trate, without the explicit permission of the laws. Here again the language of the great charter (i) is, that no freeman shall be taken or imprisoned but by the lawful judgment of his equals, or by the law of the land. (14) [*135] And many subsequent old statutes (7) expressly direct, that no man shall be taken or imprisoned by suggestion or petition to the king or his council, unless it be by legal indictment, or the process of the common law. By the petition of right, 3 Car. I, it is enacted, that no freeman shall be imprisoned or detained without cause shown, to which he may make answer according to law. By 16 Car. I, c. 10, if any person be restrained of his liberty by order or decree of any illegal court, or by command of the king's majesty in person, or by warrant of the council board, or of any of the privy council, he shall, upon demand of his counsel, have a writ of habeas corpus, to bring his body before the court of king's bench or common pleas, who shall determine whether the cause of his commitment be just, and thereupon do as to justice shall appertain. And by 31 Car. II, c. 2, commonly called the habeas corpus act, the methods of obtaining this writ are so plainly pointed out and enforced, that, so long as this statute remains unimpeached, no subject of England can be long detained in prison, except in those cases in which the law requires and justifies such detainer. (15) And, lest this act should be evaded by demanding unreasonable bail, or sureties for the prisoner's appearance, it is declared by 1 W. and M. St. 2, c. 2, that excessive bail ought not to be required. Of great importance to the public is the preservation of this personal liberty; for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in France it is daily practiced by the crown,) (k) there would soon be an end of all other rights and immunities. Some have thought that unjust attacks, even upon life or property, at the arbitrary will of the magistrate, *are less dangerous to the the com[*136] monwealth than such as are made upon the personal liberty of the subject. To bereave a man of life, or by violence to confiscate his estate, with (i) c. 29. (j) 5 Edw. III, c. 9. 25 Edw. III, St. 5. c. 4. 28 Edw. III, c. 3. (k) I have been assured, upon good authority that, during the mild administration of Cardinal Fleury, above 54,000 lettres de cachet were issued, upon the single ground of the famous bull unigenitus. (14) The words "law of the land " and "due process of law" are employed interchangeably in constitutional law, and mean the same thing. State v. Simons, 2 Spears, 767; Van Zandt v. Waddell, 2 Yerg. 260; Matter of John and Cherry Streets; 19 Wend. 659; Green v. Briggs, 1 Curt. 311; Ervine's Appeal, 16 Penn. St. 256; Parsons v. Russell, 11 Mich. 129; Murray's Lessee v. Hoboken Land Co. 18 How. 276. They have sometimes been supposed to be equivalent to "the judgment of his peers," but this is an error, as they are applicable to a great variety of cases in which trial by jury is not permissible or not applicable. "The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of general rules which govern society." Webster in Dartmouth College v. Woodward, 4 Wheat. 519. Due process of law in each particular case means, such an exertion of the powers of government as the settled maxims of law sanction and require, and under such safe-guards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs. See State v Allen, 2 McCord, 56; Sears v. Cottrell, 5 Mich. 251; Taylor v. Porter, 4 Hill, 140; Hoke v. Henderson, 4 Dev. 15; James v. Reynolds, 2 Texas, 251. Bank of Columbia v. Okely, 4 Wheat. 235; Lenz v. Charlton, 23 Wis. 478. (15) Amended and enforced by 56 Geo. III, c. 100. See the construction of these acts. 1 Chitty's Crim. Law, 123. As to the writ of habeas corpus under these statutes and at the common law, see 9 A. and E. 731. The habeas corpus act of 31 Charles II, has been generally re-enacted in the American States, with modifications to conform it to our judicial systems. The constitution of the United States, art 1, § 9, forbids the suspension of the writ of habeas corpus. unless when, in cases of rebellion or invasion, the public safety may require it; and no suspension has been had under this permission except during the recent rebellion. The federal courts only issue the writ in the cases prescribed in the acts of congress, and those cases are comparatively few, and are only where the imprisonment is under pretence of national authority, or where this process seems important to prevent encroachments by state officials upon the proper province of the general government. The protection of individuals against unlawful imprisonments is for the most part left to the state courts. The suspension of the writ of habeas corpus does not legalize whatever may be done during the suspension; it only takes from the individual one of the usual means of redress, but leaves the persons concerned in arrests and imprisonments to bear the responsibility if they prove illegal. out accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom; but confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. And yet sometimes, when the state. is in real danger, even this may be a necessary measure. But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great as to render this measure expedient; for it is the parliament only, or legislative power, that, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing; as the senate of Rome was wont to have recourse to a dictator, a magistrate of absolute authority, when they judged the