Page:Harvard Law Review Volume 4.djvu/389

373 MEANING OF THE TERM ''LIBERTY:' 373 or tenement, nor taken nor imprisoned, nor put to death, without being brought in answer by due process of law." ^ The last four enactments are simply confirmations of the thirty- ninth article of the original charter, just as that article may be said to be a confirmation of the common law as it stood in 1215.^ The rights set forth were not conceived of for the first time in 12 1 5. They were rights which free Englishmen had always claimed, and theoretically had always possessed under the com- mon law. The importance of the thirty-ninth article of the Magna Charta is, that it was almost the first clear and perfect publication of those rights, and that after it the mass of the people came to know more thoroughly and more universally, precisely what their rights were in theory, and so were able to make a harder fight for them in practice. In short, the article was a plain, popular statement of the most elementary rights. What, then, were those rights ?"* In the original clause and in all its confirmations the general classification is the same, and, expressed in more modern phrase- ology, is simply life (including limb and health), personal hberty (using the phrase in its more literal and limited sense to signify freedom of the person or body, not all individual rights), and property.* In 121 5 the expression "personal lib- erty "was not in use, but the idea, or better, — considering the condition of England at the time, — the ideal, was not only known, but, as we see, was set up in the above series of enact- ments ; and the terms employed to express it were sufficiently plain: "No freeman shall be taken or imprisoned." Could any words more clearly express what we of this century intend when we talk about personal liberty, or about the great Habeas Corpus principle of Anglican liberty? It would seem not. It would seem, indeed, that the words which we should naturally 1 For copies or confirmations of this article of Magna Charta by the early American Colonists see the Massachusetts " Body of Liberties," of 1641, and the " General Fun- damentals" of the Plymouth Colony, i Hazard's State Papers, 408. 22 Coke's Inst., proem; i Blackstone's Corn's, 128. 8 "But the essential clauses of Magna Charta are those which protect the personal liberty and property of all freemen, by giving security from arbitrary imprisonment and arbitrary spoliation. ' No freeman shall be taken or imprisoned,' etc. It is obvious that these words, interpreted by an honest court of law, convey an ample security for the two main rights of civil society. From the era, therefore, of John's Charter, it must have been a clear principle that no man can be detained in prison without trial." Hallam's Middle Ages, 423.
 * 4 Blackstone's Com's, 424.