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COMMON LAW NATIONAL. 131
various public guarantees by which private rights or liberties become identified with the public law. So far as the individual and relative rights existing under the English law, and which are called "liberties,"—"civil liberties,"—"the liberties of the subject,"—"the privileges and immunities of Englishmen,"1 have a peculiar character, it is rather in the origin, duration and extent of the law in which they are founded, than in the characteristics of those mutual relations which that law establishes between private persons. For, regarded merely as existing in relations between private persons, the same individual and relative rights may be found under the law of other states or countries. The use of these terms always includes in some degree the idea of political liberty, and the foundation of private law.
§ 136. The political foundation of law in the colonies has already been in part indicated. It was a mark of these rights or liberties of the English colonist that they rested on "common law;" which, regarded only as a private law, or law determining the relations of private persons, was a law having a distinct basis in the will of the nation, as opposed to the will of any particular part or portion of the inhabitants exercising a separate or local power,' or of any person or body of persons in the realm, not identified, by public law, with the nation as a political unit: a law alterable indeed by the act of the supreme or sovereign power, and by that power as vested in a government; but that government—one which was assumed to be, by its parliamentary constitution, the representative and organ of a whole nation. The common law had therefore an integral existence in each part of the empire at the same time; being therein distinguishable from the concurrent rules of a number of independent provinces or localities.
1 2 Co. Litt cap. 29. (4.) "Ant disseisietur de libero tenement*) suo, Tel libertatibus [Mag. Ch.] This word libertates, liberties, hath three significations:
1. First, as it hath been said, it signifieth the laws of the realme, in which respect this charter is called, charta libertatum.
2. It signifieth the freedomes that the subjects of England have."
'Glanvil's Pref. to Fortescue de Laudibus, p. 29, quoting Brompton as saying, after mentioning the three sets of local laws—West Saxon, Mercian, and Danish, prevailing in England: "' Iste rex Edwardus tertius (the confessor) nnam legem communcm edidit, qnse leges Edwardi usque hodie vocantur,' which, by the way, helps us to the original meaning of the phrase common law (and different from that in which it is now taken) which was therefore called common because it extended to all England, whereas before, different parts had been ruled by different laws."
132 NOT ALL TRANSFERABLE.
It was also a law, in its ordinary operation, judicially re ceived as of constant or customary existence; not as referable to some recorded act of the depositaries of supreme power, conferring those liberties as something which they might either give or refuse. It was a law not taken to exist irrespectively of political authority, but yet not taken to rest, in the first instance, on acts of positive legislation. In being derived from a judicial apprehension of natural reason, it was not indeed more jural than the statute law, but differed from it in not being so specifically devised and promulgated in reference to persons and things in and for a certain territory only. Therefore, so far at least as it defined relations of persons without reference to specific things in England, it was a law which might be taken to be a juridical indication of natural reason in reference to the relations of the persons to whom it applied, not in England only, where it originally prevailed as the territorial law, but wherever they might remain under the same national dominion. This personal character of the common law is shown when, in de scribing the liberties or rights created by that law, they are termed "the liberties of Englishmen." *
§ 137. As is shown in the passage from Blackstone before cited, and the writings of American jurists referred to in the same connection, it is not to be supposed, when the common law of England is spoken of as a personal law for the colonists, and as determining their rights and liberties in their new domicil, that the entire body of rules comprised under that name, in England, had an equal extent in the province. As has been shown in the first chapter (§ 23) the rights of persons may be distinguished into rights existing either in relations in respect to persons as the objects of action, or relations in respect to things as the objects of action. The law prevailing in any place or territory is therein a rule of action in reference to things, as well as persons, (though persons, or the actions of persons, are the ultimate objects of every law,) and it is plain that many things (either natural or legal things) which were, in England, the objects of action contemplated by the common law, did not exist in the colonies. A very considerable portion of that
1 1 BL Comm. p. 144.
AS A LAW OF THINGS. 133
division of the common law which is called by Blackstone the "law of things," was therefore not transferred with the colonists to America as a law personal to them; and, so far as the liberties of persons in England consisted in rights of action in reference to those things, they had no existence in the colony.1
The legal liberty of any person in a civil state cannot be fully defined without considering his rights of action in respect to things: yet those rights of action which exist in relations to other persons as the objects of action, without special reference to things, or without reference to specific things, may be taken to constitute his general liberty of action. Individual and relative rights, as defined in the first chapter, may thus be juridically recognized to be rights belonging to persons in reference to other persons, without reference to specific things; and the law of England determining and maintaining those rights, as rights of the native or domiciled inhabitant of England, without reference to what is called by Blackstone the law of things, may be called the law of the liberties or privileges of Englishmen—the civil liberties of the freeborn English subject. With this limitation in respect to things, the law determining the liberties of English subjects, in England, may be said to have accompanied the colonists as a personal law.
