties, Chester, Durham, and Lancaster, are called counties palatine. The two former are such by prescription, or immemorial custom; or, at least as old as the Norman conquest[f]: the latter was created by king Edward III, in favour of Henry Plantagenet, first earl and then duke of Lancaster, whose heiress John of Gant the king's son had married; and afterwards confirmed in parliament, to honour John of Gant himself; whom, on the death of his father-in-law, he had also created duke of Lancaster[g]. Counties palatine are so calleda palatio; because the owners thereof, the earl of Chester, the bishop of Durham, and the duke of Lancaster, had in those countiesjura regalia, as fully as the king hath in his palace;regalem potestatem in omnibus, as Bracton expresses it[h]. They might pardon treasons, murders, and felonies; they appointed all judges and justices of the peace; all writs and indictments ran in their names, as in other counties in the king's; and all offences were said to be done against their peace, and not, as in other places,contra pacem domini regis[i]. And indeed by the antient law, in all peculiar jurisdictions, offences were said to be done against his peace in whose court they were tried; in a court leet,contra pacem domini; in the court of a corporation,contra pacem ballivorum; in the sheriff's court or tourn,contra pacem vice-comitis[k]. These palatine privileges were in all probability originally granted to the counties of Chester and Durham, because they bordered upon enemies countries, Wales and Scotland; in order that the owners, being encouraged by so large an authority, might be the more watchful in it's defence; and that the inhabitants, having justice administered at home, might not be obliged to go out of thecounty, and leave it open to the enemies incursions. And upon this account also there were formerly two other counties palatine, Pembrokeshire and Hexamshire, the latter now united with Northumberland: but these were abolished by parliament, the former in 27 Hen. VIII, the latter in 14 Eliz. And in 27 Hen. VIII likewise, the powers beforementioned of owners of counties palatine were abridged; the reason for their continuance in a manner ceasing: though still all writs are witnessed in their names, and all forfeitures for treason by the common law accrue to them[l].

[f]Seld. tit. hon. 2. 5. 8.

[g]Plowd. 215.

[h]l.3.c.8. §. 4.

[i]4. Inst. 204.

[k]Seld.in Hengham magn.c.2.

[l]4 Inst. 205.

Ofthese three, the county of Durham is now the only one remaining in the hands of a subject. For the earldom of Chester, as Camden testifies, was united to the crown by Henry III, and has ever since given title to the king's eldest son. And the county palatine, or duchy, of Lancaster was the property of Henry of Bolinbroke, the son of John of Gant, at the time when he wrested the crown from king Richard II, and assumed the title of Henry IV. But he was too prudent to suffer this to be united to the crown, lest, if he lost one, he should lose the other also. For, as Plowden[m]and sir Edward Coke[n]observe, "he knew he had the duchy of Lancaster by sure and indefeasible title, but that his title to the crown was not so assured: for that after the decease of Richard II the right of the crown was in the heir of Lionel duke of Clarence,secondson of Edward III; John of Gant, father to this Henry IV, being but thefourthson." And therefore he procured an act of parliament, in the first year of his reign, to keep it distinct and separate from the crown, and so it descended to his son, and grandson, Henry V, and Henry VI. Henry VI being attainted in 1 Edw. IV, this duchy was declared in parliament to have become forfeited to the crown[o], and at the same time an act was made to keep it still distinct and separate from other inheritances of the crown. And in 1 Hen. VII another act was made to vest the inheritance thereof in Henry VII andhis heirs; and in this state, say sir Edward Coke[p]and Lambard[q], viz. in the natural heirs or posterity of Henry VII, did the right of the duchy remain to their days; a separate and distinct inheritance from that of the crown of England[r].

[m]215.

[n]4 Inst. 205.

[o]1 Ventr. 155.

[p]4 Inst. 206.

[q]Archeion. 233.

[r]If this notion of Lambard and Coke be well founded, it might have become a very curious question at the time of the revolution in 1688, in whom the right of the duchy remained after king James's abdication. The attainder indeed of the pretended prince of Wales (by statute 13 W. III. c. 3.) has now put the matter out of doubt. And yet, to give that attainder it's full force in this respect, the object of it must have been supposed legitimate, else he had no interest to forfeit.

Theisle of Ely is not a county palatine, though sometimes erroneously called so; but only a royal franchise; the bishop having, by grant of king Henry the first,jura regaliawithin the isle of Ely, and thereby he exercises a jurisdiction over all causes, as well criminal, as civil[s].

[s]4 Inst. 220.

Thereare also countiescorporate; which are certain cities and towns, some with more, some with less territory annexed to them; to which out of special grace and favour the kings of England have granted to be counties of themselves, and not to be comprized in any other county; but to be governed by their own sheriffs and other magistrates, so that no officers of the county at large have any power to intermeddle therein. Such are London, York, Bristol, Norwich, Coventry, and many others. And thus much of the countries subject to the laws of England.

THEobjects of the laws of England are so very numerous and extensive, that, in order to consider them with any tolerable ease and perspicuity, it will be necessary to distribute them methodically, under proper and distinct heads; avoiding as much as possible divisions too large and comprehensive on the one hand, and too trifling and minute on the other; both of which are equally productive of confusion.

