Page:Harvard Law Review Volume 4.djvu/398

382 382 HARVARD LAW REVIEW. person shalt 7tever be deprived of those rights, that they shall be inviolate and sacred forever. Therefore, how can such rights fairly be construed into a clause contained in a section dealing with the punishment of crime, a clause naming rights which are constantly taken away, which itself implies that they must always constantly be taken away, and which only stipulates that they shall be taken by due process of law? In other words, is it fair to suppose that the framers of our constitutions intended, first, to de- clare certain rights to be in every case and under all circumstances inviolable, and then to declare, or to imply, that the same rights might be taken away by due process of law? It would seem that such an intention cannot be imputed to them. So much for the question considered entirely as one of prin- ciple. If the conclusion arrived at is correct, the term " liberty," as used in those clauses which protect " hfe, liberty, and property," unless taken by *' due process of law," means nothing more or less than freedom of the person from restraint, — the great Habeas Corpus principle of Anglican liberty, — a right, the illegal invasion of which gives rise to an action of false arrest or imprisonment. It must be admitted that this view is not altogether supported by the adjudged cases. In fact, the precise view here maintained is repudiated by several decisions. On the other hand, as far as the present writer has been able to discover, the courts themselves have not yet arrived at any very definite conclusion regarding the scope of the term. There is some general discussion in the books about the origin and nature of the clause as a whole. There are volumes of discussion of the meaning of the phrase *' due process of law." There is also some loose and indefinite talk about life, liberty, and property. When, however, one seeks to ascertain the precise signification of " due process of law," he will not get a more definite idea from the decisions than from the concise, but necessarily rather vague, definition of Webster, already cited; and when one examines the cases to learn the meaning of the terms "" life," " liberty," and " property," although he may be informed of some of the rights which those terms do include, he gets little or no exact information regarding their precise scope — as to the rights which they do not include. This indefiniteness is particu- larly noticeable in some of the federal decisions. The fifth amendment to the Federal Constitution, the object of which is to provide for prosecutions, trials, and punishments (we