§ 138. Further it may be remarked, by way of defining what that liberty or degree of privilege, under the common law of England, was not, and as having an important bearing on the peculiar questions connected with this subject, that, so far as the liberties of British subjects, thus secured to them and resting on the imperial or national sovereignty, consisted in rights of persons in reference to things, they could only be rights in reference to such things as were known to the law of England: and that, so far as a right of property, or to property, was one of those liberties, it was only to such objects of possession as could lawfully be property by the law of England. § 139. The possession of liberty in any extended sense, or the enjoyment of a free condition or status, irrespective of its
1 Compare also, Kent's Comm. n. 162. 8 Peters, 658. 1 Comstock, 81-36. 1 Mass. R 60. 2 do. 584. Settlements in America, voL I., pp. 303, 304. Vol. L of Haas. Quart. R. 468-470.
134 ELEMENTS OF LIBERTY.
connection with public law, must always, under any system of municipal (national) law, consist in the exercise of individual and relative rights. A free condition may however be attributed to a person who does not actually sustain those relations towards specific persons in which relative rights exist. A legal capacity for those rights is, however, taken to be an essential attribute of a free condition, whenever a distinction is made between liberty and its opposites, as contrasted results of private law; though individual or absolute rights—rights in relation to the community at large, constitute the essential part of free status or legal condition. The English law determining individual rights and the capacity for relative rights may be called, more particularly than the rest, the law of the status or condition of those to whom it applied as a personal law.
§ 140. When the individual rights which are essential to the enjoyment of liberty of condition are declared to be the right of personal liberty, the right of personal security, and the right to the acquisition and enjoyment of private property, still the condition which they constitute cannot be apprehended without the complete analysis of the laws by which those rights are vindicated or maintained. In a definition of a state of liberty, as opposed to domestic slavery, or bondage correlative to a right of dominion in private persons, these three terms, in a general sense, may be taken to have the same meaning in all countries. But as defining the elements of civil liberty, as that term is employed by European and American authors, they are of little significance, unless stated in connection with the guarantees by which they are preserved. It would be going beyond the scope of the present treatise to describe the guarantees for the rights of private persons under the law of England at any particular period of its history:—habeas corpus, trial by jury, the rules of evidence, the independence of the judiciary, rights of counsel, publicity, utterance, &c., and above all, the definitive or positive nature of that law, in having a settled supremacy independent of the will and moral judgment of all who are not identified with the actual possessors of ultimate sovereign power. A marked peculiarity of the common law of England is the degree in which it unites the characteristics of public and
private law; so that the exposition of private rights is never separable from that of a political constitution. These rights or guarantees, though attributed to ancient and customary law, have been, at different times, defined and maintained with different degrees of precision; and their legal character has therefore greatly varied, even during the last two centuries.1 The question, how far the common law of England, in being public law, was the same in England and America, was the question in which the revolution of the colonies originated. By the transplantation of the common law to each several colony, with a territorial extent therein, it acquired, in each, a new and separate character, as the local law of each. But still, so far as it was a law of personal condition, or the law of those rights which are commonly denominated personal rights, its progressive development was never independent or isolated in the several divisions of the Empire. To that extent it continued to be a national system, and the rights and guarantees, above spoken of, continued, in their progressive development, to be the same rights in respect to their juridical source, or to be rights under one and the same system of jurisprudence; though maintained and exercised under the local or internal law of distinct political jurisdictions.'
§ 141. Under the relation of master and servant, as it has been known in different times and countries, an immense variety of reciprocal rights and obligations may be comprehended; and the legal incidents of the relation have varied in England, during the period in which its "common law" has been historically known to exist, as much as in any other European country. Although, for more now than three quarters of a century, a condition either of chattel slavery, or of involuntary servitude, except by force of penal statutes, has been held to be contrary to
1 For the charters of English liberties of the subject see, besides the English Statutes at Large, Co. Litt. 2d Inst.; South Carolina Stat, at large, preface and pp. 72129, containing, Magna Charta of King John (1215), Charter of Edward I. (1297), the Petition of Rights (1628), the Habeas Corpus Act, 31 Car. 2, c. 2. (1679), Bill of Rights, 1 William and Mary, sess. 2, c. 2 (1689V See also Lieber's Civil Liberty and Self Government. And for a summary of the principal usages and acts from which a popular and consolidated presentment of the public and private rights of the English nation, answering to a written constitution, at the present day might be made, see Wade's History of the Middle and Working Classes, Part III. o. 5.
* Compare ante, §§ 48-54.