republic in any imminent danger. The decree of the senate, which usually preceded the nomination of this magistrate, "dent operam consules, ne quid respublica detrimenti capiat," was called the senatus consultum ultimæ necessitatis. In like manner this experiment ought only to be tried in cases of extreme emergency; and in these the nation parts with its liberty for awhile, in order to preserve it for ever. The confinement of the person, in any wise, is an imprisonment; so that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment. (7) And the law so much discourages unlawful confinement, that if a man is under duress of imprisonment, which we before explained to mean a compulsion by an illegal restraint of liberty, until he seals a bond or the like; he may allege this duress, and avoid the extorted bond. But if a man be lawfully imprisoned, *and, [*137] either to procure his discharge, or on any other fair account, seals, a bond or a deed, this is not by duress of imprisonment, and he is not at liberty to avoid it. (m) To make imprisonment lawful, it must either be by process from the courts of judicature, or by warrant from some legal officer having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into, if necessary, upon a habeas corpus. If there be no cause expressed, the gaoler is not bound to detain the prisoner: (n) for the law judges, in this respect, saith Sir Edward Coke, like Festus the Roman governor, that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him. A natural and regular consequence of this personal liberty is, that every Englishman may claim a right to abide in his own country so long as he pleases; and not to be driven from it unless by the sentence of the law. The king, indeed, by his royal prerogative, may issue out his writ ne exeat regnum, and prohibit any of his subjects from going into foreign parts without license. (0) This may be necessary for the public service and safeguard of the commonwealth. But no power on earth, except the authority of parliament, can send any subject of England out of the land against his will; no, not even a criminal. For exile and transportation are punishments at present unknown to the common law; and, whenever the latter is now inflicted, it is either by the choice of the criminal himself to escape a capital punishment, or else by the express direction of some modern act of parliament. (16) To this purpose the great charter (p) declares, that no freeman shall be banished, unless by the judgment of his peers, or by the law of the land. And by the habeas corpus act, 31 Car. (1) 2 Inst. 589. (m) 2 Inst. 482. (n) Ibid. 52, 53. (0) F. N. B. 85. (p) C. 29. (16) Exile is said to have been first introduced as a punishment by stat. 39 Eliz. c. 4. See Barrington on Statutes, 269. Persons capitally convicted are frequently pardoned on condition of their being transported for life; and it has been held in the United States that the condition of voluntary exile might be lawfully attached to a pardon. People v. James, 2 Caines, 57; Flavell's Case, 8 W. and S. 197. So may the condition that a payment of money by the convict shall be made or secured. Rood v. Winslow, 2 Doug. Mich. 68. II, c. 2, (that second magna carta, and stable bulwark of our liberties,) it is enacted, that no subject of this realm, who is an inhabitant of England, Wales, or Berwick, shall be sent prisoner into Scotland, Ireland, Jersey, Guernsey, or places beyond the seas, (where *they cannot have the full benefit and protection of the common law); but that all such imprisonments shall [*138] be illegal; that the person who shall dare to commit another contrary to this law, shall be disabled from bearing any office, shall incur the penalty of a premunire, and be incapable of receiving the King's pardon: and the party suffering shall also have his private action against the person committing, and all his aiders, advisers and abettors; and shall recover treble costs; besides his damages, which no jury shall assess at less than five hundred pounds. The law in this respect is so benignly and liberally construed for the benefit of the subject, that, though within the realm the king may command the attendance and service of all his liegemen, yet he cannot send any man out of the realm, even upon the public service; excepting sailors and soldiers, the nature of whose employment necessarily implies an exception: he cannot even constitute a man lord deputy or lieutenant of Ireland against his will, nor make him a foreign ambassador. (q) For this might, in reality, be no more than an honour able exile. III. The third absolute right, inherent in every Englishman, is that of property which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. The origin of private property is probably founded in nature, as will be more fully explained in the second book of the ensuing commentaries: but certainly the modifications under which we at present find it, the method of conserving it in the present owner, and of translating it from man to man, are entirely derived from society; and are some of those civil advantages, in exchange for which every individual has resigned a part of his natural liberty. The laws of England are therefore, in point of honour and justice, extremely watchful in ascertaining and protecting this right. Upon this principle the great charter (r) has declared that no freeman shall be disseised, or divested, of his freehold, or of his liberties, or free *customs but by the judgment of his peers, *1391 or by the law of the land. And by a variety of ancient statutes (s) it is enacted that no man's lands or goods shall be seized into the king's hands, against the great charter, and the law of the land; and that no man shall be disinherited, nor put out of his franchises or freehold, unless he be duly brought to answer, and be forejudged by course of law; and if anything be done to the contrary it shall be redressed and holden for none. So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men to do this without consent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no, Besides the public good is in nothing more essentially interested, than in the protection of every individual's private rights, as modelled by the municipal law. In this and similar cases the legislature alone can, and indeed frequently does interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered as an individual, treating with an individual for an exchange. All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of (8) 5 Edw. III, c. 9. 25 Edw. III, St. 5. c. 4. 28 Edw. III, c. 3. 89 (g) 2 Inst. 46 power, which the legislature indulges with caution, and which nothing but the legislature can perform.(17) *Nor is this the only instance in which the law of the land has post[*140] poned even public necessity to the sacred and inviolable rights of pri vate property. For no subject of England can be constrained to pay any aids or taxes, even for the defence of the realm or the support of government, but such as are imposed by his own consent, or that of his representatives in parliament. By the statute 25 Edw. I, c. 5 and 6, it is provided that the king shall not take any aids or tasks, but by the common assent of the realm. And what that common assent is, is more fully explained by 34 Edw. I., St. 4, c. 1, which(t) (t) See the introduction to the great charter (edit. Oxon.)sub anno 1297; wherein it is shewn that this statute de talliagio non concedendo, supposed to have been made in 34 Edw. I, is in reality, nothing more than a sort of translation into Latin of the confirmatio cartarum, 25 Edw. I, which was originally published in the Norman language. (17) [These observations must be taken with considerable qualification, for, as observed by Buller, J., there are many cases in which individuals sustain an injury, for which the law gives no action for instance, pulling down houses or raising bulwarks for the preservation and defence of the kingdom against the king's enemies. The civil law writers indeed say that the individuals who suffer have a right to resort to the public for a satisfaction, but no one ever thought that the common law gave an action against the individual who pulled down the house, &c. And where the acts of commissioners appointed by a paving act occasion a damage to an individual, without any excess of jurisdiction on their part, the commissioners or paviors acting under them are not liable to an action. 4 Term Rep. 794. 6, 7; 3 Wils. 461; 6 Taunton, 29. In general, however, a power of this nature must be created by statute, and which usually provides compensation to the individual. Thus by the highway act, 13 Geo. III, c. 78, and 3 Geo. IV, c. 126, sec. 84-5, two justices may either widen or divert any highway through or over any person's soil, even without his consent, so that the new way shall not be more than thirty feet wide, and that they pull down no building, nor take away the ground of any garden, park, or yard. But the surveyor shall offer the owner of the soil, over which the new way is carried, a reasonable compensation, which, if he refuses to accept, the justices shall certify their proceedings to some general quarter sessions; and the surveyor shall give fourteen days' notice to the owner of the soil of an intention to apply to the sessions; and the justices of the sessions shall empanel a jury, who shall assess the damages which the owner of the soil has sustained, provided that they do not amount to more than forty years' purchase. And the owner of the soil shall still be entitled to all the mines within the soil which can be got without breaking the surface of the highway. Many other acts for local improvements, recently passed, contain similar compensation clauses.] The constitutions of the United States and of the several states forbid the taking of private property for public use without just compensation. It is well settled that government has no right to take the property of one citizen and transfer it to another, even on the making of full compensation. Beekman v. S. and S. R. R. Co., 3 Paige, 45; Hepburn's Case, 3 Bland, 95; Pittsburg v. Scott, I Penn. St. 139; Matter of Albany St. 11 Wend., 149; Cooper v. Williams, 5 Ohio, 393; Reeves v. Treasurer of Wood county, 8 Ohio, N. S. 333; Nesbitt v. Trumbo, 39 Ill. 110; Osborn v. Hart, 24 Wis. 90; Bankhead v. Brown, 25 Iowa, 540. The legislature has a right to determine, or to provide a tribunal for determining, the necessity of appropriating property for public purposes; Lyon v. Jerome, 26 Wend. 484; Ford v. Chicago and N. W. R. R. Co., 14 Wis. 617; Hays v. Risher, 32 Penn. St. 169; North Missouri R. R. Co. v. Lackland, 25 Mo. 515; but on the question of the amount of compensation the owner has a right to require that an impartial tribunal be provided for its determination; Charles River Bridge v. Warren Bridge, 7 Pick. 344; Same Case, 11 Pet. 571; People v. Tallman, 36 Barb, 222; Booneville v. Ormrod, 26 Miss. 193. Some of the state constitutions provide that compensation shall be first made, but in the absence of such provision it is sufficient if the means be provided by which