I. The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.
1. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb. For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the antient law homicide or manslaughter[o]. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemesnor[p].
[o] Si aliquis mulierem praegnantem percusserit, vel ei venenum dederit, per quod fecerit abortivam; si puerperium jam formatum fuerit, et maxime si fuerit animatum, facit homicidium. Bracton. l. 3. c. 21.
[p] 3 Inst. 90.
An infant in ventre sa mere, or in the mother's womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate made to it. It may have a guardian assigned to it[q]; and it is enabled to have an estate limited to it's use, and to take afterwards by such limitation, as if it were then actually born[r]. And in this point the civil law agrees with ours[].
[q] Stat. 12 Car. II. c. 24.
[r] Stat. 10 & 11 W. III. c. 16.
[] Qui in utero sunt, in jure civili intelliguntur in rerum natura esse, cum de eorum commodo agatur. Ff. 1. 5. 26.
2. A man's limbs, (by which for the present we only understand those members which may be useful to him in fight, and the loss of which only amounts to mayhem by the common law) are also the gift of the wise creator; to enable man to protect himself from external injuries in a state of nature. To these therefore he has a natural inherent right; and they cannot be wantonly destroyed or disabled without a manifest breach of civil liberty.
Both the life and limbs of a man are of such high value, in the estimation of the law of England, that it pardons even homicide if committed se defendendo, or in order to preserve them. For whatever is done by a man, to save either life or member, is looked upon as done upon the highest necessity and compulsion. Therefore if a man through fear of death or mayhem is prevailed upon to execute a deed, or do any other legal act; these, though accompanied with all other the requisite solemnities, are totally void in law, if forced upon him by a well-grounded apprehension of losing his life, or even his limbs, in case of his non-compliance[t]. And the same is also a sufficient excuse for the commission of many misdemesnors, as will appear in the fourth book. The constraint a man is under in these circumstances is called in law duress, from the Latin durities, of which there are two sorts; duress of imprisonment, where a man actually loses his liberty, of which we shall presently speak; and duress per minas, where the hardship is only threatened and impending, which is that we are now discoursing of. Duress per minas is either for fear of loss of life, or else for fear of mayhem, or loss of limb. And this fear must be upon sufficient reason; "non," as Bracton expresses it, "suspicio cujuslibet vani et meticulosi hominis, sed talis qui possit cadere in virum constantem; talis enim debet esse metus, qui in se contineat vitae periculum, aut corporis cruciatum[]." A fear of battery, or being beaten, though never so well grounded, is no duress; neither is the fear of having one's house burnt, or one's goods taken away and destroyed; because in these cases, should the threat be performed, a man may have satisfaction by recovering equivalent damages[w]: but no suitable atonement can be made for the loss of life, or limb. And the indulgence shewn to a man under this, the principal, sort of duress, the fear of losing his life or limbs, agrees also with that maxim of the civil law; ignoscitur ei qui sanguinem suum qualiter qualiter redemptum voluit[x].