PART IV.

OF THE LAW CONCERNING THE RIGHTS OF

PERSONS.

LECTURE XXIV.*

OF THE ABSOLUTE RIGHTS OF PERSONS.

THE rights of persons in private life are either absolute, being such as belong to individuals in a single, unconnected state; or relative, being those which arise from the civil and domestic relations.

The absolute rights of individuals may be resolved into the right of personal security, the right of personal liberty, and the right to acquire and enjoy property. These rights have been justly considered, and frequently declared, by the people of this country, to be natural, inherent, and unalienable. The effectual security and enjoyment of them depend upon the existence of civil liberty; and that consists in being protected and governed by laws made, or assented to, by the representatives of the people, and conducive to the general welfare. Right itself, in civil society, is that which any man is entitled to have, or to do, or to require from others, within the limits prescribed by law. The history of our colonial government bears constant marks of the vigilance of a free and intelligent people, who understood the best securities for political happiness, and the true foundation of the social ties. The inhabitants of the colonies of Plymouth and Massachusetts, in the infancy of their establishments, declared by law that the free enjoyment of the liberties * which humanity, civility, and *2 Christianity called for was due to every man in his place and

[* In the previous editions, Lecture XXIV. was the commencement of the 2d volume.]

proportion, and ever had been, and ever would be, the tranquillity and stability of the commonwealth. They insisted that they brought with them into this country the privileges of English freemen; and they defined and declared those privileges with a caution, sagacity, and precision that have not been surpassed by their descendants. Those rights were afterwards, in the year 1692, on the receipt of their new charter, reasserted and declared. It was their fundamental doctrine, that no tax, aid, or imposition whatever could rightfully be assessed or levied upon them without the act and consent of their own legislature; and that justice ought to be equally, impartially, freely, and promptly administered. The right of trial by jury, and the necessity of due proof preceding conviction, were claimed as undeniable rights; and it was further expressly ordained, that no person should suffer without express law, either in life, limb, liberty, good name, or estate; nor without being first brought to answer by due course and process of law. (a)

(a) Hazard's State Papers, vol. i. pp. 408, 487, edit. Philad. 1792; Hutchinson's Hist. of Massachusetts, vol. ii. p. 64; Revised Laws of Massachusetts, published in 1675; Baylie's Historical Memoir, vol. i. p. 229; Bancroft's Hist. vol. i. p. 452. It was a provision in the charters to the Virginian settlers, granted by James I., in 1606 and 1609, and in the charter to the colonists of Massachusetts in 1629, of the province of Maine in 1639, of Connecticut in 1662, of Rhode Island in 1663, of Maryland in 1632, of Carolina in 1663, and of Georgia in 1732, that they and their posterity should enjoy the same rights and liberties which Englishmen were entitled to at home. Such privileges were implied by law, without any express reservation. The like civil and religious privileges were conceded to New Jersey, by the proprietaries, in February, 1665. Bancroft's Hist. vol. ii. 316. In the free and liberal charter of Massachusetts of 1629, powers were granted to the whole body of the proprietors to make laws not repugnant to the laws of England. The colonists of New Plymouth assumed the necessary powers of government by an original compact among themselves, and which they subscribed before they landed on the rock of Plymouth; and which they had in contemplation before they embarked from Holland. Young's Chronicles of the Pilgrim Fathers, p. 95. All the New England colonies, on their first establishment, were pure democracies; none more so ever existed. The governments of Rhode Island, Connecticut, and New Haven were thus formed by voluntary compact. Under the first Massachusetts charter the legislative body was composed of the governor, assistants, and the whole freemen of the company in person. The first general court of delegates was in 1634. The freemen had become too numerous to assemble in a body, and Governor Winthrop directed that the towns should assemble in general court by deputies, to revise and make laws. The statute of 1636 declared, that the freemen of each town might choose, by papers, deputies to the general court. This was introducing voting by ballot. See Digest of Massachusetts Colony Laws, published in 1675; Winthrop's Hist. of New England, by Savage, vol. i. pp. 128, 185, 220; Drake's Hist. of Boston. For more than eighteen years the whole body of the

