[* 349] * Right of Discussion and Petition. 1 The right of the people peaceably to assemble, and to petition the government for a redress of grievances, is one which" would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature and structure of its institutions. It is impossible that it could be practically denied until the spirit of liberty had wholly disappeared, and the people had become so servile and debased as to be unfit to exercise any of the privileges of freemen." But it has not been thought unimportant to protect this right by statutory enactments in England; and indeed it will be remembered that one of the most notable attempts to crush the liberties of the kingdom made the right of petition the point of attack, and selected for its contemplated victims the chief officers in the episcopal hierarchy. The trial and acquittal of the seven bishops in the reign of James II. constituted one of the decisive battles in English constitutional history; 2 and the right which was then vindicated is "a sacred right which in difficult times shows itself in its full magnitude, frequently serves as a safety-valve if judiciously treated by the recipients, and may give to the representatives or other bodies the most valuable information. It may right many a wrong, and the deprivation of it would at once be felt by every freeman as a degradation. The right of petitioning is indeed a necessary consequence of the right of free speech and deliberation,- a simple, primitive, and natural right. As a privilege it is not even denied the creature in addressing the Deity."3 Happily the occasions for discussing and defending it have not been numerous in this country, and have been confined to an exciting subject now disposed of.4 1 Story on the Constitution, § 1894. See this case in 12 Howell's State Trials, 183; 3 Mod. 212. Also in Broom, Const. Law, 408. See also the valuable note appended by Mr. Broom, p. 493, in which the historical events bearing on the right of petition are noted. May, Const. Hist. c. 7; 1 Bl. Com. 143. 3 Lieber, Civil Liberty and Self-Government, c. 12. Also For the discussions on the right of petition in Congress, particularly with reference to slavery, see 1 Benton's Abridgment of Debates, 397; 2 ib. 57–60, 182-188, 209, 436-444; 12 ib. 660-679, 705-743; 13 ib. 5-28, 266-290, 557562. Also Benton's Thirty Years' View, Vol. I. c. 135, Vol. II. c. 32, 33, 36, 37. Also the current political histories and biographies. *Right to bear Arms. [* 350] Among the other safeguards to liberty should be mentioned the right of the people to keep and bear arms.1 A standing army is peculiarly obnoxious in any free government, and the jealousy of such an army has at times been so strongly demonstrated in England as to lead to the belief that even though recruited from among themselves, it was more dreaded by the people as an instrument of oppression than a tyrannical monarch or any foreign power. So impatient did the English people become of the very army that liberated them from the tyranny of James II. that they demanded its reduction even before the liberation became complete; and to this day the British Parliament render a standing army practically impossible by only passing a mutiny act from session to session. The alternative to a standing army is "a well-regulated militia;" but this cannot exist unless the people are trained to bearing arms. The federal and State constitutions therefore provide that the right of the people to bear arms shall not be infringed; but how far it may be in the power of the legislature to regulate the right we shall not undertake to say, as happily there neither has been, nor perhaps is likely to be, much occasion for a discussion of that question by the courts.2 1 1 Bl. Com. 143. 2 In Bliss v. Commonwealth, 2 Lit. 90, the statute "to prevent persons wearing concealed arms was held unconstitutional, as infringing on the right of the people to bear arms in defence of themselves and the State. But see Nunn v. State, 1 Kelly, 243. As bearing also upon the right of self-defence, see Ely v. Thompson, 3 A. K. Marsh. 73, where it was held that the statute subjecting free persons of color to corporal punishment for "lifting their hands in opposition " to a white person was unconstitutional. [381] [*351] * С НАРТER XI. OF THE PROTECTION TO PROPERTY BY "THE LAW OF THE LAND." THE protection of the subject in the free enjoyment of his life, his liberty, and his property, except as they might be declared by the judgment of his peers or the law of the land to be forfeited, was guaranteed by the twenty-ninth chapter of Magna Charta, "which alone," says Sir William Blackstone, "would have merited the title that it bears of the Great Charter."1 The people of the American States, holding the sovereignty in their own hands, have no occasion to exact pledges from any one for a due observance of individual rights; but the aggressive tendency of power is such, that they have deemed it of no small importance, that, in framing the instruments under which their governments are to be administered by their agents, they should repeat and re-enact this guaranty, and thereby adopt it as a principle of constitutional protection. In some form of words it was: 1 4 Bl. Com. 424. The chapter, as it stood in the original charter of John, "Ne corpus liberi hominis capiatur nec imprisonetur nec disseisietur nec utlagetur nec exuletur nec aliquo modo destruatur nec rex eat vel mittat super eum vi nisi per judicium parium suorum vel per legem terre." No freeman shall be taken, or imprisoned, or disseised, or outlawed, or banished, or any ways destroyed, nor will the king pass upon him, or commit him to prison, unless by the judgment of his peers, or the law of the land. In the charter of Henry III. it was varied slightly, as follows: " Nullus liber homo capiatur, vel imprisonetur, aut disseisietur de libero tenemento suo vel libertatibus vel liberis consuetudinibus suis, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus nec super eum mittemus, nisi per legale