CHAPTER I CONSTITUTIONAL PRINCIPLES PROTECTING PERSONAL LIBERTIES AND PRIVATE RIGHTS AS EXPRESSED IN CONSTITUTIONAL DOCUMENTS FROM MAGNA CARTA TO THE UNITED STATES CONSTITUTIONS I. LIBERTY (a) GENERAL RIGHT TO; JURY TRIAL "No free man shall be taken or imprisoned or disseised, or outlawed, or exiled, or anyways destroyed; nor will we go upon him, nor will we send upon him, unless by the lawful judgment of his peers, or by the law of the land." "In future any one may leave the Kingdom and return at will. . . ." Wording identical with M. C. cap. 39, save that the very important words "Of his freehold or his liberties or his free customs" are added after the word "disseised." The words "Unless by due process of law" are used instead of "the legal judgment of his peers or the law of the land." "No mans life shall be taken away, no mans honour or good name shall be stayned, no mans person shall be arrested, restrayned, banished, dismembered, nor any wayes punished, no man shall be deprived of his wife or children, no mans goods or estaite shall be taken away from him, nor any way indammaged under colour of law or Countenance of Authoritie, unlesse it be by vertue or equitie of some expresse law of the Country waranting the same, established by a generall Court and sufficiently published, or in the case of the defect of a law in any parteculer case by the word of god. And in Capitall cases, or in cases concerning dismembring or banishment, according to that word to be judged by the Generall Court." “Every man of or within this Jurisdiction shall have free libertie, notwithstanding any civill power to remove both himselfe, and his familie at their pleasure out of the same, provided there be no legall impediment to the contrarie." "There shall never be any bond slaverie, villinage or Captivitie amongst us unles it be lawful Captives taken in just warres and such strangers as willingly selle themselves or are sold to us...." Virginia (June, 1776), (8) Declara tion of Independence (July, 1776) Mass. Decl. Ibid., XII U. S. Constitution (1787), III, 2 Ibid., Amt. Ibid., Amt. Ibid., Amt. Ibid., Amt. "That all men are by nature equally free and independent, and have certain inherent rights, of which when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." ". . . That no man be deprived of his liberty, except by the law of the land or the judgment of his peers." "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. . . "For depriving us in many cases of the benefits of trial by jury." "All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness." "... And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land." "And the legislature shall not make any law that shall subject any person to a capital or infamous punishment, excepting for the government of the army and navy, without trial by jury." "The Trial of all Crimes, except in cases of Impeachment, shall be by Jury. . . ." "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make Magna Petition of Mass. Decl. of Rights, XII U. S. Consti- Mass. Body of Liberties (1641) Clause 18 Habeas Corpus Act, 1679 Virginia rill of nights, Sec. 8 U. S. Consti- or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." (For State Constitutions, see Book III, §§ 10, 12, 13, 14, 130, 184.) (b) HABEAS CORPUS AND INDICTMENT "The right of inquest of life or limb shall be given gratis, and not denied." Substantially the same in the Magna Charta of Henry III, cap. 32. ". . . divers of your subjects have of late been imprisoned without any cause showed; and when, for their deliverance, they were brought before your justices, by your Majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your Majesty's special command . . .” "No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him. . . ." "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." (For State Constitutions, see Book III, §§ 125, 126.) "No mans person shall be restrained or imprisoned by any Authority whatsoever, before the law hath sentenced him thereto, If he can put in sufficient securitie, bayle or mainprise, for his appearance, and good behaviour in the meane time, unlesse it be in Crimes Capital, and Contempts in open Court, and in such cases where some expresse act of Court doth allow it." Provides, in substance, "that on complaint and request in writing by or on behalf of any person committed and charged with any crime . . any of the twelve judges, in vacation, upon viewing a copy of the warrant, or affidavit that a copy is denied, shall award a habeas corpus. . . returnable immediately. That the writ shall be returned and the prisoner brought up, within a limited time according to the distance, not exceeding in any case twenty days. . . . That no person once delivered by habeas corpus, shall be recommitted for the same offence, on penalty of £500." "That in all capital or criminal prosecutions, a man hath a right to demand the cause and nature of his accusation. . . .' "No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself. . . .” (For State Constitutions, see Book III, §§ 120, 127, 128.) Magna Mass. Body Clause XI (c) EXTENT OF BAIL AND PUNISHMENT "A Freeman shall only be amerced . . . after the manner of the offence . . . saving to him his contenement . . . a merchant saving his merchandise, and a villein saving his wainage; the amercement in all cases to be assessed by the oath of honest men of the neighbourhood.” "For bodilie punishments, we allow amongst us none that are inhuman, barbarouse, or cruel." That no "inhabitant . . . of England . . . shall or may be Corpus Act, sent prisoner into Scotland, Ireland, Jersey, Guernsey, Tangier or places beyond the seas within or without the dominions of his Majesty. . . .” "That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Copies the English Bill (10). "No magistrate or court of law shall demand excessive bail or sureties, impose excessive fines or inflict cruel or unusual punishments." "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (For State Constitutions, see Book III, §§ 121, 122, 123, 140, 141.) (d) TRIAL AND EVIDENCE "No man shall be twise sentenced by Civill Justice for one and the same Crime, Offence or Trespasse." "No man shall be forced by Torture to confesse any Crime against himselfe nor any other unlesse it be in some Capitall case where he is first fullie convicted by cleare and suffitient evidence to be guilty" (after which he may be tortured to obtain evidence against his confederates yet not with such "as be barbarous and inhuman"). "No man shall be put to death without the testimony of two or three witnesses or that which is equivalent thereunto." Forbids a second committal for the same offence. "... to be confronted with the accusers and witnesses, to call for evidence in his favour, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself. .." "No subject shall . . . be compelled to accuse, or furnish evidence against himself. And every subject shall have a right to produce all proofs that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his counsel, at his election. . . .” "Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." (For State Constitutions, see Book III, § 132, 137, 140.) Mass. Decl. of Rights, XXIV U. S. Constitution, 1, 9 (3) 1, 10, (1) Bill of (2) Virginia Mass. Decl. of Rights, XX XXV U. S. Constitution, III, 3, (1) III, 3, (2) Magna Cap. 40 (e) BILLS OF ATTAINDER "Laws made to punish for actions done before the existence of such laws, and which have not been declared crimes by preceding laws, are unjust, oppressive, and inconsistent with the fundamental principles of a free government." "No Bill of Attainder or ex post facto Law shall be passed." "No State shall . . . pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. (For State Constitutions, see Book III, §§ 138, 141.) (f) SUSPENDING LAWS "That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of Parliament, is illegal." is to the same effect but forbids the "dispensing with laws" and leaves out the clause about Parliament. "That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised." "The power of suspending the laws, or the execution of the laws ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for.” (For State Constitutions, see Book III, §§ 126, 392.) (g) TREASON "No subject ought, in any case, or in any time, to be declared guilty of treason or felony by the legislature." "Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. "The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood or Forfeiture except during the Life of the Person attainted." (For State Constitutions, see Book III, § 150.) II. LAW (a) COMMON LAW, JUDGES (The right to law, in criminal matters, has necessarily been shown above in connection with Liberty. This heading relates to general matters.) "... unless by the law of the land." (See I, above.), "To none will we sell, to none will we deny or delay right, or justice." |