3

*The first act of the general assembly of the colony of Connecticut, in 1639, contained a declaration of rights in nearly the same language; (a) and among the early resolutions of the general assembly of the colony of New York, in 1691 and 1708, we meet with similar proofs of an enlightened sense of the provisions requisite for civil security. It was declared by them, (b)

male inhabitants of the old colony of Plymouth constituted the legislature. Bancroft's Hist. vol. i. p. 348. In 1636, the election of the governor and assistants by the freemen was declared to be annual, and, in 1638, the personal attendance of the freemen at the general court was deemed to be grievous, and each town was thenceforward to choose deputies. Brigham's edit. of Plymouth Colony Laws, 1836, pp. 36, 37, 63. And by statute, in 1671, Ibid. p. 258, if any freeman did not appear at election in person, or by proxy, he was for such neglect to be amerced. The free planters of Connecticut, in 1639, provided that the choice of officers was to be by ballot; and that if the general assembly or court was not at any time duly convened, the freemen might meet and hold the same, in person or by deputy. Chalmers says, that the introduction of representative government in Massachusetts was in violation of the charter of 1629; and this was the opinion of Sir George Treby, and other high legal authority in England. But though there was no express provision for it in the charter, it would seem to have been necessarily implied when the growth of the colony required it; and it was justified by the model of the English House of Commons, where the principle of representation was inherent and vital. The first assembly of Maryland, in 1635, consisted of the whole body of the freemen, and, in 1639, a representative assembly was established. Sparks's American Biography, N. S. vol. ix. Life of Governor Calvert.

(a) Trumbull's Hist. of Connecticut, vol i. p. 98; Laws of Connecticut, edit. Boston, 1672, edit. 1702, and edit. New London, 1715, by Timothy Green. The edition of 1702 I have not seen. The edition of 1672 was the first printed code. There was a code of laws compiled in 1650, and it was circulated in written copies read in each

town.

(b) Journal of the Assembly of the Colony of New York, vol. i. pp. 6, 224. The general assembly of the colony of New York passed an act on the 13th of May, 1691, declaratory of the rights and privileges of the people of the colony. It was declared that a session of the general assembly should be held annually, and that every freeholder within the province, and every freeman of a corporation, were entitled to vote for members of the assembly; that no freeman was to be deprived of any rights or liberties, or condemned, but by the judgment of his peers or the law of the land; that no tax of any kind, or on any pretence, should be levied upon the persons or estates of any of the subjects of the province, except by the act of the general assembly; that all trials were to be by a jury of twelve men, and in all capital and criminal cases there was to be a previous indictment or presentment by a grand inquest; and that the tenure of all lands was to be in free and common socage. This declaratory act or charter of privileges contained several other provisions, but it was repealed by the king in 1697. Bradford's edition of Colony Laws, 1719. There was a prior act of the same purport, and nearly in the same words, passed by the first general assembly of the province in 1683, under the administration of the Duke of York. It was styled "The charter of liberties and privileges, granted by his royal highness to the inhabitants of New York." App. No. 2, to the Revised Edition of the Laws of New York in 1813, vol. ii.

that the imprisonment of subjects without due commitment for legal cause, and prescribing and forcing them into banishment, and forcibly seizing their property, were illegal and arbitrary acts. It was held to be the unquestionable right of every freeman to have a perfect and entire property in his goods and estate; and that no money could be imposed or levied, without the consent of the general assembly. The erection of any court of judicature without the like consent, and exactions upon the administration of justice, were declared to be grievances. Testimonies of the

same honorable character are doubtless to be met with in the *4 records of other colonial legislatures. It was regarded * and

claimed by the general assemblies in all the colonies, as a branch of their sacred and indefeasible rights, that the exclusive power of taxation of the people of the colonies resided in their colonial legislatures, where representation of them only existed; and that the people were entitled to be secure in their persons, property, and privileges, and they could not lawfully be disturbed or affected in the enjoyment of either, without due process of law, and the judgment of their peers. (a) But we need not pursue our