judicium parium suorum vel per legem terræ." See Blackstone's Charters. The Petition of Right - 1 Car. I. c. 1-prayed, among other things, "that no man be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent, by act of Parliament; that none be called upon to make answer for refusal so to do; that freemen be imprisoned or detained only by the law of the land, or by due process of law, and not by the king's special command, without any charge." The Bill of Rights-1 Wm. and Mary, § 2, c. 2. was confined to an enumeration and condemnation of the illegal acts of the preceding reign; but the Great Charter of Henry III. was then, and is still, in force. is to be found in each of the State constitutions; and 1 though verbal differences appear in the different pro- [*352] * The following are the constitutional provisions in the several States: Alabama: "That, in all criminal prosecutions, the accused . . . shall not be compelled to give evidence against himself, or be deprived of his life, liberty, or property, but by due process of law." Art. 1, § 8. — Arkansas: “That no man shall be taken or imprisoned, or disseised of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or the law of the land." Art. 2, § 10. — California: Like that of Alabama, substituting "process of law" for "course of law." Art. 1, § 8. - Connecticut: Same as Alabama. Art. 1, § 9.Delaware: Like that of Alabama, substituting for 99.66 course of law," the judgment of his peers, or the law of the land." Art. 1, § 7. — Florida: "That no person shall be taken, imprisoned, or disseised of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the law of the land." Art. 1, § 9.- Georgia: “No person shall be deprived of life, liberty, or property, except by due process of law." Art. 1, § 2. — Illinois and Iowa: “No person shall be deprived of life, liberty, or property, without due process of law." Art. 1, § 9. - Kentucky: "Nor can he be deprived of his life, liberty, or property, unless by the judgment of his peers, or the law of the land." Art. 13, § 12. ·Maine: " Nor be deprived of his life, liberty, property, or privileges, but by the judgment of his peers, or the law of the land." Art. 1, § 6. - Maryland: "That no man ought to be taken, or imprisoned, or disseised of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land." Declaration of Rights, § 23. Massachusetts: "No subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land." Declaration of Rights, Art. 12. Michigan: "No person shall . . . be deprived of life, liberty, or property, without due process of law." Art. 6, § 32.- Minnesota: "No member of this State shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers." Art. 1, § 2.-Mississippi: “Nor can he be deprived of his life, liberty, or property, but by due course of law." Art. 1, § 10. Missouri: Same as Delaware. Art. 1, § 18. — Nevada: "Nor be deprived of life, liberty, or property, without due process of law." Art. 1, § 8. - New Hampshire: Same as Massachusetts. Bill of Rights, § 17. - New York: Same as Nevada. Art. 1, § 6. - North Carolina: "That no person ought to be taken, imprisoned, or disseised of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the law of the land." Declaration of Rights, § 17.- Pennsylvania: Like Delaware. Art. 9, § 9.- Rhode Island: Like Delaware. Art. 1, § 10.- South Carolina: "No person shall be arrested, imprisoned, despoiled, or dispossessed of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, - * visions, no change in language, it is thought, has in any [353] case been made with a view to essential change in legal effect; and the differences in phraseology will not, therefore, be of importance in our discussion. Indeed, the language employed is generally nearly identical, except that the phrase "due process [or course] of law" is sometimes used, sometimes "the law of the land," and in some cases both; but the meaning is the same in every case. And, by the fourteenth amendment the guaranty is now incorporated in the Constitution of the United States.2 1 If now we shall ascertain the meaning of the phrases "due process of law" and "the law of the land" in the several constitutional provisions which we have referred to, when they have in view the protection of rights in property, we shall be able, perhaps, to indicate the rule, by which may be determined the cases in which legislative action is objected to, as not being "the law of the land;" or judicial, or ministerial action is contested as not being "due process of law," within the meaning of these terms as the Constitution employs them. If we examine such definitions of these terms as are met with in the reported cases, we shall find them so various, that some difficulty must arise in fixing upon one which shall be accurate, complete in itself, and at the same time appropriate in all the liberty, or estate, but by the judgment of his peers, or the law of the land." Art. 1, § 14.- Tennessee: "That no man shall be taken or imprisoned, or disseised of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or the law of the land." Art. 1, § 8. - Texas: "No citizen of this State shall be deprived of life, liberty, property, or privileges, outlawed, exiled, or in any manner disfranchised, except by due course of the law of the land." Art. 1, § 16.- West Virginia: "No person, in time of peace, shall be deprived of life, liberty, or property, without due process of law." Art. 2, § 6. Under each of the remaining Constitutions, equivalent protection to that which these provisions give, is believed to be afforded by fundamental principles recognized and enforced by the courts. 1 2 Inst. 50; Bouv. Law Dic. "Due process of Law," "Law of the land"; State v. Simons, 2 Spears, 767; Vanzant v. Waddell, 2 Yerg. 260; Wally's Heirs v. Kennedy, ib. 554; Greene v. Briggs, 1 Curt. 311; Murray's Lessee v. Hoboken Land Co. 18 How. 276, per Curtis, J.; Parsons v. Russell, 11 Mich. 129, per Manning, J.; Ervine's Appeal, 16 Penn. St. 256; Banning v. Taylor, 24 Penn. St. 292; State v. Staten, 6 Cold. 244. 2 See ante, p. 11. |