the owner can, with certainty, obtain it. Bloodgood v. Mohawk and H. R. R. Co., 18 Wend. 9.; Rexford v. Knight, 11 N. Y. 308; Taylor v. Marcy, 25 Ill. 518; Collison v. Hedrick, 15 Grat. 244; People v. Green, 3 Mich. 496; Charlestown Branch R. R. Co. v. Middlesex, 7 Met. 78; Harper v. Richardson, 26 Cal. 251. Corporations for the construction of railroads, turnpikes and other improved highways may be adopted as public agencies, and may be authorized to take private property to themselves under the right of eminent domain, on obtaining the proper legislative authority. Beekman v. S. and S. R. R. Co., 3 Paige, 73; Pratt v. Brown, 3 Wis. 603; Wilson v. Blackbird Creek Marsh Co., 2 Pet. 251; Buonaparte v. Camden and A. R. R. Co., 1 Bald. 205; Swan v. Williams, 2 Mich. 427; Stevens v. Middlesex Canal, 12 Mass. 466; Raleigh, &c., R. R. Co. v. Davis, 2 Dev. and Bat. 451: Gilmer v. Lime Point, 18 Cal. 229. There has been some controversy whether the appropriation of lands by the owners of mill sites in order to obtain power for manufacturing purposes, was to be regarded as a public purpose, so as to authorize the exercise of the right of eminent domain; but laws for this purpose have been sustained in some states. Wolcott W. M. Co. v. Upham, 5 Pick, 294; French v. Braintree Manuf. Co., 23 Pick. 220; Hazen v. Essex Co., 12 Cush. 477; Harding v. Goodlet, 3 Yerg. 41; Thein v. Voegtlander, 3 Wis. 465; Pratt v. Brown, Ibid. 603. See People v. Salem, 20 Mich. 450. enacts, that no talliage or aid shall be taken without the assent of the archbishops, bishops, earls, barons, knights, burgesses, and other freemen of the land: and again by 14 Edw. III, St. 2, c. 1, the prelates, earls, barons, and commons, citizens, burgesses and merchants, shall not be charged to make any aid, if it be not by the common assent of the great men and commons in parliament. And as this fundamental law had been shamefully evaded under many succeeding princes, by compulsive loans, and benevolences extorted without a real and voluntary consent, it was made an article in the petition of right, 3 Car. I, that no man shall be compelled to yield any gift, loan, or benevolence, tax, or such like charge, without common consent by act of parliament. And, lastly, by the statute 1 W. and M. St. 2, c. 2, it is declared, that levying money for or to the use of the crown, by pretence of prerogative, without grant of parliament, or for longer time, or in other manner, than the same is or shall be granted; is illegal. In the three preceding articles we have taken a short view of the principal absolute rights which appertain to every Englishman. But in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the *constitution had provided no other method to secure their actual [*141] enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as outworks or barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property. These are, 1. The constitution, powers, and privileges of parliament; of which I shall treat at large in the ensuing chapter. 2. The limitation of the king's prerogative, by bounds so certain and notorious, that it is impossible he should either mistake or legally exceed them without the consent of the people. Of this, also, I shall treat in its proper place. The former of these keeps the legislative power in due health and vigor, so as to make it improbable that laws should be enacted destructive of general liberty: the latter is a guard upon the executive power by restraining it from acting either beyond or in contradiction to the laws, that are framed and established by the other. 3. A third subordinate right of every Englishman is that of applying to the courts of justice for redress of injuries. Since the law is in England the supreme arbiter of every man's life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered therein. The emphatical words of magna carta, (u) spoken in the person of the king, who in judgment of law (says Sir Edward Coke), (w) is ever present and repeating them in all his courts, are these; nulli vendemus, nulli negabimus, aut differemus rectum vel justitiam: "and therefore every subject," continues the same learned author, "for injury done to him in bonis, in terris, vel persona, by any other subject, be he ecclesiastical or temporal, without any exception, may take his remedy by the course of the law, and have justice and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay." It were endless to enumerate all the affirmative acts of parliament, *wherein justice is directed to be done according to the law of the land; and what that law is every subject knows, or may know, [*142] if he pleases; for it depends not upon the arbitrary will of any judge, but is permanent, fixed, and unchangeable, unless by authority of parliament. I shall, however, just mention a few negative statutes, whereby abuses, perversions, or delays of justice, especially by the prerogative, are restrained. It is ordained by magna carta (x) that no freeman shall be outlawed, that is, put out of the protection and benefit of the laws, but according to the law of the land. By 2 Edw. III, c. 8, and 11 Ric. II, c. 10, it is enacted, that no commands or letters shall be sent under the great seal, or the little seal, the signet, or privy seal, in disturbance of the law; or to disturb or delay common right: and, though such commandments should come, the judges shall not cease to do right; which is also made a part of their oath by statute 18 Edw. III, St. 4. And by 1 W. and M. St. 2, c. 2, it is declared, that the pretended power of sus |