Chapter 1

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[Transcriber's Note: Sir William Blackstone's _Commentaries on the Laws of England_ was first published in 1765-1769. It contains a number of archaic spellings (including "goaler" for "gaoler" and "it's" for "its") that have been preserved as they appear in the original. All such spellings have been verified using the Oxford English Dictionary. Inconsistencies in spelling, punctuation, hyphenation, capitalization, and italicization have also been preserved. Obvious printer errors have been preserved and marked with a [Transcriber's Note]. Long s in the original has been modernized as modern s. The archaic convention of placing quotation marks at the beginning of each line of a quotation has also been modernized to quotation marks only at the beginning and end of the quotation.]

COMMENTARIES

ON THE

LAWS

OF

ENGLAND.

BOOK THE FIRST.

BY

WILLIAM BLACKSTONE, ESQ.

VINERIAN PROFESSOR OF LAW,

AND

SOLICITOR GENERAL TO HER MAJESTY.

OXFORD,

PRINTED AT THE CLARENDON PRESS.

M. DCC. LXV.

TO

THE QUEEN'S MOST EXCELLENT MAJESTY,

THE FOLLOWING VIEW

OF THE LAWS AND CONSTITUTION

OF ENGLAND,

THE IMPROVEMENT AND PROTECTION OF WHICH

HAVE DISTINGUISHED THE REIGN

OF HER MAJESTY'S ROYAL CONSORT,

IS,

WITH ALL GRATITUDE AND HUMILITY,

MOST RESPECTFULLY INSCRIBED

BY HER DUTIFUL

AND MOST OBEDIENT

SERVANT,

WILLIAM BLACKSTONE.

PREFACE.

_THE following sheets contain the substance of a course of lectures on the laws of England, which were read by the author in the university of OXFORD. His original plan took it's rise in the year 1753: and, notwithstanding the novelty of such an attempt in this age and country, and the prejudices usually conceived against any innovations in the established mode of education, he had the satisfaction to find (and he acknowleges it with a mixture of pride and gratitude) that his endeavours were encouraged and patronized by those, both in the university and out of it, whose good opinion and esteem he was principally desirous to obtain._

_THE death of Mr VINER in 1756, and his ample benefaction to the university for promoting the study of the law, produced about two years afterwards a regular and public establishment of what the author had privately undertaken. The knowlege of our laws and constitution was adopted as a liberal science by general academical authority; competent endowments were decreed for the support of a lecturer, and the perpetual encouragement of students; and the compiler of the ensuing commentaries had the honour to be elected the first Vinerian professor._

_IN this situation he was led, both by duty and inclination, to investigate the elements of the law, and the grounds of our civil polity, with greater assiduity and attention than many have thought it necessary to do. And yet all, who of late years have attended the public administration of justice, must be sensible that a masterly acquaintance with the general spirit of laws and the principles of universal jurisprudence, combined with an accurate knowlege of our own municipal constitutions, their original, reason, and history, hath given a beauty and energy to many modern judicial decisions, with which our ancestors were wholly unacquainted. If, in the pursuit of these inquiries, the author hath been able to rectify any errors which either himself or others may have heretofore imbibed, his pains will be sufficiently answered: and, if in some points he is still mistaken, the candid and judicious reader will make due allowances for the difficulties of a search so new, so extensive, and so laborious._

_THE labour indeed of these researches, and of a regular attention to his duty, for a series of so many years, he hath found inconsistent with his health, as well as his other avocations: and hath therefore desired the university's permission to retire from his office, after the conclusion of the annual course in which he is at present engaged. But the hints, which he had collected for the use of his pupils, having been thought by some of his more experienced friends not wholly unworthy of the public eye, it is therefore with the less reluctance that he now commits them to the press: though probably the little degree of reputation, which their author may have acquired by the candor of an audience (a test widely different from that of a deliberate perusal) would have been better consulted by a total suppression of his lectures;----had that been a matter intirely within his power._

_FOR the truth is, that the present publication is as much the effect of necessity, as it is of choice. The notes which were taken by his hearers, have by some of them (too partial in his favour) been thought worth revising and transcribing; and these transcripts have been frequently lent to others. Hence copies have been multiplied, in their nature imperfect, if not erroneous; some of which have fallen into mercenary hands, and become the object of clandestine sale. Having therefore so much reason to apprehend a surreptitious impression, he chose rather to submit his own errors to the world, than to seem answerable for those of other men. And, with this apology, he commits himself to the indulgence of the public._

ERRATA.

