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effectual of its provisions, were to be found in the original constitution of 1777, as it was digested by some mastet statesmen, in the midst of the tempest of war and invasion. It was declared a that no authority should be exercised over the people or members of this state, on any pretence whatever, but such as should be derived from, and granted by them; and that trial by jury, as formerly used, should remain inviolate for ever; and that no bills of attainder should be passed, and no new courts instituted, but such as should proceed according to the course of the common law; and that no member of the state should be disfranchised, or deprived of any of his rights or privileges under the constitution, unless by the law of the land, or the judgment of his peers. Several of the early state constitutions had no formal bill of rights inserted in them; and experience teaches us, that the most solid basis of public safety, and the most certain assurance of the uninterrupted enjoyment of our personal rights and liberties, consists, not so much in bills of rights, as in the skilful organization of the government, and its aptitude, by means of its structure and genius, and the spirit of the people which pervades it, to produce wise laws, and a just, firm, and intelligent administration of justice.
I shall devote the remainder of the present lecture to examine more particularly the right of personal security and personal liberty, and postpone the consideration of the right of private property, until we arrive at another branch of our inquiries.
with the fraudulent design of avoiding the payment of debt, or the discharge of a knowo duty, as the relief of bail or security. It is declared in the constitution of Ohio, that “every association of persons, being regularly formed, and baving given themselves a dame, may, on application to the legislature, be entitled to letters of incorporatiod to enable them to hold estates, real and personal, for the support of their schools academies, colleges, universities, and other purposes.” The provision is too indefinitely expressed, and relates to a case of ordinary legislative discretion, and if literally carried into execution, it would be produc, tive of great inconvenience. It does not seem to be deserving of a place among “ the essential principles of liberty and free guvernment to be for ever unalterably established."
a Constilution of 1777, art. 1. 13. 41.
(1.) The right of personal security is guarded by provi. sions which have been transcribed into the constitutions in this country from magna carta, and other fundamental acts of the English Parliament, and it is enforced by additional and inore precise injunctions. The substance of the provisions is, that no person, except on impeachment, and in cases arising in the military and naval service, shall be held to answer for a capital, or otherwise infamous crime, or for any offence above the common law degree of petit larceny, unless he shall have been previously charged on the presentment or indictment of a grand jury; that no person shall be subject, for the game offence, to be twice put in jeopardy of life or limb; nor shall he be compelled, in any criminal case, to be a witness against himself; and in all criminal prosecutions, the accused is entitled to a speedy and public trial by an impartial jury; and upon the trial he is entitled to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for bis defence. And as a further guard against abuse and oppression in criminal proceedings, it is declared, that excessive bail cannot be required, nor excessive fines imposed, or cruel and unusual punishments inflicted; nor can any bill of attainder, or er post facto law, be passed. The constitution of the United States, and the constitutions of almost every state in the Union, contain the same declarations in substance, and nearly in the same language. And where express constitutional provisions on this subject appear to be wantiog, the same principles are probably asserted by declaratory legislative acts; and they must be regarded as fundamental doctrines in every state, for all the colonies were parties to the national declaration of rights in 1774, in which the trial by jury, and the other rights and liberties of English subjects, were peremptorily claimed as their undoubted inheritance and birthright. VOL. II.
It may be received as a self-evident proposition, universally understood and acknowledged throughout this country, that no person can be taken, or imprisoned, or disseised of his freehold, or liberties, or estate, or exiled, or condemned, or deprived of life, liberty, or property, unless by the law of the land, or the judgment of his peers. The words, by the law of the land, as used in magna carta,a in reference to this subject, are understood to mean due process of law, that is, by indictment or presentment of good and lawful men ; and this, says Lord Coke,b is the true sense and exposition of those words.