Now, as municipal law is a rule of civil conduct, commanding what is right, and prohibiting what is wrong; or, as Cicero[a], and after him our Bracton[b], has expressed it,sanctio justa, jubens honesta et prohibens contraria; it follows, that the primary and principal objects of the law arerights, andwrongs. In the prosecution therefore of these commentaries, I shall follow this very simple and obvious division; and shall in the first place consider therightsthat are commanded, and secondly thewrongsthat are forbidden by the laws of England.

[a]11Philipp.12.

[b]l.1.c.3.

Rightsare however liable to another subdivision; being either, first, those which concern, and are annexed to the persons of men, and are then calledjura personarumor therights of persons; or they are, secondly, such as a man may acquire over external objects, or things unconnected with his person, which are stiledjura rerumor therights of things. Wrongs also are divisible into, first,private wrongs, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and secondly,public wrongs, which, being a breach of general and public rights, affect the whole community, and are called crimes and misdemesnors.

Theobjects of the laws of England falling into this fourfold division, the present commentaries will therefore consist of the four following parts: 1.The rights of persons; with the means whereby such rights may be either acquired or lost. 2.The rights of things; with the means also of acquiring and losing them. 3.Private wrongs, or civil injuries; with the means of redressing them by law. 4.Public wrongs, or crimes and misdemesnors; with the means of prevention and punishment.

Weare now, first, to considerthe rights of persons; with the means of acquiring and losing them.

Nowthe rights of persons that are commanded to be observed by the municipal law are of two sorts; first, such as are duefromevery citizen, which are usually called civilduties; and, secondly, such as belongtohim, which is the more popular acceptation ofrightsorjura. Both may indeed be comprized in this latter division; for, as all social duties are of a relative nature, at the same time that they are duefromone man, or set of men, they must also be duetoanother. But I apprehend it will be more clear and easy, to consider many of them as duties required from, rather than as rights belonging to, particular persons. Thus, for instance, allegiance is usually, and therefore most easily, considered as the duty of the people, and protection as the duty of the magistrate; and yet they are, reciprocally, the rights as well as duties of each other. Allegiance is the right of the magistrate, and protection the right of the people.

Personsalso are divided by the law into either natural persons, or artificial. Natural persons are such as the God of nature formed us: artificial are such as created and devised by human laws for the purposes of society and government; which are called corporations or bodies politic.

Therights of persons considered in their natural capacities are also of two sorts, absolute, and relative. Absolute, which are such as appertain and belong to particular men, merely as individuals or single persons: relative, which are incident to them as members of society, and standing in various relations to each other. The first, that is, absolute rights, will be the subject of the present chapter.

Bythe absoluterightsof individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is intitled to enjoy whether out of society or in it. But with regard to the absoluteduties, which man is bound to perform considered as a mere individual, it is not to be expected that any human municipal laws should at all explain or enforce them. For the end and intent of such laws being only to regulate the behaviour of mankind, as they are members of society, and stand in various relations to each other, they have consequently no business or concern with any but social or relative duties. Let a man therefore be ever so abandoned in his principles, or vitious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like) they then become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them. Here the circumstance of publication is what alters the nature of the case.Publicsobriety is a relative duty, and therefore enjoined by our laws:privatesobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil sanction. But, with respect torights, the case is different. Human laws define and enforce as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others.

Forthe principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate theseabsoluterights of individuals. Such rights as are social andrelativeresult from, and are posterior to, the formation of states and societies: so that to maintain and regulate these, is clearly a subsequent consideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as areabsolute, which in themselves are few and simple; and, then, such rights as are relative, which arising from a variety of connexions, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of England actually do, take notice of these absolute rights, and provide for their lasting security.

Theabsolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature: being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of freewill. But every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable, than that wild and savage liberty which is sacrificed to obtain it. For no man, that considers a moment, would wish to retain the absolute and uncontroled power of doing whatever he pleases; the consequence of which is, that every other man would also have the same power; and then there would be no security to individuals in any of the enjoyments of life. Political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the publick[c]. Hence we may collect that the law, which restrains aman from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind: but every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny. Nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are laws destructive of liberty: whereas if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance; by supporting that state, of society, which alone can secure our independence. Thus the statute of king Edward IV[d], which forbad the fine gentlemen of those times (under the degree of a lord) to wear pikes upon their shoes or boots of more than two inches in length, was a law that savoured of oppression; because, however ridiculous the fashion then in use might appear, the restraining it by pecuniary penalties could serve no purpose of common utility. But the statute of king Charles II[e], which prescribes a thing seemingly as indifferent; viz. a dress for the dead, who are all ordered to be buried in woollen; is a law consistent with public liberty, for it encourages the staple trade, on which in great measure depends the universal good of the nation. So that laws, when prudently framed, are by no means subversive but rather introductive of liberty; for (as Mr Locke has well observed[f]) where there is no law, there is no freedom. But then, on the other hand, that constitution or frame of government, that system of laws, is alone calculated to maintain civil liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint.

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