_Page 138, line 15_: _for_ no _read_ an

_Page 147, (notes) col. 2._ _after_ 1 Sid. 1. _add_ See Stat. 13 Car. II. c. 7.

_Page 224, line 14_: _after_ sit _add_ at

_Page 376, line 6_: _for_ predial _read_ rectorial

CONTENTS.

INTRODUCTION.

SECT. I. _On the_ STUDY _of the_ LAW. Page 3.

SECT. II. _Of the_ NATURE _of_ LAWS _in general_. 38.

SECT. III. _Of the_ LAWS _of_ ENGLAND. 63.

SECT. IV. _Of the_ COUNTRIES _subject to the_ LAWS _of_ ENGLAND. 93.

BOOK I. _Of the_ RIGHTS _of_ PERSONS.

CHAP. I. _Of the absolute_ RIGHTS _of_ INDIVIDUALS. 117.

CHAP. II. _Of the_ PARLIAMENT. 142.

CHAP. III. _Of the_ KING, _and his_ TITLE. 183.

CHAP. IV. _Of the_ KING'S _royal_ FAMILY. 212.

CHAP. V. _Of the_ COUNCILS _belonging to the_ KING. 220.

CHAP. VI. _Of the_ KING'S DUTIES. 226.

CHAP. VII. _Of the_ KING'S PREROGATIVE. 230.

CHAP. VIII. _Of the_ KING'S REVENUE. 271.

CHAP. IX. _Of subordinate_ MAGISTRATES. 327.

CHAP. X. _Of the_ PEOPLE, _whether_ ALIENS, DENIZENS, _or_ NATIVES. 354.

CHAP. XI. _Of the_ CLERGY. 364.

CHAP. XII. _Of the_ CIVIL STATE. 384.

CHAP. XIII. _Of the_ MILITARY _and_ MARITIME STATES. 395.

CHAP. XIV. _Of_ MASTER _and_ SERVANT. 410.

CHAP. XV. _Of_ HUSBAND _and_ WIFE. 421.

CHAP. XVI. _Of_ PARENT _and_ CHILD. 434.

CHAP. XVII. _Of_ GUARDIAN _and_ WARD. 448.

CHAP. XVIII. _Of_ CORPORATIONS. 455.

COMMENTARIES

ON THE

LAWS OF ENGLAND.

INTRODUCTION.

SECTION THE FIRST.

ON THE STUDY OF THE LAW.[A]

[Footnote A: Read in Oxford at the opening of the Vinerian lectures; 25 Oct. 1758.]

