Page:Harvard Law Review Volume 4.djvu/385

MEANING OF THE TERM LIBERTY:' Z6g peculiar connection, namely, in those clauses which forbid the taking of the three liberties in question unless by due process of law or the law of the land, unless, as Webster has so well ex- pressed it, " by the general law, which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, and property under the pro- tection of the general rules which govern society." In this connection we shall perhaps find that the term ** Hberty " is fairly susceptible of a somewhat narrower construction than when used collectively to denote all those rights of which, generally speaking, no man ought to be deprived under any circumstances whatever; to denote, that is, an ideal of government. In this present con- nection the deprivation of the right named is contemplated as a necessary and usual thing. Indeed, it is worth noticing that in this connection the word and clause with which we are dealing are in almost every instance inserted in a section of the constitu- tion dealing exclusively with the conduct of criminal trials, with the privileges of the accused, with a process in which the whole question is whether the person concerned shall be deprived of one or the other of certain rights; that is, of life, or personal liberty, or property as a penalty for crime ; and it is declared that he shall not, without due process of law. A prioriy therefore, it would seem that in this connection the term is not used in its broadest sense to denote all civil rights, but, like the terms *' Hfe " and " property," to denote one particular kind of civil right, of which the law is accustomed to deprive persons by way of punish- ment. The clause in question has a definite and a most ancient history. It is of Teutonic origin, and Professor Stubbs states that the very formula here used is probably adopted from the laws of the " Franconian and Saxon Caesars."^ At any rate we find it in almost precisely the same form in which it has been incorporated into many of our American constitutions at the beginning of the thirteenth century in the Magna Charta of King John of England.^ That century comprises at once the gloomiest and the most auspicious period of English history. During that century the English people were oppressed by a foreign and conquering race, were ruled by two of the worst kings that ever ascended the 1 Constitutional History of England, vol. i, p. 577. 2 Stubbs' Select Charters, 301.