the deed or act by a well-grounded apprehension of losing [life or limb (g). And such apprehension is also an excuse in law for many misdemeanors, as will appear in the course of these Commentaries (h).

Duress to life or limb is of two sorts, either, first, duress of imprisonment, as where a man actually loses his liberty; or duress per minas, as where the hardship is only threatened and impending. But in either case, the duress is duress to the person, as opposed to duress to a man's goods, with the latter of which species of duress we are not at present concerned. Duress per minas is either fear of death (i.e., loss of life), or else fear of mayhem (i.e., loss of limb). But in either case, the fear must be upon sufficient reason; that is (as Bracton expresses it), "non suspicio cujuslibet vani vel meticulosi hominis, sed talis qui cadere possit etiam in virum constantem; talis enim debet esse metus, qui in se contineat mortis periculum, et corporis cruciatum" (i). Therefore, the mere fear of a battery or of being beaten, however well grounded, is not duress to the person; because for the actual battery itself, a man may have satisfaction in damages. But for the loss of life or limb no suitable recompense can be made (k).

The law not only protects every man in the enjoyment of his life, but also furnishes him with everything necessary for its support; for, by the theory of our law, there is no man so indigent or wretched but he may demand, from the more opulent of his fellow-citizens, to be supplied with the necessaries of life, invoking for this purpose the provisions of the Poor Law Acts (1).

Rights of life and of limb can only be determined by death, civil or natural (m); civil death being where a man is outlawed, and becomes, as it were, dead in law (n).

(g) 2 Inst. 483.

(h) Vide post, bk. vi.

(i) Br. fo. 16 b; R. v. Southerton, (1805) 6 East, 126.

(k) 2 Inst. 483.

(1) Vide post, bk. iv., pt. iii.

(m) Co. Litt. 132 a.

(n) 3 Inst. 213.

Formerly, civil death also occurred when a man took sanctuary and abjured the realm (o), or entered into religion; in both of which cases he was deemed in law absolutely dead, so that his next heir had his estate. [For such abjured person, equally with the outlawed, was entirely cut off from society; and a monk, upon entering into religion, might, like other dying men, have made his last will, appointing executors; and if he made no will, the ordinary granted administration to his next of kin; and his executors or administrators might bring the same actions for debts due to the religious, and were liable to the same actions for debts due from him, as if he were naturally dead (p). In short, a monk was so effectually dead in law, that a lease made. for the term of the life of one who afterwards became a monk, determined by his entry into religion,-for which reason leases for life were usually made to have and to hold for the term of the natural life of the grantor or lessor, grantee or lessee (q). But inasmuch as the law of England never assumed cognizance of profession in any foreign country, the fact not being triable in our courts (r), it was held, after the Reformation, that civil death could no longer take place by profession (s),] nor (by the effect of 21 Jac. I. (1623) c. 28, s. 7, abolishing sanctuaries) by abjuration (t). Nevertheless, it would still take effect on outlawry; but outlawry on civil process has also now been abolished by the Civil Procedure Acts Repeal Act, 1879 (u).

[It is to be observed also, that in respect of the enjoy ment of life and limb, the law of England utterly forbids or excludes the arbitrary power of killing or maiming.

(0) Co. Litt. 133 a; Newsome v. Bowyer (1729), 3 P. Wms. 37, 11. (B).

(p) Litt. s. 200; Co. Litt. 133 b. (q) Archbishop of Canterbury's Case (1596), 2 Rep. 48 b; Co. Litt. S.C.-VOL. I.

32 a.

(r) Co. Litt. 132 b.

(s) Rex v. Lady Portington (1692),

1 Salk. 162.

(t) 1 Hale, P. C. 605.

