Page:Harvard Law Review Volume 4.djvu/397

381 MEANING OF THE TERM ''LIBERTY:' 381 any citizen thereof unless by the law of the land or the judgment of his peers." And yet another section of the same article, in providing for the rights of criminals, declares that " no person shall be subject to be twice put in jeopardy for the same offence; nor shall be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property without due process of law." If the term *' liberty " in the last clause has the meaning sometimes suggested, the first clause is entirely superflu- ous; and yet it is a canon of the interpretation of solemn instru- ments like constitutions, that aclause is not to be so construed as to render another clause entirely superfluous without very strong evidence. Moreover, the important rights which, if the term is used in the broad sense, must be included within it, are in all our consti- tutions specially provided for in separate, and often elaborate clauses. Thus the Federal, and almost all the State constitutions, provide in different terms for freedom of religion, of speech, and of press, for the right of trial by jury, of bearing arms, and the right of petition. So also constitutional protection is afforded against unreasonable searches and seizures, against quartering sol- diers in private houses, and against excessive punishments. All these are certainly civil rights, and a part of one's liberty under American government. Yet it seems to the writer that the mere fact that these — which may be described as rights of the second degree of magnitude — are provided for in separate clauses is a fair and strong argument to show that they were not intended to be included in a clause of a very different nature, which enumerates and protects in historical language those great liberties which have, from time unknown, been deemed the most fundamental rights of a freeman. That such a clause includes all rights, great and small alike, seems to the writer an untenable interpretation. And yet if it includes any besides the right of personal liberty, there seems to be no reason why it should not include all. Finally, there is one other fact, already adverted to, in the nature of intrinsic evidence, which is worth noticing. If ** liberty " in- cludes all great civil rights, it must include such rights as religious liberty, trial by jury, and liberty of press. The clause being in- terpreted would then read : " No person shall be deprived of his religious liberty, etc., unless by due process of law." But the su- preme, fundamental law, as declared by our constitutions, is that ai