MR VICE-CHANCELLOR, AND GENTLEMEN OF THE UNIVERSITY,

THE general expectation of so numerous and respectable an audience, the novelty, and (I may add) the importance of the duty required from this chair, must unavoidably be productive of great diffidence and apprehensions in him who has the honour to be placed in it. He must be sensible how much will depend upon his conduct in the infancy of a study, which is now first adopted by public academical authority; which has generally been reputed (however unjustly) of a dry and unfruitful nature; and of which the theoretical, elementary parts have hitherto received a very moderate share of cultivation. He cannot but reflect that, if either his plan of instruction be crude and injudicious, or the execution of it lame and superficial, it will cast a damp upon the farther progress of this most useful and most rational branch of learning; and may defeat for a time the public-spirited design of our wise and munificent benefactor. And this he must more especially dread, when he feels by experience how unequal his abilities are (unassisted by preceding examples) to complete, in the manner he could wish, so extensive and arduous a task; since he freely confesses, that his former more private attempts have fallen very short of his own ideas of perfection. And yet the candour he has already experienced, and this last transcendent mark of regard, his present nomination by the free and unanimous suffrage of a great and learned university, (an honour to be ever remembered with the deepest and most affectionate gratitude) these testimonies of your public judgment must entirely supersede his own, and forbid him to believe himself totally insufficient for the labour at least of this employment. One thing he will venture to hope for, and it certainly shall be his constant aim, by diligence and attention to atone for his other defects; esteeming, that the best return, which he can possibly make for your favourable opinion of his capacity, will be his unwearied endeavours in some little degree to deserve it.

THE science thus committed to his charge, to be cultivated, methodized, and explained in a course of academical lectures, is that of the laws and constitution of our own country: a species of knowlege, in which the gentlemen of England have been more remarkably deficient than those of all Europe besides. In most of the nations on the continent, where the civil or imperial law under different modifications is closely interwoven with the municipal laws of the land, no gentleman, or at least no scholar, thinks his education is completed, till he has attended a course or two of lectures, both upon the institutes of Justinian and the local constitutions of his native soil, under the very eminent professors that abound in their several universities. And in the northern parts of our own island, where also the municipal laws are frequently connected with the civil, it is difficult to meet with a person of liberal education, who is destitute of a competent knowlege in that science, which is to be the guardian of his natural rights and the rule of his civil conduct.

NOR have the imperial laws been totally neglected even in the English nation. A general acquaintance with their decisions has ever been deservedly considered as no small accomplishment of a gentleman; and a fashion has prevailed, especially of late, to transport the growing hopes of this island to foreign universities, in Switzerland, Germany, and Holland; which, though infinitely inferior to our own in every other consideration, have been looked upon as better nurseries of the civil, or (which is nearly the same) of their own municipal law. In the mean time it has been the peculiar lot of our admirable system of laws, to be neglected, and even unknown, by all but one practical profession; though built upon the soundest foundations, and approved by the experience of ages.

FAR be it from me to derogate from the study of the civil law, considered (apart from any binding authority) as a collection of written reason. No man is more thoroughly persuaded of the general excellence of it's rules, and the usual equity of it's decisions; nor is better convinced of it's use as well as ornament to the scholar, the divine, the statesman, and even the common lawyer. But we must not carry our veneration so far as to sacrifice our Alfred and Edward to the manes of Theodosius and Justinian: we must not prefer the edict of the praetor, or the rescript of the Roman emperor, to our own immemorial customs, or the sanctions of an English parliament; unless we can also prefer the despotic monarchy of Rome and Byzantium, for whose meridians the former were calculated, to the free constitution of Britain, which the latter are adapted to perpetuate.

WITHOUT detracting therefore from the real merit which abounds in the imperial law, I hope I may have leave to assert, that if an Englishman must be ignorant of either the one or the other, he had better be a stranger to the Roman than the English institutions. For I think it an undeniable position, that a competent knowlege of the laws of that society, in which we live, is the proper accomplishment of every gentleman and scholar; an highly useful, I had almost said essential, part of liberal and polite education. And in this I am warranted by the example of antient Rome; where, as Cicero informs us[a], the very boys were obliged to learn the twelve tables by heart, as a _carmen necessarium_ or indispensable lesson, to imprint on their tender minds an early knowlege of the laws and constitutions of their country.

[Footnote a: _De Legg._ 2. 23.]

BUT as the long and universal neglect of this study, with us in England, seems in some degree to call in question the truth of this evident position, it shall therefore be the business of this introductory discourse, in the first place to demonstrate the utility of some general acquaintance with the municipal law of the land, by pointing out its particular uses in all considerable situations of life. Some conjectures will then be offered with regard to the causes of neglecting this useful study: to which will be subjoined a few reflexions on the peculiar propriety of reviving it in our own universities.