(u) 42 & 43 Vict. c. 59, s. 3.
G

["Nullus liber homo," says the Great Charter, “aliquo modo destruatur nisi per legale judicium parium suorum vel per legem terra" (x),—which words, "aliquo modo destruatur," include, according to Sir Edward Coke (y), a prohibition not only of killing and maiming, but also of torturing. But, of course, flogging, for due cause and in proper cases, is permitted by the law, as part of the punishment, but not in the sense of a torturing, of the prisoner. Also, by the statute 5 Edw. III. (1331) c. 9, no man may be forejudged of life or limb, contrary to the Great Charter and the law of the land; and by the statute 28 Edw. III. (1354) c. 3, no man can be put to death without being first brought in answer by due process of law.]

As regards the other rights which are comprised under the general right of personal security,—namely, the enjoyment of a man's whole body, and of his health, and reputation, these other rights entitle him to security from all corporal assaults, though they amount not to destruction of either life or limb; and to security from all such malpractices as may prejudice or annoy his physical health or vigour; and also to the security of his reputation or good name. But inasmuch as it is to the infringement of these rights rather than to the rights. themselves that the provisions of the law have been directed, they will be more conveniently treated of when we are considering the law of wrongs (2).

II. [And secondly, the Right of Personal Liberty. Personal liberty consists in the power of moving one's person about to whatsoever place one's own inclination. may direct, without imprisonment, hindrance, or restraint, unless by due course of law. Thus, it is an express provision of the Great Charter, that no freeman shall be

(x) C. 39 (ed. Stubbs).

(y) 2 Inst. 48. (As a matter of fact Coke does not, in this passage,

speak of torture; but Blackstone's gloss is permissible.-E. J.)

(2) Vide post, bk. v. and bk. vi.

[taken or imprisoned, but by the lawful judgment of his peers, or by the law of the land (a); and other subsequent statutes of an early date also expressly provide, that no man shall be taken or imprisoned on mere suggestion or petition to the king or to his council, unless it be by legal indictment, or other due process of the common law (b). Also, by the Petition of Right of 1628 (3 Car. I.). it is expressly declared, that no freeman shall be imprisoned or detained without cause shown, to which he may make answer according to law; and by 16 Car. I. (1640) c. 10, s. 7, it was enacted, that if any person should 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 should 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; which court was thereupon to determine whether the cause of the commitment were just; and the court was to forthwith do as justice demanded. By the 31 Car. II. (1679) c. 2, commonly called the Habeas Corpus Act, amended and made more effectual by the Habeas Corpus Act, 1816, and other statutes, the methods of obtaining the writ of habeas corpus 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, excepting where the general law requires and justifies the detention, or where (in exceptional cases), special legislation has so provided. But at the same time, it is a rule with the courts, that they will not grant a habeas corpus as of course, and without probable cause shown (c). Lest the Habeas Corpus Acts should be evaded by demands of unreasonable bail or sureties for the prisoner's appearance, it is declared by the Bill of

(a) C. 39 (ed. Stubbs).

(b) 5 Edw. 3 (1331), c. 9 ; 25 Edw. 3 (1350), st. 5, c. 4; 28

Edw. 3 (1354), c. 3.

(c) Hobhouse's Case (1820), 3 B. & Ald. 420.

[Rights (d), that excessive bail ought not to be required;] and, by the Indictable Offences Act, 1848 (e), and the Bail Act, 1898 (ƒ), further provisions have been made for facilitating the bail of accused persons.

[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 whomsoever he or his officers thought proper, there would soon be an end of all other rights and immunities. And 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. 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 is such as to render this measure expedient. For it is Parliament only (or the legislative power) which, by suspending the Habeas Corpus Act for a short and limited time, can authorise the Crown to imprison suspected persons, without giving any reason for so doing. In like manner, the senate of Rome also was wont to have recourse to a dictator, or magistrate of absolute authority, when they judged the republic to be in grave and imminent danger. The decree of the senate in such a case was called the senatus consultum ultimæ necessitatis, which expression seems to show that 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, amounts in law to an imprisonment; e.g., keeping a man against his will in a private house, putting him in the stocks, or forcibly detaining him in the street, is an imprison

(d) 1 W. & M. sess. 2 (1689),

c. 2.

(e) 11 & 12 Vict. c. 42.

(f) 61 Vict. c. 7.