CHAPTER V.

CONSTITUTIONAL AND STATUTORY GUARANTEES OF THE RIGHT OF PERSONAL LIBERTY IN AMERICA.

1. Magna Carta.-The American colonists always claimed to possess "all the rights, liberties and immunities of free and natural-born subjects within the realm of England." This claim was not founded so much upon their charters as upon the fact that they were Englishmen, and as such inherited the laws of their country.

This idea of a birth-right in the laws, was always a favorite one in England. "In Edw. VI., fol. 36, the laws are called the great inheritance of every subject, and the inheritance of inheritances, without which inheritance we have no inheritance;" and it is very justly observed by Chalmers,' that "the customs of a free people are a part of their liberty."

It was, indeed, expressly declared in all the charters under which the colonies were settled, except that to 106] *William Penn, that all subjects and their children inhabiting the colonies, should be deemed natural-born subjects, and entitled to all the liberties and immunities thereof.

18 St. Tr. 117.

1 Annals, 677.

The omission, however, in the charter to Penn, was never supposed to deprive the Pennsylvania colonist of his rights as an Englishman. On the contrary, it seems to have been thought "that the clause was wholly unnecessary, as the allegiance to the crown was reserved; and the common law thence inferred, that all the inhabitants were subjects, and of course were entitled to all the privileges of Englishmen."

"It was," says Story, "under the consciousness of the full possession of the rights, liberties and immunities of British subjects, that the colonists in almost all the early legislation of their respective assemblies, insisted upon a declaratory act, acknowledging and confirming them." Some of them were content with reaffirming the Great Charter; others added to its provisions.

In Maryland, in 1638, by the 4th sec. of the "Act ordaining certain laws for the government of this province," it was provided that "The inhabitants shall have their rights and liberties according to the Great Charter of England."

In Connecticut, in 1650, it was enacted that "Noman's life shall be taken away, no man's honor or good name. shall be stained, no man's person shall be arrested, restrained, banished, dismembered nor any ways punished; no man shall be deprived of his wife or children, no man's goods or estate shall be *taken away from [107 him, nor any ways indamaged under color of law or countenance of authority, unless it be by virtue or equity of some express law of the country, warranting the same, established by a general court and sufficiently published, or in case of the defect of a law in any particular case, by the word of God."

In later times, when those rights and liberties were threatened, they were reasserted from time to time, by

1 1 Chal. Annals, 639, 658; 1 Story's Const. § 122.

21 Story's Const. § 165.

1 Col. Rec. of Conn. 509.

the colonies severally, and, as the danger increased, collectively.

The Congress of the Nine Colonies, in 1765, assembled at New York, declared that the colonists were "entitled to all the inherent right and liberties of his (the King's) natural-born subjects, within the kingdom of Great Britain."

And the Continental Congress of 1774, composed of delegates from twelve colonies (Georgia did not unite with them until the next year), in their Declaration of Rights, amongst other things declared:

"That the inhabitants of the English colonies in North America, by the immutable laws of nature, the principles of the English Constitution, and the several charters or compacts, have the following RIGHTS.

"Resolved, 1. That they are entitled to life, liberty and property; and that they have never ceded to any sovereign power whatever a right to dispose of either without their consent.

"Resolved, 2. That our ancestors, who first settled these colonies, were, at the time of their emigration from the mother country, entitled to all the rights, liberties and immunities of free and natural-born subjects within the realm of England.

108] *"Resolved, 3. That by such emigration they by no means forfeited, surrendered or lost any of their rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them to exercise and enjoy."

These views are not without advocates in Parliament. The Great Commoner, who "drew his ideas of freedom from the vital powers of the British Constitution," in his argument in the House of Lords against the doctrine of taxation without representation, in 1766, said: “The

1 Hutch. Hist. Mass. Bay, Appendix F.

21 Am. Archives, 911.

colonies are equally entitled with yourselves to all the natural rights of mankind and the peculiar privileges of Englishmen; equally bound by the laws, and equally participating of the constitution of this free country. The Americans are the sons, not the bastards of England."

To the journal published by the order of the Congress of 1774 and verified by the autograph of their secretary is prefixed in the title page a medallion, representing Magna Carta as the pedestal on which was raised the column and cap of liberty, supported by twelve hands and containing the words "Hanc Tuemur, Hac Nitimur." The great popularity of the doctrine that the colonists were "co-heirs of liberty" with their brethren residing in England, may be inferred from the complaint of the royal Governor of New York in 1697, who thought it intolerable that not only the English emigrant but the Dutch also should be "big with the privileges of Englishmen and Magna Carta.”1

*2. The writ of habeas corpus.-It is said by Chal- [109 mers, speaking of the rights of the colonists, that "They had a right to possess every immunity which Englishmen, within a distant and subordinate territory of the empire, can possibly enjoy. They were entitled to personal security, to private property, and, what is of most importance of all, to personal liberty; though the foregoing annals demonstrate that the two first they enjoyed previously, the last they possessed not at all, since the effectual remedy, the writ of habeas corpus, they did not happily know." Again he says: "There is no circumstance in the history of colonial jurisprudence better established than the fact that the habeas corpus act was not extended to the plantations till the reign of Anne."

The writ may not have been and doubtless was not so efficient in the colonies as in England; but that it

1 3 Bancroft, 56.

1 Chal. Annals, 677.

3 Ibid. 74.

was unknown or undervalued, or that the habeas corpus act was considered inapplicable until expressly extended to the plantations, are propositions which are not sustained by the history of the times.

Mr. Washburn, in his "Judicial History of Massachusetts," p. 195, says: "Among other writs in use during the period of the provincial charter, was the writ of habeas corpus. It seems to have been adopted at first as a common law remedy. In 1689 application for such a writ was made to Judge Dudley by Mr. Wise, but the application was arbitrarily refused. In 1706 an application was made to Chief Justice Sewall for a writ of habeas corpus, and although it was refused for satisfactory 110] reasons, there is nothing to indicate that the court regarded it as a novel application; I have, however, found none of a similar kind made at an earlier period of the Provincial Government."

After the Revolution (1688, 9), Judge Dudley was sued for refusing to allow the writ to Wise, “which shows that the right to this writ was regarded as one of the existing privileges of the colonists."

The Rev. John Wise, who applied for the writ above mentioned, was arrested with others, inhabitants of the town of Ipswich, for refusing to grant money, which they believed was illegally assessed by the Governor and Council.

"Being denied the writ of habeas corpus, the mittimus only showing that they were committed 'for contempts and high misdemeanor,' they were after a tedious and harassing delay put upon their trial. They claimed the privileges secured to them as Englishmen by the Magna Carta and the laws of England. The Chief Justice, however, informed them that they must not expect that the laws of England would follow them to the ends of the earth, and concluded by telling them that they had no more privileges left them than to be sold as slaves. He charged the jury, and stated that the court 'expected a good verdict from them, seeing the matter