AND, first, to demonstrate the utility of some acquaintance with the laws of the land, let us only reflect a moment on the singular frame and polity of that land, which is governed by this system of laws. A land, perhaps the only one in the universe, in which political or civil liberty is the very end and scope of the constitution[b]. This liberty, rightly understood, consists in the power of doing whatever the laws permit[c]; which is only to be effected by a general conformity of all orders and degrees to those equitable rules of action, by which the meanest individual is protected from the insults and oppression of the greatest. As therefore every subject is interested in the preservation of the laws, it is incumbent upon every man to be acquainted with those at least, with which he is immediately concerned; lest he incur the censure, as well as inconvenience, of living in society without knowing the obligations which it lays him under. And thus much may suffice for persons of inferior condition, who have neither time nor capacity to enlarge their views beyond that contracted sphere in which they are appointed to move. But those, on whom nature and fortune have bestowed more abilities and greater leisure, cannot be so easily excused. These advantages are given them, not for the benefit of themselves only, but also of the public: and yet they cannot, in any scene of life, discharge properly their duty either to the public or themselves, without some degree of knowlege in the laws. To evince this the more clearly, it may not be amiss to descend to a few particulars.

[Footnote b: Montesq. _Esp. L._ _l._ 11. _c._ 5.]

[Footnote c: _Facultas ejus, quod cuique facere libet, nisi quid vi, aut jure prohibetur._ _Inst._ 1. 3. 1.]

LET us therefore begin with our gentlemen of independent estates and fortune, the most useful as well as considerable body of men in the nation; whom even to suppose ignorant in this branch of learning is treated by Mr Locke[d] as a strange absurdity. It is their landed property, with it's long and voluminous train of descents and conveyances, settlements, entails, and incumbrances, that forms the most intricate and most extensive object of legal knowlege. The thorough comprehension of these, in all their minute distinctions, is perhaps too laborious a task for any but a lawyer by profession: yet still the understanding of a few leading principles, relating to estates and conveyancing, may form some check and guard upon a gentleman's inferior agents, and preserve him at least from very gross and notorious imposition.

[Footnote d: Education. §. 187.]

AGAIN, the policy of all laws has made some forms necessary in the wording of last wills and testaments, and more with regard to their attestation. An ignorance in these must always be of dangerous consequence, to such as by choice or necessity compile their own testaments without any technical assistance. Those who have attended the courts of justice are the best witnesses of the confusion and distresses that are hereby occasioned in families; and of the difficulties that arise in discerning the true meaning of the testator, or sometimes in discovering any meaning at all: so that in the end his estate may often be vested quite contrary to these his enigmatical intentions, because perhaps he has omitted one or two formal words, which are necessary to ascertain the sense with indisputable legal precision, or has executed his will in the presence of fewer witnesses than the law requires.

BUT to proceed from private concerns to those of a more public consideration. All gentlemen of fortune are, in consequence of their property, liable to be called upon to establish the rights, to estimate the injuries, to weigh the accusations, and sometimes to dispose of the lives of their fellow-subjects, by serving upon juries. In this situation they are frequently to decide, and that upon their oaths, questions of nice importance, in the solution of which some legal skill is requisite; especially where the law and the fact, as it often happens, are intimately blended together. And the general incapacity, even of our best juries, to do this with any tolerable propriety has greatly debased their authority; and has unavoidably thrown more power into the hands of the judges, to direct, control, and even reverse their verdicts, than perhaps the constitution intended.

