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CHAPTER III.

THE RIGHTS OF PERSONS.

A "PERSON" in law is one who is entitled to present his claim of rights to a court of justice. His position in this respect is sometimes termed his "status." The rules of the ancient law were very strict, fixing "status" by an arbitrary standard. Of this, slavery is an instance. It is the tendency of modern law to fix one's position by contract rather than by rule, and to hold that the law should only interfere in case there is a want of capacity on the part of the individual to act or to contract.

The rights of persons are commonly divided into absolute and relative. Absolute rights are such as appertain to a person considered independently of others. They are, in the common law, the right of personal security, the right of personal liberty, and the right of private property. A violation of either of these rights constitutes a legal wrong. The word "wrong," as here used, does not involve moral obliquity, but simply means an unlawful interference with a legal right.

"Duty" is a correlative word to "right." If A. has a legal right, B. is under a legal duty not to interfere with that right. “There is no right without a duty; no duty without a right." It would be possible, accordingly, to frame a system of law from the point of view of either duties or rights; but the latter is the more simple and convenient arrangement.

Before discussing the subject of personal rights specifically, it will be useful to refer to some of the great state papers or statutes in England by which such rights have been emphatically affirmed or secured.

Magna Charta, or the Great Charter, was wrested from King John by his barons, at Runnymede, June 15, 1215. It is only necessary at present to refer to one of its important provisions, which is as follows: "No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or anywise destroyed; nor will we go upon him nor send upon him but by the lawful judg

1 This was a favorite expression of the late Dr. Francis Lieber. He was fond of

the Latin form, Nullum jus sine officio; nullum officium sine jure.

ment of his peers or by the law of the land. To none will we sell, to none will we deny or delay, right or justice." 1 The technical expressions, "judgment of his peers" and "law of the land" were held at an early day to mean in criminal cases (of a grave nature, viz. felonies) indictment by a grand jury, and trial by a petit or petty jury; and in civil cases, trial by jury. A grand jury by the common law consists of twenty-three persons or one less than two full juries, a majority of whom may find an indictment. An indictment is a written accusation presented under oath to the proper court. It is the result of an inquiry into the question whether there is a sufficient probability that the accused has committed a crime, to justify a trial. It is a legal device designed to prevent, as far as possible, the trial of frivolous and unfounded charges of crime. The proceeding before the grand jury is ex parte (evidence for the state only being heard). The indictment having been found, the trial of the charge belongs to the so-called petty jury, consisting of twelve men, and is presided over by a judge. The conclusion or verdict of the jury must be unanimous. This provision of Magna Charta does not interfere with the trial of prisoners charged with minor offences, termed misdemeanors, on the formal suggestion of a prosecuting officer, such as the Attorney-General, without an indictment. This method of proceeding is termed an information.

These theories of Magna Charta have been largely adopted in the United States and form a part of our system of national justice, as secured in one of the Amendments to the United States Constitution.2

The necessity of unanimity on the part of the jury is so fully recognized in this country that it has been decided in one State that a prisoner on trial for a capital offence cannot legally waive a trial by twelve jurymen, and that if he goes through the form of waiver and is convicted by eleven jurymen, the judgment will be reversed by the appellate court.3 (a)

In civil cases, trial by jury was secured by the Great Charter in the common-law courts, but its provisions did not extend to the courts of equity, nor to the ecclesiastical courts or courts of admiralty where trials are had before a judge alone.1

1 1 Stubbs' Constit. Hist. of England, § 155, p. 537.

2 Art. V. of Amendments.

(a) But a State statute may confer upon the accused the right to waive a trial by jury, and to elect to be tried by the court, and also give the court the power to try the accused in such a case. If after such

8 Cancernie v. People, 18 N. Y. 128. 4 The history of the document itself is somewhat interesting. It can be traced

a trial he is found guilty and sentenced to death, the Fourteenth Amendment is not thereby violated. "Due process of law" refers to the law of the land in each State. Hallinger v. Davis, 146 U. S. 314.

The Petition of Right was a statute enacted at the session of Parliament, commencing March 17, 1627 (3 Car. I.). Though called a petition it was in fact a law. It contains eleven sections. The first nine sections consist of a recital of abuses in the administration of public law, violations of the Great Charter, etc. The tenth section then enacts that there shall be no compulsory loan exacted from subjects without consent of Parliament; that the people shall not be burthened with soldiers or mariners; that commissions to try persons by martial law in time of peace shall be revoked, and shall not be granted in the future. The principles of the Great Charter are also re-affirmed. It is not the office of this statute to make new provisions, but to restore to public recognition existing provisions which in the lapse of time had come to be disregarded by the government.

