CHAPTER V.

RESTRICTIONS ON HUMAN ACTIONS OWING TO COMPULSORY ACTS AND DUTIES.

Contrast between ancient and modern law, as to minute interference with daily conduct.-There is nothing which so clearly distinguishes modern from ancient law as the practice of coercing and harassing individuals in their ordinary avocations, for petty objects, in petty ways, and with inadequate and abortive results. The ancients, having no definite view as to the precise function of municipal law, were imbued with the notion that it must be closely connected with the practice of all the virtues, that law must be the means of compelling people to act rightly, much more than to avoid acting wrongly. The logical consequence followed, that men ought, in their view, to be dragooned into the paths of rectitude-should be led, and watched, and driven. Men, according to them, could not aspire to have any will of their own, but must, and ought to be made to feel, that the government, or supreme authority, should be the infallible dictator for nearly all the emergencies of their daily life-acting like a vigilant parent on the watch for every devious tendency, and actively encouraging and rewarding every effort to do right. When it is considered how their notions of virtue were mixed up with their intricate machinery of gods and oracles, and how slavery was the accepted basis of society, many of their laws and methods could not fail to be far apart from modern notions and practices. Our practice has indeed settled into something like the converse of theirs. We start with the axiom, that the interference of government is not necessarily good in itself, if the object can be otherwise attained, and that its interference is at least irksome, and seldom or never

effective when it seeks to coerce and harass the mind beyond a very limited range-that its supreme virtue is negative, and that there is nothing so conducive to order and rectitude as to let the better tendencies develop naturally. The law merely prepares a suitable soil for these to grow and ripen, taking care at the same time, and above all, to repel and subdue all who seek to interfere with personal freedom.1 It is not to be wondered that many large chapters of the law, which in ancient times claimed serious attention, are altogether omitted, and find no place in the law of the moderns. And after dealing with the more substantial rules and enactments which form the substantive law as to threatened and actual injuries, it is next incumbent to dispose of some of these minor details, which have lost their importance and significance, are now all but obsolete, and yet in their time gave much trouble to all legislatures, and had a place in our own law to a large extent, and up to the time of Bacon. Such laws are here introduced because they concern the individual person more closely than any of the other divisions of the law. They are not sufficiently general and precise to be classed under the head of contracts, or of the carrying on of those ordinary occupations, which consist only in making a succession of contracts, or in doing what is ordinarily termed the business of life, but are rather restrictions on the power of disposing of one's own person, or faculties, or time, in the manner which free men naturally aspire to in all countries and under all

1 The Areopagus at Athens not only punished impiety and immorality, but rewarded those eminent for virtue.-Potter, Gr. Ant. b. i. c. 19. It called on persons suspected of idleness to give an account of how they lived.-See Poor Laws, Chap. vi. And to render its judgments unimpeachable, and demonstrate that it paid no respect to persons, it is said the court sat in the dark to decide its cases; but scholars differ as to this point. The Carthaginians had also a prefectus morum to censure immorality.-Alex. ab Alex. b. iii. c. 13. Plutarch, with the authority of an eye-witness, says : "The Romans did not think it proper that anyone should be left to follow his own inclinations without inspection and control, either in marriage, in the procreation of children, in his table, or in the company he kept; but appointed censors to inspect, to correct, and chastise such as gave way to dissipation and licentiousness, and deserting the ancient way of living. The censors could deprive a knight of his horse, and they took an estimate of each citizen's estate, and enrolled them according to their pedigree, quality, and condition."-Plut. Cato.

circumstances. Many of such laws have often been called sumptuary laws, but the body of rules known by that general name were never connected together on any defined principle. Yet one or two minor points peculiarly belong to that division of the law which treats of the security of the person, and this is so, merely because they are not so closely connected with any other division, and nevertheless cannot be entirely disregarded in any complete account of the municipal law.

Sumptuary laws.-Sumptuary laws, that is to say, laws which profess to regulate minutely what people shall eat and drink, what guests they shall entertain, what clothes they shall wear, what armour they shall possess, what limit is to be put to their property, what expenses they should incur in their funerals, were considered by the early and middle ages as absolutely necessary for the proper government of mankind. The legislatures of all ages, until the last two centuries, took for granted, that they could not choose but lay down rules of this minute personal and harassing description. Of all such delusive notions as to the proper business of government, Montaigne aptly disposes in a sentence: "To enact that none but princes shall eat turbot, shall wear velvet or gold lace, merely sets every man more agog to eat and wear them.”1

Laws relating to things strictly personal.-These miscellaneous laws consist of restrictions on locomotion, on services or occupations, on the use and change of one's name, on dress, on clothing, on food-all closely connected with the person.