BUT it is not as a juror only that the English gentleman is called upon to determine questions of right, and distribute justice to his fellow-subjects: it is principally with this order of men that the commission of the peace is filled. And here a very ample field is opened for a gentleman to exert his talents, by maintaining good order in his neighbourhood; by punishing the dissolute and idle; by protecting the peaceable and industrious; and, above all, by healing petty differences and preventing vexatious prosecutions. But, in order to attain these desirable ends, it is necessary that the magistrate should understand his business; and have not only the will, but the power also, (under which must be included the knowlege) of administring legal and effectual justice. Else, when he has mistaken his authority, through passion, through ignorance, or absurdity, he will be the object of contempt from his inferiors, and of censure from those to whom he is accountable for his conduct.

YET farther; most gentlemen of considerable property, at some period or other in their lives, are ambitious of representing their country in parliament: and those, who are ambitious of receiving so high a trust, would also do well to remember it's nature and importance. They are not thus honourably distinguished from the rest of their fellow-subjects, merely that they may privilege their persons, their estates, or their domestics; that they may list under party banners; may grant or with-hold supplies; may vote with or vote against a popular or unpopular administration; but upon considerations far more interesting and important. They are the guardians of the English constitution; the makers, repealers, and interpreters of the English laws; delegated to watch, to check, and to avert every dangerous innovation, to propose, to adopt, and to cherish any solid and well-weighed improvement; bound by every tie of nature, of honour, and of religion, to transmit that constitution and those laws to their posterity, amended if possible, at least without any derogation. And how unbecoming must it appear in a member of the legislature to vote for a new law, who is utterly ignorant of the old! what kind of interpretation can he be enabled to give, who is a stranger to the text upon which he comments!

INDEED it is really amazing, that there should be no other state of life, no other occupation, art, or science, in which some method of instruction is not looked upon as requisite, except only the science of legislation, the noblest and most difficult of any. Apprenticeships are held necessary to almost every art, commercial or mechanical: a long course of reading and study must form the divine, the physician, and the practical professor of the laws: but every man of superior fortune thinks himself _born_ a legislator. Yet Tully was of a different opinion: "It is necessary, says he[e], for a senator to be thoroughly acquainted with the constitution; and this, he declares, is a knowlege of the most extensive nature; a matter of science, of diligence, of reflexion; without which no senator can possibly be fit for his office."

[Footnote e: _De Legg._ 3. 18. _Est senatori necessarium nosse rempublicam; idque late patet:--genus hoc omne scientiae, diligentiae, memoriae est; sine quo paratus esse senator nullo pacto potest._]

THE mischiefs that have arisen to the public from inconsiderate alterations in our laws, are too obvious to be called in question; and how far they have been owing to the defective education of our senators, is a point well worthy the public attention. The common law of England has fared like other venerable edifices of antiquity, which rash and unexperienced workmen have ventured to new-dress and refine, with all the rage of modern improvement. Hence frequently it's symmetry has been destroyed, it's proportions distorted, and it's majestic simplicity exchanged for specious embellishments and fantastic novelties. For, to say the truth, almost all the perplexed questions, almost all the niceties, intricacies, and delays (which have sometimes disgraced the English, as well as other, courts of justice) owe their original not to the common law itself, but to innovations that have been made in it by acts of parliament; "overladen (as sir Edward Coke expresses it[f]) with provisoes and additions, and many times on a sudden penned or corrected by men of none or very little judgment in law." This great and well-experienced judge declares, that in all his time he never knew two questions made upon rights merely depending upon the common law; and warmly laments the confusion introduced by ill-judging and unlearned legislators. "But if, he subjoins, acts of parliament were after the old fashion penned, by such only as perfectly knew what the common law was before the making of any act of parliament concerning that matter, as also how far forth former statutes had provided remedy for former mischiefs, and defects discovered by experience; then should very few questions in law arise, and the learned should not so often and so much perplex their heads to make atonement and peace, by construction of law, between insensible and disagreeing words, sentences, and provisoes, as they now do." And if this inconvenience was so heavily felt in the reign of queen Elizabeth, you may judge how the evil is increased in later times, when the statute book is swelled to ten times a larger bulk; unless it should be found, that the penners of our modern statutes have proportionably better informed themselves in the knowlege of the common law.