Gambar halaman

10. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

11. 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."

12. No State shall make or enforce any law which shall abridge the privilges or immunities of citizens of the United States, por 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.3

13. The right of the citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude.

Here are given only the provisions of thc Federal constitution, but they either control the action of the States, as well as of the United States, or similar provisions have been incorporated into the bills of rights of the different State constitutions, so that the foregoing may be considered to be the chief limitations in the United States upon legislative interference with natural rights. Where the States are not expressly named in connection with any clause of the United States constitution, the provision is construed by the best authorities to apply solely to the United States. But all of these limitations have been repeated in the State bill of rights, with some little but unimportant change of phraseology, together with other more minute limitations. § 5. Table of private rights. — Police power, being the imposition of restrictions and burdens npou the natural and other private rights of individuals, it becomes necessary to tabulate and classify these rights, and in presenting for discussion the field and scope for the exercise of police power, the subject-matter will be subdivided according to the rights upon which the restrictions and burdens are imposed. The following is


1 U.S. Const. Amend., art. VIII. ? U.S. Const., art. I., $ 9.

U.S. Const., Amend. art. XIV. • U.S. Const. Amend., art. XV.

6 Barron o. Baltimore, 7 Pet. 243; Livingston's Lessee o. Moore, Ib. 469; Fox o. Ohio, 5 How. 410; Smith o. Maryland, 18 How. 71; Parvear v. Com., 5 Wall. 475; Twitchell o. Com., 7 Wall. 321 ; Com. v. Hitchings, 5 Gray, 482; Bigelowo. Bigelow, 120 Mass. 300, etc.


(a.) Personal rights.
1. Personal security - Life.

- Limb.
- Health.

- Reputation.
2. Personal liberty.
3. Private property — Real.

- Personal.
(6.) Relative Rights
arising between 1. Husband and wife.

2. Parent and child.
3. Guardian and ward.

4. Master and servant. (c.) Statutory Rights

embracing all those rights which rest upon leg

islative grant. § 5



SECTION 10. Security to life.

11. Capital punishment.
12. Security to limb and body.
12a. Corporal punishment.
126. Personal chastisement in certain relations.
13. Battery in self-defense.
14. Abortion.
15. Compulsory submission to surgical and medical treatment.
16. Security to health – Legalized nuisances.
17. Security to reputation - Privileged communications.
17a. Privilege of legislators.
176. Privilege in judicial proceedings.
17c. Criticism of officers and candidates for office.
17d. Publications through the press.

18. Security to reputation — Malicious prosecution.
18a. Advice of counsel — How far a defense.

§ 10. Security to Life.—The legal guaranty of the protection of life is the highest possession of man. It constitutes the condition precedent to the enjoyment of all other rights. A man's life includes all that is certain and real in human experience, and since its extinction means the deprivation of all temporal rights, the loss of his own personality, so far as this world is concerned, the cause or motive for its destruction must be very urgent, and of the highest consideration, in order to constitute a sufficient justification. If there be any valid ground of justification in the taking of human life, it can only rest upon its necessity as a means of protection to the community against the perpetration of dangerous and terrible crimes by the person whose life is to be forfeited. When a person commits a crime, that is, trespasses upon the rights of his fellow-men, he subjects his own rights to the possibility of forfeiture, including even the forfeiture of life itself; and the only consideration, independently of constitutional limitations, being, whether the given forfeiture, by exerting a deterrent influence, will furnish the necessary protection against future infringements of the same rights. That is, of course, only a question of expedience addressed to the wise discretion of legislators, and does not concern the courts. Except as a punishment for crime, no man's life can be destroyed, not even with his consent. Suicide, itself, is held to be a crime, and one who assists another in the commission of suicide is himself guilty of a crime. This rule of the common law is in apparent contradiction with the maxim of the common law, which in every other case finds ready acquiescence, viz. : an injury (i. e. a legal wrong) is never committed against one who voluntarily accepts it, volenti non fit injuria. If a crime be in every case a' trespass upon the rights of others 2 suicide is not

not a crime, and it would not be a crime to assist a

" to shufile off this mortal coil." But the dread of the uncertainties of the life beyond the grave so generally “m:kes us rather bear those ills we have, than fly to others that we know not of,” that we instinctively consider suicide to be the act of a deranged mind; and on the hypothesis that no sane man ever commits suicide the state may very properly interfere to prevent self-destruction, and to punish those who have given aid to the unfortunate man in his attack upon himself, or who have with his consent, or by his direction, killed a human being. But if we hold suicide to be in any case the act of a sane man, I cannot see on what legal grounds he can be prevented from taking his own life. It would be absurd to speak of a man being under a legal obligation to society to live as long as possible. The immorality of the act does not make it a crime, and since it is


[ocr errors]


1 4 Bl. Com. 188, 189. 2 See post, $ 68. 3 See post, $ 68.


pot a trespass upon the rights of any one, it is not an act that the State can prohibit. But even if suicide be declared a crime, the act has carried the criminal beyond the jurisdiction of the criminal courts, and consequently no punishment could be inflicted on him. The common law in providing that the body of a suicide should be buried at the cross-roads with a stake driven through it, and that his property shall be forfeited to the crown, violated the fundamental principle of constitutional law that no man can be condemned and punished for an offense, except after a fair trial by a court of competent jurisdiction, in which the accused is given an opportunity to be heard in his own defense. It is somewhat different where one man kills another at the latter's request. If it be held that the man who makes the request is sane, the killing is no more a crime than if it was done by the unfortunate man himself. But in consideration of the difficulty in proving the request, and the frequent opportunities for felonious murders the allowance of such deeds would afford, the State can very properly prohibit the killing of one man by another at the latter's request. These considerations would justify this exercise of police power, and in only one case is it supposed that any fair reason may be given for allowing it, and that is, where one is suffering from an incurable and painful disease. If the painful sufferer, with no prospect of a re

. covery or even temporary relief from physical agony, instead of praying to God for a deliverance, should determine to secure his own release, and to request the aid of a physician in the act, the justification of the act on legal grounds may not be so difficult. But even in such a case public, if not religious, considerations would justify a prohibition of the homicide.

§ 11. Capital punishment. — That capital punishment may be imposed for the commission of crimes against the life of another, and crimes against those rights of personal secur

« SebelumnyaLanjutkan »