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Under our system, as has been already said, the legislature can perform no judicial functions; it is their province to enact laws; that of the judiciary to expound them; and that of the executive to enforce them. The judicial power of the state is its whole judicial power; the legislature cannot exercise any part of it there is no such thing under the constitution as a mixed power, partly judicial, partly legislative; were it so, it must be exercised in common; in a joint body, for the judiciary possess as much power to legislate, as the legislature to adjudicate. a

The framers of the constitution, wisely sought to distribute the different powers of government, and to keep them separate and distinct, and each within its own limits. In practice however, it is sometimes difficult, if not impossible, to lay down rules which in all cases, shall determine the precise limits of constitutional restraint, so that in the exercise of the duties of one of the branches, it may not overstep its limits, and infringe upon the peculiar and appropriate functions of another department. These errors, perhaps, are more liable to occur on the part of the legislative department than any other, because their powers are less particularly defined; but with a firm and independent judiciary to correct them, no great evils are likely to occur in that way.6

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a Greenough v. Greenough, 11 Penn. St. R. 194 b Donny v. Mattoon, 2 Allen 361.

CHAPTER XVI.

OF THE CONSTITUTIONAL PROTECTIONS TO PERSONAL LIBERTY.

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The constitutional protections provided for the personal liberty of the citizen, are to be found in both the national and state constitutions, and are expressed in similar language. "The privilege of the writ of habeas corpus shall not be suspended, unless, when, in cases of rebellion or invasion, the public safety require it.” Const. U. S., Art. 1, $9; Const. of N. Y. of 1846, Art. 1, $ 4. “The citizens of each state shall be entitled to all privileges and immunities of citizens of the several states." Const. U. S., Art. 4, 82. “No soldier, shall in time of peace be quartered in any house, without the consent of the owner, nor in time of war but in a manner to be prescribed by law.” Id., Art. 3 of the Amendments of the Const. of 0. S. “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.” Id., Art. 4 of Amendments. "No

person shall be held to answer for a capital or otherwise infamous crime, unless upon presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war, or public danger, nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law, &c.” Id., Art. 5.

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district, shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory pro

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cess for obtaining witnesses in his favor; and to have the assistance of counsel for his defence." Id., Art. 6. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Id., Art. 8. "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Id., Art. 13.

. “ All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny any person within its jurisdiction an equal protection of the laws.” Id., Art. 14. By the constitution of this state adopted in 1846, it is provided, “thať no member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any of the citizens thereof, unless by the law of the land, or the judgment of his peers.” Art. 1, $1. The privilege of the writ of habeus corpus, and the prohibition against excessive bail, excessive fines, and cruel and unusual punishments, are the same as in the United States constitution, and to which is added, the provision that witnesses shall not be unreasonably detained. Id., SS 4 and 5. “No person shall be held to answer for a capital, or otherwise infamous crime, (except in cases of impeachment, and in cases of militia when in actual service; and the land and naval forces in time of war, or which this state may keep with the consent of congress in time of peace; and in cases of petit larceny under the regulation of the legislature,) unless on presentment or indictment of a grand jury. And in any trial in any court whatever, the party accused shall be allowed to appear and defend in person, and with counsel as in civil actions. No person shall be subject to be twice put in jeopardy for the same offence, nor shall he be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law,” &c. Id., $6.

Perhaps, in no government in the world, does the citizen find such full, liberal and ample protection, and so large a share of

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civil and political liberty, as a citizen of the United States, who is such, by reason of being a citizen of any one of the sovereign states that compose the Union, as also, those who are citizens of the particular states wherein they reside; and all persons are such citizens, and entitled to these protections and privileges, who have either been born, or who have been naturalized in the United States, or in any of the states, or who are subject to the jurisdiction of the United States.

At what time the right to personal liberty first became a subject of political concern in England, belongs to history. The manner in which it was finally secured by constitutional enactments; the spirit and success with which it was defended when assailed by arbitrary princes; the elevating effects upon personal character obtained by its enjoyment to the citizen; are among the influences which controlled the American statesmen in giving it to the citizen of the American republics, secured by the fundamental law.

We do not propose to enter upon the history of the agitations, strifes, and struggles of the masses, with the ruling powers of government, either in our own country, or in that from which we derived many of our laws; and which resulted in obtaining for the citizen the constitutional securities and rights to civil and political liberty, which we have above copied from the fundamental law of these governments. Nor shall we attempt in this work, to give the explanations of causes, by which one portion of a people, created by a just and impartial Creator to an equality of rights with every other portion, and endowed by Him with the unalienable rights of life, liberty and the pursuit of happiness, became, in the process of time, reduced to the unhappy condition of serfs, villeins, menials and slaves ; the many submitting themselves to servitude for the few, called the governing classes. These matters belong to the historian, rather than the law writer. It will be our duty to assume, that every citizen is now, in regard to these sacred rights and privileges, entitled to an equal protection; that these rights are just and natural ;—and, that the constitution as we find it, is to have a favorable interpretation, as to all its provisions, in favor of the liberty of the citizen.

Although we have chosen, not to enter into the history of the manner of securing this right to personal liberty to the citizen, we cannot well discuss it as a natural right, without a slight reference to its value. It is a right, as has been well declared, unalienable in its nature; inherent in every man, woman, and child; and of inestimable value in giving character and dignity to the citizen.

"Man,” says Montesquieu, "is born in society, and there he remains.” But as a member of society, in the exercise of his right of liberty, as well as his other absolute rights, he becomes subject to such limitations, and to such penalties for the violations of the rights of others, as the common welfare of all, and the just ends of government may require.

Government, is essential to the preservation of individual rights, including that of liberty, and is the necessity of every society. So, that, properly to enjoy the privileges of liberty, the citizen needs the protection of government. It cannot be otherwise than flattering to the pride of every intelligent American citizen as he reads the history of the nations of the earth, and estimates their condition, to mark the progress, and estimate the advantages of the liberalizing and elevating influence exerted upon the character of a people where the rights of personal liberty, and the equality of all men before the law, is fundamentally secured. It is seen to impart not only vital energy to the government itself, but it adds a stimulus that invites the citizen into enterprises upon the confidence of governmental protection ; stimulates his ambition to act upon a sense of individual independence, which a knowledge of his high nature, and noble destiny alone can inspire; and induces him to pursue happiness in all the unobstructed paths which either pleasure or profit may tempt him to follow; and employ all his powers in the exercise of that liberty which secures the highest enjoyments of life.

The limitations to the right to personal liberty, are either of a public, or of a private nature. Among those which are public, is

, that of individual punishment for the commission of crime, and this punishment, is effected through the instrumentality of the courts. "A court of justice, it has been well said, represents the judicial majesty of the people. Through the forms of law, it utters its mighty voice in judgment. Property, character, liberty, and life itself, are involved in the issues that are brought before it, and it needs all the aid which composure can lend to reason, to enable

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