Page:Harvard Law Review Volume 4.djvu/391

MEANING OF THE TERM LIBERTY P 375 without some historical explanation. Perhaps such uncertainty is a necessary evil in all instruments which, like American bills of rights, represent a long period of development. The terms used in the original article are much more definite, and in some of our constitutions have been copied literally, with the words *' Hfe, hberty, and property " added by way of summary, and, as it seems, by way of supererogation.^ We have noticed that the the term "liberty," generally in the plural number, was formerly used to denote a right or privilege. Thus the Magna Charta itself was entitled the '* Charta Libertatum." We have also noticed that the expression " civil liberty " is, in the same sense, simply a collective for all the rights, political, religious, and civil (using the word " civil " in the narrow and rather loose sense which it has recently acquired in this country), which a person has in a given social body, that is, under a given government. The term was formerly used in still another way, to denote, not any right or privilege, but an ex- clusive right or a franchise, and that is probably the sense in which it was used in the thirty-ninth article of Magna Charta, as confirmed by 9 Hen. III. c. 29. In all these cases, however, the term was not used in connection with the fundamental rights of life and property to express a third great right, as is the case in our American con- stitutions, and in the latter it must, therefore, be held to have a different meaning. In them it is not used to denote any and all rights, or to denote a right vested exclusively in one person, but to denote a particular kind of right to which every person is entitled, unless it is taken away by due process of law. It is used, in other words, just as the terms " life " and " property" are used, each to express a special kind of right. It is as unreasonable to say that " liberty," in this connection, includes all civil rights, as it is to say that the term " life " includes them, or that the term "property" includes them. If it did, it would include life and property, and the clause reading, " no person shall be deprived of life, all his rights, or property," would be an absurdity on its face. The fact is that each of these terms has a peculiar and definite meaning, and it seems clear, on the whole, considering the history of the clause, that the term in question means personal liberty, or freedom of the person from restraint. Personal liberty was a common-law right in England in 1215, and long before; it was one of the great rights declared in the thirty-ninth article of the 1 See, for example, the constitutions of Massachusetts, New Hampshire, and Maryland.