THE RIGHT OF PERSONAL LIBERTY. CHAPTER I. GENERAL NATURE AND LIMITATIONS OF THE RIGHT. Section I. GENERAL NATURE OF THE RIGHT. IL NATURE OF THE LIMITATIONS. SECTION I. GENERAL NATURE OF THE RIGHT. PERSONAL LIBERTY is the power of unrestrained locomotion. The right to exercise it springs from the fundamental laws of our being. The ever-recurring wants of the body, requiring continual labor for their provision, and the necessity of exercise to the healthy action of all its vital processes, render locomotion indispensable to animal existence. Man shares these wants with inferior animals, and, were he their equal only, should share their freedom also. But he has other wants no less imperious than those of the body: knowledge, the aliment of the soul; and happiness, the object of its unceasing aspiration. To supply these varied wants, he is constrained to employ his powers with unremitting care. Acting upon that enlightened sense of independence, which a knowledge of his nature and destiny alone can inspire, he pursues happiness in whatever paths it invites him; gives his days to labor, to study or to pleasure; remains in one place or visits all; in a word, in the exercise of liberty attains the full enjoyment of life. A survey of the nations of the earth, to discover where the right of personal liberty has been, and now is, most generally understood, most highly prized and most effectually secured to every walk in life, and to observe the liberalizing and elevating influence which a just sense of it exerts upon the government which fosters and secures it, the vital energy which it imparts to the administration of public affairs, and the unfailing stimulus which it supplies to private enterprise, would prove alike grateful to the spirit of philosophic inquiry and flattering to the pride of an American citizen. But it is the object, rather, of the following pages to ascertain what are the limits of this right; how it is secured, and how, when illegally assailed, it may most speedily be vindicated. The right of personal liberty, thus inhering in man as an independent sentient being, though absolute and of inestimable value, is not without material qualifications. "Man," says Montesquieu, "is born in society and there he remains." Government is essential to the preservation of society, and, in some form, everywhere prevails. Thus, born in society and under government, enjoying the privileges of one and the protection of the other, he cannot right fully exercise any power incompatible with the wellbeing of either. Hence, each member of society, in the exercise of his right of liberty, as well as of his other absolute rights, is subject to such limitations and penalties, as the common welfare and the just ends of government may require. SECTION II. NATURE OF THE LIMITATIONS. The limitations of the right of personal liberty are either of a public or private nature. I. Limitations of a public nature are those which are, 1. Punitive of crime; 2. Coercive of duties to the state; or 3. Executive of duties to the citizen. II. Limitations of a private nature are those which are, 1. Coercive of private obligation; or 2. Incident to certain civil relations, viz.: 1. Husband and wife; 2. Parent and child; 4. Master and apprentice; 5. Master and servant; 6. Master and scholar; CHAPTER II. Section LIMITATIONS OF A PUBLIC NATURE. I. LIMITATIONS PUNITIVE OF CRIME. II. LIMITATIONS COERCIVE OF DUTIES TO THE STATE. SECTION I. LIMITATIONS PUNITIVE OF CRIME. In 1765 it was written of the English law: It is a melancholy truth that, among the variety of actions which men are daily liable to commit, no less than a hundred and sixty have been declared by act of Parliament to be felonies without benefit of clergy; or, in other words, to be worthy of instant death. 4 Bl. Com., 18. And in 1810 it was declared by Lord Holland, in debate in the House of Lords, that the list had been increased to nearly double that number. 4 Am. Jurist, 7. In 1844 this "dreadful list" had been reduced to twelve. 4 Bl. Com., Wend. ed., App. A. The same severity did not prevail in the American Colonies as in England; yet in them many crimes were punished capitally which are now punished with imprisonment. In the United States more than half the States, and these among the foremost in point of the general completeness and the considerate human ity of their criminal codes, have in effect abolished the punishment of death for all other crimes than the single offence of murder. Law Rep., 490. Although doubts have been suggested as to the right of the State to inflict capital punishment in any case, and elaborate arguments urged against the policy of it, the right to imprison for crime in all cases is unquestioned. It is not that crime has become less odious in the sight of legislators, but the rights of life and liberty more precious, that the severity of the penalties of the criminal codes of England and America has been so greatly mitigated. It may be said now, that in the United States the personal liberty of offenders supplies the principal revenue of Penal Justice. She inflicts, indeed, pecuniary fines for slight offences, and exacts the forfeit of life for the most atrocious; but the great multitude of felons are required to expiate their crimes in prison. Of Contempts. The right of liberty is also subject to restriction as a punishment for contempts of court, which may, without impropriety, be classed with crimes. A court of justice represents the judicial majesty of the people. Through the forms of law it utters their mighty voice in judgment. Property, character, liberty and life itself, are involved in the issues before it; and it needs all the aid which composure can lend to reason to enable it to discharge wisely and impartially its manifold and momentous duties. Contempts, therefore, tending to interrupt or disturb the court in the administration of justice, have always been held to deserve instant and severe punishment. 4 Bl. Com., 284. |