Right of locomotion. The right to go and come without hindrance or impediment may be said to be one of the primary elements of personal liberty; and it has been generally allowed. In the city of London, it is true, many centuries ago, if one was abroad after curfew without a lantern and a warrant authorising him, he was arrested, and next morning punished by the mayor.2 But the right to go on the highway or street at all times of day and night,

1 Montaigne, b. i. c. 43. Some sumptuary laws went extravagant lengths, but each probably had some evil of the time in view. Tiberius issued an edict against people kissing each other when they met, and against tavern-keepers selling pastry. Suet. Tib. Lycurgus even prohibited finely decorated ceilings and doors-Plut. Lycurg. 2 Temp. 13 Ed. I.

without licence, without challenge, and without incurring legal responsibility of any kind, is a part of daily life, which nothing but an express statute can take away or in the smallest degree control.1

Compulsory occupations as servants.—It is scarcely to be wondered, considering the social disorder created by idleness and beggary, and in times when slavery was no longer the portion of nearly all the poor, that compulsory work should sometimes have been enjoined. The Statute of Labourers, reciting the pestilence and scarcity of servants, made it compulsory on every person who had no merchandise, craft, or land, on which to live, to serve at fixed wages, otherwise to be committed to gaol till he found sureties.2 And at a later day all men between twelve and sixty not employed were compellable to hire themselves as servants in husbandry; and unmarried women between twelve and forty were also liable to be hired, otherwise to be imprisoned.3 These enactments are now repealed, and the only bearing of what remains to be said on this subject is more properly treated under the head of poor laws and begging.*

Compulsory hosts.-It may seem surprising, that the law should ever have found it necessary to make it obligatory on any one to receive guests against his will. At one time, however, our legislature was so sensible of the mischief of aliens coming to England and selling goods to each other, that, as a check on their proceedings, it was made compulsory on the mayors, sheriffs, and bailiffs, of every city, town, and port, to assign hosts, with whom these foreign merchants were to be boarded, so as to be under surveillance. The hosts were to be reasonably remunerated.5 But they were under a heavy penalty to act, and, as part of their duty, to be parties to each sale by the foreign merchants, and above all to see to the application of the price after the buying of English goods by foreigners. If a

1 Traces of some restriction are found of ancient date. A licence to travel seems to have been granted in the time of Elizabeth.-Burn's Star Ch. 81. A proclamation has been issued requiring all persons to return to their country houses, and it was enforced by the Star Chamber.-2 Hallam, C. H. 26. The prohibition to leave the country on the ground of debt or litigation pending and arrest on suspicion will be stated post, Ch. vii.

2 25 Ed. III. St. 2. 3 5 Eliz. c. 4. 5 5 Hen. IV. c. 9.

4 See post, Ch. vi.

foreign merchant had not a host, he was liable to be arrested and imprisoned till he found bail.1 All this compulsory entertainment of guests has long disappeared, and nothing remains of it, except, perhaps, that species of it, called the billeting of soldiers.2

Billeting of soldiers on householders.-The compulsion under which housekeepers are placed in receiving soldiers as temporary guests, seems to have been deemed an inevitable accompaniment of a standing army. It was, however, felt to be an intolerable grievance and vexation in the time of Charles I., and in the Petition of Right it was expressly claimed" that His Majesty would be pleased to remove the said soldiers and mariners, and that his people might not be so burdened in time to come.' That enactment extinguished whatever there was of common law (if indeed it was possible for such to exist) to support so hateful a duty as that of receiving sojourners of the military or naval force into the houses of inhabitants at the dictation of any commander. And the Act of Charles II. declared, that no officer should thenceforth presume to billet soldiers on any inhabitant without his consent.1

In the movement, however, of a standing army through the country, it is all but impracticable to provide suitable lodging without some compulsory hospitality. And this

1 18 Hen. VI. c. 4 (1439).

2 The Gentoos went much further in the law of hospitality, for with them it was a penal offence for a guest who accepted an invitation, not to go to the host's house, or for the host not to give his guest something to eat; and moreover, if the guest did not eat what was provided, he was bound to repay the expense.-Gent. Code, c. 21. 33 Ch. I.; 2 Parl. Hist. 283.

4 31 Ch. II. c. 1. The way in which the petition of the House of Commons alluded to this grievance was as follows: "By the fundamental laws of this realm every freeman hath, and of right ought to have, a full and absolute property in his goods and estate; and therefore the billeting and placing soldiers in the house of any freeman against his will is directly contrary to the said laws, &c. Yet a new and almost unheard of way hath been invented and put in practice to lay soldiers upon them, scattered in companies here and there, even in the heart and bowels of this kingdom, and to compel many of your majesty's subjects to receive and lodge them in their own houses, and both themselves and others to contribute towards the maintenance of them, to the exceeding great disservice of your majesty, the general terror of all, and utter undoing of many of your people." -2 Parl. Hist. 283.