Imágenes de páginas
PDF
EPUB

port. No man is so poor, but he may demand a supply suficient for all the necessities of life from the more opulent, by the several statutes ordained for the relief of the poor.

Civil Death. These rights can only be terminated by the death of the person, by a civil or natural death. The civil death commenced, if a man was banished the realm by the process of the common law, or entered into a monastery and became a professed monk, in which cases he was absolutely dead in law, and his heir took his estate. A monk, on taking his vows, was deemed civiliter mortuus, and like other dying men might make his will and appoint executors, or the ordinary in case of his intestacy, might grant letters of administration to his next of kin. Even a lease made to a third person during the life of one, who afterwards became a monk, terminated by his entry into a monastery. Hence the use of the term “natural life" in legal documents. No cognizance was taken in England of vows made in a foreign country. This disability has been abolished, and also that of banishment, consequent upon abjuration.

Natural Death. The natural life, the gift of the Creator, cannot legally be destroyed by an individual, neither by the person himself, nor by any class of individuals, merely on their own authority. Yet it may be forfeited for the breach of those laws of society, which are enforced by the sanction of capital punishment. The statute law of England very seldom, and the common law never inflicts any punishment extending to life or limb, unless upon the highest necessity, and under the express warrant of law.

3. Body. The remainder of a man's body or person is also entitled, by the same natural right, to security from the corporal insults of menaces, assaults, beating and wounding.

4. Health. A man's health is entitled to preservation from such practices, as may prejudice or annoy.

5. Reputation. The security of his reputation or good name from the venom of detraction and slander, is a right to which every man is entitled by reason and natural justice, for without these, it is impossible to have the perfect enjoyment of any other advantage or right. RIGHT OF PERSONAL LIBERTY.

Defined. This consists in the power of locomotion, of

[ocr errors]

changing situation, or moving one's person to whatever place one's own inclination may direct, without imprisonment or restraint, unless by due course of law. It is a right strictly natural, which the laws of England have never abridged without sufficient cause, and which cannot be abridged by a magistrate, without the explicit permission of the laws. No freeman shall be imprisoned or detained without cause shown, to which he may make answer according to law.

Habeas Corpus Act. By this act, passed in the reign of Charles II, no subject of England can be long detained in prison, except in those cases, in which the law requires and justifies such detainer. Lest this act be evaded by demanding unreasonable bail or sureties, a later act enacts, that excessive bail shall not be required. It is only in cases of great emergency

to the state, that the operations of this act are suspended for a limited time to imprison persons suspected of treason, without assigning cause therefor. In such cases as these, the nation parts with its liberty for the time, in order to preserve it forever.

Duress. The confinement of the person is an imprisonment, so that the keeping a man against his will in a private house, arresting or forcibly detaining him, is an imprisonment. If a man is under duress of imprisonment, which is a compulsion by an illegal restraint of liberty, until he seals a document, or the like, he may allege the duress and avoid the extorted bond. But if a man be lawfully imprisoned, and either to procure his discharge or for other cause, seals a bond or deed, this is not by duress of imprisonment, and he cannot avoid it.

Process must be Regular. To make imprisonment lawful, it must either be by process from the courts of judicature, or by warrant from some legal officer, having authority to commit, which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into, if necessary, upon a habeas corpus. If there be no cause expressed, the jailer is not bound to detain the prisoner.

Ne Exeat. A consequence of this personal liberty is, that every Englishman may claim a right to abide in his own country, so long as he pleases, and not to be driven from it, unless by the sentence of the law. The king, by his royal prerogative, may issue his writ ne exeat regnum, and prohibit a subject leaving the country. This may be necessary for the public service.

Transportation and Exile. But no power, except the authority of parliament, can send any subject of England out of the land against his will, not even if he be a criminal. Exile and transportation are unknown to the common law, and whenever the latter is now inflicted, it is either by the choice of the criminal himself to escape a capital punishment, or else by some express statute. Magna carta declares, that no freeman shall be banished, unless by the judgment of his peers or by the law of the land.

Violation of Habeas Corpus Act. By the habeas corpus act, that second magna carta, and stable bulwark of our liberties, it is enacted, that no subject of the realm shall be sent as prisoner abroad, but that all such imprisonments shall be illegal. One who shall dare to commit another contrary to law, shall be disqualified from holding office, shall incur the penalty of a praemunire and be incapable of receiving pardon; and the party suffering shall also have his private action against the person committing, and shall recover treble costs, besides his damages, the minimum being five hundred pounds.

