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The constitutional guaranties are generally unqualified, and a strict construction of them would prohibit all limitations upon liberty, if any other meaning but the limited one here presented were given to the word. But these guaranties are to be liberally construed, so that the object of them may be fully attained. They do not prohibit the exercise of police power in restraint of licentious trespass upon the rights of others, but the restrictive measures must be kept within these limits. “ Powers, which can be justified only on this specific ground (that they are police regulations), and which would otherwise be clearly prohibited by the constitution, can be such only as are so clearly necessary to the safety, comfort and well-being of society, or so imperatively required by the public necessity, as to lead to the rational and satisfactory conclusion that the framers of the constitution could not, as men of ordinary prudence and foresight have intended, to prohibit their exercise in the particular case, notwithstanding the language of the prohibition would otherwise include it.” 1

The restrictions upon personal liberty, permissible under these constitutional limitations, are either of a public or private nature. In consequence of the mental and physical disabilities of certain classes, in the law of domestic relations, their liberty is more or less subjected to restraint, the motive being their own benefit. These restraints are of a private nature, imposed under the law by private persons who stand in domestic relation to those whose liberty is restrained. This subject will be discussed in a subsequent connection.? In this connection we are only concerned with those restraints which are of a public nature, i.e., those which are imposed by government. They may be subdivided under the following headings: 1. The police control of the criminal classes. 2. The police control of dangerous classes, other than by criminal prosecutions. 3. The regulation of domicile and citizenship. 4. Police control of morality and religion. 5. Police regulation of the freedom of speech and of the press. 6. Police regulation of trades and professions.


1 Christiancy, J., in People v. Jackson & Mich. Plank Road Co., 9 Mich. 285. ? See post, ch. 12, 13, 14, and $$ 149–178.

§ 30



SECTION 31. The effect of crime on the rights of the criminal.

31a. Due process of law.
316. Bills of attainder.
31c. Ex post facto laro.
32. Preliminary confinement to answer for a crime.
33. What constitutes a lawful arrest.
33a. Arrest without warrant.

34. The trial of the accused.
34a. The trlal must be speedy.
346. The trial must be public.
34c. Accused entitled to counsel.
34d. Indictment by grand jury or by information.
34e. The plea of defendant.
344. Trial by jury – Legal jeopardy.

35. Control over criminals in the penitentiary.
35a. Convict lease system.

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§ 31. The effect of crime on the rights of the criminal. - The commission of crime, in the discretion of the government, subjects all rights of the criminal to the possibility of forfeiture. Life, liberty, political rights, statutory rights, relative rights, all or any of them may be forfeited by the State, in punishment of a crime. When a man commits a crime he forfeits to a greater or less extent his right of immunity from harm. The forfeiture for crime is usually confined to life, liberty and property, and political rights, although all rights in the wisdom of the legislature may be subjected to forfeiture, and the forfeiture of liberty is the most common.

§ 31a. Due process of law.— But the forfeiture of rights is limited and controlled by constitutional restrictions, and it


may be stated as a general proposition, that such a forfeiture, as a punishment for crime, can only be effected after a judicial examination and a conviction of the crime charged. In the Magna Charta, in the charter of Henry III., in the Petition of Right, in the Bill of Rights, in England, and in this country in all the constitutions, both State and national, it is substantially provided that no man shall be deprived of his life, liberty, or property, unless by the judgment of his peers or the law of the land. In some State constitutions, the clause “ without due process of law” is employed in the place of “the judgment of his peers or the law of the land ;” but the practical effect is the same in all cases, whatever may be the exact phraseology of this constitutional provision. Perhaps the scope of the limitation cannot be better explained than by the words of Mr. Webster: “ By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not therefore to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeitures in all possible forms, would be the law of the land. Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the legislature. There would be no general permanent law for courts to administer or men to live under. The administration of justice would be an empty form, an idle ceremony. Judges would sit to exe

Cooley Const. Lim. *352, *353.

riages; professors and teachers of educational institutions, etc. Although the State court, as it was then constituted, did not hesitate to pronounce these provisions valid, the Supreme Court of the United States has declared them void as being in violation of the national constitution, which prohibits the enactment of bills of attainder by the States.

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§ 31c. Ex post facto laws.- Another constitutional provision, intended to furnish to individual liberty ample protection against the exercise of arbitrary power, prohibits the enactment of ex post facto laws by Congress as well as by the State legislatures. The literal meaning of the prohibition is that no law can be passed which will apply to and change the legal character of an act already done. But at a very early day in the history of the Constitution, the clause was given a more technical and narrow construction, which has ever since limited the application of the provision. In the leading case,Judge Chase explains the meaning of the term ex post facto in the following language: “ The prohibition in the letter is not to pass any law concerning or after the fact; but the plain and obvious meaning

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i Cummings v. Missouri, 4 Wall. 277; 8. c. State v. Cummings, 36 Mo. 263. The constitutional provision was likewise upheld in the following cases: State v. Garesche, 36 Mo. 256, in its application to an attorney; State v. Bernoudy, 36 Mo. 279, in the case of the recorder of St. Louis. In State v. Adams, 44 Mo. 570, after the Cummings Case had been decided by the Supreme Court of the United States against the State, and after a'so a change in the personnel of the State court, a legislative act, which declared the Board of Curators of St. Charles College deprived of their office, for failure to take the oath of loyalty, was held to be void as being a bill of attainder. A statute of this kind was likewise passed by the legislature of West Virginia, and although sustained at first by the Supreme Court of the State (Beirne v. Brown, 4 W. Va. 72; Pierce o. Karskadon, 4 W. Va. 234), it was subsequently held by the Supreme Court of the State, and of the United States, that the act was unconstitutional. Kyle v. Jenkins, 6 W. Va. 371; Lynch v. Hoffman, 7 W. Va. 563; Pearce v. Kerskadon, 16 Wall. 234.

3 U. S. Const., art. I., $$ 9 and 10. • Calder v. Bull, 3 Dall. 386, 390.


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