tion of others; and without such an agreement the surrender is void." 1 In other States also the social compact is recognized. Thus, the Constitutions of five States declare that some rights cannot be surrendered by men when they enter into a state of society, but are inalienable, because no equivalent can be given for them.2 As, for example, rights of conscience, and other natural rights.* This social compact notion hardly appears in the Federal Constitution except, possibly, by inference, in the Tenth Amendment. This says that "The powers not delegated to the United States . . . by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people." But the second paragraph of the Declaration of Independence states that “All men are endowed by their creator with certain inalienable rights.. That to secure these rights governments are instituted.'. . . This, and not Rousseau directly, is doubtless the prototype of the State provisions. ... § 5. Construction of Bill of Rights. By the Constitutions of most States it is declared that this enumeration of rights shall not be construed to impair or deny others retained by the people.5 This section is, of course, founded on the Ninth Amendment to the Federal Constitution, the wording being almost identical, though the phrase "deny or disparage" is used instead of "impair or deny." And in many States the Constitution declares that a frequent recurrence to fundamental principles is necessary to preserve the blessings of liberty." 'N. H. 1, 3. 2 N. H. 1, 4; Ala. 1, 1. 3 N. H. 1, 4. See also § 182. • Ill. 2, 20; Mass. 1, 18; N. C. 1, 29; N. H. 1, 38; S. D. 6, 27; Utah 1, 27; (See also §§ 12, 13, 14, 15), Va., Va. 1, 15; Vt. 1, 18; Wash. 1, 32; W. Va. 5 Ala. 1, 36; Ark. 2, 29; Cal. 1, 23; Col. 2, 28; Fla. Decln. Rts. 24; Ga. 1, 5, 2; Ida. 1, 21; 1, 25; Io. 1, 25; Kan. B. Rts. 20; La. 15; Me. 1, 24; Md. Decln. Rts. 45; Minn. 1, 16; Miss. 1, 32; Mo. 2, 32; Mon. 3, 30; Neb. 1, 20; Nev. 1, 20; N. C. 1,37; N. D. 24; N. J. 1, 21; O. 1, 20; Okla. 2, 33; Ore. 1, 33; R. I. 1, 23; S. C. 1, 41; Utah W. Va. 3, 20; Wis. 1, 22. This reference to fundamental principles is made in several, both of older and of the newer, State Constitutions, and always in a more or less general phrase. Thus in Idaho (3, 24) "Sobriety, morality and the purity of the home" are the words used. In Wyoming (7, 20) "Health and morality." It has not seemed necessary to print these phrases in full. 1 6. Individual Rights. -It is declared that the object of government is to protect and maintain individual rights, in the Constitution of Washington, and in both Washington and Utah it is declared that a frequent recurrence to fundamental principles, etc., is "essential to the security of individual right." This definite recognition of the claims of the individual against socialistic government is a decided novelty, though a Federal judge in Texas has refused to naturalize a socialist on the ground that his doctrine was not compatible with the Federal Constitution. In Oklahoma, on the other hand, "the right of the State to engage in any occupation or business for public purposes shall not be denied or prohibited, except that the State shall not engage in agriculture for any other than educational and scientific purposes and for the support of its penal, charitable, and educational institutions. " 3 The question whether a State could under the Federal Constitution was debated, but not decided, in the South Carolina liquor case; and municipal coalyards, etc., have usually but not always been held unconstitutional under State constitutions." 1 See last note for citations. 2 Ex parte Sauer, 81 Fed. Rep. 355. 3 Okla. 2, 31. 4 199 U. S. 437. 