Expulsion Illegal. Though within the realm, the king may command the attendance and service of all his liegemen, yet he cannot send any man out of the realm, even upon the public service, excepting sailors and soldiers, the nature of whose employment necessarily implies an exception. RIGHT OF PRIVATE PROPERTY.

Defined. This is the third absolute right, and consists in the free use, enjoyment and disposal by a man of all his acquisitions, without any control or diminution, save only by the laws of the land. The original of private property is probably founded in nature.

Obligations to Society. Its modifications, the method of preserving it in the present owner, and of transferring it from man to man, are entirely derived from society, and are some of the civil advantages, in exchange for which every individual has resigned a part of his natural liberty.

Unjust Seizure of Lands. Upon this principle, the great charter has declared, that no freeman shall be disseised or divested of his freehold, or of his liberties or free customs, but by the judgment of his peers, or by the law of the land. By a variety of ancient statutes, it is enacted, that no man's lands or goods shall be seized into the king's hands, against the great charter and the law of the land, and that no man shall be disinherited, or expelled from his franchises or freehold, unless dispossessed by course of law.

Public Good Secondary. The law will not authorize a violation of the right of property, even for the public good. Thus a new road through private grounds may be beneficial to the community, but it cannot be laid out without the consent of the owner of the land. In vain, may it be urged, that the good of the individual ought to yield to that of the community, for it would be dangerous to allow any private man, or even any public tribunal, to be judge of this common good, and to decide on its expediency. Besides the public good is interested in the protection of every individual's private rights, as modelled by the municipal law.

Eminent Domain. In this and similar cases, the legislature alone can interpose, and compel the individual to acquiesce. It does this, not by arbitrarily depriving the party of his property, but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered as an individual, treating with an individual for an exchange. All that the legislature does, is to oblige the owner to alienate his possessions for a reasonable price, and even this is an exertion of power, which the legislature indulges with caution.

Taxes, how Levied. Nor is this the only instance, in which the law of the land has postponed even public necessity to the sacred rights of private property. No subject can be constrained to pay any taxes, even for the support of government, but such as are imposed by his own consent or that of his representative in parliament. Under the petition of right of Charles I, no man shall be compelled to yield any tax without common consent, by act of parliament.

How these Rights are Secured. In vain these rights would be declared, ascertained and protected, if the constitution had not provided a mode to secure their actual enjoyment. It has therefore established certain other auxiliary, subordinate rights of the subject, which serve as barriers to protect these three great and primary rights. These are:

1. The constitution, powers and privileges of parliament.

2. The limitation of the king's prerogative, by well-defined bounds, which cannot be legally exceeded, except by the consent of the people.

Checks and Safeguards. The former of these keeps the legislative power in due vigor, rendering it improbable that laws should be enacted, destructive of general liberty; the latter is a guard upon the executive power, by restraining it from acting either beyond or in contradiction to the laws, that are framed and established by the other.

3. The right of every one to apply to courts of justice for the redress of injuries. Since the law is in England the supreme arbitrer of every man's life, liberty and property, courts must at all times be open to the subject, and the law be duly administered therein. The magna carta declares, that every one may take his remedy by course of law, may have justice and right for the injury done him, freely without sale, fully without any denial, and speedily without delay.

Affirmative and Negative Statutes. Numerous affirmative laws have been passed by parliament, wherein justice is directed to be done according to the law of the land, which law may be known to all, for it depends not upon the arbitrary will of any judge, but is permanent, fixed and unchangeable, except by authority of the power that made it. Negative statutes from time to time have been passed, whereby abuses, perversions and delays of justice, especially by the prerogative, have been restrained.

Innovations Prevented. Not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered, but by parliament, otherwise innovations would creep into the body of the law itself. The king may erect new courts, but they must proceed according to the old established forms of the common law.

4. By petition for redress. In cases of uncommon injury or infringement of the above rights, which the ordinary course of justice cannot remedy, there still remains a subordinate right, which appertains to every one, of petitioning the king or either house of parliament for the redress of grievances.

Russian Rules. In Russia, the czar Peter allowed no subject to petition the throne, until he had first solicited two min

« AnteriorContinuar »