The Habeas Corpus Act was enacted in the year 1679.1 It did not originate the writ of habeas corpus, but made it more effective, and a more sure safeguard of liberty. The writ itself was no doubt based on the great clause of Magna Charta already quoted. That instrument having declared that a person should not be deprived of his liberty without due process of law, this writ was devised at a very early day to relieve one who was deprived of his liberty in opposition to the statute. But it was not sufficiently effective in its provisions, and if it appeared in the course of an inquiry under it that the prisoner was detained by the order of the King, or of the Privy Council, the judges would look no further, and would refuse to grant a discharge. The statute of Charles II. required the judges, in the case of persons committed or charged with crime, to issue the writ in vacation as well as in term time, and to have it made returnable immediately, and it provided for a judicial examination of the warrant on which the prisoner was held, for the purpose of allowing him to give bail in a proper case, and with a view to his discharge if there were no legal grounds of detention. There were severe penalties imposed upon officers and keepers who should interfere with the efficient working of the writ, and also upon any one who should re-commit the prisoner, if discharged, for the same offence. These provisions made the writ truly efficacious, and the bulwark of liberty. The general provisions of this statute are adopted by re-enactment in the various

to Archbishop Laud, and is believed to have been taken from him at his impeachment, by Warner, Bishop of Rochester. It passed to his executors, who gave it to Bishop Burnet. He says, History of his Own Time, "It is now in my hands, and came very fairly to me." Sir William

Blackstone saw it in the hands of Burnet's executors, and published a copy of it in Oxford, 1758. It is now in the British Museum. A facsimile may be found in the work published by the English government, called "Statutes of the Realm." 1 31 Car. II. c. 2.

States of this country. The original statute was, however, circumscribed in its effect in one respect, being confined to persons charged with crime. By later statutes in England, its provisions have been extended to other cases of arrest and detention, and there are corresponding statutes in this country.1

The English Parliament may, in unquiet times, suspend the privilege of habeas corpus, in which case one imprisoned has no means of legally inquiring whether the confinement be illegal or not. In this country there is a constitutional provision on this subject: "The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it." 2

The Bill of Rights, which was enacted in 1689,3 is very important in American law, since a number of provisions are copied from it verbatim in the United States and State constitutions. The following clauses may be referred to: The right of the subject to petition the king; the unlawfulness of raising or keeping a standing army within the kingdom in time of peace, unless with consent of Parliament; the right of subjects to have arms for their defence; the rule that freedom of speech, and debates or proceedings in Parliament, are not to be impeached or questioned in any court or place out of Parliament; that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

There is an important advantage obtained by copying into our constitutions the very words of English state papers, because of the construction which had been previously put upon the words by the courts. Such construction may properly be regarded as becoming a part of the constitutional provision itself.

The Act of Settlement was a statute enacted in the Parliament summoned Feb. 6, 1700. Its main object was to provide for the succession to the throne after the death of William III, and the Princess Anne of Denmark (subsequently Queen Anne), the Princess Sophia, Electress of Hanover, and the heirs of her body, being protestants. There are in this statute several provisions of general interest. One is that no person who has an office or place of profit under a king, or receives a pension from the crown, shall be capable of serving as a member of the House of Commons. Another is that the commissions of judges are to be made during

1 There are several writs of habeas corpus known to the old law, the object being in each case to bring a person before a court. They are designated respectively by appropriate Latin terms. The famous writ now referred to is habeas corpus ad subji

ciendum. The last word directs submission
to such order as the court may make.
2 Const. U. S. Art. I. § 9.
81 Wm. & Mary, Sess. 2, c. 2.
4 12 & 13 Wm. III. c. 2.

good behavior, and their salaries ascertained and established, but that upon the address of both Houses of Parliament it may be lawful to remove them; and that no pardon under the great seal shall be pleadable to an impeachment by the Commons in Parliament. These provisions had been suggested by great abuses in legislation and in the administration of justice, and were designed for their correction.

There was an imperfection in this statute, since there was no provision preventing the death of the king from putting an end to the office of a judge. It was a rule of the English law that the king was the "fountain of justice." One of the inferences from this proposition was that when the king died all of the judges went out of office. All courts were discontinued. To remedy this evil the Tenure of Judicial Office Act was passed.1 It thus happens that the tenure of office of a judge is now during good behavior, notwithstanding the demise of the king, unless he be removed in accordance with an address or formal vote of both Houses of Parliament. The English judges are more dependent upon Parliament than the judges of the Federal Courts are upon Congress, since in the latter case a judge can only be removed by impeachment, which is a species of trial for an offence, while an address in England is nothing more than a vote of legislative bodies.

The statutes above referred to, with others, and with general rules of public law, make up the English Constitution. As they originate with Parliament, they do not bind it, but may at any time be repealed. Similar provisions in American Constitutions may be made to serve not merely as a check upon the executive, as in England, but also on the legislature and the judiciary. That branch of constitutional law which we term "constitutional limitations," has no existence in England, and from the nature of the case cannot have, while the present Parliamentary system continues.

These great principles of the English Constitution came to be accepted law in a number of the colonies before the Revolution. Connecticut adopted Magna Charta as early as 1639; New York, in 1691 and 1708. It was maintained firmly that taxes were not to be levied without the consent of the legislative department of the colonies. It was a prevalent view in England that no Act of Parliament was binding upon the colonies, unless they were specially named in the Act. If named, they were subject to the legislation of England, as being a portion of the country. The colonies so far as they were left to themselves legislated in their own way, not interfering with the prerogative of the king or im1 1 Geo. III. c. 23, a. D. 1760.

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