But while cruel and unusual punishments are universally condemned, some theorists have proposed the entire abolition of the punishment of death, and have considered it to be an unnecessary waste of power, if not altogether unjust and unwarrantable. It has been supposed, that the object of punishment, and the ends of government, can be as well, or more effectually answered, by the substitution of milder sanctions. The great difficulty is, to attain the salutary ends of punishment, and, at the same time, avoid wounding the public sense of humanity. The punishment of death is, doubtless, the most dreadful, and the most impressive spectacle of public justice ; and it is pot possible to adopt any other punishment equally powerful by its example. It ought to be confined to the few cases of the most atrocious character, for it is only in such cases that public opinion will warrant the measure, or tho peace and safety of society require it. Civil society has an undoubted right_to use the means requisite for its preservation; and the punishment of murder, with death, accords with the judgment and the practice of mankind, because the intensity and the violence of the malignity that will commit that crime, require to be counteracted by the strongest motives which can be pre
a Ch. 29.
6 2 Inst. 50.
sented to the human mind. Grotiusa discusses much at large, and with his usual learning and ability, the design and the lawfulness of punishment; and he is de cidedly of the opinion, that capital punishments in certain cases, are not only lawful under the divine law, but indispensable to restrain the audaciousness of guilt. He recommends, however, for adoption in many cases,
the ada vice, and even the example of some of the ancients, by the substitution of servile labour and imprisonment for capital punishment. This has been done since his time to a very great extent in some parts of Europe, and especially in these United States. Though the penitentiary system has not hitherto answered the expectations of the public, either in the reformation of offenders, or as an example to deter others; yet the inore skilfularrangement of the prisons, and the introduction of a stricter and more energetic system of prison discipline, consisting essentially of close confinement, united with productive labour, (and which have been carried into effect with beneficial results in the state prison at Auburn, and in the new state prison at Mount Pleasant, in this state,) afford encouraging expectations that they will be able to redeem the credit of the system, and recommend the punishment of solitary imprisonment and hard labour, instead of capital and other sanguinary punishments, to the universal approbation of the civilized world,
While the personal security of every citizen is protected from lawless violence, by the arm of government, and the terrors of the penal code; and while it is equally guarded from unjust and tyrannical proceedings on the part of the government itself, by the provisions to which we have referred ; every person is also entitled to the preventive arm of the magistrate as a further protection from threatened or impending danger; and, on reasonable cause being shown, he may require his adversary to be bound to keep the peace, If violence has been actually offered, the offender is not only
a De Jure Belli, b. 2. ch. 20.
liable to be prosecuted and punished on behalf of the state, byk he is bound to render to the party aggrieved, adequate Hompensation in damages. The municipal law of our own, as well as of every other country, has likewise left with individuals the exercise of the natural right of self defence, in all those cases in which the law is either too slow or too feeble to stay the hand of violence. Homicide is justifiable in every case in which it is rendered necessary in selfdefence, against the person who comes to commit a known felony with force against one's person, or habitation, or property, or against the person or property of those who siand in near domestic relations.a The right of self-defence in these cases is founded in the law of nature, and is not, and cannot be superseded by the law or society. In those instances, says Sir Michael Foster, the law, with great propriety, and in strict justice, considers the individual to be under the protection of the law of nature. There are some important distinctions on this subject, between justifiable and excusable homicide, and manslaughter, and mur
der, which it does not belong to my present purpose to exgamine; and I will only observe, that homicide is never strictly justifiable in defence of a private trespass, nor upon. the pretence of necessity, when the party is not free from fault in bringing that necessity upon himself.!
(2.) As a part of the right of personal security, the preservation of every person's good name from the vile arts of detraction is justly included. The laws of the ancients, no less than those of modern nations, made private reputation one of the objects of their protection. The Roman
law took a just
a Hawk. P.C. b. 1. c. 28. s. 21. Foster's Discourse of Homicide, 273, 274,
b Hawk. ibid. s. 22, 23.
c. Potter's Groek Antiq. vol. i. 179. Halhed's Gentoo Code, 182. Cicero de Repubrica, lib. iv. Tacit. Ann. lib. i ch. 72. Hor. Epist. b.ji. Ep. i. 152. Aul. Gel. b. iii. c. 3. Inst. 4. 4. 1. 3 Johnson's Cases, 382. note; where the reporter, with great learning and ac