5 4 Opinion of Justices, 182 Mass. 605. CHAPTER I BILL OF RIGHTS: CIVIL NOTE. This division of the Bill of Rights into civil and criminal is purely one of convenience, and has no precedent, either in the statute of William and Mary or in the various State Constitutions, where those rights which we have termed civil and those which relate to criminal proceedings are often treated in the same paragraph, as, notably, the great clause 39 Magna Carta. See § 130. ARTICLE 1. NATURAL RIGHTS § 10. Freedom.'-The Constitutions of many States have a provision that men are free. Thus, that all men are born free and independent; that they are by nature free and independent; 3 that they are equally free and independent; that they are born equally free and independent; that they are by nature equally free and independent." 4 5 "The inhabitants of this State are not controllable by any other laws than those to which they or their representative body have given their consent." 7 were free men as the word is used in 1 Compare also §§ 12, 30. The great 000 registered population. Villeins principles of freedom, both of body and of labor or trade, antedate Magna Carta itself; a month before Runnymede, John granted to the baronies of London the right to elect their Mayor; and the right to liberty is implied in several provisions of the Magna Carta of John ("The City of London shall have all its ancient liberties and free customs as well by land as by water: furthermore we will and grant that all other cities and boroughs, and towns and forts shall have all their liberties and free customs."— Cap. 13), but more expressly stated in that of Henry III., cap. 29: "No man . . . shall be disseized of his liberties or free customs," etc. There were 25,000 slaves numbered in the Domesday book out of about 300, 1, 1; 1; Cal. 1, 1; Fla. Decln. Rts. 1; Ida. Ill. 2, 1; Io. 1, 1; Ky. 1; Nev. 1, N. J. 1, 1; O. 1, 1. Ala. 1, 1. 5 Ark. 2, 2; Me. 1, 1; Mon. 3, 3; Neb. 1, 1; N. H. 1, 1; Pa. 1, 1; S. D. 6, 1; Vt. 1, 1; Wis. 1, 1. N. D. 1; Va. 1, 1; W. Va. 3, 1. 7 N. H. 1, 12. So, many States have preambles resembling the United States Constitution (mentioning liberty, justice, etc.).1 6 7 5 § 11. Equality.2- The Constitutions of most States declare this principle. Thus, that men are born equal,3 (and this seems to be implied in other States); that they are by nature equal; that they are equal before the law; (and this seems implied in the Constitutions of seven other States); that all men have equal rights when they form a social compact; that "no person shall be denied the equal protection of the laws"; that all laws should be made for the good of the whole; and the burdens of the State ought to be fairly distributed among its citizens.10 9 § 12. Life and Liberty." - The Constitutions of most of the States declare that all men have a natural, inherent, and inalienable right to enjoy and defend life and liberty, and (in all of these except Missouri) to the pursuit of happiness. 12 (The same may be implied in other States from the provisions of §§ 10, 71, 184.) And in most of these States, also, that they have such natural right to obtain safety. 13 § 13. Property. In more than half the States the Constitu 1 Ala., Ida., Ky., La., Mon., N. D., N. Y., S. D., Utah, Wy. 2 Equality is first mentioned in the Virginia Bill of Rights, § 1: "By nature equally free and independent," and in the Declaration of Independence, "All men are created equal." It is no part of the English Constitution, except as freemen have equal rights at law. This legal (but neither political nor social) equality was re-established in England as early as Henry II. (II. Taylor, 3), and was clearly implied in John's Magna Carta, caps. 39, 40; and the great statute of Westminster I (1275). "Common right shall be done to rich and poor alike without respect to persons." a Ind. 1, 1; Mass. 1, 1; Me. 1, 1; Neb. 1, 1; N. C. 1, 1; N. H. 1, 1; S. C. 1, 1; Vt. 1, 1. Ark. 2, 2; Mon. 3, 3; Pa. 1, 1; S. D. 6, 1; Wis. 1, 1; Wy. 1, 2. See also §§ 10, 20, and 184. Ida. 1, 1; Io. 1, 1; Ky. 1; Nev. 1, 1. 7 Ala. 1, 1; Ga. 1, 1, 2; Kan. B. of Rts. 1; 0. 