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Subject Area: Law
Topic: The American Revolution and Constitution

§ 26.: Personal liberty—How guaranteed.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


§ 26.

Personal liberty—How guaranteed.—

It is altogether needless in this connection to indulge in a panegyric upon the blessings of guaranteed personal liberty. The love of liberty, of freedom from irksome and unlawful restraints, is implanted in every human breast. In the American Declaration of Independence, and in the bills of rights of almost every State Constitution, we find that personal liberty is expressly guaranteed to all men equally. But notwithstanding the existence of these fundamental and constitutional guaranties of personal liberty, the astounding anomaly of the slavery of an entire race in more than one-third of the States of the American Union, during three-fourths of a century of natural existence, gave the lie to their own constitutional declarations, that “all men are endowed by their Creator, with certain inalienable rights, among which are the right to life, liberty, and the pursuit of happiness.” But, happily, this contradiction is now a thing of the past, and in accordance with the provisions of the thirteenth amendment to the Constitution of the United States, it is now the fundamental and practically unchangeable law of the land, that “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.1

But to a practical understanding of the effect of these constitutional guaranties, a clear idea of what personal liberty consists is necessary. It is not to be confounded with a license to do what one pleases. Liberty, according to Montesquieu, consists “only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will.” No man has a right to make such a use of his liberty as to commit an injury to the rights of others. His liberty is controlled by the oft-quoted maxim, sic utere tuo, ut alienum non lædas. Indeed liberty is that amount of personal freedom, which is consistent with a strict obedience to this rule. “Liberty,” in the words of Mr. Webster, “is the creature of law, essentially different from that authorized licentiousness that trespasses on right. It is a legal and refined idea, the offspring of high civilization, which the savage never understood, and never can understand. Liberty exists in proportion to wholesome restraint; the more restraint on others to keep off from us, the more liberty we have. It is an error to suppose that liberty consists in a paucity of laws. If one wants few laws, let him go to Turkey. The Turk enjoys that blessing. The working of our complex system, full of checks on legislative, executive and judicial power, is favorable to liberty and justice. Those checks and restraints are so many safeguards set around individual rights and interests. That man is free who is protected from injury.”1 While liberty does not consist in the paucity of laws, still it is only consistent with a limitation of the restrictive laws to those which exercise a wholesome restraint. “That man is free who is protected from injury,” and his protection involves necessarily the restraint of other individuals from the commission of the injury. In the proper balancing of the contending interests of individuals, personal liberty is secured and developed; any further restraint is unwholesome and subversive of liberty. As Herbert Spencer has expressed it, “every man may claim the fullest liberty to exercise his faculties compatible with the possession of like liberty by every other man.”1

The constitutional guaranties are generally unqualified, and a strict construction of them would prohibit all limitations upon liberty, if any other meaning but the limited one here presented were given to the word. But these guaranties are to be liberally construed, so that the object of them may be fully attained. They do not prohibit the exercise of police power in restraint of licentious trespass upon the rights of others, but the restrictive measures must be kept within these limits. “Powers, which can be justified only on this specific ground (that they are police regulations), and which would otherwise be clearly prohibited by the constitution, can be such only as are so clearly necessary to the safety, comfort and well-being of society, or so imperatively required by the public necessity, as to lead to the rational and satisfactory conclusion that the framers of the constitution could not, as men of ordinary prudence and foresight, have intended to prohibit their exercise in the particular case, notwithstanding the language of the prohibition would otherwise include it.”2

The restrictions upon personal liberty, permissible under these constitutional limitations, are either of a public or private nature. In consequence of the mental and physical disabilities of certain classes, in the law of domestic relations, their liberty is more or less subjected to restraint, the motive being their own benefit. The restraints are of a private nature, imposed under the law by private persons who stand in domestic relation to those whose liberty is restrained. This subject will be discussed in a subsequent connection.1 In this connection we are only concerned with those restraints which are of a public nature, i. e., those which are imposed by government. They may be subdivided under the following headings: 1. The police control of the criminal classes. 2. The police control of dangerous classes, other than by criminal prosecutions. 3. The regulation of domicile and citizenship. 4. Police control of morality and religion. 5. Police regulation of the freedom of speech and of the press. 6. Police regulation of trades and professions.

[1]U. S. Const. Amend., art. XIII. It has been held that this provision of the United States Constitution, ipso facto and instantaneously abolished any existing slavery in the territory of Alaska, when it came by purchase under the jurisdiction of the United States. In re Sah Quah, 31 Fed. 327.

[1]Webster’s Works, vol. II., p. 393.

[1]Social Statics, p. 94. “Liberty as used in the provision of the fourteenth amendment to the Federal constitution, forbidding the States to deprive any person of life, liberty, or property without due process of law, includes, it seems, not merely the right of a person to be free from physical restraint, but to be free in the enjoyment of all his faculties in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to carry out the purposes above mentioned.” Allgeyer v. State of Louisiana, 165 U. S. 578.

[2]Christiancy, J., in People v. Jackson & Mich. Plank Road Co., 9 Mich. 285.

[1]See post, ch. 12, 13, 14, and §§ 180-207.