(2) Specific meaning: liberty of

however, when referring in a general manner to the juristic liberties of the American citizen, employs the expression "privileges and immunities." 1

Among these ancient "liberties" there was one which stood out so conspicuously that it may fairly be called the the person "liberty" without further description. That was personal liberty. Blackstone, having defined it as quoted above, added that personal liberty was perhaps the most important of all the civil rights. Liberty of the person, like the other fundamental liberties, goes back to Magna Carta. The famous thirty-ninth article of the Great Charter provided that "no freeman shall be taken or imprisoned, or disseized, or outlawed, or banished, or any ways destroyed, nor will we pass upon him, nor will we send upon him,2 unless by the lawful judgment of his peers, or by the law of the land." In 1215 the expression "personal liberty" was not in use, but the idea was clearly expressed in the first clause of this article. "No freeman shall be taken or imprisoned": what words could express more clearly the idea-or perhaps it might better be said, in view of the actual condition of the people in England at that time, the ideal of that particular liberty which, as Coke sagely commented, the framers of the

captivity amongst us, unless it be lawful captives taken in just wars, and such, strangers as willingly sell themselves or are sold to us. And these shall have all the liberties and Christian usages which the law of God established in Israel concerning such persons doth morally require. This exempts none from servitude who shall be judged thereto by authority." Lawful captives and other persons who had been sold into slavery were to enjoy certain "liberties," though deprived of the most important liberty of all, liberty of the person. Compare also this from an Act of the Maryland Assembly in 1639: "Holy Church, within this province, shall have all her rights and liberties; that the inhabitants shall have all their rights and liberties according to the great charter of England," etc.

1 See Article IV, section 2, paragraph 1, and Amendments, Article xiv, section I.

2 That is, send others to pass upon, or condemn, him. Cf. Coke's Second Institute, 54.

Charter put first in the article because they valued it most highly?1

tional

This was the liberty, the infringement of which was Constituthe chief ground of complaint in the Petition of Right, protection the great platform of the Parliamentary party in the of personal liberty struggle against arbitrary royal rule in the seventeenth century. To secure this liberty against usurpation was the sole purpose of the Habeas Corpus Act of 1679, the Englishman's front-line trench against the assaults of despotism. To strengthen that security was the principal purpose of the Bill of Rights, the most precious fruit of the "glorious revolution" of 1688. It was this particular liberty which Blackstone had in mind when he wrote that "the Great Charter protected every individual of the nation in the free enjoyment of his life, liberty, and property unless declared to be forfeited by the judgment of his peers or the law of the land." It was this liberty also which the American "Founding Fathers" had in mind when they provided that no person should be deprived of life, liberty, or property without due process of law. The evidence is so clear that the liberty of the due-process clauses of the Constitutions, Federal and State, is no other than personal liberty, that it would seem unnecessary to discuss the question but for the adoption in recent years of a different opinion by the Supreme Court. Perhaps the best witness on this point is the eminent Chancellor Kent, the first edition of whose Commentaries was published in 1826. "The right of personal liberty is another absolute right of individuals, which has long been a favorite object of the English law. It is not only a constitutional principle .. that no person shall be deprived of his liberty without due process of law, but effectual pro

...

1 See C. E. Shattuck, "The True Meaning of the Term 'Liberty' in those clauses in the Federal and State Constitutions, which protect 'Life, Liberty, and Property.'" 4 Harvard Law Review, 365-392.

Summary of

meanings of liberty

vision is made against the continuance of all unlawful restraint or imprisonment, by the security of the privilege of habeas corpus."

3

The term, liberty, was accordingly used in three welldefined senses by the generation of Americans who fought the Revolution and formed the Union. In the first place, it meant what may be further described as political liberty. There were two definitions of political liberty which would have been generally understood. One was the "naturalrights" or "social-compact" definition, which Blackstone had put into terms familiar at least to the lawyers of the period. This is the definition which best suits the language and the spirit of the earlier part of the period, that of the Declaration of Independence. The other definition of political liberty in general currency at that time was that which associated it with the reign of just laws. This is the definition which best suits the later and more constructive part of the period. It describes the liberty of the Preamble to the Constitution. Secondly, liberty meant the general body of traditional privileges and immunities which had been transformed by the Revolution and the State and Federal Constitutions into rights of American citizens. These "liberties" collectively, Blackstone designated, when necessary to avoid ambiguity, by the general expression, public liberty. Thirdly, there was one of these "liberties" in particular, which Blackstone distinguished from the others, when necessary, by the specific expression, personal liberty. This liberty was so much more important than any other that it was generally known as liberty without further qualification, and along with life and property was specially guaranteed against deprivation

1 James Kent, Commentaries on American Law, 12th edition, vol. 11, P. 26.

2 See supra p. 275.

3 See supra p. 289. This is the definition which may now be called the political-scientific.

without due process of law. This was the liberty of the Fifth Amendment to the Federal Constitution.

2

liberties

constitu

There is no evidence in the debates in the Congress of Personal the United States, at the time when the Fifth Amendment and other liberty was submitted to the States for ratification, that there was juristic any confusion between these various senses of the term, in the or that anyone understood the liberty of the Fifth Amend- American ment in any other than its specific juristic sense. It meant tions personal liberty, as currently understood by the English and American lawyers. In other words, it meant the absence of physical restraints upon the individual's person or body. Other "liberties," which the "Founding Fathers" wished particularly to preserve, are clearly expressed in the constitutional documents of the period. Religious liberty, for example, as well as freedom of speech and of the press, freedom of assembly and of petition, and liberty to bear arms, are specified in the first ten amendments to the Federal Constitution and in several of the original State constitutions. If the liberty of the Fifth Amendment had been understood to mean more than liberty of the person, either the specification of some at least of these other "liberties" would have been superfluous or the omission of any not specified would have been dangerous. It would not be necessary to insist so emphatically upon the contemporary understanding of the liberty of the Fifth Amendment, if later generations of Americans had not advanced radically different interpretations of the term, which have profoundly affected the adjustment of the conflicting interests of the various classes of society in modern times, particularly those of capital and labor. But the modern struggle between capital and labor did not become acute until the meaning of liberty, as used in the Constitution, had already been unsettled.

The liberty of the

Freedmen under the

It was the struggle for the abolition of slavery which furnished the first occasion for a reconsideration of the Thirteenth meaning of liberty in the United States. In 1865 slavery Amendment and involuntary servitude except as a punishment for crime

was abolished by the Thirteenth Amendment to the Federal Constitution. The Amendment did not specifically provide that the Freedmen should have any particular kind of liberty, but the enjoyment of liberty of some sort was the necessary consequence of the abolition of slavery. The question promptly arose, What should the nature of their liberty be? It was generally agreed that they should have at least the same personal liberty as the white people of the United States. But there was strong opposition, especially in the South, to the immediate grant of all those privileges and immunities which made up the public liberty of the white people. It was contended that the black race was not then fit for complete equality before the law. In the former slave States much legislation was enacted designed to put the negroes under some form of tutelage whereby they would occupy a status intermediate between that of free white men and that of chattel-slaves. These laws imposed various restrictions upon their right to live and do as they pleased, which were not imposed upon white men. They were in some States forbidden to appear in the towns in any other character than as menial servants. They were required to reside on and cultivate the soil without the right to purchase and own it. They were excluded from many gainful occupations, and were not permitted to give testimony in the courts in any case where a white man was a party. They were forbidden to make certain contracts, particularly contracts for marriages between the races. To be sure, this last restriction existed, not only in many of the former slave States, but also by long-standing enactments in some where slavery had never existed. But now the efforts of Southern legis