(a) See, to this effect, in addition to the acts of Massachusetts, Connecticut, and New York, already mentioned, the declaratory act of the assembly of the Plymouth colony, in 1635, and also in 1658 and 1671. (Holmes's Annals, vol. i. p. 232; Baylie's Historical Memoir of the Colony of New Plymouth, vol. i. p. 229; Plymouth Colony Laws, edit. by Brigham, 1836, pp. 107, 241.) See, also, the declaration of their rights, by the assembly of Virginia, in 1624 and 1676; (Stith's Hist. of Virginia, p. 318; Chalmers's Annals, p. 64 ;) and of the assembly of Pennsylvania in 1682; and of the legislature of Maryland in 1639, and again in 1650; and of the assembly of Rhode Island in 1663; and of the proprietaries of Carolina in 1667; (Proud's Pennsylvania, vol. i. pp. 206, 208; Grahame's Hist. of the Colonies ;) and of the concessions and agreements of the proprietaries of New Jersey in 1664; and of the fundamental constitutions by the proprietaries of East New Jersey in 1683; and of the declaratory acts of the general assembly of East New Jersey in 1682 and 1698; and of the concessions and agreements of the proprietaries and planters of West New Jersey, and called the great charter of fundamentals, in 1676; and of the declaratory act of the general assembly of West Jersey, in 1681. (Leaming's and Spicer's Collections, edit. Philad. folio, 1757, pp. 11-26, 153-166, 235, 240, 370, 372, 382, 411; Smith's Hist. of New Jersey, 126, 270-274, App. No. 1, 2.) The West New Jersey colonists in 1676, introduced voting by ballot, universal suffrage, the right and obligation of instructions, universal eligibility to office, and abolished imprisonment for debt. All this was done under the auspices of William Penn, whose influence contributed to plant West New Jersey, and who was a joint assignee and trustee of an undivided portion of West Jersey, as well as a joint owner by purchase with other partners of East Jersey. The declaration of the general assembly of Virginia, in 1624, that the governor should not lay, levy, or employ any taxes or impositions upon the colony, except by authority of the general assembly, was the first example of the assertion of such a right; as that

researches on this point, for the best evidence that can be produced of the deep and universal sense of the value of our natural rights, and of the energy of the principles of the common law, are the memorials of the spirit which pervaded and animated every part of our * country, after the peace of 1763, when the *5 same parent power which had nourished and protected us attempted to abridge our immunities, and retard the progress of our rising greatness.

The House of Representatives in Massachusetts, the House of Assembly in New York, and the House of Burgesses in Virginia, took an early and distinguished part, upon the first promulgation of English measures of taxation, in the assertion of their rights as freeborn English subjects. (a) The claim to common-law rights soon became a topic of universal concern and national vindication. In October, 1765, a convention of delegates from nine colonies assembled at New York, and made and published a declaration of

house was the first popular representative body ever convened in America. Hening's Statutes, vol. i. pp. 118, 122; Story's Com. on the Const. vol. i. p. 26. The charter of the colony of Maryland, in 1632, was peculiarly liberal. It established an independent colonial legislation in the proprietary and the freemen or their deputies, and the crown stipulated never to levy any tax upon the inhabitants, and the inhabitants were to enjoy all the rights and privileges of English subjects. 1 Chalmers's Annals, pp. 202-205; 1 Hazard's Coll. p. 327. The first assembly of Maryland, in 1638, declared the great charter of England to be the measure of their liberties; and William Penn, in the preface to the plan of government prepared for Pennsylvania, in 1682, declared that any government is free to the people under it, where the laws rule, and the people are a party to those laws. Proud's Hist. of Pennsylvania, vol. ii. App. p. 7; Bacon's Laws, 1638, ch. 2.

(a) Minot's Hist. of Massachusetts, vol. ii. p. 175; Journals of Assembly of New York, vol. ii. pp. 769-780; Jefferson's Notes on Virginia, 189; Marshall's Life of Washington, vol. ii. p. 88, and Appendix, note No. 4; Wirt's Life of Patrick Henry, sec. 2. The assertion by the English House of Commons, in 1764, and prior to the Stamp Act, of a right to impose taxes upon the colonies, produced spirited and manly remonstrances to the King and Parliament from several of the colonial assemblies. Pitkin's Hist. of the United States, vol. i. pp. 165-169. The general assembly of the colony of New York, in October, 1764, not only asserted their exclusive right of taxing their constituents, but complained, at the same time, of the grievance of putting an end, by act of Parliament, to commercial intercourse between the colonies and foreign West India settlements. Journals of N. Y., Ibid. The Stamp Act was passed the 22d March, 1765, and this was the first measure of indirect taxation laid upon the colonies by the British Parliament for the mere purpose of revenue. The first resolutions of any of the colonial assemblies, after the passage of the Stamp Act, came from the house of burgesses of Virginia. They were introduced by Patrick Henry, in May, 1765, and asserted the right in the colonists of taxing themselves. Wirt's Life of Patrick Henry, sec. 2.