1, 2; Va. 1, 1; W. Va. 3, 1; Wy. 1, 3. See §§ 10, 12, 20, 184. 8 Ct. 1, 1; Ky. 3; N. M.* 1851, July 12, § 2; Ore. 1, 1; Tex. 1, 3. 9 S. C. 1, 5. 10 R. I. 1, 2. 11 Inalienable rights are based on the social compact theory; but have no higher standing than the Constitution at law. The word is not in the Declaration of Independence. 12 Ala. 1, 1; Ariz.* Preamble B. Rts.; Ark. 2, 2; Cal. 1,1; Col. 2, 3; Del. Preamble; Fla. Decln. Rts. 1; Ida. 1, 1; Ill. 2, 1; Ind. 1, 1 Io. 1, 1; Kan. Bill of Rts. 1; Ky. 1; La. 1; Mass. 1, 1; Me. 1, 1; Mo. 2, 4; Mon. 3, 3; Neb. 1, 1; Nev. 1, 1; N. O. 1, 1; N D. 1; N. H. 1, 2; N. J. 1, 1; O. 1, 1; Okla. 2, 2; Pa. 1, 1; S. C. 1, 1; S. D. 6, 1; Utah 1, 1; Va. 1, 1; Vt. 1, 1; W. Va. 3, 1; Wis. 1, 1; Wy. 1, 2. 13 Cal., Col., Fla., Ida., Io., Ky., Mass., Me., Mon., Nev., N. D., N. J., O., S. C., S. D., Va., Vt., W. Va.; as cited in § 12. 14 The property right is recognized in Magna Carta (cap. 28. No constable, etc., shall take corn or other chattels of any man unless he presently give him money for it, etc.; and see also 1 tion declares expressly that all men have a natural right to acquire, possess, and protect property 1 (it seems the right of property is also recognized in other States by the provisions of § 183,2 and compare also § 90); but in three, only that all men have such right to the enjoyment of the fruits of their own labor. So, the Constitutions of other States declare that the right of property is "before and higher than any constitutional sanction." § 14. Rights to Labor or Trade. - "Every citizen of this State shall be free to obtain employment wherever possible, and any person or corporation maliciously interfering or hindering in any way any citizen from obtaining or enjoying employment already obtained from any other corporation or persons is guilty of a misdemeanor." 5 The rights of labor shall have just protection through laws calculated to secure to the laborer proper rewards for his services and to promote the industrial welfare of the State." No law shall be passed fixing the price of manual labor." These provisions are novel and interesting, but may carry the courts further than the Legislature intended; for instance, the first might make unlawful the sympathetic strike, or any strike against union or non-union labor. The right to one's free liberties or customs is, however, guaranteed in Magna Carta itself. § 15. Reputation. In four States the Constitution declares that men have a natural right to acquire, possess, and protect reputation. 8 9 § 16. Special or Exclusive Privileges. - The Constitutions of many States prohibit to the Legislature any grant of special privi caps. 30, 31, 39. No man shall be disseised of his freehold); but the word "property" is first used in the Va. B. Rts. The Declaration of Independence does not mention it at all. The Fed. Const. only in the 14th Amt. (See also 130 and Art. 9, Eminent Domain.) Ark. 2, 2; Ariz. Preamble B. Rts.; Cal. 1, 1; Col. 2, 3; Del. Preamble; Fla. Decln. of Rts.; Ida. 1, 1; Io. 1, 1; Ky. 1; Mass. 1, 1; Me. 1, 1; Mon. 3, 3; Nev. 1, 1; N. D. 1; N. H. 1, 2; N. J. 1, 1; O. 1, 1; Pa. 1, 1; S. C. 1, 1; S. D. 6, 1; Utah 1, 1; Va. 1, 1; Vt. 1, 1; W. Va. 3, 1. Ark. 2, 22; Ky. 13, 3; and see §§ 90, 130. "Higher" is impossible. 5 N. D. 23; Utah 12, 19. Mon. 1, 22; Wy. 1, 22. 7 La. 51. See Art. 45 for the new New York provision as to public work. 8 Ark. 2, 2; Del. Preamble; N. D. 1; Pa. 1, 1. Blackstone mentions this as a natural right; but it appears in no other American or English Constitutional document. The usual provision is that such privileges may not be granted by special act; and compare §§ 20, 21, 392, 394, 395 (15), and Arts. 50 and 60, and 2 Ala. 1, 35; Ga. 1, 1, 2; Ill. 2, 1; see U. S. Constitution 1, 9; Va. B. Ky. 4; Mo. 2, 4. N. C. 1, 1; Mo. 2, 4; Okla. 2. 2. Rts. 4. There is nothing of this kind in the English Constitution. |